[Title 36 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 1999 Edition]
[From the U.S. Government Printing Office]


          36



          Parks, Forests, and Public Property



[[Page i]]

          PARTS 200 TO 299

                         Revised as of July 1, 1999

          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT

          AS OF JULY 1, 1999
          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration

          as a Special Edition of
          the Federal Register



[[Page ii]]





                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1999



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 36:

          Chapter II--Forest Service, Department of 
          Agriculture.........................................       3

  Finding Aids:

      Table of CFR Titles and Chapters........................     433

      Alphabetical List of Agencies Appearing in the CFR......     451

      List of CFR Sections Affected...........................     461



[[Page iv]]





                     ----------------------------

                     Cite this Code:  CFR
                      To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  36 CFR 200.1 refers 
                       to title 36, part 200, 
                       section 1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

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HOW TO USE THE CODE OF FEDERAL REGULATIONS

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EFFECTIVE AND EXPIRATION DATES

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OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request. 

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
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OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
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CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
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    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
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    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

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in the Code of Federal Regulations.

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or write to the Director, Office of the Federal Register, National 
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site for public 

[[Page vii]]


law numbers, Federal Register finding aids, and related information. 
Connect to NARA's web site at www.nara.gov/fedreg. The NARA site also 
contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

July 1, 1999.



[[Page ix]]



                               THIS TITLE

    Title 36--Parks, Forests, and Public Property is composed of three 
volumes. The parts in these volumes are arranged in the following order: 
parts 1 to 199, parts 200 to 299, and part 300 to End. The contents of 
these volumes represent all current regulations codified under this 
title of the CFR as of July 1, 1999.

    Redesignation tables appear in the Finding Aids section of the third 
volume.

    For this volume, Carol Conroy was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of Frances D. 
McDonald, assisted by Alomha S. Morris.

[[Page x]]





[[Page 1]]



              TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY




                  (This book contains parts 200 to 299)

  --------------------------------------------------------------------
                                                                    Part

Chapter II--Forest Service, Department of Agriculture.......         200

[[Page 3]]




         CHAPTER II--FOREST SERVICE, DEPARTMENT OF AGRICULTURE         



  --------------------------------------------------------------------
Part                                                                Page
200             Organization, functions, and procedures.....           5
211             Administration..............................          13
212             Administration of the forest development 
                    transportation system...................          23
213             Administration of lands under Title III of 
                    the Bankhead-Jones Farm Tenant Act by 
                    the Forest Service......................          33
215             Notice, comment, and appeal procedures for 
                    National Forest System projects and 
                    activities..............................          34
216             Involving the public in the formulation of 
                    Forest Service directives...............          43
217             Appeal of regional guides and National 
                    Forest land and resource management 
                    plans...................................          45
219             Planning....................................          53
221             Timber management planning..................          79
222             Range management............................          80
223             Sale and disposal of National Forest System 
                    timber..................................          98
228             Minerals....................................         155
230             State and private forestry assistance.......         190
241             Fish and wildlife...........................         196
242             Subsistence management regulations for 
                    public lands in Alaska..................         199
251             Land uses...................................         303
254             Landownership adjustments...................         339
261             Prohibitions................................         356
262             Law enforcement support activities..........         369
264             Property management.........................         373
271             Use of ``Smokey Bear'' symbol...............         374
272             Use of ``Woodsy Owl'' symbol................         375
290             Cave resources management...................         377
291             Occupancy and use of developed sites and 
                    areas of concentrated public use........         379
292             National recreation areas...................         380
293             Wilderness--primitive areas.................         406
294             Special areas...............................         411

[[Page 4]]

295             Use of motor vehicles off forest development 
                    roads...................................         412
296             Protection of archaeological resources: 
                    uniform regulations.....................         414
297             Wild and scenic rivers......................         427
298-299         [Reserved]

Cross References: Bureau of Land Management, Department of the Interior: 
  See 43 CFR 2567.8; Group 2500.

  Note:Other regulations relating to agriculture appear in title 7; 
title 9; title 17, chapter I; title 48, chapter 4.


Abbreviations:
    The following abbreviations are used in this chapter:
    A.O.=Administrative order  P.L.O.=Public Land order.

[[Page 5]]



PART 200--ORGANIZATION, FUNCTIONS, AND PROCEDURES--Table of Contents




                         Subpart A--Organization

Sec.
200.1  Central organization
200.2  Field organization.

                   Subpart B--Functions and Procedures

200.3  Forest Service functions.
200.4  Administrative issuances.
200.5  Indexes.
200.6  Information available; inspection, copying, and charges.
200.7  Request for records.
200.8  Appeals.
200.12  Land status and title records.

    Authority: 5 U.S.C. 552; 7 U.S.C. 6706; 16 U.S.C. 472, 521, 1603, 
and 2101 et seq.



                         Subpart A--Organization



Sec. 200.1  Central organization.

    (a) Central office. The national office of the Forest Service, U.S. 
Department of Agriculture, is located in the Auditors Building, 14th and 
Independence Avenue, SW. Washington, DC. It consists of the Office of 
the Chief and Associate Chief, and a Deputy Chief for each of the 
following five activities: Programs and Legislation, National Forest 
System, Research, State and Private Forestry, and Administration. All 
communications should be addressed to the Forest Service, Department of 
Agriculture, P.O. Box 96090, Washington, DC 20090-6090.
    (b) Chief of the Forest Service. The Chief of the Forest Service, 
under the direction of the Secretary of Agriculture, administers the 
formulation, direction, and execution of Forest Service policies, 
programs, and activities.
    (c) Deputy Chiefs. The major activities of the Forest Service at the 
headquarters level are divided into five Deputy Chief areas with each 
further divided into staff units. The programs and functions of staff 
units are directed by staff directors and may be subdivided into groups 
headed by group leaders. A description of the major activities of each 
Deputy Chief follows:
    (1) Programs and legislation. Overall planning of Forest Service 
programs, policy formulation and analysis, budgeting, legislative 
development, reporting and liaison, and environmental coordination.
    (2) National Forest System. Administration of National Forest System 
lands and management of natural resources within the principle of 
multiple use and sustained yield. Management includes planning, 
coordinating, and directing the national resource programs of timber, 
range, wildlife, recreation, watershed, and mineral areas; and support 
activities of fire, engineering, lands, aviation, and computer systems. 
The National Forest System includes:

155  Proclaimed or designated National Forests
20  National Grasslands
51  Purchase Units
8  Land Utilization Projects
20  Research and Experimental Areas
33  Other Areas

The first four classifications listed above are administered as 121 
Forest Service Administrative Units, each headed by a Forest Supervisor. 
National Recreation Areas, National Forest Wildernesses, and Primitive 
Areas are included in the above land classifications.
    (3) Research. Plan, coordinate, and direct research programs to 
learn how man can best use and protect the plant, animal, soil, water, 
and esthetic resources of nonagricultural rural and exurban lands for 
his well-being and enjoyment. These programs include research on timber 
management, forest products and engineering, forest economics and 
marketing, watersheds, wildlife and fish habitat, range, recreation and 
other environmental concerns, forest insects and disease, forest fire 
and atmospheric science. Plans and directs international forestry 
activities and disseminates forestry research information throughout the 
world.
    (4) State and private forestry. Coordinate and provide leadership 
for intergovernmental resource programs for technical and financial 
assistance to improve and protect State and privately-owned forest 
resources and urban and community forestry. Carries out this action 
through cooperative forestry, area planning and development, cooperative 
fire protection, forest insect and disease management, cooperative tree 
planting, and overall

[[Page 6]]

Forest Service participation in rural development and environmental 
concern, including civil defense and other emergency activities.
    (5) Administration. Provide support for Forest Service programs 
through management improvement, fiscal and accounting, administrative 
services, personnel management, manpower and youth conservation, 
antipoverty programs, communication and electronics, internal review 
system, external audits, coordination of civil rights activities, public 
information, and Service-wide management of systems and computer 
applications.

[41 FR 24350, June 16, 1976, as amended at 42 FR 32230, June 24, 1977; 
43 FR 27190, June 23, 1978; 44 FR 5660, Jan. 29, 1979; 62 FR 33366, June 
19, 1997]



Sec. 200.2  Field organization.

    The field organization of the Forest Service consists of regions, 
stations, and areas as described below:
    (a) Regions of the National Forest System. For the purpose of 
managing the lands administered by the Forest Service, the United States 
is divided into nine geographic regions of the National Forest System. 
Each region has a headquarters office and is supervised by a Regional 
Forester who is responsible to the Chief for the activities assigned to 
that region. Within each region are located national forests and other 
lands of the Forest Service.
    (1) National Forests. Each Forest has a headquarters office and is 
supervised by a Forest Supervisor who is responsible to the Regional 
Forester. Two or more proclaimed or designated National Forests, or all 
of the Forests in a State, may be combined into one Forest Service 
Administrative Unit headed by one Forest Supervisor. Each Forest is 
divided into Ranger Districts. The Alaska Region is composed of two 
National Forests without Ranger Districts; with one Forest divided into 
three areas, each administered by a Forest Supervisor.
    (2) Ranger districts. Each district may include a portion of a 
national forest, a national grassland or portion thereof, a national 
recreation area, a wilderness or primitive area, and other lands 
administered by the Forest Service. Each district has a headquarters 
office and is supervised by a District Ranger (or Area Ranger in some 
cases) who is responsible to the Forest Supervisor.
    (b) Forest and rangeland research coordination. The field research 
program is coordinated by six research stations, the national Forest 
Products Laboratory, and the International Institute of Tropical 
Forestry. Each has a headquarters office and a Director who is 
responsible to the Chief for all research activities within a 
geographical area of the United States or its territories. Scientists 
are based at Research Work Units with laboratories located in 36 lower 
States, Hawaii, Alaska, and Puerto Rico. Scientists primarily conduct 
their work within a given geographical area, but due to the integrated 
and cooperative nature of the research program, they make work 
nationwide and internationally.
    (c) State and private forestry cooperation. Field level cooperation 
between the Forest Service, States, and the private sector on forestry 
activities is accomplished by the Northeastern Area State and Private 
Forestry for the Northeastern States; and by the National Forest 
Regional Offices in the Southeastern and Western States. The 
Northeastern Area is supervised by an Area Director who is responsible 
to the Chief for State and private forestry activities within the Area. 
Regional Foresters in Regions 1 through 8 and Region 10 are responsible 
for State and private forestry activities within those regions.
    (d) International Institute of Tropical Forestry. The Institute is 
managed by a Director who is the senior Forest Service official in 
Puerto Rico. The Director is responsible to the Chief for planning and 
directing research, science and technology exchange, technical 
assistance to the Commonwealth of Puerto Rico, and international 
cooperation on natural resources concerning tropical forestry.
    (e) Field addresses. The addresses of Regional Foresters, Station 
Directors, and Area Directors are given below. Under each Regional 
Office address is a list of National Forest Administrative Units by 
States with locations of Forest Supervisor headquarters. Headquarters 
locations for Ranger Districts, National Grasslands, and National

[[Page 7]]

Recreation Areas are not listed but may be obtained from Forest 
Supervisors or Regional Foresters.

                       National Forests by Region
------------------------------------------------------------------------
                                                          Headquarters
    State in which forest is        National forest        location of
            located               administration unit        forest
                                                           supervisor
------------------------------------------------------------------------
Region 1, Northern Region
 (Regional Forester, Federal
 Bldg., P.O. Box 7669,
 Missoula, MT 59807):
  Idaho........................  Clearwater...........  Orofino.
                                 Idaho Panhandle        Coeur d'Alene.
                                  National Forests
                                  (Kaniksu-Coeur
                                  'dAlene-St. Joe.
                                 Nezperce.............  Grangeville.
  Montana......................  Beaverhead...........  Dillon.
                                 Bitterroot...........  Hamilton.
                                 Custer...............  Billings.
                                 Deerlodge............  Butte.
                                 Flathead.............  Kalispell.
                                 Gallatin.............  Bozeman.
                                 Helena...............  Helena.
                                 Kootenai.............  Libby.
                                 Lewis and Clark......  Great Falls.
                                 Lolo.................  Missoula.
Region 2, Rocky Mountain Region
 (Regional Forester, 740 Simms
 Street, P. O. Box 25127,
 Lakewood, CO 80225):
  Colorado.....................  Arapaho-Roosevelt....  Fort Collins.
                                 Grand Mesa-            Delta.
                                  Uncompahgre and
                                  Gunnison.
                                 Pike-San Isabel......  Pueblo.
                                 San Juan-Rio Grande..  Monte Vista.
                                 White River..........  Glenwood
                                                         Springs.
  Nebraska.....................  Nebraska (Samuel R.    Chadron.
                                  McKelvie).
  South Dakota.................  Black Hills..........  Custer.
  Wyoming......................  Bighorn..............  Sheridan.
                                 Medicine Bow-Routt...  Laramie.
                                 Shoshone.............  Cody.
Region 3, Southwestern Region
 (Regional Forester, Federal
 Bldg., 517 Gold Ave. SW.,
 Albuquerque, NM 87102):
  Arizona......................  Apache-Sitgreaves....  Springerville.
                                 Coconino.............  Flagstaff.
                                 Coronado.............  Tucson.
                                 Kaibab...............  Williams.
                                 Prescott.............  Prescott.
                                 Tonto................  Phoenix.
  New Mexico...................  Carson...............  Taos.
                                 Cibola...............  Albuquerque.
                                 Gila.................  Silver City.
                                 Lincoln..............  Alamogordo.
                                 Santa Fe.............  Santa Fe.
Region 4, Intermountain Region
 (Regional Forester, 324 25th
 St., Ogden, UT 84401):
  Idaho........................  Boise................  Boise.
                                 Caribou (Cache-Idaho   Pocatello.
                                  portion).
                                 Challis..............  Challis.
                                 Payette..............  McCall.
                                 Salmon...............  Salmon.
                                 Sawtooth.............  Twin Falls.
                                 Targhee..............  St. Anthony.
  Nevada.......................  Humboldt.............  Elko.
                                 Toiyabe, except the    Sparks.
                                  Lake Tahoe basin
                                  management unit.
  Utah.........................  Ashley...............  Vernal.
                                 Dixie................  Cedar City.
                                 Fishlake.............  Richfield.
                                 Manti-La Sal.........  Price.
                                 Uinta................  Provo.
                                 Wasatch (Cache-Utah    Salt Lake City.
                                  portion).
  Wyoming......................  Bridger-Teton........  Jackson.
Region 5, Pacific Southwest
 Region (Regional Forester, 630
 Sansome St., San Francisco, CA
 94111):
  California...................  Angeles..............  Arcadia.
                                 Cleveland............  San Diego.
                                 Eldorado, except the   Placerville.
                                  Lake Tahoe basin
                                  management unit.

[[Page 8]]

 
                                 Inyo.................  Bishop.
                                 Klamath..............  Yreka.
                                 Lassen...............  Susanville.
                                 Los Padres...........  Goleta.
                                 Mendocino............  Willows.
                                 Modoc................  Alturas.
                                 Plumas...............  Quincy.
                                 San Bernardino.......  San Bernardino.
                                 Sequoia..............  Porterville.
                                 Shasta-Trinity.......  Redding.
                                 Sierra...............  Fresno.
                                 Six Rivers...........  Eureka.
                                 Stanislaus (Calaveras  Sonora.
                                  Bigtree).
                                 Tahoe, except the      Nevada City.
                                  Lake Tahoe basin
                                  management unit.
                                 Lake Tahoe basin       South Lake Tahoe
                                  management unit        (headed by an
                                  (portions of           administrator).
                                  Toiyabe, Eldorado,
                                  and Tahoe National
                                  Forests).
Region 6, Pacific Northwest
 Region (Regional Forester, 333
 S.W. 1st Avenue, P.O. Box
 3623, Portland, OR 97208):
  Oregon.......................  Deschutes............  Bend
                                 Fremont..............  Lakeview.
                                 Malheur..............  John Day.
                                 Mount Hood...........  Gresham.
                                 Ochoco...............  Prineville.
                                 Rogue River..........  Medford.
                                 Siskiyou.............  Grants Pass.
                                 Siuslaw..............  Corvallis.
                                 Umatilla.............  Pendleton.
                                 Umpqua...............  Roseburg.
                                 Wallowa-Whitman......  Baker.
                                 Willamette...........  Eugene.
                                 Winema...............  Klamath Falls.
  Washington...................  Colville.............  Colville.
                                 Gifford Pinchot......  Vancouver.
                                 Mount Baker-           Mountain
                                  Snoqualmie.            Terrace.
                                 Okanogan.............  Okanogan.
                                 Olympic..............  Olympia.
                                 Wenatchee............  Wenatchee.
Region 8, Southern Region
 (Regional Forester, 1720
 Peachtree Rd. NW., Atlanta, GA
 30367):
  Alabama......................  National forests in    Montgomery.
                                  Alabama (William B.
                                  Bankhead, Conecuh,
                                  Talladega, Tuskegee).
  Arkansas.....................  Ouachita.............  Hot Springs.
                                 Ozark-St. Francis....  Russellville.
  Florida......................  National forests in    Tallahassee.
                                  Florida
                                  (Apalachicola,
                                  Ocala, Osceola).
  Georgia......................  Chattahoochee-Oconee.  Gainesville.
  Kentucky.....................  Daniel Boone.........  Winchester.
  Louisiana....................  Kisatchie............  Pineville.
  Mississippi..................  National Forests in    Jackson.
                                  Mississippi
                                  (Bienville, Delta,
                                  De Soto, Holly
                                  Springs, Homochitto,
                                  Tombigbee).
  North Carolina...............  National forests in    Asheville.
                                  North Carolina
                                  (Croatan, Nantahala,
                                  Pisgah, Uwharrie).
  Puerto Rico..................  Caribbean............  Rio Piedras, PR.
  South Carolina...............  Francis Marion and     Columbia.
                                  Sumter.
  Tennessee....................  Cherokee.............  Cleveland.
  Texas........................  National forests in    Lufkin.
                                  Texas (Angelina,
                                  Davy Crockett,
                                  Sabine, Sam Houston).
  Virginia.....................  George Washington-     Roanoke.
                                  Jefferson.
Region 9, Eastern Region
 (Regional Forester, 310 West
 Wisconsin Ave., Milwaukee, WI
 53203):
  Illinois.....................  Shawnee..............  Harrisburg.
  Indiana and Ohio.............  Wayne-Hoosier........  Bedford, IN.
  Michigan.....................  Hiawatha.............  Escanaba.
                                 Huron-Manistee.......  Cadillac.

[[Page 9]]

 
                                 Ottawa...............  Ironwood.
  Minnesota....................  Chippewa.............  Cass Lake.
                                 Superior.............  Duluth.
  Missouri.....................  Mark Twain...........  Rolla.
  New Hampshire and Maine......  White Mountain.......  Laconia, NH.
  Pennsylvania.................  Allegheny............  Warren.
  Vermont......................  Green Mountain.......  Rutland.
  West Virginia................  Monongahela..........  Elkins.
  Wisconsin....................  Chequamegon..........  Park Falls.
                                 Nicolet..............  Rhinelander.
Region 10, Alaska Region
 (Regional Forester, Federal
 Office Bldg., P.O. Box 21628,
 Juneau, AK 99802-1628):
  Alaska.......................  Chugach..............  Anchorage.
                                 Tongass:.............
                                   Chatham area.......  Sitka.
                                   Ketchikan area.....  Ketchikan.
                                   Sitkine area.......  Petersburg.
------------------------------------------------------------------------

Forest and Range Experiment Stations, Laboratories, and Institutes Name 
                  of Unit and Headquarters of Director

North Central Research Station--1995 Folwell Avenue, St. Paul, MN 55108.
Northeastern Research Station--100 Matsonford Road, 5 Radnor Corporate 
Center, Suite 200, P.O. Box 6775, Radnor, PA 19087-4585.
Pacific Northwest Research Station--333 S.W. 1st Avenue, P.O. Box 3890, 
Portland, OR 97208-3890.
Pacific Southwest Research Station--800 Buchanan Street, West Building, 
Albany, CA 94710-0011.
Rocky Mountain Research Station--240 West Prospect Street, Fort Collins, 
CO 80526-2098.
Southern Research Station--200 Weaver Boulevard, P.O. Box 2680, 
Asheville, NC 28802.

                               Laboratory

Forest Products Laboratory--One Gifford Pinchot Drive, Madison, WI 
53705-2398.

                                Institute

International Institute of Tropical Forestry--Call Box 25000, UPR 
Experimental Station Grounds, Rio Piedras, Puerto Rico 00928-2500.

                 State and Private Forestry Area Office

Director, Northeastern Area--100 Matsonford Road, P.O. Box 6775, Radnor, 
PA 19087-4585.
    Note: In Regions 1 through 8 and 10, State and Private Forestry 
activities are directed from Regional headquarters.

[41 FR 24350, June 16, 1976, as amended at 42 FR 32230, June 24, 1977; 
42 FR 40438, Aug. 10, 1977; 43 FR 27190, June 23, 1978; 44 FR 5660, Jan. 
29, 1979; 62 FR 33366, 33367, June 19, 1997]



                   Subpart B--Functions and Procedures



Sec. 200.3  Forest Service functions.

    (a) Legislative authority. The basic laws authorizing activities of 
the Forest Service are set forth in the U.S.C. in title 7 (Agriculture), 
chapters 14, 17, 33, 55, 59, and 61; title 16 (Conservation), chapters 
2, 3, 4, 5C, 6, 23, 27, 28, 30, 36, and 37; title 29 (Labor), chapter 
17; and title 43 (Public Lands), chapters 22 and 35.
    (b) Work of the Forest Service. Under delegated authority from the 
Secretary of Agriculture, the broad responsibilities of the Forest 
Service are:
    (1) Leadership in forestry. The Forest Service provides overall 
leadership in forest and forest-range conservation, development, and 
use. This involves determination of forestry conditions and 
requirements, and recommendations of policies and programs needed to 
keep the Nation's private and public lands fully productive.
    (2) National Forest System administration. (i) The Forest Service 
administers and manages the National Forest System lands in accordance 
with the Multiple-Use Sustained-Yield Act of June 12, 1960 (16 U.S.C. 
528-531); the Forest and Rangeland Renewable Resources Planning Act of 
August 17, 1974 (16 U.S.C. 1600-1614); and the National Forest 
Management Act of October 22, 1976 (16 U.S.C. 472a, 476, 500, 513-516, 
521b; 576b, 1600-1602, 1604, 1606, 1608-1614).

[[Page 10]]

    (ii) The National Forest System comprises about 188 million acres of 
land in the National Forests, National Grasslands, and other areas which 
have been transferred to the Forest Service for administration. On these 
public lands:
    (A) Forestry methods are applied in growing and harvesting timber,
    (B) Forage is scientifically managed for the use of domestic 
livestock whose numbers are kept in balance with the carrying capacity 
of the range,
    (C) Wildlife habitat and species are managed,
    (D) Watersheds are managed to safeguard the water supply and 
stabilize streamflow,
    (E) Recreation resources are managed for public enjoyment and 
benefit,
    (F) Many forms of land and resource use are granted under permit or 
lease, and
    (G) Physical and resource improvements needed to develop, protect, 
and use all resources are built and maintained.
    (3) Cooperative forestry. The Forest Service carries out cooperative 
forestry programs for public benefit through programs initiated by 
State, county, and other Federal agencies in accordance with the 
Cooperative Forestry Assistance Act of July 1, 1978 (16 U.S.C. 2101-
2111). These programs are directed at the protection, development, and 
sustained production of all forestry resources, both public and private.
    (4) Forest research. The Forest Service conducts research on 
problems involving protection, development, management, renewal, and 
continuous use of all resources, products, values, and services of 
forest lands in accordance with the Forest and Rangeland Renewable 
Resources Research Act of June 30, 1978 (16 U.S.C. 1641-1647). Research 
is conducted on:
    (i) Forest and range management, including the five basic resources 
of timber, forest soil and water, range forage, wildlife and fish 
habitat, and forest recreation,
    (ii) Forest protection from fire, insects, and disease,
    (iii) Forest products and engineering, and
    (iv) Forest resource economics including forest survey, forest 
economics, and forest products marketing.

[44 FR 37505, June 27, 1979]



Sec. 200.4  Administrative issuances.

    (a) The regulations of the Secretary of Agriculture governing the 
protection and administration of National Forest System lands and other 
programs of the Forest Service are set forth in Chapter 2 of Title 36 of 
the Code of Federal Regulations.
    (b) Administrative policy, procedure, and guidance to Forest Service 
employees for the conduct of Forest Service activities are issued as 
directives, or through correspondence, by the office of the Chief of the 
Forest Service and by the field officers listed in Sec. 200.2.
    (1) Directives are issued through the Forest Service Directive 
System, which is comprised of the Forest Service Manual and related 
Forest Service Handbooks. The Directive System codifies the agency's 
policy, practice, and procedure affecting more than one unit and the 
delegations of continuing authority and assignment of continuing 
responsibilities; serves as the primary administrative basis for the 
internal management and control of all programs; and is the primary 
source of administrative direction to Forest Service employees.
    (2) In contrast to direction issued through the Directive System, 
guidance issued to one or more organizational units through letters and 
memoranda relate to decisions or interpretations on specific activities, 
cases, or incidents or to other matters of agency business, especially 
those matters of short-term duration or immediate interest.
    (c) Forest Service Directive System issuances are published under 
delegated authority as follows:
    (1) The Forest Service Manual and Forest Service Handbook issuances 
to all Forest Service units are published by the Office of the Chief.
    (2) Forest Service Manual and Forest Service Handbook issuances may 
be supplemented as needed for field office use by a Regional Forester, a 
Regional

[[Page 11]]

Special Agent in Charge of Law Enforcement and Investigations, a 
Research Station Director, the International Institute for Tropical 
Forestry Director, the Area Director, or a Forest Supervisor.
    (d) Guidance issued through letters and memoranda must be issued in 
accordance with signing authorities delegated through issuances to the 
Forest Service Directive System.
    (e) An alphabetical index of the contents of the Forest Service 
Manual and related Forest Service Handbooks is published in Forest 
Service Handbook 1109.11, Directive System User Guide. The index 
contains a listing of all Series, Titles, and Chapters in the Forest 
Service Manual and a listing of all Forest Service Handbooks in the 
Directive System.
    (f) Forest Service Handbook 6209.11, Records Management Handbook, 
outlines and indexes the filing system for all correspondence and other 
records.
    (g) Forms and reports used by the agency are listed in, and 
instructions for their use are issued throughout, the Forest Service 
Directive System and are collated in Forest Service Handbook 1309.14, 
Information Requirements Handbook.

[62 FR 33367, June 19, 1997]



Sec. 200.5  Indexes.

    Publication of the indexes described in Sec. 200.4 is deemed both 
unnecessary and impractical because of the large volume of material 
involved. However, copies of the indexes are available for public review 
in the Forest Service headquarters office in Washington, DC, and at 
field offices listed under Sec. 200.2(d). The Forest Service will 
provide copies of any index upon request at a cost not to exceed the 
direct cost of duplication.

[40 FR 12790, Mar. 21, 1975. Redesignated at 62 FR 13540, Mar. 21, 1997]



Sec. 200.6  Information available; inspection, copying, and charges.

    (a) In accordance with 5 U.S.C. 552(a) and 7 CFR 1.2, the Forest 
Service shall make available for public inspection and copying all 
published or unpublished directives, forms, records, and final opinions, 
including concurring or dissenting opinions and orders made in the 
adjudication of cases. Charges for information requested from the Forest 
Service are set out in paragraph (d) of this section and vary according 
to the type of information requested.
    (b) Information made available pursuant to paragraph (a) of this 
section may be obtained at the Office of the Chief, or the office of any 
Regional Forester, Research Station Director, Area Director, Institute 
Director, Forest Supervisor, or District Ranger. The addresses of these 
offices are set forth in Secs. 200.1 and 200.2. Forest Service personnel 
at these offices will assist members of the public seeking Forest 
Service records. However, Research Station and Institute Directors and 
District Rangers may not have all volumes of the Forest Service Manual 
and Handbooks. When the information requested is not available at a 
given location, the personnel where the request is received will direct 
the requester to another office where the information may be obtained.
    (c) Inspection and copying availability is as follows:
    (1) Facilities for inspection and copying are available at the 
offices listed in Secs. 200.1 and 200.2, during established office hours 
for the particular location, usually 8 a.m. to 5 p.m., Monday through 
Friday. Copying facilities may not be available at all Forest Service 
offices.
    (2) Requesters for information may make copies of available 
information without charge if they elect to bring their own copy 
equipment to the appropriate offices listed in Secs. 200.1 and 200.2.
    (3) Requesters should make prior arrangements for using agency 
copying facilities or for bringing in copying equipment and, in the 
later case, should get advance approval from the office.
    (d) Any request for information pursuant to the provisions of the 
Freedom of Information Act must be submitted in accordance with 
Secs. 200.7 and 200.8. The Forest Service charges a fee for copies of 
records not generally made available to the public but released pursuant 
to a FOIA request in accordance with a schedule of fees established by 
the Department of Agriculture at 7 CFR Part 1, Subpart A, Appendix A.

[[Page 12]]

These fees do not apply to information that is generally and routinely 
made available to the public upon request, such as recreational 
brochures, pamphlets, maps, and technical guides as well as agency 
directive issuances. Separate charges for such general information are 
established in the agency's Directive System (Sec. 200.4). For example, 
some pamphlets and small segments of the Forest Service Manual and 
Handbook may be provided at no cost, but maps of the National Forest 
System and larger sections of the Manual and Handbook are available for 
a charge. Current charges are explained at the time the request is made.

[62 FR 13540, Mar. 21, 1997]



Sec. 200.7  Request for records.

    Requests for records and the processing of those records are 
governed by the rules at 7 CFR 1.6. Agency officials are authorized to 
receive and act on requests for records as follows:
    (a) The Regional Forester, Regional Special Agent in charge, 
Research Station Director, Area Director, and Institute Director at the 
field locations and addresses listed in Sec. 200.2; the Director of Law 
Enforcement and Investigations, other Staff Directors, or other 
officials whom the Chief may authorize, located in the Washington 
Office, are authorized to receive requests for such records, to make 
determinations regarding whether records exist, and to grant or deny 
requests for records exempt from disclosure under the provisions of 5 
U.S.C. 552(b).
    (b) Each of the officials listed in paragraph (a) of this section 
also is authorized to take the following actions:
    (1) Extend the 10-day administrative deadline for reply pursuant to 
7 CFR 1.14;
    (2) Make discretionary releases pursuant to 7 CFR 1.17(b) of records 
exempt from mandatory disclosure;
    (3) Deny records pursuant to 5 U.S.C. 552(b); and
    (4) Make determinations regarding the charges of fees pursuant to 7 
CFR 1.8(a).

[62 FR 33368, June 19, 1997, as amended at 63 FR 53811, Oct. 7, 1998]



Sec. 200.8  Appeals.

    (a) Appeals from denials of requests submitted under Sec. 200.7 
shall be submitted in accordance with U.S. Department of Agriculture 
rules at 7 CFR part 1, subpart A, and the appendix to subpart A to the 
Chief, Forest Service, U.S. Department of Agriculture, Auditors 
Building, 14th and Independence Avenue, S.W., P.O. Box 96090, 
Washington, DC 20090-6090.
    (b) The Chief, or other official to whom such authority is 
delegated, shall determine whether to grant or deny the appeal and make 
all necessary determinations relating to an extension of the 20-day 
administrative deadline for reply, discretionary release of records 
exempt from mandatory disclosure under 5 U.S.C. 552(b), and charging the 
appropriate fees, pursuant to U.S. Department of Agriculture rules at 7 
CFR part 1, subpart A, and the appendix to subpart A.
    (c) The Forest Service Freedom of Information Act/Privacy Act 
Officer must review all proposed responses to appeals prior to 
signature.

[63 FR 53812, Oct. 7, 1998, as amended at 63 FR 60049, Nov. 6, 1998]



Sec. 200.12  Land status and title records.

    (a) Land Status Records System. The Land Status Records System is 
the official, permanent repository for all agency realty records and 
land title documents for National Forest System lands. It includes an 
automated database which contains an accurate account of: acreage, 
condition of title, administrative jurisdiction, rights held by the 
United States, administrative and legal use restrictions, encumbrances, 
and access rights on land or interests in land in the National Forest 
System.
    (1) Components. The system shall include, but is not limited to, the 
following components:
    (i) A current and accurate Land Status Atlas for each National 
Forest, National Grassland, and other proclaimed or designated 
administrative unit, which shall graphically portray on maps keyed to a 
tabular summary the following categories of information:

[[Page 13]]

    (A) Jurisdiction of and condition of title to lands administered as 
part of the National Forest System.
    (B) All encumbrances on National Forest System lands.
    (C) All partial interests administered by the Forest Service on 
other lands.
    (D) All use restrictions, withdrawals, and special designated areas 
on National Forest System lands.
    (E) The acreage of National Forest System lands, including riparian 
lands.
    (ii) A master Land Status File, from which the agency data for the 
Atlas is derived and which includes the following:
    (A) Discrete title files of each landownership adjustment.
    (B) The original authorizing documents establishing or adjusting 
National Forest System lands and interests therein.
    (C) Withdrawals, use restrictions, and special designated areas on 
National Forest System lands.
    (D) Other information as deemed necessary.
    (iii) Such reporting systems as are needed to provide title or 
status reports.
    (2) Display of Information. Information in the system may be 
collected and maintained in narrative, graphic, tabular, or other form 
and may be entered into and maintained in automated systems as well as 
produced in paper form in accordance with such administrative direction 
as the Chief of the Forest Service or Regional Foresters may establish.
    (b) Availability. A Land Status Atlas shall be maintained at each 
National Forest administrative unit or subunit, such as Ranger Districts 
or National Recreation Area offices. Each Regional Office shall maintain 
copies of the Atlas for all National Forests within that Region. Related 
land title and realty records for each National Forest System unit shall 
be maintained at the administrative headquarters of that unit. The Land 
Status Atlas and such title and realty records as are held at an 
administrative unit shall be available for public inspection.

[56 FR 29181, June 26, 1991, as amended at 59 FR 2987, Jan. 20, 1994]



PART 211--ADMINISTRATION--Table of Contents




         Subpart A--Cooperation With Private and State Agencies

Sec.
211.1-211.2  [Reserved]
211.3  Cooperation with State officers.
211.4  Cooperation for fire prevention and control.
211.5  Emergency fire suppression assistance.

  Subpart B--Appeal of Decisions Concerning the National Forest System

211.16  Appeal of resource recovery and rehabilitation decisions 
          resulting from natural catastrophes.
211.17  Appeal of decisions to reoffer returned or defaulted timber 
          sales on National Forests.
211.18  Appeal of decisions of forest officers.

    Authority: 16 U.S.C. 551, 472.



         Subpart A--Cooperation With Private and State Agencies



Secs. 211.1-211.2  [Reserved]



Sec. 211.3  Cooperation with State officers.

    All forest officers will cooperate with State officials, insofar as 
practicable, to enforce State fire, game, and health laws. They are 
authorized to accept appointments, without compensation, as deputy State 
fire wardens, game wardens, and/or health officers whenever in the 
judgment of the Chief of the Forest Service the performance of the 
duties required by these offices will not interfere with their duties as 
Federal forest officers.

[1 FR 1261, Aug. 15, 1936]



Sec. 211.4  Cooperation for fire prevention and control.

    The Forest Service shall, whenever possible, and is hereby 
authorized to enter into such agreements with private owners of timber, 
with railroads, and with other industrial concerns operating in or near 
the national forests as will result in mutual benefit in the prevention 
and suppression of forest fires: Provided, That the service required of 
each party by such agreements shall be in proportion to the benefits 
conferred.

[1 FR 1261, Aug. 15, 1936]

[[Page 14]]



Sec. 211.5  Emergency fire suppression assistance.

    (a) Definitions. For the purpose of this subpart these definitions 
apply:
    (1) Prescribed fire means a fire burning under a set of specified 
conditions which will accomplish certain planned resource management 
objectives.
    (2) Escaped prescribed fire means a prescribed fire which has either 
exceeded the prescription or has rekindled after it has been declared to 
be out.
    (b) In the absence of a written reciprocal agreement with any fire 
organization or in situations outside the scope of an agreement, the 
Forest Service is authorized to render emergency assistance in 
suppressing fires and in preserving life and property from the threat of 
fire within the vicinity of Forest Service fire protection facilities 
under the following conditions:
    (1) If a prescribed fire initiated on lands administered by the 
Forest Service escapes onto lands not administered by the Forest 
Service, the Forest Service may commit personnel, materials, and 
equipment without reimbursement or consideration of the fire's 
continuing threat to National Forest System lands or resources.
    (2) When requested, the Forest Service may commit personnel, 
materials, and equipment on a reimbursable basis on lands not 
administered by the Forest Service without regard to the fire's threat 
to National Forest System lands or resources.

[48 FR 44537, Sept. 29, 1983]



 Subpart B--Appeal of Decisions Concerning  the  National Forest System



Sec. 211.16  Appeal of resource recovery and rehabilitation decisions resulting from natural catastrophes.

    (a) Purpose. These rules provide an expedited and streamlined 
administrative appeal process for decisions arising from recovery and 
rehabilitation efforts on National Forest System lands and resources 
damaged in natural catastrophes.
    (b) Matters subject to appeal. The procedures established in this 
section apply only to initial written decisions concerning resource 
removal, recovery, and rehabilitation activities resulting from natural 
catastrophes, such as forest fires, insect and disease epidemics, 
floods, winds, and earthquakes, that result from documentation required 
by the National Environmental Policy Act and its implementing 
regulations, policies, and procedures. Notice of the decisions 
appealable under this section and made after the effective date of this 
regulation shall be published in a local newspaper of general 
circulation immediately following the documentation referenced above. 
Subsequent implementing decisions, such as advertising timber salvage 
sales and/or awarding contracts, are not appealable under this section 
or 36 CFR 211.18.
    (c) Who may appeal. The process set forth in this section is 
available to any individual or organization wishing to appeal a decision 
arising from resource removal, recovery, and rehabilitation activities 
resulting from natural catastrophe.
    (d) Who may comment. Any person or organization interested in an 
appeal of a decision under this subpart may submit written comments to 
the Reviewing Officer for inclusion in the record.
    (e) Levels of appeal. One level of administrative appeal is 
available.
    (1) Appeals of decisions subject to the procedures of this section 
made by a District Ranger shall be filed with the Forest Supervisor.
    (2) Appeals of decisions subject to the procedures of this section 
made by a Forest Supervisor shall be filed with the Regional Forester.
    (f) Filing procedures. (1) To appeal a decision under this section. 
an appellant must file a written notice of appeal with the Reviewing 
Officer. If an appellant wishes to request a stay of implementation of 
the decision, the request must accompany the notice of appeal and be 
made in accordance with paragraph (i) of this section. The appellant 
must simultaneously provide a copy of the notice of appeal and any stay 
request to the Forest officer making the initial decision.
    (2) All notices of appeal must be filed within 30 days of 
publication of the notice of decision.

[[Page 15]]

    (g) Extensions of time. There shall be no extension of the time 
periods specified in this section for either an appellant or the Forest 
Service.
    (h) Content of notice of appeal. Parties appealing a decision under 
this section must include the following information in the written 
notice of appeal:
    (1) The specific activity being appealed;
    (2) The date notice of the decision was published;
    (3) The Forest Officer who made the decision;
    (4) How the appellant is affected by the decision; and
    (5) The relief desired.
    (i) Stays. (1) To request a stay, the appellant must:
    (i) File a written request with the Reviewing Officer at the time 
the appeal is filed, simultaneously providing a copy to the Forest 
officer who made the initial decision in question.
    (ii) Provide a written justification of the need for a stay, which 
includes a description of the specific activities to be stayed, and 
specific reasons why the stay should be granted, including:
    (A) Harmful site-specific impacts or effects on resources in the 
area affected by the activity; and
    (B) How the cited effects and impacts would prevent a meaningful 
decision on the merits.
    (2) The Reviewing Officer shall rule on a stay request no later than 
10 calendar days from receipt.
    (i) If a stay is granted, the stay shall specify the activities to 
be stopped, duration of the stay, and reasons for granting the stay.
    (ii) If a stay is denied in whole or in part, the decision shall 
specify the reasons for the denial.
    (iii) A copy of the stay decision shall be sent to the appellant and 
the Forest Officer who made the initial decision.
    (iv) A Reviewing Officer's decision on a stay is not subject to 
further appeal or review.
    (j) Review procedures. (1) The Reviewing Officer shall determine if 
the notice of appeal has been timely filed. In the event of question, 
legible postmarks will be considered evidence of timely filing. Where 
postmarks are illegible, the Reviewing Officer shall rule on the timely 
receipt of the notice of appeal. If the appeal is untimely, the 
Reviewing Officer will immediately dismiss the appeal and notify the 
Forest Officer making the initial decision and the appellant.
    (2) Upon receipt of a copy of the notice of appeal, the Forest 
Officer making the decision shall assemble the relevant decision 
documents and pertinent records and transmit them to the Reviewing 
Officer within 15 calendar days.
    (3) In transmitting the decision documentation to the Reviewing 
Officer, the Forest Officer shall indicate how and specifically where 
the appellant's issues are addressed. Where time permits, the Forest 
Officer may also respond briefly to issues raised in the notice of 
appeal. A copy of the transmittal letter shall be provided to the 
appellant(s).
    (4) The record on which the Reviewing Officer shall conduct a review 
consists of the notice of appeal, any other written comments received, 
the official documentation prepared by the Forest Officer making the 
initial decision, and any related correspondence, including additional 
information requested by the Reviewing Officer.
    (5) The review record is available for public inspection.
    (k) Requests for additional information. At any time during the 
appeal, the Reviewing Officer may request additional information from an 
appellant, the Forest Officer making the initial decision, or anyone who 
has submitted written comments. In addition, the Reviewing Officer may 
discuss issues related to the appeal with the Forest Officer making the 
initial decision, appellants, or affected parties.
    (l) Decision. (1) The Reviewing Officer shall issue a final decision 
on the appeal, in writing, within 90 days of the Reviewing Officer's 
receipt of the notice of appeal, with a copy to anyone submitting 
comments.
    (2) The Reviewing Officer's decision shall either affirm or reverse 
the original decision in whole or in part and include the reason(s) for 
the decision. The Reviewing Officer's decision may include instructions 
for further action by the Forest Officer making the initial decision.

[[Page 16]]

    (3) The Reviewing Officer's decision is the final administrative 
decision of the Department of Agriculture and that decision is not 
subject to further review under this section or any other appeal 
regulation.
    (m) Dismissal. (1) A Reviewing Officer shall dismiss an appeal 
without decision on the merits when:
    (i) The appeal is not received within the time specified in 
paragraph (f) of this section;
    (ii) The requested relief cannot be granted under existing facts, 
law or regulation;
    (iii) The notice of appeal does not meet the requirements of 
paragraph (h) of this section;
    (iv) The appellant withdraws the appeal; or
    (v) The Forest Officer making the initial decision withdraws that 
decision.
    (2) A Reviewing Officer's decision to dismiss is not subject to 
further appeal or review.
    (3) A Reviewing Officer shall give written notice of a dismissal to 
the appellant and Forest Officer whose initial decision or appeal 
decision is being appealed.
    (n) Continuance. Provisions of 36 CFR 211.18 will remain in effect 
for appeals of decisions concerning activities that result from natural 
catastrophes filed prior to May 13, 1988.
    (o) Applicability and effective date. The procedures of this section 
shall not apply to any appeal received after February 22, 1989.

[53 FR 17032, May 13, 1988, as amended at 54 FR 3357, Jan. 23, 1989]



Sec. 211.17  Appeal of decisions to reoffer returned or defaulted timber sales on National Forests.

    (a) Purpose. These rules provide an expedited and streamlined 
administrative appeal process for decisions to reoffer sales of timber 
that were returned to the Government under the provisions of the Federal 
Timber Contract Modification Payment Act of 1984 (16 U.S.C. 618) or that 
were defaulted by the purchaser.
    (b) Matters subject to appeal. The procedures established in this 
section apply only to decisions to reoffer timber sales resulting from 
returned or defaulted timber sale contracts. Implementing decisions, 
such as advertising and/or awarding a reoffered sale, made subsequent to 
the initial decision to reoffer a returned or defaulted sale are not 
appealable under this section or 36 CFR 211.18.
    (c) Notice requirements. (1) Notice of decisions appealable under 
this section and made after April 22, 1988, shall be published in a 
local newspaper of general circulation and also shall be provided in 
writing to parties to written instruments issued by the Forest Service 
who are known to be affected by the decision, as well as to any other 
interested persons or organizations who have requested notification of 
the specific decision.
    (2) If the sale that is the subject of an appeal has been bid upon 
or awarded, the Reviewing Officer shall immediately notify the apparent 
high bidder or sale awardee of the appeal and the opportunity to comment 
as provided for in paragraph (f) of this section.
    (d) Who may appeal. The process set forth in this section is 
available to:
    (1) Any individual or organization who, following publication of the 
interim rule at 36 CFR 211.17 on January 28, 1988, submitted a timely 
Notice of Appeal on a decision to reoffer a sale of returned or 
defaulted timber.
    (2) Any other individual or organization wishing to appeal a 
decision made prior to January 28, 1988, to reoffer a sale of returned 
or defaulted timber.
    (3) Except as provided in paragraph (e) of this section, any 
individual or organization may appeal a decision made after January 28, 
1988, to reoffer timber resulting from returned or defaulted timber 
sales.
    (e) Who may not appeal. The process set forth in this section is not 
available to the defaulting purchaser of the original timber sale that 
is being or has been reoffered.
    (f) Who may comment. Any person or organization interested in an 
appeal of a decision under this subpart may submit written comments to 
the Reviewing Officer for inclusion in the record.
    (g) Levels of appeal. For decisions to reoffer timber sales made 
after October 30, 1986, one level of administrative appeal is available. 
For decisions to

[[Page 17]]

reoffer timber sales made prior to October 30, 1986, two levels of 
administrative appeal are available; the second level being to the next 
higher administrative level.
    (1) Appeals of decisions to reoffer timber sales made by a District 
Ranger shall be filed with the Forest Supervisor.
    (2) Appeals of decisions to reoffer timber sales made by a Forest 
Supervisor shall be filed with the Regional Forester.
    (h) Filing procedures. To appeal a decision under this section, an 
appellant must file a written notice of appeal with the Reviewing 
Officer. If an appellant wishes to request a stay of implementation of 
the decision, the request must accompany the notice of appeal and be 
made in accordance with paragraph (j) of this section. The appellant 
must simultaneously provide a copy of the notice of appeal and any stay 
request to the Forest officer making the initial decision to reoffer.
    (1) For appeals filed pursuant to paragraph (d)(1) of this section, 
the notice of appeal must have been submitted by February 29, 1988.
    (2) All notices of appeal pursuant to paragraph (d)(2) of this 
section must be submitted by May 23, 1988.
    (3) All notices of appeal pursuant to paragraph (d)(3) of this 
section must be filed within 30 days of publication of the notice of 
decision, or from the date of the written decision for those parties 
pursuant to paragraph (c)(1) of this section entitled to receive written 
decision.
    (i) Extensions of time. There shall be no extension of the time 
periods specified in this section for either an appellant or the Forest 
Service.
    (j) Content of notice of appeal. Parties appealing a decision to 
reoffer a sale must include the following information in the written 
notice of appeal:
    (1) The timber sale being appealed;
    (2) Either the decision date or the date notice of the decision was 
published;
    (3) The Forest Officer who made the decision;
    (4) How the appellant is affected by the decision;
    (5) The relief desired; and
    (6) A description of environmentally significant modifications or 
changed circumstances which are alleged to have occurred between when 
the initial timber sale was offered and sold and the date of the appeal 
on the decision to reoffer the sale.
    (k) Second level appeals. For appeals to the second level filed 
pursuant to paragraph (g) of this section, a notice of appeal must be 
filed with the next higher administrative level within 15 days from the 
date of the first level Reviewing Officer's appeal decision. If the 
first level Reviewing Officer is the Forest Supervisor, the appeal is to 
the Regional Forester. If the first level Reviewing Officer is the 
Regional Forester, the appeal is to the Chief. The notice need only 
include the documents submitted at the previous level, the first level 
decision letter, and a statement addressing why the appellant believes 
the Reviewing Officer's decision is erroneous. A copy of that statement 
must be provided to the first level Reviewing Officer also. The first 
level Reviewing Officer may provide a response to the notice of appeal 
to the second level Reviewing Officer; and must send a copy to the 
appellant. The review will be based on the existing record from the 
first level appeal, the second level notice of appeal, and any response 
by the first level Reviewing Officer. A decision shall be issued within 
45 days after receiving the notice of appeal.
    (l) Stays. (1) To request a stay, the appellant must:
    (i) File a written request with the Reviewing Officer at the time 
the appeal is filed, simultaneously providing a copy to the Forest 
officer who made the initial decision to reoffer the timber sale in 
question.
    (ii) Provide a written justification of the need for a stay, which 
includes a description of the specific activities to be stayed, and 
specific reasons why the stay should be granted, including:
    (A) Harmful site-specific impacts or effects on resources in the 
area affected by the reoffered timber sale; and
    (B) How the cited effects and impacts would prevent a meaningful 
decision on the merits.
    (2) The Reviewing Officer shall rule on a stay request no later than 
10 calendar days from receipt.

[[Page 18]]

    (i) If a stay is granted, the stay shall specify the activities to 
be stopped, duration of the stay, and reasons for granting the stay.
    (ii) If a stay is denied in whole or in part, the decision shall 
specify the reasons for the denial.
    (iii) A copy of the decision shall be sent to the appellant and the 
Forest Officer who made the initial decision to reoffer.
    (iv) A Reviewing Officer's decision on a stay is not subject to 
further appeal or review.
    (m) Review procedures. (1) The Reviewing Officer shall determine if 
the notice of appeal has been timely filed. In the event of question, 
legible postmarks will be considered evidence of timely filing. Where 
postmarks are illegible, the Reviewing Officer shall rule on the timely 
receipt of the notice of appeal. If the appeal is untimely, the 
Reviewing Officer will immediately dismiss the appeal and notify the 
Forest officer making the initial decision and the appellant.
    (2) Upon receipt of a copy of the notice of appeal, the Forest 
Officer making the decision to reoffer a sale shall assemble the 
relevant decision documents and pertinent records and transmit them to 
the Reviewing Officer within 15 calendar days.
    (3) In transmitting the decision documentation to the Reviewing 
Officer, the Forest Officer shall indicate how and specifically where 
the appellant's issues are addressed. Where time permits, the Forest 
Officer may also respond briefly to issues raised in the notice of 
appeal. A copy of the transmittal letter shall be provided to the 
appellant(s).
    (4) The record on which the Reviewing Officer shall conduct a review 
consists of the notice of appeal, any other written comments received, 
the official documentation prepared by the Forest Officer making the 
initial decision to reoffer, and any related correspondence, including 
additional information requested by the Reviewing Officer.
    (5) The review record is open to public inspection.
    (n) Requests for additional information. At any time during the 
review, the Reviewing Officer may request additional information from an 
appellant, the Forest officer making the initial decision to reoffer, or 
anyone who has submitted written comments. In addition, the Reviewing 
Officer may discuss issues related to the appeal with the Forest officer 
making the initial decision to reoffer, appellants, or those receiving 
notice pursuant to paragraph (c) of this section, as needed to clarify 
information submitted or to seek resolution of the issues in question.
    (o) Decision. (1) The Reviewing Officer shall issue a final decision 
on the appeal, in writing, within 90 days of the Reviewing Officer's 
receipt of the notice of appeal, with a copy to any person submitting 
comments.
    (2) The Reviewing Officer's decision shall either affirm or reverse 
the original decision in whole or in part and include the reason(s) for 
the decision. The Reviewing Officer's decision may include instructions 
for further action by the Forest Officer making the initial decision.
    (3) The Reviewing Officer's decision is the final administrative 
decision of the Department of Agriculture and that decision is not 
subject to further review under this section or any other appeal 
regulation, except for appeals to the second level filed pursuant to 
paragraph (g) of this section.
    (p) Dismissal. (1) A Reviewing Officer shall dismiss an appeal 
without decision on the merits when:
    (i) The appeal is not received within the time specified in 
paragraph (h) of this section;
    (ii) The requested relief cannot be granted under existing facts, 
law or regulation;
    (iii) The notice of appeal does not meet the requirements of 
paragraph (j) or (k) of this section;
    (iv) The appellant withdraws the appeal; or
    (v) The Forest Officer making the initial decision to reoffer a sale 
withdraws that decision.
    (2) An appeal may be dismissed in whole or in part if an appellant 
challenges a Decision Notice or Record of Decision without referring to 
(i) changed circumstances or (ii) environmentally significant 
modifications which are alleged to have occurred after the initial 
timber sale was offered

[[Page 19]]

and the decision made to sell the timber.
    (3) A Reviewing Officer's decision to dismiss is not subject to 
further appeal or review.
    (4) A Reviewing Officer shall give written notice of dismissal to 
the appellant and Forest Officer whose initial decision or appeal 
decision is being appealed.
    (q) Applicability and effective date. The procedures of this section 
shall not apply to any decision signed on or after September 13, 1991.

[53 FR 13265, Apr. 22, 1988; 53 FR 40730, Oct. 18, 1988, as amended at 
56 FR 46550, Sept. 13, 1991]



Sec. 211.18  Appeal of decisions of forest officers.

    (a) Matters subject to appeal. (1) Decisions of Forest Officers 
concerning the National Forest System and not excluded in paragraph (b) 
of this section are subject to appeal.
    (2) Written notice of a decision shall be provided to the party or 
parties to a written instrument issued by the Forest Service and 
affected by the decision, and to any other interested person who has 
requested in writing notification of the specific decision.
    (3) For other persons, notification of a decision may be provided 
through publication in a newspaper of general circulation.
    (b) Matters excluded from appeal under this section. (1) Decisions 
appealable to the Agriculture Board of Contract Appeals, USDA, under 7 
CFR part 24.
    (2) Decisions involving Freedom of Information Act denials under 7 
CFR part 1 or Privacy Act determinations under 7 CFR 1.118.
    (3) Decisions in which the jurisdiction of another Government 
agency, the Comptroller General, or a court supersedes that of the 
Department of Agriculture, or decisions to provide advisory, non-binding 
recommendations to other agencies which have the final authority to 
implement the recommendations in question.
    (4) Decisions appealable under separate administrative proceedings, 
including, but not limited to, those under 36 CFR 228.14 (Minerals); 36 
CFR 292.15(l) (Appeals, Sawtooth National Recreation Area, Private 
Lands); 36 CFR 223.117 (Administration of Cooperative or Federal 
Sustained Yield Units); 7 CFR 21.104 (Eligibility for Relocation Payment 
or Amount); and 4 CFR part 21 (Bid Protests).
    (5) Decisions pursuant to OMB Circular A-76.
    (6) Decisions concerning contracts under the Federal Property and 
Administrative Services Act of 1949, as amended.
    (7) Decisions covered by the Contract Disputes Act.
    (8) Decisions involving personnel matters.
    (9) Decisions where relief sought is reformation of a contract or 
award of monetary damages.
    (10) Procedural decisions made under this subpart, except those 
involving stays and dismissals.
    (11) Preliminary planning process decisions made prior to completion 
of final plans and guides prepared pursuant to 36 CFR part 219 and 40 
CFR parts 1500-1508.
    (12) Decisions resulting from review of previous decisions to 
terminate a recreation residence permit.
    (13) Decisions to reoffer timber from returned or defaulted timber 
sales appealable under Sec. 211.17.
    (14) Subsequent actions to advertise and/or award a reoffered sale.
    (15) Initial decisions arising from recovery and rehabilitation 
activities resulting from natural catastrophes appealable under 
Sec. 211.16 of this subpart and subsequent implementing decisions, such 
as advertising timber salvage sales and/or awarding contracts made 
pursuant to such decisions.
    (c) Filing procedures and timeliness. (1) A notice of appeal of any 
initial decision must be filed with the Forest Officer who made the 
decision, known as the Deciding Officer, within 45 days of the date of 
the decision. A statement of reasons to support the appeal, and any 
request for an oral presentation must also be filed within the 45-day 
period for filing a notice of appeal unless an extension is granted.
    (2) A notice of appeal at the second level must be filed within 30 
days of

[[Page 20]]

written decision. A statement of reasons to support the appeal and any 
request for an oral presentation must accompany any notice of appeal at 
the second level.
    (3) The period to appeal a decision made according to 40 CFR 1505.2 
shall not end prior to the 30-day period provided for in 40 CFR 1506.10.
    (4) When determining time of filing, Reviewing Officers shall give 
precedence to United States Postal Service (USPS) postmarks over other 
evidence of timely filing. Filing is defined as either mailing or 
delivery of the appropriate documents. If documents are delivered by 
means other than the USPS, date of receipt determines time of filing. If 
the date of mailing cannot be determined from a legible USPS postmark, 
the Reviewing Officer may accept other evidence of timely filing. 
Weekends or Federal holidays are included in computing the time allowed 
for filing, but when the filing time would expire on a weekend or 
holiday, the filing time is extended to the end of the next business 
day.
    (5) Questions on timeliness will be decided by the Reviewing 
Officer.
    (6) Decisions may be implemented unless a stay is granted.
    (d) Extensions. (1) Time for filing notice of appeal may not be 
extended.
    (2) Written requests for extensions to request an oral presentation, 
to prepare a statement of reasons, to provide comments on the responsive 
statement, and to submit comments following an oral presentation may be 
granted by the Reviewing Officer for good cause shown by the Applicant. 
A decision will be made within 10 days of receipt and written 
notification will be provided.
    (e) Notice of appeal content. The notice must specifically identify 
the decision being appealed, the decision date, the Forest Officer who 
made the decision, how the Appellant is affected by the decision, and 
the relief desired.
    (f) Levels of appeal. (1) The available levels of appeal are in 
sequence according to the National Forest System line officer 
relationship. A decision made within delegated authority by any officer 
who serves as staff to a line officer listed below is considered a 
decision made by the line officer. A procedural decision cannot be 
appealed to a level higher than that available for the initial 
substantive decision from which the procedural matter arises.
    (i) Initial decisions of a District Ranger may be appealed to the 
Forest Supervisor, with second level appeal to the Regional Forester.
    (ii) Initial decisions of a Forest Supervisor may be appealed to the 
Regional Forester, with second level appeal to the Chief.
    (iii) Initial decisions of a Regional Forester may be appealed to 
the Chief.
    (iv) Initial decisions of the Chief may be appealed to the Secretary 
of Agriculture.
    (2) Appeal decisions made by the Chief will be sent to the Secretary 
within one business day: The Secretary may exercise discretion to review 
such decisions, but will accept a notice of appeal or petition only for 
initial decisions made by the Chief.
    (3) A notice of appeal of any initial decision made by the Chief 
shall, within 5 days of its receipt by the Chief, be sent along with the 
relevant decision to the Secretary for review at the Secretary's 
discretion. The appeal is deemed denied if the Secretary takes no action 
within 10 days of receiving the appeal.
    (4) Appeal decisions made by the Chief may be implemented if the 
Secretary, within 10 days of receipt, does not exercise discretionary 
review.
    (5) If the Secretary elects to review a decision made by the Chief, 
the review may be conducted based on the record before the Chief, or 
under other procedures the Secretary may deem appropriate, including the 
preparation of a responsive statement.
    (6) Decisions at the final level of review constitute the final 
administrative determination of the Department of Agriculture.
    (g) Responsive statement. At each level of appeal except for 
decisions of the Chief, the Deciding Officer will, within 30 days of 
receiving a statement of reasons, prepare a responsive statement and 
send it to the parties to the appeal. The responsive statement will 
respond to Appellant's reasons, and by specific reference may 
incorporate documents submitted by parties to the appeal. Appellants 
may, within 20 days from the

[[Page 21]]

mailing date of the responsive statement, provide a concise reply. Upon 
receipt of such reply, or at the end of the 20-day period, whichever 
comes first, the appeal record will be sent to the Reviewing Officer.
    (h) Stay of decision pending appeal. (1) An appellant or intervenor 
may request a stay of decision at any time while an appeal is pending.
    (2) When a request to intervene is accompanied by a stay request, 
the Reviewing Officer shall first decide whether to grant intervention. 
The 21-day period for ruling on the stay request begins on the date 
intervention is granted. The Reviewing Officer will not rule on the stay 
request if intervention is denied.
    (3) In making a request for stay of decision, an appellant or 
intervenor must:
    (i) File the request for stay and accompanying documents with the 
Reviewing Officer and simultaneously provide a copy to the Deciding 
Officer.
    (ii) Enclose a copy of the Notice of Appeal or request for 
intervention, unless already submitted and acknowledged.
    (iii) As part of the request, provide a written description of the 
specific project(s), activity(ies), or other action(s) to be stopped. 
The request must state the specific reason(s) why the stay should be 
granted in detail sufficient to permit the Reviewing Officer to evaluate 
and rule upon the stay request. Requesters' description shall include:
    (A) Specific effect(s) upon the requester in site-specific terms of 
the project(s), activity(ies), or other action(s) to be stopped; (B) 
impacts or affects to resources in the area affected by the project(s), 
activity(ies), or action(s) to be stopped; and (C) how the effects in 
paragraphs (h)(3)(iii) (A) and (B) of this section would prevent a 
meaningful appeal on the merits while the appeal decision is pending.
    (4) The Reviewing Officer may rule on a stay request or petition to 
change or lift a stay at any time, but, must rule no later than 21 
calendar days from receipt.
    (i) If a stay is granted, the stay shall specify: Specific 
activities to be stopped; duration of the stay; and reasons for granting 
the stay. A stay shall remain in effect for 10 days after a decision on 
the merits, unless a different period is specified in the stay decision 
document, or a Reviewing Officer changes a stay decision pursuant to 
paragraph (h)(7) of this section.
    (ii) If a stay is denied, in whole or in part, the decision document 
shall specify the reasons for the denial and any subsequent appeal 
rights.
    (5) In deciding a stay request, a Reviewing Officer shall consider 
the following:
    (i) Information provided by the requester pursuant to paragraph 
(h)(3)(iii) of this section including the validity of any claims of 
injury to the requester or the public interest.
    (ii) The effect a stay decision would have on the preservation of a 
meaningful appeal on the merits.
    (iii) Any other factors the Reviewing Officer may consider relevant.
    (6) Deciding Officers may provide Reviewing Officers with a response 
to stay requests. A copy of any response provided shall be sent to all 
parties to the appeal.
    (7) A Reviewing Officer may change a stay decision, according to any 
terms established in the stay decision itself, or at any time during 
pendancy of an appeal that circumstances support a change of the stay.
    (i) A Reviewing Officer may change a stay decision upon petition by 
any party to the appeal (including the Deciding Officer) at any time 
that circumstances support such action. A decision not to change a stay 
decision is not appealable.
    (ii) In making any change to a stay decision, the Reviewing Officer 
must consider the criteria outlined in paragraph (h)(5) of this section.
    (iii) Petitions to change an existing stay decision must contain an 
explanation of how circumstances have changed.
    (8) Levels of appeal for any decision on a stay request or change 
thereof are those specified in paragraphs (f), (l), and (o) of this 
section. Appellants may choose to file a procedural appeal of a stay 
decision pursuant to paragraph (o)(4) of this section or to request a 
change in a stay decision pursuant to paragraph (h)(7) of this section, 
but

[[Page 22]]

may not elect to pursue both options. In appeals with multiple parties 
(appellants and/or intervenors), once any party invokes a procedural 
appeal of a stay decision or a request to change a stay decision, 
whichever occurs first, all other parties shall be bound by that action 
and cannot then pursue the alternate course of action.
    (9) The provisions of paragraphs (h)(1) through (h)(8) of this 
section apply to all appeals pending on July 20, 1987.
    (i) Dismissal. (1) An Appellant may withdraw an appeal at any time 
by notifying the Deciding Officer and other parties to the appeal in 
writing.
    (2) A Reviewing Officer may dismiss an appeal when:
    (i) Appellant has failed to submit a timely statement of reasons and 
the notice of appeal provides an insufficient basis upon which to base a 
decision.
    (ii) Relief desired by the Appellant cannot be granted under 
existing facts or laws.
    (3) Dismissals are appealable, if a level is available as set forth 
in paragraph (f) of this section.
    (j) Scope of appeal. Throughout all levels of appeal, an Appellant 
and any Intervenor shall be confined to the issues originally raised in 
the appeal. New information on the original issues may be introduced at 
any level.
    (k) Provision for comments. Any person or organization may submit 
written comments for the record. Such comments will be considered as 
provided for in paragraph (p) of this section.
    (l) Intervenors. (1) At the discretion of the Reviewing Officer, any 
person or organization having an immediate interest in the subject of an 
appeal may intervene by submitting written information at any level of 
the apppeal process. Such intervention shall not act to elevate the 
appeal to levels higher than available to the original Appellant.
    (2) In appeals involving Intervenors, the Reviewing Officer may 
prescribe special procedures to expedite the process. The parties to the 
appeal will be notified of these procedures.
    (3) Appellants and Intervenors must concurrently furnish copies of 
all submissions to each other; otherwise, such submissions may be 
removed from the appeal record. At the discretion of the Reviewing 
Officer, Appellants may be given time to review and comment on initial 
submissions by intervenors and vice versa.
    (4) Appellants or Intervenors appealing a decision to a higher level 
must furnish copies of their notice of appeal to all other named parties 
to the appeal.
    (m) Oral presentation. Within the appeal time limits established 
herein, parties to an appeal may ask to give an oral presentation. The 
Reviewing Officer will respond in writing to the request no later than 
10 days after receiving the appeal record. If the request is granted, 
the Reviewing Officer will advise the parties of who will hear the 
presentation, and of the place, time, and date. Participants may provide 
documentary material at the presentation and, within 10 days after the 
presentation, may also submit a brief summary of their remarks.
    (n) Consolidation of appeals. Multiple appeals of the same decision, 
or of similar decisions involving common issues, facts, or law, may be 
consolidated by the Reviewing Officer who may then issue one appeal 
decision. At the discretion of the Reviewing Officer, the Deciding 
Officer may prepare one responsive statement to multiple appeals.
    (o) Procedural matters. (1) Decisions on stays and dismissals are 
the only appealable procedural decisions. Such appeals must be filed 
with the Deciding Officer within 30 days of the procedural decision. A 
statement of the Appellant's reasons must be included.
    (2) Within 10 days of receipt, the Deciding Officer shall send 
appeals on stays and dismissals and a response to the Reviewing Officer 
for decision.
    (3) Decisions on procedural matters will be made by the Reviewing 
Officer within 10 days of receipt and all parties will be notified of 
the decision in writing.
    (4) Appeal of decisions on procedural matters cannot exceed the 
highest level available for the initial substantive decision appealed.
    (p) Appeal record. The record consists of a distinct set of 
identifiable documents directly concerning the appeal, including, but 
not limited to, notices of

[[Page 23]]

appeal, comments, statements of reasons, responsive statements, 
procedural determinations, correspondence, summaries of oral 
presentations and related documents, appeal decisions, and other 
information the Reviewing Officer may consider necessary to reach a 
decision. For a period not to exceed 10 days following the date the 
record is received by the Reviewing Officer or from the date of the oral 
presentation, whichever is the later date, parties may submit additional 
information to the Reviewing Officer for the record. They must 
concurrently send copies to all other parties who may within 20 days of 
the date they receive such material, provide a concise response to the 
Reviewing Officer. Upon receipt of such response, the record will be 
closed. The record is open for public inspection.
    (q) Request for additional information or remand for further action. 
If the appeal record is considered inadequate to affirm or reverse a 
decision, the Reviewing Officer may suspend the appeal process and 
request additional information, or remand the case with instructions for 
further action.
    (r) Appeal decision. An appeal decision will be based only on the 
record and should be made within 30 days of the date the record is 
closed. The Appellant will be notified if more time is needed.
    (s) Continuance of appeals. Provisions of 36 CFR 211.19 will remain 
in effect for appeals initially filed between June 28, 1977, and the 
effective date of 36 CFR 211.18. The procedures of this section shall 
not apply to any decision of a forest officer made after February 21, 
1989.

[48 FR 13425, Mar. 31, 1983, as amended at 49 FR 26591, June 28, 1984; 
51 FR 19831, June 3, 1986; 51 FR 41785, Nov. 19, 1986; 52 FR 23178, June 
18, 1987; 52 FR 27547, July 22, 1987; 53 FR 2493, Jan. 28, 1988; 53 FR 
17033, May 13, 1988; 54 FR 3357, Jan. 23, 1989; 54 FR 6892, Feb. 15, 
1989]



PART 212--ADMINISTRATION OF THE FOREST DEVELOPMENT TRANSPORTATION SYSTEM--Table of Contents




Sec.
212.1  Definitions.
212.2  Forest development transportation program.
212.3  Cooperative work.
212.4  Construction and maintenance.
212.5  Road system management.
212.6  Ingress and egress.
212.7  Access procurement by the United States.
212.8  Permission to cross lands and easements owned by the United 
          States and administered by the Forest Service.
212.9  Principles for sharing use of roads.
212.10  Maximum economy forest development roads.
212.11--212.12  [Reserved]
212.13  Temporary suspension of road construction in unroaded areas.
212.14--212.19  [Reserved]
212.20  National forest development trail system operation.
212.21  Pacific Crest National Scenic Trail.

    Authority: 16 U.S.C. 551, 23 U.S.C. 205.



Sec. 212.1  Definitions.

    For the purpose of this part the following terms, respectively, 
shall mean:
    (a) Chief. The Chief, Forest Service, Department of Agriculture.
    (b) Regional forester. A regional forester of the Forest Service.
    (c) Forest development transportation plan. The plan for the system 
of access roads, trails, and airfields needed for the protection, 
administration, and utilization of the National Forests and other lands 
administered by the Forest Service, or the development and use of 
resources upon which communities within or adjacent to the National 
Forests are dependent.
    (d) Forest development transportation facility. An access road, 
trail, or airfield wholly or partly within or adjacent to and serving a 
National Forest and other lands administered by the Forest Service which 
has been included in the forest development transportation plan.
    (e) Forest development road and trail funds. Funds authorized or 
appropriated for the purpose of carrying out the provisions of section 
205 of the Act of August 27, 1958 (72 Stat. 907), as amended; 23 U.S.C. 
205.
    (f) Road and trail 10 percent funds. Funds available from the 
permanent appropriation ``Roads and Trails for States'' under the Act of 
March 4, 1913 (37 Stat. 843), as amended; 16 U.S.C. 501.
    (g) Federal airport funds. Discretionary funds available for 
airfields in

[[Page 24]]

National Forests under section 6(b)(3) of the Act of May 13, 1946 (60 
Stat. 173), as amended; 49 U.S.C. 1105(b)(3).
    (h) Construction. The supervising, inspecting, actual building, and 
all expense incidental to the construction or reconstruction of a forest 
development transportation facility, including locating, surveying, and 
mapping (including the establishment of temporary and permanent geodetic 
markers in accordance with the specifications of the Coast and Geodetic 
Survey in the Department of Commerce), costs of rights-of-way, and 
elimination of hazards.
    (i) Maintenance. The upkeep of the entire forest development 
transportation facility including surface and shoulders, parking and 
side areas, structures, and such traffic-control devices as are 
necessary for its safe and efficient utilization.
    (j) Preconstruction engineering. All work and expense of preparing 
for construction or reconstruction of a forest development 
transportation facility including:
    (1) Engineering and economic investigations, studies, and reports;
    (2) Reconnaissance surveys;
    (3) Preliminary surveys;
    (4) Preliminary location surveys;
    (5) Soils, foundations, and materials investigations, surveys, and 
tests;
    (6) Preliminary and final designs;
    (7) Preliminary and final plans, drawings, specifications, and 
estimates of quantities and cost;
    (8) Final location surveys staked on the ground; and
    (9) Rights-of-way surveys, plans, and descriptions.
    (k) Construction engineering. All work and expense of setting out, 
controlling, inspecting, and measuring the construction or 
reconstruction of a forest development transportation facility 
including:
    (1) Construction surveys to establish line and grade for the work, 
to control the work, and to measure quantities;
    (2) Redesigning, adjusting, and changing the plans, specifications, 
and materials to meet conditions;
    (3) Inspecting, directing, and controlling operations for compliance 
with plans and specifications;
    (4) Inspecting, testing, and accepting materials and equipment to be 
installed in the work; and
      
    (5) Inspecting, measuring, and accepting completed work.

(25 Stat. 357, 26 Stat. 1103, 30 Stat. 35-36, 1233, 38 Stat. 430, 46 
Stat. 1421 64 Stat. 82, 72 Stat. 885, as amended, 74 Stat. 215, 78 Stat. 
1089; 16 U.S.C. 471, 478, 498, 525, 528, 531, 532, 538, 551, 572, 23 
U.S.C. 101, 205, 40 U.S.C. 257, 258a, et seq., 42 Atty. Gen. Op. No. 7, 
Comp. Gen. B-65972, May 19, 1947; 40 Comp. Gen. 372; 41 Comp. Gen. 1; 41 
Comp. Gen. 576, and 42 Comp. Gen. 590)

[30 FR 5476, Apr. 16, 1965]



Sec. 212.2  Forest development transportation program.

    (a) A forest development transportation plan must be prepared for 
each National Forest and experimental forest and other areas under 
Forest Service administration. The plan must be prepared, maintained, 
revised, and reported on in accordance with procedures prescribed by the 
Chief.
    (b) A program of work for the forest development transportation 
system shall be developed each fiscal year in accordance with procedures 
prescribed by the Chief.
    (c) Forest development transportation system funds shall be 
allocated based on consideration of relative needs of the various 
National Forests and other lands administered by the Forest Service, the 
existing transportation facilities, the value of timber or other 
resources served, relative fire danger, and comparative difficulties of 
construction.

[62 FR 58654, Oct. 30, 1997]



Sec. 212.3  Cooperative work.

    (a) Cooperative agreements for all projects which involve financial 
contributions from cooperators shall be negotiated, approved, and 
executed in accordance with procedures prescribed by the Chief.
    (b) Cooperative funds contributed in advance shall be deposited in 
the United States Treasury to the credit of the Forest Service 
Cooperative Fund authorized by the Act of June 30, 1914 (38 Stat. 430), 
as amended; 16 U.S.C. 498, or the Act of March 3, 1925 (43 Stat. 1132), 
as amended; 16 U.S.C. 572, which

[[Page 25]]

deposits will be made available for expenditure from the appropriation 
``Cooperative Work, Forest Service.'' If a State, county or other 
governmental agency is unable to contribute funds under the Act of March 
3, 1925, as amended, in advance but is able to pay its share subsequent 
to performance of the work, the subsequent payment of such funds will be 
deposited to the credit of the Forest Service appropriation from which 
the expenditures were made or to appropriations for similar purposes 
currently available at the time of deposit.

[25 FR 6360, July 7, 1960. Redesignated at 62 FR 58654, Oct. 30, 1997]



Sec. 212.4  Construction and maintenance.

    (a) Construction and maintenance work on forest development 
transportation facilities with appropriated funds shall be directed to 
what is necessary and economically justified for protection, 
administration, development, and multiple-use management of the 
federally owned lands and resources served.
    (b) Preliminary engineering and the construction and maintenance of 
forest development transportation facilities shall be performed by force 
account or let to contract, unless otherwise approved by the Chief. The 
contract method shall be employed for roads and trails in accordance 
with section 205(c) of the Act of August 27, 1958 (72 Stat. 907); 23 
U.S.C. 205, and for all other facilities when it is advantageous and in 
the interest of the Government.
    (c) No construction work shall be started by force account or let to 
contract until all necessary rights of way have been secured, and 
approved by the Attorney General, if required, and cooperative 
agreements, if any, approved and executed.

[24 FR 10256, Dec. 18, 1959, as amended at 25 FR 6360, July 7, 1960. 
Redesignated at 62 FR 58654, Oct. 30, 1997]



Sec. 212.5  Road system management.

    (a) Traffic rules. Rules set forth under 36 CFR part 261 and this 
section shall apply to all forest development roads under the 
jurisdiction of the Forest Service except when in conflict with written 
agreement.
    (1) General. Traffic on roads is subject to State traffic laws where 
applicable except when in conflict with the rules established under 36 
CFR part 261.
    (2) Specific. The following specific traffic rules shall apply 
unless different rules are established in 36 CFR part 261.
    (i) The load, weight, length, height, and width limitations of 
vehicles shall be in accordance with the laws of the States wherein the 
road is located. Greater or lesser limits may be imposed and these 
greater or lesser limits shall be established as provided in 36 CFR part 
261.
    (ii) Roads, or segments thereof, may be restricted to use by certain 
classes of vehicles or types of traffic as provided in 36 CFR part 261. 
Classes of vehicles are defined to include, but not be limited to, 
distinguishable groupings such as passenger cars, buses, trucks, 
motorcycles, automobiles, 4-wheel drive vehicles and tailers. Types of 
traffic are defined to include, but not be limited to, groupings such as 
commercial hauling, recreation and administrative.
    (iii) Roads, or segments thereof, may be closed to all vehicle use 
as provided in 36 CFR part 261.
    (iv) Additional rules may be imposed as provided in 36 CFR part 261.
    (b) [Reserved]
    (c) Cost recovery on forest service roads. The Chief may determine 
that a share of the cost of acquisition, construction, reconstruction, 
improvement, or maintenance of a road, or segment thereof, used or to be 
used for commercial hauling of non-Federal forests products and other 
non-Federal products, commodities and materials, should be borne by the 
owners or haulers thereof. The Chief may condition the permission to use 
a road, or segment thereof, upon payment to the United States of the 
proportionate share of the cost and bearing proportionate maintenance as 
determined to be attributable to the owner's or hauler's use in 
accordance with Sec. 212.9. This condition to use roads would apply 
where the owners or haulers:
    (1) Have not shared in the cost of acquisition, construction, 
reconstruction, or improvements, and

[[Page 26]]

    (2) Have not made contributions to pay their proportionate share of 
the costs.
    (d) Maintenance and reconstruction of forest service roads by 
users--(1) Maintenance. The Chief may require, but not in conflict with 
an existing permit, easement, contract, or other agreement, the user or 
users of a road, including purchasers of Government timber and other 
products, to maintain the roads in a satisfactory condition commensurate 
with the particular use requirements of each. The maintenance to be 
borne by each user shall be proportionate to total use and no individual 
user shall be required to perform or bear the costs of maintenance other 
than that commensurate with his use.
    (2) Reconstruction. The Chief may require, but not in conflict with 
an existing permit, easement, contract, or other agreement, the user or 
users of a road to reconstruct it when, at the time the use is 
requested, reconstruction is determined to be necessary to accommodate 
his use.
    (3) Deposits in lieu of performance. If the maintenance or 
reconstruction cannot be so provided or if the Chief determines that 
maintenance or reconstruction by a user would not be practical, the 
Chief may require that sufficient funds be deposited by the user to 
provide his portion of the total maintenance or reconstruction costs. 
Deposits made to cover maintenance or reconstruction of roads shall be 
used for the purposes deposited, except that:
    (i) Deposits received for work on adjacent and overlapping areas may 
be combined when it is the most practicable and efficient manner of 
performing the work, and cost thereof may be determined by estimates, 
and
    (ii) Unexpended balances upon accomplishment of the purposes for 
which deposited shall be transferred to miscellaneous receipts or 
refunded.
    (e) Deposits for making delayed payments to cooperator. Any fees or 
other collections received by the Chief under the terms of an agreement 
or other document providing for delayed payments to the Government's 
cooperator for use of a road shall be placed in a fund available for 
making these payments.

[39 FR 27649, July 31, 1974, as amended at 42 FR 2957, Jan. 14, 1977; 43 
FR 20007, May 10, 1978; 62 FR 58654, Oct. 30, 1997. Redesignated and 
amended at 62 FR 58654, Oct. 30, 1997]



Sec. 212.6  Ingress and egress.

    (a) Policy in acquiring and granting access. To assure effective 
protection, management, and utilization of lands administered by the 
Forest Service and intermingled and adjacent private and public lands, 
and for the use and development of the resources upon which communities 
within or adjacent to the National Forests are dependent, the Chief 
shall as promptly as is feasible obtain needed access thereto and shall 
grant appropriate access across National Forest and other lands and 
easements administered by the Forest Service to intermingled or adjacent 
landowners. Construction, reconstruction or maintenance of a road or 
highway requires written authorization.
    (b) Actual settlers and other persons residing within the National 
Forests and other areas administered by the Forest Service. Actual 
settlers and other persons residing within the National Forests and 
other areas administered by the Forest Service shall be permitted 
ingress and egress over the same and use of existing forest development 
roads and trails in order to reach their homes and to utilize their 
property: Provided, such ingress and egress or use shall conform to 
rules and regulations governing the protection and administration of the 
lands and the roads or trails to be used.
    (c) Others. Entering upon the National Forests and other lands 
administered by the Forest Service and use of existing forest 
development roads and trails shall be permitted for all proper

[[Page 27]]

and lawful purposes subject to compliance with rules and regulations 
governing the lands and the roads or trails to be used.

(25 Stat. 357, 26 Stat. 1103, 30 Stat. 35-36, 1233 38 Stat. 430, 46 
Stat. 1421, 64 Stat. 82, 72 Stat. 885; as amended, 74 Stat. 215, 78 
Stat. 1089; 16 U.S.C. 471, 478, 498, 525, 528-531, 532, 538, 551, 572, 
23 U.S.C. 101, 205, 40 U.S.C. 257, 258a et seq.; 42 Atty. Gen. Op. No. 
7; Comp. Gen. B-65972, May 19, 1947; 40 Comp. Gen. 372; 41 Comp. Gen. 1; 
41 Comp. Gen. 576, and 42 Comp. Gen. 590)

[40 FR 52611, Nov. 11, 1975, as amended at 42 FR 2957, Jan. 14, 1977. 
Redesignated at 62 FR 58654, Oct. 30, 1997]



Sec. 212.7  Access procurement by the United States.

    (a) Existing or proposed forest development roads which are or will 
be parts of a system of a State, county, or other local subdivision. 
Forest development roads which are or will be parts of a road system of 
a State, county, or other local subdivision and are on rights-of-way 
held in the name of the State, county, or other local subdivision may be 
constructed, reconstructed, improved or maintained by the Forest Service 
when there is an appropriate agreement with the State, county, or other 
local subdivision under authority of 23 U.S.C. 205: Provided, Such 
construction, reconstruction, improvement, or maintenance is essential 
to provide safe and economical access to the National Forests and other 
lands administered by the Forest Service.
    (b) Acquisition of easements and rights of use. Except as otherwise 
provided in the regulations of this part, easements for road and trail 
construction across non-Federal lands and easements or rights of use 
over non-Federal roads and trails will be acquired in the name of the 
United States of America and its assigns. The easements or rights of use 
may be acquired by purchase, condemnation, donation, or as a reciprocal 
for permits or easements for roads or trails to be constructed or for 
easements over or permits to use existing roads or trails.
    (c) Methods of compensation for easements and rights of use acquired 
by the United States. Compensation in negotiated acquisitions may be:
    (1) By payment from appropriated funds;
    (2) Pursuant to reservation in the grant of easement to the United 
States whereby the grantor reserves the right to require haulers of 
Federal timber or other Federal products over the road conveyed or 
thereafter constructed by the grantor to make payments to the grantor in 
accordance with the terms of the reservation;
    (3) By granting reciprocal rights; or
    (4) By a combination of these methods.
    (d) Cooperative construction and use agreements. Where areas, partly 
lands administered by the Forest Service and partly private or other 
ownership are undeveloped or inadequately developed by roads, the Chief 
will, to the extent feasible and advantageous to the United States, join 
in planning, constructing, reconstructing, improving, maintaining, and 
using an adequate road system on the basis of each party bearing the 
proportion of the cost attributable to the anticipated benefits as set 
forth in Sec. 212.9.
    (e) Condemnation. Where access across non-Federal land or over a 
non-Federal road or trail cannot be obtained through negotiations with 
reasonable promptness, condemnation will be undertaken.
    (f) Access over non-Federal land and use of non-Federal roads or 
trails on a temporary basis. The Chief may negotiate a temporary 
agreement for access over non-Federal land and for use of an existing 
non-Federal road or trail where there is immediate need for temporary 
access for limited purposes that can be economically met by such 
procedure, or where the foreseeable need does not justify the 
expenditures necessary to provide a permanent road or trail.
    (g) Use and control of interests in roads, trails, and easements 
acquired by the United States. Interests in roads, trails, and easements 
acquired by the United States shall be under the control of the United 
States, subject to approved reservations, limitations and other 
provisions set forth in the easement, permit, or other indenture. This 
control by the United States may include restricting or conditioning the 
use of the interest owned by the United States in the

[[Page 28]]

road, trail, or easement where necessary.

(25 Stat. 357, 26 Stat. 1103, 30 Stat. 35-36, 1233, 38 Stat. 430, 46 
Stat. 1421, 64 Stat. 82, 72 Stat. 885, as amended, 74 Stat. 215, 78 
Stat. 1089; 16 U.S.C. 471, 478, 498, 525, 528-531, 532, 551, 572, 23 
U.S.C. 101, 205, 40 U.S.C. 257, 258a et seq.; 42 Atty. Gen. Op. No. 7; 
Comp. Gen. B-65972, May 19, 1947; 40 Comp. Gen. 372; 41 Comp. Gen. 1; 41 
Comp. Gen. 576, and 42 Comp. Gen. 590)

[30 FR 5476, Apr. 16, 1965, as amended at 39 FR 27650, July 31, 1974; 62 
FR 58654, Oct. 30, 1997. Redesignated and amended at 62 FR 58654, Oct. 
30, 1997]



Sec. 212.8  Permission to cross lands and easements owned by the United States and administered by the Forest Service.

    (a) Permission to construct or use roads across lands and assignable 
easements owned by the United States and administered by the Forest 
Service. If a reciprocal benefit is needed by the United States, 
permission to construct or use a road across lands and across assignable 
easements owned by the United States and administered by the Forest 
Service will be conditioned, except as provided in this section, for any 
applicant who seeks a permit to construct or use a road across the same, 
upon the grant to the United States of a reciprocal benefit. Such 
benefit shall bear:
    (1) A reasonable relation to the management of lands administered by 
the Forest Service; and
    (2) A value substantially similar to the value of the estate or 
interest in lands or easements applied for. In those instances where the 
values of the interests needed by the United States exceed those applied 
for by the applicant, the additional interests required by the United 
States will be acquired as provided in Sec. 212.7(b) and (c). Where 
values needed by the applicant exceed those needed by the United States, 
the difference in values will be determined under principles set forth 
below and in Secs. 212.5(c) and 212.9. If a reciprocal benefit is not 
needed by the United States, or the applicant shows good cause why the 
reciprocal benefit needed by the United States cannot or should not be 
granted by him, or the applicant declines to grant the reciprocal 
benefit requested by the United States or if a bona fide emergency 
exists, permission to construct or use a road across lands owned by the 
United States may be conditioned for any applicant upon reasonable 
charges and all other terms and conditions required by the Chief to 
protect the interests of the United States. Permits for such road 
construction or use will be non-exclusive and will be conditioned upon 
compliance with their terms and conditions and with the rules and 
regulations governing the protection and administration of the lands and 
those applicable to such roads.
    (b) [Reserved]
    (c) Replacement of prior grants. (1) Upon application to the Chief, 
an easement under the Act of March 3, 1899 (30 Stat. 1233, 16 U.S.C. 
525), shall be replaced by an easement under paragraph (d) of this 
section.
    (2) Upon application to the Chief, an easement shall be granted 
under paragraph (d) of this section as a replacement for any 
stipulations for ingress and egress issued under the Act of June 4, 1897 
or permit or other document evidencing the applicant's right to use a 
road: Provided, The applicant has met the requirements for obtaining 
such easement as set forth in paragraph (d) of this section.
    (d) Easements for roads crossing lands or easements administered by 
the Forest Service. (1) Applications for permanent or temporary 
easements for specified periods or otherwise to be granted under the Act 
of October 13, 1964 (78 Stat. 1039, 16 U.S.C. 533), over lands or 
easements administered by the Forest Service, or over roads thereon will 
be approved by the Chief for those applicants who have conveyed or 
provided appropriate easements over roads, assignable easements and 
lands owned or controlled by them to the United States of America and 
its assigns and who have already constructed, or will, as scheduled by 
agreement, construct their proportionate share of the road or road 
system of which the segments described in the application are parts. The 
Chief, after approval of the application and the grant of the easement, 
will cause the same to be entered in the records of the Forest Service, 
and delivered to the applicant.
    (2) Notwithstanding paragraph (d)(1) of this section, the Chief may 
grant to

[[Page 29]]

the applicant a permanent or temporary easement for specified periods or 
otherwise upon such exchange of easements or share-cost arrangement or 
other reasonable consideration as he may deem appropriate.
    (3) The Chief may grant to a State or local subdivision thereof; 
easements for roads over lands or easements administered by the Forest 
Service and over roads thereon, when the roads thereon or roads to be 
constructed thereon will serve said lands and are, or will become a part 
of the road system maintained by such State or local subdivision for 
general public use: Provided, That easements shall not be granted under 
authority of this act (78 Stat. 1089), 16 U.S.C. 533 which may be 
granted under the Highway Act (72 Stat. 916, 23 U.S.C. 317), as amended. 
The easements shall contain such provisions, terms, and conditions as 
the Chief may determine are necessary to retain and protect the 
interests needed by the United States.
    (4) All instruments affecting permanent interests in land executed 
pursuant to this paragraph (d) of this section shall be recorded in each 
county where the lands are located. Copies of all instruments affecting 
interests in lands reserved from public domain shall be furnished by the 
Chief to the Secretary of the Interior.
    (5) The Chief may terminate any easement granted under the 
provisions of the Act of October 13, 1964 (78 Stat. 1089, 16 U.S.C. 
534),
    (i) By consent of the owner of the easement,
    (ii) By condemnation, or
    (iii) Upon abandonment after nonuse by the owner of the easement for 
a period of 5 years. Before any easement is terminated for nonuse or 
abandonment, the owner of the easement must be given notice and, upon 
his request made within 60 days after receipt of the notice, a hearing 
in accordance with the provisions of 36 CFR part 211, subpart B.

(25 Stat. 357, 26 Stat. 1103, 30 Stat. 35-36, 1233, 38 Stat. 430, 46 
Stat. 1421, 64 Stat. 82, 72 Stat. 885, as amended, 74 Stat. 215, 78 
Stat. 1089; 16 U.S.C. 471, 478, 498, 525, 528-531, 532, 538, 551, 572, 
23 U.S.C. 101, 205, 40 U.S.C. 257, 258a et seq.; 42 Atty. Gen. Op. No. 
7; Comp. Gen. B-65972, May 19, 1947; 40 Comp. Gen. 372; 41 Comp. Gen. 1; 
41 Comp. Gen. 576, and 42 Comp. Gen. 590)

[30 FR 5476, Apr. 16, 1965, as amended at 39 FR 27650, July 31, 1974; 48 
FR 28638, June 23, 1983. Redesignated and amended at 62 FR 58654, Oct. 
30, 1997]



Sec. 212.9  Principles for sharing use of roads.

    The use of roads under arrangements for sharing costs or performance 
shall be in accordance with the following:
    (a) Road improvement. Use of a road for commercial hauling, except 
occasional or minor amounts, will be conditioned upon improvement or 
supplemental construction of the road to safety and economically serve 
the contemplated use, unless the Chief determines that the safety and 
economy of the established and foreseeable use by the United States, its 
users and cooperators will not be impaired by the use for which 
application is being made. With the consent of the Chief the applicant 
may deposit funds in the estimated amount required for the improvements 
or supplemental construction in lieu of performance. Such funds will be 
used by the Forest Service to do the planned work. The cost of the 
improvements or supplemental construction will be taken into account in 
determining any otherwise required contribution to cover the 
proportionate share of the cost of road acquisition, construction, 
reconstruction or improvement attributable to the use.
    (b) Corresponding benefits. Corresponding benefits which may be 
accepted by the Chief for sharing road use will be those which bear a 
reasonable relation to the management of lands administered by the 
Forest Service. They may be in the form of:

[[Page 30]]

    (1) Deposit of funds with the Forest Service for use in paying the 
cost of road construction, reconstruction, or improvement to be borne by 
the user;
    (2) The grant of a reciprocal right of substantially similar value 
to the road use sought;
    (3) Construction, reconstruction, or improvement by applicant of a 
road needed for access to and use of lands administered by the Forest 
Service; or (4) any combination of these.
    (c) Cost determinations for roads cooperatively constructed under 
agreements. When roads are constructed under cooperative agreements to 
meet mutual needs of the United States and others for access, 
determinations of the shares of costs to be borne by the United States 
and the cooperating parties will include consideration of:
    (1) The standard of road required for the planned hauling;
    (2) The share of planned use;
    (3) The location and volume of tributary timber owned by each party 
and expected to be hauled over the road or roads;
    (4) The tributary areas owned or controlled by each party;
    (5) Expected use by the public; and
    (6) Other appropriate considerations.
    (d) Cost recovery by the United States from others. When roads are 
used under permit for commercial hauling instead of under cooperative 
agreement, any cost to be recovered by the United States will be 
calculated in proportion to the planned use of the road. The road cost 
used in such calculation will be the amount or estimated amount expended 
in the acquisition, construction, reconstruction, and improvement of 
that capacity of the road required to serve the use needs of all parties 
that are or reasonably can be expected to use the road. The road costs 
shall not exceed the replacement value of the road. Such road share-cost 
payments will be through deposits in advance of use unless the user 
provides a payment bond satisfactory to the Chief guaranteeing that 
payments will be made promptly upon billing by the Forest Service.
    (e) Cost sharing with a cooperator. The costs to achieve the agreed 
upon road or road system may be met by:
    (1) Use of appropriated funds;
    (2) Construction, reconstruction, or improvement of roads or 
segments of roads by purchasers of products from lands administered by 
the Forest Service or other users;
    (3) Use of deposits made by cooperator with the Forest Service to 
cover cooperator's agreed share;
    (4) Agreement with cooperator pursuant to which cooperator does more 
than his agreed share of constructing, reconstructing, or improving a 
road and recovers costs incurred in excess of his agreed share by 
charging purchasers of products from lands administered by the Forest 
Service an equitable amount within the limits and to the total amount 
specified in the agreement; or
    (5) A combination of the aforementioned methods.
    (f) Road maintenance and resurfacing. Cooperators will share the 
road maintenance and resurfacing costs under suitable agreements to 
perform, arrange for performance by others, or by making deposits with 
the Forest Service which will be used to pay the cost of work necessary 
to keep such roads in satisfactory condition commensurate with use 
requirements of each cooperator. No cooperator shall be required to 
perform or bear such costs other than those occasioned by its individual 
use. Other users will bear costs in accordance with Sec. 212.5(d).
    (g) Interests to be acquired by the United States in roads or 
easements therefor. Where the United States is to bear or share the cost 
of constructing or improving, or acquiring a road system, a road, or a 
segment thereof, or acquires an easement therefor, the interest acquired 
will:
    (1) Be for perpetual use unless the road use falls within the 
limited classes where temporary roads or roads for limited periods are 
acceptable;
    (2) Provide adequately for foreseeable management, protection, and 
utilization needs of lands administered by the Forest Service and 
intermingled and adjacent private and public lands and for the use and 
development of the resources upon which communities within or adjacent 
to the National Forest are dependent; and
    (3) not be subject to conditions, reservations, or convenants 
unrelated to

[[Page 31]]

the road use, or which seek or might tend to direct or limit policies 
and procedures for management of lands administered by the Forest 
Service.

(25 Stat. 357, 26 Stat. 1103, 30 Stat. 35-36, 1233, 38 Stat. 430, 46 
Stat. 1421, 64 Stat. 82, 72 Stat. 885, as amended, 74 Stat. 215, 78 
Stat. 1089; 16 U.S.C. 471, 478, 498, 525, 528-531, 532, 538, 551, 572, 
23 U.S.C. 101, 205, 40 U.S.C. 257, 258a et seq.; 42 Atty. Gen. Op. No. 
7; Comp. Gen. B-65972, May 19, 1947; 40 Comp. Gen. 372; 41 Comp. Gen. 1; 
41 Comp. Gen. 576, and 42 Comp. Gen. 590)

[30 FR 5478, Apr. 16, 1965, as amended at 39 FR 27650, July 31, 1974. 
Redesignated and amended at 62 FR 58654, Oct. 30, 1997]



Sec. 212.10  Maximum economy forest development roads.

    The Chief may acquire, construct, reconstruct, improve, and maintain 
forest development roads within and near the National Forests and other 
lands administered by the Forest Service in locations and according to 
specifications which will permit maximum economy in harvesting timber 
from such lands tributary to such roads and at the same time meet the 
requirements for protection, development, and management thereof and for 
utilization of the other resources thereof. Financing of such roads may 
be accomplished--
    (a) By the Chief utilizing appropriated funds,
    (b) By requirements on purchasers of National Forest timber and 
other products, including provisions for amortization of road costs in 
contracts,
    (c) By cooperative financing with other public agencies and with 
private agencies or persons, or
    (d) By a combination of these methods: Provided, That where roads of 
a higher standard than that needed in the harvesting and removal of the 
timber and other products covered by the particular sale are to be 
constructed, the purchaser of the National Forest timber and other 
products shall not be required to bear that part of the costs necessary 
to meet such higher standard, and the Chief may make such arrangements 
to this end as may be appropriate, including arrangements for 
performance of purchaser's road development work under the Act of March 
3, 1925, as amended by section 5 of the Act of April 24, 1950 (16 U.S.C. 
572).

(25 Stat. 357, 26 Stat. 1103, 30 Stat. 35-36, 1233, 38 Stat. 430, 46 
Stat. 1421, 64 Stat. 82, 72 Stat. 885, as amended, 74 Stat. 215, 78 
Stat. 1089; 16 U.S.C. 471, 478, 498, 525, 528-531, 532, 538, 551, 572, 
23 U.S.C. 101, 205, 40 U.S.C. 257, 258a et seq.; 42 Atty. Gen. Op. No. 
7; Comp. Gen. B-65972, May 19, 1947; 40 Comp. Gen. 372; 41 Comp. Gen. 1; 
41 Comp. Gen. 576, and 42 Comp. Gen. 590)

[30 FR 5479, Apr. 16, 1965. Redesignated at 62 FR 58654, Oct. 30, 1997]



Secs. 212.11--212.12  [Reserved]



Sec. 212.13  Temporary suspension of road construction in unroaded areas.

    (a) Definitions. The special terms used in this section are defined 
as follows:
    (1) Road. A vehicle travel way of over 50 inches wide. As used in 
this section, a road may be classified or unclassified.
    (i) Classified road. A road that is constructed or maintained for 
long-term highway vehicle use. Classified roads may be public, private, 
or forest development.
    (A) Public road. A road open to public travel that is under the 
jurisdiction of and maintained by a public authority such as States, 
counties, and local communities.
    (B) Private road. A road under private ownership authorized by an 
easement to a private party, or a road which provides access pursuant to 
a reserved or private right.
    (C) Forest development road. A road wholly or partially within or 
adjacent to a National Forest System boundary that is necessary for the 
protection, administration, and use of National Forest System lands, 
which the Forest Service has authorized and over which the agency 
maintains jurisdiction.
    (ii) Unclassified road. A road that is not constructed, maintained, 
or intended for long-term highway use, such as, roads constructed for 
temporary access and other remnants of short-term use roads associated 
with fire suppression, timber harvest, and oil, gas, or mineral 
activities, as well as travel ways resulting from off-road vehicle use.
    (2) Unroaded area. An area that does not contain classified roads.

[[Page 32]]

    (3) RARE II. The acronym for the second Roadless Area Review and 
Evaluation conducted by the Forest Service in 1979 that resulted in an 
inventory of roadless areas considered for potential wilderness 
designation.
    (b) Suspensions. Except as provided in paragraphs (c) and (d) of 
this section, new road construction projects, including temporary road 
construction, and road reconstruction projects are suspended within the 
following areas of the National Forest System:
    (1) All remaining unroaded portions of RARE II inventoried roadless 
areas within the National Forest System, and all other remaining 
unroaded portions of roadless areas identified in a land and resource 
management plan prepared pursuant to the National Forest Management Act 
(16 U.S.C. 1604) that lie one-quarter mile or more beyond any existing 
classified road as of March 1, 1999;
    (2) All National Forest System unroaded areas of more than 1,000 
acres that are contiguous to remaining unroaded portions of RARE II 
inventoried roadless areas or contiguous to areas inventoried in land 
and resource management plans. For purposes of implementing this 
category of suspension, areas of 1,000 acres or more must have a common 
boundary of considerable length, provide important corridors for 
wildlife movement, or extend a unique ecological value of the 
established inventoried area;
    (3) Roadless areas listed in Table 5.1 of the Southern Appalachian 
Area Assessment, Social/Cultural/Economic Technical Report, Report 4 of 
5, July 1996;
    (4) All National Forest System unroaded areas greater than 1,000 
acres that are contiguous to congressionally-designated wilderness areas 
or that are contiguous to Federally-administered components of the 
National Wild and Scenic River System (16 U.S.C. 1274) which are 
classified as Wild; and
    (5) All National Forest System unroaded areas greater than 1,000 
acres that are contiguous to unroaded areas of 5,000 acres or more on 
other federal lands.
    (c) Exemptions. Road construction and reconstruction projects are 
not subject to the suspension established by paragraph (b) of this 
section if they fall within one of the following unroaded areas:
    (1) Unroaded areas within national forests that have a signed Record 
of Decision revising their land and resource management plans prepared 
pursuant to the National Forest Management Act (16 U.S.C. 1604) after 
January 1, 1996, and on which the administrative appeals process under 
36 CFR part 217 has been completed as of March 1, 1999;
    (2) Unroaded areas within a National Forest that have a signed 
Record of Decision revising the land and resource management plan 
prepared pursuant to the National Forest Management Act (16 U.S.C. 1604) 
on which the administrative appeals process under 36 CFR part 217 has 
begun before or after March 1, 1999. (For these forests, any issues 
related to the construction of roads in unroaded areas will be addressed 
in the appeal decision, when appropriate.);
    (3) Unroaded areas within the National Forest System encompassed by 
a land and resource management plan amendment or revision adopted before 
or during the period in which this section is effective, where such 
amendment or revision has been developed through multi-federal agency 
coordination using a science based eco-regional assessment;
    (4) Road construction or reconstruction in unroaded areas where 
roads are needed for public safety, needed to ensure access provided by 
statute, treaty, or pursuant to reserved or outstanding rights; or 
needed to address an imminent threat of flood, fire, or other 
catastrophic event that, without intervention, would cause the loss of 
life or property.
    (d) Scope and applicability. (1) This rule does not suspend or 
modify any existing permit, contract, or other instrument authorizing 
the occupancy and use of National Forest System land. Additionally, this 
rule does not suspend or modify any existing National Forest System land 
allocation decision, nor is this rule intended to suspend or otherwise 
affect other management activities or uses within

[[Page 33]]

unroaded areas in which road construction or reconstruction projects are 
suspended pursuant to paragraph (b) of this section.
    (2) This rule does not suspend or modify road construction or 
reconstruction associated with the multi-federal agency Yellowstone 
Pipeline project.
    (3) The suspensions established by paragraph (b) of this section 
remain in effect until the Forest Service, after giving appropriate 
public notice and opportunity to comment, adopts its revised road 
management policy, or 18 months from the effective date of this rule, 
whichever is first.
    (e) Effective date. The suspension of road construction and 
reconstruction projects in unroaded areas as provided in paragraph (b) 
of this section is effective March 1, 1999.

[64 FR 7304, Feb. 12, 1999]



Secs. 212.14--212.19  [Reserved]



Sec. 212.20  National Forest development trail system operation.

    (a) Forest development trails. Forest development trails shall be 
identified on a map available to the public at the offices of the Forest 
Supervisors and District Rangers and shall be marked on the ground by 
appropriate signs which reasonably bring their location to the attention 
of the public.
    (b) [Reserved]

[43 FR 20007, May 10, 1978]



Sec. 212.21  Pacific Crest National Scenic Trail.

    The Pacific Crest National Scenic Trail as defined by the National 
Trails Systems Act, 82 Stat. 919, shall be administered primarily as a 
footpath and horseback riding trail by the Forest Service in 
consultation with the Secretary of the Interior. The use of motorized 
vehicles may be authorized by the Federal Agency administering the 
segment of trail involved when use of such vehicles is necessary to meet 
emergencies or to enable landowners or land users to have reasonable 
access to their lands or timber rights.

(82 Stat. 919 (16 U.S.C. 1241 et seq.))

[43 FR 20007, May 10, 1978]



PART 213--ADMINISTRATION OF LANDS UNDER TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT BY THE FOREST SERVICE--Table of Contents




Sec.
213.1  Designation, administration, and development of National 
          Grasslands.
213.2  Authority for Chief, Forest Service, to group, define, and name 
          national grasslands.
213.3  Protection, occupancy, use, administration, and exercise of 
          reservations.
213.4  Prior rules and regulations superseded.

    Authority: 50 Stat. 525, as amended; 7 U.S.C. 1010-1012.



Sec. 213.1  Designation, administration, and development of National Grasslands.

    (a) The land utilization projects administered by Department of 
Agriculture designated in paragraph (e) of this section hereafter shall 
be named and referred to as National Grasslands.
    (b) The National Grasslands shall be a part of the National Forest 
system and permanently held by the Department of Agriculture for 
administration under the provisions and purposes of title III of the 
Bankhead-Jones Farm Tenant Act.
    (c) The National Grasslands shall be administered under sound and 
progressive principles of land conservation and multiple use, and to 
promote development of grassland agriculture and sustained-yield 
management of the forage, fish and wildlife, timber, water and 
recreational resources in the areas of which the National Grasslands are 
a part.
    (d) In the administration of the National Grasslands the resources 
shall be managed so as to maintain and improve soil and vegetative 
cover, and to demonstrate sound and practical principles of land use for 
the areas in which they are located. The Chief of the Forest Service 
shall, to the extent such action is feasible provide that policies for 
management of the Federally-owned lands exert a favorable influence for 
securing sound land conservation practices on associated private lands.
    (e) National Grasslands in the following States and counties are 
hereby grouped and designated as indicated:

[[Page 34]]



------------------------------------------------------------------------
   State in which grassland is                          Counties where
             located              National grassland        located
------------------------------------------------------------------------
California......................  Butte Valley......  Siskiyou.
Colorado........................  Pawnee............  Weld.
                                  Comanche..........  Baca, Los Animas,
                                                       Otero.
Idaho...........................  Curlew............  Oneida, Power.
Kansas..........................  Cimarron..........  Morton, Stevens.
Nebraska........................  Oglala............  Dawes, Sioux.
New Mexico......................  Kiowa.............  Colfax, Harding,
                                                       Mora, Union.
North Dakota....................  Cedar River.......  Grant, Sioux.
                                  Sheyenne..........  Ransom, Richland.
                                  Little Missouri...  Billings, Golden
                                                       Valley, McKenzie,
                                                       Slope.
Oklahoma........................  Rita Blanca.......  Cimarron.
Oklahoma-Texas..................  Black Kettle......  Roger Mills
                                                       (Okla.), Hemphill
                                                       (Tex.).
Oregon..........................  Crooked River.....  Jefferson.
South Dakota....................  Buffalo Gap.......  Custer, Fall
                                                       River, Jackson,
                                                       Pennington.
                                  Grand River.......  Corson, Perkins,
                                                       Ziebach.
                                  Fort Pierre.......  Jones, Lyman,
                                                       Stanley.
Texas...........................  Lyndon B. Johnson.  Montague, Wise.
                                  Rita Blanca.......  Dallas.
                                  Caddo.............  Fannin.
                                  McClellan Creek...  Gray.
Wyoming.........................  Thunder Basin.....  Campbell,
                                                       Converse, Crook,
                                                       Niobrara, Weston.
------------------------------------------------------------------------


[25 FR 5845, June 24, 1960, as amended at 27 FR 12217, Dec. 11, 1962; 28 
FR 6268, June 19, 1963; 41 FR 38164, Sept. 9, 1976; 56 FR 8280, Feb. 28, 
1991]



Sec. 213.2  Authority for Chief, Forest Service, to group, define, and name national grasslands.

    The Chief, Forest Service, is authorized to group the national 
grasslands into administrative units, define, change or modify their 
boundaries, and to provide such specific designations therefor as he 
finds necessary and desirable for effective and economical 
administration thereof and for public and official reference thereto.

[33 FR 12370, Sept. 4, 1968]



Sec. 213.3  Protection, occupancy, use, administration, and exercise of reservations.

    (a) The rules and regulations applicable to the national forests as 
set forth in title 36, Code of Federal Regulations, or as hereafter 
amended, supplemented, or promulgated, are hereby adopted as the rules 
and regulations to govern the exercise of reservations in conveyances to 
the United States and to prevent trespasses on and otherwise regulate 
the protection, use, occupancy, and administration of the National 
Grasslands and all other lands administered by the Forest Service under 
the provisions of title III of the Bankhead-Jones Farm Tenant Act 
insofar as is practical and consistent with said act: Provided, That 
Forest Service officers may continue under delegated authority to 
acquire lands, to make exchanges, to grant easements and enter into 
leases, permits, agreements, contracts and memoranda of understanding 
involving such lands under such terms and conditions and for such 
consideration, fees or rentals as authorized by title III of the said 
Act.
    (b) Existing valid rights, reservations easements, leases, permits, 
agreements, contracts and memoranda of understanding affecting these 
lands shall continue in full force and effect so long as they remain 
valid in accordance with the terms thereof.

[27 FR 9217, Sept. 18, 1962]



Sec. 213.4  Prior rules and regulations superseded.

    Except as provided in Sec. 213.3, the rules and regulations 
heretofore issued for the land utilization projects are hereby 
superseded as to all such projects administered by the Forest Service, 
but not as to such project lands administered by other agencies.

[27 FR 9217, Sept. 18, 1962]



PART 215--NOTICE, COMMENT, AND APPEAL PROCEDURES FOR NATIONAL FOREST SYSTEM PROJECTS AND ACTIVITIES--Table of Contents




Sec.
215.1  Purpose and scope.
215.2  Definitions.
215.3  Proposed actions subject to notice and comment.
215.4  Actions not subject to notice and comment.
215.5  Notice and comment on proposed actions.
215.6  Response to comments received on proposed actions.
215.7  Decisions subject to appeal.
215.8  Decisions not subject to appeal.
215.9  Notice of decisions.
215.10  Implementation of decisions.
215.11  Who may participate in appeals.

[[Page 35]]

215.12  Where to file appeals.
215.13  Appeal time periods and process.
215.14  Content of an appeal.
215.15  Dismissal of appeal without review.
215.16  Informal disposition.
215.17  Formal disposition.
215.18  Appeal deciding officer authority.
215.19  Appeal reviewing officer authority.
215.20  Policy in event of judicial proceedings.
215.21  Applicability and effective date.

    Authority: 16 U.S.C. 472, 551; sec. 322, Pub. L. 102-381, 106 Stat. 
1419 (16 U.S.C. 1612 note).

    Source: 58 FR 58910, Nov. 4, 1993, unless otherwise noted.



Sec. 215.1  Purpose and scope.

    (a) Purpose. The rules of this part have two purposes. First, this 
part establishes a process by which persons or organizations may receive 
notice and be provided opportunity to comment on proposed actions 
implementing national forest land and resource management plans prior to 
a final decision by the responsible official. This includes notice of 
and opportunity to comment on nonsignificant amendments of land and 
resource management plans that are made in conjunction with those 
proposed actions. Second, this part provides for prompt administrative 
review of project and activities implementing forest plans and 
establishes who may appeal decisions on planned actions, the kind of 
decisions that may be appealed, the responsibilities of the participants 
in an appeal, and the procedures that apply.
    (b) Scope. The process established in this part constitutes the 
final administrative opportunity for the public to influence National 
Forest System project decisionmaking prior to implementation. The rules 
of this part complement, but do not replace, numerous other 
opportunities to participate in and influence agency decisionmaking 
provided pursuant to the National Environmental Policy Act of 1969, the 
National Forest Management Act, and the implementing regulations and 
procedures in 40 CFR parts 1500-1508 and 36 CFR parts 216 and 219, 
Forest Service Manual Chapters 1920 and 1950, and Forest Service 
Handbooks 1909.12 and 1909.15.



Sec. 215.2  Definitions.

    For the purpose of this part--
    Appeal is the written document filed with an Appeal Deciding Officer 
by one who objects to a decision covered by this part.
    Appeal Deciding Officer is the Forest Service line officer having 
the delegated authority and responsibile to render a decision on an 
appeal filed under this part.
    Appeal Period is the 45 calendar-day period during which an appeal 
may be filed with the Appeal Deciding Officer.
    Appeal Record is the information assembled and/or created during the 
course of an appeal and upon which review of an appeal is conducted. It 
consists of the decision documentation, the appeal, the Responsible 
Official's documentation of the informal disposition meeting, the public 
notice of decision document, and written comments submitted by 
interested parties.
    Appeal Reviewing Officer is an agency official who reviews an appeal 
and makes a written recommendation to the Appeal Deciding Officer on the 
disposition of the appeal.
    Appellant is a person or organization filing an appeal under this 
part.
    Categorical Exclusion refers to a category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment and for which neither an environmental impact statement 
(EIS) nor an environmental assessment (EA) is required (40 CFR 1508.4; 
Forest Service Handbook 1909.15, Chapter 30).
    Comment Period is the 30 calendar day period, following publication 
of the notice for public comment, available to interested persons to 
provide comments to a Responsible Official on a proposed action subject 
to this part.
    Decision Document is the document that records the decisions for 
actions implementing land and resource management plans. (See also, 
Record of Decision, Decision Notice, and Decision Memo.)
    Decision documentation refers to the decision document and all 
relevant environmental and other analysis documentation and records on 
which the Responsible Official based a decision that is at issue under 
an appeal filed pursuant to this part. Decision documentation may 
include, but is not limited to, a project or case file, Record of

[[Page 36]]

Decision, Decision Notice, Decision Memo, environmental assessment, 
finding of no significant impact, draft and final environmental impact 
statement, land and resource management plan, regional guide, and 
documents incorporated by reference in any of the preceding documents.
    Decision Memo is a concise written record of a Responsible 
Official's decision to implement actions that have been categorically 
excluded from documentation in an environmental impact statement or 
environmental assessment (40 CFR 1508.4, Forest Service Handbook 
1909.15, Chapter 30).
    Decision Notice is a concise written record of a Responsible 
Official's decision based on an environmental assessment and a finding 
of no significant impact. (40 CFR 1508.9, Forest Service Handbook 
1909.15, Chapter 40).
    Environmental Assessment is a concise public document that provides 
sufficient evidence and analysis for determining whether to prepare an 
environmental impact statement or a finding of no significant impact (40 
CFR 1508.9; Forest Service Handbook (FSH), 1909.15, Chapter 40).
    Environmental Impact Statement is a detailed written statement as 
required by section 102(2)(C) of the National Environmental Policy Act 
of 1969 (40 CFR 1508.11; FSH 1909.15, Chapter 20).
    Finding of No Significant Impact (FONSI) is a document prepared by a 
federal agency presenting the reasons why an action, not otherwise 
excluded, will not have a significant effect on the human environment 
and for which an environmental impact statement, therefore, will not be 
prepared. It includes the environmental assessment or a summary of it 
and shall note any other environmental documents related to it (40 CFR 
1508.13; Forest Service Handbook 1909.15, Chapter 40).
    Forest Service line officer is a Forest Service official who serves 
in a direct line of command from the Chief and who has the delegated 
authority to make and execute decisions subject to this part. 
Specifically, for the purposes of this part, a Forest Service employee 
who holds one of the following offices and titles: District Ranger, 
Deputy Forest Supervisor, Forest Supervisor, Deputy Regional Forester, 
Regional Forester, Associate Deputy Chief, Deputy Chief, Associate Chief 
of the Forest Service, or an employee delegated the authority to act in 
one of these capacities.
    Interested Party is a person or organization other than the 
appellant that provides written information to the Appeal Reviewing 
Officer regarding an appeal.
    Proposed action is a proposal made by the Forest Service to 
authorize, recommend, or implement an action on National Forest System 
lands to meet a specific purpose and need which is subject to the notice 
and comment provisions of this part.
    Proposed Timber Harvest Categorically Excluded from Documentation 
under Forest Service Handbook 1909.12, section 31.2, paragraph 4 is 
timber harvest which removes 250,000 board feet or less of merchantable 
wood products, or salvage which removes 1,000,000 board feet or less of 
merchantable wood products; which requires one mile or less of low 
standard road construction (Service level D. FSH 7709.56); and assures 
regeneration of harvested or salvaged areas, where required; which 
normally are categorically excluded from documentation in an 
environmental assessment or environmental impact statement; and for 
which a project or case file and decision memo are required (Forest 
Service Handbook 1909.12, sec. 31.2, para. 4).
    Record of Decision is a document signed by a Responsible Official 
recording a decision that was preceded by preparation of an 
environmental impact statement (40 CFR 1505.2; Forest Service Handbook 
1909.15, Chapter 20).
    Responsibile Official is the Forest Service line officer who has the 
authority and responsibility to make decisions on proposed actions 
subject to notice, comment and appeal under this part.



Sec. 215.3  Proposed actions subject to notice and comment.

    The notice and comment procedures of Sec. 215.5 apply only to the 
following actions:
    (a) Proposed actions implementing national forest land and resource 
management plans (36 CFR 219.11) for which

[[Page 37]]

an environmental assessment is prepared.
    (b) Proposed timber harvest as described in Paragraph 4, section 
31.2 of Forest Service Handbook 1905.15 for which a project or case file 
and Decision Memo are required.
    (c) Nonsignificant amendments (36 CFR part 219) to land and resource 
management plans that are included as part of a decision on a proposed 
action as specified in paragraph (a) of this section.
    (d) Proposed actions on those National Forests which do not yet have 
approved land and resource management plans prepared pursuant to 36 CFR 
part 219 as follows:
    (1) Proposed actions for which an environmental assessment is 
prepared; or
    (2) Proposed timber harvest as described in Paragraph 4, section 
31.2 of Forest Service Handbook 1905.15 for which a project or case file 
and Decision Memo are required.
    (e) Proposed forestry research activities to be conducted on 
National Forest Systems lands for which an environmental assessment has 
been prepared.



Sec. 215.4  Actions not subject to notice and comment.

    The following proposed actions are not subject to notice and comment 
procedures of Sec. 215.5
    (a) Actions described in a draft environmental impact statement, for 
which notice and comment procedures are governed by 40 CFR parts 1500-
1508;
    (b) Actions categorically excluded from documentation in an 
environmental impact statement or environmental assessment pursuant to 7 
CFR 1b.3 or FSH 1909.15, sections 31.1 and 31.2, except timber harvest 
actions as specified in Sec. 215.3(b) and (d)(2);
    (c) Any action or policy not subject to the provisions of the 
National Environmental Policy Act and the implementing regulations at 40 
CFR parts 1500-1508;
    (d) Rules promulgated in accordance with the Administrative 
Procedure Act (5 U.S.C. 551 et seq.) or policies and procedures issued 
in Forest Service Manuals and Handbooks (36 CFR parts 200, 216);
    (e) A nonsignificant amendment to a land and resource management 
plan which is made separately from a proposed action specified in 
Sec. 215.3(c) and which, therefore, is subject to appeal under part 217 
of this chapter.



Sec. 215.5  Notice and comment on proposed actions.

    (a) Annual notice of newspapers. Annually, each Regional Forester 
shall, through notice published in the Federal Register, advise the 
public of the principal newspapers to be utilized for publishing notices 
required by this section.
    (b) Manner of giving notice. (1) The Responsible Official shall 
publish notice of proposed actions as specified in Sec. 215.3 in a 
newspaper of general circulation identified pursuant to the requirements 
of paragraph (a) of this section.
    (2) The Responsible Official also shall give the public notice of 
the opportunity to comment on proposed actions subject to this part as 
follows:
    (i) For proposed actions requiring an environmental assessment, the 
Responsible Official shall promptly mail the environmental assessment 
along with a letter identifying the proposed action to any person who 
has requested it and to persons who are known to have participated in 
the environmental analysis process.
    (ii) For proposed timber harvest actions categorically excluded from 
documentation under Forest Service Handbook 1909.15, section 31.2, 
paragraph 4, the Responsible Official shall promptly mail a letter 
briefly describing the proposed to any person who has requested notice, 
to persons who are on a mailing list to receive notice of this type of 
decision, or to persons who are known to have participated in the 
decisionmaking process.
    (c) Content of the public notice for comment on proposed actions. 
All notices provided or published pursuant to this section shall include 
the following:
    (1) The title and brief description of the proposed action;
    (2) A general description of the proposed action location;
    (3) Instructions on how to obtain additional information on the 
proposed action;

[[Page 38]]

    (4) The name, title, address, and telephone number of the 
Responsible Official to whom comments should be addressed; and
    (5) The date the comment period ends (Sec. 215.6(a)).



Sec. 215.6  Response to comments received on proposed actions.

    (a) Comment period. The Responsible Official shall accept comments 
on an proposed action subject to Sec. 215.3 for 30 days following the 
date of publication of the notice for public comment. Both oral and 
written comments shall be accepted. The 30-day period for comment begins 
on the first day after publication of notice. Saturdays, Sundays, and 
Federal holidays are included in computing all time periods in this 
section; however, when the comment period ends on a Saturday, Sunday, or 
Federal holiday, the comment period shall be extended to the close of 
business of the next Federal working day.
    (b) Submission. Persons expressing an interest or submitting 
comments to the Responsible Official in response to a notice published 
or provided pursuant to Sec. 215.5 shall provide the following 
information, which will become a matter of public record:
    (1) Name, address, and (if possible) telephone number;
    (2) Title of the document(s) on which comment is being submitted; 
and
    (3) Specific facts or comments along with supporting reasons that 
the person believes the Responsible Official should consider in reaching 
a decision.
    (c) Timeliness. It is the responsibility of persons providing 
comments to submit them by the close of the comment period.
    (1) When comments are received, the Responsible Official shall 
clearly identify the date of receipt.
    (2) The Responsible Official must consider all written comments 
postmarked or facsimile imprinted by the close of business on the 30th 
day following publication of the notice (Sec. 215.5) and all oral 
comments received by the close of business on the 30th day following 
publication of the notice.
    (d) The Responsible Official shall address comments received from 
the public during the comment period in an appendix to the environmental 
assessment. For proposed timber harvest actions to be categorically 
excluded from documentation under Forest Service Handbook 1909.15, 
section 31.2, paragraph 4, public comments and responses to them shall 
be placed in the project file.
    (e) Notes of oral comments received in response to a notice for 
public comment pursuant to Sec. 215.5 shall be placed in the files and 
addressed pursuant to paragraph (d) of this section.



Sec. 215.7  Decisions subject to appeal.

    Only the following decisions are subject to appeal under this part:
    (a) Project and activity decisions documented in a Record of 
Decision or Decision Notice, including those which, as a part of the 
project approval decision, contain a nonsignificant amendment to a 
National Forest Land and Resource Management Plan (36 CFR 219.10).
    (b) Timber harvest project and activity decisions as described in 
paragraph 4, Section 31.2 of Forest Service Handbook 1909.15 which are 
documented in a decision memo.



Sec. 215.8  Decisions not subject to appeal.

    (a) The following decisions are not subject to appeal under this 
part:
    (1) Project or activity decisions included in a Record of Decision 
for significant amendment, revision, or approval of a land and resource 
management plan, appeal of which is governed by 36 CFR part 217;
    (2) Preliminary findings made during planning and/or analysis 
processes. Such findings are appealable only upon issuance of a decision 
document;
    (3) Actions for which notice and opportunity to comment have been 
published and on which no expression of interest has been received 
during the comment period (Sec. 215.6), and on which the Responsible 
Official's decision does not modify the proposed action; and
    (4) Decisions for actions that have been categorically excluded from 
documentation in an environmental assessment or environmental impact 
statement in FSH 1909.15, Section 31.1 and 31.2, except as noted in 
Sec. 215.7(b).
    (b) In addition to decisions excluded from appeal by paragraph (a) 
of this section, the Appeal Deciding Officer

[[Page 39]]

shall dismiss any appeal filed on subsequent implementing actions that 
result from the initial project decision subject to appeal under 
Sec. 215.7. For example, an initial decision to offer a timber sale is 
appealable under this part; subsequent implementing actions to advertise 
or award that sales are not appealable under this part.
    (c) Decisions solely affecting the business relationship between the 
Forest Service and holders of written instruments regarding occupancy 
and use of National Forest System lands can be appealed by permit 
holders under either 36 CFR part 251, subpart C, or this part, but 
cannot be appealed under both regulations.



Sec. 215.9  Notice of decisions.

    (a) Publication of public notice. The Responsible Official shall 
publish a notice of any decision which is subject to notice and comment 
under Sec. 215.3 in a newspaper of general circulation identified 
pursuant to the requirements of Sec. 215.5(a).
    (b) Publication of notice of a decision. A notice of a decision 
published pursuant to this section shall:
    (1) Include the decision title and a concise description of the 
action(s) to be taken, the name and title of the Responsible Official, 
and instructions for obtaining a copy of the decision document;
    (2) Except for decisions on which no expression of interest was 
received during the comment period Sec. 215.8(4), state that the 
decision is subject to appeal pursuant this part and include the 
following:
    (i) State the name and address of the Appeal Deciding Officer with 
whom an appeal should be filed;
    (ii) Specify that an appeal must be postmarked and submitted to the 
Appeal Deciding Officer within 45 days of the date of publication in 
accordance with Sec. 215.13;
    (3) For those decisions on which no comment was received, state that 
the decision is not subject to appeal pursuant to Sec. 215.8(a)(4).
    (c) Mailing decision documents. The Responsible Official shall 
promptly mail the decision document to those who request the specific 
document and to those who submitted comments on the proposed action 
either before or during the comment period provided pursuant to 
Sec. 215.6.



Sec. 215.10  Implementation of decisions.

    (a) If no appeal is filed, implementation of decisions subject to 
appeal pursuant to this part may occur on, but not before, 5 business 
days from the close of the appeal filing period.
    (b) If an appeal is filed, implementation may not occur for 15 days 
following the date of appeal disposition. In the event of multiple 
appeals of the same decision, the date of the disposition of the last 
appeal controls the implementation date.
    (c) If a project is not appealable because, pursuant to 
Sec. 215.8(a)(4), no expression of interest has been received and there 
is no change from the proposed action, implementation may occur 
immediately upon publication of the notice of the decision as provided 
in Sec. 215.9.
    (d) A project decision is not subject to a stay if the Chief of the 
Forest Service determines that an emergency situation exists with 
respect to the decision in accordance with the following provisions of 
this paragraph:
    (1) An emergency, as defined here, is an unexpected event, or a 
serious occurrence or a situation requiring urgent action. Examples of 
an emergency include, but are not limited to, the following:
    (i) Vegetation loss which presents an immediate threat of flooding 
or landslide.
    (ii) Hazardous or unsafe situations as a result of wildfire or other 
circumstances.
    (iii) Damage to water quality caused by siltation due to fire or 
flooding.
    (iv) Potential loss of fish and wildlife habitat due to windstorms 
and blowdowns.
    (v) Sudden outbreaks of forest pests and diseases.
    (2) The Responsible Official shall notify the public that the Forest 
Service intends to handle this project as an emergency in the public 
notice on proposed actions as provided in Sec. 215.5(c)(1). Actions 
responding to emergency situations may be accomplished with force 
account (Forest

[[Page 40]]

Service crews), service contracts or timber sale contracts.



Sec. 215.11  Who may participate in appeals.

    (a) Except as provided for in paragraph (c) of this section, an 
appeal pursuant to this part may be filed by any person who, or any non-
Federal organization or entity that has met either of the following 
criteria:
    (1) Submitted written comment in response to a project draft 
Environmental Impact Statement; or
    (2) Provided comment or otherwise expressed interest in a particular 
proposed action by the close of the comment period specified in 
Sec. 215.6.
    (b) Persons interested in or potentially affected by an appeal may 
participate as an interested party, as provided in Sec. 215.13(e).
    (c) Federal agencies may not participate as appellants or interested 
parties.
    (d) Federal employees filing appeals under this part shall comply 
with Federal conflict of interest statutes at 18 U.S.C. 202-209 and with 
employee ethics requirements at 5 CFR part 2635. Specifically, employees 
shall not be on official duty or use government property or equipment in 
the preparation or transmittal of an appeal. Employees also shall not 
use official information not yet released to the public.

[58 FR 58910, Nov. 4, 1993, as amended at 63 FR 4188, Jan. 28, 1998]



Sec. 215.12  Where to file appeals.

    The Appeal Deciding Officer with whom appeals must be filed are as 
follows:

------------------------------------------------------------------------
 If the responsible official who made the     Then the appeal deciding
               decision is:                          officer is:
------------------------------------------------------------------------
Regional Forester.........................  Chief of the Forest Service.
Forest Supervisor or......................  Regional Forester.
District Ranger...........................  Do.
------------------------------------------------------------------------



Sec. 215.13  Appeal time periods and process.

    (a) Filing procedures. To appeal a decision under this part, a 
person must submit a written appeal to the Appeal Deciding Officer 
within the 45 day appeal filing period specified in the public notice 
published pursuant to Sec. 215.9.
    (b) Computation of time periods. (1) The day after the publication 
of the public notice published pursuant to Sec. 215.9 is the first day 
of the appeal filing period.
    (2) All time periods in this section are to be computed using 
calendar days. Saturdays, Sundays, and Federal holidays are included in 
computing the time period for filing an appeal. However, when the filing 
period would expire on a Saturday, Sunday, or Federal holiday, the 
filing time is extended to the end of the next Federal working day.
    (c) Evidence of timely filing. The appellant is responsible for 
submitting an appeal on or before the last day of the appeal filing 
period. Where there is a question about timelines of an appeal, the U.S. 
Postal Service postmark on a mailed appeal or the time and date imprint 
on a facsimile appeal will be used to determine timeliness.
    (d) Time extensions. Time extensions are not permitted.
    (e) Interested party comments. Interested parties must submit 
written comments to the Appeal Reviewing Officer within 15 days after 
close of the appeal filing period and are encouraged to provide a copy 
to the appellants at the same time. An interested party can obtain the 
address of the Appeal Reviewing Officer and appellants by contacting the 
Appeal Deciding Officer.
    (f) Time period for formal disposition. Unless an appeal is resolved 
through the informal disposition process provided for in Sec. 215.16, 
the following timeframe and process shall apply:
    (1) Transmittal of decision documentation. Within 15 days of the 
close of the appeal filing period, the Responsible Official shall 
transmit the appeal record to the Appeal Reviewing Officer.
    (2) Review recommendation. Within 30 days of the close of the appeal 
filing period, the Appeal Reviewing Officer shall review the appeal 
record and forward it to the Appeal Deciding Officer with a written 
recommendation on the disposition of the appeal(s). The Appeal Reviewing 
Officer's recommendation shall be released upon issuance of an appeal 
decision.
    (3) Appeal decision. Within 45 days following the end of the appeal 
filing period, the Appeal Deciding Officer shall issue a written 
decision or otherwise

[[Page 41]]

give notice to appellant(s) concerning the disposition of the appeal. 
The decision or notice shall briefly explain why the Responsible 
Official's original decision was affirmed or reversed, in whole or in 
part.



Sec. 215.14  Content of an appeal.

    (a) It is the appellant's responsibility to provide sufficient 
written evidence and rationale to show why the Responsible Official's 
decision should be remanded or reversed.
    (b) An appeal submitted to the Appeal Deciding Officer becomes a 
part of the appeal record. An appeal must meet the following 
requirements:
    (1) State that the document is an appeal filed pursuant to 36 CFR 
part 215;
    (2) List the name and address of the appellant and, if possible, a 
telephone number;
    (3) Identify the decision document by title and subject, date of the 
decision, and name and title of the Responsible Official;
    (4) Identify the specific change(s) in the decision that the 
appellant seeks or portion of the decision to which the appellant 
objects;
    (5) State how the Responsible Official's decision fails to consider 
comments previously provided, either before or during the comment period 
specified in Sec. 215.6 and, if applicable, how the appellant believes 
the decision violates law, regulation, or policy.



Sec. 215.15  Dismissal of appeal without review.

    (a) An Appeal Deciding Officer shall dismiss an appeal without 
review when:
    (1) The appeal is not postmarked or the facsimile is not date 
imprinted within the 45-day appeal filing period in accordance with 
Sec. 215.13;
    (2) The requested relief or change cannot be granted under law, 
fact, or regulation;
    (3) The decision at issue is being appealed by the appellant under 
another administrative proceeding;
    (4) The decision is excluded from appeal pursuant to Sec. 215.8;
    (5) The appellant did not express an interest in the specific 
proposal at any time prior to the close of the comment period specified 
in Sec. 215.6;
    (6) The Responsible Official has withdrawn the decision being 
appealed; or
    (7) The appellant has filed for Federal judicial review of the 
decision and the Chief has waived the argument in Sec. 215.20.
    (b) The Appeal Deciding Officer shall give written notice to the 
appellant, interested parties, and Responsible Official that an appeal 
is dismissed and state the reasons for dismissal.



Sec. 215.16  Informal disposition.

    (a) Offer to meet. When a decision is appealed under this part, the 
Responsible Official must contact the appellant(s) and offer to meet and 
discuss resolution of the issues raised in the appeal. This contact 
shall be made as soon as practicable after an appeal has been filed.
    (b) Time and location of meeting. If one or more appellants agree to 
meet, the meeting(s) must take place not later than 15 days after the 
closing date for filing an appeal. The location of the meeting shall be 
in the vicinity of the lands affected by the decision. When the District 
Ranger is the Responsible Official, meetings will generally be located 
on or near that Ranger District. When the Forest Supervisor or Regional 
Forester is the Responsible Official, meetings will generally take place 
at a location within or near the National Forest.
    (c) Type of meeting. Generally, participants shall be physically 
present at informal disposition meetings. Where an appellant cannot 
attend a meeting in person because of schedule conflicts or travel 
distances, alternative types of meetings (such as telephone conferences 
or video conferences) may be arranged. This alternative type meeting 
also must take place not later than 15 days after the closing date for 
filing an appeal. The informal disposition meeting must be open to 
interested parties and the public.
    (d) Agreement on disposition. The Responsible Official must notify 
the Appeal Deciding Officer of the names of meeting participants and the 
outcome of the informal disposition meeting.
    (1) If the appellant(s) and Responsible Official reach agreement on 
disposition of the appeal, the Responsible Official

[[Page 42]]

shall so notify the Appeal Deciding Officer and the appellant shall 
withdraw the appeal by letter to the Appeal Deciding Officer no later 
than 15 days after the meeting. Upon notice from the appellant that the 
appeal has been withdrawn, the Appeal Deciding Officer shall notify the 
interested parties, Appeal Reviewing Officer, and Responsible Official 
of the conclusion of the appeal.
    (2) If, as a result of the agreement reached at the informal 
disposition meeting, new information is received or changes to the 
original project decision or environmental analysis are proposed, the 
Responsible Official must follow the procedures in the Environmental 
Policy and Procedures Handbook, FSH 1909.15, section 18.
    (e) Failure to reach agreement. If the appeal is not resolved 
through the informal disposition meeting, the Responsible Official shall 
so notify the Appeal Deciding Officer in writing. The Appeal Deciding 
Officer shall then advise the Appeal Reviewing Officer to proceed with 
formal review of the appeal.



Sec. 215.17  Formal disposition.

    (a) Formal disposition period. The Appeal Deciding Officer shall 
issue an appeal decision not later than 45 days after the end of the 
appeal filing period.
    (b) Appeal decision. The Appeal Deciding Officer shall complete a 
review based on the appeal record as defined in Sec. 215.2 and the 
Reviewing Officer's recommendation. The Appeal Deciding Officer shall 
issue a written appeal decision either affirming or reversing the 
Responsible Official's decision, in whole or in part, and may include 
instructions for further action. The Appeal Deciding Officer shall send 
a copy of the appeal decision to the appellant, interested parties, the 
Appeal Reviewing Officer, and the Responsible Official. If a formal 
decision is not issued, the Appeal Deciding Officer shall notify the 
appellant(s) of the disposition of their appeal.



Sec. 215.18  Appeal deciding officer authority.

    (a) Consolidation of appeal decisions. In cases involving multiple 
appeals of a decision subject to this part, the Appeal Deciding Officer 
shall determine whether to issue one appeal decision or separate appeal 
decisions.
    (b) Procedural decisions. The Appeal Deciding Officer shall make all 
procedural determinations in this part. Such determinations are not 
subject to further administrative review.
    (c) Appeal decisions. The Appeal Deciding Officer's decision 
constitutes the final administrative determination of the Department of 
Agriculture.



Sec. 215.19  Appeal reviewing officer authority.

    (a) Identification of Appeal Reviewing Officer. An agency official 
at the Regional Office level designated by the Chief is the Appeal 
Reviewing Officer for appeals of District Ranger and Forest Supervisor 
decisions. An agency official at the Washington Office level designated 
by the Chief is the Appeal Reviewing Officer for appeals of Regional 
Forester Decisions. The Appeal Reviewing Officer shall be an officer at 
least at the level of the agency official who made the initial decision 
on the project or activity that is under appeal and has not participated 
in the initial decision and will not be responsible for implementing the 
initial decision after the appeal is decided.
    (b) Scope of review. The Appeal Reviewing Officer's review of 
decisions under this part focuses on decision documentation developed by 
the Responsible Official in reaching the decision, issues raised in the 
appeal, and comments submitted by interested parties.
    (c) Consolidation of recommendations. In cases involving multiple 
appeals of a decision subject to this part, the Appeal Reviewing Officer 
shall determine whether to issue one recommendation or separate 
recommendations.



Sec. 215.20  Policy in event of judicial proceedings.

    Unless waived in a specific case, it is the position of the 
Department of Agriculture that any filing for Federal judicial review of 
a decision subject to review under this part is premature and 
inappropriate unless the plaintiff has first sought to invoke and 
exhaust the procedures available under this part.

[[Page 43]]



Sec. 215.21  Applicability and effective date.

    (a) The requirements of Sec. 215.5 of this part to provide notice 
and opportunity to comment on proposed actions described in Sec. 215.3 
is effective January 3, 1994.
    (b) Decisions for which notice has been given pursuant to 36 CFR 
217.5 prior to January 3, 1994, remain subject to the appeal procedures 
of 36 CFR part 217.



PART 216--INVOLVING THE PUBLIC IN THE FORMULATION OF FOREST SERVICE DIRECTIVES--Table of Contents




Sec.
216.1  Purpose.
216.2  Definitions.
216.3  Applicability; relationship to other public participation 
          opportunities.
216.4  Determining the need for formal public review on proposed Manual 
          directives.
216.5  Documentation.
216.6  Notice and comment procedures for proposed Manual directives 
          identified for formal public review.
216.7  Exemption of proposed Manual directives from normal procedures.
216.8  Availability of proposed Manual directives identified for formal 
          public review.

    Authority: Sec. 14, Forest and Rangeland Renewable Resources 
Planning Act of 1974, 88 Stat. 476 as amended, 90 Stat. 2949, 2958 (16 
U.S.C. 1612).

    Source: 49 FR 16993, Apr. 23, 1984, unless otherwise noted.



Sec. 216.1  Purpose.

    This part establishes procedures to ensure that Federal, State, and 
local governments and the public have adequate notice and opportunity to 
comment upon the formulation of standards, criteria, and guidelines 
applicable to Forest Service programs.



Sec. 216.2  Definitions.

    (a) The Forest Service Manual consists of numerous volumes organized 
by numerically coded subject matter. The volumes contain legal 
authorities, responsibilities, delegations, and general instruction and 
direction needed on a continuous basis by Forest Service officers at 
more than one unit to plan and execute programs. The parent text is 
issued by the national headquarters and sets forth the policies, and 
other guidance applicable Service-wide. National directives are 
supplemented, as necesary, by Forest Service field offices. Supplements 
to the Forest Service Manual are applicable only within the Forest 
Service organizational jurisdiction for which they are issued. The 
Forest Service Manual is revised to conform to changing law, orders, 
regulations, or management needs.
    (b) Public participation activities are actions initiated by the 
Forest Service to facilitate an exchange of information with the public. 
These actions include, but are not limited to, oral and written measures 
such as public notices, letters, discussion papers, and gatherings such 
as meetings, workshops, and hearings.
    (c) Standards, criteria, and guidelines means those written 
policies, instructions, and orders, originated by the Forest Service and 
issued in the Forest Service Manual which establish the general 
framework for the management and conduct of Forest Service programs.



Sec. 216.3  Applicability; relationship to other public participation opportunities.

    (a) The requirements described in this part do not apply to--
    (1) Rules or regulations promulgated according to the requirements 
of the Administrative Procedure Act, 5 U.S.C. 553;
    (2) Instructions, procedures, and other material issued in Forest 
Service Handbooks; and
    (3) Proposed Manual directives which provide guidance and procedures 
on administrative support activities such as personnel matters, 
procurement, service contracting, and other routine business operations 
of the agency.
    (b) This part does not supersede or replace the requirements of the 
National Environmental Policy Act as set forth in 40 CFR part 1500 and 
chapter 1950 of the Forest Service Manual. The requirements described in 
this part do not apply where equivalent public notice and opportunity 
for comment on the contents of a proposed Manual directive are provided 
during compliance with NEPA procedures.

[[Page 44]]

    (c) The direction for management of many Forest Service programs is 
developed with public participation during land and resource management 
planning part 219, and other activities. The relevant results of such 
public participation shall be used in formulation of Forest Service 
Manual directives to avoid duplicating public participation efforts.
    (d) In addition to the opportunity for formal public review and 
comment offered in this part, the public may informally review and 
comment on Manual material at other times.
    (e) These regulations do not prevent informal consultation with 
selected Federal, State, and local governments and the public when such 
consultation is deemed appropriate in formulating Manual material.



Sec. 216.4  Determining the need for formal public review of proposed Manual directives.

    (a) Agency officials responsible for formulating Manual directives 
containing applicable standards, criteria, and guidelines shall 
determine whether substantial public interest or controversy concerning 
a proposed Manual directive can be expected.
    (b) The following shall be considered in making this determination:
    (1) Direct written or oral communication with those known to be 
interested in the proposal;
    (2) The degree to which the proposal is likely to adversely or 
beneficially affect the general public as well as those known to be 
interested in the proposal;
    (3) The amount of change the proposal represents from current 
direction;
    (4) The extent of recent news media coverage on subjects related to 
the proposal; and
    (5) The amount of interest or controversy expressed on previous 
proposals on the same or similar subjects.



Sec. 216.5  Documentation.

    The responsible Forest Service official shall document the results 
of the determination made pursuant to Sec. 216.4(b), and the reasons 
therefor, in a concise written summary. The summary may be combined with 
documentation required by NEPA procedures or other applicable law or 
policy. The summary shall be prepared and filed at the same location as 
the Forest Service official responsible for developing the Manual 
directive.



Sec. 216.6  Notice and comment procedures for proposed Manual directives identified for formal public review.

    (a) Where it is determined that substantial public interest or 
controversy concerning a proposed Manual directive can be expected, the 
following minimum requirements for notifying the public and giving 
opportunity to comment on the proposal apply:
    (1) National Forest and Ranger District Proposals. The responsible 
official shall determine appropriate means of notifying the public. This 
may include, but is not limited to, legal notice in a newspaper of 
general circulation or press release. The public shall have a minimum of 
30 calendar days to review and comment on the proposal.
    (2) Regional, Station, and Area Proposals. The responsible official 
shall determine appropriate means of notifying the public. This may 
include, but is not limited to, notice and summary of the proposal in 
the Federal Register, legal notice in one or more newspapers of general 
circulation, or press release. The public shall have a minimum of 30 
calendar days to review and comment on the proposal.
    (3) National Proposals. The responsible official shall publish a 
notice and summary of the proposal in the Federal Register, followed by 
a minimum of 60 calendar days for public review and comment.
    (b) Agency officials will give direct notice to Federal, State, and 
local governments and to the public known to be interested in the 
proposal. Along with the notice, the responsible official shall also 
provide either a complete proposal or a summary of the proposal for 
review.
    (c) The responsible Forest Service official may conduct additional 
public participation activities related to the proposed Manual directive 
as are deemed appropriate and necessary.
    (d) Comments received from the public shall be analyzed and 
considered in

[[Page 45]]

the formulation and preparation of the final Manual directive.
    (e) The final Manual directive or a summary shall be sent to those 
who offered comments on the proposed directive and further publicized as 
deemed appropriate by the responsible official.



Sec. 216.7  Exemption of proposed Manual directives from normal procedures.

    When it is found for good cause that an exigency exists, an interim 
Manual directive that is determined to be of substantial public interest 
or expected controversy may be issued in advance of providing 
opportunity for public comment. However, as soon as practicable after 
issuance, the interim Manual directive will be made available for public 
review and comment as described in Sec. 216.6. In making the Manual 
directive available, the responsible official shall state why the 
interim directive was issued prior to obtaining public comments.



Sec. 216.8  Availability of proposed Manual directives identified for formal public review.

    As a minimum, review copies of proposed Manual directives determined 
to be of substantial public interest or expected controversy shall be 
available in the Forest Supervisor's Office and District Rangers' 
Offices when National Forest proposals are involved; in the Regional 
Office and Forest Supervisors' Offices when regional proposals are 
involved; and in Regional Offices and National Headquarters when 
national proposals are involved. When Manual directives involve Forest 
Service Research or State and Private Forestry programs, review copies 
shall be available at comparable administrative offices.



PART 217--APPEAL OF REGIONAL GUIDES AND NATIONAL FOREST LAND AND RESOURCE MANAGEMENT PLANS--Table of Contents




Sec.
217.1  Purpose and scope.
217.2  Definitions.
217.3  Decisions subject to appeal.
217.4  Decisions not subject to appeal.
217.5  Giving notice of decisions subject to appeal.
217.6  Participants.
217.7  Levels of appeal.
217.8  Appeal process sequence.
217.9  Content of a notice of appeal.
217.10  Implementation and stays of decisions.
217.11  Dismissal without review.
217.12  Resolution of issues.
217.13  Reviewing officer authority.
217.14  Intervention.
217.15  Appeal record.
217.16  Decision.
217.17  Discretionary review.
217.18  Policy in event of judicial proceedings.
217.19  Applicability and effective date.

    Authority: 16 U.S.C. 551, 472.

    Source: 54 FR 3357, Jan. 23, 1989, unless otherwise noted.



Sec. 217.1  Purpose and scope.

    (a) This part provides a process by which a person or organization 
interested in the management of the National Forest System may 
administratively appeal decisions to approve, amend, or revise a 
National Forest land and resource management plan or approve or amend a 
regional guide prepared pursuant to 36 CFR part 219. This part 
establishes who may appeal such decisions, the kind of decisions that 
may be appealed, the responsibilities of the participants in an appeal, 
and the procedures that apply. This part provides a review of such 
decisions by an official at the next administrative level.
    (b) This part complements, but does not replace, numerous 
opportunities to participate in and influence agency decisionmaking 
provided pursuant to the National Environmental Policy Act of 1969 
(NEPA) and the associated implementing regulations and procedures in 40 
CFR parts 1500-1508, 36 CFR parts 215, 216, and 219, Forest Service 
Manual Chapters 1920 and 1950, and Forest Service Handbooks 1909.12 and 
1909.15.

[58 FR 58915, Nov. 4, 1993]



Sec. 217.2  Definitions.

    For the purposes of this part--
    Appellant is the term used to refer to a person or organization (or 
an authorized agent or representative acting on their behalf) filing a 
notice of appeal under this part.
    Deciding Officer means the Forest Service line officer who has the 
delegated authority and responsibility to

[[Page 46]]

make the decision being questioned under these rules.
    Decision document means a written document that a Deciding Officer 
signs to execute a decision subject to review under this part. 
Specifically a Record of Decision or a Decision Notice.
    Decision documentation refers to the decision document and all 
relevant environmental and other analysis documentation on which the 
Deciding Officer based a decision that is at issue under the rules of 
this part. Decision documentation includes, but is not limited to, 
environmental assessments, findings of no significant impact, 
environmental impact statements, land and resource management plans, 
regional guides, documents incorporated by reference in any of the 
preceding documents, and drafts of these documents released for public 
review and comment.
    Decision Notice means the written document signed by a Deciding 
Officer when the decision was preceded by preparation of an 
environmental assessment (40 CFR 1508.9).
    Decision review or review is the term used to refer to the process 
provided in this part by which a higher level officer reviews a decision 
of a subordinate officer in response to a notice of appeal.
    Forest Service line officer. The Chief of the Forest Service or a 
Forest Service official who serves in a direct line of command from the 
Chief and who has the delegated authority to make and execute decisions 
under this subpart. Specifically, for the purposes of this subpart, a 
Forest Service employee who hold one of the following offices and 
titles: Forest Supervisor, Deputy Forest Supervisor, Regional Forester, 
Deputy Regional Forester Deputy Chief, Associate Deputy Chief, Associate 
Chief, or the Chief of the Forest Service.
    Intervenor is an individual who, or organization that, is interested 
in or potentially affected by a decision under appeal pursuant to this 
part, who has made a timely request to intervene in that appeal.
    Legal notice. A notice of a decision appealable under this part 
published in the Federal Register or in the legal notices section of a 
newspaper of general circulation as required by Sec. 217.5 of this part.
    Notice of appeal is the written document filed with a Reviewing 
Officer by one who objects to a decision covered by this part and who 
requests review by the next higher line officer.
    Participants include appellants, intervenors, the Deciding Officer, 
and the Reviewing Officer.
    Record of Decision is the document signed by a Deciding Officer 
recording a decision that was preceded by preparation of an 
environmental impact statement (40 CFR 1505.2).
    Reviewing Officer is the line officer one administrative level 
higher than the Deciding Officer or, in the case of a discretionary 
review, one level higher than the line officer who issued a first-level 
appeal decision.

[54 FR 3357, Jan. 23, 1989; 54 FR 13807, Apr. 5, 1989, as amended at 55 
FR 7895, Mar. 6, 1990; 58 FR 58915, Nov. 4, 1993]



Sec. 217.3  Decisions subject to appeal.

    (a) The following decisions are subject to appeal under this part:
    (1) Decisions to approve, amend, or revise a National Forest Land 
and Resource Management Plan including project or activity decisions for 
which environmental effects have been analyzed and disclosed within a 
final EIS and documented in a Record of Decision including approval, 
significant amendments, or revisions of a land and resource management 
plan.
    (2) Decisions to approve or amend a regional guide prepared pursuant 
to 36 CFR part 219 and documented in a Decision Notice or Record of 
Decision are subject to appeal under this part, except as provided in 
Sec. 217.4.
    (b) Decisions as defined in paragraph (a) of this section and 
documented in a Decision Notice or a Record of Decision that are made by 
a subordinate Forest Service staff officer acting within delegated 
authority are considered to be decisions of the Forest Service line 
officer.

[58 FR 58915, Nov. 4, 1993]



Sec. 217.4  Decisions not subject to appeal.

    The following decisions are not subject to appeal under this part.

[[Page 47]]

    (a) Decisions on projects or activities implementing National Forest 
Land and Resource Management Plans including project decisions that 
include a non-significant amendment to a National Forest Land and 
Resource Management Plan.
    (b) Preliminary planning decisions or preliminary decisions as to 
National Environmental Policy Act or National Forest Management Act 
processes made prior to release of final plans, guides, and 
environmental documents.
    (c) Recommendations of Forest Service line officers to higher 
ranking Forest Service or Departmental officers or to other entities 
having final authority to implement the recommendations in question, 
such as wilderness and wild and scenic river recommendations.

[58 FR 58915, Nov. 4, 1993]



Sec. 217.5  Giving notice of decisions subject to appeal.

    (a) For decisions subject to appeal under this part, Deciding 
Officers shall promptly mail the appropriate decision document 
(Sec. 217.3(a)(1)) to those who, in writing, have requested it, and to 
those who are known to have participated in the decisionmaking process.
    (b) The Deciding Officer shall also give notice of decisions 
appealable under this part as follows:
    (1) For all initial decisions of the Chief, notice shall be 
published in the Federal Register.
    (2) For all other decisions, legal notice of the decision shall be 
published in a newspaper of general circulation identified pursuant to 
the requirements of paragraph (d) of this section. Deciding Officers 
may, at their discretion, also publish notice of their decisions in 
additional newspapers. Where a Deciding Officer elects to publish such 
additional notices, they shall be published after an initial legal 
notice has been published in the principal newspaper identified in the 
biannual Federal Register notice provided for in paragraph (d) of this 
section. Any such additional newspaper notices shall indicate the date 
that the appeal period ends, which shall be calculated based on the date 
of publication of the initial notice in the principal newspaper 
identified in the biannual Federal Register notice.
    (c) All notices published pursuant to this section shall include a 
concise description of the decision made by title or subject matter, the 
date of the decision, the name and title of the official making the 
decision, and information on how to obtain a copy of the decision, and 
shall specify that the appeal period begins the day following the 
notice's publication as provided for in Sec. 217.8(b)(1).
    (d) At least twice annually, in April and in October, each 
responsible Forest Service officer shall, through Federal Register 
notice, advise the public of the principal newspaper to be utilized for 
publishing legal notices required by this section. The Federal Register 
notice shall also list all additional newspapers which the Deciding 
Officer expects to use for purposes of providing additional notice 
pursuant to paragraph (b) of this section.

[54 FR 3357, Jan. 23, 1989, as amended at 55 FR 7895, Mar. 6, 1990; 56 
FR 4918, Feb. 6, 1991]



Sec. 217.6  Participants.

    (a) Other than Forest Service employees, any person or any non-
Federal organization or entity may challenge a decision covered by this 
part and request a review by the Forest Service line officer at the next 
administrative level.
    (b) An intervenor as defined in Sec. 217.2 of the subpart.



Sec. 217.7  Levels of appeal.

    (a) Decisions made by the Chief. If the Chief of the Forest Service 
is the Deciding Officer, the notice of appeal is filed with the 
Secretary of Agriculture. Review by the Secretary is wholly 
discretionary. Within 15 days of receipt of a notice of appeal, the 
Secretary shall determine whether or not to review the decision in 
question. If the Secretary has not decided to review the Chief's 
decision by the expiration of the 15-day period, the requester(s) shall 
be notified by the Secretary's office that the Chief's decision is the 
final administrative decision of the Department of Agriculture. When the 
Secretary elects to review an initial decision made by the Chief, the 
Secretary shall conduct the review in accordance with the first level 
appeal procedures outlined in this rule.

[[Page 48]]

    (b) Decisions made by Forest Supervisors and Regional Foresters. The 
levels of available review are as follows:
    (1) If the decision is made by a Forest Supervisor, the notice of 
appeal is filed with the Regional Forester;
    (2) If the decision is made by a Regional Forester, the notice of 
appeal is filed with the Chief of the Forest Service.
    (c) Discretionary review of dismissal decisions. Dismissal decisions 
rendered by Forest Service line officers pursuant to this part 
(Sec. 217.11) are subject to discretionary review as follows:
    (1) If the initial Reviewing Officer was the Regional Forester, the 
Chief has discretion to review.
    (2) If the Reviewing Officer was the Chief, the Secretary of 
Agriculture has discretion to review.
    (d) Discretionary review of appeal decisions. Appeal decisions 
rendered by Regional Foresters and the Chief pursuant to this part are 
subject to discretionary review as follows:
    (1) If the Reviewing Officer was the Regional Forester, the Chief 
has discretion to review.
    (2) If the Reviewing Officer was the Chief, the Secretary of 
Agriculture has discretion to review.

[54 FR 3357, Jan. 23, 1989, as amended at 54 FR 34509, Aug. 21, 1989; 58 
FR 58915, Nov. 4, 1993]



Sec. 217.8  Appeal process sequence.

    (a) Filing procedures. To appeal a decision under this part, a 
person or organization must:
    (1) File a written notice of appeal, in duplicate, with the next 
higher line officer in accordance with the provisions of Sec. 217.9 of 
this part.
    (2) File the notice of appeal within 45 days of the date specified 
in the published legal notice for non-significant amendments to land and 
resource management plans documented in a Decision Notice or Record of 
Decision.
    (3) File the notice of appeal within 90 days of the date specified 
in the published legal notice for land and resource management plan 
approvals, significant amendments, or revisions, and for other 
programmatic decisions documented in a Record of Decision.
    (b) Computation of time periods. (1) The day after the published 
notices required in Sec. 217.5(b) is the first day of the appeal period 
provided for in paragraphs (a)(2) and (a)(3) of this section. All other 
time periods applicable to this part are tied to the filing of a notice 
of appeal and begin on the first day following that filing.
    (2) All time periods in this rule are to be computed using calendar 
days. Saturdays, Sundays, and Federal holidays are included in computing 
the time period for filing a notice of appeal; however, when the filing 
period would expire on a Saturday, Sunday, or Federal holiday, the 
filing time is extended to the end of the next Federal working day.
    (c) Evidence of timely filing. It is the responsibility of the 
appellant to file the notice on or before the last day of the filing 
period. In the event of question, a legible postmark will be considered 
evidence of timely filing. Where postmarks are illegible, the Reviewing 
Officer shall rule on the timely filing of the appeal. Notices of appeal 
that are filed before the filing period specified in the published legal 
notice shall be accepted, but premature filing does not affect 
timeframes specified in this rule.
    (d) Time extensions. (1) The 45-day/90-day filing periods for a 
notice of appeal are not extendable.
    (2) Time extensions are not permitted except as provided in 
Secs. 217.12, 217.13, and 217.17 of this subpart.
    (e) Upon receipt of a timely Notice of Appeal, the Reviewing Officer 
shall immediately forward a copy of it to the Deciding Officer.
    (f) Appeal decision. Unless time has been extended as provided for 
in Secs. 217.12 and 217.13, the Reviewing Officer shall not exceed the 
following time periods for rendering an appeal decision:
    (1) An appeal of a land and resource management plan approval, 
significant amendment, or revision, or on a programmatic decision 
documented in a Record of Decision, not more than 160 days from the date 
the notice of appeal was filed.
    (2) In the event of multiple appeals of the same decision, the 
appeal decision

[[Page 49]]

date shall be calculated from the filing date of the last notice of 
appeal.

[54 FR 3357, Jan. 23, 1989, as amended at 55 FR 7895, Mar. 6, 1990; 56 
FR 4918, Feb. 6, 1991; 58 FR 58916, Nov. 4, 1993]



Sec. 217.9  Content of a notice of appeal.

    (a) It is the responsibility of those who appeal a decision under 
this part to provide a Reviewing Officer sufficient narrative evidence 
and argument to show why the decision by the lower level officer should 
be changed or reversed.
    (b) At a minimum, a written notice of appeal filed with the 
Reviewing Officer must:
    (1) State that the document is a Notice of Appeal filed pursuant to 
36 CFR part 217;
    (2) List the name, address, and telephone number of the appellant;
    (3) Identify the decision about which the requester objects;
    (4) Identify the document in which the decision is contained by 
title and subject, date of the decision, and name and title of the 
Deciding Officer.
    (5) Identify specifically that portion of the decision or decision 
document to which the requester objects;
    (6) State the reasons for objecting, including issues of fact, law, 
regulation, or policy, and, if applicable, specifically how the decision 
violates law, regulation, or policy; and
    (7) Identify the specific change(s) in the decision that the 
appellant seeks.

[54 FR 3357, Jan. 23, 1989, as amended at 55 FR 7895, Mar. 6, 1990; 56 
FR 4918, Feb. 6, 1991]



Sec. 217.10  Implementation and stays of decisions.

    (a) Implementation of any decision subject to appeal pursuant to 
this part shall not occur for 7 calendar days following publication of 
the legal notice of the decision as required in this part.
    (b) Requests to stay the approval of land and resource management 
plans prepared pursuant to 36 CFR part 219 shall not be granted. 
However, requests to stay implementation of a project or activity 
included in such a plan will be considered as provided for in paragraph 
(c).
    (c) Where a project or activity would be implemented before an 
appeal decision could be issued, the Reviewing Officer shall consider 
written requests to stay implementation of that decision pending 
completion of the review.
    (d) To request a stay of implementation, an appellant must--
    (1) File a written request with the Reviewing Officer;
    (2) Simultaneously send a copy of the stay request to any other 
appellant(s), intervenor(s), and to the Deciding Officer; and
    (3) Provide a written justification of the need for a stay, which at 
a minimum includes the following:
    (i) A description of the specific project(s), activity(ies), or 
action(s) to be stopped.
    (ii) Specific reasons why the stay should be granted in sufficient 
detail to permit the Reviewing Officer to evaluate and rule upon the 
stay request, including at a minimum:
    (A) The specific adverse effect(s) upon the requester;
    (B) Harmful site-specific impacts or effects on resources in the 
area affected by the activity(ies) to be stopped; and
    (C) How the cited effects and impacts would prevent a meaningful 
decision on the merits.
    (e) The Reviewing Officer shall rule on stay requests within 10 days 
of receipt of a request.
    (f) In deciding a stay request, a Reviewing Officer shall consider:
    (1) Information provided by the requester pursuant to paragraph (c) 
of this section;
    (2) The effect that granting a stay would have on preserving a 
meaningful appeal on the merits;
    (3) Any information provided by the Deciding Officer or other party 
to the appeal in response to the stay request; and
    (4) Any other factors the Reviewing Officer considers relevant to 
the decision.
    (g) A Reviewing Officer must issue a written decision on a stay 
request.
    (1) If a stay is granted, the stay shall specify the specific 
activities to be stopped, duration of the stay, and reasons for granting 
the stay.
    (2) If a stay is denied in whole or in part, the decision shall 
specify the reasons for the denial.

[[Page 50]]

    (3) A copy of a decision on a stay request shall be sent to the 
appellant(s), intervenor(s), and the Deciding Officer.
    (h) A decision may be implemented during a review unless the 
Reviewing Officer has granted a stay.
    (i) A Reviewing Officer's decision on a request to stay 
implementation of a project or activity included in a Land and Resource 
Management Plan or significant amendment or revision to the plan is not 
subject to discretionary review at the next administrative level.

[54 FR 3357, Jan. 23, 1989, as amended at 55 FR 7896, Mar. 6, 1990; 56 
FR 4918, Feb. 6, 1991; 58 FR 58916, Nov. 4, 1993]



Sec. 217.11  Dismissal without review.

    (a) A Reviewing Officer shall dismiss an appeal and close the appeal 
record without decision on the merits when:
    (1) The notice is not filed within the time specified in Sec. 217.8 
of this part;
    (2) The requested relief or change cannot be granted under law, 
fact, or regulation existing when the decision was made.
    (3) The notice of appeal fails to meet the minimum requirements of 
Sec. 217.9 of this part to such an extent that the Reviewing Officer 
lacks adequate information on which to base a decision;
    (4) The decision at issue is being appealed under another 
administrative proceeding;
    (5) The decision is excluded from appeal pursuant to Sec. 217.4 of 
this part;
    (6) The appellant(s) withdraws the appeal;
    (7) The Deciding Officer withdraws the appealed decision; or
    (8) The Chief has invoked the provisions of Sec. 217.18 of this 
part.
    (b) The Reviewing Officer shall give written notice of a dismissal 
to all participants that includes an explanation of why the appeal is 
dismissed.
    (c) A Reviewing Officer's dismissal decision is subject to 
discretionary review at the next administrative level as provided for in 
Sec. 217.7(d) of this part, except when a dismissal decision results 
from withdrawal of an appeal by an appellant or withdrawal of the 
initial decision by the Deciding Officer.

[54 FR 3357, Jan. 23, 1989, as amended at 55 FR 7896, Mar. 6, 1990; 56 
FR 4918, Feb. 6, 1991]



Sec. 217.12  Resolution of issues.

    (a) When a decision is appealed, appellants or intervenors may 
request meetings with the Deciding Officer to discuss the appeal, either 
together or separately, to narrow issues, agree on facts, and explore 
opportunities to resolve the issues by means other than review and 
decision on the appeal. Reviewing Officers may, on their own initiative, 
request the Deciding Officer to meet with participants to discuss the 
appeal and explore opportunities to resolve the issues. However, 
Reviewing Officers may not participate in such discussions. At the 
request of the Deciding Officer, or on their own initiative, Reviewing 
Officers may extend the time periods for review to allow for conduct of 
meaningful negotiations. Such extensions may occur only after the time 
period for intervention and for the Deciding Officer to transmit the 
decision documentation has elapsed. In granting an extension, the 
Reviewing Officer must establish a specific time period for the conduct 
of negotiations.
    (b) The Deciding Officer has the authority to withdraw a decision, 
in whole or in part, during the appeal. Where a Deciding Officer decides 
to withdraw a decision, all participants to the appeal will be notified 
that the case is dismissed. A Deciding Officer's subsequent decision to 
reissue or modify the withdrawn decision constitutes a new decision and 
is subject to appeal under this part.

[54 FR 3357, Jan. 23, 1989, as amended at 56 FR 46550, Sept. 13, 1991]



Sec. 217.13  Reviewing officer authority.

    (a) Discretion to establish procedures. A Reviewing Officer may 
issue such determinations and procedural instructions as appropriate to 
ensure orderly and expeditious conduct of the appeal process as long as 
they are in accordance with all the applicable rules and procedures of 
this part.
    (1) In appeals involving intervenors, the Reviewing Officer may 
prescribe special procedures to conduct the appeal.
    (2) In case of multiple appeals of a decision, the Reviewing Officer 
may prescribe special procedures as necessary to conduct the review.

[[Page 51]]

    (3) All participants shall receive notice of any procedural 
instructions or decisions governing conduct of an appeal.
    (4) Procedural instructions and decisions are not subject to review 
by higher level officers.
    (b) Consolidation of multiple appeals. (1) The Reviewing Officer 
shall determine whether to issue one appeal decision or separate 
decisions in cases involving multiple notices of appeal under this part, 
or if the same decision is also under appeal pursuant to 36 CFR part 
251. In the event of a consolidated decision, the Reviewing Officer 
shall give advance notice to all who have appealed the decision.
    (2) Decisions to consolidate an appeal decision are not subject to 
review by higher level officers.
    (c) Requests for information. At any time during the appeal process, 
the Reviewing Officer at the levels specified in Sec. 217.7 (a), (b), or 
(c)(1) of this part may extend the time periods for review to request 
additional information from an appellant, intervenor, or the Deciding 
Officer. Such requests shall be limited to obtaining and evaluating 
information needed to clarify issues raised. The Reviewing Officer shall 
notify all participants of such requests and provide them opportunity to 
comment on the information obtained.

[54 FR 3357, Jan. 23, 1989, as amended at 54 FR 34509, Aug. 21, 1989]



Sec. 217.14  Intervention.

    (a) For a period not to exceed 20 days following the filing of a 
notice of appeal, the Reviewing Officer shall accept requests to 
intervene in the appeal from any interested or potentially affected 
person or organization. Requests to intervene in an appeal during the 
discretionary review (Sec. 217.7(d)) shall not be accepted.
    (b) Upon receiving such a request, the Reviewing Officer shall 
promptly acknowledge the request, in writing, and mail the Notice of 
Appeal to the intervenor.
    (c) The Reviewing Officer shall accept into the appeal record 
written comments about the appeal from an intervenor for a period not to 
exceed 30 days following acknowledgement of the intervention request 
(Sec. 217.14(b)).
    (d) Intervenors must concurrently furnish copies of all submissions 
to the appellant. Failure to provide copies may result in removal of a 
submission from the appeal record.
    (e) An intervenor cannot continue an appeal if the appeal is 
dismissed (Sec. 217.11).

[54 FR 3357, Jan. 23, 1989, as amended at 58 FR 58916, Nov. 4, 1993]



Sec. 217.15  Appeal record.

    (a) Upon receipt of a copy of the notice of appeal, the Deciding 
Officer shall assemble the relevant decision documentation (Sec. 217.2) 
and pertinent records, and transmit them to the Reviewing Officer within 
30 days in appeal of non-significant amendments to land and resource 
management plans or within 60 days for appeals of land and resource 
management plan approvals, significant amendments, or revisions, and for 
other programmatic decisions. The time period for forwarding the 
decision documentation is not extendable.
    (b) In transmitting the decision documentation to the Reviewing 
Officer, the Deciding Officer shall indicate where the documentation 
addresses the issues raised in the notice of appeal. The Deciding 
Officer shall provide a copy of the transmittal letter to the 
appellant(s) and intervenor(s).
    (c) The review of decisions appealed under this part focuses on the 
documentation developed by the Deciding Officer in reaching decisions. 
The records on which the Reviewing Officer shall conduct the review 
consists of the notice of appeal, any written comments submitted by 
intervenors, the official documentation prepared by the Deciding Officer 
in the decisionmaking process, the Deciding Officer's letter 
transmitting those documents to the Reviewing Officer, and any appeal 
related correspondence, including additional information requested by 
the Reviewing Officer pursuant to Sec. 217.13 of this part.
    (d) It is the responsibility of the Reviewing Officer to maintain in 
one location a file of documents related to the decision and appeal.
    (e) Closing the record. (1) In appeals with intervenors, the appeal 
record shall close upon receipt of comments

[[Page 52]]

on the appeal by the intervenor, but not later than the end of the 30-
day period provided for intervenors to submit comments (Sec. 217.14(c)).
    (2) In appeals without intervenors, the appeal record shall close 
upon receipt of the decision documentation from the Deciding Officer, 
unless time has been extended as provided for in Secs. 217.12 and 
217.13.
    (f) The appeal record is open to public inspection at any time 
during the review.
    (g) In appeals involving initial decisions of the Chief (217.7(a)), 
the establishment of an administrative record as defined in paragraph 
(a) of this section shall not begin unless the Secretary elects to 
review the appeal. Except for the initial notice of appeal, any filings 
made previous to the Secretary's election to review will not be 
accepted.

[54 FR 3357, Jan. 23, 1989, as amended at 54 FR 34509, Aug. 21, 1989; 55 
FR 7896, Mar. 6, 1990; 56 FR 4918, Feb. 6, 1991; 58 FR 58916, Nov. 4, 
1993]



Sec. 217.16  Decision.

    (a) The Reviewing Officer shall not issue a decision prior to the 
record closing (Sec. 217.15(e)).
    (b) The Reviewing Officer's decision shall, in whole or in part, 
affirm or reverse the original decision. The Reviewing Officer's 
decision may include instructions for further action by the Deciding 
Officer.
    (c) An appeal decision must be consistent with applicable law, 
regulations, and orders.
    (d) The Reviewing Officer shall send a copy of the decision to all 
participants and to others upon request.
    (e) Unless a higher level officer exercises the discretion to review 
a Receiving Officer's decision as provided at Sec. 217.7(d), the 
Reviewing Officer's decision is the final administrative decision of the 
Department of Agriculture and the decision is not subject to further 
review under this part.

[54 FR 3357, Jan. 23, 1989, as amended at 58 FR 58916, Nov. 4, 1993]



Sec. 217.17  Discretionary review.

    (a) Petitions or requests for discretionary review shall not, in and 
of themselves, give rise to a decision to exercise discretionary review. 
In electing to exercise discretion, a Reviewing Officer should consider, 
but is not limited to, such factors as controversy surrounding the 
decision, the potential for litigation, whether the decision is 
precedential in nature, or whether the decision modifies existing or 
establishes new policy.
    (b) As provided for a Secs. 217.7 (c) and (d), 217.10(h), and 
217.11, certain dismissal decisions rendered by Forest Service line 
officers, and appeal decisions rendered by Regional Foresters and the 
Chief (Sec. 217.16) are subject to discretionary review at the next 
highest administrative level. Within one day following the date of any 
decision subject to such discretionary review, the Reviewing Officer 
shall forward a copy of the decision and the decision documents 
(Sec. 217.2) upon which the appeal was predicated to the next higher 
officer.
    (c) When a stay of implementation is in effect, it shall remain in 
effect until the end of the 15-day period in which a higher level 
officer must decide whether or not to review a Reviewing Officer's 
decision (Sec. 217.17(d)). If the higher level officer decides to review 
the Reviewing Officer's decision, the stay will remain in effect until a 
decision is issued (Sec. 217.17(f)), or until the end of the 30-day 
review period provided in Sec. 217.17(g) whichever is less.
    (d) The higher level officer shall have 15 days from date of receipt 
to decide whether or not to review a lower level appeal decision, and 
may request and use the appeal record in deciding whether or not to 
review the decision, including decisions to dismiss. If the record is 
requested, the 15-day period is suspended at that point. The lower level 
Reviewing Officer shall forward it within 5 days of the request. Upon 
receipt, the higher level officer shall have 15 days to decide whether 
or not to review the lower level decision. If that officer takes no 
action by the expiration of the 15-day period or the additional 15-day 
period following receipt of the record, the decision of the Reviewing 
Officer stands as the final administrative decision of the Department of 
Agriculture. All participants shall be notified by the discretionary 
level whether or not the decision will be reviewed.

[[Page 53]]

    (e) Where an official exercises the discretion in Sec. 217.7 (d) or 
(e) of this subpart to review a dismissal or appeal decision, the 
discretionary review shall be made on the existing appeal record and the 
lower level Reviewing Officer's appeal decision. The record shall not be 
reopened to accept additional submissions from any source including the 
Reviewing Officer whose appeal decision is being reviewed.
    (f) The discretionary level Reviewing Officer shall conclude the 
review within 30 days of the date of the notice issued to participants 
that the lower decision will be reviewed, and shall send a copy of the 
review decision to all participants.
    (g) If a discretionary review decision is not issued by the end of 
the 30-day review period, appellants and intervenors shall be deemed to 
have exhausted their administrative remedies for purposes of judicial 
review. In such case, the participants shall be notified by the 
discretionary level.

[54 FR 3357, Jan. 23, 1989; 54 FR 13807, Apr. 5, 1989, as amended at 54 
FR 34510, Aug. 21, 1989; 55 FR 7896, Mar. 6, 1990; 58 FR 58916, Nov. 4, 
1993]



Sec. 217.18  Policy in event of judicial proceedings.

    It is the position of the Department of Agriculture that any filing 
for Federal judicial review of a decision subject to review under this 
part is premature and inappropriate unless the plaintiff has first 
sought to invoke and exhaust the procedures available under this part. 
This position may be waived upon a written finding by the Chief.



Sec. 217.19  Applicability and effective date.

    (a) The appeal procedures established in this part apply to all 
appealable decision documents published on or after February 6, 1991.
    (b) Notices of appeal filed under 36 CFR 211.16, 36 CFR 211.18, 36 
CFR 228.14, and 36 CFR 292.15 prior to February 22, 1989 remain subject 
to those procedures.

[54 FR 3357, Jan. 23, 1989, as amended at 56 FR 46550, Sept. 13, 1991]



PART 219--PLANNING--Table of Contents




 Subpart A--National Forest System Land and Resource Management Planning

Sec.
219.1  Purpose and principles.
219.2  Scope and applicability.
219.3  Definitions and terminology.
219.4  Planning levels.
219.5  Interdisciplinary approach.
219.6  Public participation.
219.7  Coordination with other public planning efforts.
219.8  Regional planning procedure.
219.9  Regional guide content.
219.10  Forest planning--general procedure.
219.11  Forest plan content.
219.12  Forest planning--process.
219.13  Forest planning--resource integration requirements.
219.14  Timber resource land suitability.
219.15  Vegetation management practices.
219.16  Timber resource sale schedule.
219.17  Evaluation of roadless areas.
219.18  Wilderness management.
219.19  Fish and wildlife resource.
219.20  Grazing resource.
219.21  Recreation resource.
219.22  Mineral resource.
219.23  Water and soil resource.
219.24  Cultural and historic resource.
219.25  Research natural areas.
219.26  Diversity.
219.27  Management requirements.
219.28  Research.
219.29  Transition period.

Subpart B--[Reserved]



 Subpart A--National Forest System Land and Resource Management Planning

    Authority:  Secs. 6 and 15, 90 Stat. 2949, 2952, 2958 (16 U.S.C. 
1604, 1613); and 5 U.S.C. 301.

    Source: 47 FR 43037, Sept. 30, 1982, unless otherwise noted.



Sec. 219.1  Purpose and principles.

    (a) The regulations in this subpart set forth a process for 
developing, adopting, and revising land and resource management plans 
for the National Forest System as required by the Forest and Rangeland 
Renewable Resources Planning Act of 1974, as amended (hereafter, RPA). 
These regulations prescribe how land and resource management planning is 
to be conducted on National Forest System lands. The resulting plans 
shall provide

[[Page 54]]

for multiple use and sustained yield of goods and services from the 
National Forest System in a way that maximizes long term net public 
benefits in an environmentally sound manner.
    (b) Plans guide all natural resource management activities and 
establish management standards and guidelines for the National Forest 
System. They determine resource management practices, levels of resource 
production and management, and the availability and suitability of lands 
for resource management. Regional and forest planning will be based on 
the following principles:
    (1) Establishment of goals and objectives for multiple-use and 
sustained-yield management of renewable resources without impairment of 
the productivity of the land;
    (2) Consideration of the relative values of all renewable resources, 
including the relationship of nonrenewable resources, such as minerals, 
to renewable resources;
    (3) Recognition that the National Forests are ecosystems and their 
management for goods and services requires an awareness and 
consideration of the interrelationships among plants, animals, soil, 
water, air, and other environmental factors within such ecosystems;
    (4) Protection and, where appropriate, improvement of the quality of 
renewable resources;
    (5) Preservation of important historic, cultural, and natural 
aspects of our national heritage;
    (6) Protection and preservation of the inherent right of freedom of 
American Indians to believe, express, and exercise their traditional 
religions;
    (7) Provision for the safe use and enjoyment of the forest resources 
by the public;
    (8) Protection, through ecologically compatible means, of all forest 
and rangeland resources from depredations by forest and rangeland pests;
    (9) Coordination with the land and resource planning efforts of 
other Federal agencies, State and local governments, and Indian tribes;
    (10) Use of a systematic, interdisciplinary approach to ensure 
coordination and integration of planning activities for multiple-use 
management;
    (11) Early and frequent public participation;
    (12) Establishment of quantitative and qualitative standards and 
guidelines for land and resource planning and management;
    (13) Management of National Forest System lands in a manner that is 
sensitive to economic efficiency; and
    (14) Responsiveness to changing conditions of land and other 
resources and to changing social and economic demands of the American 
people.



Sec. 219.2  Scope and applicability.

    The regulations in this subpart apply to the National Forest System, 
which includes special areas, such as wilderness, wild and scenic 
rivers, national recreation areas, and national trails. Whenever the 
special area authorities require additional planning, the planning 
process under this subpart shall be subject to those authorities.
    (a) Unless inconsistent with special area authorities, requirements 
for additional planning for special areas shall be met through plans 
required under this subpart.
    (b) If, in a particular case, special area authorities require the 
preparation of a separate special area plan, the direction in any such 
plan may be incorporated without modification in plans prepared under 
this subpart.



Sec. 219.3  Definitions and terminology.

    For purposes of this subpart the following terms, respectively, 
shall mean:
    Allowable sale quantity: The quantity of timber that may be sold 
from the area of suitable land covered by the forest plan for a time 
period specified by the plan. This quantity is usually expressed on an 
annual basis as the ``average annual allowable sale quantity.''
    Base sale schedule: A timber sale schedule formulated on the basis 
that the quantity of timber planned for sale and harvest for any future 
decade is equal to or greater than the planned sale and harvest for the 
preceding decade, and this planned sale and harvest for any decade is 
not greater than the long-term sustained yield capacity.
    Biological growth potential: The average net growth attainable in a 
fully stocked natural forest stand.

[[Page 55]]

    Capability: The potential of an area of land to produce resources, 
supply goods and services, and allow resource uses under an assumed set 
of management practices and at a given level of management intensity. 
Capability depends upon current conditions and site conditions such as 
climate, slope, landform, soils, and geology, as well as the application 
of management practices, such as silviculture or protection from fire, 
insects, and disease.
    Corridor: A linear strip of land identified for the present or 
future location of transportation or utility rights-of-way within its 
boundaries.
    Cost efficiency: The usefulness of specified inputs (costs) to 
produce specified outputs (benefits). In measuring cost efficiency, some 
outputs, including environmental, economic, or social impacts, are not 
assigned monetary values but are achieved at specified levels in the 
least cost manner. Cost efficiency is usually measured using present net 
value, although use of benefit-cost ratios and rates-of-return may be 
appropriate.
    Diversity: The distribution and abundance of different plant and 
animal communities and species within the area covered by a land and 
resource management plan.
    Even-aged management: The application of a combination of actions 
that results in the creation of stands in which trees of essentially the 
same age grow together. Managed even-aged forests are characterized by a 
distribution of stands of varying ages (and, therefore, tree sizes) 
throughout the forest area. The difference in age between trees forming 
the main canopy level of a stand usually does not exceed 20 percent of 
the age of the stand at harvest rotation age. Regeneration in a 
particular stand is obtained during a short period at or near the time 
that a stand has reached the desired age or size for regeneration and is 
harvested. Clearcut, shelterwood, or seed tree cutting methods produce 
even-aged stands.
    Forest land: Land at least 10 percent occupied by forest trees of 
any size or formerly having had such tree cover and not currently 
developed for non-forest use. Lands developed for non-forest use include 
areas for crops, improved pasture, residential, or administrative areas, 
improved roads of any width, and adjoining road clearing and powerline 
clearing of any width.
    Goal: A concise statement that describes a desired condition to be 
achieved sometime in the future. It is normally expressed in broad, 
general terms and is timeless in that it has no specific date by which 
it is to be completed. Goal statements form the principal basis from 
which objectives are developed.
    Goods and services: The various outputs, including on-site uses, 
produced from forest and rangeland resources.
    Integrated pest management: A process for selecting strategies to 
regulate forest pests in which all aspects of a pest-host system are 
studied and weighed. The information considered in selecting appropriate 
strategies includes the impact of the unregulated pest population on 
various resources values, alternative regulatory tactics and strategies, 
and benefit/cost estimates for these alternative strategies. Regulatory 
strategies are based on sound silvicultural practices and ecology of the 
pest-host system and consist of a combination of tactics such as timber 
stand improvement plus selective use of pesticides. A basic principle in 
the choice of strategy is that it be ecologically compatible or 
acceptable.
    Long-term sustained-yield timber capacity: The highest uniform wood 
yield from lands being managed for timber production that may be 
sustained under a specified management intensity consistent with 
multiple-use objectives.
    Management concern: An issue, problem, or a condition which 
constrains the range of management practices identified by the Forest 
Service in the planning process.
    Management direction: A statement of multiple-use and other goals 
and objectives, the associated management prescriptions, and standards 
and guidelines for attaining them.
    Management intensity: A management practice or combination of 
management practices and associated costs designed to obtain different 
levels of goods and services.

[[Page 56]]

    Management practice: A specific activity, measure, course of action, 
or treatment.
    Management prescription: Management practices and intensity selected 
and scheduled for application on a specific area to attain multiple-use 
and other goals and objectives.
    Multiple use: The management of all the various renewable surface 
resources of the National Forest System so that they are utilized in the 
combination that will best meet the needs of the American people; making 
the most judicious use of the land for some or all of these resources or 
related services over areas large enough to provide sufficient latitude 
for periodic adjustments in use to conform to changing needs and 
conditions; that some lands will be used for less than all of the 
resources; and harmonious and coordinated management of the various 
resources, each with the other, without impairment of the productivity 
of the land, with consideration being given to the relative values of 
the various resources, and not necessarily the combination of uses that 
will give the greatest dollar return or the greatest unit output.
    Net public benefits: An expression used to signify the overall long-
term value to the nation of all outputs and positive effects (benefits) 
less all associated inputs and negative effects (costs) whether they can 
be quantitatively valued or not. Net public benefits are measured by 
both quantitative and qualitative criteria rather than a single measure 
or index. The maximization of net public benefits to be derived from 
management of units of the National Forest System is consistent with the 
principles of multiple use and sustained yield.
    Objective: A concise, time-specific statement of measurable planned 
results that respond to pre-established goals. An objective forms the 
basis for further planning to define the precise steps to be taken and 
the resources to be used in achieving identified goals.
    Planning area: The area of the National Forest System covered by a 
regional guide or forest plan.
    Planning period: One decade. The time interval within the planning 
horizon that is used to show incremental changes in yields, costs, 
effects, and benefits.
    Planning horizon: The overall time period considered in the planning 
process that spans all activities covered in the analysis or plan and 
all future conditions and effects of proposed actions which would 
influence the planning decisions.
    Present net value: The difference between the discounted value 
(benefits) of all outputs to which monetary values or established market 
prices are assigned and the total discounted costs of managing the 
planning area.
    Public issue: A subject or question of widespread public interest 
relating to management of the National Forest System.
    Real dollar value: A monetary value which compensates for the 
effects of inflation.
    Receipt shares: The portion of receipts derived from Forest Service 
resource management that is distributed to State and county governments, 
such as the Forest Service 25 percent fund payments.
    Responsible line officer: The Forest Service employee who has the 
authority to select and/or carry out a specific planning action.
    Sale schedule: The quantity of timber planned for sale by time 
period from an area of suitable land covered by a forest plan. The first 
period, usually a decade, of the selected sale schedule provides the 
allowable sale quantity. Future periods are shown to establish that 
long-term sustained yield will be achieved and maintained.
    Silvicultural system: A management process whereby forests are 
tended, harvested, and replaced, resulting in a forest of distinctive 
form. Systems are classified according to the method of carrying out the 
fellings that remove the mature crop and provide for regeneration and 
according to the type of forest thereby produced.
    Suitability: The appropriateness of applying certain resource 
management practices to a particular area of land, as determined by an 
analysis of the economic and environmental consequences and the 
alternative uses foregone. A unit of land may be suitable for a variety 
of individual or combined management practices.

[[Page 57]]

    Sustained-yield of products and services: The achievement and 
maintenance in perpetuity of a high-level annual or regular periodic 
output of the various renewable resources of the National Forest System 
without impairment of the productivity of the land.
    Timber production: The purposeful growing, tending, harvesting, and 
regeneration of regulated crops of trees to be cut into logs, bolts, or 
other round sections for industrial or consumer use. For purposes of 
this subpart, the term timber production does not include production of 
fuelwood.
    Uneven-aged management: The application of a combination of actions 
needed to simultaneously maintain continuous high-forest cover, 
recurring regeneration of desirable species, and the orderly growth and 
development of trees through a range of diameter or age classes to 
provide a sustained yield of forest products. Cutting is usually 
regulated by specifying the number or proportion of trees of particular 
sizes to retain within each area, thereby maintaining a planned 
distribution of size classes. Cutting methods that develop and maintain 
uneven-aged stands are single-tree selection and group selection.



Sec. 219.4  Planning levels.

    (a) General guideline. Planning requires a continuous flow of 
information and management direction among the three Forest Service 
administrative levels: national, regional, and forest. Management 
direction shall:
    (1) Include requirements for analysis to determine programs that 
maximize net public benefits, consistent with locally derived 
information about production capabilities;
    (2) Reflect production capabilities, conditions and circumstances 
observed at all levels; and
    (3) Become increasingly specific as planning progresses from the 
national to the forest level. In this structure, regional planning is a 
principal process for conveying management direction from the national 
level to the forest level and for conveying information from forest 
level to the national level. The planning process is essentially 
iterative in that the information from the forest level flows up to the 
national level where in turn information in the RPA Program flows back 
to the forest level.
    (b) Planning levels and relationships--(1) National. The Chief of 
the Forest Service shall develop the Renewable Resources Assessment and 
Program (hereafter, ``RPA Assessment and RPA Program'') according to 
sections 3 and 4 of the RPA.
    (i) RPA Assessment. The RPA Assessment shall include analysis of 
present and anticipated uses, demand for, and supply of the renewable 
resources of forest, range, and other associated lands with 
consideration of, and an emphasis on, pertinent supply, demand, and 
price relationship trends; an inventory of present and potential 
renewable resources and an evaluation of opportunities for improving 
their yield of tangible and intangible goods and services, together with 
estimates of investment costs and direct and indirect returns to the 
Federal Government; a description of Forest Service programs and 
responsibilities in research, cooperative programs, and management of 
the National Forest System; and analysis of important policy issues and 
consideration of laws, regulations, and other factors expected to 
influence and affect significantly the use, ownership, and management of 
forest, range, and other associated lands. The RPA Assessment shall be 
based on the future capabilities of forest and rangelands and shall 
include information generated during the regional, forest, and other 
planning processes.
    (ii) RPA Program. The RPA Program shall consider the costs of supply 
and the relative values of both market and nonmarket outputs. The 
alternatives considered shall include national renewable resource goals 
and quantified objectives for resource outputs and other benefits and 
shall be designed to represent a range of expenditure levels sufficient 
to demonstrate full opportunities for management. A portion of each 
national objective developed in the RPA Program shall be distributed to 
each region and be incorporated into each regional guide. Resource 
objectives shall be tentatively selected for each forest planning area. 
In formulating the objectives for each region and forest planning area, 
local supply

[[Page 58]]

capabilities and market conditions will be considered.
    (2) Regional. Each Regional Forester shall develop a regional guide. 
Regional guides shall establish regional standards and guidelines as 
required by Sec. 219.9(a). Consistent with resource capabilities, 
regional guides shall reflect goals and objectives of the RPA Program. 
For planning purposes, the regional guides shall display tentative 
resource objectives for each Forest from the RPA Program. Regional 
guides shall also provide for general coordination of National Forest 
System, State and Private Forestry (S&PF), and Research programs. The 
Chief shall approve the regional guide. The Regional Forester may 
request adjustment of assigned regional objectives. Any adjustment shall 
require the approval of the Chief, Forest Service.
    (3) Forest. Each Forest Supervisor shall develop a forest plan for 
administrative units of the National Forest System. One forest plan may 
be prepared for all lands for which a Forest Supervisor has 
responsibility; or separate forest plans may be prepared for each 
National Forest, or combination of National Forests, within the 
jurisdiction of a single Forest Supervisor. A single forest plan may be 
prepared for the entire Tongass National Forest. These forest plans 
shall constitute the land and resource management plans as required 
under sections 6 and 13 of the RPA. A range of resource objectives shall 
be formulated as alternatives and evaluated, including at least one 
alternative which responds to and incorporates the tentative RPA Program 
resource objectives displayed in the regional guide. Based on this 
evaluation, the Forest Supervisor shall recommend objectives for 
incorporation into the forest plan to the Regional Forester. The 
Regional Forester shall approve the forest plan. This approval may 
incorporate adjustment of the tentative RPA Program resource objectives 
displayed in the regional guide.



Sec. 219.5  Interdisciplinary approach.

    (a) A team representing several disciplines shall be used for 
regional and forest planning to insure coordinated planning of the 
various resources. Through interactions among its members, the team 
shall integrate knowledge of the physical, biological, economic and 
social sciences, and the environmental design arts in the planning 
process. The team shall consider problems collectively, rather than 
separating them along disciplinary lines. Team functions include, but 
are not limited to--
    (1) Assessing the problems and resource use and development 
opportunities associated with providing goods and services;
    (2) Obtaining the public's views about possible decisions;
    (3) Implementing the planning coordination activities within the 
Forest Service and with local, State and other Federal agencies;
    (4) Developing a broad range of alternatives which identify the 
benefits and costs of land and resource management according to the 
planning process described in this subpart.
    (5) Developing the land and resource management plan and associated 
environmental impact statement required pursuant to the planning 
process;
    (6) Presenting to the responsible line officer an integrated 
perspective on land and resource management planning; and
    (7) Establishing the standards and requirements by which planning 
and management activities will be monitored and evaluated.
    (b) In appointing team members, the responsible line officer shall 
determine and consider the qualifications of each team member on the 
basis of the complexity of the issues and concerns to be addressed 
through the plan. The team shall collectively represent diverse 
specialized areas of professional and technical knowledge applicable to 
the planning area, and the team members shall have recognized relevant 
expertise and experience in professional, investigative, scientific, or 
other responsible work in specialty areas which they collectively 
represent. The team may consist of whatever combination of Forest 
Service staff and other Federal government personnel is necessary to 
achieve an interdisciplinary approach. The team is encouraged to consult 
other persons when required specialized knowledge does not exist within 
the

[[Page 59]]

team itself. In addition to technical knowledge in one or more resource 
specialties, members should possess other attributes which enhance the 
interdisciplinary process. As a minimum, these attributes should 
include--
    (1) An ability to solve complex problems;
    (2) Skills in communication and group interaction;
    (3) Basic understanding of land and natural resource planning 
concepts, processes, and analysis techniques; and
    (4) The ability to conceptualize planning problems and feasible 
solutions.



Sec. 219.6  Public participation.

    (a) Because the land and resource management planning process 
determines how the lands of the National Forest System are to be 
managed, the public is encouraged to participate throughout the planning 
process. The intent of public participation is to--
    (1) Broaden the information base upon which land and resource 
management planning decisions are made;
    (2) Ensure that the Forest Service understands the needs, concerns, 
and values of the public;
    (3) Inform the public of Forest Service land and resource planning 
activities; and
    (4) Provide the public with an understanding of Forest Service 
programs and proposed actions.
    (b) Public participation in the preparation of environmental impact 
statements for planning begins with the publication of a notice of 
intent in the Federal Register. Public involvement in the preparation of 
draft and final environmental impact statements shall conform to the 
requirements of the National Environmental Policy Act and associated 
implementing regulations and Forest Service Manual and Handbook guidance 
(hereafter, ``NEPA procedures''). Public comments shall be analyzed 
according to NEPA procedures.
    (c) Public participation activities, as deemed appropriate by the 
responsible line officer, shall be used early and often throughout the 
development of plans. Formal public participation activities will begin 
with a notice to the news media and other sources which includes, as 
appropriate, the following information:
    (1) A description of the proposed planning action;
    (2) A description and map of the geographic area affected;
    (3) The issues expected to be discussed;
    (4) The kind, extent, and method(s) of public participation to be 
used;
    (5) The times, dates, and locations scheduled or anticipated, for 
public meetings;
    (6) The name, title, address, and telephone number of the Forest 
Service official who may be contacted for further information; and
    (7) The location and availability of documents relevant to planning 
process.
    (d) Public participation activities should be appropriate to the 
area and people involved. Means of notification should be appropriate to 
the level of planning. Public participation activities may include, but 
are not limited to, requests for written comments, meetings, 
conferences, seminars, workshops, tours, and similar events designed to 
foster public review and comment. The Forest Service shall state the 
objectives of each participation activity to assure that the public 
understands what type of information is needed and how this information 
relates to the planning process.
    (e) Public comments shall be considered individually and by type of 
group and organization to determine common areas of concern and 
geographic distribution. The result of this analysis should be evaluated 
to determine the variety and intensity of viewpoints about ongoing and 
proposed planning and management standards and guidelines.
    (f) All scheduled public participation activities shall be 
documented by a summary of the principal issues discussed, comments 
made, and a register of participants.
    (g) At least 30 days' public notice shall be given for public 
participation activities associated with the development of regional 
guides and forest plans. Any notice requesting written comments on 
regional planning shall allow at least 60 calendar days for response. A 
similar request on forest

[[Page 60]]

planning shall allow at least 30 calendar days for response. Draft 
regional guides and forest plans and environmental impact statements 
shall be available for public comment for a least 3 months. See also 
Secs. 219.8(c) and 219.10(b).
    (h) The responsible line officer shall attend, or provide for 
adequate representation at, public participation activities.
    (i) Copies of approved guides and plans shall be available for 
public review as follows:
    (1) The RPA Assessment and the RPA Program shall be available at 
national headquarters, The Northeastern Area State and Private Forestry 
Office, and all Regional offices, Research Stations, Forest Supervisors' 
offices, and District Rangers' offices;
    (2) The regional guides shall be available at national headquarters, 
the issuing regional office and regional offices of contiguous regions, 
each Forest Supervisor's office of forests within and contiguous to the 
issuing region, and each District Ranger's office in the region;
    (3) The forest plan shall be available at the regional office for 
the forest, the Forest Supervisor's office, Forest Supervisors' offices 
contiguous to the forest, District Rangers' offices within the forest, 
and at least one additional location, to be determined by the Forest 
Supervisor, which shall offer convenient access to the public.

These documents may be made available at other locations convenient to 
the public.
    (j) Documents considered in the development of plans shall be 
available at the office where the plans were developed.
    (k) Forest planning activities should be coordinated to the extent 
practicable with owners of lands that are intermingled with, or 
dependent for access upon, National Forest System lands. The results of 
this coordination shall be included in the environmental impact 
statement for the plan as part of the review required in Sec. 219.7(c). 
The responsible line officer may individually notify these owners of 
forest planning activities where it is determined that notice provided 
for the general public is not likely to reach the affected landowners.
    (l) Fees for reproducing requested documents shall be charged 
according to the Secretary of Agriculture's Fee Schedule (7 CFR part 1, 
subpart A, appendix A).



Sec. 219.7  Coordination with other public planning efforts.

    (a) The responsible line officer shall coordinate regional and 
forest planning with the equivalent and related planning efforts of 
other Federal agencies, State and local governments, and Indian tribes.
    (b) The responsible line officer shall give notice of the 
preparation of a land and resource management plan, along with a general 
schedule of anticipated planning actions, to the official or agency so 
designated by the affected State (including the Commonwealth of Puerto 
Rico). The same notice shall be mailed to all Tribal or Alaska Native 
leaders whose tribal lands or treaty rights are expected to be impacted 
and to the heads of units of government for the counties involved. These 
notices shall be issued simultaneously with the publication of the 
notice of intent to prepare an environmental impact statement required 
by NEPA procedures (40 CFR 1501.7).
    (c) The responsible line officer shall review the planning and land 
use policies of other Federal agencies, State and local governments, and 
Indian tribes. The results of this review shall be displayed in the 
environmental impact statement for the plan (40 CFR 1502.16(c), 1506.2). 
The review shall include--
    (1) Consideration of the objectives of other Federal, State and 
local governments, and Indians tribes, as expressed in their plans and 
policies;
    (2) An assessment of the interrelated impacts of these plans and 
policies;
    (3) A determination of how each Forest Service plan should deal with 
the impacts identified; and,
    (4) Where conflicts with Forest Service planning are identified, 
consideration of alternatives for their resolution.
    (d) In developing land and resource management plans, the 
responsible line officer shall meet with the designated

[[Page 61]]

State official (or designee) and representatives of other Federal 
agencies, local governments, and Indian tribal governments at the 
beginning of the planning process to develop procedures for 
coordination. As a minimum, such conferences shall also be held after 
public issues and management concerns have been identified and prior to 
recommending the preferred alternative. Such conferences may be held in 
conjunction with other public participation activities, if the 
opportunity for government officials to participate in the planning 
process is not thereby reduced.
    (e) In developing the forest plan, the responsible line officer 
shall seek input from other Federal, State and local governments, and 
universities to help resolve management concerns in the planning process 
and to identify areas where additional research is needed. This input 
should be included in the discussion of the research needs of the 
designated forest planning area.
    (f) A program of monitoring and evaluation shall be conducted that 
includes consideration of the effects of National Forest management on 
land, resources, and communities adjacent to or near the National Forest 
being planned and the effects upon National Forest management of 
activities on nearby lands managed by other Federal or other government 
agencies or under the jurisdiction of local governments.

[47 FR 43037, Sept. 30, 1982, as amended at 48 FR 29122, June 24, 1983]



Sec. 219.8  Regional planning procedure.

    (a) Regional guide. A regional guide shall be developed for each 
administratively designated Forest Service region. Regional guides shall 
reflect general coordination of National Forest System, State and 
Private Forestry, and Research programs. Regional guides shall provide 
standards and guidelines for addressing major issues and management 
concerns which need to be considered at the regional level to facilitate 
forest planning. Public participation and coordination, the current RPA 
Program and Assessment, and the existing forest and resource plans shall 
be used as sources of information in meeting this requirement. Data and 
information requirements established nationally will be followed in 
structuring and maintaining required data.
    (b) Responsibilities--(1) Chief, Forest Service. The Chief shall 
establish agency-wide policy for regional planning and approve all 
regional guides.
    (2) Regional forester. The Regional Forester has overall 
responsibility for preparing and implementing the regional guide and for 
preparing the environmental impact statement for proposed standards and 
guidelines in the regional guide. The Regional Forester appoints and 
supervises the interdisciplinary team.
    (3) Interdisciplinary team. The team, under the direction of the 
Regional Forester, implements the public participation and coordination 
activities required by Sec. 219.6 and Sec. 219.7. The team shall 
continue to function even though membership may change and shall monitor 
and evaluate planning results and recommend amendments. The team shall 
develop a regional guide in compliance with NEPA procedures.
    (c) Public review. A draft and final environmental impact statement 
shall be prepared for the proposed standards and guidelines in the 
regional guide according to NEPA procedures. To the extent feasible, a 
single process shall be used to meet planning and NEPA requirements. The 
draft statement shall identify a preferred alternative. Beginning on the 
date of publication of the notice of availability of the draft 
environmental impact statement in the Federal Register, the statement 
and the proposed guide shall be available for public comment for at 
least 3 months at convenient locations in the vicinity of the lands 
covered by the guide. During this period, and in accordance with the 
provisions in Sec. 219.6, the Regional Forester or his designee shall 
publicize and hold public participation activities as deemed necessary 
for adequate public input.
    (d) Guide approval. The Chief shall review the proposed guide and 
the final environmental impact statement and either approve or 
disapprove the guide.
    (1) Approval. The Chief shall prepare a concise public record of 
decision which documents approval and accompanies the regional guide and 
the final environmental impact statement. The

[[Page 62]]

record or decision shall be prepared according to NEPA procedures (40 
CFR 1505.2). The approved regional guide shall not become effective 
until at least 30 days after publication of the notice of availability 
of the final environmental impact statement in the Federal Register.
    (2) Disapproval. The Chief shall return the regional guide and final 
environmental impact statement to the Regional Forester with a written 
statement of the reasons for disapproval. The Chief may also specify a 
course of action to be undertaken by the Regional Forester in order to 
remedy deficiencies, errors, or omissions in the regional guide or 
environmental impact statement.
    (e) Public appeal of approval decisions. The provisions of 36 CFR 
part 211, subpart B apply to any administrative appeal of the Chief's 
decision to approve a regional guide. Decisions to disapprove a guide 
and other decisions made during the regional planning process prior to 
issuance of a record of decision approving the guide are not subject to 
administrative appeal.
    (f) Amendment. The Regional Forester may amend the regional guide. 
The Regional Forester shall determine whether the proposed amendment 
would result in a significant change in the guide. If the change 
resulting from the proposed amendment is determined to be significant, 
the Regional Forester shall follow the same procedure for amendment as 
that required for development and approval of a regional guide. If the 
change resulting from the amendment is determined not to be significant 
for the purposes of the planning process, the Regional Forester may 
implement the amendment following appropriate public notification and 
satisfactory completion of NEPA procedures.
    (g) Planning records. The Regional Forester shall develop and 
maintain planning records that document decisions and activities that 
result from the process of developing a regional guide and the 
accomplishment of legal and administrative planning requirements. These 
records include at least the draft environmental impact statement, final 
environmental impact statement, regional guide, record of decision, a 
work plan to guide and manage planning, the procedures used in 
completing each action, and the results of these actions.



Sec. 219.9  Regional guide content.

    (a) The regional guide shall contain--
    (1) A summary of the analysis of the regional management situation, 
including a brief description of the existing management situation and 
the major issues and management concerns which need to be addressed at 
the regional level to facilitate forest planning;
    (2) A description of management direction including programs, goals, 
and objectives;
    (3) A display of tentative resource objectives for each forest 
planning area from the current RPA Program;
    (4) New or significantly changed regional management standards and 
guidelines necessary to address major regional issues and management 
concerns identified in paragraph (a)(1) of this section;
    (5) Specific standards and guidelines for the following--
    (i) Prescribing appropriate harvest cutting methods to be used 
within the region according to geographic areas, forest types, or other 
suitable classifications;
    (ii) Establishing the maximum size, dispersal, and size variation of 
tree openings created by even-aged management, and the state of 
vegetation that will be reached before a cut-over area is no longer 
considered an opening, using factors enumerated in Sec. 219.27(d);
    (iii) Defining the management intensities and utilization standards 
to be used in determining harvest levels for the region;
    (iv) Designating transportation corridors and associated direction 
for forest planning, such as management requirements for corridors, 
transmission lines, pipelines, and water canals. (The designation of 
corridors is not to preclude the granting of separate rights-of-way 
over, upon, under, or through the Federal lands where the authorized 
line officer determines that confinement to a corridor is not 
appropriate.) (43 U.S.C. 1763, 36 CFR 251.56); and

[[Page 63]]

    (v) Identifying in forest plans significant current and potential 
air pollution emissions from management activities and from other 
sources in and around the forest planning area and identifying measures 
needed to coordinate air quality control with appropriate air quality 
regulation agencies.
    (6) A description of the monitoring and evaluation necessary to 
determine and report achievements and effects of the guide.
    (7) A description of measures to achieve coordination of National 
Forest System, State and Private Forestry, and Research programs.
    (b) Existing regional standards and guidelines that are part of the 
Forest Service directives system, and that are not altered or superseded 
in the course of complying with Sec. 219.9(a)(4), shall remain in 
effect.



Sec. 219.10  Forest planning--general procedure.

    (a) Responsibilities--(1) Regional Forester. The Regional Forester 
shall establish regional policy for forest planning and approve all 
forest plans in the region.
    (2) Forest Supervisor. The Forest Supervisor has overall 
responsibility for the preparation and implementation of the forest plan 
and preparation of the environmental impact statement for the forest 
plan. The Forest Supervisor appoints and supervises the 
interdisciplinary team.
    (3) Interdisciplinary team. The team, under the direction of the 
Forest Supervisor, implements the public participation and coordination 
activities required by Sec. 219.6 and Sec. 219.7. The team shall 
continue to function even though membership may change and shall monitor 
and evaluate planning results and recommend revisions and amendments. 
The interdisciplinary team shall develop a forest plan and environmental 
impact statement using the process established in Sec. 219.12 and 
paragraph (b) below.
    (b) Public review of plan and environmental impact statement. A 
draft and final environmental impact statement shall be prepared for the 
proposed plan according to NEPA procedures. The draft environmental 
impact statement shall identify a preferred alternative. To comply with 
16 U.S.C. 1604(d), the draft environmental impact statement and proposed 
plan shall be available for public comment for at least 3 months, at 
convenient locations in the vicinity of the lands covered by the plan, 
beginning on the date of the publication of the notice of availability 
in the Federal Register. During this period, and in accordance with the 
provisions in Sec. 219.6, the Forest Supervisor shall publicize and hold 
public participation activities as deemed necessary to obtain adequate 
public input.
    (c) Plan approval. The Regional Forester shall review the proposed 
plan and the final environmental impact statement and either approve or 
disapprove the plan.
    (1) Approval. The Regional Forester shall prepare a concise public 
record of decision which documents approval and accompanies the plan and 
final environmental impact statement. The record of decision shall be 
prepared according to NEPA procedures (40 CFR 1505.2). The approved plan 
shall not become effective until at least 30 days after publication of 
the notice of availability of the final environmental impact statement 
in the Federal Register, to comply with 16 U.S.C. 1604(d) and 1604(j).
    (2) Disapproval. The Regional Forester shall return the plan and 
final environmental impact statement to the Forest Supervisor with a 
written statement of the reasons for disapproval. The Regional Forester 
may also specify a course of action to be undertaken by the Forest 
Supervisor in order to remedy deficiencies, errors, or omissions in the 
plan or environmental impact statement.
    (d) Public appeal of approval decision. The provisions of 36 CFR 
part 211, subpart B apply to any administrative appeal of the Regional 
Forester's decision to approve a forest plan. Decisions to disapprove a 
plan and other decisions made during the forest planning process prior 
to the issuance of a record of decision approving the plan are not 
subject to administrative appeal.
    (e) Plan implementation. As soon as practicable after approval of 
the plan, the Forest Supervisor shall ensure that, subject to valid 
existing rights, all outstanding and future permits,

[[Page 64]]

contracts, cooperative agreements, and other instruments for occupancy 
and use of affected lands are consistent with the plan. Subsequent 
administrative activities affecting such lands, including budget 
proposals, shall be based on the plan. The Forest Supervisor may change 
proposed implementation schedules to reflect differences between 
proposed annual budgets and appropriated funds. Such scheduled changes 
shall be considered an amendment to the forest plan, but shall not be 
considered a significant amendment, or require the preparation of an 
environmental impact statement, unless the changes significantly alter 
the long-term relationship between levels of multiple-use goods and 
services projected under planned budget proposals as compared to those 
projected under actual appropriations.
    (f) Amendment. The Forest Supervisor may amend the forest plan. 
Based on an analysis of the objectives, guidelines, and other contents 
of the forest plan, the Forest Supervisor shall determine whether a 
proposed amendment would result in a significant change in the plan. If 
the change resulting from the proposed amendment is determined to be 
significant, the Forest Supervisor shall follow the same procedure as 
that required for development and approval of a forest plan. If the 
change resulting from the amendment is determined not to be significant 
for the purposes of the planning process, the Forest Supervisor may 
implement the amendment following appropriate public notification and 
satisfactory completion of NEPA procedures.
    (g) Revision. A forest plan shall ordinarily be revised on a 10-year 
cycle or at least every 15 years. It also may be revised whenever the 
Forest Supervisor determines that conditions or demands in the area 
covered by the plan have changed significantly or when changes in RPA 
policies, goals, or objectives would have a significant effect on forest 
level programs. In the monitoring and evaluation process, the 
interdisciplinary team may recommend a revision of the forest plan at 
any time. Revisions are not effective until considered and approved in 
accordance with the requirements for the development and approval of a 
forest plan. The Forest Supervisor shall review the conditions on the 
land covered by the plan at least every 5 years to determine whether 
conditions or demands of the public have change significantly.
    (h) Planning records. The Forest Supervisor and interdisciplinary 
team shall develop and maintain planning records that document the 
decisions and activities that result from the process of developing a 
forest plan. Records that support analytical conclusions made and 
alternatives considered by the team and approved by the Forest 
Supervisor throughout the planning process shall be maintained. Such 
supporting records provide the basis for the development of the forest 
plan and associated documents required by NEPA procedures.



Sec. 219.11  Forest plan content.

    The forest plan shall contain the following:
    (a) A brief summary of the analysis of the management situation, 
including demand and supply conditions for resource commodities and 
services, production potentials, and use and development opportunities;
    (b) Forest multiple-use goals and objectives that include a 
description of the desired future condition of the forest or grassland 
and an identification of the quantities of goods and services that are 
expected to be produced or provided during the RPA planning periods;
    (c) Multiple-use prescriptions and associated standards and 
guidelines for each management area including proposed and probable 
management practices such as the planned timber sale program; and
    (d) Monitoring and evaluation requirements that will provide a basis 
for a periodic determination and evaluation of the effects of management 
practices.



Sec. 219.12  Forest planning--process.

    (a) General requirements. The preparation, revision, or significant 
amendment of a forest plan shall comply with the requirements 
established in this section. The planning process includes at least 
those actions set forth in paragraphs (b) through (k) of the section.

[[Page 65]]

Some actions may occur simultaneously, and it may be necessary to repeat 
an action as additional information becomes available. The environmental 
impact statement for each forest plan shall be prepared according to 
NEPA procedures. To the extent feasible, a single process shall be used 
to meet planning and NEPA requirements.
    (b) Identification of purpose and need. The interdisciplinary team 
shall identify and evaluate public issues, management concerns, and 
resource use and development opportunities, including those identified 
throughout the planning process during public participation activities 
and coordination with other Federal agencies, State and local 
governments, and Indian tribes. The Forest Supervisor shall determine 
the major public issues, management concerns, and resource use and 
development opportunities to be addressed in the planning process.
    (c) Planning criteria. Criteria shall be prepared to guide the 
planning process. Criteria apply to collection and use of inventory data 
and information, analysis of the management situation, and the design, 
formulation, and evaluation of alternatives. Criteria designed to 
achieve the objective of maximizing net public benefits shall be 
included. Specific criteria may be derived from--
    (1) Laws, Executive Orders, regulations, and agency policy as set 
forth in the Forest Service Manual;
    (2) Goals and objectives in the RPA Program and regional guides;
    (3) Recommendations and assumptions developed from public issues, 
management concerns, and resource use and development opportunities;
    (4) The plans and programs of other Federal agencies, State and 
local governments, and Indian tribes;
    (5) Ecological, technical, and economic factors; and
    (6) The resource integration and management requirements in 
Secs. 219.13 through 219.27.
    (d) Inventory data and information collection. Each Forest 
Supervisor shall obtain and keep current inventory data appropriate for 
planning and managing the resources under his or her administrative 
jurisdiction. The Supervisor will assure that the interdisciplinary team 
has access to the best available data. This may require that special 
inventories or studies be prepared. The interdisciplinary team shall 
collect, assemble, and use data, maps, graphic material, and explanatory 
aids, of a kind, character, and quality, and to the detail appropriate 
for the management decisions to be made. Data and information needs may 
vary as planning problems develop from identification of public issues, 
management concerns, and resource use and development opportunities. 
Data shall be stored for ready retrieval and comparison and periodically 
shall be evaluated for accuracy and effectiveness. The interdisciplinary 
team will use common data definitions and standards established by the 
Chief of the Forest Service to assure uniformity of information between 
all planning levels. As information is recorded, it shall be applied in 
any subsequent planning process. Information developed according to 
common data definitions and standards shall be used in the preparation 
of the 1990, and subsequent RPA Assessments and RPA Programs.
    (e) Analysis of the management situation. The analysis of the 
management situation is a determination of the ability of the planning 
area covered by the forest plan to supply goods and services in response 
to society's demands. The primary purpose of this analysis is to provide 
a basis for formulating a broad range of reasonable alternatives. The 
analysis may examine the capability of the unit to supply outputs both 
with and without legal and other requirements. As a minimum, the 
analysis of the management situation shall include the following:
    (1) Benchmark analyses to define the range within which alternatives 
can be constructed. Budgets shall not be a constraint. The following 
benchmark analyses shall be consistent with the minimum applicable 
management requirements of Sec. 219.27 and shall define at least--
    (i) The minimum level of management which would be needed to 
maintain and protect the unit as part of the National Forest System 
together with associated costs and benefits;

[[Page 66]]

    (ii) The maximum physical and biological production potentials of 
significant individual goods and services together with associated costs 
and benefits;
    (iii) Monetary benchmarks which estimate the maximum present net 
value of those resources having an established market value or an 
assigned value;
    (A) For forest planning areas with major resource outputs that have 
an established market price, monetary benchmarks shall include an 
estimate of the mix of resource uses, combined with a schedule of 
outputs and costs, which will maximize the present net value of those 
major outputs that have an established market price;
    (B) For all forest planning areas, monetary benchmarks shall include 
an estimate of the mix of resource uses, combined with a schedule of 
outputs and costs, which will maximize the present net value of those 
major outputs that have an established market price or are assigned a 
monetary value;
    (C) For forest planning areas with a significant timber resource, 
estimates for paragraphs (e)(1)(iii) (A) and (B) of this section shall 
be developed both with and without meeting the requirements for 
compliance with a base sale schedule of timber harvest, as described in 
Sec. 219.16(a)(1), and with and without scheduling the harvest of even-
aged stands generally at or beyond culmination of mean annual increment 
of growth, as described in Sec. 219.16(a)(2)(iii).
    (D) Estimates for paragraphs (e)(1)(iii) (A) and (B) of this section 
shall be developed both with and without other constraints when needed 
to address major public issues, management concerns, or resource 
opportunities identified during the planning process.
    (2) The current level of goods and services provided by the unit and 
the most likely amount of goods and services expected to be provided in 
the future if current management direction continues; this will be the 
same analysis as that required by Sec. 219.12(f)(5).
    (3) Projections of demand using best available techniques, with both 
price and nonprice information. To the extent practical, demand will be 
assessed as price-quantity relationships.
    (4) A determination of the potential to resolve public issues and 
management concerns.
    (5) Based on consideration of data and findings developed in 
paragraphs (e)(1)-(4), a determination of the need to establish or 
change management direction.
    (f) Formulation of alternatives. The interdisciplinary team shall 
formulate a broad range of reasonable alternatives according to NEPA 
procedures. The primary goal in formulating alternatives, besides 
complying with NEPA procedures, is to provide an adequate basis for 
identifying the alternative that comes nearest to maximizing net public 
benefits, consistent with the resource integration and management 
requirements of Secs. 219.13 through 219.27.
    (1) Alternatives shall be distributed between the minimum resource 
potential and the maximum resource potential to reflect to the extent 
practicable the full range of major commodity and environmental resource 
uses and values that could be produced from the forest. Alternatives 
shall reflect a range of resource outputs and expenditure levels.
    (2) Alternatives shall be formulated to facilitate analysis of 
opportunity costs and of resource use and environmental trade-offs among 
alternatives and between benchmarks and alternatives.
    (3) Alternatives shall be formulated to facilitate evaluation of the 
effects on present net value, benefits, and costs of achieving various 
outputs and values that are not assigned monetary values, but that are 
provided at specified levels.
    (4) Alternatives shall provide different ways to address and respond 
to the major public issues, management concerns, and resource 
opportunities identified during the planning process.
    (5) Reasonable alternatives which may require a change in existing 
law or policy to implement shall be formulated if necessary to address a 
major public issue, management concern, or resource opportunity 
identified during the planning process (40 CFR 1501.7, 1502.14(c)).

[[Page 67]]

    (6) At least one alternative shall be developed which responds to 
and incorporates the RPA Program tentative resource objectives for each 
forest displayed in the regional guide.
    (7) At least one alternative shall reflect the current level of 
goods and services provided by the unit and the most likely amount of 
goods and services expected to be provided in the future if current 
management direction continues. Pursuant to NEPA procedures, this 
alternative shall be deemed the ``no action'' alternative.
    (8) Each alternative shall represent to the extent practicable the 
most cost efficient combination of management prescriptions examined 
that can meet the objectives established in the alternative.
    (9) Each alternative shall state at least--
    (i) The condition and uses that will result from long-term 
application of the alternative;
    (ii) The goods and services to be produced, the timing and flow of 
these resource outputs together with associated costs and benefits;
    (iii) Resource management standards and guidelines; and
    (iv) The purposes of the management direction proposed.
    (g) Estimated effects of alternatives. The physical, biological, 
economic, and social effects of implementing each alternative considered 
in detail shall be estimated and compared according to NEPA procedures. 
These effects include those described in NEPA procedures (40 CFR 1502.14 
and 1502.16) and at least the following:
    (1) The expected outputs for the planning periods, including 
appropriate marketable goods and services, as well as nonmarket items, 
such as recreation and wilderness use, wildlife and fish, protection and 
enhancement of soil, water, and air, and preservation of aesthetic and 
cultural resource values;
    (2) The relationship of expected outputs to the RPA Program 
tentative resource objectives for the forest displayed in the current 
regional guide;
    (3) Direct and indirect benefits and costs, analyzed in sufficient 
detail to estimate--
    (i) the expected real-dollar costs (discounted when appropriate), 
including investment, administrative, and operating costs of the agency 
and all other public and private costs required to manage the forest up 
to the point where the outputs are valued and the environmental 
consequences are realized;
    (ii) the expected real-dollar value (discounted when appropriate) of 
all outputs attributable to each alternative to the extent that monetary 
values can be assigned to nonmarket goods and services, using 
quantitative and qualitative criteria when monetary values may not 
reasonably be assigned;
    (iii) the economic effects of alternatives, including impacts on 
present net value, total receipts to the Federal Government, direct 
benefits to users that are not measured in receipts to the Federal 
Government, receipt shares to State and local governments, income, and 
employment in affected areas; and
    (iv) the monetary opportunity costs (changes in present net value) 
associated with those management standards and resource outputs in each 
alternative that were not assigned monetary values but were provided at 
specified levels, compared with the maximum present net value benchmarks 
developed in Sec. 219.12(e)(1)(iii).
    (4) The significant resource tradeoffs and opportunity costs 
associated with achieving alternative resource objectives.
    (h) Evaluation of alternatives: Using planning criteria, the 
interdisciplinary team shall evaluate the significant physical, 
biological, economic, and social effects of each management alternative 
that is considered in detail. The evaluation shall include a comparative 
analysis of the aggregate effects of the management alternatives and 
shall compare present net value, social and economic impacts, outputs of 
goods and services, and overall protection and enhancement of 
environmental resources.
    (i) Preferred alternative recommendation. The Forest Supervisor 
shall review the interdisciplinary team's evaluation and shall recommend 
to the Regional Forester a preferred alternative to be identified in the 
draft environmental impact statement and displayed as the proposed plan.

[[Page 68]]

    (j) Plan approval. The Regional Forester shall review the proposed 
plan and final environmental impact statement and either approve or 
disapprove the plan in accordance with Sec. 219.10(c). The record of 
decision for approval of a plan shall include, in addition to the 
requirements of NEPA procedures (40 CFR 1505.2), a summarized comparison 
of the selected alternative with:
    (1) Any other alternative considered which is environmentally 
preferable to the selected alternative; and
    (2) Any other alternative considered which comes nearer to 
maximizing present net value.
    (k) Monitoring and evaluation. At intervals established in the plan, 
implementation shall be evaluated on a sample basis to determine how 
well objectives have been met and how closely management standards and 
guidelines have been applied. Based upon this evaluation, the 
interdisciplinary team shall recommend to the Forest Supervisor such 
changes in management direction, revisions, or amendments to the forest 
plan as are deemed necessary. Monitoring requirements identified in the 
forest plan shall provide for--
    (1) A quantitative estimate of performance comparing outputs and 
services with those projected by the forest plan;
    (2) Documentation of the measured prescriptions and effects, 
including significant changes in productivity of the land; and
    (3) Documentation of costs associated with carrying out the planned 
management prescriptions as compared with costs estimated in the forest 
plan.
    (4) A description of the following monitoring activities:
    (i) The actions, effects, or resources to be measured, and the 
frequency of measurements;
    (ii) Expected precision and reliability of the monitoring process; 
and
    (iii) The time when evaluation will be reported.
    (5) A determination of compliance with the following standards:
    (i) Lands are adequately restocked as specified in the forest plan;
    (ii) Lands identified as not suited for timber production are 
examined at least every 10 years to determine if they have become 
suited; and that, if determined suited, such lands are returned to 
timber production;
    (iii) Maximum size limits for harvest areas are evaluated to 
determine whether such size limits should be continued; and
    (iv) Destructive insects and disease organisms do not increase to 
potentially damaging levels following management activities.



Sec. 219.13  Forest planning--resource integration requirements.

    The minimum requirements for integrating individual forest resource 
planning into the forest plan are established in Secs. 219.14 through 
219.26 of this subpart. For the purposes of meeting the requirements of 
Sec. 219.12(c), additional planning criteria may be found in the 
guidelines for managing specific resources set forth in the Forest 
Service Manual and Handbooks.



Sec. 219.14  Timber resource land suitability.

    During the forest planning process, lands which are not suited for 
timber production shall be identified in accordance with the criteria in 
paragraphs (a) through (d) of this section.
    (a) During the analysis of the management situation, data on all 
National Forest System lands within the planning area shall be reviewed, 
and those lands within any one of the categories described in paragraphs 
(a) (1) through (4) of this section shall be identified as not suited 
for timber production--
    (1) The land is not forest land as defined in Sec. 219.3.
    (2) Technology is not available to ensure timber production from the 
land without irreversible resource damage to soils productivity, or 
watershed conditions.
    (3) There is not reasonable assurance that such lands can be 
adequately restocked as provided in Sec. 219.27(c)(3).
    (4) The land has been withdrawn from timber production by an Act of 
Congress, the Secretary of Agriculture or the Chief of the Forest 
Service.
    (b) Forest lands other than those that have been identified as not 
suited for timber production in paragraph (a)

[[Page 69]]

of this section shall be further reviewed and assessed prior to 
formulation of alternatives to determine the costs and benefits for a 
range of management intensities for timber production. For the purpose 
of analysis, the planning area shall be stratified into categories of 
land with similar management costs and returns. The stratification 
should consider appropriate factors that influence the costs and returns 
such as physical and biological conditions of the site and 
transportation requirements. This analysis shall identify the management 
intensity for timber production for each category of land which results 
in the largest excess of discounted benefits less discounted costs and 
shall compare the direct costs of growing and harvesting trees, 
including capital expenditures required for timber production, to the 
anticipated receipts to the government, in accordance with Sec. 219.12 
and paragraphs (b)(1) through (b)(3) of this section.
    (1) Direct benefits are expressed as expected gross receipts to the 
government. Such receipts shall be based upon expected stumpage prices 
and payments-in-kind from timber harvest considering future supply and 
demand situation for timber and upon timber production goals of the 
regional guide.
    (2) Direct costs include the anticipated investments, maintenance, 
operating, management, and planning costs attributable to timber 
production activities, including mitigation measures necessitated by the 
impacts of timber production.
    (3) In addition to long-term yield, the financial analysis must 
consider costs and returns of managing the existing timber inventory.
    (c) During formulation and evaluation of each alternative as 
required in Sec. 219.12 (f) and (g), combinations of resource management 
prescriptions shall be defined to meet management objectives for the 
various multiple uses including outdoor recreation, timber, watershed, 
range, wildlife and fish, and wilderness. The formulation and evaluation 
of each alternative shall consider the costs and benefits of alternative 
management intensities for timber production as identified pursuant to 
paragraph (b) of this section in accordance with Sec. 219.12(f). Lands 
shall be tentatively identified as not appropriate for timber production 
to meet objectives of the alternative being considered if--
    (1) Based upon a consideration of multiple-use objectives for the 
alternative, the land is proposed for resource uses that preclude timber 
production, such as wilderness;
    (2) Other management objectives for the alternative limit timber 
production activities to the point where management requirements set 
forth in Sec. 219.27 cannot be met; or
    (3) The lands are not cost-efficient, over the planning horizon, in 
meeting forest objectives, which include timber production.
    (d) Lands identified as not suited for timber production in 
paragraph (a) of this section and lands tentatively identified as not 
appropriate for timber production in paragraph (c) of this section shall 
be designated as not suited for timber production in the preferred 
alternative. Designation in the plan of lands not suited for timber 
production shall be reviewed at least every 10 years. Such lands may be 
reviewed and redesignated as suited for timber production due to changed 
conditions at any time, according to the criteria in paragraphs (a) and 
(c) of this section, and according to the procedures for amendment or 
revision of the forest plan in Sec. 219.10 (f) and (g).



Sec. 219.15  Vegetation management practices.

    When vegetation is altered by management, the methods, timing, and 
intensity of the practices determine the level of benefits that can be 
obtained from the affected resources. The vegetation management 
practices chosen for each vegetation type and circumstance shall be 
defined in the forest plan with applicable standards and guidelines and 
the reasons for the choices. Where more than one vegetation management 
practice will be used in a vegetation type, the conditions under which 
each will be used shall be based upon thorough reviews of technical and 
scientific literature and practical experience, with appropriate 
evaluation of this knowledge for relevance

[[Page 70]]

to the specific vegetation and site conditions. On National Forest 
System land, the vegetation management practice chosen shall comply with 
the management requirements in Sec. 219.27(b).



Sec. 219.16  Timber resource sale schedule.

    In a forest plan, the selected forest management alternative 
includes a sale schedule which provides the allowable sale quantity. The 
sale schedule of each alternative, including those which depart from 
base sale schedules, shall be formulated in compliance with 
Sec. 219.12(f) and paragraphs (a) and (b) of this section.
    (a) Alternatives shall be formulated that include determinations of 
the quantity of the timber that may be sold during each decade. These 
quantity determinations shall be based on the principle of sustained 
yield and shall meet the management requirements in Sec. 219.27. For 
each alternative, the determination shall include a calculation of the 
long-term sustained-yield capacity and the base sale schedule and, when 
appropriate, a calculation of timber sale alternatives that may depart 
from the base sale schedule as provided in paragraphs (a)(1) through 
(a)(3) of this section.
    (1) For the base sale schedules, the planned sale for any future 
decade shall be equal to, or greater than, the planned sale for the 
preceding decade, provided that the planned sale is not greater than the 
long-term sustained-yield capacity consistent with the management 
objectives of the alternative.
    (2) The determinations of the appropriate long-term sustained-yield 
capacities, base sale schedules, and departure alternatives to the base 
sale schedules shall be made on the basis of the guidelines which 
follow:
    (i) For the long-term sustained-yield capacities and the base sale 
schedules, assume intensities of management and degree of timber 
utilization consistent with the goals, assumptions, and requirements 
contained in, or used in, the preparation of the current RPA Program and 
regional guide. For the base sale schedule, the management and 
utilization assumptions shall reflect the projected changes in practices 
for the four decades contained in, or used in, the preparation of the 
current RPA Program and regional guide. Beyond the fourth decade, the 
assumptions shall reflect those projected for the fourth decade of the 
current RPA Program, unless there is a basis for a different assumption;
    (ii) For alternatives with sale schedules which depart from the 
corresponding base sale schedule, assume an appropriate management 
intensity;
    (iii) In accordance with the established standards, assure that all 
even-aged stands scheduled to be harvested during the planning period 
will generally have reached the culmination of mean annual increment of 
growth. Mean annual increment shall be based on expected growth, 
according to management intensities and utilization standards assumed in 
paragraphs (a)(2) (i) and (ii) of this section and on forest type and 
site quality. Mean annual increment shall be expressed in cubic measure. 
Alternatives which incorporate exceptions to these standards shall be 
evaluated if it is reasonable to expect that overall multiple use 
objectives would be better attained. Alternatives which incorporate 
exceptions to these standards are permitted for the use of sound 
silvicultural practices, such as thinning or other stand improvement 
measures; for salvage or sanitation harvesting of timber stands which 
are substantially damaged by fire, windthrow, or other catastrophe, or 
which are in imminent danger from insect or disease attack; for cutting 
for experimental and research purposes; or for removing particular 
species of trees, after consideration has been given to the multiple 
uses of the area being planned and after completion of the public 
participation process applicable to the preparation of a forest plan; 
and
    (iv) Each sale schedule shall provide for a forest structure that 
will enable perpetual timber harvest which meets the principle of 
sustained-yield and multiple-use objectives of the alternative.
    (3) Alternatives with sale schedules which depart from the 
principles of paragraph (a)(1) of this section and which will lead to 
better attaining the

[[Page 71]]

overall objectives of multiple-use management shall be evaluated when 
any of the following conditions are indicated:
    (i) None of the other alternatives considered provides a sale 
schedule that achieves the assigned goals of the RPA Program as provided 
in Sec. 219.4(b);
    (ii) High mortality losses from any cause can be significantly 
reduced or prevented or forest age-class distribution can be improved, 
thereby facilitating future sustained-yield management; or
    (iii) Implementation of the corresponding base sale schedule would 
cause a substantial adverse impact upon a community in the economic area 
in which the forest is located.
    (iv) It is reasonable to expect that overall multiple-use objectives 
would otherwise be better attained.
    (b) The sale schedule of the management alternative selected in 
accordance with Sec. 219.12 provides the allowable sale quantity for the 
first plan period.



Sec. 219.17  Evaluation of roadless areas.

    (a) Unless otherwise provided by law, roadless areas within the 
National Forest System shall be evaluated and considered for 
recommendation as potential wilderness areas during the forest planning 
process, as provided in paragraphs (a) (1) and (2) of this section.
    (1) During analysis of the management situation, the following areas 
shall be subject to evaluation:
    (i) Roadless areas including those previously inventoried in the 
second roadless area review and evaluation (RARE II), in a unit plan, or 
in a forest plan, which remain essentially roadless and undeveloped, and 
which have not yet been designated as wilderness or for nowilderness 
uses by law. In addition, other essentially roadless areas may be 
subject to evaluation at the discretion of the Forest Supervisor.
    (ii) Areas contiguous to existing wilderness, primitive areas, or 
administratively proposed wildernesses, regardless of which agency has 
jurisdiction for the wilderness or proposed wilderness;
    (iii) Areas that are contiguous to roadless and undeveloped areas in 
other Federal ownership that have identified wilderness potential; and
    (iv) Areas designated by Congress for wilderness study, 
administrative proposals pending before Congress, and other legislative 
proposals pending which have been endorsed by the President.
    (2) For each area subject to evaluation under paragraph (a)(1) of 
this section, the determination of the significant resource issues, 
which in turn affect the detail and scope of evaluation required by the 
Forest Service, shall be developed with public participation. As a 
minimum, the evaluation shall include consideration of:
    (i) The values of the area as wilderness;
    (ii) The values foregone and effects on management of adjacent lands 
as a consequence of wilderness designation;
    (iii) Feasibility of management as wilderness, in respect to size, 
nonconforming use, land ownership patterns, and existing contractual 
agreements or statutory rights;
    (iv) Proximity to other designated wilderness and relative 
contribution to the National Wilderness Preservation System; and
    (v) The anticipated long-term changes in plant and animal species 
diversity, including the diversity of natural plant and animal 
communities of the forest planning area and the effects of such changes 
on the values for which wilderness areas were created.

[47 FR 43037, Sept. 30, 1982, as amended at 48 FR 40383, Sept. 7, 1983]



Sec. 219.18  Wilderness management.

    Forest planning shall provide direction for the management of 
designated wilderness and primitive areas in accordance with the 
provisions of 36 CFR part 293. In particular, plans shall--
    (a) Provide for limiting and distributing visitor use of specific 
areas in accord with periodic estimates of the maximum levels of use 
that allow natural processes to operate freely and that do not impair 
the values for which wilderness areas were created; and
    (b) Evaluate the extent to which wildfire, insect, and disease 
control

[[Page 72]]

measures may be desirable for protection of either the wilderness or 
adjacent areas and provide for such measures when appropriate.



Sec. 219.19  Fish and wildlife resource.

    Fish and wildlife habitat shall be managed to maintain viable 
populations of existing native and desired non-native vertebrate species 
in the planning area. For planning purposes, a viable population shall 
be regarded as one which has the estimated numbers and distribution of 
reproductive individuals to insure its continued existence is well 
distributed in the planning area. In order to insure that viable 
populations will be maintained, habitat must be provided to support, at 
least, a minimum number of reproductive individuals and that habitat 
must be well distributed so that those individuals can interact with 
others in the planning area.
    (a) Each alternative shall establish objectives for the maintenance 
and improvement of habitat for management indicator species selected 
under paragraph (g)(1) of this section, to the degree consistent with 
overall multiple use objectives of the alternative. To meet this goal, 
management planning for the fish and wildlife resource shall meet the 
requirements set forth in paragraphs (a)(1) through (a)(7) of this 
section.
    (1) In order to estimate the effects of each alternative on fish and 
wildlife populations, certain vertebrate and/or invertebrate species 
present in the area shall be identified and selected as management 
indicator species and the reasons for their selection will be stated. 
These species shall be selected because their population changes are 
believed to indicate the effects of management activities. In the 
selection of management indicator species, the following categories 
shall be represented where appropriate: Endangered and threatened plant 
and animal species identified on State and Federal lists for the 
planning area; species with special habitat needs that may be influenced 
significantly by planned management programs; species commonly hunted, 
fished, or trapped; non-game species of special interest; and additional 
plant or animal species selected because their population changes are 
believed to indicate the effects of management activities on other 
species of selected major biological communities or on water quality. On 
the basis of available scientific information, the interdisciplinary 
team shall estimate the effects of changes in vegetation type, timber 
age classes, community composition, rotation age, and year-long 
suitability of habitat related to mobility of management indicator 
species. Where appropriate, measures to mitigate adverse effects shall 
be prescribed.
    (2) Planning alternatives shall be stated and evaluated in terms of 
both amount and quality of habitat and of animal population trends of 
the management indicator species.
    (3) Biologists from State fish and wildlife agencies and other 
Federal agencies shall be consulted in order to coordinate planning for 
fish and wildlife, including opportunities for the reintroduction of 
extirpated species.
    (4) Access and dispersal problems of hunting, fishing, and other 
visitor uses shall be considered.
    (5) The effects of pest and fire management on fish and wildlife 
populations shall be considered.
    (6) Population trends of the management indicator species will be 
monitored and relationships to habitat changes determined. This 
monitoring will be done in cooperation with State fish and wildlife 
agencies, to the extent practicable.
    (7) Habitat determined to be critical for threatened and endangered 
species shall be identified, and measures shall be prescribed to prevent 
the destruction or adverse modification of such habitat. Objectives 
shall be determined for threatened and endangered species that shall 
provide for, where possible, their removal from listing as threatened 
and endangered species through appropriate conservation measures, 
including the designation of special areas to meet the protection and 
management needs of such species.



Sec. 219.20  Grazing resource.

    In forest planning, the suitability and potential capability of 
National

[[Page 73]]

Forest System lands for producing forage for grazing animals and for 
providing habitat for management indicator species shall be determined 
as provided in paragraphs (a) and (b) of this section. Lands so 
identified shall be managed in accordance with direction established in 
forest plans.
    (a) Lands suitable for grazing and browsing shall be identified and 
their condition and trend shall be determined. The present and potential 
supply of forage for livestock, wild and free-roaming horses and burros, 
and the capability of these lands to produce suitable food and cover for 
selected wildlife species shall be estimated. The use of forage by 
grazing and browsing animals will be estimated. Lands in less than 
satisfactory condition shall be identified and appropriate action 
planned for their restoration.
    (b) Alternative range management prescriptions shall consider 
grazing systems and the facilities necessary to implement them; land 
treatment and vegetation manipulation practices; and evaluation of pest 
problems; possible conflict or beneficial interactions among livestock, 
wild free-roaming horses and burros and wild animal populations, and 
methods of regulating these; direction for rehabilitation of ranges in 
unsatisfactory condition; and comparative cost efficiency of the 
prescriptions.



Sec. 219.21  Recreation resource.

    To the degree consistent with needs and demands for all major 
resources, a broad spectrum of forest and rangeland related outdoor 
recreation opportunities shall be provided for in each alternative. 
Planning activities to achieve this shall be in accordance with national 
and regional direction and procedural requirements of paragraphs (a) 
through (g) of this section.
    (a) Forest planning shall identify--
    (1) The physical and biological characteristics that make land 
suitable for recreation opportunities;
    (2) The recreational preferences of user groups and the settings 
needed to provide quality recreation opportunities; and
    (3) Recreation opportunities on the National Forest System lands.
    (b) The supply of developed recreational facilities in the area of 
National Forest influence shall be appraised for adequacy to meet 
present and future demands.
    (c) Planning alternatives shall include consideration of 
establishment of physical facilities, regulation of use, and recreation 
opportunities responsive to current and anticipated user demands.
    (d) In formulation and analysis of alternatives as specified in 
Sec. 219.12 (f) and (g), interactions among recreation opportunities and 
other multiple uses shall be examined. This examination shall consider 
the impacts of the proposed recreation activities on other uses and 
values and the impacts of other uses and activities associated with them 
on recreation opportunities, activities, and quality of experience.
    (e) Formulation and evaluation of alternatives under paragraphs (c) 
and (d) of this section shall be coordinated to the extent feasible with 
present and proposed recreation activities of local and State land use 
or outdoor recreation plans, particularly the State Comprehensive 
Outdoor Recreation Plan, and recreation opportunities already present 
and available on other public and private lands, with the aim of 
reducing duplication in meeting recreation demands.
    (f) The visual resource shall be inventoried and evaluated as an 
integrated part of evaluating alternatives in the forest planning 
process, addressing both the landscape's visual attractiveness and the 
public's visual expectation. Management prescriptions for definitive 
land areas of the forest shall include visual quality objectives.
    (g) Off-road vehicle use shall be planned and implemented to protect 
land and other resources, promote public safety, and minimize conflicts 
with other uses of the National Forest System lands. Forest planning 
shall evaluate the potential effects of vehicle use off roads and, on 
the basis of the requirements of 36 CFR part 295 of this chapter, 
classify areas and trails of National Forest System lands as to whether 
or not off-road vehicle use may be permitted.

[[Page 74]]



Sec. 219.22  Mineral resource.

    Mineral exploration and development in the planning area shall be 
considered in the management of renewable resources. The following shall 
be recognized to the extent practicable in forest planning:
    (a) Active mines within the area of land covered by the forest plan;
    (b) Outstanding or reserved mineral rights;
    (c) The probable occurrence of various minerals, including 
locatable, leasable, and common variety;
    (d) The potential for future mineral development and potential need 
for withdrawal of areas from development;
    (e) Access requirements for mineral exploration and development; and
    (f) The probable effect of renewable resource prescriptions and 
management direction on mineral resources and activities, including 
exploration and development.



Sec. 219.23  Water and soil resource.

    Forest planning shall provide for--
    (a) General estimates of current water uses, both consumptive and 
non-consumptive, including instream flow requirements within the area of 
land covered by the forest plan;
    (b) Identification of significant existing impoundments, 
transmission facilities, wells, and other man-made developments on the 
area of land covered by the forest plan;
    (c) Estimation of the probable occurrence of various levels of water 
volumes, including extreme events which would have a major impact on the 
planning area;
    (d) Compliance with requirements of the Clean Water Act, the Safe 
Drinking Water Act, and all substantive and procedural requirements of 
Federal, State, and local governmental bodies with respect to the 
provision of public water systems and the disposal of waste water;
    (e) Evaluation of existing or potential watershed conditions that 
will influence soil productivity, water yield, water pollution, or 
hazardous events; and
    (f) Adoption of measures, as directed in applicable Executive 
orders, to minimize risk of flood loss, to restore and preserve 
floodplain values, and to protect wetlands.



Sec. 219.24  Cultural and historic resources.

    Forest planning shall provide for the identification, protection, 
interpretation, and management of significant cultural resources on 
National Forest System lands. Planning of the resource shall be governed 
by the requirements of Federal laws pertaining to historic preservation, 
and guided by paragraphs (a)(1) through (a)(3) of this section.
    (a) Forest planning shall--
    (1) Provide an overview of known data relevant to history, 
ethnography, and prehistory of the area under consideration, including 
known cultural resource sites;
    (2) Identify areas requiring more intensive inventory;
    (3) Provide for evaluation and identification of appropriate sites 
for the National Register of Historic Places;
    (4) Provide for establishing measures for the protection of 
significant cultural resources from vandalism and other human 
depredation, and natural destruction;
    (5) Identify the need for maintenance of historic sites on, or 
eligible for inclusion in, the National Register of Historic Places; and
    (6) Identify opportunities for interpretation of cultural resources 
for the education and enjoyment of the American public.
    (b) In the formulation and analysis of alternatives, interactions 
among cultural resources and other multiple uses shall be examined. This 
examination shall consider impacts of the management of cultural 
resources on other uses and activities and impacts of other uses and 
activities on cultural resource management.
    (c) Formulation and evaluation of alternatives shall be coordinated 
to the extent feasible with the State cultural resource plan and 
planning activities of the State Historic Preservation Office and State 
Archaeologist and with other State and Federal agencies.



Sec. 219.25  Research natural areas.

    Forest planning shall provide for the establishment of Research 
Natural Areas (RNA's). Planning shall make

[[Page 75]]

provision for the identification of examples of important forest, 
shrubland, grassland, alpine, aquatic, and geologic types that have 
special or unique characteristics of scientific interest and importance 
and that are needed to complete the national network of RNA's. Biotic, 
aquatic, and geologic types needed for the network shall be identified 
using a list provided by the Chief of the Forest Service. Authority to 
establish RNA's is delegated to the Chief at 7 CFR 2.60(a) and 36 CFR 
251.23. Recommendations for establishment of areas shall be made to the 
Chief through the planning process.



Sec. 219.26  Diversity.

    Forest planning shall provide for diversity of plant and animal 
communities and tree species consistent with the overall multiple-use 
objectives of the planning area. Such diversity shall be considered 
throughout the planning process. Inventories shall include quantitative 
data making possible the evaluation of diversity in terms of its prior 
and present condition. For each planning alternative, the 
interdisciplinary team shall consider how diversity will be affected by 
various mixes of resource outputs and uses, including proposed 
management practices. (Refer to Sec. 219.27(g).)



Sec. 219.27  Management requirements.

    The minimum specific management requirements to be met in 
accomplishing goals and objectives for the National Forest System are 
set forth in this section. These requirements guide the development, 
analysis, approval, implementation, monitoring and evaluation of forest 
plans.
    (a) Resource protection. All management prescriptions shall--
    (1) Conserve soil and water resources and not allow significant or 
permanent impairment of the productivity of the land;
    (2) Consistent with the relative resource values involved, minimize 
serious or long-lasting hazards from flood, wind, wildfire, erosion, or 
other natural physical forces unless these are specifically excepted, as 
in wilderness;
    (3) Consistent with the relative resource values involved, prevent 
or reduce serious, long lasting hazards and damage from pest organisms, 
utilizing principles of integrated pest management. Under this approach 
all aspects of a pest-host system should be weighed to determine 
situation-specific prescriptions which may utilize a combination of 
techniques including, as appropriate, natural controls, harvesting, use 
of resistant species, maintenance of diversity, removal of damaged 
trees, and judicious use of pesticides. The basic principle in the 
choice of strategy is that, in the long term, it be ecologically 
acceptable and compatible with the forest ecosystem and the multiple use 
objectives of the plan;
    (4) Protect streams, streambanks, shorelines, lakes, wetlands, and 
other bodies of water as provided under paragraphs (d) and (e) of this 
section;
    (5) Provide for and maintain diversity of plant and animal 
communities to meet overall multiple-use objectives, as provided in 
paragraph (g) of this section;
    (6) Provide for adequate fish and wildlife habitat to maintain 
viable populations of existing native vertebrate species and provide 
that habitat for species chosen under Sec. 219.19 is maintained and 
improved to the degree consistent with multiple-use objectives 
established in the plan;
    (7) Be assessed prior to project implementation for potential 
physical, biological, aesthetic, cultural, engineering, and economic 
impacts and for consistency with multiple uses planned for the general 
area;
    (8) Include measures for preventing the destruction or adverse 
modification of critical habitat for threatened and endangered species;
    (9) Provide that existing significant transportation and utility 
corridors and other significant right-of-ways that are capable and 
likely to be needed to accommodate the facility or use from an 
additional compatible right-of-way be designated as a right-of-way 
corridor. Subsequent right-of-way grants will, to the extent 
practicable, and as determined by the responsible line officer, use 
designated corridors;
    (10) Ensure that any roads constructed through contracts, permits, 
or leases are designed according to standards appropriate to the planned 
uses,

[[Page 76]]

considering safety, cost of transportation, and effects upon lands and 
resources;
    (11) Provide that all roads are planned and designed to re-establish 
vegetative cover on the disturbed area within a reasonable period of 
time, not to exceed 10 years after the termination of a contract, lease 
or permit, unless the road is determined necessary as a permanent 
addition to the National Forest Transportation System; and
    (12) Be consistent with maintaining air quality at a level that is 
adequate for the protection and use of National Forest System resources 
and that meets or exceeds applicable Federal, State and/or local 
standards or regulations.
    (b) Vegetative manipulation. Management prescriptions that involve 
vegetative manipulation of tree cover for any purpose shall--
    (1) Be best suited to the multiple-use goals established for the 
area with potential environmental, biological, cultural resource, 
aesthetic, engineering, and economic impacts, as stated in the regional 
guides and forest plans, being considered in this determination;
    (2) Assure that lands can be adequately restocked as provided in 
paragraph (c)(3) of this section, except where permanent openings are 
created for wildlife habitat improvement, vistas, recreation uses and 
similar practices;
    (3) Not be chosen primarily because they will give the greatest 
dollar return or the greatest output of timber, although these factors 
shall be considered;
    (4) Be chosen after considering potential effects on residual trees 
and adjacent stands;
    (5) Avoid permanent impairment of site productivity and ensure 
conservation of soil and water resources;
    (6) Provide the desired effects on water quantity and quality, 
wildlife and fish habitat, regeneration of desired tree species, forage 
production, recreation uses, aesthetic values, and other resource 
yields; and
    (7) Be practical in terms of transportation and harvesting 
requirements, and total costs of preparation, logging, and 
administration.
    (c) Silvicultural practices. The following management requirements 
apply to timber harvest and cultural treatments:
    (1) No timber harvesting shall occur on lands classified as not 
suited for timber production pursuant to Sec. 219.14 except for salvage 
sales, sales necessary to protect other multiple-use values or 
activities that meet other objectives on such lands if the forest plan 
establishes that such actions are appropriate. These lands shall 
continue to be treated for reforestation purposes if necessary to 
achieve the multiple-use objectives of the plan.
    (2) The selected sale schedule provides the allowable sale quantity 
for the first planning period. Within the planning period, the volume of 
timber to be sold in any one year may exceed the average annual 
allowable sale quantity so long as the total amount sold for the 
planning period does not exceed the allowable sale quantity. Nothing in 
this paragraph prohibits salvage or sanitation harvesting of timber 
stands which are substantially damaged by fire, windthrow, or other 
catastrophe, or which are in imminent danger of insect or disease attack 
and where such harvests are consistent with silvicultural and 
environmental standards. Such timber may either substitute for timber 
that would otherwise be sold under the plan or, if not feasible, be sold 
over and above the planned volume.
    (3) When trees are cut to achieve timber production objectives, the 
cuttings shall be made in such a way as to assure that the technology 
and knowledge exists to adequately restock the lands within 5 years 
after final harvest. Research and experience shall be the basis for 
determining whether the harvest and regeneration practices planned can 
be expected to result in adequate restocking. Adequate restocking means 
that the cut area will contain the minimum number, size, distribution, 
and species composition of regeneration as specified in regional 
silvicultural guides for each forest type. Five years after final 
harvest means 5 years after clearcutting, 5 years after final overstory 
removal in shelterwood cutting, 5 years after the

[[Page 77]]

seed tree removal cut in seed tree cutting, or 5 years after selection 
cutting.
    (4) Cultural treatments such as thinning, weeding, and other partial 
cutting may be included in the forest plan where they are intended to 
increase the rate of growth of remaining trees, favor commercially 
valuable tree species, favor species or age classes which are most 
valuable for wildlife, or achieve other multiple-use objectives.
    (5) Harvest levels based on intensified management practices shall 
be decreased no later than the end of each planning period if such 
practices cannot be completed substantially as planned.
    (6) Timber harvest cuts designed to regenerate an even-aged stand of 
timber shall be carried out in a manner consistent with the protection 
of soil, watershed, fish and wildlife, recreation, and aesthetic 
resources, and the regeneration of the timber resource.
    (7) Timber harvest and other silvicultural treatments shall be used 
to prevent potentially damaging population increases of forest pest 
organisms. Silvicultural treatments shall not be applied where such 
treatments would make stands susceptible to pest-caused damage levels 
inconsistent with management objectives.
    (d) Even-aged management. When openings are created in the forest by 
the application of even-aged silviculture, the following management 
requirements apply:
    (1) Openings shall be located to achieve the desired combination of 
multiple-use objectives. The blocks or strips cut shall be shaped and 
blended with the natural terrain, to the extent practicable, to achieve 
aesthetic, wildlife habitat, or other objectives established in the 
plan. Regional guides shall provide guidance on dispersion of openings 
in relation to topography, climate, geography, local land use patterns, 
forest types or other factors. As a minimum, openings in forest stands 
are no longer considered openings once a new forest is established. 
Forest plans may set forth variations to this minimum based on site-
specific requirements for achieving multiple-use objectives. Regional 
guides shall provide guidance for determining variations to this minimum 
in the forest plan, based on requirements for watershed, wildlife 
habitat, scenery or other resource protection needs, or other factors.
    (2) Individual cut blocks, patches, or strips shall conform to the 
maximum size limits for areas to be cut in one harvest operation 
established by the regional guide according to geographic areas and 
forest types. This limit may be less than, but will not exceed, 60 acres 
for the Douglas-fir forest type of California, Oregon, and Washington; 
80 acres for the southern yellow pine types of Alabama, Arkansas, 
Georgia, Florida, Louisiana, Mississippi, North Carolina, South 
Carolina, Oklahoma, and Texas; 100 acres for the hemlock-sitka spruce 
forest type of coastal Alaska; and 40 acres for all other forest types 
except as provided in paragraphs (d)(2)(i) through (iii) of this 
section:
    (i) Cut openings larger than those specified may be permitted where 
larger units will produce a more desirable combination of net public 
benefits. Such exceptions shall be provided for in regional guides. The 
following factors shall be considered in evaluating harvest cuts of 
various sizes and shapes to determine size limits by geographic areas 
and forest types: Topography; relationship of units to other natural or 
artificial openings and proximity of units; coordination and consistency 
with adjacent forests and regions; effect on water quality and quantity; 
visual absorption capability; effect on wildlife and fish habitat; 
regeneration requirements for desirable tree species based upon the 
latest research findings; transportation and harvesting system 
requirements; environmental and forest pest hazards to regeneration, 
residual trees, and surrounding stands; and the relative total costs of 
preparation and administration, transportation requirements, harvesting, 
site preparation, planting, stocking control, and future stand tending 
of harvest cuts of various sizes and shapes. Specification for 
exceptions shall include the particular conditions under which the 
larger size is permitted and shall set a new maximum size permitted 
under those conditions.
    (ii) Size limits exceeding those established in paragraphs (d)(2) 
and (d)(2)(i)

[[Page 78]]

of this section are permitted on an individual timber sale basis after 
60 days' public notice and review by the Regional Forester.
    (iii) The established limit shall not apply to the size of areas 
harvested as a result of natural catastrophic condition such as fire, 
insect and disease attack, or windstorm.
    (e) Riparian areas. Special attention shall be given to land and 
vegetation for approximately 100 feet from the edges of all perennial 
streams, lakes, and other bodies of water. This area shall correspond to 
at least the recognizable area dominated by the riparian vegetation. No 
management practices causing detrimental changes in water temperature or 
chemical composition, blockages of water courses, or deposits of 
sediment shall be permitted within these areas which seriously and 
adversely affect water conditions or fish habitat. Topography, 
vegetation type, soil, climatic conditions, management objectives, and 
other factors shall be considered in determining what management 
practices may be performed within these areas or the constraints to be 
placed upon their performance.
    (f) Soil and water. Conservation of soil and water resources 
involves the analysis, protection, enhancement, treatment, and 
evaluation of soil and water resources and their responses under 
management and shall be guided by instructions in official technical 
handbooks. These handbooks must show specific ways to avoid or mitigate 
damage, and maintain or enhance productivity on specific sites. These 
handbooks may be regional in scope or, where feasible, specific to 
physiographic or climatic provinces.
    (g) Diversity. Management prescriptions, where appropriate and to 
the extent practicable, shall preserve and enhance the diversity of 
plant and animal communities, including endemic and desirable 
naturalized plant and animal species, so that it is at least as great as 
that which would be expected in a natural forest and the diversity of 
tree species similar to that existing in the planning area. Reductions 
in diversity of plant and animal communities and tree species from that 
which would be expected in a natural forest, or from that similar to the 
existing diversity in the planning area, may be prescribed only where 
needed to meet overall multiple-use objectives. Planned type conversion 
shall be justified by an analysis showing biological, economic, social, 
and environmental design consequences, and the relation of such 
conversions to the process of natural change.



Sec. 219.28  Research.

    (a) Research needs for management of the National Forest System 
shall be identified during planning and periodically reviewed during 
evaluation of implemented plans. Particular attention should be given to 
research needs identified during the monitoring and evaluation described 
in Sec. 219.12(k). These identified needs shall be included in 
formulating overall research programs and plans which involve private as 
well as public forest and rangelands.
    (b) Research needed to support or improve management of the National 
Forest System shall be established and budgeted at the research station 
and national levels. Priorities for this portion of the Forest Service 
Research Program shall be based upon the information gathered at all 
planning levels of the National Forest System.
    (c) An annual report shall be prepared at the national level with 
assistance from Regions and Stations which shall include, but not be 
limited to, a description of the status of major research programs which 
address National Forest System needs for Research, significant findings, 
and how this information is to be or has recently been applied.



Sec. 219.29  Transition period.

    (a) Until a forest planning area of the National Forest System is 
managed under a forest plan developed pursuant to this subpart and 
approved by the Regional Forester, the land may continue to be managed 
under existing land use and resource plans. As soon as practicable, 
existing plans shall be amended or revised to incorporate standards and 
guidelines in this subpart. Pending approval of a forest plan, existing 
plans may be amended or revised to include

[[Page 79]]

management requirements not inconsistent with the provisions of the RPA 
and these regulations.
    (b) Requirements of amendments to this subpart shall be incorporated 
in forest plans and regional guides through the ongoing planning 
process. Planning process steps already completed need not be repeated.
    (1) If, prior to the effective date of an amendment to this subpart, 
a forest plan either has been approved in final form or released in 
draft form for public review, the plan need not be modified to 
incorporate requirements of such amendment, until the next scheduled 
revision of the forest plan;
    (2) If, prior to the effective date of an amendment to this subpart, 
a regional guide either has been approved in final form or released in 
draft form for public review, the guide need not be modified to 
incorporate the requirements of such amendment, until a significant 
amendment to the guide is made for reasons other than incorporating 
requirements of amendments to this subpart.
    (c) A forest plan may become effective prior to the development and 
approval of its related regional guide, provided that the forest plan is 
reviewed upon regional guide approval, and if necessary, amended to 
comply with regional management direction. If such an amendment is 
significant, it shall be accomplished pursuant to the requirements for 
the development of a forest plan as set forth in this subpart.
    (d) As a result of the eruption of Mount St. Helens, a land 
management plan for the Mount St. Helens area shall be prepared 
substantially in accordance with the following procedures:
    (1) Notwithstanding any other provisions in this subpart, the area 
included in the Mount St. Helens land management plan will not be 
subject to planning activities for the first generation Gifford Pinchot 
National Forest Plan unless the Regional Forester for the Pacific 
Northwest Region determines that additional planning activities are 
desirable.
    (2) Lands which were inventoried as roadless and designated for 
nonwilderness uses in the Roadless Area Review and Evaluation (RARE II) 
shall be managed for uses other than wilderness. Except for a small part 
of the Mount Margaret roadless area (B 6071), the Mount St. Helens land 
management plan shall not consider wilderness designation for these 
lands.
    (3) Lands which were inventoried as roadless and designated as 
further planning in the Roadless Area Review and Evaluation (RARE II) 
shall be evaluated in the Mount St. Helens land management plan and 
shall be managed in accordance with that plan.

Subpart B--[Reserved]



PART 221--TIMBER MANAGEMENT PLANNING--Table of Contents




    Authority: 30 Stat. 34, 44 Stat. 242; 16 U.S.C. 475, 616.



Sec. 221.3  Disposal of national forest timber according to management plans.

    (a) Management plans for national forest timber resources shall be 
prepared and revised, as needed, for working circles or other 
practicable units of national forest. Such plans shall:
    (1) Be designed to aid in providing a continuous supply of national 
forest timber for the use and necessities of the citizens of the United 
States.
    (2) Be based on the principle of sustained yield, with due 
consideration to the condition of the area and the timber stands covered 
by the plan.
    (3) Provide, so far as feasible, an even flow of national forest 
timber in order to facilitate the stabilization of communities and of 
opportunities for employment.
    (4) Provide for coordination of timber production and harvesting 
with other uses of national forest land in accordance with the 
principles of multiple use management.
    (5) Establish the allowable cutting rate which is the maximum amount 
of timber which may be cut from the national forest lands within the 
unit by years or other periods.
    (6) Be approved by the Chief, Forest Service, unless authority for 
such approval shall be delegated to subordinates by the Chief.
    (b) When necessary to promote better utilization of national forest 
timber or

[[Page 80]]

to facilitate protection and management of the national forests, a 
management plan may include provisions for requirements of purchasers 
for processing the timber to at least a stated degree within the working 
circle, or within a stated area, and, when appropriate, by machinery of 
a stated type; and agreements for cutting in accordance with the plan 
may so require.

[13 FR 7711, Dec. 14, 1948, as amended at 28 FR 723, Jan. 26, 1963; 34 
FR 743, Jan. 17, 1969]



PART 222--RANGE MANAGEMENT--Table of Contents




   Subpart A--Grazing and Livestock Use on the National Forest System

Sec.
222.1  Authority and definitions.
222.2  Management of the range environment.
222.3  Issuance of grazing and livestock use permits.
222.4  Changes in grazing permits.
222.6  Compensation for permittees' interest in authorized permanent 
          improvements.
222.7  Cooperation in management.
222.8  Cooperation in control of estray or unbranded livestock, animal 
          diseases, noxious farm weeds, and use of pesticides.
222.9  Range improvements.
222.10  Range betterment fund.
222.11  Grazing advisory boards.

      Subpart B--Management of Wild Free-Roaming Horses and Burros

222.20  Authority and definitions.
222.21  Administration of wild free-roaming horses and burros and their 
          environment.
222.22  Ownership claims.
222.23  Removal of other horses and burros.
222.24  Use of helicopters, fixed-wing aircraft and motor vehicles.
222.25  Protection of wild free-roaming horses and burros when they are 
          upon other than the National Forest System or public lands.
222.26  Removal of wild free-roaming horses and burros from private 
          lands.
222.27  Maintenance of wild free-roaming horses and burros on privately-
          owned lands.
222.28  Agreements.
222.29  Relocation and disposal of animals.
222.30  Disposal of carcasses.
222.31  Loss of status.
222.32  Use of non-Forest Service personnel.
222.33  Management coordination.
222.34  National Advisory Board.
222.35  Studies.
222.36  Arrest.

                         Subpart C--Grazing Fees

222.50  General procedures.
222.51  National Forests in 16 Western States.
222.52  National Grasslands.
222.53  Grazing fees in the East--noncompetitive procedures.
222.54  Grazing fees in the East--competitive bidding.

    Authority: 7 U.S.C. 1010-1012; 16 U.S.C. 551; 16 U.S.C. 572; 31 
U.S.C. 9701; 43 U.S.C. 1901; E.O. 12548, 51 FR 1986 Comp., p. 188.



   Subpart A--Grazing and Livestock Use on the National Forest System

    Authority: 92 Stat. 1803, as amended (43 U.S.C. 1901), 85 Stat. 649, 
as amended (16 U.S.C. 1331-1340); sec. 1, 30 Stat. 35, as amended (18 
U.S.C. 551); sec. 32, 50 Stat. 522, as amended (7 U.S.C. 1011).

    Source: 42 FR 56732, Oct. 28, 1977, unless otherwise noted.



Sec. 222.1  Authority and definitions.

    (a) Authority. The Chief, Forest Service, shall develop, administer 
and protect the range resources and permit and regulate the grazing use 
of all kinds and classes of livestock on all National Forest System 
lands and on other lands under Forest Service control. He may redelegate 
this authority.
    (b) Definitions. (1) An allotment is a designated area of land 
available for livestock grazing.
    (2) An allotment management plan is a document that specifies the 
program of action designated to reach a given set of objectives. It is 
prepared in consultation with the permittee(s) involved and:
    (i) Prescribes the manner in and extent to which livestock 
operations will be conducted in order to meet the multiple-use, 
sustained yield, economic, and other needs and objectives as determined 
for the lands, involved; and
    (ii) Describes the type, location, ownership, and general 
specifications for the range improvements in place or to be installed 
and maintained on the lands to meet the livestock grazing and other 
objectives of land management; and
    (iii) Contains such other provisions relating to livestock grazing 
and other objectives as may be prescribed by the

[[Page 81]]

Chief, Forest Service, consistent with applicable law.
    (3) Base property is land and improvements owned and used by the 
permittee for a farm or ranch operation and specifically designated by 
him to qualify for a term grazing permit.
    (4) Cancel means action taken to permanently invalidate a term 
grazing permit in whole or in part.
    (5) A grazing permit is any document authorizing livestock to use 
National Forest System or other lands under Forest Service control for 
the purpose of livestock production including:
    (i) Temporary grazing permits for grazing livestock temporarily and 
without priority for reissuance.
    (ii) Term permits for up to 10 years with priority for renewal at 
the end of the term.
    (6) Land subject to commercial livestock grazing means National 
Forest System lands within established allotments.
    (7) Lands within National Forest in the 16 contiguous western States 
means lands designated as National Forest within the boundaries of 
Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, 
New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, 
Washington, and Wyoming (National Grasslands are excluded).
    (8) Livestock means animals of any kind kept or raised for use or 
pleasure.
    (9) Livestock use permit means a permit issued for not to exceed one 
year where the primary use is for other than grazing livestock.
    (10) Modify means to revise the terms and conditions of an issued 
permit.
    (11) National Forest System lands, are the National Forests, 
National Grasslands, Land Utilization Projects, and other Federal lands 
for which the Forest Service has administrative jurisdiction.
    (12) On-and-off grazing permits are permits with specific provisions 
on range only part of which is National Forest System lands or other 
lands under Forest Service control.
    (13) On-the-ground expenditure means payment of direct project costs 
of implementing an improvement or development, such as survey and 
design, equipment, labor and material (or contract) costs, and on-the-
ground supervision.
    (14) Other lands under Forest Service control are non-Federal public 
and private lands over which the Forest Service has been given control 
through lease, agreement, waiver, or otherwise.
    (15) Private land grazing permits are permits issued to persons who 
control grazing lands adjacent to National Forest System lands and who 
waive exclusive grazing use of these lands to the United States for the 
full period the permit is to be issued.
    (16) Permittee means any person who has been issued a grazing 
permit.
    (17) Permitted livestock is livestock authorized by a written 
permit.
    (18) Person means any individual, partnership, corporation, 
association, organization, or other private entity, but does not include 
Government Agencies.
    (19) Range betterment means rehabilitation, protection and 
improvement of National Forest System lands to arrest range 
deterioration and improve forage conditions, fish and wildlife habitat, 
watershed protection, and livestock production.
    (20) Range betterment fund means the fund established by title IV, 
section 401(b)(1), of the Federal Land Policy and Management Act of 
1976. This consists of 50 percent of all monies received by the United 
States as fees for grazing livestock on the National Forests in the 16 
contiguous western States.
    (21) Range Improvement means any activity or program designed to 
improve production of forage and includes facilities or treatments 
constructed or installed for the purpose of improving the range resource 
or the management of livestock and includes the following types:
    (i) Non-structural which are practices and treatments undertaken to 
improve range not involving construction of improvements.
    (ii) Structural which are improvements requiring construction or 
installation undertaken to improve the range or to facilitate management 
or to control distribution and movement of livestock.
    (A) Permanent which are range improvements installed or constructed 
and become a part of the land such as:

[[Page 82]]

dams, ponds, pipelines, wells, fences, trails, seeding, etc.
    (B) Temporary which are short-lived or portable improvements that 
can be removed such as: troughs, pumps and electric fences, including 
improvements at authorized places of habitation such as line camps.
    (22) Suspend means temporary withholding of a term grazing permit 
privilege, in whole or in part.
    (23) Term period means the period for which term permits are issued, 
the maximum of which is 10 years.
    (24) Transportation livestock is livestock used as pack and saddle 
stock for travel on the National Forest System.

(Sec. 1, 30 Stat. 35, as amended (16 U.S.C. 551); sec. 1, 33 Stat. 628 
(16 U.S.C. 472); sec. 32, 50 Stat. 525, as amended (7 U.S.C. 1011); sec. 
19, 64 Stat. 88 (16 U.S.C. 580l); Title IV, Pub. L. 94, 90 Stat. 2771 
(43 U.S.C. 1751, et seq.); 92 Stat. 1803 (43 U.S.C. 1901))

[42 FR 56732, Oct. 28, 1977, as amended at 44 FR 61345, Oct. 25, 1979]



Sec. 222.2  Management of the range environment.

    (a) Allotments will be designated on the National Forest System and 
on other lands under Forest Service control where the land is available 
for grazing. Associated private and other public lands should, but only 
with the consent of the landowner, lessee, or agency, be considered in 
such designations to form logical range management units.
    (b) Each allotment will be analyzed and with careful and considered 
consultation and cooperation with the affected permittees, landowners, 
and grazing advisory boards involved, as well as the State having land 
within the area covered, and an allotment management plan developed. The 
plan will then be approved and implemented. The analysis and plan will 
be updated as needed.
    (c) Forage producing National Forest System lands will be managed 
for livestock grazing and the allotment management plans will be 
prepared consistent with land management plans.

(Sec. 1, 30 Stat. 35, as amended (16 U.S.C. 551); sec. 1, 33 Stat. 628 
(16 U.S.C. 472); sec. 32, 50 Stat. 525, as amended (7 U.S.C. 1011); sec. 
19, 64 Stat. 88 (16 U.S.C. 5801); Title IV, Pub. L. 94, 90 Stat. 2771 
(43 U.S.C. 1751, et seq.); 92 Stat. 1803 (43 U.S.C. 1901))

[42 FR 56732, Oct. 28, 1977, as amended at 44 FR 61346, Oct. 25, 1979; 
46 FR 42449, Aug. 21, 1981]



Sec. 222.3  Issuance of grazing and livestock use permits.

    (a) Unless otherwise specified by the Chief, Forest Service, all 
grazing and livestock use on National Forest System lands and on other 
lands under Forest Service control must be authorized by a grazing or 
livestock use permit.
    (b) Grazing permits and livestock use permits convey no right, 
title, or interest held by the United States in any lands or resources.
    (c) The Chief, Forest Service, is authorized to issue permits for 
livestock grazing and other use by livestock of the National Forest 
System and on other lands under Forest Service control as follows:
    (1) Grazing permits with priority for renewal may be issued as 
follows: On National Forests in the 16 contiguous western States 10-year 
term permits will be issued unless the land is pending disposal, or will 
be devoted to other uses prior to the end of ten years, or it will be in 
the best interest of sound land management to specify a shorter term. On 
National Forest System lands other than National Forests in the 16 
contiguous western States, the permit term shall be for periods of 10 
years or less. Term grazing permits for periods of 10 years or less in 
the form of grazing agreements may be issued to cooperative grazing 
associations or similar organizations incorporated or otherwise 
established pursuant to State law. Such an agreement will make National 
Forest System lands and improvements available to the association for 
grazing in accordance with provisions of the grazing agreement and 
Forest Service

[[Page 83]]

policies. Term permits authorized in this paragraph may be in the form 
of private land or on-and-off grazing permits where the person is 
qualified to hold such permits under provisions the Chief may require. 
Permits issued under this paragraph are subject to the following:
    (i) Except as provided for by the Chief, Forest Service, paid term 
permits will be issued to persons who own livestock to be grazed and 
such base property as may be required, provided the land is determined 
to be available for grazing purposes by the Chief, Forest Service, and 
the capacity exists to graze specified numbers of animals.
    (ii) A term permit holder has first priority for receipt of a new 
permit at the end of the term period provided he has fully complied with 
the terms and conditions of the expiring permit.
    (iii) In order to update terms and conditions, term permits may be 
cancelled at the end of the calendar year of the midyear of the decade 
(1985, 1995, etc.), provided they are reissued to the existing permit 
holder for a new term of 10 years.
    (iv) New term permits may be issued to the purchaser of a 
permittee's permitted livestock and/or base property, provided the 
permittee waives his term permit to the United States and provided the 
purchaser is otherwise eligible and qualified.
    (v) If the permittee chooses to dispose of all or part of his base 
property or permitted livestock (not under approved nonuse) but does not 
choose to waive his term permit, the Forest Supervisor will give written 
notice that he no longer is qualified to hold a permit, provided he is 
given up to one year to reestablish his qualifications before 
cancellation action is final.
    (vi) The Chief, Forest Service, shall prescribe provisions and 
requirements under which term permits will be issued, renewed, and 
administered, including:
    (A) The amount and character of base property and livestock the 
permit holder shall be required to own.
    (B) Specifying the period of the year the base property shall be 
capable of supporting permitted livestock.
    (C) Acquisition of base property and/or permitted livestock.
    (D) Conditions for the approval of nonuse of permit for specified 
periods.
    (E) Upper and special limits governing the total number of livestock 
for which a person is entitled to hold a permit.
    (F) Conditions whereby waiver of grazing privileges may be confirmed 
and new applicants recognized.
    (2) Permits with no priority for reissuance, subject to terms and 
conditions as the Chief, Forest Service, may prescribe, are authorized 
as follows:
    (i) Temporary grazing permits for periods not to exceed one year, 
and on a charge basis, may be issued:
    (A) To allow for use of range while a term grazing permit is held in 
suspension.
    (B) To use forage created by unusually favorable climatic 
conditions.
    (C) To use the forage available when the permit of the normal user's 
livestock is in nonuse status for reasons of personal convenience.
    (D) To allow a person to continue to graze livestock for the 
remainder of the grazing season where base property has been sold, the 
permit waived, and a new term permit issued.
    (E) To allow grazing use in the event of drought or other emergency 
of National or Regional scope where such use would not result in 
permanent resource damage.
    (ii) Livestock use permits for not to exceed one year may be issued 
under terms and conditions prescribed by the Chief, Forest Service, as 
follows:
    (A) Paid permits for transportation livestock to persons engaged in 
commercial packing, dude ranching, or other commercial enterprises which 
involve transportation livestock including mining, ranching, and 
logging, activities.
    (B) Paid or free permits for research purposes and administrative 
studies.
    (C) Paid or free permits to trail livestock across National Forest 
System lands.
    (D) Free permits to persons who reside on ranch or agricultural 
lands within or contiguous to National Forest System lands for not to 
exceed 10 head of livestock owned or kept and whose products are 
consumed or whose services are used directly by the family of the 
resident, and who distinctly need

[[Page 84]]

such National Forest System lands to support such animals.
    (E) Free permits to campers and travelers for the livestock actually 
used during the period of occupancy. This may be authorized without 
written permit.
    (F) Paid or free permits for horses, mules, or burros to persons who 
clearly need National Forest System land to support the management of 
permitted livestock.
    (G) Free permits for horses, mules, or burros to cooperators who 
clearly need National Forest System land to support research, 
adminstration or other work being conducted. This may be authorized 
without written permit.
    (H) Paid permits to holders of grazing permits for breeding animals 
used to service livestock permitted to graze on lands administered by 
the Forest Service.
    (I) Paid permits or cooperative agreements entered into as a 
management tool to manipulate revegation on a given parcel of land.

[42 FR 56732, Oct. 28, 1977, as amended at 43 FR 27532, June 26, 1978; 
44 FR 61345, Oct. 25, 1979; 46 FR 42449, Aug. 21, 1981]



Sec. 222.4  Changes in grazing permits.

    (a) The Chief, Forest Service, is authorized to cancel, modify, or 
suspend grazing and livestock use permits in whole or in part as 
follows:
    (1) Cancel permits where lands grazed under the permit are to be 
devoted to another public purpose including disposal. In these cases, 
except in an emergency, no permit shall be cancelled without two years' 
prior notification.
    (2) Cancel the permit in the event the permittee:
    (i) Refuses to accept modification of the terms and conditions of an 
existing permit.
    (ii) Refuses or fails to comply with eligibility or qualification 
requirements.
    (iii) Waives his permit back to the United States.
    (iv) Fails to restock the allotted range after full extent of 
approved personal convenience non-use has been exhausted.
    (v) Fails to pay grazing fees within established time limits.
    (3) Cancel or suspend the permit if the permittee fails to pay 
grazing fees within established time limit.
    (4) Cancel or suspend the permit if the permittee does not comply 
with provisions and requirements in the grazing permit or the 
regulations of the Secretary of Agriculture on which the permit is 
based.
    (5) Cancel or suspend the permit if the permittee knowingly and 
willfully makes a false statement or representation in the grazing 
application or amendments thereto.
    (6) Cancel or suspend the permit if the permit holder is convicted 
for failing to comply with Federal laws or regulations or State laws 
relating to protection of air, water, soil and vegetation, fish and 
wildlife, and other environmental values when exercising the grazing use 
authorized by the permit.
    (7) Modify the terms and conditions of a permit to conform to 
current situations brought about by changes in law, regulation, 
executive order, development or revision of an allotment management 
plan, or other management needs.
    (8) Modify the seasons of use, numbers, kind, and class of livestock 
allowed or the allotment to be used under the permit, because of 
resource condition, or permittee request. One year's notice will be 
given of such modification, except in cases of emergency.
    (b) Association permits or grazing agreements may be canceled for 
noncompliance with title VI of the Civil Rights Act of 1964 and 
Department of Agriculture regulation promulgated thereunder.

[42 FR 56732, Oct. 28, 1977, as amended at 46 FR 42449, Aug. 21, 1981]



Sec. 222.6  Compensation for permittees' interest in authorized permanent improvements.

    (a) Whenever a term permit for grazing livestock on National Forest 
land in the 16 contiguous western States is canceled in whole or in part 
to devote the lands covered by the permit to another public purpose, 
including disposal, the permittee shall receive from the United States a 
reasonable compensation for the adjusted value of his

[[Page 85]]

interest in authorized permanent improvements placed or constructed by 
him on the lands covered by the canceled permit. The adjusted value is 
to be determined by the Chief, Forest Service. Compensation received 
shall not exceed the fair market value of the terminated portion of the 
permittee's interest therein.
    (b) In the event a permittee waives his grazing permit in connection 
with sale of his base property or permitted livestock, he is not 
entitled to compensation.

(Sec. 1, 30 Stat. 35, as amended (16 U.S.C. 551); sec. 1, 33 Stat. 628 
(16 U.S.C. 472); sec. 32, 50 Stat. 525, as amended (7 U.S.C. 1011); sec. 
19, 64 Stat. 88 (16 U.S.C. 5801); Title IV, Pub. L. 94, 90 Stat. 2771 
(43 U.S.C. 1751, et seq.); 92 Stat. 1803 (43 U.S.C. 1901))

[42 FR 56732, Oct. 28, 1977, as amended at 44 FR 61345, Oct. 25, 1979]



Sec. 222.7  Cooperation in management.

    (a) Cooperation with local livestock associations--(1) Authority. 
The Chief, Forest Service, is authorized to recognize, cooperate with, 
and assist local livestock associations in the management of the 
livestock and range resources on a single range allotment, associated 
groups of allotments, or other association-controlled lands on which the 
members' livestock are permitted to graze.
    (2) Purposes. These associations will provide the means for the 
members to:
    (i) Manage their permitted livestock and the range resources.
    (ii) Meet jointly with Forest officers to discuss and formulate 
programs for management of their livestock and the range resources.
    (iii) Express their wishes through their designated officers or 
committees.
    (iv) Share costs for handling of livestock, construction and 
maintenance of range improvements or other accepted programs deemed 
needed for proper management of the permitted livestock and range 
resources.
    (v) Formulate association special rules needed to ensure proper 
resource management.
    (3) Requirements for recognition. The requirements for receiving 
recognition by the Forest Supervisor are:
    (i) The members of the association must constitute a majority of the 
grazing permittees on the range allotment or allotments involved.
    (ii) The officers of the association must be elected by a majority 
of the association members or of a quorum as specified by the 
association's constitution and bylaws.
    (iii) The officers other than the Secretary and Treasurer must be 
grazing permittees on the range allotment or allotments involved.
    (iv) The association's activities must be governed by a constitution 
and bylaws acceptable to the Forest Supervisor and approved by him.
    (4) Withdrawing recognition. The Forest Supervisor may withdraw his 
recognition of the association whenever:
    (i) The majority of the grazing permittees request that the 
association be dissolved.
    (ii) The association becomes inactive, and does not meet in annual 
or special meetings during a consecutive 2-year period.
    (b) Cooperation with national, State, and county livestock 
organizations. The policies and programs of national, State, and county 
livestock organizations give direction to, and reflect in, the practices 
of their members. Good working relationships with these groups is 
conducive to the betterment of range management on both public and 
private lands. The Chief, Forest Service, will endeavor to establish and 
maintain close working relationships with National livestock 
organizations who have an interest in the administration of National 
Forest System lands, and direct Forest officers to work cooperatively 
with State and county livestock organizations having similar interests.
    (c) Interagency cooperation. The Chief, Forest Service, will 
cooperate with other Federal agencies which have interest in improving 
range management on public and private lands.
    (d) Cooperation with others. The Chief, Forest Service, will 
cooperate with other agencies, institutions, organizations, and 
individuals who have interest in improvement of range management on 
public and private lands.

[[Page 86]]



Sec. 222.8  Cooperation in control of estray or unbranded livestock, animal diseases, noxious farm weeds, and use of pesticides.

    (a) Insofar as it involves National Forest System lands and other 
lands under Forest Service control or the livestock which graze 
thereupon, the Chief, Forest Service, will cooperate with:
    (1) State, county, and Federal agencies in the application and 
enforcement of all laws and regulations relating to livestock diseases, 
sanitation and noxious farm weeds.
    (2) The Animal and Plant Health Inspection Service and other Federal 
or State agencies and institutions in surveillance of pesticides spray 
programs; and
    (3) State cattle and sheep sanitary or brand boards in control of 
estray and unbranded livestock to the extent it does not conflict with 
the Wild Free-Roaming Horse and Burro Act of December 15, 1971.
    (b) The Chief, Forest Service, will cooperate with county or other 
local weed control districts in analyzing noxious farm weed problems and 
developing control programs in areas of which the National Forests and 
National Grasslands are a part.

(85 Stat. 649 (16 U.S.C. 1331-1340))



Sec. 222.9  Range improvements.

    (a) The Chief, Forest Service, is authorized to install and maintain 
structural and nonstructural range improvements needed to manage the 
range resource on National Forest System lands and other lands 
controlled by the Forest Service.
    (b) Such improvements may be constructed or installed and 
maintained, or work performed by individuals, organizations or agencies 
other than the Forest Service subject to the following:
    (1) All improvements must be authorized by cooperative agreement or 
memorandum of understanding, the provisions of which become a part of 
the grazing permit(s).
    (2) Title to permanent structural range improvements shall rest in 
the United States.
    (3) Title to temporary structural range improvements may be retained 
by the Cooperator where no part of the cost for the improvement is borne 
by the United States.
    (4) Title to nonstructural range improvements shall vest in the 
United States.
    (5) Range improvement work performed by a cooperator or permittee on 
National Forest System lands shall not confer the exclusive right to use 
the improvement or the land influenced.
    (c) A user of the range resource on National Forest System lands and 
other lands under Forest Service control may be required by the Chief, 
Forest Service, to maintain improvements to specified standards.
    (d) Grazing fees or the number of animal months charged shall not be 
adjusted to compensate permittees for range improvement work performed 
on National Forest System lands: Provided, That, in accordance with 
section 32(c), title III, Bankhead-Jones Farm Tenant Act, the cost to 
grazing users in complying with requirements of a grazing permit or 
agreement may be considered in determining the annual grazing fee on 
National Grasslands or land utilization projects if it has not been used 
in establishing the grazing base value.



Sec. 222.10  Range betterment fund.

    In addition to range development which is accomplished through funds 
from the rangeland management budget line item and the Granger-Thye Act, 
and deposited and nondeposited cooperative funds, range development may 
also be accomplished through use of the range betterment fund as 
follows:
    (a) On National Forest land within the 16 contiguous western States, 
the Chief, Forest Service, shall implement range improvement programs 
where necessary to arrest range deterioration and improve forage 
conditions with resulting benefits to wildlife, watershed protection, 
and livestock production. One-half of the available funds will be 
expended on the National Forest where derived. The remaining one-half of 
the fund will be allocated for range rehabilitation, protection and 
improvements on National Forest lands within the Forest Service Regions 
where they were derived. During the planning process there will be 
consultation with grazing permittees who will be affected

[[Page 87]]

by the range rehabilitation, protection and improvements, and other 
interested persons or organizations.
    (b) Range betterment funds shall be utilized only for on-the-ground 
expenditure for range land betterment, including, but not limited to, 
seeding and reseeding, fence construction, water development, weed and 
other plant control, and fish and wildlife habitat enhancement within 
allotments.

(Sec. 1, 30 Stat. 35, as amended (16 U.S.C. 551); sec. 1, 33 Stat. 628 
(16 U.S.C. 472); sec. 32, 50 Stat. 525, as amended (7 U.S.C. 1011); sec. 
19, 64 Stat. 88 (16 U.S.C. 5801); Title IV, Pub. L. 94, 90 Stat. 2771 
(43 U.S.C. 1751, et seq.); 92 Stat. 1803 (43 U.S.C. 1901))

[42 FR 56732, Oct. 28, 1977, as amended at 44 FR 61345, Oct. 25, 1979]



Sec. 222.11  Grazing advisory boards.

    (a) Establishment. Persons holding term permits to graze livestock 
on National Forest System lands with headquarters, office in the 16 
contiguous western States having jurisdiction over more than 500,000 
acres of land subject to commercial livestock grazing may petition the 
Forest Supervisor for establishment of a statutory grazing advisory 
board in accordance with provisions of the Federal Land Policy and 
Management Act of 1976.
    (1) Upon being properly petitioned by a simple majority (more than 
50 percent) of term grazing permittees under the jurisdiction of such 
headquarters office, the Secretary shall establish and maintain at least 
one grazing advisory board.
    (2) The Chief, Forest Service, shall determine the number of such 
boards, the area to be covered, and the number of advisers on each 
board.
    (3) Processing Petitions. Upon receiving a proper petition from the 
grazing permittees, the Forest Supervisor will request the Chief, Forest 
Service, through the Regional Forester, to initiate action to establish 
grazing advisory boards in accordance with regulations of the Secretary 
of Agriculture. Grazing advisory boards will comply with the provisions 
of the Federal Advisory Committee Act.
    (b) Membership. Grazing advisory boards established under this 
authority shall consist of members who are National Forest System term 
permittees under the jurisdiction of a National Forest headquarters 
office in the 16 contiguous western States, provided board members shall 
be elected by term grazing permittees in the area covered by the board.
    (c) Elections. The Forest Supervisor of the headquarters office 
shall prescribe and oversee the manner in which permittees are nominated 
and board members are elected. Nominations will be made by petition with 
all term grazing permittees under the jurisdiction of such headquarters 
office being eligible for membership on the board. All members of the 
board will be elected by secret ballot with each term grazing permittee 
in the area covered by the board being qualified to vote. No person 
shall be denied the opportunity to serve as a grazing advisory board 
member because of race, color, sex, religion, or national origin. No 
board member shall concurrently serve on another USDA advisory 
committee. The Forest Supervisor shall determine and announce the 
results of the election of the members of the board and shall recognize 
the duly elected board as representing National Forest System term 
grazing permittees in the areas for which it is established. Board 
members will be elected to terms not to exceed 2 years.
    (d) Charter and bylaws. (1) The Forest Supervisor will prepare a 
charter to be filed with the Department and the Congress as required by 
Section 9(c) of the Federal Advisory Committee Act.
    (2) A duly recognized grazing advisory board may, with the 
concurrence of a majority of its members and the Forest Supervisor, 
adopt bylaws to govern its proceedings.
    (e) Function. The function of grazing advisory boards will be to 
offer advice and make recommendations concerning the development of 
allotment management plans and the utilization of range betterment 
funds.
    (f) Meetings. The Forest Supervisor shall call at least one meeting 
of each board annually, and call additional meetings as needed to meet 
the needs of the permittees and the Forest Service. Each meeting shall 
be conducted in accordance with an agenda approved by the Forest 
Supervisor and in the presence of a Forest officer.

[[Page 88]]

    (g) Termination. (1) Grazing advisory boards established under the 
Federal Land Policy and Management Act of 1976 shall continue until 
December 31, 1985, unless terminated earlier.
    (2) The Forest Supervisor may withdraw recognition of any board 
whenever:
    (i) A majority of the term grazing permittees for the area which the 
board represents requests that the board be dissolved.
    (ii) The board becomes inactive and does not meet at least once each 
calendar year.

(86 Stat. 770 (5 U.S.C., App. 1); sec. 1, 30 Stat. 35, as amended (16 
U.S.C. 551); sec. 1, 33 Stat. 628 (16 U.S.C. 472); sec. 32, 50 Stat. 
525, as amended (7 U.S.C. 1011); sec. 19, 64 Stat. 88 (16 U.S.C. 5801); 
Title IV, Pub. L. 94, 90 Stat. 2771 (43 U.S.C. 1751, et seq.); 92 Stat. 
1803 (43 U.S.C. 1901))

[42 FR 56732, Oct. 28, 1977, as amended at 43 FR 27532, June 26, 1978; 
44 FR 61345, Oct. 25, 1979]



      Subpart B--Management of Wild Free-Roaming Horses and Burros

    Authority: 85 Stat. 649, as amended (16 U.S.C. 1331-1340); sec. 1, 
30 Stat. 35, as amended (16 U.S.C. 551); sec. 32, 50 Stat. 522, as 
amended (7 U.S.C. 1011); 92 Stat. 1803 (43 U.S.C. 1901 note).

    Source: 45 FR 24135, Apr. 9, 1980, unless otherwise noted.



Sec. 222.20  Authority and definitions.

    (a) Authority. The Chief, Forest Service, shall protect, manage, and 
control wild free-roaming horses and burros on lands of the National 
Forest System and shall maintain vigilance for the welfare of wild free-
roaming horses and burros that wander or migrate from the National 
Forest System. If these animals also use lands administered by the 
Bureau of Land Management as a part of their habitat, the Chief, Forest 
Service, shall cooperate to the fullest extent with the Department of 
the Interior through the Bureau of Land Management in administering the 
animals.
    (b) Definitions.
    (1) Act means the Act of December 15, 1971 (85 Stat. 649, as 
amended, 16 U.S.C. 1331-1340).
    (2) Captured animal means a wild free-roaming horse or burro taken 
and held in the custody of an authorized officer, his delegate, or 
agent. This term does not apply to an animal after it is placed in 
private custody through a Private Maintenance and Care agreement.
    (3) Excess animals means wild free-roaming horses and burros which 
have been removed by authorized personnel pursuant to applicable law or 
which must be removed from an area in order to preserve and maintain a 
thriving natural ecological balance in coordination with other resources 
and activities.
    (4) Herd means one or more stallions and their mares, or jacks and 
their jennies.
    (5) Humane treatment means kind and merciful treatment, without 
causing unnecessary stress or suffering to the animal.
    (6) Inhumane treatment means causing physical stress to an animal 
through any harmful action or omission that is not compatible with 
standard animal husbandry practices; causing or allowing an animal to 
suffer from a lack of necessary food, water, or shelter; using any 
equipment, apparatus, or technique during transportation, domestication, 
or handling that causes undue injury to an animal; or failing to treat 
or care for a sick or injured animal.
    (7) Lame means a wild free-roaming horse or burro with 
malfunctioning muscles, ligaments or limbs that impair freedom of 
movement.
    (8) Malicious harassment means any intentional act demonstrating 
deliberate disregard for the well-being of wild free-roaming horses and 
burros and which creates a likelihood of injury or is detrimental to 
normal behavior pattern of wild free-roaming horses or burros including 
feeding, watering, resting, and breeding. Such acts include, but are not 
limited to, unauthorized chasing, pursuing, herding, roping, or 
attempting to gather wild free-roaming horses or burros. It does not 
apply to activities conducted by or on behalf of the Forest Service or 
the Bureau of Land Management in implementation or performance of duties 
and responsibilities under the Act.

[[Page 89]]

    (9) National Advisory Board means the Advisory Board as established 
jointly by the Secretary of Agriculture and the Secretary of the 
Interior under the provisions of the Act.
    (10) National Forest System includes the National Forests, National 
Grasslands, and other Federal lands for which the Forest Service has 
administrative jurisdiction.
    (11) Old means a wild free-roaming horse or burro characterized by 
inability to fend for itself because of age, physical deterioration, 
suffering or closeness to death.
    (12) Sick means a wild free-roaming horse or burro with failing 
health, infirmness, or disease from which there is little chance of 
recovery.
    (13) Wild free-roaming horses and burros mean all unbranded and 
unclaimed horses and burros and their progeny that have used lands of 
the National Forest System on or after December 15, 1971, or do 
hereafter use these lands as all or part of their habitat, but does not 
include any horse or burro introduced onto the National Forest System on 
or after December 15, 1971, by accident, negligence, or willful 
disregard of private ownership. Unbranded, claimed horses and burros for 
which the claim is found to be erroneous, are also considered as wild 
and free-roaming if they meet the criteria above.
    (14) Wild-horse and burro range means an area of National Forest 
System specifically so designated by the Chief, Forest Service, from 
wild horse and burro territory, for the purpose of sustaining an 
existing herd or herds of wild free-roaming horses and burros, provided 
the range does not exceed known territorial limits and is devoted 
principally, but not necessarily exclusively, to the welfare of the wild 
horses and burros, in keeping with the multiple-use management concept 
for the National Forest System.
    (15) Wild horse and burro territory means lands of the National 
Forest System which are identified by the Chief, Forest Service, as 
lands which were territorial habitat of wild free-roaming horses and/or 
burros at the time of the passage of the Act.



Sec. 222.21  Administration of wild free-roaming horses and burros and their environment.

    (a) The Chief, Forest Service, shall:
    (1) Administer wild free-roaming horses and burros and their progeny 
on the National Forest System in the areas where they now occur (wild 
horse and burro territory) to maintain a thriving ecological balance 
considering them an integral component of the multiple use resources, 
and regulating their population and accompanying need for forage and 
habitat in correlation with uses recognized under the Multiple-Use 
Sustained Yield Act of 1960 (70 Stat. 215; 16 U.S.C. 528-531);
    (2) Provide direct administration for the welfare of wild free-
roaming horses and burros that are located on the National Forest System 
by use of the Forest Service organization rather than by the granting of 
leases and permits for maintenance of these animals to individuals and 
organizations;
    (3) Establish wild horse and burro territories in accordance with 
the Act and continue recognition of such territories where it is 
determined that horses and/or burros will be recognized as part of the 
natural system, and designate areas within these territories as a 
specific wild horse and burro range in those situations where he 
determines such designation as especially fitting to meet the purposes 
of the Act and the Multiple Use Sustained-Yield Act, after consultation 
with the appropriate State agencies where such range is proposed and 
with the National Advisory Board;
    (4) Analyze each wild horse or burro territory and, based on the 
analysis, develop and implement a management plan, which analysis and 
plans will be updated, whenever needed, as determined by conditions on 
each territory;
    (5) Maintain a current inventory of wild free-roaming horses and 
burros on each territory to determine whether and where excess animals 
exists;
    (6) Based on paragraphs (a) (4) and (5) of this section, determine 
appropriate management levels, whether action should be taken to remove 
excess animals and what actions are appropriate to achieve the removal 
or destruction of excess animals; and

[[Page 90]]

    (7) In making determinations cited in this section, the authorized 
officer shall consult with the U.S. Fish and Wildlife Service, wildlife 
agencies in the State, individuals and organizations independent of 
Federal or State Government recommended by the National Academy of 
Sciences, and any other individual or organizations determined to have 
scientific expertise or special knowledge of wild horse and burro 
protection, wildlife management and animal husbandry as related to range 
management.



Sec. 222.22  Ownership claims.

    (a) Any person claiming ownership under State branding and estray 
laws of branded or unbranded horses or burros within a wild horse or 
burro territory or range on the National Forest System where such 
animals are not authorized must present evidence of ownership to justify 
a roundup before permission will be granted to gather such animals. 
Claims of ownership with supporting evidence were required to be filed 
during a claiming period which expired November 15, 1973. Unauthorized 
privately owned horses or burros entering the National Forest System 
after November 15, 1973, which become intermingled with wild horses or 
burros, may be claimed by filing an application with the District 
Ranger. All authorizations to gather claimed animals shall be in writing 
in accordance with instructions as the Chief, Forest Service, may 
prescribe. After such public notice as an authorized officer deems 
appropriate to inform interested parties, gathering operations may be 
authorized. The authorization shall provide that the gathering or 
roundup be consistent with regulations, and will (1) establish a 
specific reasonable period of time to allow the gathering of claimed 
animals and (2) stipulate other conditions, including visual observation 
by Forest Service personnel deemed necessary to ensure humane treatment 
of associated wild free-roaming horses and burros and to protect other 
resources involved.
    (b) Prior to removal of claimed animals which have been captured 
from the National Forest System, claimants shall substantiate their 
claim of ownership in accordance with whatever criteria are 
cooperatively agreed to between the Forest Service and the State agency 
administering the State estray laws. In the absence of an agreement, 
ownership claims shall be substantiated in accordance with State law and 
subject to approval of the Forest Service.



Sec. 222.23  Removal of other horses and burros.

    Horses and burros not within the definition in Sec. 222.20(b)(13) 
which are introduced onto Wild Horse and Burro Territories or ranges 
after December 15, 1971, by accident, negligence, or willful disregard 
of private ownership, and which do not become intermingled with wild 
free-roaming horses or burros shall be considered as unauthorized 
livestock and treated in accordance with provisions in 36 CFR 261.7 and 
262.10.

[61 FR 35959, July 9, 1996]



Sec. 222.24  Use of helicopters, fixed-wing aircraft and motor vehicles.

    The Chief, Forest Service, is authorized to use helicopters, fixed-
wing aircraft, and motor vehicles in a manner that will ensure humane 
treatment of wild free-roaming horses and burros as provided by the 
following paragraphs:
    (a) Prior to using helicopters in capture operations and/or using 
motor vehicles for the purpose of transporting captured animals, a 
public meeting will be held in the proximity of the territory where the 
capture operation is proposed.
    (b) Helicopters may be used in all phases of the administration of 
the Act including, but not limited to, inventory, observation, 
surveillance, and capture operations. In capture operations, helicopters 
may be used to locate the animals involved to assist ground crews in 
moving the animals and for related purposes, such as, to transport 
personnel and equipment. The condition of the animals shall be 
continuously observed by the authorized officer and, should signs of 
harmful stress be noted, the source of stress shall be removed so as to 
allow recovery. Helicopters may be used in round- ups or other capture 
operations subject to the following procedures.

[[Page 91]]

    (1) Helicopters shall be used in such a manner that bands or herds 
will tend to remain together.
    (2) Horses or burros will not be moved at a rate which exceeds 
limitations set by the authorized officer who shall consider terrain, 
weather, distance to be traveled, and condition of the animals.
    (3) Helicopters shall be used to observe the presence of dangerous 
areas and may be used to move animals away from hazards during capture 
operations.
    (4) During capture operations, animals shall be moved in such a way 
as to prevent harmful stress or injury.
    (5) The authorized officer shall supervise all helicopter uses as 
follows:
    (i) Have means to communicate with the pilot and be able to direct 
the use of the helicopter; and
    (ii) Be able to observe effects of the use of the helicopters on the 
well-being of the animals.
    (c) Fixed-wing aircraft may be used for inventory, observation, and 
surveillance purposes necessary in administering the Act. Such use shall 
be consistent with the Act of September 8, 1959, as amended (18 U.S.C. 
41 et seq.). Fixed-wing aircraft shall not be used in connection with 
capture operations except as support vehicles.
    (d) Motor vehicles may be used in the administration of the Act 
except that such vehicles shall not be used for driving or chasing wild 
horses or burros in capture operations. Motor vehicles may also be used 
for the purpose of transporting captured animals subject to the 
following humane procedures.
    (1) Such transportation shall comply with appropriate State and 
Federal laws and regulations applicable to humane transportation of 
horses and burros.
    (2) Vehicles shall be inspected by an authorized officer prior to 
use to ensure vehicles are in good repair and of adequate rate capacity.
    (3) Vehicles shall be carefully operated to ensure that captured 
animals are transported without undue risk or injury.
    (4) Where necessary and practical, animals shall be sorted as to 
age, temperament, sex, size, and condition so as to limit, to the extent 
possible, injury due to fighting and trampling.
    (5) The authorizing officer shall consider the condition of the 
animals, weather conditions, type of vehicle, and distance to be 
traveled when planning for transportation of captured animals.
    (6) Unless otherwise approved by the authorized officer, the 
transportation of wild free-roaming horses and burros shall be limited 
in sequence, to a maximum of 24 hours in transit followed by a minimum 
of 5 hours of on-the-ground rest with adequate feed and water.



Sec. 222.25  Protection of wild free-roaming horses and burros when they are upon other than the National Forest System or public lands.

    Individual animals and herds of wild free-roaming horses and burros 
will be under the protection of the Chief, Forest Service, even though 
they may thereafter move to lands of other ownership or jurisdiction as 
a part of their annual territorial habitat pattern or for other reasons. 
The Chief will exercise surveillance of these animals through the use of 
cooperative agreements and as otherwise authorized by law and act 
immediately through appropriate administrative or criminal and civil 
judicial procedures to provide them the protective measures of the Act 
at any time he has cause to believe its provisions are being violated.



Sec. 222.26  Removal of wild free-roaming horses and burros from private lands.

    Owners of land upon which wild free-roaming horses and burros have 
strayed from the National Forest System may request their removal by 
calling the nearest office of either the Forest Service or Federal 
Marshall.



Sec. 222.27  Maintenance of wild free-roaming horses and burros on privately-owned lands.

    Owners of land who wish to maintain wild free-roaming horses and 
burros which have strayed onto their lands from the National Forest 
System may do so by notifying the nearest office of the Forest Service 
in a timely fashion and providing such information on a continuing basis 
as the Chief, Forest Service, may require. Such owners

[[Page 92]]

shall protect the wild free-roaming horses and burros on their lands. 
They may not, in so maintaining these animals, impede their return to 
National Forest System lands unless authorized by agreement with the 
Forest Service.



Sec. 222.28  Agreements.

    The Chief, Forest Service, may enter into agreements as he deems 
necessary to further the protection, management, and control of wild 
free-roaming horses and burros.



Sec. 222.29  Relocation and disposal of animals.

    (a) The Chief, Forest Service, shall, when he determines over-
population of wild horses and burros exists and removal is required, 
take immediate necessary action to remove excess animals from that 
particular territory. Such action shall be taken until all excess 
animals have been removed so as to restore a thriving natural ecological 
balance to the range, and protect the range from deterioration 
associated with over-population.
    (b) No person except an authorized Forest Service officer or his 
agent shall destroy, remove, or relocate any wild free-roaming horse or 
burro located on the National Forest System.
    (c) Wild horses and burros shall be relocated or removed in the 
following order of priority:
    (1) In the most humane manner possible, sick, lame, or old animals 
shall be destroyed;
    (2) Relocate animals to other National Forest System lands which 
were identified as 1971 wild horse or burro territory, providing 
suitable habitat exists and relocation of animals will not jeopardize 
vegetation condition;
    (3) Relocate animals to other federally-owned lands which were 
identified as 1971 wild horse or burro occupied lands, providing 
suitable habitat exists and relocation of animals will not jeopardize 
vegetation condition and animals are requested by the appropriate land 
manager having jurisdiction;
    (4) Place animals under private maintenance and care agreements 
where there is an adoption demand by qualified individuals, groups, or 
Government agency, and for which there is assurance of humane treatment 
and care, provided not more than four animals are placed under private 
maintenance and care agreements per year to any individual, 
organization, or government agency unless there is a determination 
expressed otherwise in writing, by an authorized Forest Service Officer; 
and
    (5) Excess animals, for which an adoption demand by qualified 
applicants does not exist, shall be destroyed in the most humane manner 
possible, and if several methods are equally humane, select the most 
cost efficient.
    (d) Where excess animals have been placed under private maintenance 
and care agreements after December 15, 1971, as provided for in 
paragraph (c)(4) of this section, and animals have been provided humane 
conditions, treatment, and care, for a period of one year, the Chief, 
Forest Service, may grant title to not more than four animals per year 
to each individual, organization, or government agency.
    (e) The applicants must make written application for title and/or 
adoption, must be of legal age in the State in which they reside, and 
must pay fees for adoption and transportation as follows:
    (1) The application must be accompanied by a nonrefundable advance 
payment of $25 by guaranteed remittance. If custody of a wild, free-
roaming horse or burro is granted by the authorized Forest Service 
officer, the advance payment shall be applied against the adoption fee 
required to be paid at the time the maintenance and care agreement 
Sec. 222.29(c)(4) is executed.
    (2) The Forest Service shall charge an adoption fee of $125 for each 
horse and $75 for each burro, except that there shall be no adoption fee 
for an unweaned offspring under 6 months of age accompanying its mother.
    (3) Any transportation costs incurred for the transportation of the 
animal(s) to the point of pickup must be paid before an approved 
individual, group, or government agency takes custody of the animal(s).
    (f) Humane conditions, treatment, and care must have been provided 
for no less that one year preceding the filing of the application for 
title. The conveyance of title shall include a

[[Page 93]]

written statement by an authorized officer attesting that the animal is 
in good condition.

[45 FR 24135, Apr. 9, 1980, as amended at 46 FR 42450, Aug. 21, 1981; 48 
FR 25188, June 6, 1983]



Sec. 222.30  Disposal of carcasses.

    Carcasses of animals that have lost their status as wild free-
roaming horses or burros may be disposed of in any customary manner 
acceptable under applicable State sanitary statutes including disposal 
through a rendering plant.



Sec. 222.31  Loss of status.

    Wild free-roaming horses and burros or their remains shall lose 
their status under the 1971 Wild Horses and Burros Act.
    (a) Upon passage of title pursuant to Sec. 222.29 (d) and (e).
    (b) Upon transfer to private maintenance and care pursuant to 
Sec. 222.29(c)(4) and die of natural causes before passage of title;
    (c) Upon destruction by an authorized Forest officer pursuant to 
Sec. 222.29(c)(5).
    (d) Upon death by natural causes or accident on the National Forest 
System or on private lands where maintained thereon pursuant to 
Sec. 222.27 and disposal is authorized by a Forest officer; and
    (e) Upon destruction or death for purposes of or incident to the 
program authorized in Sec. 222.20(a).



Sec. 222.32  Use of non-Forest Service personnel.

    The Chief, Forest Service, may authorize the use of non-Forest 
Service personnel to assist in specific situations of short duration.



Sec. 222.33  Management coordination.

    All management activities by the Chief, Forest Service, shall be 
carried out in consultation with the appropriate agencies of the State 
involved. The expert advice of qualified scientists in the fields of 
biology and ecology shall also be sought in administering wild free-
roaming horses and burros. The advice and suggestions of agencies, 
qualified scientists, and other qualified interest groups shall be made 
available to the National Advisory Board for their use and 
consideration. Actions taken in connection with private ownership claims 
shall be coordinated to the fullest extent possible with the State 
agency responsible for livestock estray law administration.



Sec. 222.34  National Advisory Board.

    The Chief, Forest Service, shall appoint a representative to attend 
meetings of the National Advisory Board for Wild Free-Roaming Horses and 
Burros and to function as prescribed by the Memorandum of Agreement 
between the Department of the Interior and the Department of Agriculture 
and the Joint Charter issued by the Secretary of the Interior and the 
Secretary of Agriculture. Policies and guidelines relative to proposals 
for the establishment of ranges, adjustments in number, relocation and 
disposal of animals, and other matters relating generally to the 
protection, management, and control of wild free-roaming horses and 
burros shall be presented to the National Advisory Board for 
recommendations.



Sec. 222.35  Studies.

    The Chief, Forest Service, is authorized and directed to undertake 
those studies of the habits and habitat of wild free-roaming horses and 
burros that he may deem necessary. In doing so, he shall consult with 
the appropriate agencies of the State(s) involved and the National 
Academy of Sciences.



Sec. 222.36  Arrest.

    Any employee designated by the Chief, Forest Service, shall have the 
power to arrest without warrant, any person committing in the presence 
of the employee a violation of the Act and to take such person 
immediately for examination or trial before an officer or court of 
competent jurisdiction. Any employee so designated shall have power to 
execute any warrant or other process issued by an officer or court of 
competent jurisdiction to enforce the provisions of the Act.

[[Page 94]]



                         Subpart C--Grazing Fees

    Authority: 16 U.S.C. 551; 31 U.S.C. 483A; 43 U.S.C. 1901; E.O. 
12548, 51 FR 1986 Comp., p. 188.



Sec. 222.50  General procedures.

    (a) Fees shall be charged for all livestock grazing or livestock use 
of National Forest system lands, or other lands under Forest Service 
control. An exception is livestock authorized free of charge under 
provisions of Sec. 222.3(c)(2)(ii) (B) through (G).
    (b) Guiding establishment of fees are the law and general 
governmental policy as established by Bureau of the Budget (now, Office 
of Management and Budget) Circular A-25 of September 23, 1959, which 
directs that a fair market value be obtained for all services and 
resources provided the public through establishment of a system of 
reasonable fee charges, and that the users be afford equitable 
treatment. This policy precludes a monetary consideration in the fee 
structure for any permit value that may be capitalized into the permit 
holder's private ranching operation.
    (c) A grazing fee shall be charged for each head month of livestock 
grazing or use. A head month is a month's use and occupancy of range by 
one animal, except for sheep or goats. A full head month's fee is 
charged for a month of grazing by adult animals; if the grazing animal 
is weaned or 6 months of age or older at the time of entering National 
Forest System lands; or will become 12 months of age during the 
permitted period of use. For fee purposes 5 sheep or goats, weaned or 
adult, are equivalent to one cow, bull, steer, heifer, horse, or mule.
    (d) No additional charge will be made for the privilege of lambing 
upon National Forest System lands, or other lands under Forest Service 
control.
    (e) Transportation livestock may be charged for at a special rate, 
and at a minimum established for such use. Fees for horses, mules, or 
burros associated with management of permitted livestock on an 
allotment, or for research purposes and administrative studies, and 
authorized on a charge basis, are determined under provisions of 
paragraph (b) of this section.
    (f) The fees for trailing livestock across National Forest System 
lands will conform with the rates established for other livestock. Where 
practicable, fees for trailing permitted livestock will be covered in 
the regular grazing fee and the crossing period covered in the regular 
grazing period.
    (g) All fees for livestock grazing or livestock use of National 
Forest System lands or other lands under Forest Service control are 
payable in advance of the opening date of the grazing period, entry, or 
livestock use unless otherwise authorized by the Chief, Forest Service.
    (h) Unauthorized grazing use rate will be determined by establishing 
a base value without giving consideration for those contributions 
normally made by the permittee under terms of the grazing permit. The 
base will be adjusted annually by the same indexes used to adjust the 
regular fee. This rate will also apply to excess number of livestock 
grazing by permittees; to livestock grazed outside the permitted grazing 
season; or to livestock grazed under an unvalidated permit.
    (i) Refunds or credits may be allowed under justifiable conditions 
and circumstances as the Chief, Forest Service, may specify.
    (j) The fee year for the purpose of charging grazing fees will be 
March 1 through the following February.
    (k) The data year for the purpose of collecting beef cattle price 
data for computing indexes will be November 1 through the following 
October and apply to the following fee year.

[44 FR 24843, Apr. 27, 1979, as amended at 46 FR 42450, Aug. 21, 1981; 
53 FR 2984, Feb. 2, 1988]



Sec. 222.51  National Forests in 16 Western States.

    (a) Grazing fees are established on lands designated National 
Forests and Land Utilization Projects in the 16 contiguous Western 
States of Arizona, California, Colorado, Idaho, Kansas, Montana, 
Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South 
Dakota, Utah, Washington, and Wyoming. (National Grasslands are 
excluded, see Sec. 222.52.)
    (b) Notwithstanding the provisions of Sec. 222.50, paragraph (b), 
the calculated

[[Page 95]]

grazing fee for 1988 and subsequent grazing fee years represents the 
economic value of the use of the land to the user and is the product of 
multiplying the base fair market value of $1.23 by the result of the 
annual Forage Value Index, added to the sum of the Beef Cattle Price 
Index minus the Prices Paid Index and divided by 100; provided, that the 
annual increase or decrease in such fee for any given year shall be 
limited to not more than plus or minus 25 percent of the previous year's 
fee, and provided further, that the fee shall not be less than $1.35 per 
head per month. The indexes used in this formula are as follows:
    (1) Forage Value Index means the weighted average estimate of the 
annual rental charge per head per month for pasturing cattle on private 
rangelands in the 11 Western States (Arizona, California, Colorado, 
Idaho, Montana, New Mexico, Nevada, Oregon, Utah, Washington, and 
Wyoming) (computed by the National Agricultural Statistics Service) from 
the June Enumerative Survey) divided by $3.65 per head month and 
multiplied by 100;
    (2) Beef Cattle Price Index means the weighted average annual 
selling price for beef cattle (excluding calves) in the 11 Western 
States (Arizona, California, Colorado, Idaho, Montana, New Mexico, 
Nevada, Oregon, Utah, Washington, and Wyoming) (computed by the National 
Agricultural Statistics Service) for November through October (computed 
by the National Agricultural Statistics Service) divided by $22.04 per 
hundred weight and multiplied by 100; and
    (3) Prices Paid Index means the following selected components from 
the National Agricultural Statistics Service ``Annual National Index of 
Prices Paid by Farmers for Goods and Services'' adjusted by the weights 
indicated in parentheses to reflect livestock production costs in the 
Western States:

1. Fuels and Energy (14.5);
2. Farm and Motor Supplies (12.0);
3. Autos and Trucks (4.5);
4. Tractors and Self-Propelled Machinery (4.5);
5. Other Machinery (12.0);
6. Building and Fencing Materials (14.5);
7. Interest (6.0);
8. Farm Wage Rates (14.0);
9. Farm Services (18.0).

[44 FR 24843, Apr. 27, 1979, as amended at 53 FR 2984, Feb. 2, 1988]



Sec. 222.52  National Grasslands.

    Grazing fees for National Grasslands will be established under 
concepts and principles similar to those in Sec. 222.51(b).

[44 FR 24843, Apr. 27, 1979]



Sec. 222.53  Grazing fees in the East--noncompetitive procedures.

    (a) Scope. Except as provided in Sec. 222.54 of this subpart, the 
fee charged for commercial livestock grazing use and occupancy on 
National Forest System (NFS) lands in the States of New York, Missouri, 
Vermont, West Virginia, and in the Southern Region shall be determined 
through noncompetitive, fair market value procedures. These rules do not 
apply to grazing fees on National Forest System lands in Oklahoma or 
National Grasslands in Texas. Grazing permits under the noncompetitive 
fee method in the East are subject to the rules governing grazing permit 
administration in Subpart A of this part.
    (b) Applicability. The rules of this section apply to the 
establishment of grazing fees for existing permittees in the Eastern and 
Southern Regions on National Forest System lands, including grazing 
associations in New York and Missouri as of March 1, 1990, to any 
livestock on-and-off permits defined in Subpart A of this part; and to 
any allotments advertised for competitive bidding which were not bid on 
(Sec. 222.54(h)). Noncompetitive permits vacated or terminated by an 
existing permittee and any new allotments created after the effective 
date of this rule shall be offered on a competitive bid basis as 
specified in Sec. 222.54 of this subpart. As provided in subpart A of 
this part, holders of term permits have first priority for receipt of a 
new permit.
    (c) Fee System. The grazing fee charged under this section shall be 
based on fair market value, as determined by: Using comparable private 
grazing lease rates, adjusted for the difference in the costs of grazing 
comparable private leased lands and National Forest System lands, or by 
reference to prevailing prices in competitive markets for other Federal 
or State

[[Page 96]]

leased grazing lands that are the same or substantially similar to 
grazing lands offered or administered by the Forest Service in the East 
with comparability adjustments as appropriate. Comparable grazing lease 
rates shall be adjusted for the difference between the total costs of 
operating on leased grazing lands and the total costs (other than 
grazing fee costs) of operating on National Forest System lands.
    (1) Establishing Base Grazing Value. (i) The Chief of the Forest 
Service, or an authorized officer to whom such authority has been 
delegated, shall determine an estimated base market value of grazing use 
and occupancy on National Forest System lands in the Eastern States for 
the following designated subregions:
    (A) Corn Belt (Illinois, Indiana, Missouri, and Ohio);
    (B) Lake States (Michigan, Minnesota, and Wisconsin);
    (C) Northeast (Maine, New Hampshire, New York, Pennsylvania, and 
Vermont);
    (D) Appalachia (Kentucky, North Carolina, Tennessee, Virginia, and 
West Virginia);
    (E) Southeast/Delta (Alabama, Arkansas, Georgia, Louisiana, 
Mississippi, South Carolina, and Texas); and
    (F) Florida.
    (ii) The Chief or authorized officer shall revise or update 
estimated market values of grazing use and occupancy, as necessary to 
respond to significant changes in the agricultural economy in the East, 
and to ensure that fees represent fair market value.
    (iii) The Chief, or an authorized officer to whom authority has been 
delegated, where sufficient market data exist, may establish the base 
grazing value for grazing allotments using comparable, local lease rates 
for private grazing lands.
    (2) Annual Adjustment of Base Grazing Value. To maintain currency 
with the private grazing lease market, the respective base grazing 
value(s) established for grazing permits under this section shall be 
annually adjusted through a hay price index, by respective subregion. 
The hay price index means the weighted average selling price of ``other 
baled hay,'' computed by the National Agricultural Statistics Service of 
the U.S. Department of Agriculture, by designated State and subregion. 
This index shall be based on 3-year average hay prices and annually 
reflect the percentage change in the cost of alternative livestock feed.
    (3) Computation of Annual Grazing Fee--(i) Annual Fee Basis. The 
annual grazing fee shall equal the base grazing value, adjusted by the 
current period's hay price index, less the value of any agency required 
range improvements.
    (ii) Grazing Fee Credits for Range Improvements. Any requirements 
for permittee construction or development of range improvements shall be 
identified through an agreement and incorporated into the grazing 
permit, with credits for such improvements to be allowed toward the 
annual grazing fee. Fee credits shall be allowed only for range 
improvements which the Forest Service requires an individual permittee 
to construct or develop on a specific allotment to meet the management 
direction and prescriptions in the relevant forest land and resource 
management plan and allotment management plan. These improvements must 
involve costs which the permittee would not ordinarily incur under the 
grazing permit, must be of tangible public benefit, and must enhance 
management of vegetation for resource protection, soil productivity, 
riparian, watershed, and wetland values, wildlife and fishery habitat, 
or outdoor recreation values. Maintenance of range improvements 
specified in allotment management planning documents or the grazing 
permit, and other costs incurred by the permittee in the ordinary course 
of permitted livestock grazing, do not qualify for grazing fee credits.
    (4) Implementation. The grazing fee formula provided by this section 
shall be used to calculate fees for the 1990 grazing fee year. Where 
implementation would raise fees, the increase shall be phased in over a 
5-year period. Full fair market value will be reached in 5 years, 
beginning in 1990.

[55 FR 2650, Jan. 26, 1990]



Sec. 222.54  Grazing fees in the East--competitive bidding.

    (a) General Procedures--(1) Applicability. The rules of this section 
apply to

[[Page 97]]

grazing fees for any allotment established or vacated on National Forest 
System lands in the Eastern or Southern Regions, as of February 26, 1990 
as well as to grazing fees for existing allotments for such lands that 
have already been established under competitive procedures as of the 
date of this rule. Permits offered for competitive bidding in the East 
are subject to the rules governing grazing permit administration in 
subpart A of this part. The rules of this section do not apply to 
negotiated livestock use permits or permits with on-and-off grazing 
provisions as authorized in subpart A of this part. Holders of term 
permits have first priority for receipt of a new term grazing permit in 
accordance with subpart A of this part. These rules also do not apply to 
grazing fees on National Forest System lands in Oklahoma or National 
Grasslands in Texas.
    (2) Allowable Bidders. Bids for grazing permits shall be accepted 
from individuals, partnerships, grazing associations (formed after 
February 26, 1990), joint ventures, corporations, and organizations.
    (b) Establishment of Minimum Bid Price. Authorized officers shall 
establish a minimum bid price for each available allotment as described 
in Sec. 222.53 of this subpart.
    (c) Prospectus. (1) At such time as allotments are vacated, as new 
allotments are established, or as existing competitively bid permits 
expire, the authorized officer shall prepare and advertise a prospectus 
for those allotments on which grazing will be permitted.
    (2) The prospectus shall include the terms and conditions of 
occupancy and use under the grazing permit to be issued, as well as 
document existing improvements and their condition. The prospectus shall 
also disclose the following:
    (i) Estimated market value of the forage per head month of grazing 
use;
    (ii) The minimum bid price the agency will accept;
    (iii) Any required range improvements; and
    (iv) The minimum qualifications that applicants must meet to be 
eligible for a permit.
    (3) Copies of the applicable grazing permit, allotment management 
planning documents and allotment maintenance requirements, and the 
latest annual permittee instructions shall be made available to all 
prospective bidders upon request.
    (d) Submission of bid. Each applicant shall submit an application 
for the grazing permit, along with a sealed bid for the grazing fee, and 
a bid deposit of 10 percent of the total amount of the bid.
    (e) Qualifications and Deposit Refunds. Upon opening applicants 
bids, the authorized officer shall determine whether each bidder meets 
the qualifications to hold a permit as set forth in Subpart A of this 
part; and shall refund the deposit to any applicant who is not qualified 
or who does not offer the high bid.
    (f) Permit Issuance. The authorized officer shall issue the grazing 
permit to the qualified high bidder, except as provided in paragraphs 
(f)(1) and (2) of this section. The successful bidder receives the 
privilege of obtaining or renewing a grazing permit and is billed for 
the occupancy offered and forage sold.
    (1) Priority for Reissuance. On allotments where a current permit is 
expiring and competition has been held on a new grazing permit, the 
current grazing permittee shall have priority for retaining the permit. 
Accordingly, an applicant who holds the permit on the allotment under 
bid, who has a satisfactory record of performance under that permit, and 
who is not the higher bidder for the future grazing privileges in the 
specified allotment shall be offered the opportunity to match the high 
bid and thereby retain the permit. Should there be more than one 
existing permittee in the allotment under bid, each shall be offered the 
option of meeting the high bid; if only one current permittee opts to 
meet the high bid, the remaining allowable grazing use, if any, shall be 
awarded to the initial high bidder.
    (2) Identical Bids. In cases of identical bids, the selection of the 
successful applicant shall be made through a drawing.
    (g) Computation of Successful Bidder's Annual Fee--(1) Annual Fee 
Basis. The highest bid received shall establish the

[[Page 98]]

base grazing value in the initial year of the grazing permit for each 
allotment offered. The annual grazing fee shall equal the base grazing 
value, adjusted by the current period's hay price index for the relevant 
subregion as described in Sec. 222.53(c)(1), and (c)(3), less the value 
of any agency required range improvements. This hay price index shall be 
based on 3-year average hay prices and annually reflect the percent 
change in the cost of alternative livestock feed.
    (2) Grazing Fee Credits for Range Improvements. Any requirements for 
permittee construction or development of range improvements shall be 
identified through an agreement and incorporated into the grazing 
permit, with credits for such improvements to be allowed toward the 
annual grazing fee. Fee credits shall be allowed only for range 
improvements which the Forest Service requires an individual permittee 
to construct or develop on a specific allotment to meet the management 
direction and prescriptions in the relevant forest land and resource 
management plan and allotment management plan. These improvements must 
involve costs which the permittee would not ordinarily incur under the 
grazing permit, must be of tangible public benefit, and must enhance 
management of vegetation for resource protection, soil productivity, 
riparian, watershed, and wetland values, wildlife and fishery habitat, 
or outdoor recreation values. Maintenance of range improvements 
specified in allotment management planning documents or the grazing 
permit, and other costs incurred by the permittee in the ordinary course 
of permitted livestock grazing, do not qualify for grazing fee credits.
    (h) No Bids Received. If qualified sealed bids are not received, the 
authorized officer reserves the right to conduct an oral auction using 
the minimum bid price established under paragraph (b) of this section or 
to establish grazing fees through noncompetitive grazing fee procedures 
specified in Sec. 222.53 of this subpart.

[55 FR 2651, Jan. 26, 1990]



PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER--Table of Contents




                      Subpart A--General Provisions

Sec.
223.1  Authority to sell timber.
223.2  Disposal of timber for administrative use.
223.3  Sale of seized material.
223.4  Exchange of trees or portions of trees.
223.5  Scope of free use granted to individuals.
223.6  Cutting and removal of timber in free-use areas.
223.7  Permission for free use of timber outside free-use areas.
223.8  Delegations of authority to approve free use by individuals.
223.9  Free use to owners of certain mining claims.
223.10  Free use to Alaskan settlers, miners, residents, and 
          prospectors.
223.11  Free use to other Federal agencies.
223.12  Permission to cut, damage, or destroy trees without 
          advertisement.
223.13  Compliance.
223.14  Where timber may be cut.

                    Subpart B--Timber Sale Contracts

                   Contract Conditions and Provisions

223.30  Consistency with plans, environmental standards, and other 
          management requirements.
223.31  Duration of contracts.
223.32  Timber sale operating plan.
223.33  Redetermination of stumpage rates and deposits.
223.34  Advance payment.
223.35  Performance bond.
223.36  Volume determination.
223.37  Revegetation of temporary roads.
223.38  Standards for road design and construction.
223.39  [Reserved]
223.40  Cancellation for environmental protection or inconsistency with 
          plans.
223.41  Payment when purchaser elects government road construction.
223.42  Transfer of effective purchaser credits.
223.43  Limitation on amounts of transferred purchaser credit.
223.44  Collection rights on contracts involved in transfer of purchaser 
          credit.
223.45  Definitions applicable to transfer of purchaser credit.
223.46  Adjustment of contract termination date.
223.47  Date of completion of permanent road construction.
223.48  Restrictions on export and substitution of unprocessed timber.

[[Page 99]]

223.49  Downpayment.
223.50  Periodic payments.
223.51  Bid monitoring.
223.52  Market-related contract term additions.

                          Appraisal and Pricing

223.60  Determining fair market value.
223.61  Establishing minimum stumpage rates.
223.62  Timber purchaser road construction credit.
223.63  Advertised rates.
223.64  Appraisal on a lump-sum value or rate per unit of measure basis.
223.65  Appraisal of timber for land exchange; right-of-way, or other 
          authorized use.
223.66  [Reserved]

                         Advertisement and Bids

223.80  When advertisement is required.
223.81  Shorter advertising periods in emergencies.
223.82  Contents of advertisement.
223.83  Contents of prospectus.
223.84  Small business bid form provisions on sales with purchaser road 
          construction credit.
223.85  Noncompetitive sale of timber.
223.86  Bid restriction on resale of noncompleted contract.
223.87  Requirements of bidders concerning exports.
223.88  Bidding methods.
223.89  Relation to other bidders.

                           Award of Contracts

223.100  Award to highest bidder.
223.101  Determination of purchaser responsibility.
223.102  Procedures when sale is not awarded to highest bidder.
223.103  Award of small business set-aside sales.

                         Contract Administration

223.110  Delegation to regional forester.
223.111  Administration of contracts in designated disaster areas.
223.112  Modification of contracts.
223.113  Modification of contracts to prevent environmental damage or to 
          conform to forest plans.
223.114  Acquisition by third party.
223.115  Contract extensions.
223.116  Cancellation.
223.117  Administration of cooperative or Federal sustained yield units.
223.118  Appeal process for small business timber sale set-aside program 
          share recomputation decisions.

        Subpart C--Suspension and Debarment of Timber Purchasers

223.130  Scope.
223.131  Applicability.
223.132  Policy.
223.133  Definitions.
223.134  List of debarred and suspended purchasers.
223.135  Effect of listing.
223.136  Debarment.
223.137  Causes for debarment.
223.138  Procedures for debarment.
223.139  Period of debarment.
223.140  Scope of debarment.
223.141  Suspension.
223.142  Causes for suspension.
223.143  Procedures for suspension.
223.144  Period of suspension.
223.145  Scope of suspension.

         Subpart D--Timber Export and Substitution Restrictions

223.159  Scope and applicability.
223.160  Definitions.
223.161  [Reserved]
223.162  Limitations on timber harvested from all other states.
223.163  [Reserved]
223.164  Penalty for falsification.

Subpart E [Reserved]

Subpart F--The Forest Resources Conservation and Shortage Relief Act of 
                              1990 Program

223.185  Scope and applicability.
223.186  Definitions.
223.187  Determination of unprocessed timber.
223.188  Prohibitions against exporting unprocessed Federal timber.
223.189  Prohibitions against substitution.
223.190  Sourcing area application procedures.
223.191  Sourcing area disapproval and review procedures.
223.192  Procedures for a non-manufacturer.
223.193  Procedures for reporting acquisition and disposition of 
          unprocessed Federal timber.
223.194  Procedures for reporting the acquisition and disposition of 
          unprocessed private timber.
223.195  Procedures for identifying and marking unprocessed timber.
223.196  Civil penalties for violation.
223.197  Civil penalty assessment procedures.
223.198  Administrative remedies.
223.199  Procedures for cooperating with other agencies.
223.200  Determinations of surplus species.
223.201  Limitations on unprocessed timber harvested in Alaska.
223.202  Information requirements.

[[Page 100]]

223.203  Indirect substitution exception for National Forest System 
          timber from within Washington State.

    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, unless otherwise noted.

    Source: 42 FR 28252, June 2, 1977, unless otherwise noted. 
Redesignated at 49 FR 2760-2761, Jan. 23, 1984.



                      Subpart A--General Provisions



Sec. 223.1  Authority to sell timber.

    Trees, portions of trees, and other forest products on National 
Forest System lands may be sold for the purpose of achieving the 
policies set forth in the Multiple-Use Sustained-Yield Act of 1960, as 
amended (74 Stat. 215; 16 U.S.C. 528-531), and the Forest and Rangeland 
Renewable Resources Planning Act of 1974, as amended (88 Stat. 476; as 
amended, 16 U.S.C. 1600-1614), and the Program thereunder.



Sec. 223.2  Disposal of timber for administrative use.

    Trees, portions of trees, or other forest products in any amount on 
National Forest System lands may be disposed of for administrative use, 
by sale or without charge, as may be most advantageous to the United 
States, subject to the maximum cut fixed in accordance with established 
policies for management of the National Forests. Such administrative use 
shall be limited to the following conditions and purposes:
    (a) For construction, maintenance or repair of roads, bridges, 
trails, telephone lines, fences, recreation areas or other improvements 
of value for the protection or the administration of Federal lands.
    (b) For fuel in Federal camps, buildings and recreation areas.
    (c) For research and demonstration projects.
    (d) For use in disaster relief work conducted by public agencies.
    (e) For disposal when removal is desirable to protect or enhance 
multiple-use values in a particular area.



Sec. 223.3  Sale of seized material.

    Seized material (trees, portions of trees or other forest products 
cut in trespass from National Forest System lands) may be sold to the 
highest bidder under specific authorization from the Regional Forester. 
If advertisement is impractical, sales of material with an appraised 
value of less than $10,000 will be made on informal bids.



Sec. 223.4  Exchange of trees or portions of trees.

    Trees or portions of trees may be exchanged for land under laws 
authorizing the exchange of National Forest timber. Cutting of exchange 
timber must comply with the purposes cited in Sec. 223.1.

(42 Stat. 465, 16 U.S.C 485; 43 Stat. 1215, 16 U.S.C. 516)



Sec. 223.5  Scope of free use granted to individuals.

    (a) Free use may be granted to individuals for firewood for personal 
use, except that such use may be limited to bona fide settlers, miners, 
residents and prospectors living within or immediately adjacent to the 
National Forest when the available supply is insufficient to meet the 
total demand. Free use may be granted to such bona fide settlers, 
miners, residents and prospectors for minerals, for fencing, building, 
mining, prospecting and domestic purposes.

(Sec. 1, 30 Stat. 35, as amended; 16 U.S.C. 477, 551)
    (b) Free use will be granted individuals primarily to aid in the 
protection and silvicultural improvement of the forests. Except in 
unusual cases, the material will be restricted to dead, insect-infested, 
or diseased timber, logging debris, and thinnings. Other material may be 
granted in unusual cases where its refusal would cause unwarranted 
hardship. Where limited supply or other conditions justify such action, 
the free use of green material may be refused.



Sec. 223.6  Cutting and removal of timber in free-use areas.

    Supervisors may designate portions or all of a National Forest as 
free-use areas where such action is compatible with land management 
plans and shall give public notice of their action. Within such free-use 
areas, any dead timber or any green timber previously marked or 
designated by forest officers

[[Page 101]]

may be cut and removed for personal use for domestic purposes. Cutting 
and removal of timber in free-use areas shall be in accordance with such 
rules as may be prescribed by the district ranger to prevent fires, 
minimize damage to uncut trees and other resources, and to avoid 
confusion among users.

[42 FR 28252, June 2, 1977, as amended at 44 FR 73029, Dec. 17, 1979. 
Redesignated at 49 FR 2760, Jan. 23, 1984]



Sec. 223.7  Permission for free use of timber outside free-use areas.

    Similar material may be cut outside of a free-use area without 
permit in cases of emergency, but the person taking such material shall 
promptly notify the district ranger. Small quantities of material needed 
by transients while in the forest may also be taken without permit; 
subject to such rules as may be prescribed pursuant to Sec. 261.70. In 
all other cases permits will be required for green material.



Sec. 223.8  Delegations of authority to approve free use by individuals.

    (a) Forest officers whom the supervisor may designate are authorized 
to grant free use of timber to individuals up to $20 in value in any one 
fiscal year. Supervisors may grant permits for material not exceeding 
$100 in value. Regional Foresters may approve permits for larger 
amounts, and in times of emergency may delegate authority to supervisors 
for not over $500 in value. Prior review by the Chief of the Forest 
Service will be given if the amount involved exceeds $5,000 in value.
    (b) Regional Foresters may authorize supervisors to permit the 
removal of specific classes of material without scaling or measurement.



Sec. 223.9  Free use to owners of certain mining claims.

    Free use will be granted to an owner of a mining claim located 
subsequent to July 23, 1955, or of a mining claim which is otherwise 
subject to Section 4 of the Act of July 23, 1955 (69 Stat. 367), if at 
any time said claim owner requires more timber for his mining 
operations, in connection with that claim, than is available on that 
claim because of Forest Service timber disposal therefrom subsequent to 
location of that claim. He will be granted, free of charge, timber from 
the nearest National Forest land which is ready for harvesting under the 
applicable management plan, substantially equivalent in kind and 
quantity to that estimated by the Forest Service to have been cut under 
Forest Service authorization from the claim subsequent to its location, 
Forest officers may be delegated authority to grant amounts of timber 
not in excess of those which these officers are authorized to sell in 
commercial sales.

(Sec. 4, 69 Stat. 368, 16 U.S.C. 612)



Sec. 223.10  Free use to Alaskan settlers, miners, residents, and prospectors.

    Bona fide settlers, miners, residents, and prospectors for minerals 
in Alaska may take free of charge green or dried timber from the 
National Forests in Alaska for personal use but not for sale. Permits 
will be required for green saw timber. Other material may be taken 
without permit. The amount of material granted to any one person in 1 
year shall not exceed 10,000 board feet of saw timber and 25 cords of 
wood, or an equivalent volume in other forms. Persons obtaining 
materials shall, on demand, forward to the supervisor a statement of the 
quantity taken and the location from which it was removed.

(Sec. 1, 30 Stat. 35, 16 U.S.C. 477)



Sec. 223.11  Free use to other Federal agencies.

    (a) National Forest timber will be granted free of charge to other 
branches of the Federal Government when authorized by law. Permits may 
be approved by forest officers for amounts not greater than they are 
otherwise authorized to sell.
    (b) Permits for timber issued hereunder shall be in accordance with 
the conditions prescribed in Sec. 223.30. The permittee may be required 
to report to the supervisor the amount of timber, by species, actually 
cut or may be required to furnish scalers for work under the direction 
of the forest officers in charge or, if authorized, to provide funds for 
the employment by the Forest Service of scalers to scale or

[[Page 102]]

measure the timber cut. The permittee may be required to dispose of the 
slash as cutting proceeds, or to employee people to work under the 
direction of a forest officer in disposing of the slash, or, if 
authorized, to provide funds for the employment of people for slash 
disposal under the direction of a forest officer.

(38 Stat. 1100, as amended; 16 U.S.C. 492)



Sec. 223.12  Permission to cut, damage, or destroy trees without advertisement.

    Permission may be granted to cut, damage, or destroy trees, portions 
of trees, or other forest products on National Forest System lands 
without advertisement when necessary for the occupancy of a right-of-way 
or other authorized use of National Forest System land. Payment for 
timber of merchantable size and quality will be required at its 
appraised value, but at not less than applicable minimum prices 
established by Regional Foresters, and payment will be required for 
young growth timber below merchantable size at its damage appraisal 
value. Payment will not be required:
    (a) For timber necessarily killed or cut in connection with land 
uses which are of substantial benefit to the National Forests;
    (b) For timber necessarily killed or cut and used by the permittee 
which would have been granted free under other applicable regulations; 
or
    (c) For timber which will be cut by the permittee which the Forest 
Service retains for sale in log or other product form.

(Sec. 1, 30 Stat. 35, as amended, 16 U.S.C. 551)



Sec. 223.13  Compliance.

    Forest officers authorizing free use shall ensure that such use is 
in compliance with applicable land management plans and is conducted in 
a manner which protects National Forest System resource values.

(92 Stat. 1301, Pub. L. 95-465)



Sec. 223.14  Where timber may be cut.

    (a) The cutting of trees, portions of trees or other forest products 
may be authorized on any National Forest System lands, except for:
    (1) Timber reserved by a grantor of land, during the life of such 
reservation.
    (2) Timber reserved from cutting under other regulations.
    (3) Timber on unpatented mining claims located prior to July 23, 
1955, unless the claimant has executed a waiver pursuant to section 6 of 
the Act of July 23, 1955 (69 Stat. 367), or unless pursuant to a 
proceeding under Section 5 of that Act, the claimant has failed to file 
a verified statement or has failed to establish the validity and 
effectiveness of his asserted rights.
    (4) Timber on lands identified in land management plans as not 
suited for timber production, except that salvage sales or sales 
necessitated to protect other multiple-use values may be made.
    (b) The cutting of timber on mining claims shall be conducted in 
such manner as not to endanger or materially interfere with prospecting, 
mining or processing operations.
    (c) Timber on an unpatented claim to which the United States does 
not otherwise have disposal rights may be disposed of with the written 
consent of the claimant, or, in emergencies without the consent of the 
claimant.
    (d) Timber on an unpatented claim may be cut by the claimant only 
for the actual development of the claim or for uses consistent with the 
purposes for which the claim was entered. Any severance or removal of 
timber, other than severance or removal to provide clearance, shall be 
in accordance with plan of operations required by Part 252 of this 
chapter, and with sound principles of forest management.
    (e) With prior approval by the Regional Forester, timber on lands 
under option by the United States or on offered lands included in an 
approved land exchange agreement may be sold. Before the sale is made, a 
cooperative agreement must be made with the owner of the land 
authorizing the Forest Service to conduct the sale and providing for 
return of stumpage receipts to the owner if title to the land is not 
accepted by the United States.
    (f) With prior approval by the Regional Forester, cutting of 
exchange timber described in Sec. 223.4 may be authorized in advance of 
the acceptance

[[Page 103]]

of title to the non-Federal land offered in exchange.



                    Subpart B--Timber Sale Contracts

                   Contract Conditions and Provisions



Sec. 223.30  Consistency with plans, environmental standards, and other management requirements.

    The approving officer will insure that each timber sale contract, 
permit or other authorized form of National Forest timber disposal is 
consistent with applicable land and resource management plans and 
environmental quality standards and includes, as appropriate, 
requirements for:
    (a) Fire protection and suppression;
    (b) Protection of residual timber;
    (c) Regeneration of timber as may be made necessary by harvesting 
operations;
    (d) Minimizing increases in soil erosion;
    (e) Providing favorable conditions of water flow and quality;
    (f) Utilization of the timber resource to provide for the optimum 
practical use of the wood material as may be obtained with available 
technology, considering opportunities to promote more efficient wood 
utilization, regional conditions and species characteristics;
    (g) Reduction of the likelihood of loss to destructive agencies; and
    (h) Minimizing adverse effects on, or providing protection for and 
enhancing other National Forest resources, uses and improvements.



Sec. 223.31  Duration of contracts.

    Sale contracts shall not exceed 10 years in duration, unless there 
is a finding by the Chief, Forest Service, that better utilization of 
the various forest resources (consistent with the provisions of the 
Multiple-Use Sustained-Yield Act of 1960) will result.



Sec. 223.32  Timber sale operating plan.

    Sale contracts with a term of 2 years or more shall provide for the 
filing of an operating plan as soon as practicable after execution of 
the contract, such plan shall be a part of the contract. The plan of 
operation shall be general in nature, outlining the expected timing and 
order of sale development, including such major operations as road 
construction, felling and removal of timber, distribution of timber, and 
contractual requirements for erosion prevention and slash disposal. The 
plan of operation and revisions thereto shall be subject to concurrence 
by the Forest Service.



Sec. 223.33  Redetermination of stumpage rates and deposits.

    Sale contracts exceeding 7 years in duration, and those of shorter 
duration to the extent found desirable by the approving officer, will 
provide for the redetermination of rates for stumpage and for required 
deposits at intervals of not more than 5 years, exclusive of any period 
allowed for the construction of improvements.



Sec. 223.34  Advance payment.

    Sale contracts shall provide that timber and forest products be paid 
for in advance of cutting, unless the contract authorizes the purchaser 
to furnish a payment guarantee satisfactory to the Forest Service. 
Advance payments found to be in excess of amounts due the United States 
shall be refunded to the current holder of the contract or to successors 
in interest. (90 Stat. 2959; 16 U.S.C. 472a.)

[43 FR 38008, Aug. 25, 1978. Redesignated at 49 FR 2761, Jan. 23, 1984]



Sec. 223.35  Performance bond.

    Timber sale contracts may require the purchaser to furnish a 
performance bond for satisfactory compliance with its terms.



Sec. 223.36  Volume determination.

    (a) Timber sale contracts may provide for volume determination by 
scaling, measuring, weighing, or counting the logs or other products, or 
by measuring the trees before cutting. If the contract or permit 
provides for the determination of volume by tree measurement and the 
timber has been paid for, the marking or otherwise designating of the 
tree authorizes cutting and removal. Otherwise no timber cut under any 
contract shall be removed from the place designated until it has been 
scaled, measured or counted as provided in the timber sale contract,

[[Page 104]]

unless such removal is specifically authorized in the contract.
    (b) National Forest timber sold on board foot scale shall be scaled 
by the Scribner Decimal C Log Rule, or if the advertisement and contract 
or permit so state, by the International \1/4\-inch log rule or by the 
International \1/4\-inch Decimal log rule. National Forest timber may 
also be sold by the cubic volume rule or by cords, each as used by the 
Forest Service.



Sec. 223.37  Revegetation of temporary roads.

    Timber sale contracts, permits and other documents authorizing the 
cutting or removal of timber or forest products shall require the 
purchaser to treat temporary roads constructed or used thereunder so as 
to permit the reestablishment by artificial or natural means, or 
vegetative cover on the roadway and areas where the vegetative cover was 
disturbed by the construction or use of the road, as necessary to 
minimize erosion from the disturbed area. Such treatment shall be 
designed to reestablish vegetative cover as soon as practicable, but at 
least within 10 years after the termination of the contract.



Sec. 223.38  Standards for road design and construction.

    Road construction authorized under timber sale contracts, permits 
and other documents authorizing the cutting or removal of timber or 
forest products shall be designed to standards appropriate for the 
intended uses, considering safety, cost of transportation, and impacts 
on land and resources. If the sale contract provides for road design 
standards in excess of those needed for the harvest and removal of 
timber from that sale, including measures to protect adjacent resource 
values, provision shall be made in the contract for compensating the 
purchaser for the additional costs, unless the purchaser elects 
Government construction under section 14(i) of the National Forest 
Management Act of 1976.



Sec. 223.39  [Reserved]



Sec. 223.40  Cancellation for environmental protection or inconsistency with plans.

    Timber sale contracts, permits, and other such instruments, 
authorizing the harvesting of trees or other forest products, with terms 
of longer than 2 years, shall provide for cancellation in order to 
prevent serious environmental damage or when they are significantly 
inconsistent with land management plans adopted or revised in accordance 
with section 6 of the Forest and Rangeland Renewable Resources Planning 
Act of 1974, as amended. Such provision shall provide for reasonable 
compensation to the purchaser for unrecovered costs incurred under the 
contract and for the difference between the current contract value and 
the average value of comparable National Forest timber sold during the 
preceding 6-month period.



Sec. 223.41  Payment when purchaser elects government road construction.

    Each contract having a provision for construction of specified roads 
with total estimated construction cost in excess of $20,000 will include 
a provision to ensure that if the purchaser elects Government road 
construction, he pays for the timber an amount no less than the sum of 
estimated road construction cost and base rate value, as defined in 
Sec. 223.61.



Sec. 223.42  Transfer of effective purchaser credits.

    The Forest Service may permit transfer of unused effective purchaser 
credit earned after December 16, 1975, from one timber sale account to 
another timber sale account of the same purchaser within the same 
National Forest, provided the sale contracts provide procedures for the 
use of purchaser credit. Approval for transfer shall not be granted for 
amounts needed to satisfy unfulfilled payment obligations or claims for 
damages due the United States. Purchaser credit transferred under this 
paragraph is subject

[[Page 105]]

to such additional restrictions as may be necessary for its orderly use.

(Pub. L. 94-154, 89 Stat. 823 (16 U.S.C. 535)

[42 FR 63777, Dec. 20, 1977. Redesignated at 49 FR 2761, Jan. 23, 1984]



Sec. 223.43  Limitation on amounts of transferred purchaser credit.

    (a) The amount of purchaser credit which may be transferred into a 
given sale shall be limited to the difference between remaining current 
contract value and the total of:
    (1) Remaining base rate value needs,
    (2) Salvage sale fund needs plus sale area improvement needs in 
excess of base rate value needs, and
    (3) Total purchaser credit limit on the given sale.
    (b) This calculation shall be made as of the date of sale award for 
sales made on or after January 1, 1978. For sales made prior to January 
1, 1978, the calculation shall be made as of December 31, 1977, except 
that if the amount actually transferred in as of December 31, 1977, 
exceeds the calculated limit, the actual transfers as of that date shall 
be the established limit. Purchaser credit earned on a sale and 
subsequently transferred out may be replaced without regard to the 
transfer in limit. Sale area improvement needs shall be based on the 
original sale area betterment plan or revisions thereto approved prior 
to July 1, 1976. Salvage sale fund needs shall be based on the original 
salvage sale fund plan.

(Pub. L. 94-154, 89 Stat. 823 (16 U.S.C. 535)

[42 FR 63777, Dec. 20, 1977. Redesignated at 49 FR 2761, Jan. 23, 1984]



Sec. 223.44  Collection rights on contracts involved in transfer of purchase credit.

    To assure protection of the United States in connection with the 
implementation of this regulation, contract provisions shall not prevent 
the Forest Service from carrying out collection rights, authorized by 
the Federal Claims Collection Act of 1966 (80 Stat. 309), between 
contracts involved in the transfer of purchaser credit. Such claims 
against the contract receiving the transferred purchaser credit shall be 
limited to the amount transferred.

(Pub. L. 94-154, 89 Stat. 823 (16 U.S.C. 535)

[42 FR 63777, Dec. 20, 1977. Redesignated at 49 FR 2761, Jan. 23, 1984]



Sec. 223.45  Definitions applicable to transfer of purchaser credit.

    As used in Secs. 223.42 and 223.43, the term Purchaser includes any 
single individual, corporation, company, firm, partnership, joint 
venture, or other business entity or the successor in interest of any of 
the foregoing business entities having timber sale contracts on the same 
National Forest. The term National Forest shall be considered as a unit 
of the National Forest System, regardless of how it was established, 
which maintains a separate identity with respect to the distribution of 
receipts earned thereon to the States and counties. The term Effective 
Purchaser Credit means unused purchaser credit which does not exceed 
current contract value minus base rate value. The term base rate value 
is the sum of the products of base rates and estimated remaining 
unscaled (unreported on tree measurement contracts) volumes by species 
of timber included in a timber sale contract.

(Pub. L. 94-154, 89 Stat. 823 (16 U.S.C. 535)

[42 FR 63777, Dec. 20, 1977. Redesignated at 49 FR 2761, Jan. 23, 1984]



Sec. 223.46  Adjustment of contract termination date.

    Timber sale contracts may provide for adjustment of the termination 
date to provide additional time to compensate for delays in road 
construction and timber removal due to those causes beyond the 
purchaser's control, which may include but are not limited to acts of 
God, acts of the public enemy, acts of the Government, labor disputes, 
fires, insurrections or floods.



Sec. 223.47  Date of completion of permanent road construction.

    (a) The date of completion of permanent road construction 
obligations as set forth in the Notice of Sale shall be incorporated 
into the timber sale contract.

[[Page 106]]

    (b) This date is applicable to construction by both the Forest 
Service and the timber purchaser.
    (c) The date is not applicable to roads not needed by the purchaser 
for timber removal.
    (d) The date for completion may be revised, if additional time is 
needed, under guidelines provided by the Chief, Forest Service, 
including but not limited to (1) default of contractors or (2) design 
changes, physical changes, or catastrophic damages which necessitate 
modification of specified road construction work.
    (e) If Forest Service failure to perform results in delay in road 
completion, the termination date shall be adjusted in accordance with 
the contract term adjustment provisions of the timber sale contract. If 
there is substantial delay in performance by the Forest Service, the 
contract shall provide that rates of payment may be redetermined, at the 
request of the purchaser, in accordance with guidelines established by 
the Chief, Forest Service.
    (f) If the purchaser retains responsibility for road construction, 
the date of completion for permanent roads may be modified to conform to 
the approved plan of operation.



Sec. 223.48  Restrictions on export and substitution of unprocessed timber.

    (a) Contracts for the sale of unprocessed timber from National 
Forest System lands located west of the 100th meridian in the contiguous 
48 States and Alaska, awarded before August 20, 1990, shall include 
provisions implementing the Secretary's timber export and substitution 
regulations at subpart D of this part in effect prior to that data. Such 
contracts shall also require purchasers to:
    (1) Submit annually, until all unprocessed timber is accounted for, 
a certified report on the disposition of any unprocessed timber 
harvested from the sale including a description of unprocessed timber 
which is sold, exchanged or otherwise disposed of to another person and 
a description of the relationship with the other person;
    (2) Submit annually, until all unprocessed timber from the sale is 
accounted for, a certified report on the sale of any unprocessed timber 
from private lands in the tributary area which is exported or sold for 
export; and
    (3) Maintain records of all such transactions involving unprocessed 
timber and to make such records available for inspection and 
verification by the Forest Service for up to three (3) years after the 
sale is terminated.
    (b) Contracts for the sale of unprocessed timber from National 
Forest System lands located west of the 100th meridian in the contiguous 
48 States, awarded on or after August 20, 1990, shall include provisions 
implementing the requirements of the Forest Resources Conservation and 
Shortage Relief Act of 1990 (16 U.S.C. 620 et seq.).
    (c) The reporting and recordkeeping procedures in this section 
constitute information collection requirements as defined in 5 CFR part 
1320. These requirements have been approved by the Office of Management 
and Budget and assigned clearance number 0596-0021.

[56 FR 65842, Dec. 19, 1991]



Sec. 223.49  Downpayment.

    (a) For the purposes of this section, the terms listed in this 
paragraph shall have the following meaning:
    (1) Total bid value is the sum of the products obtained by 
multiplying the rate the purchaser bid for each species by the estimated 
volume listed in the contract.
    (2) Ineffective purchaser credit is that portion of the credit 
earned, pursuant to a specific Forest Service timber sale contract for 
construction of specified roads, or for other purposes in such contract, 
that exceeds the current contract value, minus base rate value as 
defined in that contract and, thus, is an amount that cannot be applied 
toward stumpage charges.
    (3) Bid premium is the amount in excess of the advertised value that 
a purchaser bids for timber offered.
    (4) Lump sum timber sales are premeasured sales where the entire 
value of the sale is paid in one payment at time of release for cutting.
    (5) Affiliate. Concerns or individuals are affiliates if directly or 
indirectly, either one controls or has the power to control the other, 
or a third party controls or has the power to control both. In 
determining whether or not affiliation exists, the Forest Service shall

[[Page 107]]

consider all appropriate factors, including, but not limited to, common 
ownership, common management, and contractual relationships.
    (b) Timber sale contracts shall include provisions that require 
purchasers to make a downpayment in cash or by application of earned 
effective purchaser credit at the time a timber sale contract is 
executed.
    (c) The minimum downpayment shall be equivalent to 10 percent of the 
total advertised value of each sale, plus 20 percent of the bid premium, 
except in those geographic areas where the Chief of the Forest Service 
determines that it is necessary to increase the amount of the 
downpayment in order to deter speculation. To determine the amount of 
the downpayment due on a sale where the timber is measured in units 
other than board feet, the Forest Service shall convert the measure to 
board feet, using appropriate conversion factors with any necessary 
adjustment.
    (d) On scaled sales, a purchaser cannot apply the amount deposited 
as a downpayment to cover other obligations due on that sale until 
stumpage value representing 25 percent of the total bid value of the 
sale has been charged and paid for. On tree measurement sales, a 
purchaser cannot apply the amount deposited as a downpayment to cover 
other obligations due on that sale until stumpage value representing 25 
percent of the total bid value of the sale is shown on the timber sale 
statement of account to have been cut, removed, and paid for. For lump 
sum sales, the downpayment amount may be applied to payment for release 
of the single payment unit.
    (e) A purchaser or any affiliate of that purchaser, awarded a Forest 
Service timber sale contract must meet the additional downpayment 
requirements of paragraph (g) of this section under the following 
circumstances:
    (1) The purchaser or its affiliate after September 29, 1988 has 
failed to perform in accordance with the terms of a Forest Service or 
Bureau of Land Management timber sale contract which results in 
notification by a Contracting Officer that a contract has expired 
uncompleted or is terminated for cause; and
    (2) The estimated value of the unscaled timber on scaled sales, or 
the estimated value of the timber outstanding on tree measurement sales, 
included in those terminated or expired contracts exceeds $100,000, and
    (3) Unpaid damages claimed by the Government remain outstanding 
prior to award of the new sale at issue and corrective action has not 
been taken to avoid future deficient performance.
    (f) A subsequent final determination by the Contracting Officer or 
by a court of competent jurisdiction that a contract was improperly 
classified under the criteria in paragraph (e) of this section will 
result in the refund or credit of any unobligated portion of the amount 
of downpayment exceeding that required by paragraphs (c) and (d) and the 
limitations of paragraph (h) on application of downpayment shall no 
longer apply.
    (g) Notwithstanding the provisions of paragraphs (c) and (d) of this 
section, a purchaser meeting the criteria of paragraph (e) of this 
section must make a minimum downpayment equal to 20 percent of the total 
advertised value of that sale, plus 40 percent of the total bid premium. 
This higher downpayment requirement applies throughout the National 
Forest System, except in those areas where the Chief of the Forest 
Service determines, before advertisement of the sale, that another 
downpayment rate is necessary to achieve the management objectives of 
the National Forest System.
    (1) In calculating bid premiums for the downpayment requirement, the 
Forest Service shall not include the portion of the bid premium that 
offsets ineffective purchaser credit.
    (2) To determine the amount of the downpayment due on a sale where 
the timber is measured in units other than board feet, the Forest 
Service shall convert the measure to board feet, using appropriate 
conversion factors with any necessary adjustments.
    (h) A purchaser subject to the additional downpayment requirements 
of paragraph (g) of this section cannot apply the amount deposited as a 
downpayment to other uses until:
    (1) On scaled sales, the estimated value of the unscaled timber is 
equal to

[[Page 108]]

or less than the amount of the downpayment; or
    (2) On tree measurement sales, the estimated value remaining to be 
cut and removed as shown on the timber sale statement of account is 
equal to or less than the amount of the downpayment.
    (i) For the purpose of releasing funds deposited as downpayment by a 
purchaser subject to paragraph (f) of this section, the Forest Service 
shall compute the estimated value of timber as follows:
    (1) On scaled sales, the estimated value of the unscaled timber is 
the sum of the products obtained by multiplying the current contract 
rate for each species by the difference between the advertised volume 
and the volume that has been scaled of that species.
    (2) On tree measurement sales, the estimated value of the timber 
outstanding (that not shown on the timber sale statement of account as 
cut and removed) is the sum of the products obtained by multiplying the 
current contract rate for each species by the difference between the 
advertised volume and the volume that has been shown on the timber sale 
statement to have been cut and removed of the species. The current 
contract rate for each species is that specified in each Forest Service 
timber sale contract.
    (j) In order to deter speculation, the Chief of the Forest Service 
may increase the period for retention of the downpayment for future 
contracts subject to such criteria as the Chief may adopt after giving 
the public notice and opportunity to comment.

[50 FR 41500, Oct. 11, 1985, as amended at 53 FR 33131, Aug. 30, 1988; 
56 FR 36103, July 31, 1991]



Sec. 223.50  Periodic payments.

    (a) For the purposes of this section, the following terms have the 
meaning given:
    (1) Total contract value is the product of the estimated volume of 
the sale multiplied by the rates bid by the purchaser. Total contract 
value excludes required deposits and is determined at bid date.
    (2) Current contract value is the sum of the products of the current 
contract rates and, in a scaled sale, estimated remaining unscaled 
volume or, in a tree measurement sale, the estimated remaining 
quantities by species of included timber meeting utilization standards.
    (3) Normal operating season is the period so specified in a timber 
sale contract.
    (4) Periodic payment(s) is/are amount(s) specified in a timber sale 
contract that a purchaser must pay by the periodic payment determination 
date(s) unless reduced by amounts paid as stumpage for volume removed.
    (5) A periodic payment determination date is a date specified in a 
timber sale contract upon which the Forest Service will compare the 
payments made by the timber sale purchaser for timber charges 
(stumpage), exclusive of required deposits, with the periodic payment 
amount required as of that date in the contract.
    (b) Except for lump sum sales, each timber sale contract of more 
than one full normal operating season shall provide for periodic 
payments. The number of periodic payments required will be dependent 
upon the number of normal operating seasons within the contract, but 
shall not exceed two such payments during the course of the contract. 
Periodic payments must be made by the periodic payment determination 
date, except that the amount of the periodic payment shall be reduced to 
the extent that timber has been removed and paid for by the periodic 
payment determination date. Should the payment fall due on a date other 
than normal billing dates, the contract shall provide that the payment 
date will be extended to coincide with the next timber sale statement of 
account billing date.
    (1) At a minimum, each such contract shall require an initial 
periodic payment at the midpoint between the specified road completion 
date and the termination date. If there is no road construction 
requirement, payment shall be due at the midpoint between award date and 
the termination date.
    (2) Contracts exceeding 2 full operating seasons shall require an 
additional periodic payment to be due no later than the midpoint of the 
last normal operating season or 12 months from the initial periodic 
payment whichever date is first.

[[Page 109]]

    (c) Each timber sale contract shall require the initial periodic 
payment to equal 35 percent of the total contract value or 50 percent of 
the bid premium, whichever is greater. The amount of this periodic 
payment will be reduced if the payment would result in the purchaser's 
credit balance for timber charges exceeding the current contract value.
    (d) Where an additional periodic payment is required by the timber 
sale contract, this payment will equal 75 percent of the total contract 
value. The amount of this periodic payment will be reduced if the 
payment would result in the purchaser's credit balance for timber 
charges exceeding the current contract value.
    (e) Periodic payment determination dates that have not been reached 
shall be adjusted when contract term adjustments are granted under 36 
CFR 223.46 or market-related contract term additions are granted under 
36 CFR 223.52. Periodic payment determination dates shall not be 
adjusted when contract term extension is granted under the general 
authority of 36 CFR 223.115.
    (f) In accordance with 36 CFR 223.52(a), no contract executed before 
July 31, 1991, shall be modified to allow for market-related contract 
term additions unless the purchaser makes a written request to the 
Contracting Officer by December 1, 1991, for a simultaneous modification 
implementing the periodic payment requirements of this section. The 
midpoint payment clause in contracts executed before July 31, 1991, is 
not the ``periodic payment requirement'' mandated by 36 CFR 223.52(a).

[56 FR 36104, July 31, 1991, as amended at 56 FR 55822, Oct. 30, 1991]



Sec. 223.51  Bid monitoring.

    Each Regional Forester shall monitor bidding patterns on timber 
sales to determine if speculative bidding is occurring or if Purchasers 
are bidding in such a way that they would be unable to perform their 
obligations under the timber sale contract. A Regional Forester shall 
propose to the Chief changes in servicewide timber sale procedures, as 
they appear necessary, to discourage speculative bidding.

[50 FR 41500, Oct. 11, 1985]



Sec. 223.52  Market-related contract term additions.

    (a) Contract provision. (1) Except as provided in paragraph (a)(3) 
of this section, each timber sale contract exceeding 1 year in length 
shall contain a provision for the addition of time to the contract term, 
under the following conditions:
    (i) The Chief of the Forest Service has determined that adverse wood 
products market conditions have resulted in a drastic reduction in wood 
product prices applicable to the sale; and
    (ii) The purchaser makes a written request for additional time to 
perform the contract.
    (2) The contract term addition provision of the contract must 
specify the index to be applied to each sale. The Forest Supervisor 
shall determine, and select from paragraph (b) of this section, the 
index to be used for each sale based on the species and product 
characteristics, by volume, being harvested on the sale. The index 
specified shall represent more than one-half of the advertised volume.
    (3) A market-related contract term addition provision shall not be 
included in contracts where the sale has a primary objective of 
harvesting timber subject to rapid deterioration.
    (b) Determination of drastic wood product price reductions. (1) The 
Forest Service shall monitor and use Producer Price Indices, as prepared 
by the Department of Labor, Bureau of Labor Statistics (BLS), adjusted 
to a constant dollar base, to determine if market-related contract term 
additions are warranted.
    (i) The Forest Service shall monitor and use only the following 
indices:

------------------------------------------------------------------------
                                                               Industry
                  BLS producer price index                       code
------------------------------------------------------------------------
Hardwood Lumber............................................      2421# 1
Eastern Softwood Lumber....................................      2421# 3
Western Softwood Lumber....................................      2421# 4
Wood Chips.................................................      2421# 5
------------------------------------------------------------------------

    (ii) Preliminary index values will be revised when final index 
values become available, however, determination of a

[[Page 110]]

qualifying quarter will not be revised when final index values become 
available.
    (2) The Chief of the Forest Service shall determine that a drastic 
reduction in wood product prices has occurred when, for 2 or more 
consecutive quarters, the applicable adjusted price index is less than 
85 percent of the average of such adjusted index for the 4 highest of 
the 8 calendar quarters immediately prior to the qualifying quarter. A 
qualifying quarter is a quarter where the applicable adjusted index is 
more than 15 percent below the average of such index for the 4 highest 
of the previous 8 calendar quarters. Qualifying quarter determinations 
will be made using the Producer Price Indices for the months of March, 
June, September, and December.
    (3) A determination, made pursuant to paragraph (b)(2) of this 
section, that a drastic reduction in wood product prices has occurred, 
shall constitute a finding that the substantial overriding public 
interest justifies the contract term addition.
    (c) Granting market-related contract term additions. When the Chief 
of the Forest Service determines, pursuant to this section, that a 
drastic reduction in wood product prices has occurred, the Forest 
Service is to notify affected timber sale purchasers. For any contract 
which has been awarded and has not been terminated, the Forest Service, 
upon a purchaser's written request, will add 1 year to the contract's 
terms, except as provided in paragraphs (c)(1) through (4) of this 
section. This 1-year addition includes time outside of the normal 
operating season.
    (1) Additional contract time may not be granted for those portions 
of the contract which have a required completion date or for those 
portions of the contract where the Forest Service determines that the 
timber is in need of urgent removal or that timber deterioration or 
resource damage will result from delay.
    (2) For each additional consecutive quarter, in which a contract 
qualifies for a market-related contract term addition, the Forest 
Service will, upon the purchaser's written request, add an additional 3 
months during the normal operating season to the contract.
    (3) No more than twice the original contract length or 3 years, 
whichever is less, shall be added to a contract's term by market-related 
contract term addition.
    (4) In no event shall a revised contract term exceed 10 years as a 
result of market-related contract term additions.
    (d) Recalculation of periodic payments. Where a contract is 
lengthened as a result of market conditions, any subsequent periodic 
payment dates shall be delayed 1 month for each month added to the 
contract's term.

[63 FR 24114, May 1, 1998]

                          Appraisal and Pricing



Sec. 223.60  Determining fair market value.

    The objective of Forest Service timber appraisals is to determine 
fair market value. Fair market value is estimated by such methods as are 
authorized by the Chief, Forest Service, through issuance of agency 
directives (36 CFR 200.4). Valid methods to determine fair market value 
include, but are not limited to, transaction evidence appraisals, 
analytical appraisals, comparison appraisals, and independent estimates 
based on average investments. Pertinent factors affecting market value 
also considered include, but are not limited to, prices paid and 
valuations established for comparable timber, selling value of products 
produced, estimated operating costs, operating difficulties, and quality 
of timber. Considerations and valuations may recognize and adjust for 
factors which are not normal market influences.

[61 FR 5685, Feb. 14, 1996]



Sec. 223.61  Establishing minimum stumpage rates.

    The Chief, Forest Service, shall establish minimum stumpage rates, 
i.e., ``base rates,'' for species and products on individual National 
Forests, or groups of National Forests. Timber shall be sold for 
appraised value or minimum stumpage rates, whichever is higher. No 
timber may be sold or cut under timber sale contracts for less than 
minimum stumpage rates except

[[Page 111]]

to provide for the removal of insect-infested, diseased, dead or 
distressed timber or in accordance with contract provisions specifically 
providing for catastrophically-affected timber and incidental amounts of 
material not meeting utilization standards of the timber sale contract. 
For any timber sale offering where deposits are to be required for 
reforestation under the Act of June 9, 1930, as amended (46 Stat. 527; 
16 U.S.C. 576-576b) which exceed the value of the established minimum 
stumpage rates, the minimum rates may be increased by the approving 
officer as necessary to the amount of such required reforestation 
deposits and a minimum deposit to the Treasury. Minimum rates in timber 
sale contracts will not be set higher than established minimum rates for 
purposes other than assuring adequate funds for reforestation.



Sec. 223.62  Timber purchaser road construction credit.

    Appraisal may also establish stumpage value as if unconstructed 
roads or other developments needed by the purchaser for removal of the 
timber were in place. When timber is appraised and sold on such basis, 
purchaser credit for road construction, not to exceed the estimated 
construction cost of such roads or other developments specified in the 
timber sale contract, shall, when such construction is accomplished by 
purchaser, be deducted from stumpage payments made by or due from 
purchaser under the timber sale contract for other than minimum stumpage 
rates and required deposits for slash disposal and road maintenance. As 
used in this section estimated construction costs means the total cost 
of constructing all permanent roads specified in the timber sale 
contract, estimated as if construction is to be accomplished by an 
independent contractor who is not the timber purchaser. In determining 
the purchaser credit amount applicable against timber payments, the 
estimated construction cost may be reduced for the effect of differences 
in applicable wage rates.



Sec. 223.63  Advertised rates.

    Timber shall be advertised for sale at its appraised value, or its 
appraised value plus specified road costs. In either event, the 
advertised rates shall be not less than minimum stumpage rates, except 
that sales of insect-infested, diseased, dead, or distressed timber may 
be sold at less than minimum rates when harvest of such timber is 
necessary to protect or improve the forest or prevent waste of useable 
wood fiber.



Sec. 223.64  Appraisal on a lump-sum value or rate per unit of measure basis.

    Timber may be appraised and sold at a lump-sum value or at a rate 
per unit of measure which rate may be adjusted during the period of the 
contract and as therein specified in accordance with formulas or other 
equivalent specifications for the following reasons:
    (a) Variations in lumber or other product value indices between the 
price index base specified in the contract and the price index actually 
experienced during the cutting of the timber;
    (b) Variance between advertised rates and rates redetermined by 
appraisal at dates specified in the contract;
    (c) Variance between redetermined rates and rates appropriate for 
changes in costs or selling values subsequent to the rate 
redetermination which reduce conversion value to less than such 
redetermined rates; and
    (d) Substantial loss of value due to physical deterioration of green 
timber or other physical damage to the sale area or access to the 
timber.



Sec. 223.65  Appraisal of timber for land exchange; right-of-way, or other authorized use.

    The value of timber in land exchange or the value of timber required 
to be cut for occupancy of a right-of-way or other authorized use of 
National Forest System land for which payment will be made is to be 
determined by the appraisal methods in Sec. 223.60 of this part.

[61 FR 48625, Sept. 16, 1996]

[[Page 112]]



Sec. 223.66    [Reserved]

                         Advertisement and Bids



Sec. 223.80  When advertisement is required.

    Except as otherwise provided in this part each sale in which the 
appraised value of the timber or other forest products exceeds $10,000 
will be made only after advertisement for a period of 30 days or, if in 
the opinion of the officer authorizing the sale, the quantity, value or 
other conditions justify, a longer period; and any sale of smaller 
appraised value will be advertised or informal bids solicited from 
potential purchasers if, in the judgment of the officer authorizing the 
sale, such action is deemed advisable.



Sec. 223.81  Shorter advertising periods in emergencies.

    In emergency situations where prompt removal of timber included in a 
sale is essential to avoid deterioration or to minimize the likelihood 
of the spread of insects, the approving officer may authorize shortening 
the formal advertising period to not less than 7 days. In other 
emergency situations, or for timber sold under 36 CFR 223.2 the Regional 
Forester or Chief may authorize shortening the formal advertising period 
to not less than 7 days.

[44 FR 73029, Dec. 17, 1979. Redesignated at 49 FR 2761, Jan. 23, 1984]



Sec. 223.82  Contents of advertisement.

    (a) A timber sale advertisement shall include the following 
information:
    (1) The location and estimated quantities of timber or other forest 
products offered for sale.
    (2) The time and place at which sealed bids will be opened in public 
or at which sealed bids will be opened in public followed by an oral 
auction.
    (3) A provision asserting the agency's right to reject any and all 
bids.
    (4) The place where complete information on the offering may be 
obtained.
    (5) Notice that a prospectus is available to the public and to 
interested potential bidders.
    (b) For each sale outside of the State of Alaska which includes a 
provision for purchaser credit for construction of permanent roads with 
a total estimated construction cost exceeding $20,000, a timber sale 
advertisement shall also include:
    (1) The total estimated construction cost of the permanent roads.
    (2) A statement extending to small business concerns qualified for 
preferential bidding on timber sales, under the Small Business Act, as 
amended, and the regulations issued thereunder, the option to elect, 
when submitting a bid, to have all permanent roads constructed by the 
Forest Service.
    (3) Notice that the prospectus referred to in paragraph (a)(5) of 
this section contains additional information concerning the options to 
have all permanent roads constructed by the Forest Service.
    (c) When timber or other forest products are offered for 
preferential bidding in accordance with the Small Business Act, as 
amended, the advertisement shall state that the offering is set-aside 
for competitive bidding by small business concerns.

[50 FR 32696, Aug. 14, 1985]



Sec. 223.83  Contents of prospectus.

    (a) A timber sale prospectus shall specify, as a minimum:
    (1) The minimum acceptable stumpage or other unit prices and the 
amount or rate of any additional required deposits.
    (2) The amount of bid guarantee which must accompany each bid.
    (3) The amount of cash deposit or down payment to be made promptly 
by the successful bidder.
    (4) The location and area of the sale, including harvest acreage.
    (5) The estimated volumes, quality, size or age class of timber.
    (6) A description of special logging requirements for the sale.
    (7) The status of marking at time of advertisement.
    (8) The method of bidding which will be used.
    (9) The contract form to be used.
    (10) The estimated deposits for reforestation and stand improvement 
work.
    (11) The contract termination date and normal operating period.
    (12) The date and amount of periodic payments which are to be made.

[[Page 113]]

    (13) The discount of payment rates for early harvest, if 
appropriate.
    (14) The amount of performance bond required.
    (15) The road standards for specified roads to be constructed.
    (16) The estimated road construction cost and purchaser credit 
limit.
    (17) For deficit sales,
    (i) An estimate of insufficient value at advertised rates to permit 
the purchaser to apply the full amount of purchaser credit.
    (ii) The amount of Forest Service funds or materials to be used to 
offset the deficit.
    (18) Status of financial assistance available to small business 
purchasers.
    (19) Notification of preferential award to small business firms and 
certification requirements for set-aside sales.
    (20) Notification of log export and substitution restrictions.
    (21) Notification of Equal Employment Opportunity compliance review 
requirements.
    (22) General or special information concerning the sale which are 
deemed appropriate to furnish sufficient information to prospective 
purchasers to warrant further investigation.
    (b) For each advertisement which extends to small concerns the 
option to have all permanent roads constructed by the Forest Service, 
the prospectus shall also include:
    (1) The road standards applicable to construction of permanent roads 
or a reference to the source of such information.
    (2) The date of final completion for all permanent roads.
    (3) A statement explaining how the Forest Service intends to perform 
road construction by force account or contract, if the high bidder 
elects Forest Service construction.
    (4) The maximum period for which timber sale contract award will be 
delayed while the Forest Service seeks a satisfactory construction bid. 
The period stated shall not exceed 120 days unless the Regional Forester 
approves a longer period.

[50 FR 32696, Aug. 14, 1985]



Sec. 223.84  Small business bid form provisions on sales with purchaser road construction credits.

    For each sale described in Sec. 223.82(b), the bid form must include 
provision for a small business concern:
    (a) To elect road construction by the Forest Service and where such 
election is made;
    (b) To certify as to small business status, and
    (c) To indicate knowledge--
    (1) Of the road construction completion date,
    (2) That the Forest Service expects to contract for road 
construction with a third party,
    (3) That the timber sale contract will not be awarded unless a 
satisfactory road construction bid is received or, if the Forest Service 
fails to receive such a bid within a maximum period stated in the 
advertisement, the bidder agrees to perform road construction,
    (4) That the Forest Service may extend the maximum award delay time 
by the amount of time needed to confirm the bidder's size status or by 
any time in excess of 40 days from timber sale bid opening needed to 
begin solicitation of construction bids, and
    (5) That if the Forest Service extends the maximum award delay 
period because solicitation of the road contract is delayed, the bidder 
may withdraw his bid without penalty.

[42 FR 28252, June 2, 1977. Redesignated at 49 FR 2761, Jan. 23, 1984. 
Redesignated and amended at 50 FR 32696, Aug. 14, 1985]



Sec. 223.85  Noncompetitive sale of timber.

    (a) Forest officers may sell, within their authorization, without 
further advertisement, at not less than appraised value, any timber 
previously advertised for competitive bids but not sold because of lack 
of bids and any timber on uncut areas included in a contract which has 
been terminated by abandonment, cancellation, contract period 
expiration, or otherwise if such timber would have been cut under the 
contract. This authority shall not be utilized if there is evidence of 
competitive interest in the product.
    (b) Extraordinary conditions, as provided for in 16 U.S.C. 472(d), 
are defined

[[Page 114]]

to include the potential harm to natural resources, including fish and 
wildlife, and related circumstances arising as a result of the award or 
release of timber sale contracts pursuant to section 2001(k) of Public 
Law 104-19 (109 Stat. 246). Notwithstanding the provisions of paragraph 
(a) or any other regulation in this part, for timber sale contracts that 
have been or will be awarded or released pursuant to section 2001(k) of 
Public Law 104-19 (109 Stat. 246), the Secretary of Agriculture may 
allow forest officers to, without advertisement, modify those timber 
sale contracts by substituting timber from outside the sale area 
specified in the contract for timber within the timber sale contract 
area.

[61 FR 14621, Apr. 3, 1996]



Sec. 223.86  Bid restriction on resale of noncompleted contract.

    (a) Except as otherwise provided in this section, no bid will be 
considered in the resale of timber remaining from any uncompleted timber 
sale contract from any person, or from an affiliate of such person, who 
failed to complete the original contract:
    (1) Because of termination for purchaser's branch or; or
    (2) Through failure to cut designated timber on portions of the sale 
area by the termination date, unless acceptance of such bid is 
determined to be in the public interest.
    (b) The no bid restriction in the preceding paragraph:
    (1) Shall only apply when 50 percent or more of the timber included 
in the resale is timber remaining from the uncompleted contract and the 
resale is advertised within 3 years of the date the uncompleted contract 
terminated;
    (2) When imposed because of failure to cut designated timber on 
portions of the sale area by the termination date, shall not apply to 
resales of timber for which the original contract was awarded prior to 
April 30, 1972, unless the contract is extended thereafter; and
    (3) Shall not apply to:
    (i) Resales of timber within a sustained yield unit unless 
competition may be invited under the policy statement for the unit,
    (ii) Resales of timber on contract which would ordinarily have been 
awarded prior to April 30, 1972, if award was delayed through no fault 
of the purchaser, and
    (iii) Resales of timber on contracts not extended because of 
environmental considerations.
    (c) Where a third-party agreement has been approved in accordance 
with Sec. 223.114; the original purchaser shall not be affected by this 
section unless such purchaser is an affiliate of the third party.
    (d) As used in this section, person includes any individual, 
corporation, company, association, firm, partnership, society, joint 
stock company, or other business entity or the successor in interest of 
any of the foregoing business entities. A person is an affiliate when 
either directly or indirectly:
    (1) A person controls or has the power to control the other, or
    (2) A third person or persons control or has the power to control 
both.

[42 FR 28252, June 2, 1977. Redesignated at 49 FR 2761, Jan. 23, 1984 
and 50 FR 32696, Aug. 14, 1985]



Sec. 223.87  Requirements of bidders concerning exports.

    In order to have a bid considered responsive for a sale of timber 
from National Forest System lands, each bidder must certify that the 
bidder is eligible to purchase timber from National Forest System lands 
consistent with the Forest Resources Conservation and Shortage Relief 
Act of 1990 (16 U.S.C. 620, et seq.) and its implementing regulations at 
36 CFR part 223, and that the bidder's timber purchase and export 
activities are in compliance with the timber export and substitution 
provisions of the Forest Resources Conservation and Shortage Relief Act 
of 1990 (16 U.S.C. 620, et seq.) and its implementing regulations at 36 
CFR part 223.

[60 FR 46920, Sept. 8, 1995]



Sec. 223.88  Bidding methods.

    (a) Competitive sales of National Forest timber shall be offered 
through either sealed or oral auction bidding. The method chosen for 
each sale will:
    (1) Insure open and fair competition,
    (2) Insure that the Federal Government receives not less than fair 
market value for the public resource,

[[Page 115]]

    (3) Consider the economic stability of communities whose economies 
are dependent upon National Forest timber, and
    (4) Be consistent with the objectives of the National Forest 
Management Act of 1976, as amended, and other Federal Statutes.
    (b) As a prerequisite to participation in an oral auction, bidders 
shall submit a written sealed bid at least equal to the minimum 
acceptable bid prices specified in the prospectus. No price subsequently 
bid at oral auction shall be accepted if it is less than the written 
sealed bid.
    (c) The Chief, Forest Service, shall specify the use of sealed bids 
or a mix of bidding methods in areas where he has reasonable belief that 
collusive bidding may be occurring or where he determines that less than 
normal competitive bidding is occurring.
    (d) Sealed bids shall be used for sales within Federal Sustained 
Yield Units, except where the policy statement for the Unit restricts 
purchasers of timber within the Unit from buying National Forest timber 
outside the Unit and the Chief determines that oral bidding will protect 
individual communities within the Unit.
    (e) The Chief, Forest Service, may authorize departures from the 
requirements of paragraphs (c) and (d) of this section when he 
determines that departures are necessary to protect the public interest.
    (f) The Chief, Forest Service, may authorize the testing and 
evaluation of alternative bidding methods for National Forest timber.

[43 FR 21882, May 22, 1978. Redesignated at 49 FR 2761, Jan. 23, 1984. 
Further redesignated and amended at 50 FR 32696, Aug. 14, 1985]



Sec. 223.89  Relation to other bidders.

    Any bidder or applicant for a sale may be required to furnish a 
statement of his relation to other bidders or operators, including, if 
desired by the supervisor or Regional Forester, a certified statement of 
stockholders or members of the firm, and the holders of bonds, notes or 
other evidences of indebtedness, so far as known, so that the statement 
will show the extent of the interest of each in the bidder or applicant.

[44 FR 73029, Dec. 17, 1979. Redesignated at 49 FR 2761, Jan. 23, 1984 
and 50 FR 32696, Aug. 14, 1985]

                           Award of Contracts



Sec. 223.100  Award to highest bidder.

    The sale of advertised timber shall be awarded to the responsible 
bidder submitting the highest bid that conforms to the conditions of the 
sale as stated in the prospectus unless:
    (a) Determination is made to reject all bids.
    (b) Two or more bidders, all of whom meet the requirements, submit 
equal bids which are the highest bids, in which case award may be by the 
drawing of lots. Equal bids from parties having direct or indirect 
common control or association in logging, processing or marketing may be 
consolidated to the extent deemed necessary by the awarding officer in 
order to give to any others who have bid the same amount an equitable 
opportunity in the drawing of lots.
    (c) The highest bidder is notoriously or habitually careless with 
fire.
    (d) Monopoly, injurious to the public welfare, would result from the 
control of large amounts of public or of public and private timber.
    (e) The high bidder has elected Forest Service road construction in 
response to an advertisement extending such an option, the Forest 
Service cannot perform the construction and in response to solicitation 
has not received a satisfactory bid for such construction within the 
period stated in the prospectus and the high timber sale bidder is 
unwilling to perform the construction.

[44 FR 73029, Dec. 17, 1979. Redesignated at 49 FR 2761, Jan. 23, 1984, 
and amended at 50 FR 32696, Aug. 14, 1985; 53 FR 33132, Aug. 30, 1988]



Sec. 223.101  Determination of purchaser responsibility.

    (a) A Contracting Officer shall not award a timber sale contract 
unless that officer makes an affirmative determination of purchaser 
responsibility. In the absence of information clearly indicating that 
the prospective purchaser is responsible, the Contracting Officer shall 
conclude that the

[[Page 116]]

prospective purchaser does not qualify as a responsible purchaser.
    (b) To determine a purchaser to be responsible, a Contracting 
Officer must find that:
    (1) The purchaser has adequate financial resources to perform the 
contract or the ability to obtain them;
    (2) The purchaser is able to perform the contract within the 
contract term taking into consideration all existing commercial and 
governmental business commitments;
    (3) The purchaser has a satisfactory performance record on timber 
sale contracts. A prospective purchaser that is or recently has been 
seriously deficient in contract performance shall be presumed not to be 
responsible, unless the Contracting Officer determines that the 
circumstances were beyond the purchaser's control and were not created 
through improper actions by the purchaser or affiliate, or that the 
purchaser has taken appropriate corrective action. Past failure to apply 
sufficient tenacity and perseverance to perform acceptably under a 
contract is strong evidence that a purchaser is not a responsible 
contractor. The Contracting Officer shall consider the number of 
contracts involved and extent of deficiency of each in making this 
evaluation;
    (4) The purchaser has a satisfactory record of integrity and 
business ethics;
    (5) The purchaser has or is able to obtain equipment and supplies 
suitable for logging the timber and for meeting the resource protection 
provisions of the contract;
    (6) The purchaser is otherwise qualified and eligible to receive an 
award under applicable laws and regulations.
    (c) If the prospective purchaser is a small business concern and the 
Contracting Officer determines that the purchaser does not qualify as a 
responsible purchaser on an otherwise acceptable bid, the Contracting 
Officer shall refer the matter to the Small Business Administration 
which will decide whether or not to issue a Certificate of Competency.
    (d) Affiliated concerns, as defined in Sec. 223.49(a)(5) of this 
subpart are normally considered separate entities in determining whether 
the concern that is to perform the contract meets the applicable 
standards for responsibility. However, the Contracting Officer shall 
consider an affiliate's past performance and integrity when they may 
adversely affect the prospective purchaser's responsibility.

[53 FR 33132, Aug. 30, 1988]



Sec. 223.102  Procedures when sale is not awarded to highest bidder.

    If the highest bid is not accepted and the sale is still deemed 
desirable, all bids may be rejected and the timber readvertised; or, if 
the highest bidder cannot meet the requirements under which the timber 
was advertised or the withholding of award to him is based on one or 
more of paragraphs (c), (d), and (e) of Sec. 223.100, award at the 
highest price bid may be offered to the next highest qualified bidder or 
to the other qualified bidders in order of their bids until the award is 
accepted by one or refused by all of the qualified bidders.

(92 Stat. 1301, Pub. L. 95-465)

[44 FR 73029, Dec. 17, 1979. Redesignated at 49 FR 2761, Jan. 23, 1984, 
and 53 FR 33132, Aug. 30, 1988]



Sec. 223.103  Award of small business set-aside sales.

    If timber is advertised as set aside for competitive bidding by 
small business concerns, award will be made to the highest bidder who 
qualifies as a small business concern and who has not been determined by 
the Small Business Administration to be ineligible for preferential 
award of set-aside sales. If there are no qualified small business 
bidders any readvertisement shall be without restriction on the size of 
bidders.

(92 Stat. 1301, Pub. L. 95-465)

[44 FR 73029, Dec. 17, 1979. Redesignated at 49 FR 2761, Jan. 23, 1984, 
and 53 FR 33132, Aug. 30, 1988]

                         Contract Administration



Sec. 223.110  Delegation to regional forester.

    The Chief, Forest Service, after approval of conditions of sale, may 
authorize Regional Foresters formally to

[[Page 117]]

execute timber sale contracts and related papers in sales exceeding the 
volume which the Regional Forester has been authorized to sell.



Sec. 223.111  Administration of contracts in designated disaster areas.

    This section is to implement the provisions of section 242 (a), (b), 
and (c) of the Disaster Relief Act of 1970 (84 Stat. 1956) which relate 
to contracts for the sale of National Forest timber in connection with 
areas damaged by major disaster as designated by the President pursuant 
to the Act.
    (a) Where an existing contract for the sale of National Forest 
timber does not provide relief from major physical change not due to 
purchaser's negligence prior to approval of construction of any section 
of specified road or other specified development facility and, as a 
result of a major disaster in a designated area a major physical change 
results in additional construction work by the purchaser in connection 
with such a road or facility, the United States shall bear such 
increased construction cost if, as determined by the Chief, Forest 
Service, the estimated cost is--
    (1) More than $1,000 for sales under 1 million board feet, or
    (2) More than $1 per thousand board feet for sales of 1 to 3 million 
board feet, or
    (3) More than $3,000 for sales over 3 million board feet.
    (b) Where the Chief, Forest Service, determines that damages are so 
great that restoration, reconstruction, or construction is not practical 
under the cost-sharing arrangement in paragraph (a) of this section, he 
may allow cancellation of the contract notwithstanding provisions 
therein or in Sec. 223.116.
    (c) The Chief, Forest Service, is authorized to reduce to 7 days the 
minimum time to advertise the sale of National Forest timber whenever he 
determines that--
    (1) The sale of such timber will assist in the construction of any 
area of a State damaged by a major disaster,
    (2) The sale of such timber will assist in sustaining the economy of 
such area, or
    (3) The sale of such timber is necessary to salvage the value of 
timber damaged in such major disaster or to protect undamaged timber.
    (d) Any request for relief under paragraph (a) or (b) of this 
section shall be made in writing to the Forest Supervisor having 
administrative responsibility for the land involved.

(Sec. 242 (a), (b), and (c), 84 Stat. 1756, 42 U.S.C. 4461)



Sec. 223.112  Modification of contracts.

    Timber sale contracts may be modified only when the modification 
will apply to unexecuted portions of the contract and will not be 
injurious to the United States. Modifications may be made by the officer 
approving the sale, by his successor, or by his superior, except as 
provided in Sec. 223.110.



Sec. 223.113  Modification of contracts to prevent environmental damage or to conform to forest plans.

    Timber sale contract, permits, and other such instruments may be 
modified to prevent environmental damage or to make them consistent with 
amendments or revisions of land and resource management plans adopted 
subsequent to award or issuance of a timber sale contract, permit, or 
other such instrument. Compensation to the purchaser, if any, for 
modifications to a contract shall be made in accordance with provisions 
set forth in the timber sale contract. When determining compensation 
under a contract, timber payment rates shall be redetermined in 
accordance with appraisal methods in Sec. 223.60 of this subpart.

[61 FR 64816, Dec. 9, 1996]



Sec. 223.114  Acquisition by third party.

    No agreement permitting a third party to acquire the rights of a 
purchaser under a timber sale contract may be recognized and approved by 
the Forest Service except in writing, signed by the officer approving 
the sale, his successor, or superior officer. Such approval shall not 
relieve the purchaser of his responsibilities or liabilities under the 
timber sale contract and may be given only if--
    (a) The third party is acceptable to the Forest Service as a 
purchaser of

[[Page 118]]

timber under the conditions and requirements then in effect for similar 
timber sales and assumes in writing all of the obligations to the Forest 
Service under the terms of the timber sale contract as to the 
uncompleted portion thereof, or
    (b) The rights are acquired in trust as security and subject to such 
conditions as may be necessary for the protection of the public 
interests.



Sec. 223.115  Contract extensions.

    The term of any contract or permit shall not be extended unless the 
approving officer finds:
    (a) That the purchaser has diligently performed in accordance with 
contract provisions and an approved plan of operation; or
    (b) That the substantial overriding public interest justifies the 
extension.



Sec. 223.116  Cancellation.

    (a) Timber sale contracts and permits may be canceled:
    (1) For serious or continued violation of their terms.
    (2) Upon application, or with the consent of the purchaser, when 
such action is of advantage to the United States or not prejudicial to 
its interests.
    (3) Upon application of the purchaser if the value of the timber 
remaining to be cut is diminished materially because of catastrophic 
damage caused by forces beyond the control of the purchaser resulting in 
(i) physical change in the sale area or access to it, or (ii) damage to 
timber remaining to be cut.
    (4) For conviction of violation of criminal statutes or, following 
final agency or judicial determination, of violation of civil standards, 
orders, permits, or others regulations for the protection of 
environmental quality issued by a Federal agency, State agency, or 
political subdivision thereof, in the conduct of operations thereunder, 
on National Forest System land, unless compliance with such laws or 
regulations would preclude performance of other contractual 
requirements.
    (5) Upon determination by the Chief, Forest Service, that operations 
thereunder would result in serious environmental degradation or resource 
damage and with reasonable compensation to the purchaser for unrecovered 
costs incurred under the contract and the difference between the current 
contract value and the average value of comparable National Forest 
timber sold during the preceding 6-month period.
    (b) Cancellation will be by the Chief, Forest Service. Authority to 
cancel contracts under paragraph (a)(1) through (4) of this section may 
be delegated to Regional Foresters for sales within their authorization. 
All contract cancellations under paragraph (a)(5) of this section shall 
be by the Chief, Forest Service, whose decision shall be the final 
agency decision.

[42 FR 28252, June 2, 1977, as amended at 48 FR 23819, May 27, 1983. 
Redesignated at 49 FR 2761, Jan. 23, 1984]



Sec. 223.117  Administration of cooperative or Federal sustained yield units.

    With respect to sustained yield units established pursuant to the 
provisions of the Act of March 29, 1944 (58 Stat. 132; 16 U.S.C. 583-
583l), the Chief, Forest Service, with authority to delegate to other 
officers and employees of the Forest Service:
    (a) Shall provide that National Forest timber in any sustained yield 
unit shall be available in sufficient amounts to meet the needs of bona 
fide farmers, settlers, miners, residents and prospectors for minerals 
for personal and domestic use as provided by law and by regulation.
    (b) May offer for sale to cooperators, without competition but at 
not less than appraised value, timber on National Forest lands within an 
approved cooperative sustained yield unit; or, if the approved sustained 
yield unit consists entirely of federally owned or administered forest 
land and if necessary for the maintenance of a stable community or 
communities, may offer National Forest timber for sale to responsible 
operators within such community or communities, at not less than 
appraised value but without competition or with competition restricted 
to responsible operators who will manufacture the timber to at least a 
stated degree within the community or communities to be maintained. Each 
such sale which involves more than $500 in stumpage value may be made 
only

[[Page 119]]

after notice has been given in advance by such means as may be deemed 
effective in informing the public of the proposed action, including in 
any event, publication, once weekly for four consecutive weeks and with 
additional insertions if needed, in one or more newspapers of general 
circulation in the vicinity of the place where the timber is located, of 
a notice of the proposed sale stating at least:
    (1) The location, estimated quantity and appraised value of the 
timber to be cut;
    (2) The name and address of the proposed purchaser or those of the 
operators among whom bidding is to be restricted;
    (3) The time and place of a public advisory hearing on the proposed 
sale, to be held not earlier than 30 days after the first publication of 
said notice, if requested by the State or county where the timber is 
located or by any other person deemed to have a reasonable interest in 
the proposed sale or in its terms; and
    (4) The title and address of the officer of the Forest Service to 
whom any request for such hearing should be made.

Such requests need be considered only if received at the place 
designated in the notice not later than 15 days after the first 
publication of such notice. If a public advisory hearing is to be held, 
notice of it shall be published in the same newspaper or newspapers as 
the original notice, stating the place where it will be held and the 
time, which shall not be earlier than 10 days after the first 
publication of the said notice of hearing, and shall appear once each 
week, but not for more than four successive weeks in any event, until 
the date set for the hearing. Any such hearing shall be conducted by the 
Chief or by any officer designated by him as his representative, except 
that if the amount of the proposed sale is not in excess of that which 
the Regional Forester has been authorized to sell without prior approval 
of the Chief the hearing may be held by the Regional Forester concerned 
or by his representative and decision may be by the Regional Forester. 
At any such hearing, opportunity shall be given to those having a 
reasonable interest to make oral statements or to file written 
statements discussing the advantages and disadvantages of the proposed 
sale; and the officer holding the hearing may, in his discretion, permit 
the filing of such statements within a reasonable period after the close 
of the hearing to become part of the record for consideration before a 
decision is made.
    (c) Shall keep available for public inspection,
    (1) During the life of any sustained yield unit, the minutes or 
other record of the hearing held on the establishment thereof, and the 
determination of action taken following the hearing including any 
modification of the proposals as submitted at the hearing; and
    (2) During the life of any cooperative agreement for coordinated 
management the similar record of the hearings and actions determined 
upon; and
    (3) During the life of any sustained yield unit the similar record 
of any public hearing which may be held on a sale made without 
competition or with restricted competition and the action determined 
upon. Such records of any case may be kept in any office of the Forest 
Service designated by the Chief as being suitable and convenient of 
access for probably interested persons.
    (d) Shall make provision, in any contract for the purchase of timber 
without competition or with restricted competition, if that contract is 
of more than 7 years' duration and in his discretion in any case of 
shorter duration, for the redetermination of rates for stumpage and for 
required deposits to be paid by the purchasers, such redetermination to 
be effective at intervals or dates stated in the contract; but the sum 
of such redetermined rates for stumpage and sale area betterment shall 
not be less than the base rates in the published notice of the proposed 
sale.
    (e) May modify and revise existing cooperative agreements entered 
into under said act after taking appropriate action.



Sec. 223.118  Appeal process for small business timber sale set-aside program share recomputation decisions.

    (a) Decisions subject to appeal. The rules of this section govern 
appeal of

[[Page 120]]

recomputation decisions related to structural, special, or market 
changes or the scheduled 5-year recomputations of the small business 
share of National Forest System timber sales. Certain decisions related 
to recomputation of shares, such as structural change and carryover 
volume, may require two decisions, one to determine that a recomputation 
is needed and the other to recompute the shares. Decisions made both at 
the earlier stage as well as the later stage are appealable.
    (b) Manner of giving notice. (1) Predecisional notice and comment. 
The Responsible Official shall provide qualifying timber sale 
purchasers, as defined in paragraph (c)(1) of this section, 30 days for 
predecisional review and comment on any draft decision to reallocate 
shares, including the data used in making the proposed recomputation 
decision.
    (2) Notice of decision. Upon close of the 30-day predecisional 
review period, the Responsible Official shall consider any comments 
received. Within 15 days of the end of the comment period, the 
Responsible Official shall make a decision on the small business shares 
and shall give prompt written notice to all parties on the national 
forest timber sale bidders list for the affected area. The notice of 
decision must identify the name of the Appeal Deciding Officer, the 
address, the date by which an appeal must be filed, and a source for 
obtaining the appeal procedures information.
    (c) Who may appeal or file written comments as an interested party. 
(1) Only timber sale purchasers, or their representatives, who are 
affected by recomputations of the small business share of timber sales 
as described in paragraph (a) of this section and who have submitted 
predecisional comments pursuant to paragraph (b)(1) of this section, may 
appeal recomputation decisions under this section or may file written 
comments as an interested party.
    (2) Interested parties are defined as the Small Business 
Administration and those timber sale purchasers, or their 
representatives, who are affected by recomputations of the small 
business share of timber sales as described in paragraph (a) of this 
section and who have individually, or through an association to which 
they belong, submitted predecisional comments pursuant to paragraph 
(b)(1) of this section.
    (i) A timber sale purchaser may submit comments on an appeal as an 
interested party if an association to which the purchaser belongs filed 
predecisional comment but later decides not to appeal or not to file 
comments as an interested party.
    (ii) A timber sale purchaser, who is a member of an association that 
appeals a decision, may not file a separate appeal unless that purchaser 
filed separate predecisional comment under paragraph (b)(1).
    (3) Interested parties who submit written comments on an appeal 
filed by another party may not continue an appeal if the appellant 
withdraws the appeal.
    (d) Level of appeal. Only one level of review is available for 
appeal of decisions pertaining to recomputations under the Small 
Business Timber Sale Set-aside Program. The Appeal Deciding Officer is 
the official one level above the level of the Responsible Official who 
made the recomputation of shares decision. The Responsible Official is 
normally the Forest Supervisor; thus, the Appeal Deciding Officer is 
normally the Regional Forester. However, when the Regional Forester 
makes recomputation decisions, the Appeal Deciding Officer is the Chief 
or such officer at the National headquarters level as the Chief may 
designate.
    (e) Filing procedures. In order to file an appeal under this 
section, an appellant must file a notice of appeal, as specified in the 
notice of decision, with the Appeal Deciding Officer within 20 days of 
the date on the notice of the decision. This date must be specified in 
the notice of decision given pursuant to paragraph (b)(2) of this 
section. Written comments filed by an interested party in response to an 
appeal must be filed within 15 days after the close of the appeal filing 
period.
    (f) Content of notice of appeal. (1) It is the responsibility of the 
appellant to provide sufficient narrative evidence and argument to show 
why a recomputation decision by the Responsible Official should be 
reversed or changed.

[[Page 121]]

    (2) An appellant must include the following information in a notice 
of appeal:
    (i) The appellant's name, mailing address, and daytime telephone 
number;
    (ii) The title or type of recomputation decision involved, the date 
of the decision, and the name of the Responsible Official;
    (iii) A brief description and date of the decision being appealed:
    (iv) A statement of how the appellant is adversely affected by the 
decision being appealed;
    (v) A statement of the facts in dispute regarding the issue(s) 
raised by the appeal;
    (vi) If relevant, any specific references to any law, regulation, or 
policy that the appellant believes to have been violated and the basis 
for such an allegation;
    (vii) A statement as to whether and how the appellant has tried to 
resolve with the Responsible Official the issue(s) being appealed, 
including evidence of submission of written comments at the 
predecisional stage as provided by paragraph (a) of this section, the 
date of any discussion, and the outcome of that meeting or contact; and
    (viii) A statement of the relief the appellant seeks.
    (g) Time periods and timeliness. (1) All time periods applicable to 
this section will begin on the first day following a decision or action 
related to the appeal.
    (2) Time periods applicable to this section are computed using 
calendar days. Saturdays, Sundays, or Federal holidays are included in 
computing the time allowed for filing an appeal; however, when the 
filing period would expire on a Saturday, Sunday, or Federal holiday, 
the filing time is automatically extended to the end of the next Federal 
working day.
    (3) It is the responsibility of those filing an appeal to file the 
notice of appeal by the end of the filing period. In the event of 
questions, legible postmarks on a mailed appeal or the time and date 
imprint on a facsimile appeal will be considered evidence of timely 
filing. Where postmarks or facsimile imprints are illegible, the Appeal 
Deciding Officer shall rule on the timeliness of the notice of appeal.
    (4) The time period for filing a notice of appeal is not extendable.
    (h) Dismissal without decision. The Appeal Deciding Officer shall 
dismiss an appeal and close the record without a decision in any of the 
following circumstances:
    (1) The appellant is not on the timber sale bidders list for the 
area affected by the recomputation decision;
    (2) The appellant's notice of appeal is not filed within the 
required time period;
    (3) The appellant's notice of appeal does not contain responses 
required by paragraphs (f)(2)(i) through (f)(2)(viii) of this section; 
or
    (4) The appellant did not submit written comments on the proposed 
decision of the new recomputed shares as described in paragraph (c) of 
this section.
    (i) Appeal record. The appeal record consists of the written 
decision being appealed, any predecisional comments received, any 
written comments submitted by interested parties, any other supporting 
data used to make the decision, the notice of appeal, and, if prepared, 
a responsive statement by the Responsible Official which addresses the 
issues raised in the notice of appeal. The Responsible Official must 
forward the record to the Appeal Deciding Officer within 7 days of the 
date the notice of appeal is received. A copy of the appeal record must 
be sent to the appellant at the same time.
    (j) Appeal decision. (1) Responsive statement for appeal decision. 
The Appeal Deciding Officer may request the Responsible Official to 
prepare a responsive statement. However, if the information in the files 
clearly demonstrates the rationale for the Responsible Official's 
decision, then a responsive statement addressing the points of the 
appeal is not necessary.
    (2) Appeal issue clarification. For clarification of issues raised 
in the appeal, the Appeal Deciding Officer may request additional 
information from either the Responsible Official, the appellant, or an 
interested party who has submitted comments on the appeal. At the 
discretion of the Appeal Deciding Officer, an appellant or interested 
party may be invited to discuss data

[[Page 122]]

relevant to the appeal. Information provided to clarify issues or facts 
in the appeal must be based upon information previously documented in 
the file or appeal. Any information provided as a result of the Appeal 
Deciding Officer's request for more information must be made available 
to all parties, that is, to the Responsible Official, the appellant, and 
interested parties who have submitted comments on the appeal. All 
parties will have 5 days after the Appeal Deciding Officer receives the 
additional information to review and comment on the information, and the 
appeal decision period will be extended 5 additional days.
    (3) Issuance of final decision. The Appeal Deciding Officer shall 
review the decision and appeal record and issue a written appeal 
decision to the parties within 30 days of the close of the appeal period 
except that this period must be extended to 35 days when additional 
information is requested by the Appeal Deciding Officer. The Appeal 
Officer may affirm or reverse the Responsible Official's decision, in 
whole or in part. There is no extension of the time period for rendering 
an appeal decision.
    (k) Implementation of decisions during pendency of appeal. 
Recomputation of shares arising from a scheduled 5-year recomputation 
are effective on April 1 following the end of the 5-year period being 
considered. If an appeal that may affect the shares for the next 5-year 
period is not resolved by the April 1 date, the share decision announced 
by the Responsible Official must be implemented. If an appeal decision 
results in a change in the shares, the revised total share of the Small 
Business Timber Sale Set-aside Program must be accomplished during the 
remaining portion of the 5-year period.
    (l) Timber sale set-aside policy changes. Timber purchasers shall 
receive an opportunity, in accordance with all applicable laws and 
regulations, to review and comment on significant changes in the Small 
Business Timber Sale Set-aside Program or policy prior to adoption and 
implementation.
    (m) Information collection requirements. The provisions of paragraph 
(f) of this section specify the information that appellants must provide 
when appealing decisions pertaining to recomputation of shares. As such, 
these rules contain information requirements as defined in 5 CFR Part 
1320. These information requirements have been approved by the Office of 
Management and Budget and assigned control number 0596-0141.

[64 FR 411, Jan. 5, 1999]



        Subpart C--Suspension and Debarment of Timber Purchasers

    Source: 52 FR 43329, Nov. 12, 1987, unless otherwise noted.



Sec. 223.130  Scope.

    (a) This subpart prescribes policies and procedures governing the 
debarment and suspension of purchasers of National Forest System timber. 
This subpart further prescribes policies and procedures governing those 
persons who violate the Forest Resources Conservation and Shortage 
Relief Act of 1990 (16 U.S.C. 620, et seq.).
    (b) It provides for the listing of debarred and suspended 
purchasers.
    (c) It sets forth the causes and procedures for debarment and 
suspension and for determining the scope, duration, and treatment to be 
accorded to purchasers listed as debarred or suspended.

[52 FR 43329, Nov. 12, 1987, as amended at 60 FR 46921, Sept. 8, 1995]



Sec. 223.131  Applicability.

    These regulations apply to purchasers of National Forest System 
timber as well as to those persons who violate the Forest Resources 
Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.). 
These regulations do not apply to Forest Service procurement contracts 
which are governed by regulations at 41 CFR 4-1.6.

[60 FR 46921, Sept. 8, 1995]



Sec. 223.132  Policy.

    (a) The Forest Service shall solicit and consider timber sale bids 
from and award contracts only to responsible business concerns and 
individuals. Debarment and suspension by the Forest Service are 
discretionary actions that,

[[Page 123]]

taken in accordance with these regulations, are appropriate means to 
effectuate this policy.
    (b) Debarment and suspension shall be imposed only for the causes 
and in accordance with the procedures set forth in this subpart. The 
serious nature of debarment and suspension requires that these actions 
be imposed only in the public interest, for the Government's protection, 
and not for the purpose of punishment.
    (c) Debarment and suspension actions taken under this subpart shall 
be based on the administrative record, including any submissions and 
argument made by the purchaser or named affiliate in accordance with 
this subpart, and shall be limited in scope and duration to that 
necessary to protect the Government's interest.



Sec. 223.133  Definitions.

    As used in this subpart, the following terms shall have the meanings 
set forth below:
    Adequate evidence means information sufficient to support the 
reasonable belief that a particular act or omission has occurred.
    Affiliates are business concerns or persons, whose relationship 
entails the following:
    (a) Either party directly or indirectly controls or has the power to 
control the other; or
    (b) A third party directly or indirectly controls or has the power 
to control both. In determining whether affiliation exists, the Forest 
Service shall consider all appropriate factors, including, but not 
limited to, common ownership, common management, common facilities, and 
contractual relationships. Further guidelines to be used in determining 
affiliation are found in the Small Business Administration regulation in 
13 CFR 121.401.
    Civil judgment means a judgment or finding of a civil offense by any 
court of competent jurisdiction.
    Control means the power to exercise, directly or indirectly, a 
controlling influence over the management, policies, or activities of an 
individual or business concern, whether through ownership of voting 
securities, through one or more intermediary individuals or business 
concerns, or otherwise.
    Conviction means a judgment or conviction of a criminal offense by 
any court of competent jurisdiction, whether entered upon a verdict or a 
plea, and includes a conviction entered upon a plea of nolo contendere.
    Debarment means action taken by a debarring official under 
Secs. 223.136 through 223.140 to exclude a purchaser from Forest Service 
timber sale contracts for a reasonable, specified period of time. A 
purchaser so excluded is ``debarred.'' Debarment pursuant to the Forest 
Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, 
et seq. means action taken by a debarring official under Secs. 223.136-
223.140 to exclude persons from entering into any contract for the 
purchase of unprocessed timber originating from Federal lands and from 
taking delivery of unprocessed Federal timber purchased by another party 
for the period of debarment.
    Debarring official means the Chief of the Forest Service or the 
Deputy Chief, National Forest System, or the Associate Deputy Chief, 
Resources Divisions, National Forest System.
    Federal lands means, for the purposes of the Forest Resources 
Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.), 
lands that are owned by the United States, but does not include any 
lands the title to which is:
    (a) Held in trust by the United States for the benefit of any Indian 
tribe or individual,
    (b) Held by any Indian tribe or individual subject to a restriction 
by the United States against alienation, or
    (c) Held by any Native Corporation as defined in section 3 of the 
Alaska Native Claims Settlement Act (43 U.S.C. 1602).
    Indictment means indictment for a criminal offense. An information 
or other filing by competent authority charging a criminal offense shall 
be given the same effect as an indictment.
    Legal proceedings means any civil judicial proceeding to which the 
Government is a party or any criminal proceeding. The term includes 
appeals from such proceedings.
    Notice means a written communication served in person or sent by 
certified mail, return receipt requested, or

[[Page 124]]

its equivalent, to the last known address of a party, its identified 
counsel, or agent for service of process. In the case of an 
organization, such notice may be sent to any partner, principal officer, 
director, owner or co-owner, or joint venturer.
    Person means any individual, partnership, corporation, association, 
or other legal entity, and includes any subsidiary, subcontractor, 
parent company, and business affiliates.
    Preponderance of the evidence means proof by information that, 
compared with that opposing it, leads to the conclusion that the fact at 
issue is more probably true than not.
    Purchaser means any person, who:
    (a) Submits bids for, is awarded, or reasonably may be expected to 
submit bids for or be awarded, a Forest Service timber sale contract;
    (b) Conducts business with the Forest Service as an agent or 
representative of another timber sale purchaser; or
    (c) For the purposes of the Forest Resources Conservation and 
Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.) (Act), any person 
who violates the Act or any regulation or contract issued under the Act, 
or any person who may reasonably be expected to enter into a contract to 
purchase or receive delivery of unprocessed Federal timber in violation 
of the Act or its implementing regulations.
    Suspending official means the Chief of the Forest Service or the 
Deputy Chief, National Forest System or the Associate Deputy Chief, 
Resources Divisions, National Forest System.
    Suspension means action taken by a suspending official under 
Secs. 223.141 through 223.145 to immediately exclude a purchaser from 
bidding on or purchasing National Forest System timber for a temporary 
period of time pending completion of an investigation and such legal or 
debarment proceedings as may ensue; a purchaser so excluded is 
suspended.

[52 FR 43329, Nov. 12, 1987, as amended at 60 FR 46921, Sept. 8, 1995]



Sec. 223.134  List of debarred and suspended purchasers.

    (a) The Deputy Chief, National Forest System, shall compile and 
maintain a current list of National Forest System timber purchasers and 
affiliates who are debarred, suspended, or proposed for debarment. This 
list shall be distributed to all Regional Foresters and Forest 
Supervisors, the General Services Administration, the General Accounting 
Office, the Bureau of Land Management and other Federal agencies 
requesting said list.
    (b) The Forest Service list shall contain the following information:
    (1) The purchaser's name and address, and the name and address of 
any affiliate of the purchaser included pursuant to Secs. 223.140(a) or 
Sec. 223.145.
    (2) The cause(s) for the action (see Secs. 223.137 and 223.142).
    (3) Any limitations to or deviations from the normal effect of 
debarment or suspension.
    (4) The effective date of the action and, in the case of debarment, 
the expiration date.
    (5) The name and telephone number of the point of contact in the 
Forest Service regarding the action.



Sec. 223.135  Effect of listing.

    (a) Except as otherwise provided in paragraph (b) of this section, 
purchasers debarred or suspended in accordance with this subpart shall 
be excluded from bidding on or award of Forest Service timber sale 
contracts. The Forest Service shall not knowingly solicit or consider 
bids from, award contracts to, approve a third party agreement with, or 
renew or otherwise extend, except pursuant to the terms of a contract 
term adjustment, an existing timber sale contract with these purchasers, 
unless the Chief of the Forest Service or authorized representative 
determines, in writing, that there is a compelling reason for such 
action.
    (b) In addition to the provisions of paragraph (a) of this section, 
persons debarred pursuant to Sec. 223.137(g) shall be prohibited from 
entering into any contract to purchase unprocessed timber from Federal 
lands and shall also be precluded from taking delivery of Federal timber 
purchased by another person for the period of debarment.

[60 FR 46921, Sept. 8, 1995]

[[Page 125]]



Sec. 223.136  Debarment.

    (a) General. In accordance with the procedures in Sec. 223.138, the 
debarring official may in the public interest, debar a purchaser for any 
of the causes listed in Sec. 223.137. However, the existence of a cause 
for debarment does not necessarily require that the purchaser be 
debarred. In making any debarment decision, the debarring official shall 
consider the seriousness of the purchaser's acts or omissions and any 
mitigating factors.
    (b) Effect of proposed debarment. (1) Upon issuance of a notice of 
proposed debarment by the debarring official and until the final 
debarment decision is rendered, the Forest Service shall not solicit or 
consider bids from, award contracts to, approve a third party agreement 
with, renew or otherwise extend, except pursuant to the terms of a 
contract term adjustment, any contract with that purchaser. The Chief of 
the Forest Service or authorized representative may waive this exclusion 
upon a written determination identifying compelling reasons to continue 
doing business with that purchaser pending completion of debarment 
proceedings.
    (2) In addition to paragraph (b)(1) of this section, issuance of a 
notice of proposed debarment under Sec. 223.137(g) shall preclude such 
person from entering into any contract to purchase unprocessed timber 
originating from Federal lands, and from taking delivery of unprocessed 
Federal timber from any other party who purchased such timber.

[52 FR 43329, Nov. 12, 1987, as amended at 60 FR 46921, Sept. 8, 1995]



Sec. 223.137  Causes for debarment.

    The debarring official may debar a purchaser for any of the 
following causes:
    (a) Conviction of or civil judgment for:
    (1) Theft, forgery, bribery, embezzlement, falsification or 
destruction of records, making false statements, or receiving stolen 
property;
    (2) Fraud, a criminal offense, or violation of Federal or State 
antitrust laws, any of which occurred in connection with obtaining, 
attempting to obtain, or performing a public contract or subcontract.
    (3) Any other offense indicating a lack of business integrity or 
honesty that seriously and directly affects the present responsibility 
of the purchaser.
    (b) A purchaser's debarment from the purchase of timber by another 
Federal agency which sells timber.
    (c) Cutting and/or removal of more than incidental volumes of timber 
not designated for the purchaser's cutting from a national forest.
    (d) Substantial violation of the terms of one or more Forest Service 
timber sale contracts so serious as to justify debarment, such as:
    (1) Willful failure to perform in accordance with contract; or
    (2) A history of failure to perform contract terms; or of 
unsatisfactory performance of contract terms.
    (e) Among actions the Forest Service regards as so serious as to 
justify debarment under paragraph (d) of this section are willful 
violation or repeated failure to perform National Forest System timber 
sale contract provisions relating to the following:
    (1) Fire suppression, fire prevention, and the disposal of slash;
    (2) Protection of soil, water, wildlife, range, cultural, and timber 
resources and protection of improvements when such failure causes 
significant environmental, resource, or improvements damage;
    (3) Removal of designated timber when such failure causes 
substantial product deterioration or conditions favorable to insect 
epidemics;
    (4) Observance of restrictions on exportation of timber;
    (5) Observance of restrictions on the disposal of timber from small 
business set-aside sales;
    (6) Providing access to the Forest Service upon its request to 
purchaser's books and accounts;
    (7) Payment of monies due under terms of a Forest Service timber 
sale contract, including payment of damages relating to failure to cut 
designated timber by the contract termination date;
    (8) Performance of contract by the contract termination date.

[[Page 126]]

    (f) Any other cause so serious or compelling that if affects the 
present responsibility of a purchaser of Government timber.
    (g) Violation of the Forest Resources Conservation and Shortage 
Relief Act of 1990 (16 U.S.C. 620, et seq.) (Act) or any regulation or 
contract issued under the Act.

[52 FR 43329, Nov. 12, 1987, as amended at 60 FR 46921, Sept. 8, 1995]



Sec. 223.138  Procedures for debarment.

    (a) Investigation and referral. Information which may be sufficient 
cause for debarment of a timber sale purchaser and affiliates shall be 
reported to the Forest Service Debarring Official. Generally, such 
information should be referred through the Forest Supervisor and the 
Regional Forester. The referral shall be accompanied by a complete 
statement of the facts supported by appropriate exhibits and a 
recommendation for action. Where the statement of facts indicates a 
possible criminal offense, except possible antitrust violations, the 
debarring official shall notify the Office of Inspector General, USDA. 
Where the statement of facts indicates a possible antitrust violation, 
the debarring official shall notify the Antitrust Division, Department 
of Justice.
    (b) Decisionmaking process--(1) Notice of proposal to debar. The 
debarring official shall initiate debarment by advising the purchaser 
and any specifically named affiliate, by certified mail, return receipt 
requested. The notice document shall include the following information:
    (i) That debarment is being considered.
    (ii) The reasons for the proposed debarment in terms sufficient to 
put the recipient on notice of the conduct or transaction(s) upon which 
it is based.
    (iii) The cause(s) relied upon under Sec. 223.137 for proposing 
debarment.
    (iv) The specific procedures governing debarment decisionmaking in 
Sec. 223.138 (b)(1) through (b)(8).
    (v) The effect of the issuance of the notice of proposed debarment 
pending a final debarment decision (see Sec. 223.136(b)).
    (vi) The potential effect of a debarment.
    (2) Submission in opposition. Within 30 calendar days after receipt 
of the notice of proposed debarment, the respondent my submit, in 
person, in writing, or through a representative, information and 
argument in opposition to and/or in mitigation of the proposed 
debarment, including any additional specific information that raises a 
genuine dispute over the material facts.
    (3) Informal hearing. Pursuant to paragraph (b)(2) of this section, 
a respondent may request an informal hearing with the debarring offical. 
The informal hearing shall be held within 20 calendar days from the date 
the request is received. The debarring official may postpone the date of 
the hearing if the respondent requests a postponement in writing. At the 
hearing, the respondent, appearing personally or through an attorney or 
other authorized representative, may informally present and explain 
evidence that causes for debarment do not exist, evidence of any 
mitigating factors, and arguments concerning the imposition, scope, 
duration or effects of proposed debarment or debarment. A transcript of 
the informal hearing shall not be required.
    (4) Additional proceedings as to disputed material facts. In actions 
not based upon a conviction or civil judgment, if the debarring official 
finds that and gives notice that the submission in opposition raises a 
genuine dispute over facts material to the proposed debarment, 
respondent(s) may request a fact-finding conference on those disputed 
material facts. Such a conference shall be held within 20 calendar days 
from the date the request is received unless mutually agreed otherwise. 
The fact-finding conference shall conform with the following 
requirements:
    (i) At least 10 days before the fact-finding conference, the 
debarring official shall send the respondent a copy of all documents in 
the administrative record as of the date of transmittal and not objected 
to by the Department of Justice.
    (ii) At the conference, the respondent shall have the opportunity to 
appear with counsel, submit documentary evidence, present witnesses, and 
confront any person the Forest Service presents.

[[Page 127]]

    (iii) A transcribed record of any additional proceedings shall be 
made available at cost to the respondent upon request, unless the 
respondent and the Forest Service, by mutual agreement, waive the 
requirement for a transcript.
    (5) Debarring official's decision--(i) No additional proceedings 
necessary. In actions based upon a conviction or civil judgement or in 
which there is no genuine dispute over material facts, the debarring 
official shall make a decision on the basis of all the information in 
the administrative record, including any submission made by the 
purchaser or any specifically named affiliate. The decision shall be 
made within 30 working days after receipt of any information and 
argument submitted, unless the debarring official extends this period 
for good cause.
    (ii) Additional proceedings necessary. (A) In actions in which 
additional proceedings are necessary to determine disputed material 
facts, the debarring official shall promptly prepare written findings of 
fact. The debarring official shall base the decision on the facts as 
found, together with any information and argument submitted by the 
purchaser or any specifically named affiliate and any other information 
in the administrative record.
    (B) The debarring official may refer matters involving disputed 
material facts to another official for findings of fact. The debarring 
official may reject any such findings, in whole or in part, only after 
specifically determining them to be arbitrary and capricious or clearly 
erroneous.
    (C) The debarring official's decision shall be made after the 
conclusion of the proceedings with respect to disputed facts.
    (6) Standard of evidence. In any action in which the proposed 
debarment is not based upon a conviction or civil judgment, the cause 
for debarment must be established by a preponderance of the evidence. In 
any action in which the proposed debarment is based upon a conviction or 
civil judgment, the standard shall be deemed to have been met.
    (7) Notice of debarring official's decision. (i) The purchaser and 
any affiliates involved shall be given prompt notice of the debarring 
official's decision by certified mail, return receipt requested. If the 
debarring official decides to impose debarment, the notice shall:
    (A) Refer to the notice of proposed debarment:
    (B) Specify the reasons for debarment;
    (C) State the period of debarment, including effective dates (see 
Sec. 223.139);
    (D) Specify any limitations on the terms of the debarment; and
    (E) State that any decision to debar is appealable to the 
Agriculture Board of Contract Appeals pursuant to paragraph (b)(8) of 
this section.
    (ii) The debarring official shall also promptly notify Regional 
Foresters and Forest Supervisors of the decision.
    (8) Review of debarring official's decision. The purchaser and any 
affiliates involved may appeal a Forest Service debarring official's 
decision to debar within 30 days from receipt of the decision. To 
appeal, a purchaser and any affiliates involved must furnish a written 
notice to the U.S. Department of Agriculture Board of Contract Appeals, 
Washington, DC 20250, and a copy of the appeal to the debarring official 
from whose decision the appeal is taken. The rules and procedures of the 
U.S. Department of Agriculture Board of Contract Appeals set forth in 7 
CFR part 24, govern debarment appeals.



Sec. 223.139  Period of debarment.

    (a) Debarment shall be for a period commensurate with the 
seriousness of the cause(s):
    (1) The debarring official shall consider any suspension period or 
period since issuance of the notice of proposed debarment in determining 
the debarment period.
    (2) Generally, a debarment for those causes listed at Sec. 223.137 
(a)-(f) of this subpart should not exceed three (3) years, except as 
otherwise provided by law.
    (3) A debarment for the causes listed at Sec. 223.137(g) shall not 
exceed five (5) years.
    (b) The debarring official may extend the debarment for those causes 
listed at Sec. 223.137 (a)-(f) of this subpart for an additional period 
if that official determines that an extension is necessary to

[[Page 128]]

protect the Government's interest. However:
    (1) A debarment may not be extended solely on the basis of the facts 
and circumstances upon which the initial debarment action was based;
    (2) If debarment for an additional period is necessary, the 
debarring official shall initiate and follow the procedures in 
Sec. 223.138 to extend the debarment.
    (c) The debarring official may consider terminating the debarment or 
reducing the period or extent of debarment, upon the purchaser's 
request, supported by documentation, for reasons such as:
    (1) Newly discovered material evidence;
    (2) Reversal of the conviction or judgment upon which the debarment 
was based;
    (3) Bona fide change in ownership or management;
    (4) Elimination of other causes for which the debarment was imposed; 
or
    (5) Other reasons the debarring official deems appropriate.
    (d) The debarring official shall make final disposition of a 
reconsideration request under paragraph (c) of this section in writing 
within 30 working days of receipt of the reconsideration request and 
supporting documentation, unless the debarring official extends this 
period for good cause. The notice of the decision shall set forth the 
reasons for granting or denying the request.

[52 FR 43329, Nov. 12, 1987, as amended at 60 FR 46921, Sept. 8, 1995]



Sec. 223.140  Scope of debarment.

    (a) Scope in general. (1) Debarment of a purchaser constitutes 
debarment of all divisions or other organizational elements of the 
purchaser, unless the debarment decision is limited by its terms to 
specific divisions, organizational elements, or classes of sales.
    (2) The debarring official may extend a debarment decision to 
include any affiliates of the purchaser, if they are--
    (i) Specifically named and
    (ii) Given written notice of the proposed debarment and provided an 
opportunity to respond (see Sec. 223.138(b)).
    (b) Imputing conduct. For purposes of determinig the scope of 
debarment, conduct may be imputed as follows:
    (1) The fraudulent, criminal, or other seriously improper conduct of 
any officer, director, shareholder, partner, employee, or other 
individual associated with a purchaser may be imputed to a purchaser 
when the conduct occurred in connection with the individual's 
performance of duties for or on behalf of the purchaser, or with the 
purchaser's knowledge, approval, or acquiescence. The purchaser's 
acceptance of the benefits derived from the conduct shall be evidence of 
such knowledge, approval, or acquiescence.
    (2) The fraudulent, criminal, or other seriously improper conduct of 
a purchaser may be imputed to any officer, director, shareholder, 
partner, employee, or other individual associated with the purchaser who 
participated in, knew of, or has reason to know of the purchaser's 
conduct.
    (3) The fraudulent, criminal, or other seriously improper conduct of 
one purchaser participating in a joint venture or similar arrangement 
may be imputed to other participating purchasers if the conduct occurred 
for or on behalf of the joint venture or similar arrangement or with the 
knowledge, approval, or acquiescence of those purchasers. Acceptance of 
the benefits derived from the conduct shall be evidence of such 
knowledge, approval or acquiescence.



Sec. 223.141  Suspension.

    (a) The suspending official may, in the public interest, suspend a 
purchaser on the basis of adequate evidence for any of the causes in 
Sec. 223.142, using the procedures in Sec. 223.143. However, the 
existence of a cause for suspension does not necessarily require that 
the purchaser be suspended. In making any suspension decision, the 
suspending official shall consider the seriousness of the purchaser's 
acts or omissions and any mitigating factors.
    (b) Suspension is a serious action to be imposed, pending the 
completion of investigation or legal proceedings, when it has been 
determined that immediate action is necessary to protect the 
Government's interest. In assessing the adequacy of the evidence, 
consideration shall be given to how much information is available, how 
credible it is given the circumstances, whether or

[[Page 129]]

not important allegations are corroborated and what inferences can 
reasonably be drawn as a result. This assessment shall include an 
examination of basic documents such as contracts, bids, awards, 
inspection reports, and correspondence, as appropriate.



Sec. 223.142  Causes for suspension.

    (a) The suspending official may suspend a purchaser suspected, upon 
adequate evidence, of the following:
    (1) Commission of:
    (i) Theft, forgery, bribery, embezzlement, falsification or 
destruction of records, making false statements, or receiving stolen 
property;
    (ii) Fraud, a criminal offense, or violation of Federal or State 
antitrust laws, any of which occurred in connection with obtaining, 
attempting to obtain; or performing a public contract or subcontract; or
    (iii) Any other offense indicating a lack of business integrity or 
business honesty that seriously and directly affects the present 
responsibility of a purchase of Government timber.
    (2) Indictment for any of the causes listed in paragraph (a) of this 
section constitutes adequate evidence for suspension.
    (3) A purchaser's suspension from the purchaser of timber by another 
Federal agency which sells timber.
    (b) The suspending official may, upon adequate evidence, also 
suspend a purchaser for any other cause so serious or compelling that it 
affects the present responsibility or a purchaser of Government timber.



Sec. 223.143  Procedures for suspension.

    (a) Investigation and referral. Information which may be sufficient 
cause for suspension under Sec. 223.142 shall be reported to the Forest 
Service Suspending Official. Generally, such information should be 
referred through the Forest Supervisor and the Regional Forester. The 
referral shall be accompanied by a complete statement of the facts 
supported by appropriate exhibits and a recommendation for action. Where 
the statement of facts indicates a possible criminal offense, except 
possible antitrust violations, the suspending official shall notify the 
Office of Inspector General, USDA. Where the statement of facts 
indicates a possible antitrust violation, the suspending official shall 
notify the Antitrust Division, Department of Justice.
    (b) Decisionmaking process--(1) Notice of suspension. When a 
purchaser and any specifically named affiliates are suspended, the 
suspending official shall so advise the purchaser and any specifically 
named affiliate immediately by certified mail, return receipt requested. 
Such notice shall specify:
    (i) That they have been suspended as of the date of the notice;
    (ii) That the suspension is based on an indictment or other adequate 
evidence that the purchaser has committed irregularities,
    (A) Of a serious nature in business dealings with the Government, or
    (B) Seriously reflecting on the propriety of further Government 
dealings with the recipient;
    (iii) Any such irregularities shall be described in terms sufficient 
to place the recipient on notice without disclosing the Government's 
evidence;
    (iv) That the suspension is for a temporary period of time pending 
the completion of an investigation and such legal proceedings as may 
ensue;
    (v) The cause(s) relied upon under Sec. 223.142 for imposing 
suspension;
    (vi) The effect of the suspension (see Sec. 223.135);
    (vii) The specific procedures governing suspension decisionmaking in 
Sec. 223.143 (b)(1) through (b)(6).
    (2) Submission in opposition. Within 30 calendar days after receipt 
of the notice of suspension, the purchaser or any specifically named 
affiliate may submit, in person, in writing, or through a 
representative, information and argument in opposition to the 
suspension, including any additional specific information that raises a 
genuine dispute over material facts.
    (3) Informal hearing. Pursuant to paragraph (b)(2) of this section, 
respondent may request an informal hearing with the suspending official. 
The informal hearing shall be held within 20 calendar days from the date 
the request is received. The suspending official may postpone the date 
of the hearing if the respondent requests a

[[Page 130]]

postponement in writing. At the hearing, the respondent, appearing 
personally or through an attorney or other authorized representative, 
may informally present and explain evidence that causes for suspension 
do not exist, evidence of any mitigating factors, and arguments 
concerning the imposition, scope, duration or effects of suspension. A 
transcript of the informal hearing shall not be required.
    (4) Additional proceedings as to disputed material facts. (i) If the 
suspending official finds that there exists a genuine dispute over facts 
material to the suspension, respondent(s) shall be afforded an 
opportunity to appear with counsel, submit documentary evidence, present 
witnesses, and confront any person the Forest Service presents, unless--
    (A) The action is based on an indictment; or
    (B) A determination is made, on the basis of Department of Justice 
advice, that the substantial interests of the Government in pending or 
contemplated legal proceedings based on the same facts as the suspension 
would be prejudiced.
    (ii) If appropriate, the respondent may request a fact-finding 
conference on disputed material facts. Such a conference shall be held 
within 20 calendar days from the date the request is received unless 
mutually agreed otherwise. The fact-finding conference shall conform 
with the following requirements:
    (A) At least 10 days before the fact-finding conference, the 
suspending official shall send the respondent a copy of all documents in 
the administrative record as of the date of transmittal and not objected 
to by the Department of Justice.
    (B) At the conference, the respondent shall have the opportunity to 
appear with counsel, submit documentary evidence, present witnesses, and 
confront any person the Forest Service presents.
    (iii) A transcribed record of any additional proceedings shall be 
prepared and made available at cost to the respondent upon request, 
unless the respondent and the Forest Service, by mutual agreement, waive 
the requirement for a transcript.
    (5) Suspending official's decision. The suspending official may 
modify or terminate the suspension or leave it in force for the same 
reasons as for terminating or reducing the period or extent of debarment 
(see Sec. 223.139(c)). The decision shall be made in accordance with the 
following provisions:
    (i) No additional proceedings necessary. In actions based on an 
indictment, in which the respondent's submission does not raise a 
genuine dispute over material facts; or in which additional proceedings 
to determine disputed material facts have been denied on the basis of 
Department of Justice advice, the suspending official's decision shall 
be based on all the information in the administrative record, including 
any submissions and argument made by the respondent. The decision shall 
be made within 30 working days after receipt of any information and 
argument submitted by the respondent, unless the suspending official 
extends this period for good cause.
    (ii) Additional proceedings necessary. (A) In actions in which 
additional proceedings are necessary as to disputed material facts, 
written findings of fact shall be promptly prepared. The suspending 
official shall base the decision on the facts as found, together with 
any information and argument submitted by the respondent and any other 
information in the administrative record.
    (B) The suspending official may refer matters involving disputed 
material facts to another official for findings of fact. The suspending 
official may reject any such findings, in whole or in part, only after 
specifically determining them to be arbitrary and capricious or clearly 
erroneous.
    (C) The suspending official's decision shall be made only after the 
conclusion of any proceedings with respect to disputed facts.
    (6) Notice of suspending official's decision. The purchaser and any 
affiliates involved shall be given prompt written notice of the 
suspending officer's decision to continue or not continue the suspension 
by certified mail, return receipt requested.

[[Page 131]]



Sec. 223.144  Period of suspension.

    (a) Suspension shall be for a temporary period pending the 
completion of investigation and any ensuing legal proceedings unless 
sooner terminated by the suspending official or as provided in paragraph 
(b) of this section.
    (b) If legal proceedings are not initiated within 12 months after 
the date of the suspension notice, the suspension shall be terminated 
unless an Assistant Attorney General requests its extension, in which 
case it may be extended for an additional 6 months. In no event may a 
suspension extend beyond 18 months, unless legal proceedings have been 
initiated within that period.
    (c) The suspending official shall notify the Department of Justice 
of the proposed termination of any suspension, at least 30 days before 
the 12-month period expires, to give the Department an opportunity to 
request an extension.



Sec. 223.145  Scope of suspension.

    The scope of suspension shall be the same as that for debarment (see 
Sec. 223.140), except that the procedures in Sec. 223.143 shall be used 
in imposing suspension.



         Subpart D--Timber Export and Substitution Restrictions



Sec. 223.159  Scope and applicability.

    The rules of this subpart apply to all timber sale contracts awarded 
before August 20, 1990, the date of enactment of the Forest Resources 
Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.). 
The rules at Sec. 223.162 shall remain in effect for all contracts 
awarded on or after August 20, 1990, until September 8, 1995. Contracts 
awarded on or after August 20, 1990 are subject to the rules of subpart 
F of this part, unless otherwise noted. Contracts awarded on or after 
September 8, 1995 are governed in full by subpart F.

[60 FR 46922, Sept. 8, 1995]



Sec. 223.160  Definitions.

    The following definitions apply to the provisions of this section:
    (a) Export means either direct or indirect export to a foreign 
country and occurs on the date that a person enters into a contract or 
other binding transaction for the export of unprocessed timber or, if 
that date cannot be established, when unprocessed timber is found in an 
export yard or pond, bundled or otherwise prepared for shipment, or 
aboard an ocean-going vessel. An export yard or pond is an area where 
sorting and/or bundling of logs for shipment outside the United States 
is accomplished. Unprocessed timber, whether from National Forest System 
or private lands, is exported directly when exported by the National 
Forest timber purchaser. Timber is exported indirectly when export 
occurs as a result of a sale to another person or as a consequence of 
any subsequent transaction.
    (b) Historic level means the average annual volume of unprocessed 
timber purchased or exported in calendar years 1971, 1972, and 1973.
    (c) Private lands mean lands held or owned by a private person. 
Nonprivate lands include, but are not limited to, lands held or owned by 
the United States, a State or political subdivision thereof, or any 
other public agency, or lands held in trust by the United States for 
Indians.
    (d) Substitution means the purchase of unprocessed timber from 
National Forest System lands to be used as replacement for unprocessed 
timber from private lands which is exported by the purchaser. 
Substitution occurs when (1) a person increases purchases of National 
Forest timber in any Calendar year more than 10 percent above their 
historic level and in the same calendar year exports unprocessed timber 
from private land in the tributary area; or (2) a person increases 
exports of unprocessed timber from private land in any tributary area 
more than 10 percent above their historic level in any calendar year 
while they have National Forest timber under contract.
    (e) Tributary area means the geographic area from which unprocessed 
timber is delivered to a specific processing facility or complex. A 
tributary area is expanded when timber outside an established tributary 
area is hauled to the processing facility or complex.
    (f) Unprocessed timber, except western red cedar in the contiguous 
48 States, means trees or portions of trees having

[[Page 132]]

a net scale content not less than 33\1/3\ percent of the gross volume, 
or the minimum piece specification set forth in the timber sale 
contract, in material meeting the peeler and sawmill log grade 
requirements published in the January 1, 1980--Official Log Scaling and 
Grading Rules used by Log Scaling and Grading Bureaus on the West Coast; 
cants to be subsequently remanufactured exceeding 8\3/4\ inches in 
thickness; cants of any thickness reassembled into logs; and split or 
round bolts, except for aspen, or other roundwood not processed to 
standards and specifications suitable for end-product use. Unprocessed 
timber shall not mean pulp (utility) grade logs and Douglas-fir special 
cull logs or timber processed into the following:
    (1) Lumber and construction timbers, regardless of size, sawn on 
four sides;
    (2) Chips, pulp, and pulp products;
    (3) Green veneer and plywood;
    (4) Poles, posts, or piling cut or treated for use as such;
    (5) Cants cut for remanufacture, 8\3/4\ inches in thickness or less;
    (6) Aspen bolts, not exceeding 4 feet in length.
    (g) Unprocessed western red cedar timber in the contiguous 48 States 
means trees or portions of trees of that species which have not been 
processed into--
    (1) Lumber of American Lumber Standards Grades of Number 3 dimension 
or better, or Pacific Lumber Inspection Bureau Export R-List Grades of 
Number 3 Common or better;
    (2) Chips, pulp, and pulp products;
    (3) Veneer and plywood;
    (4) Poles, posts, or piling cut or treated with preservatives for 
use as such and not intended to be further processed; or
    (5) Shakes and shingles; provided that lumber from private lands 
manufactured to the standards established in the lumber grading rules of 
the American Lumber Standards Association or the Pacific Lumber 
Inspection Bureau and manufactured lumber authorized to be exported 
under license by the Department of Commerce shall be considered 
processed.
    (h) Person means an individual, partnership, corporation, 
association, or other legal entity and includes any subsidiary, 
subcontractor, parent company, or other affiliate. Business entities are 
considered affiliates for the entire calendar year when one controls or 
has the power to control the other or when both are controlled directly 
or indirectly by a third person during any part of the calendar year.
    (i) Purchase occurs when a person is awarded a contract to cut 
National Forest timber or through the approval of a third party 
agreement by the Forest Service.
    (j) Purchaser means a person that has purchased a National Forest 
timber sale.

(Sec. 14, Pub. L. 95-588, 90 Stat. 2958, as amended (16 U.S.C. 472a); 
sec. 301, Pub. L. 96-126, 93 Stat. 979; sec. 1, 30 Stat. 35, as amended 
(16 U.S.C. 55.1); sec. 301, 90 Stat. 1063, Pub. L. 94-373; sec. 1, 30 
Stat. 35, as amended (16 U.S.C. 551))

[45 FR 80528, Dec. 5, 1980, as amended at 46 FR 2611, Jan. 12, 1981; 46 
FR 22581, Apr. 20, 1981; 47 FR 746, Jan. 7, 1982. Redesignated at 49 FR 
2761, Jan. 23, 1984]



Sec. 223.161  [Reserved]



Sec. 223.162  Limitations on timber harvested from all other states.

    Unprocessed timber from National Forest System lands west of the 
100th Meridian in the contiguous 48 States may not:
    (a) Be exported from the United States;
    (b) Be used in substitution for unprocessed timber from private 
lands which is exported by the purchaser; or
    (c) Be sold, traded, exchanged, or otherwise given to any person who 
does not agree to manufacture it to meet the processing requirements of 
this section and/or require such a processing agreement in any 
subsequent resale or other transaction. This limitation on export or 
substitution does not apply to species of timber previously found to be 
surplus to domestic needs or to any additional species, grades, or 
quantities of timber which may be

[[Page 133]]

found by the Secretary to be surplus to domestic needs.

(Sec. 14, Pub. L. 95-588, 90 Stat. 2958, as amended (16 U.S.C. 472a); 
sec. 301, Pub. L. 96-126, 93 Stat. 979; sec. 1, 30 Stat. 35, as amended 
(16 U.S.C. 55.1); sec. 301, 90 Stat. 1063, Pub. L. 94-373; sec. 1, 30 
Stat. 35, as amended (16 U.S.C. 551))

[45 FR 80528, Dec. 5, 1980, as amended at 46 FR 2611, Jan. 12, 1981; 47 
FR 746, Jan. 7, 1982. Redesignated at 49 FR 2761, Jan. 23, 1984]



Sec. 223.163  [Reserved]



Sec. 223.164  Penalty for falsification.

    For false certification of documents relating to export or 
substitution and/or other violations of export and substitution 
requirements by the purchaser of timber from National Forest System 
lands, the Forest Service may cancel the subject contract, debar the 
involved person or persons from bidding on National Forest timber, or 
initiate other action as may be provided by law or regulation.

(Sec. 14, Pub. L. 94-588, 90 Stat. 2958, as amended (16 U.S.C. 472a); 
Sec. 301, Pub. L. 96-126, 93 Stat. 979; Sec. 1, 30 Stat. 35, as amended 
(16 U.S.C. 55.1); Sec. 301, 90 Stat. 1063, Pub. L. 94-373; Sec. 1, 30 
Stat. 35, as amended (16 U.S.C. 551); (44 U.S.C. 3506))

[45 FR 80528, Dec. 5, 1980. Redesignated at 49 FR 2761, Jan. 23, 1984, 
and amended at 51 FR 40316, Nov. 6, 1986]

Subpart E  [Reserved]



Subpart F--The Forest Resources Conservation and Shortage Relief Act of 
                              1990 Program

    Source: 60 FR 46922, Sept. 8, 1995, unless otherwise noted.



Sec. 223.185  Scope and applicability.

    This subpart implements provisions of the Forest Resources 
Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.) 
that became effective upon enactment or as otherwise specified in the 
Act. As of September 8, 1995, this subpart applies to unprocessed timber 
originating from private lands west of the 100th meridian in the 
contiguous 48 States that requires domestic processing. Except as 
provided later in this paragraph, this subpart applies to all 
unprocessed timber originating from National Forest System lands west of 
the 100th meridian in the contiguous 48 States acquired from timber sale 
contracts awarded on or after August 20, 1990. The rules regarding 
substitution at Sec. 223.162 of subpart D apply to unprocessed timber 
acquired from timber sale contracts awarded between August 20, 1990, and 
September 8, 1995, as provided in Sec. 490(a)(2)(A) of the Act. The 
rules regarding reporting the acquisition and disposition of unprocessed 
Federal timber at Sec. 223.193 of this subpart apply to all transfers of 
unprocessed Federal timber originating from National Forest System lands 
west of the 100th meridian in the contiguous 48 States regardless of 
timber sale contract award date.



Sec. 223.186  Definitions.

    The following definitions apply to the provisions of this subpart:
    Acquire means to come into possession of, whether directly or 
indirectly, through a sale, trade, exchange, or other transaction. The 
term ``acquisition'' means the act of acquiring. The terms ``acquire'' 
and ``purchase'' are synonymous and are used interchangeably.
    Act means the Forest Resources Conservation and Shortage Relief Act 
of 1990 (Pub. L. No. 101-382, 104 Stat. 714-726; 16 U.S.C. 620-620j).
    Area of operations refers to the geographic area within which logs 
from any origin have neither been exported nor transported to an area 
where export occurs. The area of operations will be determined for 
individual Forest Service Administrative Units or groups of 
Administrative Units by the Regional Foresters of Regions 1, 2, 3, and 4 
on an as-needed basis, and used as part of the criteria for evaluating 
requests to waive the identifying and marking requirements for 
unprocessed Federal logs.
    Cants or Flitches are synonymous, and mean trees or portions of 
trees, sawn on one or more sides, intended for remanufacture into other 
products elsewhere.
    Civil penalties:
    Willful disregard means a person knew or showed reckless disregard 
for the matter of whether the person's conduct

[[Page 134]]

is prohibited by the Forest Resources Conservation and Shortage Relief 
Act of 1990, 16 U.S.C. 620, et seq. with regard to the prohibition 
against exporting unprocessed Federal timber (including causing 
unprocessed timber to be exported).
    Willfully means a person knew or showed reckless disregard for the 
matter of whether the person's conduct is prohibited by the Forest 
Resources Conservation and Shortage Relief Act of 1990, 16 U.S.C. et 
seq., or regulations issued under the Act, even though such violation 
may not have caused the export of unprocessed Federal timber in 
violation of the Act.
    Disregard means to ignore, overlook, or fail to observe any 
provision of the Act or a regulation issued under this Act, even though 
such violation may not have caused the export of unprocessed Federal 
timber in violation of the Act.
    Should have known means committing an act that a reasonable person 
in the timber industry would have known violates a provision of the Act 
or regulations issued under the Act, even though the violation may not 
have caused the export of unprocessed Federal timber in violation of the 
Act.
    Each violation refers to any violation under the Act or its 
implementing regulations with regard to a single act, which includes but 
is not limited to a single marking (or lack thereof) on a single log, 
the export of a single log, or a single entry on a document.
    Export means transporting, or causing to be transported, either 
directly or through another party, unprocessed timber to a foreign 
country. Export occurs:
    (1) On the date that a person enters into an agreement to sell, 
trade, exchange or otherwise convey such timber to a person for delivery 
to a foreign country;
    (2) When unprocessed timber is placed in an export facility in 
preparation (sorting, bundling, container loading etc.) for shipment 
outside the United States; or,
    (3) When unprocessed timber is placed on board an ocean-going 
vessel, rail car, or other conveyance destined for a foreign country.
    Federal lands means lands that are owned by the United States west 
of the 100th meridian in the contiguous 48 States, but do not include 
any land the title to which is;
    (1) Held in trust by the United States for the benefit of any Indian 
tribe or individual;
    (2) Held by any Indian tribe or individual subject to a restriction 
by the United States against alienation; or
    (3) Held by any Native Corporation as defined in section 3 of the 
Alaska Native Claims Settlement Act (43 U.S.C. 1602).
    Finished products means products from trees, portions of trees or 
other roundwood products processed to standards and specifications 
intended for end product use.
    Fiscal year means the Federal fiscal year beginning October 1, and 
ending the following September 30.
    Gross value means the total value a person received from the 
transfer of unprocessed Federal timber involved in a violation, before 
production, delivery, agent fees, overhead, or other costs are removed.
    Hammer brand refers to an identifying mark or brand composed of 
numbers, letters, characters, or a combination of numbers, letters, or 
characters permanently attached to a hammer, or other similar striking 
tool. The hammer brand must make a legible imprint of the brand in the 
end of a log when struck.
    Highway yellow paint refers to an oil base or equivalent yellow 
paint of lasting quality comparable to the yellow paint used to mark 
highways.
    Log refers to an unprocessed portion of a tree that is transported 
to a manufacturing facility or other location for processing, 
transferring to another person, or exporting. ``Logs'' is synonymous 
with ``timber''.
    Manufacturing facility means a permanently located processing plant 
used to convert unprocessed timber into products.
    Non-manufacturer means a person who does not own or operate a 
manufacturing facility.
    Person means any individual, partnership, corporation, association, 
or other legal entity and includes any

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subsidiary, subcontractor, parent company, and business affiliates. 
Persons are affiliates of each other when either directly or indirectly, 
one person controls or has the power to control the other or a third 
party or parties control or have the power to control both. In 
determining whether or not affiliation exists, consideration shall be 
given to all appropriate factors, including but not limited to common 
ownership, common management, common facilities, and contractual 
relationships.
    Private lands means lands, located west of the 100th meridian in the 
contiguous 48 States held or owned by a person. Such term does not 
include Federal lands or public lands, or any land the title to which 
is;
    (1) Held in trust by the United States for the benefit of any Indian 
tribe or individual;
    (2) Held by any Indian tribe or individual subject to a restriction 
by the United States against alienation; or
    (3) Held by any Native Corporation as defined in section 3 of the 
Alaska Native Claims Settlement Act (43 U.S.C. 1602).
    Processed means timber processed into products listed in 
Sec. 223.187 of these regulations.
    Purchase has the same meaning as acquire. The terms are used 
interchangeably.
    Same geographic and economic area means the land within the 
boundaries of an approved sourcing area.
    Sourcing area means the geographic area approved by the Secretary 
which includes a person's timber manufacturing facility and the private 
and Federal lands from which the person acquires or intends to acquire 
unprocessed timber to supply such manufacturing facility; a sourcing 
area must be geographically and economically separate from any area from 
which that person harvests for export any unprocessed timber originating 
from private lands.
    Substitution occurs when:
    (1) A person acquires, directly or indirectly, unprocessed timber 
from Federal lands west of the 100th meridian in the contiguous 48 
States and engages in exporting or selling for export, unprocessed 
timber originating from private lands within the same geographic and 
economic area; or
    (2) A person acquires, directly or indirectly, unprocessed timber 
from Federal lands west of the 100th meridian in the contiguous 48 
States and, during the preceding 24-month period, exported unprocessed 
timber originating from private lands; or
    (3) A person exports or sells for export, unprocessed timber 
originating from private lands within the same geographic and economic 
area in the same calendar year that the person has unprocessed timber 
originating from Federal lands in the person's possession or under 
contract; or
    (4) A person purchases, directly or indirectly, unprocessed timber 
originating from Federal lands if such person sells or otherwise 
transfers unprocessed timber that originates from private lands west of 
the 100th meridian in the contiguous 48 States and that requires 
domestic processing, to a third party if that third party or successive 
parties export that unprocessed private timber. A third party or 
successive parties who acquire such unprocessed timber that originates 
from private lands west of the 100th meridian in the contiguous 48 
States and that requires domestic processing may not export such timber.
    Transaction means an arrangement involving the transfer of 
unprocessed timber.
    Transaction statement is a signed copy of one of the transaction 
reporting forms in 36 CFR 223.193 and 223.194.
    Transfer means to pass title, sell, trade, exchange, or otherwise 
convey unprocessed timber to another person.
    Unprocessed timber means trees or portions of trees or other 
roundwood not processed to standards and specifications suitable for end 
product use and intended for remanufacture. Unprocessed timber does not 
include products intended for remanufacture that meet the criteria 
listed in Sec. 223.187(a) (2) or (3). For the purposes of reporting and 
identifying under Secs. 223.193, 223.194 and 223.195, unprocessed timber 
also means timber products listed in Sec. 223.187 of these regulations, 
and other timber products including house logs that are part of a 
structure kit, that

[[Page 136]]

are indistinguishable from other unprocessed timber.



Sec. 223.187  Determinations of unprocessed timber.

    (a) All species except western red cedar. Unprocessed timber, as 
defined in Sec. 223.186 of this Subpart, does not include timber 
processed into any one of the following:
    (1) Lumber or construction timbers, except western red cedar, 
meeting current American Lumber Standards Grades or Pacific Lumber 
Inspection Bureau Export R or N list grades, sawn on 4 sides, not 
intended for remanufacture. To determine whether such lumber or 
construction timbers meet this grade and intended use standard, the 
shipper of record must have in its possession for each shipment or 
order, and available for inspection upon the request of the Forest 
Service:
    (i) A legible copy of a lumber inspection certificate certified by a 
lumber inspection/grading organization generally recognized by the 
industry as setting a selling standard; and,
    (ii) A statement by the manufacturer certifying under the penalties 
provided in section 492 of the Act (16 U.S.C. 620d) and the False 
Statements Act (18 U.S.C. 1001) that the products in the shipment or 
order are intended to be used as shipped, are manufactured into 
products, or processed into pulp, and are not to be manufactured into 
other products. The certification statements shall be made in accordance 
with paragraph (b) of this section. The certification statements in 
paragraph (b) of this section are not required if the lumber or 
construction timbers described in paragraph (a)(1) of this section or 
the pulpwood bolts described in paragraph (a)(8) of this section 
otherwise may be exported without regard to an intent to remanufacture 
or process into pulp. For instance, because the timber originates from 
private land from which timber may be exported.
    (2) Lumber, construction timbers, or cants for remanufacture, except 
western red cedar, meeting current American Lumber Standards Grades or 
Pacific Lumber Inspection Bureau Export R or N list clear grades, sawn 
on 4 sides, not to exceed 12 inches (30.5 cm) thick. To determine 
whether such lumber, timbers, or cants meet this grading standard, the 
shipper of record must have in its possession for each shipment or order 
and available for inspection, upon the request of the Forest Service, a 
legible copy of a lumber inspection certificate certified by a lumber 
inspection/grading organization generally recognized by the industry as 
setting a selling standard.
    (3) Lumber, construction timbers, or cants for remanufacture, except 
western red cedar, that do not meet the grades referred to in paragraph 
(a)(2) of this section and are sawn on 4 sides, with wane less than \1/
4\ of any face, not exceeding 8\3/4\ inches (22.2 cm) thick.
    (4) Chips, pulp, or pulp products.
    (5) Veneer or plywood.
    (6) Poles, posts, or piling cut or treated with preservatives for 
use as such.
    (7) Shakes or shingles.
    (8) Aspen or other pulpwood bolts, not exceeding 100 inches in 
length, exported for processing into pulp. Shippers of record of such 
pulpwood bolts must have in their possession, and available for 
inspection upon request of the Forest Service, in accordance with 
paragraph (b) of this section, a manufacturer's certificate that such 
bolts are intended for processing into pulp.
    (9) Pulp logs or cull logs processed at domestic pulp mills, 
domestic chip plants, or other domestic operations for the purpose of 
conversion of logs into chips.
    (b) Export product certifications. (1) Manufacturers of lumber or 
construction timbers described in paragraph (a)(1) of this section and 
pulpwood bolts described in paragraph (a)(8) of this section, shall 
certify to the following statements:
    (2) Lumber or construction timbers; ``I certify that the products in 
the shipment identified by my shipping order number ________ dated 
________, are manufactured in accordance with the attached order from 
(buyer) of (address), numbered ________ and dated ________, are intended 
to be used as shipped and are not to be remanufactured into other 
products. I make this certification with full knowledge and 
understanding of the export and substitution restrictions of the Forest 
Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620 et 
seq.)

[[Page 137]]

(Act) and its implementing regulations. I fully understand that 
exporting unprocessed timber originating from Federal lands or 
unprocessed timber from private lands which is required to be processed 
domestically is a violation of this Act, its implementing regulations, 
and the False Statements Act (18 U.S.C. 1001), and may subject me to the 
penalties and remedies provided for such violations.''
    (3) Pulpwood bolts. ``I certify that the pulpwood bolts in the 
shipment identified by my shipping order number ________ dated ________, 
are manufactured in accordance with the attached order from (buyer) of 
(address), numbered ________ and dated ________, are intended to be 
processed into pulp and are not to be remanufactured into other 
products. I make this certification with full knowledge and 
understanding of the export and substitution restrictions of the Forest 
Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, 
et seq.) (Act) and its implementing regulations. I fully understand that 
exporting unprocessed timber originating from Federal lands or 
unprocessed timber from private lands which is required to be processed 
domestically is a violation of this Act, its implementing regulations, 
and the False Statements Act (18 U.S.C. 1001), and may subject me to the 
penalties and remedies provided for such violations.''
    (4) Signatory procedures. Certificates shall be on company 
letterhead, and signed by the person manufacturing the shipment. In the 
case of a corporation, the certificates must be signed by a person 
authorized, in writing, by the Chief Executive Officer pursuant to 36 
CFR 223.187(b)(4), to sign the certificates in 36 CFR 223.187(b) on 
behalf of the corporation.
    (5) Chief Executive Officer Authorization. The authorization by the 
Chief Executive Officer shall be on company letterhead, shall be 
notarized, and shall read as follows:

    ``I authorize ________ to sign the certificates in 36 CFR 223.187(b) 
on behalf of (name of corporation). I make this authorization with full 
knowledge and understanding of the export and substitution restrictions 
of the Forest Resources Conservation and Shortage Relief Act of 1990 (16 
U.S.C. 620 et seq.) (Act) and its implementing regulations. I fully 
understand that exporting unprocessed timber originating from Federal 
lands or unprocessed timber originating from private lands which is 
required to be processed domestically is a violation of this Act, its 
implementing regulations, and the False Statements Act (18 U.S.C. 1001), 
and may subject me to the penalties and remedies provided for such 
violation.''

    (6) Exporters of other timber products originating from Federal 
lands not specifically listed in Sec. 223.187 which may develop export 
markets in the future may also require similar certification statements. 
Such statements will be provided by the Forest Service.
    (c) Western red cedar. Unprocessed western red cedar timber does not 
include manufactured lumber authorized for export under license by the 
Department of Commerce, and lumber from private lands processed to 
standards established in the lumber grading rules of the American Lumber 
Standards Association or the Pacific Lumber Inspection Bureau, or timber 
processed into any of the following products:
    (1) Lumber of American Lumber Standards Grades of Number 3 dimension 
or better, or Pacific Lumber Inspection Bureau Export R-List Grades of 
Number 3 common or better, with a maximum cross section of 2,000 square 
centimeters (310 square inches) for any individual piece of processed 
western red cedar, regardless of grade. To determine whether such lumber 
meets these established standards, grades and size restrictions, the 
shipper of record must have in its possession for each shipment, and 
available for inspection upon the request of the Forest Service, a 
legible copy of a lumber inspection certificate certified by a lumber 
inspection/grading organization generally recognized by the industry as 
setting a selling standard. Export restrictions governing western red 
cedar timber harvested from Federal, State or other public lands are 
found in 7(i) of the Export Administration Act of 1979 as amended (50 
U.S.C. appendix 2406(i)), and implementing regulations at 15 CFR 777.7.
    (2) Chips, pulp, and pulp products;
    (3) Veneer and plywood;
    (4) Poles, posts, pilings cut or treated with preservatives for use 
as such and not intended to be further processed; and

[[Page 138]]

    (5) Shakes and shingles.
    (d) Finished Products. Shippers of record of products manufactured 
from unprocessed western red cedar originating from Federal lands, 
acquired by the manufacturer under the exemption from the prohibition 
against indirect substitution at Sec. 223.189(e)(1), must have in their 
possession for each shipment a certificate from the manufacturer that 
such products are finished products as defined in Sec. 223.186 of this 
subpart. The certification statement shall read as follows:
    (1) ``I certify that the products in the shipment identified by my 
shipping order number ______, dated ______, are manufactured in 
accordance with the attached order from ____ (buyer) ____ of ______ 
(address) ______, numbered ____ and dated ______, are intended for end 
product use. I understand that only western red cedar products that are 
finished products are exempt from the prohibition against indirect 
substitution in the Forest Resources Conservation and Shortage Relief 
Act of 1990 (16 U.S.C. 620b(b)(1)) and its implementing regulations. I 
make this certification with full knowledge and understanding of the 
export and substitution restrictions of the Forest Resources 
Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.) 
(Act) and its implementing regulations. I fully acknowledge and 
understand that to acquire western red cedar under the indirect 
substitution exemption in 16 U.S.C. 620b(b)(1) for purposes other than 
domestic processing into finished products will be a violation of this 
Act, its implementing regulations, and the False Statements Act (18 
U.S.C. 1001) and may subject me to the penalties and remedies provided 
for such violation.''
    (2) Signatory procedures. Certificates shall be on company 
letterhead, and signed by the person manufacturing the shipment. In the 
case of a corporation, the certificate must be signed by a person 
authorized, in writing, by the Chief Executive Officer, pursuant to 36 
CFR 223.187(d)(3), to sign the certificate in 36 CFR 223.187(d)(1) on 
behalf of the corporation.
    (3) Chief Executive Officer Authorization. The authorization by the 
Chief Executive Officer shall be on company letterhead, shall be 
notarized, and shall read as follows:

    ``I authorize ________ to sign the certificate in 36 CFR 
223.187(d)(1) on behalf of (name of corporation). I make this 
authorization with full knowledge and understanding of the export and 
substitution restrictions of the Forest Resources Conservation and 
Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.) (Act) and its 
implementing regulations. I fully understand that exporting unprocessed 
timber originating from Federal lands or unprocessed timber originating 
from private lands which is required to be processed domestically is a 
violation of this Act, its implementing regulations, and the False 
Statements Act (18 U.S.C. 1001), and may subject me to the penalties and 
remedies provided for such violation.''



Sec. 223.188  Prohibitions against exporting unprocessed Federal timber.

    No person who acquires unprocessed timber originating from Federal 
lands west of the 100th meridian in the contiguous 48 States may export 
such timber from the United States, or sell, trade, exchange, or 
otherwise convey such timber to any other person for the purpose of 
exporting such timber from the United States. This prohibition does not 
apply to specific quantities of grades and species of such unprocessed 
Federal timber that the Secretary of Agriculture determines to be 
surplus to domestic manufacturing needs.



Sec. 223.189  Prohibitions against substitution.

    (a) Direct substitution prohibition. Except as otherwise provided by 
this section:
    (1) No person may purchase directly from any department or agency of 
the United States unprocessed timber originating from Federal lands west 
of the 100th meridian in the contiguous 48 States if:
    (i) Such person acquires unprocessed timber originating from Federal 
lands west of the 100th meridian in the contiguous 48 States and engages 
in exporting or selling for export, unprocessed timber originating from 
private lands within the same geographic and economic area; or
    (ii) Such person has, during the preceding 24-month period, exported 
unprocessed timber originating from private lands.

[[Page 139]]

    (2) No person may export or sell for export, unprocessed timber 
originating from private lands within the same geographic and economic 
area in the same calendar year that the person has unprocessed timber 
originating from Federal lands in the person's possession or under 
contract.
    (3) No person may purchase unprocessed timber originating from 
Federal lands if such person sells or otherwise transfers unprocessed 
timber that originates from private lands west of the 100th meridian in 
the contiguous 48 States and that requires domestic processing, to a 
third party if that third party or successive parties export that 
unprocessed private timber. A third party or successive parties who 
acquire such unprocessed timber that originates from private lands west 
of the 100th meridian in the contiguous 48 States and that requires 
domestic processing may not export such timber.
    (4) The prohibitions in paragraphs (a) (1)-(3) of this section shall 
not apply to specific quantities of grades and species of unprocessed 
timber which the Secretary of Agriculture has determined to be surplus 
to domestic manufacturing needs.
    (b) Exemptions. (1) Pursuant to section 490(c) of the Act (16 U.S.C. 
620b), all persons who applied for a sourcing area by December 20, 1990, 
in accordance with Sec. 223.190 of this subpart, were exempt from the 
prohibitions against substitution, in accordance with Sec. 223.189(a)(1) 
of this subpart, until such time that the approving official approved or 
disapproved the application.
    (2) Pursuant to Section 490(a) of the Act (16 U.S.C. 620b), an 
exemption to the prohibition in Sec. 223.189(a)(1)(B) of this subpart is 
provided to:
    (i) A person with a historic export quota who submitted a 
certification in accordance with Sec. 223.189 (c) and (d) of this 
subpart; and
    (ii) A non-manufacturer who submitted a certification in accordance 
with Sec. 223.192 of this subpart.
    (3) Pursuant to Sec. 490(c) of the Act (16 U.S.C. 620b), the 
prohibitions against direct substitution in Sec. 223.189(a) (1) and (2) 
of this subpart do not apply to a person who acquires unprocessed timber 
originating from Federal lands within an approved sourcing area, does 
not export unprocessed timber originating from private lands within the 
approved sourcing area while the approval is in effect, and, if 
applicable, received a waiver of the prohibition against exporting 
unprocessed timber originating from private lands within the sourcing 
area during the preceding 24 months, in accordance with Sec. 223.189 (f) 
and (g) of this subpart.
    (c) Historic export quota exemption. The prohibition against the 
purchase of Federal timber for a person who has exported unprocessed 
timber originating from private lands, within the preceding 24-month 
period, shall not apply to a person with a historic export quota 
approved by the Secretary and who has been exporting unprocessed private 
timber in accordance with the log export and substitution regulations of 
the Secretary of Agriculture at 36 CFR part 223, subpart D, in effect 
before August 20, 1990, if:
    (1) That person certified in writing to the Regional Forester of the 
Region administering the historic export quota, on or before November 
20, 1990, that the person would cease exporting unprocessed timber 
originating from private lands on or before February 20, 1991, and
    (2) The exporting ceased in accordance with such certification.
    (d) Application for historic export quota exemption. To obtain an 
exemption from the prohibition against export within the preceding 24-
month period for purchasing Federal timber based on an approved historic 
export quota described in paragraph (c) of this section, a person must 
have applied in writing to the applicable Regional Forester on or before 
November 20, 1990. The certificate must have been notarized. The 
application was required to be on company letterhead and must have 
included:
    (1) An agreement to retain records of all transactions involving 
acquisition and disposition of unprocessed timber from both private and 
Federal lands within the area(s) involved in the certification, for a 
period of three (3) years beginning November 20, 1990, and to make such 
records available for inspection upon the request of the Regional 
Forester, or other official to

[[Page 140]]

whom such authority has been delegated.
    (2) A signed certification which reads as follows:

    ``I have purchased, under an historic export quota approved by the 
Secretary of Agriculture, unprocessed timber originating from Federal 
lands located west of the 100th meridian in the contiguous 48 States 
during the preceding 24 months in direct substitution for exported 
unprocessed timber originating from private lands. I desire to purchase 
directly from a Department or agency of the United States, unprocessed 
timber originating from Federal lands located in such area of the United 
States. I make this certification for the exemption from the prohibition 
against export within the preceding 24-month period for purchasing 
Federal timber required by the Forest Resources Conservation and 
Shortage Relief Act of 1990, (Pub. L. No. 101-382, August 20, 1990, 16 
U.S.C. 620, et seq.) (Act). I hereby certify that I will cease all 
exporting of such unprocessed private timber from lands west of the 
100th meridian in the 48 contiguous States of the United States by 
February 20, 1991. I make this certification with full knowledge and 
understanding of the requirements of this Act and do fully understand 
that failure to cease such exporting as certified will be a violation of 
this Act (16 U.S.C. 620d) and the False Statements Act (18 U.S.C. 1001), 
and may subject me to the penalties and remedies provided from such 
violation.''

    (3) The certification must have been signed by the person making 
such certification or, in the case of a corporation, by its Chief 
Executive Officer.
    (e) Indirect substitution prohibition. No person may purchase from 
any other person unprocessed timber originating from Federal lands west 
of the 100th meridian in the contiguous 48 States if such person would 
be prohibited by paragraph (a) of this section from purchasing such 
timber directly from a Department or agency of the United States, 
pursuant to Sec. 490(b) of the Forest Resources Conservation and 
Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.). The prohibition in 
this paragraph does not apply to the following:
    (1) To the acquisition of western red cedar, which is domestically 
processed into finished products.
    (2) To a person who acquires unprocessed timber originating from 
Federal lands within an approved sourcing area, does not export 
unprocessed timber originating from private lands within the approved 
sourcing area while the approval is in effect, and, if applicable, 
receives a waiver of the prohibition against exporting unprocessed 
timber originating from private lands within the sourcing area during 
the preceding 24 months in accordance with Sec. 223.189 (f) and (g) of 
this subpart.
    (3) To the limited amount of unprocessed National Forest System 
timber within Washington State that is exempt from the prohibition 
against indirect substitution, pursuant to Sec. 223.203.
    (f) Waiver within a sourcing area. The prohibitions in 
Sec. 223.189(a) (1) and (2) against direct and indirect acquisition of 
unprocessed timber originating from Federal lands do not apply if:
    (1) A person acquires such timber from within an approved sourcing 
area located west of the 100th meridian in the 48 contiguous States;
    (2) Has not exported unprocessed timber originating from private 
lands located within the approved sourcing area during the preceding 24 
months;
    (3) Does not export such private timber from within the approved 
sourcing area during the period the sourcing area is in effect; and
    (4) Does not export such private timber during any calendar year in 
the same geographic and economic area that unprocessed timber 
originating from Federal lands west of the 100th meridian in the 
contiguous 48 States is under contract or in possession, if the sourcing 
area is no longer in effect, pursuant to the definition of substitution 
in 36 CFR 223.186.
    (5) The appropriate Regional Forester could waive, in writing, the 
prohibition against export within the preceding 24-month period for any 
person who certified in writing, on or before November 20, 1990, that on 
or before February 20, 1991, that person would cease exporting 
unprocessed timber originating from private lands within the approved 
sourcing area for a period of not less than three (3) years. Signatories 
of this certificate who received an approved sourcing area, like all 
holders of sourcing areas, are subject to the prohibition against 
exporting unprocessed timber originating from private lands within the 
sourcing area boundaries, pursuant to this paragraph.
    (g) Application for waiver within a sourcing area. To obtain a 
waiver of the

[[Page 141]]

prohibition against export within the preceding 24-month period for 
purchasing Federal timber described in paragraph (f) of this section, a 
person must have submitted a request for waiver, in writing, to the 
Regional Forester of the region in which the manufacturing facility 
being sourced is located, which must have been received by the Regional 
Forester on or before November 20, 1990, and which must have been signed 
by the person making such request or, in the case of a corporation, by 
its Chief Executive Officer. The request for waiver must be notarized 
and, in the case of a corporation, with its corporate seal affixed. The 
request shall be on company letterhead with its corporate seal affixed 
and must include:
    (1) An agreement to retain records of all transactions involving 
acquisition and disposition of unprocessed timber from both private and 
Federal lands within the area(s) involved in the waiver request, for a 
period of three (3) years beginning November 20, 1990, and to make such 
records available for inspection upon the request of the Regional 
Forester, or other official to whom such authority has been delegated.
    (2) A signed certification statement which reads as follows:

    ``I have engaged in exporting of unprocessed timber originating from 
private land located within the sourcing area for which I am applying. I 
desire to purchase directly from a department or agency of the United 
States unprocessed timber originating from Federal lands located within 
the desired sourcing area. I hereby request waiver of the prohibition 
against export within the preceding 24-month period for purchasing 
Federal timber required by the forest Resources Conservation and 
Shortage Relief Act of 1990 (Pub. L. No. 101-382, August 20, 1990, 16 
U.S.C. 620, et seq.) (Act). I hereby certify that I will cease all 
exporting of such unprocessed private timber from within the desired 
sourcing area by February 20, 1991, and will not resume such exporting 
for a period of not less than three (3) years. I make this certification 
with full knowledge and understanding of the requirements of this Act 
and do fully understand that failure to cease such exporting as 
certified will be a violation of Section 492 of this Act (16 U.S.C. 
620d) and the False Statements Act (18 U.S.C. 1001), and may subject me 
to the penalties and remedies provided for such violation.''



Sec. 223.190  Sourcing area application procedures.

    (a) Subject to the restrictions described in Sec. 223.189 of this 
subpart and, except as provided in paragraph (b) of this section, a 
person who owns or operates a manufacturing facility and who exports 
unprocessed timber originating from private lands may apply for a 
sourcing area in accordance with the procedures of this section. 
However, an owner/operator of a manufacturing facility who exports 
unprocessed timber originating from Federal lands may not possess or 
acquire unprocessed timber originating from Federal lands unless the 
acquisition is within an approved sourcing area. A person who intends to 
acquire or become affiliated with a manufacturing facility that 
processes Federal timber and who is an exporter may apply for a sourcing 
area. Written proof of the intent to acquire or affiliate must be 
included in the sourcing area application, signed by the applicant and 
the person or, in the case of a corporation, the Chief Executive 
Officer, whose company the applicant intends to acquire or affiliate 
with. This certification must be on letterhead and must be notarized. A 
sourcing area application that the Secretary determines would be 
approved will be granted tentative approval pending final notification 
by the applicant of acquisition of or affiliation with the manufacturing 
facility. The tentative approval of the sourcing area will lapse unless 
the acquisition or affiliation occurs within 30 days of the tentative 
approval of the sourcing area. A sourcing area is not valid until final 
approval of the sourcing area. The direct substitution prohibition did 
not apply to a person who applied for a sourcing area on or before 
December 20, 1990. A request for modification of an existing sourcing 
area shall trigger a review pursuant to the procedures and restrictions 
in Sec. 223.191(e).
    (b) As provided in the Act, a person who has requested an exemption 
or waiver of the prohibition against export within the preceding 24-
month period, pursuant to Sec. 223.189 of this subpart, must have 
applied for the desired sourcing area on or before December 20, 1990.

[[Page 142]]

    (c) Applications. Sourcing area applications shall include:
    (1) A map of sufficient scale and detail to clearly show:
    (i) The applicant's desired sourcing area boundary. This boundary 
will include both the private and Federal lands from which the applicant 
intends to acquire unprocessed timber for sourcing its manufacturing 
facilities;
    (ii) The location of the timber manufacturing facilities owned or 
operated by the applicant within the proposed sourcing area where the 
person intends to process timber originating from Federal land;
    (iii) The location of private lands within and outside the desired 
sourcing area where the person has, within the 24 months immediately 
preceding the date of the application, acquired unprocessed timber 
originating from private land which was exported, sold, traded, 
exchanged, or otherwise conveyed to another person for the purpose of 
exporting such timber;
    (2) A list of other persons with timber manufacturing facilities 
located within the same general vicinity as the applicant's facilities;
    (3) Any other information the applicant may believe is appropriate 
to support approval of the requested sourcing area; and
    (4) A statement signed by the person certifying under the penalties 
provided in Section 492 of this Act (16 U.S.C. 620d) and the False 
Statements Act (18 U.S.C. 1001) that the information provided in support 
of the application is true, complete, and accurate to the best of the 
applicant's knowledge. The statement shall read as follows:

    ``I certify under penalties of 16 U.S.C. 620d and 18 U.S.C. 1001, 
that the information provided in support of this application, is true, 
complete, and accurate to the best of my knowledge concerning my timber 
purchasing and export patterns. I certify that the information provided 
concerning my timber purchasing and export patterns fully and accurately 
reflects, to the best of my knowledge, the boundaries of the sourcing 
area for which I am applying. I make this certification with full 
knowledge and understanding of the export and substitution restrictions 
of the Forest Resources Conservation and Shortage Relief Act of 1990 (16 
U.S.C. 620, et seq.) (Act) and its implementing regulations. I certify 
that I have not exported unprocessed timber originating from private 
lands within the boundaries of the sourcing area that is the subject of 
this application in the previous 24 months. I fully understand that, if 
this application is approved, exporting unprocessed private timber 
originating from within the approved sourcing area will be a violation 
of this Act (16 U.S.C. 620, et seq.) its implementing regulations, and 
the False Statements Act (18 U.S.C. 1001), and may subject me to the 
penalties and remedies provided for such violation.''

    (d) Confidential information. Applications are not considered 
confidential. However, if a person does submit confidential information 
as part of an application, the information should be marked 
confidential. Information so marked will be afforded the rights and 
protection provided under the Freedom of Information Act.
    (e) Where to submit the application. A sourcing area applicant shall 
send the application to the Office of Administrative Law Judges and 
shall, simultaneously, send a copy of the sourcing area application to 
the Forest Service Regional Forester of the region in which the 
manufacturing facility being sourced is located. Where the sourcing area 
application will cover purchases from more than one agency, application 
is to be made to the agency from which the applicant expects to purchase 
the preponderance of its Federal timber. The sourcing area applicant 
must also send a complete copy of the application to each agency 
concerned. The lead agency shall make the decision in consultation with, 
and upon co-signature of, the other agencies concerned.
    (f) Signatory procedures. Sourcing area applications must be signed 
by the person making the request, or in the case of a corporation, by 
its Chief Executive Officer, and must be notarized. The application 
shall be on company letterhead.
    (g) The sourcing area application and review process will be 
conducted pursuant to the Rules of Practice Governing the Adjudication 
of Sourcing Area Applications and Formal Review of Sourcing Areas 
Pursuant to the Forest Resources Conservation and Shortage Relief Act of 
1990 (16 U.S.C. 620, et seq.), found at 7 CFR part 1, subpart M.
    (h) A final decision on a sourcing area application or a formal 
sourcing area review will be issued within four

[[Page 143]]

(4) months of the receipt of the application or initiation of the 
review.
    (i) The following criteria must be met for sourcing area approval:
    (1) The Administrative Law Judge, or, on appeal, the Judicial 
Officer must find that the proposed sourcing area is geographically and 
economically separate from any area that the applicant harvests or 
expects to harvest for export any unprocessed timber originating from 
private lands. In making such a finding, the Administrative Law Judge, 
or, on appeal, the Judicial Officer shall consider the timber purchasing 
patterns of the applicant on private and Federal lands equally with 
those of other persons in the same local vicinity and the relative 
similarity of such purchasing patterns.
    (2) The ``same local vicinity'' will normally be manufacturing 
facilities located within 30 miles of the community where the 
applicant's manufacturing facility is located, but may include more 
distant communities if manufacturing facilities in those communities 
depend on the same source of timber and have similar purchasing 
patterns.
    (3) The relative similarity of purchasing patterns of other mills 
shall be determined by considering the location and similarity of 
unprocessed timber being acquired by those facilities.
    (4) Lines defining the geographic area shall be based on major 
natural and cultural features, including, but not limited to, prominent 
ridge systems, main roads or highways, rivers, political subdivisions, 
and not characterized by random lines.
    (j) Comments. Persons may submit comments on sourcing area 
applications pursuant to the Rules of Practice Governing the 
Adjudication of Sourcing Area Applications and Formal Review of Sourcing 
Areas Pursuant to the Forest Resources Conservation and Shortage Relief 
Act of 1990 (16 U.S.C. 620, et seq.), found at 7 CFR part 1, subpart M. 
Persons submitting a comment must certify at the end of the comment, but 
before the signature, to the following: ``I certify that the information 
provided by me is true and accurate, to the best of my knowledge, and I 
understand that failure to provide true and accurate information could 
be violation of the False Statements Act (18 U.S.C. 1001).''
    (k) Transporting or causing to be transported unprocessed private 
timber from outside of a sourcing area into a sourcing area by the 
holder of the sourcing area is prohibited as a violation of the sourcing 
area boundary. Such violation will cause a review of the sourcing area, 
and could subject the sourcing area holder to the penalties and remedies 
for violations of the Forest Resources Conservation and Shortage Relief 
Act of 1990, 16 U.S.C. 620, et seq., and its implementing regulations.
    (l) A person with an approved sourcing area may relinquish the 
sourcing area at any time provided the person certifies to the 
following:

    ``I am relinquishing the approved sourcing area, described in the 
Secretary's determination in FSAA ________ on ________, 19____. I 
understand that I may not export unprocessed timber originating from 
private lands west of the 100th meridian in the contiguous 48 States 
during the fiscal year in which I have unprocessed timber originating 
from Federal lands west of the 100th meridian in the contiguous 48 
States in my possession or under contract, pursuant to the prohibition 
against substitution in the Forest Resources Conservation and Shortage 
Relief Act of 1990 (16 U.S.C. 620, et seq.) (``Act'') and its 
implementing regulations. I also understand that I may not purchase 
unprocessed timber originating from Federal lands west of the 100th 
meridian in the contiguous 48 States within 24 months of having exported 
unprocessed timber originating from private lands west of the 100th 
meridian in the contiguous 48 States, pursuant to the prohibitions 
against substitution in the Act and its implementing regulations. I make 
this certification with full knowledge and understanding of the Act and 
its implementing regulations and do fully understand that exporting 
unprocessed timber originating from private lands west of the 100th 
meridian in the contiguous 48 States during a fiscal year in which I 
have unprocessed timber originating from Federal lands west of the 100th 
meridian in the contiguous 48 States in possession or under contract, or 
purchasing unprocessed timber originating from Federal lands west of the 
100th meridian in the contiguous 48 States within 24 months of having 
exported unprocessed timber originating from private lands west of the 
100th meridian in the contiguous 48 States is a violation of the 
substitution provisions of the Act and the False Statements Act (18 
U.S.C. 1001), and may subject me to the penalties and remedies provided 
for such violation.''


[[Page 144]]


    The certificate must be signed by the person making such 
certification or, in the case of a corporation, by its Chief Executive 
Officer; must be on company letterhead; and must be notarized.
    (m) A sourcing area is in effect until it is relinquished by the 
sourcing area holder, or is disapproved upon review of the sourcing 
area.



Sec. 223.191  Sourcing area disapproval and review procedures.

    (a) Notwithstanding any other provision of law, an applicant whose 
sourcing area application was submitted by December 20, 1990, and was 
disapproved could either phase out of purchasing Federal timber or phase 
out of exporting unprocessed timber originating from private lands 
within the sourcing area that would have been approved, as follows:
    (1) Phase-out of Federal timber purchasing. The applicant could 
purchase, in the 9-month period after receiving the application 
disapproval, unprocessed timber originating from Federal lands in the 
disapproved sourcing area, in an amount not to exceed 75 percent of the 
annual average of such person's purchases of unprocessed Federal timber 
in such area during the 5 full fiscal years immediately prior to the 
date of submission of the application. In the 6-month period immediately 
following the 9-month period, such person could purchase not more than 
25 percent of such annual average, after which time the prohibitions 
against direct substitution, set forth in Sec. 223.189 of this subpart, 
shall apply; or
    (2) Phase-out of private timber exporting. The applicant could 
continue to purchase unprocessed timber originating from Federal lands 
within the disapproved sourcing area without being subject to the phase-
out of Federal timber purchasing procedures described in paragraph (a) 
of this section, if the following requirements were met:
    (i) The applicant certified to the Regional Forester or the 
approving official to whom such authority has been delegated, within 90 
days after receiving the disapproval decision, as follows:
    (A) An applicant that has exported unprocessed timber originating 
from private lands from the geographic area that would have been 
approved provided a signed certification that reads as follows:

    ``I have engaged in the exporting of unprocessed private timber 
originating from private lands located within the geographic area the 
approving official would have approved as a sourcing area for my 
manufacturing facility. I desire to continue purchasing unprocessed 
Federal timber from within such area. I hereby certify that I will cease 
all exporting of unprocessed timber from private lands located within 
the area that would have been approved by [the applicant shall insert 
date 15 months from date of receipt of the disapproval decision]. I 
agree to retain records of all transactions involving acquisition and 
disposition of unprocessed timber from both private and Federal lands 
within the area involved in the certification, for a period of three (3) 
years beginning on the date of receipt of the disapproval notification, 
and to make such records available for inspection upon the request of 
the Regional Forester, or other official to whom such authority has been 
delegated. I make this certification with full knowledge and 
understanding of the requirements of the Forest Resources Conservation 
and Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.) (Act) and do 
fully understand that failure to cease such exporting as certified will 
be a violation of the Act and may subject me to the penalties and 
remedies for such violation. Further, I fully understand that such 
violation may subject me to the penalty of perjury pursuant to the False 
Statements Act (18 U.S.C. 1001). I certify that the information in this 
certificate is true, complete, and accurate to the best of my knowledge 
and belief.'';


or,

    (B) An applicant who has not exported unprocessed timber originating 
from private lands from the geographic area that the Secretary would 
have approved provided a signed certification that reads as follows:

    ``I have not exported timber originating from private lands within 
both the sourcing area that the Secretary would have approved and the 
disapproved sourcing area in the past 24 months, pursuant to the Forest 
Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, 
et seq.), and I am accepting the area that the Secretary would have 
approved as my sourcing area. I certify that the information in this 
certificate is true, complete, and accurate to the best of my knowledge 
and belief.''


[[Page 145]]


    (ii) Each certification statement set forth in paragraph (a)(2)(i) 
of this section must have been signed by the person making such 
certification or, in the case of a corporation, by its Chief Executive 
Officer; must have been on company letterhead; must have been notarized; 
and must have had a corporate seal attached.
    (iii) The person signing such certification set forth in paragraph 
(a)(2)(i)(A) of this section must have provided to the Regional Forester 
the annual volume of timber exported by that person during the five (5) 
full fiscal years immediately preceding submission of the application, 
originating from private lands in the geographic area for which the 
application would have been approved.
    (iv) When the applicant submitted the certificate, the area the 
Secretary would have approved, as shown on the sourcing area map 
provided by the Secretary, became an approved sourcing area. If the 
certificate was not submitted, the sourcing area that would have been 
approved did not become an approved sourcing area.
    (3) The phase-out of Federal timber purchasing and the phase-out of 
private timber exporting procedures provided by paragraphs (a)(1) and 
(a)(2) of this section do not apply to persons submitting sourcing area 
applications after December 20, 1990, or to persons requesting review of 
disapproved sourcing areas.
    (b) Limits on purchases and exports. (1) During the 15-month period 
following disapproval of a sourcing area, a person who elects to phase-
out of private timber exporting as described in paragraph (a)(2) of this 
section, may not:
    (i) Purchase more than 125 percent of the person's annual average 
purchases of unprocessed timber originating from Federal lands within 
the person's disapproved sourcing area during the five (5) full fiscal 
years immediately prior to submission of the application; and,
    (ii) Export unprocessed timber originating from private lands in the 
geographic area determined by the approving official for which the 
application would have been approved, in amounts that exceed 125 percent 
of the annual average of that person's exports of unprocessed timber 
from such private land during the five (5) full years immediately prior 
to submission of the application.
    (2) At the conclusion of the 15-month export phase-out period, the 
prohibition against exporting private timber originating from within the 
area shall be in full force and effect as long as the sourcing area 
remains approved, pursuant to this subpart F of this part 223.
    (c) Presentation of map to applicant whose sourcing area is 
disapproved. The area determined by the deciding official that would 
have been approved shall be drawn on a map and presented to the 
applicant by the deciding official with the notice of disapproval of the 
application.
    (d) Effect of prior certification to cease exporting. An applicant's 
previous certification to cease exporting beginning February 20, 1991, 
for a period of three (3) years from within the disapproved sourcing 
area pursuant to paragraphs (f) and (g) in Sec. 223.189 of this subpart 
shall remain in full force and effect for persons with approved and 
disapproved sourcing areas.
    (e) Review process and frequency. (1) Approved sourcing areas shall 
be reviewed not less often than every five (5) years. A tentative date 
for a review shall be included in the Administrative Law Judge's, or, on 
appeal, the Judicial Officer's determination or stated in writing by the 
Regional Forester following the determination. At least 60 days prior to 
the tentative review date, the Regional Forester or other such reviewing 
official shall notify the person holding the sourcing area of the 
pending review, publish notice of such review in newspapers of general 
circulation within the sourcing area, and invite comments, to be 
received no later than 30 days from the date of the notice, from all 
interested persons, including the person holding the sourcing area. For 
10 working days following the comment period, any person submitting a 
written comment and the person with the sourcing area may review the 
comments. If there is disagreement among the persons who submitted 
written comments regarding the proper sourcing area, the reviewing 
official

[[Page 146]]

shall convene an informal meeting convenient to the persons that all 
interested persons may attend. If an agreement cannot be reached among 
the persons, formal administrative adjudication shall occur. The 
Administrative Law Judge, or, on appeal, the Judicial Officer shall, on 
the record and after opportunity for a hearing, approve or disapprove 
the sourcing area being reviewed, pursuant to the Rules of Practice 
Governing the Adjudication of Sourcing Area Applications and Formal 
Review of Sourcing Areas Pursuant to the Forest Resources Conservation 
and Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.), found at 7 CFR 
part 1, subpart M.
    (2) Disapproved sourcing areas shall be reviewed using the process 
described in paragraph (e)(1) of this section upon resubmission of an 
application, provided the applicant has accepted the area the Secretary 
would have approved as a sourcing area pursuant to paragraph (a)(2) of 
this section.
    (3) The Department reserves the right to schedule a review, at the 
request of the Forest Service or the person holding the sourcing area, 
at any time prior to the scheduled tentative review date, with 60 days 
notice.
    (4) Sourcing areas being reviewed shall continue in full force and 
effect pending the final review determination.
    (f) Reporting and record keeping procedures. The reporting and 
record keeping procedures in this section constitute information 
collection requirements as defined in 5 CFR part 1320. These 
requirements have been approved by the Office of Management and Budget 
and assigned clearance number 0596-0115.



Sec. 223.192  Procedures for a non-manufacturer.

    (a) Persons who do not own or operate a manufacturing facility (non-
manufacturer) are not eligible to apply for or be granted a sourcing 
area.
    (b) The prohibition against the purchase of Federal timber for a 
person who has exported unprocessed timber originating from private 
lands within the preceding 24-month period shall not apply, if the 
person certified in writing to the Regional Forester of the region(s) in 
which the person purchases National Forest System timber by November 20, 
1990, that the person would cease exporting unprocessed timber 
originating from private lands by February 20, 1991, for a period of 
three (3) years, and the exporting did cease in accordance with such 
certification.
    (c) To obtain an exemption from the prohibition against export 
within the preceding 24-month period for purchasing Federal timber 
described in Sec. 223.189 (a) and (b) of this subpart, a person must 
have applied in writing to the applicable Regional Forester on or before 
November 20, 1990. The application was required to be on company 
letterhead and, in the case of a corporation, with its corporate seal 
affixed, and must have included:
    (1) An agreement to retain records of all transactions involving 
acquisition and disposition of unprocessed timber from both private and 
Federal lands within the area(s) involved in the certification, for a 
period of three (3) years beginning November 20, 1990, and to make such 
records available for inspection upon the request of the Regional 
Forester, or other official to whom such authority has been delegated.
    (2) A signed certification which reads as follows:

    ``I have engaged in the exporting of unprocessed timber originating 
from private lands located west of the 100th meridian in the contiguous 
48 States during the preceding 24 months. I desire to purchase directly 
from a department or agency of the United States, unprocessed timber 
originating from Federal lands located in such area of the United 
States. I make this certification for the exemption from the prohibition 
against export within the preceding 24-month period for purchasing 
Federal timber required by the Forest Resources Conservation and 
Shortage Relief Act of 1990 (Pub. L. No. 101-382, August 20, 1990, 16 
U.S.C. 620, et seq.) (Act). I hereby certify that I will cease all 
exporting of such unprocessed private timber from west of the 100th 
meridian in the contiguous 48 States of the United States by February 
20, 1991. I make this certification with full knowledge and 
understanding of the requirements of this Act and do fully understand 
that failure to cease such exporting as certified will be a violation of 
this Act (16 U.S.C. 620d) and the False Statements Act (18 U.S.C. 1001), 
and may subject me to the penalties and remedies provided for such 
violation.''


[[Page 147]]


    (3) The certification must have been signed by the person making 
such certification or, in the case of a corporation, by its Chief 
Executive Officer. The certificate must have been notarized.



Sec. 223.193  Procedures for reporting acquisition and disposition of unprocessed Federal timber.

    (a) Annual report. Each person who directly or indirectly acquires 
or possesses unprocessed timber originating from National Forest System 
lands located west of the 100th meridian in the 48 contiguous States 
shall submit an annual report on a form provided by the Forest Service 
on the acquisition and disposition of such timber. Such report shall be 
on a calendar year basis and shall be sent to the Regional Forester, or 
other official to whom such authority is delegated, who administers the 
National Forest System lands from which the majority of timber 
originated, not later than March 1 of each year, beginning March 1, 
1997. The form shall include:
    (1) A summary for the calendar year listing, by company, from whom 
the timber was acquired; the date of acquisition; the origin of National 
Forest System timber acquired; the sale name; the contract number(s); 
brand registration number(s) of brands registered by a state or agency 
or a pictorial representation of sale brand(s) if brands not registered 
by a state or agency; to whom the timber was sold, transferred or 
otherwise conveyed to another person; and the date of disposal;
    (2) An accounting by origin, in net board feet Scribner or cubic 
feet, of the volume of National Forest System timber acquired, the 
volume domestically processed by the purchaser or affiliates, and the 
volume sold or transferred for domestic processing;
    (3) The volume by species of National Forest System surplus species 
timber acquired and exported or sold for export;
    (4) The volume (MBF Net Scribner or cubic) of the unprocessed timber 
originating from private lands west of the 100th meridian in the 
contiguous 48 States that was exported, and
    (5) A certificate stating that:
    (i) The certifier has read and understands the form;
    (ii) The certifier is eligible to acquire unprocessed timber 
originating from Federal lands in accordance with the Act;
    (iii) The information supplied is a true, accurate, current, and 
complete statement of the receipt and disposition of unprocessed timber 
originating from National Forest System lands to the best of the 
certifier's knowledge;
    (iv) The certifier agrees to retain a copy of the form and records 
of all transactions involving unprocessed Federal timber and to make 
such records available for inspection upon request of an authorized 
official of the United States for three (3) years from the date of 
disposal by manufacture or transfer; and
    (v) The certifier acknowledges that failure to report completely and 
accurately the receipt and disposition of timber will subject the 
certifier to the penalties and remedies in the Act and the penalties in 
the False Statements Act (18 U.S.C. 1001).
    (6) The information provided is presumed to be not confidential, 
unless specifically marked confidential, in which case confidentiality 
will be evaluated under applicable laws.
    (b) Transfer of unprocessed National Forest System timber. Each 
person who transfers to another person unprocessed timber originating 
from National Forest System lands shall undertake the following:
    (1) Before completing such transfer, provide to such other person a 
written notice of origin, species, estimated volume or actual volume if 
the transfer is based on log scale volume, from whom acquired, sale 
name, contract number, and log brand of unprocessed National Forest 
System timber being transferred on a form provided by the Forest 
Service;
    (2) Before completing such transfer, certify that the information 
supplied is a true, accurate, current, and complete statement to the 
best of his or her knowledge. As part of the certification, the 
certifier shall:
    (i) Agree to send a signed copy of the form required in paragraph 
(b)(1) of this section within 10 calendar days of such transfer, which 
shall include all

[[Page 148]]

notices, acknowledgments, and agreements, required by this section, to 
the appropriate Regional Forester who administers the National Forest 
System lands from which this timber originates, or other official to 
whom such authority is delegated, and to retain a copy for the 
certifier's records;
    (ii) Acknowledge that the transfer of unprocessed Federal timber to 
a person for export or to a person who may not purchase timber directly 
from the Federal government is a violation of the Act;
    (iii) Agree to obtain full completed notice of origin form from the 
transferee;
    (iv) Agree to retain records of all transactions involving 
unprocessed Federal timber for a period of three (3) years from the date 
of transfer and to make all records involving log transactions available 
to an appropriate Federal official upon request. Records include all 
forms and certificates required by these regulations;
    (v) Acknowledge that failure to report completely and accurately the 
receipt and disposition and/or transfer of unprocessed National Forest 
System timber will subject the certifier to the penalties and remedies 
in the Act (16 U.S.C. 620, et seq.) and the penalties in the False 
Statements Act (18 U.S.C. 1001); and
    (vi) Certify that he or she has read and understands the form.
    (3) Before completing such transfer, obtain from the person 
acquiring such timber on the same form provided by the Forest Service.
    (i) An agreement to retain for a period of three (3) years from date 
of transfer the records of all sales, exchanges, or other disposition of 
such timber, and make such records available for inspection upon the 
request of an authorized official of the United States;
    (ii) An agreement to allow Federal officials access to log storage 
and processing facilities for the purpose of monitoring compliance with 
the Act and implementing regulations;
    (iii) An agreement to maintain and/or replace all brands and paint 
identifying the Federal origin of each piece of unprocessed Federal 
timber as described in Sec. 223.195;
    (iv) An agreement to submit, by March 1, the annual report required 
in Sec. 223.193(a);
    (v) An agreement to submit a completed notice of origin form for the 
Federal timber received and to receive an agreement to comply with the 
Act and regulations in such form if the person transfers any or all of 
the timber listed in the document;
    (vi) An acknowledgment of the prohibition against acquiring 
unprocessed Federal timber from a person who is prohibited by the Act 
from purchasing the timber directly from the United States;
    (vii) An acknowledgment of the prohibitions against exporting 
unprocessed Federal timber and against acquiring such timber in 
substitution for unprocessed private timber west of the 100th meridian 
in the contiguous 48 States;
    (viii) A declaration of its business size and manufacturing 
classification, as defined under the Small Business Administration 
Regulations at 13 CFR part 121; and
    (ix) A certificate stating that the certifier has read and 
understands the form; is eligible to acquire unprocessed timber 
originating from Federal lands in accordance with the Act; has been 
notified that some or all of the unprocessed timber included in this 
transfer is subject to export and substitution restrictions; supplied 
information is a true, accurate, current, and complete statement of the 
receipt and disposition of the unprocessed timber originating from 
National Forest System lands to the best of the certifier's knowledge; 
and acknowledges that failure to report completely and accurately the 
transfer of unprocessed Federal timber will subject the certifier to the 
penalties and remedies in the Act (16 U.S.C. 620, et seq.) and the 
penalties in the False Statements Act (18 U.S.C. 1001). The information 
provided is presumed to be not confidential, unless specifically marked 
confidential, in which case confidentiality will be evaluated under 
applicable laws.
    (4) Except as otherwise provided by law, a person who transfers 
unprocessed Federal timber to another person and meets all notice, 
certification, acknowledgment, reporting and record

[[Page 149]]

keeping requirements contained in this section shall be relieved from 
further liability for such timber pursuant to the Act.



Sec. 223.194  Procedures for reporting the acquisition and disposition of unprocessed private timber.

    (a) Notice of domestic processing requirement. Each person who 
acquires unprocessed timber originating from Federal lands located west 
of the 100th meridian in the 48 contiguous States, and who also 
possesses or acquires unprocessed timber from private lands located west 
of the 100th meridian in the 48 contiguous States that requires domestic 
processing, including unprocessed timber originating within an approved 
sourcing area, and in turn sells, trades or otherwise conveys such 
unprocessed private timber to another person, must include a statement 
notifying the person acquiring the unprocessed private timber that such 
private timber must be domestically processed. Unprocessed timber 
originating from private lands located outside of a sourcing area may be 
transferred by the holder of the sourcing area, or by persons acquiring 
such unprocessed timber who are eligible to export such timber, without 
including such a statement.
    (b) The notification statement, pursuant to paragraph (a) of this 
section, shall accompany each transaction involving unprocessed private 
timber that requires domestic processing. The statement shall be on a 
form provided by the Forest Service or a legible copy of such form.
    (1) On such form, described in paragraph (b) of this section, the 
person transferring the timber shall:
    (i) Give notice to the person receiving the unprocessed private 
timber that exporting that timber would violate the Act and its 
implementing regulations;
    (ii) Give notice to the person receiving the unprocessed private 
timber that the timber has been identified for domestic manufacturing by 
a spot of highway yellow paint on each log end that must be retained on 
the timber;
    (iii) Agree to send a signed copy of the transaction statement to 
the Regional Forester within 10 calendar days of the transaction;
    (iv) Agree to retain records of all transactions involving the 
acquisition and disposition of unprocessed timber for a period of three 
(3) years from the date of disposal by manufacturing or transfer and to 
make such records available for inspection upon the request of an 
authorized official of the United States;
    (v) Acknowledge that failure to completely and accurately report and 
identify unprocessed timber is a violation of the Act, and regulations 
issued under the Act, and the False Statements Act (18 U.S.C. 1001); and
    (vi) Certify that the form has been read and understood.
    (2) On such form, described in paragraph (b), the person acquiring 
the timber shall:
    (i) Acknowledge receipt of the notice of requirement to domestically 
process timber originating from private land;
    (ii) Certify that a statement pursuant to paragraph (b)(1) will be 
included in any subsequent transaction documents;
    (iii) Agree to maintain yellow paint markings on each log end until 
the timber is domestically processed or transferred;
    (iv) Agree to retain records of all transactions involving the 
acquisition and disposition of unprocessed timber for a period of three 
(3) years from the date of disposal by manufacturing or transfer and to 
make such records available for inspection upon the request of an 
authorized official of the United States;
    (v) Agree to send a signed copy of the transaction statement to the 
Regional Forester within 10 calendar days of the transaction;
    (vi) Agree to allow authorized officials access to log storage and 
processing facilities for the purpose of monitoring compliance with the 
Act and its implementing regulations;
    (vii) Acknowledge that failure to comply with the domestic 
manufacturing requirements for unprocessed timber or failure to notify 
subsequent persons of this requirement may subject the certifier to the 
civil penalties and administrative remedies provided

[[Page 150]]

in the Act and regulations issued under the Act;
    (viii) Acknowledge that failure to completely and accurately report 
and identify unprocessed timber is a violation of the Act, and 
regulations issued under the Act, and the False Statements Act (18 
U.S.C. 1001); and
    (ix) Certify that the form has been read and understood.
    (c) Except as otherwise provided by law, a person who transfers 
unprocessed private timber to another person and meets all notice, 
certification, acknowledgement, distribution, reporting and record 
keeping requirements contained in this section shall be relieved from 
further liability for such timber with regard to the export and 
substitution restrictions pursuant to the Act.



Sec. 223.195  Procedures for identifying and marking unprocessed timber.

    (a) Highway yellow paint. The use of highway yellow paint on 
unprocessed logs west of the 100th meridian in the contiguous 48 States 
shall be reserved for identifying logs requiring domestic manufacturing.
    (b) Preserving identification. All identifying marks placed on an 
unprocessed log to identify the National Forest System origin of that 
log and/or to identify the log as requiring domestic processing shall be 
retained on the log until the log is domestically processed. If the 
identifying marks are lost, removed, or become unreadable, they shall be 
replaced. If the log is cut into two or more segments, each segment 
shall be identified in the same manner as the original log.
    (1) A generic log hammer brand, known as a ``catch brand'', used to 
identify ownership, may be used to replace lost, removed, unreadable or 
otherwise missing brands where such use is authorized by the Regional 
Forester and approved by the Contracting Officer. Use of such a catch 
brand on a log or log segment will signify Federal origin.
    (2) The requirement to preserve identification of log pieces shall 
not apply to logs cut into two or more segments as a part of the mill 
in-feed process immediately before processing. Log segments that are 
returned to or placed in storage must be marked on both ends with yellow 
paint.
    (c) National Forest System logs. Except as otherwise provided in 
this subsection, all unprocessed logs originating from National Forest 
System timber sales west of the 100th meridian in the contiguous 48 
States shall, before being removed from the timber sale area, be marked 
on each end as follows:
    (1) Painted on each end with a spot of highway yellow paint not less 
than three square inches in size; and,
    (2) Branded on each end with a hammer brand approved for use by the 
Forest Supervisor of the National Forest from which the logs originate. 
The brand pattern may not be used to mark logs from any other source for 
a period of 24 months after all logs have been removed from the sale 
area and until such brand pattern is released in writing by the Forest 
Supervisor.
    (d) Private logs. All unprocessed logs originating from private 
lands west of the 100th meridian in the contiguous 48 States that 
require domestic manufacturing pursuant to Sec. 223.194 of this subpart, 
shall be painted on each end with a spot of highway yellow paint not 
less than three (3) square inches in size before removal from the 
harvest area. If private logs are acquired by a person who may not 
export such logs, the logs must be marked by the person acquiring the 
logs at the time of the acquisition.
    (e) Waiver of painting requirements. The log painting requirements 
pursuant to paragraphs (c)(1) and (d) of this section may be waived if 
the Chief of the Forest Service determines that alternate methods for 
identifying logs required to be domestically processed are equal to or 
better than the procedures required herein.
    (f) Waiver of branding requirements. Regional Foresters may waive 
the branding requirements pursuant to paragraph (c)(2) of this section 
as follows:
    (1) Regions 1, 2, 3, and 4. On an individual timber sale basis, all 
or a portion of the branding requirements pursuant to paragraph (c)(2) 
of this section may be waived, if:
    (i) Unprocessed logs from any origin are not known to have been 
exported

[[Page 151]]

by any person from the person's area of operations within the previous 
5; years.
    (ii) The person certifies as follows:

    ``I hereby request waiver of the requirements to brand each end of 
individual logs originating from the ________ timber sale, Forest 
Service contract number ________ pursuant to 36 CFR 223.195. I certify 
that I have not exported or sold for export unprocessed timber from 
private lands within my area of operations in five years. I certify that 
I understand, that if granted, the waiver applies only to unprocessed 
logs being processed within my area of operations. I certify that any 
unprocessed logs to which this waiver applies that are transferred, or 
sold for transfer, outside my area of operations will be branded on both 
ends in full compliance with 36 CFR 223.195. I make this certification 
with full knowledge and understanding of the requirement of the Forest 
Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, 
et seq.) (Act) and its implementing regulations at 36 CFR part 223. I 
fully understand that failure to abide by the terms of the waiver will 
be a violation of this Act (16 U.S.C. 620, et seq.) and the False 
Statements Act (18 U.S.C. 1001) and may subject me to the penalties and 
remedies provided for such violation.'' ;


and,

    (iii) The person otherwise complies with the regulations relating to 
transfers of logs between persons.
    (iv) If the Regional Forester determines that unprocessed logs from 
my origin are being exported, or are known to have been exported within 
the previous 5 years, by any person from the person's area of 
operations, the Regional Forester shall revoke the waiver.
    (2) Regions 5 and 6. On an individual timber sale basis, the 
branding requirement pursuant to paragraph (c)(2) of this section may be 
waived for logs ten (10) inches or less in diameter inside bark on the 
large end may be waived if:
    (i) One end of each log is branded;
    (ii) The person certifies as follows:

    ``I hereby request waiver of the requirement to brand each end of 
individual logs ten (10) inches or less in diameter inside bark on the 
large end, originating from the ________ timber sale, U.S. contract 
number ________ pursuant to 36 CFR 223.195. I certify that I understand, 
if granted, that the waiver applies only to unprocessed logs being 
processed at ________, and further certify that any and all unprocessed 
logs to which waiver would apply that are transferred, or sold for 
transfer, will be branded on both ends in full compliance 36 CFR 
223.195. I make this certification with full knowledge and understanding 
of the requirements of the Forest Resources Conservation and Shortage 
Relief Act of 1990 (Pub. L. No. 101-382, August 20, 1990; 16 U.S.C. 620, 
et seq.) (Act) and its implementing regulations at 36 CFR Part 223. I 
fully understand that failure to abide by the terms of the waiver will 
be a violation of this Act (16 U.S.C. 620, et seq.) and the False 
Statements Act (18 U.S.C. 1001) and may subject me to the penalties and 
remedies provided for such violation.'';


and,

    (iii) The purchaser otherwise complies with the regulations relating 
to transfers of logs between persons.
    (iv) If the Regional Forester determines that logs ten (10) inches 
or less in diameter inside bark on the large end are being exported in 
the Region, the Regional Forester shall revoke the waiver.
    (3) The Chief of the Forest Service may authorize the testing of 
alternative methods of branding for consideration in future amendment of 
these regulations. Such alternative methods and logs marked under those 
methods shall be closely monitored.



Sec. 223.196  Civil penalties for violation

    (a) Exporting Federal timber. If the Secretary of Agriculture finds, 
on the record and after providing an opportunity for a hearing, that a 
person, with willful disregard for the prohibition in the Act exporting 
unprocessed Federal timber, exported or caused to be exported 
unprocessed timber originating from Federal lands in violation of the 
Act, the Secretary may assess against such person a civil penalty of not 
more than $500,000 for each violation, or 3 times the gross value of the 
unprocessed timber involved in the violation, whichever amount is 
greater.
    (b) Other violations. If the Secretary of Agriculture finds, on the 
record and after providing an opportunity for a hearing, that a person 
has violated any provision of the Act, or any regulation issued under 
the Act relating to National Forest System lands, even though that the 
violation may not have caused the export of unprocessed Federal timber 
in violation of such Act, the Secretary may:
    (1) Assess against such person a civil penalty of not more than 
$500,000, if the

[[Page 152]]

Secretary determines that the person committed such violation willfully;
    (2) Assess against such person a civil penalty of not more than 
$75,000 for each violation, if the Secretary determines that the person 
committeed such violation in disregard of such provision or regulation; 
or
    (3) Assess against such person a civil penalty of not more than 
$50,000 for each violation, if the Secretary determines that the person 
should have known that the action constituted a violation.
    (c) Penalties not exclusive and judicial review. A penalty assessed 
under paragraph (a) or (b) of this section shall not be exclusive of any 
other penalty provided by law, and shall be subject to review in an 
appropriate United States district court.



Sec. 223.197  Civil penalty assessment procedures.

    Adjudicatory procedures for hearing alleged violations of this Act 
and its implementing regulations and assessing penalties shall be 
conducted under the rules of practice governing formal adjudicatory 
proceedings instituted by the Secretary. Such procedures are found at 7 
CFR 1.130, et seq.



Sec. 223.198  Administrative remedies.

    In addition to possible debarment action provided under subpart C of 
this part, the Chief of the Forest Service, or other official to whom 
such authority is delegated, may cancel any timber sale contract entered 
into with a person found to have violated the Act or regulations issued 
under the Act. Such a finding shall constitute a serious violation of 
contract terms pursuant to Sec. 223.116(a)(1) of this part.



Sec. 223.199  Procedures for cooperating with other agencies.

    The Regional Foresters may enter into agreements to cooperate with 
the Department of the Interior, the Department of Defense, and other 
Federal, State and local agencies for monitoring, surveillance and 
enforcing the Act.



Sec. 223.200  Determinations of surplus species.

    (a) Determinations that specific quantities of grades and species 
are surplus to domestic manufacturing needs and withdrawals of such 
determinations shall be made in accordance with title 5, United States 
Code, section 553.
    (b) Review of a determination shall be made at least once in every 
3-year period. Notice of such review shall be published in the Federal 
Register. The public shall have no less than 30 days to submit comments 
on the review.
    (c) Alaska yellow cedar and Port Orford cedar, which the Secretary 
of Agriculture found to be surplus to domestic processing needs pursuant 
to 36 CFR 223.163, the rules in effect before August 20, 1990, shall 
continue in that status until new determinations are published.



Sec. 223.201  Limitations on unprocessed timber harvested in Alaska.

    Unprocessed timber from National Forest System lands in Alaska may 
not be exported from the United States or shipped to other States 
without prior approval of the Regional Forester. This requirement is 
necessary to ensure the development and continued existence of adequate 
wood processing capacity in Alaska for the sustained utilization of 
timber from the National Forests which are geographically isolated from 
other processing facilities. In determining whether consent will be 
given for the export of timber, consideration will be given to, among 
other things, whether such export will:
    (a) Permit more complete utilization on areas being logged primarily 
for local manufacture,
    (b) Prevent loss or serious deterioration of logs unsalable locally 
because of an unforeseen loss of market,
    (c) Permit the salvage of timber damaged by wind, insects, fire or 
other catastrophe,
    (d) Bring into use a minor species of little importance to local 
industrial development, or

[[Page 153]]

    (e) Provide material required to meet urgent and unusual needs of 
the Nation. (16 U.S.C. 472a; 16 U.S.C. 551; 16 U.S.C. 616)



Sec. 223.202  Information requirements.

    (a) The procedures in Sec. Sec. 223.189 and 223.192, and some of the 
procedures in Sec. 223.190 were approved by the Office of Management and 
Budget (OMB) and assigned Control Number 0596-0114 upon issuance of the 
interim rule. Control Number 0596-0114 has been reapproved by OMB for 
use through May 31, 1997. OMB approved the information collection 
requirements in Sec. Sec. 223.191 and 223.203 for use through August 31, 
1995, and assigned them Control Number 0596-0115. OMB approved the 
information collection requirements in Sec. Sec. 223.48 and 223.87 for 
use through March 31, 1997 and assigned them Control Number 0596-0021; 
the information collection requirements in Sec. Sec. 223.48 and 223.87 
have been revised. OMB Control Numbers 0596-0114, 0596-0115, and 0596-
0021 have been consolidated under OMB Control Number 0596-0114.
    (b) The application and reporting procedures in Sec. Sec. 223.187, 
223.193, 223.194, 223.195, and some of the procedures in Sec. 223.190 of 
this final rule contain new record keeping and reporting requirements as 
defined in 5 CFR part 1320 and, therefore, impose additional paperwork 
burdens on the affected public. The Office of Management and Budget 
(OMB) has approved these requirements, and assigned them Control Number 
0596-0114.



Sec. 223.203  Indirect substitution exception for National Forest System timber from within Washington State.

    (a) Exception limits. A limited amount of unprocessed National 
Forest System timber originating from within Washington State could have 
been acquired by a person otherwise covered by the prohibition against 
indirect substitution, pursuant to Sec. 490(b) of the Act and 
Sec. 223.189(e) of this subpart.
    (1) The amount of such unprocessed timber was limited to whichever 
is less:
    (i) The higher of the applicant's actual purchase receipts for 
unprocessed timber originating from National Forest System lands within 
Washington State or the Department's records, during fiscal years 1988, 
1989, and 1990, divided by 3; or
    (ii) 15 million board feet.
    (2) Such limit shall not exceed such person's proportionate share of 
50 million board feet.
    (b) Application, review and approval process. To obtain a share of 
the 50 million board feet exempted from the prohibition against indirect 
substitution in section 490(b) of the Act, a person must have submitted 
an application. Applications were required to include at least the 
following:
    (1) The amount of volume exception being requested, in thousand 
board feet (MBF);
    (2) A signed certification that reads as follows:

    ``I certify that, except for an approved share of unprocessed 
Federal timber, in accordance with 36 CFR 223.203, the prohibition 
contained in section 490(b) of the Act (16 U.S.C. 620b) applies to me. I 
have exported unprocessed timber originating from private lands from 
west of the 100th meridian in the 48 contiguous States and have acquired 
unprocessed timber from National Forest System lands located within 
Washington State in 1988, 1989 and/or 1990. I certify that the 
information provided in support of this application is a true, accurate, 
current and complete statement, to the best of my knowledge and belief. 
I agree to retain records of all transactions involving the acquisition 
and disposition of unprocessed timber from Federal lands within the area 
involved in this application for a period of 3 years beginning on the 
date the application is approved, and to make such records available for 
inspection upon the request of the Regional Forester or other official 
to whom such authority has been delegated. I make this certification 
with full knowledge and understanding of the requirements of the Act and 
do fully understand that if this application is approved, the amount of 
exception granted under this approval may not be exceeded in any one 
fiscal year, and do fully understand that if such exception is exceeded 
I will be in violation of the Act (16 U.S.C. 620, et seq.), and I may be 
subject to the penalties and remedies provided for such violation. 
Further, I do fully understand that such violation may subject me to the 
penalty of perjury pursuant to the False Statements Act (18 U.S.C. 
1001).'';


and

    (3) The application listed under this section must have been signed 
by the person making such application or, in

[[Page 154]]

the case of a corporation, by its Chief Executive Officer. The 
application must have been on the company's letterhead and must have 
been notarized.
    (4) The application made under this section must have been mailed to 
the Regional Forester in Portland, Oregon, no later than January 8, 
1992. Applicants were notified of the approving official's decision by 
letter. If approved, the amount of the exception becomes effective upon 
publication in the Federal Register.
    (5) Prospective applicants could review Department records upon 
request prior to the deadline for submitting applications. An applicant 
could voluntarily submit information documenting the amount of purchases 
of unprocessed timber originating from National Forest System lands 
within Washington State. The Department then determined which amount is 
higher, verified by either the Department's records or the applicant's 
records. The Department then determined the applicant's portion of the 
50 million board feet by determining the lesser of the amount verified 
by the records or 15 million board feet. Applicants could submit the 
information documenting the amount of purchases in the following manner:
    (i) Actual receipts for purchasing unprocessed timber from National 
Forest System lands within Washington State; or
    (ii) A statement by a certified public accountant of:
    (A) A summary by fiscal year for 1988, 1989 and 1990 of the 
applicant's acquisitions of timber originating from National Forest 
System lands in the State of Washington, listing total volume for each 
of the three fiscal years; and
    (B) The average volume for the three fiscal years. The volumes to be 
reported were the harvest volumes, except in the case of open sales. 
Advertised volumes had to be reported for open sales.
    (C) The certified public accountant must have certified to the 
following:

    ``I certify that under the penalties and remedies provided in 
Sec. 492 of the Act (16 U.S.C. 620d) and the penalty of perjury provided 
in the False Statements Act (18 U.S.C. 1001) that the information 
provided in support of this application is, to the best of my knowledge 
and belief, a true, accurate, current, and complete statement of 
[applicant's company's name] National Forest System timber acquisitions 
originating from within the State of Washington for fiscal years 1988, 
1989 and/or 1990.''

    (D) The certified public accountant's statement and certification 
must have been on the accountant's company letterhead, must have been 
notarized, and must have accompanied the applicant's application.
    (c) Selling and trading rights. The purchase limit right obtained 
under this rule may be sold, traded, or otherwise exchanged with any 
other person subject to the following conditions:
    (1) Such rights may not be sold, traded, or otherwise exchanged to 
persons already in possession of such rights:
    (2) Any person selling, trading, or exchanging any or all of the 
rights obtained under this rule shall advise the Regional Forester of 
the amount being traded and the name(s) of the person(s) acquiring such 
rights within 15 days of the transaction; and
    (3) No person may have or acquire more than 15 million board feet in 
one fiscal year.
    (d) Information collection. The application procedures in this 
section constitute information collection requirements as defined in 5 
CFR part 1320. These requirements have been approved by the Office of 
Management and Budget and assigned clearance number 0596-0114.
    (e) Persons with approved shares. The application period for shares 
of the indirect substitution exception for acquiring unprocessed timber 
originating from National Forest Systems lands within the State of 
Washington closed on January 8, 1992. Persons with approved shares are 
responsible for monitoring and controlling their acquisitions of 
National Forest System timber originating from within the State of 
Washington to assure approved share amounts are not exceeded in any 
Federal fiscal year. Unused portions of annual shares may not be 
``banked'' for use in future fiscal years. The acquisition of such 
National Forest System timber must be reported to the Forest Service in 
accordance with Sec. 223.193 of this subpart. The following shares are 
approved as of September 8, 1995:

[[Page 155]]

    (1) Cavenham Forest Industries, Portland, OR, 1,048,000 board feet.
    (2) Weyerhauser, Tacoma, WA, 15,000,000 board feet.



PART 228--MINERALS--Table of Contents




                      Subpart A--Locatable Minerals

Sec.
228.1  Purpose.
228.2  Scope.
228.3  Definitions.
228.4  Plan of operations--notice of intent--requirements.
228.5  Plan of operations--approval.
228.6  Availability of information to the public.
228.7  Inspection, noncompliance.
228.8  Requirements for environmental protection.
228.9  Maintenance during operations, public safety.
228.10  Cessation of operations, removal of structures and equipment.
228.11  Prevention and control of fire.
228.12  Access.
228.13  Bonds.
228.14  Appeals.
228.15  Operations within National Forest Wilderness.

                      Subpart B--Leasable Minerals

228.20--228.39  [Reserved]

                Subpart C--Disposal of Mineral Materials

228.40  Authority.
228.41  Scope.
228.42  Definitions.
228.43  Policy governing disposal.
228.44  Disposal on existing Federal leased areas.
228.45  Qualifications of applicants.
228.46  Application of other laws and regulations.

                           General Provisions

228.47  General terms and conditions of contracts and permits.
228.48  Appraisal and measurement.
228.49  Reappraisal.
228.50  Production records.
228.51  Bonding.
228.52  Assignments.
228.53  Term.
228.54  Single entry sales or permits.
228.55  Cancellation or suspension.
228.56  Operating plans.

                      Types and Methods of Disposal

228.57  Types of disposal.
228.58  Competitive sales.
228.59  Negotiated or noncompetitive sales.
228.60  Prospecting permits.
228.61  Preference right negotiated sales.
228.62  Free use.
228.63  Removal under terms of a timber sale or other Forest Service 
          contract.
228.64  Community sites and common-use areas.
228.65  Payment for sales.
228.66  Refunds.
228.67  Information collection requirements.

              Subpart D--Miscellaneous Minerals Provisions

228.80  Operations within Misty Fjords and Admiralty Island National 
          Monuments, Alaska.

                    Subpart E--Oil and Gas Resources

228.100  Scope and applicability.
228.101  Definitions.

                                 Leasing

228.102  Leasing analyses and decisions.
228.103  Notice of appeals of decisions.
228.104  Consideration of requests to modify, waive, or grant exceptions 
          to lease stipulations.

              Authorization of Occupancy Within a Leasehold

228.105  Issuance of onshore orders and notices to lessees.
228.106  Operator's submission of surface use plan of operations.
228.107  Review of surface use plan of operations.
228.108  Surface use requirements.
228.109  Bonds.
228.110  Indemnification.

                      Administration of Operations

228.111  Temporary cessation of operations.
228.112  Compliance and inspection.
228.113  Notice of noncompliance.
228.114  Material noncompliance proceedings.
228.115  Additional notice of decisions.
228.116  Information collection requirements.

Appendix A to Subpart E of Part 228--Guidelines for Preparing Surface 
          Use Plans of Operation for Drilling

    Authority: 30 Stat. 35 and 36, as amended (16 U.S.C. 478, 551); 41 
Stat. 437, as amended, sec. 5102(d), 101 Stat. 1330-256 (30 U.S.C. 226); 
61 Stat. 681, as amended (30 U.S.C. 601); 61 Stat. 914, as amended (30 
U.S.C. 352); 69 Stat. 368, as amended (30 U.S.C. 611); and 94 Stat. 
2400.

    Source: 39 FR 31317, Aug. 28, 1974, unless otherwise noted. 
Redesignated at 46 FR 36142, July 14, 1981.

[[Page 156]]



                      Subpart A--Locatable Minerals



Sec. 228.1  Purpose.

    It is the purpose of these regulations to set forth rules and 
procedures through which use of the surface of National Forest System 
lands in connection with operations authorized by the United States 
mining laws (30 U.S.C. 21-54), which confer a statutory right to enter 
upon the public lands to search for minerals, shall be conducted so as 
to minimize adverse environmental impacts on National Forest System 
surface resources. It is not the purpose of these regulations to provide 
for the management of mineral resources; the responsibility for managing 
such resources is in the Secretary of the Interior.



Sec. 228.2  Scope.

    These regulations apply to operations hereafter conducted under the 
United States mining laws of May 10, 1872, as amended (30 U.S.C. 22 et 
seq.), as they affect surface resources on all National Forest System 
lands under the jurisdiction of the Secretary of Agriculture to which 
such laws are applicable: Provided, however, That any area of National 
Forest lands covered by a special Act of Congress (16 U.S.C. 482a-482q) 
is subject to the provisions of this part and the provisions of the 
special act, and in the case of conflict the provisions of the special 
act shall apply.



Sec. 228.3  Definitions.

    For the purposes of this part the following terms, respectively, 
shall mean:
    (a) Operations. All functions, work, and activities in connection 
with prospecting, exploration, development, mining or processing of 
mineral resources and all uses reasonably incident thereto, including 
roads and other means of access on lands subject to the regulations in 
this part, regardless of whether said operations take place on or off 
mining claims.
    (b) Operator. A person conducting or proposing to conduct 
operations.
    (c) Person. Any individual, partnership, corporation, association, 
or other legal entity.
    (d) Mining claim. Any unpatented mining claim or unpatented millsite 
authorized by the United States mining laws of May 10, 1872, as amended 
(30 U.S.C. 22 et seq.).
    (e) Authorized officer. The Forest Service officer to whom authority 
to review and approve operating plans has been delegated.



Sec. 228.4  Plan of operations--notice of intent--requirements.

    (a) Except as provided in paragraph (a)(2) of this section, a notice 
of intention to operate is required from any person proposing to conduct 
operations which might cause disturbance of surface resources. Such 
notice of intention shall be submitted to the District Ranger having 
jurisdiction over the area in which the operations will be conducted. If 
the District Ranger determines that such operations will likely cause 
significant disturbance of surface resources, the operator shall submit 
a proposed plan of operations to the District Ranger.
    (1) The requirements to submit a plan of operations shall not apply:
    (i) To operations which will be limited to the use of vehicles on 
existing public roads or roads used and maintained for National Forest 
purposes,
    (ii) To individuals desiring to search for and occasionally remove 
small mineral samples or specimens,
    (iii) To prospecting and sampling which will not cause significant 
surface resource disturbance and will not involve removal of more than a 
reasonable amount of mineral deposit for analysis and study,
    (iv) tT marking and monumenting a mining claim and
    (v) To subsurface operations which will not cause significant 
surface resource disturbance.
    (2) A notice of intent need not be filed:
    (i) Where a plan of operations is submitted for approval in lieu 
thereof,
    (ii) For operations excepted in paragraph (a)(1) of this section 
from the requirement to file a plan of operations,
    (iii) For operations which will not involve the use of mechanized 
earthmoving equipment such as bulldozers or backhoes and will not 
involve

[[Page 157]]

the cutting of trees. Each notice of intent to operate shall provide 
information sufficient to identify the area involved, the nature of the 
proposed operations, the route of access to the area of operations and 
the method of transport. If a notice of intent is filed, the District 
Ranger will, within 15 days of receipt thereof, notify the operator 
whether a plan of operations is required.
    (b) Any person conducting operations on the effective date of these 
regulations, who would have been required to submit a plan of operations 
under Sec. 228.4(a), may continue operations but shall within 120 days 
thereafter submit a plan of operations to the District Ranger having 
jurisdiction over the area within which operations are being conducted: 
Provided, however, That upon a showing of good cause the authorized 
officer will grant an extension of time for submission of a plan of 
operations, not to exceed an additional 6 months. Operations may 
continue according to the submitted plan during its review, unless the 
authorized officer determines that the operations are unnecessarily or 
unreasonably causing irreparable damage to surface resources and advises 
the operator of those measures needed to avoid such damage. Upon 
approval of a plan of operations, operations shall be conducted in 
accordance with the approved plan. The requirement to submit a plan of 
operations shall not apply: (1) To operations excepted in Sec. 228.4(a) 
or (2) to operations concluded prior to the effective date of the 
regulations in this part.
    (c) The plan of operations shall include:
    (1) The name and legal mailing address of the operators (and 
claimants if they are not the operators) and their lessees, assigns, or 
designees.
    (2) A map or sketch showing information sufficient to locate the 
proposed area of operations on the ground, existing and/or proposed 
roads or access routes to be used in connection with the operations as 
set forth in Sec. 228.12 and the approximate location and size of areas 
where surface resources will be disturbed.
    (3) Information sufficient to describe or identify the type of 
operations proposed and how they would be conducted, the type and 
standard of existing and proposed roads or access routes, the means of 
transportation used or to be used as set forth in Sec. 228.12, the 
period during which the proposed activity will take place, and measures 
to be taken to meet the requirements for environmental protection in 
Sec. 228.8.
    (d) The plan of operations shall cover the requirements set forth in 
paragraph (c) of this section, as foreseen for the entire operation for 
the full estimated period of activity: Provided, however, That if the 
development of a plan for an entire operation is not possible at the 
time of preparation of a plan, the operator shall file an initial plan 
setting forth his proposed operation to the degree reasonably 
foreseeable at that time, and shall thereafter file a supplemental plan 
or plans whenever it is proposed to undertake any significant surface 
disturbance not covered by the initial plan.
    (e) At any time during operations under an approved plan of 
operations, the authorized officer may ask the operator to furnish a 
proposed modification of the plan detailing the means of minimizing 
unforeseen significant disturbance of surface resources. If the operator 
does not furnish a proposed modification within a time deemed reasonable 
by the authorized officer, the authorized officer may recommend to his 
immediate superior that the operator be required to submit a proposed 
modification of the plan. The recommendation of the authorized officer 
shall be accompanied by a statement setting forth in detail the 
supporting facts and reasons for his recommendations. In acting upon 
such recommendation, the immediate superior of the authorized officer 
shall determine:
    (1) Whether all reasonable measures were taken by the authorized 
officer to predict the environmental impacts of the proposed operations 
prior to approving the operating plan,
    (2) Whether the disturbance is or probably will become of such 
significance as to require modification of the operating plan in order 
to meet the requirements for environmental protection specified in 
Sec. 228.8 and

[[Page 158]]

    (3) Whether the disturbance can be minimized using reasonable means. 
Lacking such determination that unforeseen significant disturbance of 
surface resources is occurring or probable and that the disturbance can 
be minimized using reasonable means, no operator shall be required to 
submit a proposed modification of an approved plan of operations. 
Operations may continue in accordance with the approved plan until a 
modified plan is approved, unless the immediate superior of the 
authorized officer determines that the operations are unnecessarily or 
unreasonably causing irreparable injury, loss or damage to surface 
resources and advises the operator of those measures needed to avoid 
such damage.
    (f) Upon completion of an environmental analysis in connection with 
each proposed operating plan, the authorized officer will determine 
whether an environmental statement is required. Not every plan of 
operations, supplemental plan or modification will involve the 
preparation of an environmental statement. Environmental impacts will 
vary substantially depending on whether the nature of operations is 
prospecting, exploration, development, or processing, and on the scope 
of operations (such as size of operations, construction required, length 
of operations and equipment required), resulting in varying degrees of 
disturbance to vegetative resources, soil, water, air, or wildlife. The 
Forest Service will prepare any environmental statements that may be 
required.
    (g) The information required to be included in a notice of intent or 
a plan of operations, or supplement or modification thereto, has been 
assigned Office of Management and Budget Control 0596-0022. The public 
reporting burden for this collection of information is estimated to vary 
from a few minutes for an activity involving little or no surface 
disturbance to several months for activities involving heavy capital 
investments and significant surface disturbance, with an average of 2 
hours per individual response. This includes time for reviewing 
instructions, searching existing data sources, gathering and maintaining 
the data needed, and completing and reviewing the collection of 
information. Send comments regarding the burden estimate or any other 
aspect of this collection of information, including suggestions for 
reducing this burden, to Chief (2800), Forest Service, USDA, P.O. Box 
96090, Washington, DC 20090-6090 and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Washington, DC 
20503.

[39 FR 31317, Aug. 28, 1974. Redesignated at 46 FR 36142, July 14, 1981, 
and amended at 54 FR 6893, Feb. 15, 1989]



Sec. 228.5  Plan of operations--approval.

    (a) Operations shall be conducted in accordance with an approved 
plan of operations, except as provided in paragraph (b) of this section 
and in Sec. 228.4 (a), (b), and (e). A proposed plan of operation shall 
be submitted to the District Ranger, who shall promptly acknowledge 
receipt thereof to the operator. The authorized officer shall, within 
thirty (30) days of such receipt, analyze the proposal, considering the 
economics of the operation along with the other factors in determining 
the reasonableness of the requirements for surface resource protection, 
and;
    (1) Notify the operator that he has approved the plan of operations; 
or
    (2) Notify the operator that the proposed operations are such as not 
to require an operating plan; or
    (3) Notify the operator of any changes in, or additions to, the plan 
of operations deemed necessary to meet the purpose of the regulations in 
this part; or
    (4) Notify the operator that the plan is being reviewed, but that 
more time, not to exceed an additional sixty (60) days, is necessary to 
complete such review, setting forth the reasons why additional time is 
needed: Provided, however, That days during which the area of operations 
is inaccessible for inspection shall not be included when computing the 
sixty (60) day period; or
    (5) Notify the operator that the plan cannot be approved until a 
final environmental statement has been prepared and filed with the 
Council on Environmental Quality as provided in Sec. 228.4(f).
    (b) Pending final approval of the plan of operations, the authorized 
officer will approve such operations as may be necessary for timely 
compliance with

[[Page 159]]

the requirements of Federal and State laws, so long as such operations 
are conducted so as to minimize environmental impacts as prescribed by 
the authorized officer in accordance with the standards contained in 
Sec. 228.8.
    (c) A supplemental plan or plans of operations provided for in 
Sec. 228.4(d) and a modification of an approved operating plan as 
provided for in Sec. 228.4(e) shall be subject to approval by the 
authorized officer in the same manner as the initial plan of operations: 
Provided, however, That a modification of an approved plan of operations 
under Sec. 228.4(e) shall be subject to approval by the immediate 
superior of the authorized officer in cases where it has been determined 
that a modification is required.
    (d) In the provisions for review of operating plans, the Forest 
Service will arrange for consultation with appropriate agencies of the 
Department of the Interior with respect to significant technical 
questions concerning the character of unique geologic conditions and 
special exploration and development systems, techniques, and equipment, 
and with respect to mineral values, mineral resources, and mineral 
reserves. Further, the operator may request the Forest Service to 
arrange for similar consultations with appropriate agencies of the U.S. 
Department of the Interior for a review of operating plans.



Sec. 228.6  Availability of information to the public.

    Except as provided herein, all information and data submitted by an 
operator pursuant to the regulations in this part shall be available for 
examination by the public at the Office of the District Ranger in 
accordance with the provisions of 7 CFR 1.1-1.6 and 36 CFR 200.5-200.10. 
Specifically identified information and data submitted by the operator 
as confidential concerning trade secrets or privileged commercial or 
financial information will not be available for public examination. 
Information and data to be withheld from public examination may include, 
but is not limited to, known or estimated outline of the mineral 
deposits and their location, attitude, extent, outcrops, and content, 
and the known or planned location of exploration pits, drill holes, 
excavations pertaining to location and entry pursuant to the United 
States mining laws, and other commercial information which relates to 
competitive rights of the operator.



Sec. 228.7  Inspection, noncompliance.

    (a) Forest Officers shall periodically inspect operations to 
determine if the operator is complying with the regulations in this part 
and an approved plan of operations.
    (b) If an operator fails to comply with the regulations or his 
approved plan of operations and the noncompliance is unnecessarily or 
unreasonably causing injury, loss or damage to surface resources the 
authorized officer shall serve a notice of noncompliance upon the 
operator or his agent in person or by certified mail. Such notice shall 
describe the noncompliance and shall specify the action to comply and 
the time within which such action is to be completed, generally not to 
exceed thirty (30) days: Provided, however, That days during which the 
area of operations is inaccessible shall not be included when computing 
the number of days allowed for compliance.



Sec. 228.8  Requirements for environmental protection.

    All operations shall be conducted so as, where feasible, to minimize 
adverse environmental impacts on National Forest surface resources, 
including the following requirements:
    (a) Air Quality. Operator shall comply with applicable Federal and 
State air quality standards, including the requirements of the Clean Air 
Act, as amended (42 U.S.C. 1857 et seq.).
    (b) Water Quality. Operator shall comply with applicable Federal and 
State water quality standards, including regulations issued pursuant to 
the Federal Water Pollution Control Act, as amended (33 U.S.C. 1151 et 
seq.).
    (c) Solid Wastes. Operator shall comply with applicable Federal and 
State standards for the disposal and treatment of solid wastes. All 
garbage, refuse, or waste, shall either be removed from National Forest 
lands or disposed of or treated so as to minimize, so far as is 
practicable, its impact on the environment and the forest surface 
resources. All tailings,

[[Page 160]]

dumpage, deleterious materials, or substances and other waste produced 
by operations shall be deployed, arranged, disposed of or treated so as 
to minimize adverse impact upon the environment and forest surface 
resources.
    (d) Scenic Values. Operator shall, to the extent practicable, 
harmonize operations with scenic values through such measures as the 
design and location of operating facilities, including roads and other 
means of access, vegetative screening of operations, and construction of 
structures and improvements which blend with the landscape.
    (e) Fisheries and Wildlife Habitat. In addition to compliance with 
water quality and solid waste disposal standards required by this 
section, operator shall take all practicable measures to maintain and 
protect fisheries and wildlife habitat which may be affected by the 
operations.
    (f) Roads. Operator shall construct and maintain all roads so as to 
assure adequate drainage and to minimize or, where practicable, 
eliminate damage to soil, water, and other resource values. Unless 
otherwise approved by the authorized officer, roads no longer needed for 
operations:
    (1) Shall be closed to normal vehicular traffic,
    (2) Bridges and culverts shall be removed,
    (3) Cross drains, dips, or water bars shall be constructed, and
    (4) The road surface shall be shaped to as near a natural contour as 
practicable and be stabilized.
    (g) Reclamation. Upon exhaustion of the mineral deposit or at the 
earliest practicable time during operations, or within 1 year of the 
conclusion of operations, unless a longer time is allowed by the 
authorized officer, operator shall, where practicable, reclaim the 
surface disturbed in operations by taking such measures as will prevent 
or control onsite and off-site damage to the environment and forest 
surface resources including:
    (1) Control of erosion and landslides;
    (2) Control of water runoff;
    (3) Isolation, removal or control of toxic materials;
    (4) Reshaping and revegetation of disturbed areas, where reasonably 
practicable; and
    (5) Rehabilitation of fisheries and wildlife habitat.
    (h) Certification or other approval issued by State agencies or 
other Federal agencies of compliance with laws and regulations relating 
to mining operations will be accepted as compliance with similar or 
parallel requirements of these regulations.



Sec. 228.9  Maintenance during operations, public safety.

    During all operations operator shall maintain his structures, 
equipment, and other facilities in a safe, neat and workmanlike manner. 
Hazardous sites or conditions resulting from operations shall be marked 
by signs, fenced or otherwise identified to protect the public in 
accordance with Federal and State laws and regulations.



Sec. 228.10  Cessation of operations, removal of structures and equipment.

    Unless otherwise agreed to by the authorized officer, operator shall 
remove within a reasonable time following cessation of operations all 
structures, equipment and other facilities and clean up the site of 
operations. Other than seasonally, where operations have ceased 
temporarily, an operator shall file a statement with the District Ranger 
which includes:
    (a) Verification of intent to maintain the structures, equipment and 
other facilities,
    (b) The expected reopening date, and
    (c) An estimate of extended duration of operations. A statement 
shall be filed every year in the event operations are not reactivated. 
Operator shall maintain the operating site, structures, equipment and 
other facilities in a neat and safe condition during nonoperating 
periods.



Sec. 228.11  Prevention and control of fire.

    Operator shall comply with all applicable Federal and State fire 
laws and regulations and shall take all reasonable measures to prevent 
and suppress fires on the area of operations and shall require his 
employees, contractors and subcontractors to do likewise.



Sec. 228.12  Access.

    An operator is entitled to access in connection with operations, but 
no

[[Page 161]]

road, trail, bridge, landing area for aircraft, or the like, shall be 
constructed or improved, nor shall any other means of access, including 
but not limited to off-road vehicles, be used until the operator has 
received approval of an operating plan in writing from the authorized 
officer when required by Sec. 228.4(a). Proposals for construction, 
improvement or use of such access as part of a plan of operations shall 
include a description of the type and standard of the proposed means of 
access, a map showing the proposed route of access, and a description of 
the means of transportation to be used. Approval of the means of such 
access as part of a plan of operations shall specify the location of the 
access route, design standards, means of transportation, and other 
conditions reasonably necessary to protect the environment and forest 
surface resources, including measures to protect scenic values and to 
insure against erosion and water or air pollution.



Sec. 228.13  Bonds.

    (a) Any operator required to file a plan of operations shall, when 
required by the authorized officer, furnish a bond conditioned upon 
compliance with Sec. 228.8(g), prior to approval of such plan of 
operations. In lieu of a bond, the operator may deposit into a Federal 
depository, as directed by the Forest Service, and maintain therein, 
cash in an amount equal to the required dollar amount of the bond or 
negotiable securities of the United States having market value at the 
time of deposit of not less than the required dollar amount of the bond. 
A blanket bond covering nationwide or statewide operations may be 
furnished if the terms and conditions thereof are sufficient to comply 
with the regulations in this part.
    (b) In determining the amount of the bond, consideration will be 
given to the estimated cost of stabilizing, rehabilitating, and 
reclaiming the area of operations.
    (c) In the event that an approved plan of operations is modified in 
accordance with Sec. 228.4 (d) and (e), the authorized officer will 
review the initial bond for adequacy and, if necessary, will adjust the 
bond to conform to the operations plan as modified.
    (d) When reclamation has been completed in accordance with 
Sec. 228.8(g), the authorized officer will notify the operator that 
performance under the bond has been completed: Provided, however, That 
when the Forest Service has accepted as completed any portion of the 
reclamation, the authorized officer shall notify the operator of such 
acceptance and reduce proportionally the amount of bond thereafter to be 
required with respect to the remaining reclamation.

[39 FR 31317, Aug. 28, 1974; 39 FR 32029, Sept. 4, 1974]



Sec. 228.14  Appeals.

    Any operator aggrieved by a decision of the authorized officer in 
connection with the regulations in this part may file an appeal under 
the provisions of 36 CFR part 251, subpart C.

[54 FR 3362, Jan. 23, 1989]



Sec. 228.15  Operations within National Forest Wilderness.

    (a) The United States mining laws shall extend to each National 
Forest Wilderness for the period specified in the Wilderness Act and 
subsequent establishing legislation to the same extent they were 
applicable prior to the date the Wilderness was designated by Congress 
as a part of the National Wilderness Preservation System. Subject to 
valid existing rights, no person shall have any right or interest in or 
to any mineral deposits which may be discovered through prospecting or 
other information-gathering activity after the legal date on which the 
United States mining laws cease to apply to the specific Wilderness.
    (b) Holders of unpatented mining claims validly established on any 
National Forest Wilderness prior to inclusion of such unit in the 
National Wilderness Preservation System shall be accorded the rights 
provided by the United States mining laws as then applicable to the 
National Forest land involved. Persons locating mining claims in any 
National Forest Wilderness on or after the date on which said Wilderness 
was included in the National Wilderness Preservation System shall be 
accorded the rights provided by the

[[Page 162]]

United States mining laws as applicable to the National Forest land 
involved and subject to provisions specified in the establishing 
legislation. Persons conducting operations as defined in Sec. 228.3 in 
National Forest Wilderness shall comply with the regulations in this 
part. Operations shall be conducted so as to protect National Forest 
surface resources in accordance with the general purposes of maintaining 
the National Wilderness Preservation System unimpaired for future use 
and enjoyment as wilderness and to preserve its wilderness character, 
consistent with the use of the land for mineral location, exploration, 
development, drilling, and production and for transmission lines, water 
lines, telephone lines, and processing operations, including, where 
essential, the use of mechanized transport, aircraft or motorized 
equipment.
    (c) Persons with valid mining claims wholly within National Forest 
Wilderness shall be permitted access to such surrounded claims by means 
consistent with the preservation of National Forest Wilderness which 
have been or are being customarily used with respect to other such 
claims surrounded by National Forest Wilderness. No operator shall 
construct roads across National Forest Wilderness unless authorized in 
writing by the Forest Supervisor in accordance with Sec. 228.12.
    (d) On all mining claims validly established on lands within the 
National Wilderness Preservation System, the operator shall take all 
reasonable measures to remove any structures, equipment and other 
facilities no longer needed for mining purposes in accordance with the 
provisions in Sec. 228.10 and restore the surface in accordance with the 
requirements in Sec. 228.8(g).
    (e) The title to timber on patented claims validly established after 
the land was included within the National Wilderness Preservation System 
remains in the United States, subject to a right to cut and use timber 
for mining purposes. So much of the mature timber may be cut and used as 
is needed in the extraction, removal, and beneficiation of the mineral 
deposits, if needed timber is not otherwise reasonably available. The 
cutting shall comply with the requirements for sound principles of 
forest management as defined by the National Forest rules and 
regulations and set forth in stipulations to be included in the plan of 
operations, which as a minimum incorporate the following basic 
principles of forest management:
    (1) Harvesting operations shall be so conducted as to minimize soil 
movement and damage from water runoff; and
    (2) Slash shall be disposed of and other precautions shall be taken 
to minimize damage from forest insects, disease, and fire.
    (f) The Chief, Forest Service, shall allow any activity, including 
prospecting, for the purpose of gathering information about minerals in 
National Forest Wilderness except that any such activity for gathering 
information shall be carried on in a manner compatible with the 
preservation of the wilderness environment as specified in the plan of 
operations.



                      Subpart B--Leasable Minerals



Secs. 228.20--228.39  [Reserved]



                Subpart C--Disposal of Mineral Materials

    Source: 49 FR 29784, July 24, 1984, unless otherwise noted.



Sec. 228.40  Authority.

    Authority for the disposal of mineral materials is provided by the 
Materials Act of July 31, 1947 (30 U.S.C. 601 et seq.), as amended by 
the Acts of August 31, 1950 (30 U.S.C. 603-604), July 23, 1955 (30 
U.S.C. 601, 603), and September 25, 1962 (30 U.S.C. 602), and by the 
following: the Act of June 4, 1897 (16 U.S.C. 477); the Act of March 4, 
1917 (16 U.S.C. 520); the Bankhead-Jones Farm Tenant Act of July 22, 
1937 (7 U.S.C. 1010); the Act of September 1, 1949 (section 3) (30 
U.S.C. 192c); the Act of June 30, 1950 (16 U.S.C. 508b); the Act of June 
28, 1952 (section 3) (66 Stat. 285); the Act of September 2, 1958 (16 
U.S.C. 521a); the Act of June 11, 1960 (74 Stat. 205); the Federal 
Highway Act of August 27,

[[Page 163]]

1958 (23 U.S.C. 101 et seq.); and the Alaska National Interest Lands 
Conservation Act of December 2, 1980 (section 502) (16 U.S.C. 539a).



Sec. 228.41  Scope.

    (a) Lands to which this subpart applies. This subpart applies to all 
National Forest System lands reserved from the public domain of the 
United States, including public domain lands being administered under 
the Bankhead-Jones Farm Tenant Act of July 22, 1937 (7 U.S.C. 1010); to 
all National Forest System lands acquired pursuant to the Weeks Act of 
March 1, 1911 (36 Stat. 961); to all National Forest System lands with 
Weeks Act status as provided in the Act of September 2, 1958 (16 U.S.C. 
521a); and to public lands within the Copper River addition to the 
Chugach National Forest (16 U.S.C. 539a). For ease of reference and 
convenience to the reader, these lands are referred to, throughout this 
subpart, as National Forest lands.
    (b) Restrictions. Disposal of mineral materials from the following 
National Forest lands is subject to certain restrictions as described 
below:
    (1) Segregation or withdrawals in aid of other agencies. Disposal of 
mineral materials from lands segregated or withdrawn in aid of a 
function of another Federal agency, State, territory, county, 
municipality, water district, or other governmental subdivision or 
agency may be made only with the written consent of the governmental 
entity.
    (2) Segregated or withdrawn National Forest lands. Mineral materials 
may not be removed from segregated or withdrawn lands where removal is 
specifically prohibited by statute or by public land order. Where not 
specifically prohibited, removal of mineral materials may be allowed if 
the authorized officer determines that the removal is not detrimental to 
the values for which the segregation or withdrawal was made, except as 
provided in paragraph (b)(1) of this section. Where operations have been 
established prior to the effective date of this Subpart and where not 
prohibited by statute, they may be permitted to continue. Nothing in 
this subparagraph is intended to prohibit the exercise of valid existing 
rights.
    (3) Unpatented mining claims. Provided that claimants are given 
prior notice and it has been determined that removal will neither 
endanger nor materially interfere with prospecting, mining, or 
processing operations or uses reasonably incident thereto on the claims, 
disposal of mineral materials may be allowed from:
    (i) Unpatented mining claims located after July 23, 1955; and/or
    (ii) Unpatented mining claims located before July 23, 1955, and on 
which the United States has established the right to manage the 
vegetative and other surface resources in accordance with the Multiple 
Use Mining Act of July 23, 1955 (30 U.S.C. 601, 603, 611-615).
    (4) Acquired Bankhead-Jones lands. Mineral materials on lands which 
were acquired under the authority of the Bankhead-Jones Farm Tenant Act 
of July 22, 1937 (7 U.S.C. 1010-1012), and which lie outside the 
exterior boundaries of National Forests, or on acquired lands which are 
being administered under the Act and which also lie outside the exterior 
boundaries of National Forests, may be disposed of under these 
regulations only to public authorities and agencies, and only on 
condition that the mineral materials are used for public purposes (7 
U.S.C. 1011(c)).
    (c) Mineral materials to which this subpart applies. This subpart 
applies to mineral materials which consist of petrified wood and common 
varieties of sand, gravel, stone, pumice, pumicite, cinders, clay, and 
other similar materials. Such mineral materials include deposits which, 
although they have economic value, are used for agriculture, animal 
husbandry, building, abrasion, construction, landscaping, and similar 
uses. This subpart also applies to other materials which may not be 
minerals but are produced using mining methods, such as peat. The 
categories of these materials, including representative examples, are:
    (1) Agricultural supply and animal husbandry materials. This 
category includes, but is not limited to, minerals and vegetative 
materials used as or for: Soil conditioners or amendments applied to 
physically alter soil properties

[[Page 164]]

such as direct applications to the soil of carbonate rocks, soil 
containing ``trace elements'' and peat; animal feed supplements; and 
other animal care products.
    (2) Building materials. Except for minerals identified as Uncommon 
Varieties, this category includes, but is not limited to, minerals used 
as or for: Paint fillers or extenders; flagstone, ashlar, rubble, 
mortar, brick, tile, pipe, pottery, earthenware, stoneware, terrazzo, 
and other nonstructural components in floors, walls, roofs, fireplaces, 
and the like; and similar building uses.
    (3) Abrasive materials. This category includes, but is not limited 
to, minerals used for: Filing; scouring; polishing; sanding; and 
sandblasting.
    (4) Construction materials. This category includes, but is not 
limited to, minerals such as sand, gravel, clay, crushed rock and 
cinders used as or for fill; borrow; rip-rap; ballast (including all 
ballast for railroad use); road base; road surfacing; concrete 
aggregate; clay sealants; and similar construction uses.
    (5) Landscaping materials: This category includes, but is not 
limited to minerals and peat used as or for: Chips, granules, sand, 
pebbles, scoria, cinders, cobbles, boulders, slabs, and other components 
in retaining walls, walkways, patios, yards, gardens, and the like; and 
similar landscaping uses.
    (d) Minerals not covered by this subpart. Mineral materials do not 
include any mineral used in manufacturing, industrial processing, or 
chemical operations for which no other mineral can be substituted due to 
unique properties giving the particular mineral a distinct and special 
value; nor do they include block pumice which in nature occurs in pieces 
having one dimension of two inches or more which is valuable and used 
for some application that requires such dimensions. Disposal of minerals 
not covered by this subpart is subject to the terms of the United States 
Mining Laws, as amended (30 U.S.C. 22 et seq.), on those portions of the 
National Forest System where those laws apply. Such minerals may 
include:
    (1) Mineral suitable and used as soil amendment because of a 
constituent element other than calcium or magnesium carbonate that 
chemically alters the soil;
    (2) Limestone suitable and used, without substantial admixtures, for 
cement manufacture, metallurgy, production of quicklime, sugar refining, 
whiting, fillers, paper manufacture, and desulfurization of stack gases;
    (3) Silica suitable and used for glass manufacture, production of 
metallic silicon, flux, and rock wool;
    (4) Alumino-silicates or clays having exceptional qualities suitable 
and used for production of aluminum, ceramics, drilling mud, taconite 
binder, foundry castings, and other purposes for which common clays 
cannot be used;
    (5) Gypsum suitable and used for wallboard, plaster, or cement.
    (6) Block pumice which occurs in nature in pieces having one 
dimension of two inches or more and which is valuable and used for some 
application that requires such dimensions; and
    (7) Stone recognized through marketing factors for its special and 
distinct properties of strength and durability making it suitable for 
structural support and used for that purpose.
    (e) Limitations on applicability. (1) The provisions of paragraphs 
(c) and (d) of this section shall not apply to any mining claims for 
which a Mineral Entry Final Certificate was issued on or before January 
16, 1991. Nor shall these provisions apply to any mining claim located 
on or before July 23, 1955, which has satisfied the marketability test 
for locatable minerals from on or before July 23, 1955, until the 
present date.
    (2) A use which qualifies a mineral as an uncommon variety under 
paragraph (d) overrides classification of that mineral as a common 
variety under paragraph (c) of this section.

[49 FR 29784, July 24, 1984, as amended at 55 FR 51706, Dec. 17, 1990]



Sec. 228.42  Definitions.

    For the purposes of this subject, the following terms are defined:
    Acquired National Forest lands. National Forest System lands 
acquired under the Weeks Act of March 1, 1911 (36 Stat. 961), and 
National Forest System lands with Weeks Act status as provided in the 
Act of September 2, 1958 (16 U.S.C. 521a).

[[Page 165]]

    Authorized officer. Any Forest Service officer to whom authority for 
disposal of mineral materials has been delegated.
    Common-use area. Generally, a broad geographic area from which 
nonexclusive disposals of mineral materials available on the surface may 
be made to low volume and/or noncommercial users.
    Community site. A site noted on appropriate Forest records and 
posted on the ground from which nonexclusive disposals of mineral 
materials may be made to low volume and/or noncommercial users.
    Contract. A signed legal agreement between the Forest Service and a 
purchaser of mineral materials, which specifies (among other things) the 
conditions of a competitive, negotiated, or preference right sale of 
mineral materials to the purchaser.
    Mineral materials. A collective term used throughout this subpart to 
describe petrified wood and common varieties of sand, gravel, stone, 
pumice, pumicite, cinders, clay, and other similar materials. Common 
varieties do not include deposits of those materials which are valuable 
because of some property giving them distinct and special value, nor do 
they include ``so-called `block pumice' '' which occurs in nature in 
pieces having one dimension of two inches or more and which is valuable 
and used for some application that requires such dimensions.
    Permit. A signed legal document between the Forest Service and one 
who is authorized to remove mineral materials free of charge, which 
specifies (among other things) the conditions of removal by the 
permittee.
    Preference right negotiated sale. A negotiated sale which may be 
awarded in response to the finding and demonstration of a suitable 
deposit of mineral material on acquired National Forest lands as the 
result of exploratory activity conducted under the authority of a 
prospecting permit.
    Prospecting permit. A written instrument issued by the Forest 
Service which authorizes prospecting for a minerial material deposit on 
acquired National Forest lands within specific areas, under stipulated 
conditions, and for a specified period of time.
    Single entry source. A source of mineral materials which is expected 
to be depleted under a single contract or permit or which is reserved 
for Forest Service use.
    Unpatented mining claim. A lode or placer mining claim or a millsite 
located under the General Mining Law of 1872, as amended (30 U.S.C. 21-
54), for which a patent under 30 U.S.C. 29 and regulations of the 
Department of the Interior has not been issued.
    Withdrawn National Forest lands. National Forest System lands 
segregated or otherwise withheld from settlement, sale, location, or 
entry under some or all of all of the general land laws (43 U.S.C. 
1714).

[49 FR 29784, July 24, 1984, as amended at 55 FR 51706, Dec. 17, 1990]



Sec. 228.43  Policy governing disposal.

    (a) General. Forest Service policy is to make mineral materials on 
National Forest lands available to the public and to local, State, and 
Federal government agencies where reasonable protection of, or 
mitigation of effects on, other resources in assured, and where removal 
is not prohibited.
    (1) A contract or permit limits processing of the mineral material 
onsite to the first salable product.
    (2) Additional onsite processing may be authorized by a separate 
permit (36 CFR 251.50).
    (3) The authorized officer must ensure that an environmental 
analysis is conducted for all planned disposals of mineral materials.
    (4) Decisions to authorize the disposal of mineral materials must 
conform to approved land and resource management plans (36 CFR 219.22).
    (b) Price. Mineral materials may not be sold for less than the 
appraised value. The authorized officer may assess a fee to cover costs 
of issuing and administering a contract or permit.
    (c) Conservation. Adequate measures must be taken to protect, and 
minimize damage to the environment. Mineral materials may be disposed of 
only if the authorized officer determines that the disposal is not 
detrimental to the public interest.
    (d) Ownership. Title to the mineral materials vests in the purchaser 
or permittee immediately before excavation,

[[Page 166]]

subject to the provisions of Secs. 228.47 through 228.56 and other 
provisions of the contract or permit. Title to excavated material not 
removed within the time provided revests in the United States.
    (e) Decisions. All decisions as to whether or not to grant disposals 
proposed under this subpart shall be made in writing by the authorized 
officer. Such decisions must specify their factual and legal basis.
    (f) Option for mining claimants. All mining claimants holding mining 
claims which are located for a mineral classified in accordance with 
this subpart as a mineral material have the option of maintaining that 
the mineral is locatable and filing for patent. All mining claimants 
holding mining claims located in good faith on or before January 16, 
1991, for a mineral classified in accordance with this subpart as a 
mineral material may accept the classification and, if appropriate, 
receive a sale by negotiated contract for that mineral material under 36 
CFR 228.57(b)(2) of this subpart.

[49 FR 29784, July 24, 1984, as amended at 55 FR 51706, Dec. 17, 1990]



Sec. 228.44  Disposal on existing Federal leased areas.

    Mineral material contracts or permits may be issued within existing 
areas leased or under permit under the 1920 Mineral Leasing Act, as 
amended (30 U.S.C. 181-187); section 402 of Reorganization Plan No. 3 of 
1946 (5 U.S.C. Appendix); the 1947 Mineral Leasing Act for Acquired 
Lands, as amended (30 U.S.C. 351 et seq.); and the 1970 Geothermal Steam 
Act (30 U.S.C. 1001-1025), provided that it has been determined that 
removal will neither endanger nor unreasonably interfere with lease 
operations, and provided further that the lease terms do not prohibit 
disposal.



Sec. 228.45  Qualifications of applicants.

    The authorized officer may require applicants for prospecting 
permits, negotiated contracts, or free-use permits or bidders for the 
sale of mineral materials to furnish information necessary to determine 
their ability to perform the obligations of the contract or permit.



Sec. 228.46  Application of other laws and regulations.

    All mining operations for removal of mineral materials from National 
Forest lands must meet or exceed applicable Federal standards for the 
protection of public safety, health, and the environment, and must also 
meet or exceed State and local standards for the protection of public 
safety, health, and the environment, to the extent that such standards 
are not in conflict with Federal purposes and functions.

                           General Provisions



Sec. 228.47  General terms and conditions of contracts and permits.

    (a) Disposal of designated mineral materials. Only those specified 
mineral materials found within the area designated in the contract or 
permit may be extracted and removed.
    (b) Unauthorized removal (trespass) of mineral materials. The 
removal of mineral materials from National Forest lands, except when 
authorized in accordance with applicable law and regulations of the 
Department of Agriculture, is prohibited (36 CFR 261.9).
    (c) Conservation. Mineral material contracts and permits must 
contain provisions to ensure the efficient removal and conservation of 
the mineral material.
    (d) Improvements. Contracts and permits must contain provisions for 
removal or Government retention of improvements.
    (e) Use of existing National Forest development roads. The 
authorized officer may require purchasers and permittees to obtain 
appropriate road-use permits, make deposits for or perform their 
commensurate share of road maintenance, and comply with road-use rules 
contained in 36 CFR part 212, depending upon their planned extent of 
road use.
    (f) Reclamation. Requirements for reclamation of areas disturbed by 
mineral material operations must be included in contracts and permits, 
except for disposals from community sites and common-use areas.



Sec. 228.48  Appraisal and measurement.

    (a) Appraisal. All mineral materials for sale must be appraised to 
determine fair market value. Appraisals must be

[[Page 167]]

based on knowledge of the extent of the deposit, quality of material, 
and economic value. A sale must not be made at less than the appraised 
value which may be expressed as either price per cubic yard or weight 
equivalent. In all cases the units of measurement must correspond to the 
units used in the appraisal. The authorized officer must estimate and 
record the amount and value of minerals to be disposed of by free-use 
permit.
    (b) Measurement. The amount of mineral material actually removed may 
be measured by volume, weight, truck tally, by combination of these 
methods, or by such other form of measurement as the authorized officer 
determines to be appropriate and in the public interest.



Sec. 228.49  Reappraisal.

    If an extension of time is granted as provided in Sec. 228.53(b), 
the authorized officer must reappraise or reestimate the mineral 
materials covered by the contract or permit and which remain unexcavated 
at the time of extension. The recalculated unit value becomes the new 
unit value for the remaining unexcavated material; excavated and 
stockpiled material is not subject to reappraisal.



Sec. 228.50  Production records.

    At least annually, the purchaser or permittee must furnish a record 
of the volume extracted, in cubic yards or weight equivalent, to the 
authorized officer. The units of measurement must correspond to the 
units used in the appraisal or estimate.



Sec. 228.51  Bonding.

    (a) Bond requirements. Before operations may begin under any 
contract or permit, a bond must be furnished to the authorized officer 
to ensure performance of payment (as necessary), reclamation, and other 
conditions of the contract or permit, except as noted in paragraphs (a) 
(1) and (3) of this section, where the authorized officer may waive such 
bonding. If an extension of time is granted as provided in 
Sec. 228.53(b), the bond requirements must be recalculated and changed 
accordingly.
    (1) For advance payment contracts for 10,000 cubic yards or more in 
volume (or weight equivalent), a bond of not less than 10 percent of the 
total contract price or the value of the estimated annual production 
(whichever is less), plus the reclamation cost for the area covered by 
annual mining, is required. When the total volume is less than 10,000 
cubic yards, bond requirements, if any, are at the discretion of the 
authorized officer.
    (2) For any defered payment contract, a bond equalling the value of 
the estimated annual production plus the reclamation cost for the area 
covered by annual mining is required.
    (3) For free use, the authorized officer may require a reclamation 
bond which must be sufficient to cover the cost of reclamation of the 
anticipated annual work.
    (b) Types of bonding. A bond must be one of the following:
    (1) A bond of a corporate surety shown on the latest approved list 
issued by the U.S. Treasury Department and executed on an approved 
standard form;
    (2) A cash bond;
    (3) Negotiable securities of the United States;
    (4) An irrevocable letter of credit acceptable to the Forest 
Service;
    (5) A performance bond required by other Forest Service contracts or 
permits, provided the bond covers the performance and reclamation 
requirements related to the removal of mineral material from a 
designated pit or area for use in the performance of the contract or 
permit; or
    (6) Any other types of bond specified in the Forest Service Manual.



Sec. 228.52  Assignments.

    (a) Limitations. A purchaser or permittee may not assign the 
contract or permit, or any interest therein, without the written 
approval of the authorized officer.
    (b) Requirements of assignee. The authorized officer will not 
approve any proposed assignment involving contract or permit performance 
unless the assignee:

[[Page 168]]

    (1) Submits information necessary to assure the authorized officer 
of the assignee's ability to meet the same requirements as the original 
purchaser or permittee (assignor); and
    (2) Furnishes a bond or obtains a commitment from the previous 
surety to be bound by the assignment when approved.
    (c) Rights and obligations. Once the authorized officer approves an 
assignment, the assignee is entitled to all the rights and is subject to 
all of the obligations under the contract or permit, and the original 
purchaser or permittee may be released from any further responsiblity 
under the contract or permit.



Sec. 228.53  Term.

    (a) Time allowed. Except as provided in Sec. 228.61(f), 
Sec. 228.62(b), and elsewhere in this paragraph, a contract or permit 
may not exceed 1 year from the effective date of the contract or permit 
unless a written extension is obtained. For those mineral materials sold 
under a duration of production contract or under a contract for the sale 
of all mineral material within a specified area, or under a construction 
contract where removal cannot reasonably take place before completion of 
other work under the same contract, the authorized officer will 
establish a reasonable time period for removal.
    (b) Extension of time. If it is shown that a delay in removal was 
due to causes beyond the control of the purchaser or permittee, the 
authorized officer may grant an extension, not to exceed 1 year, upon 
written request. Written requests for extensions of contracts must be 
received between 30 and 90 days before the expiration date of the 
contract. Written requests for extensions of permits must be received 
between 15 and 90 days before the permit expiration date. The authorized 
officer may grant a total of two extensions for contracts and permits.



Sec. 228.54  Single entry sales or permits.

    The purchaser or permittee is required to reclaim a single entry 
source in accordance with an approved operating plan which describes 
operating procedures and reclamation measures, unless the requirement is 
waived by the authorized officer.



Sec. 228.55  Cancellation or suspension.

    The authorized officer may cancel or suspend a contract, permit, or 
prospecting permit if the purchaser or permitte fails to comply with its 
terms and conditions. If the noncompliance is unnecessarily or 
unreasonably causing injury, loss, or damage to surface resources, the 
authorized officer may cancel or suspend the contract, permit, or 
prospecting permit immediately. In cases where noncompliance is of a 
less serious nature, the authorized officer may cancel or suspend a 
contract, permit, or prospecting permit it such noncompliance continues 
for 30 days after service of written notice by the authorized officer. 
If the noncompliance is not corrected, the authorized officer may attach 
the bond to ensure compliance with the provisions of the contract, 
permit, or prospecting permit.



Sec. 228.56  Operating plans.

    Any surface-disturbing operation under a contract, permit, or 
prospecting permit is subject to prior approval by the authorized 
officer of an operating plan and to reasonable conditions as may be 
required to ensure proper protection of the environment and 
improvements, including timely reclamation of disturbed lands. 
Significant changes to operations require prior approval of an amended 
operating plan. The operating plan must include, as a minimum, a map and 
explanation of the nature of the access, anticipated activity, surface 
disturbance, and intended reclamation including removal or retention of 
structures and facilities. Operating plans must be submitted by the 
purchaser, permittee, or prospecting permittee, except as noted in 
Sec. 228.64(b).

                      Types and Methods of Disposal



Sec. 228.57  Types of disposal.

    Except as provided in Sec. 228.41(b), disposal of mineral materials 
may be made by:
    (a) Competitive sale to the highest qualified bidder after formal 
advertising and other appropriate public notice;

[[Page 169]]

    (b) Sale by negotiated contract. (1) For removal of materials to be 
used in connection with a public works improvement program on behalf of 
a Federal, State, or local government agency if the public exigency will 
not permit delays incident to advertising, or
    (2) For the removal of mineral materials for which it is 
impracticable to obtain competition;
    (c) Preference right negotiated sale to the holder of a Forest 
Service-issued prospecting permit under which a suitable mineral 
material deposit has been demonstrated on acquired National Forest 
lands;
    (d) Free use when a permit is issued to any nonprofit association, 
corporation, individual, or others listed in Sec. 228.62(d), for other 
than commercial purposes, resale, or barter, or to any Federal, State, 
county, local unit, subdivision, municipality, or county road district 
for use in public projects; or
    (e) Forest Service force account or by contract where the material 
is to be used to carry out various Forest Service programs involving 
construction and maintenance of physical improvements.



Sec. 228.58  Competitive sales.

    (a) Invitation for bid. Sales must be conducted as described below 
after inviting competitive bids through publication and posting. The 
authorized officer may not offer a competitive sale unless there is a 
right-of-way or other access to the sale area which is available to 
anyone qualified to bid.
    (b) Advertising--(1) Sales over 25,000 cubic yards. Mineral material 
sales offered by competitive bidding and which exceed 25,000 cubic yards 
must be advertised on the same day once a week for two consecutive weeks 
in a newspaper of general circulation in the area where the material is 
located, and in a trade or industrial newspaper when considered 
appropriate. Notice of the sale must be posted in a conspicuous place in 
the office where bids are to be submitted. In addition, the authorized 
officer may send the advertisement directly to known interested persons. 
Bids may be received but not evaluated before the end of the advertising 
period, which may be extended at the discretion of the authorized 
officer.
    (2) Content of advertising. The advertisement of sale must specify 
the location by legal description of the tract or tracts or by any other 
means identify the location of the mineral material deposit being 
offered, the kind of material, estimated quantities, the unit of 
measurement, appraised price (which sets the minimum acceptable bid), 
time and place for receiving and opening of bids, minimum deposit 
required, major special constraints due to environmental considerations, 
available access, maintenance required over haul routes, traffic 
controls, required use permits, required qualifications of bidders, the 
method of bidding, bonding requirement, notice of the right to reject 
any or all bids, the office where a copy of the contract and additional 
information may be obtained, and additional information the authorized 
officer deems necessary.
    (3) Advertising smaller sales. Advertisement of mineral materials 
amounting to 25,000 cubic yards in volume (or weight equivalent) or less 
must be published and/or posted. The methods of advertisement are at the 
discretion of the authorized officer.
    (c) Conduct of sales. (1) Bidding at competitive sales may be 
conducted by the submission of written sealed bids, oral bids, or a 
combination of both as directed by the authorized officer. In the event 
of a tie in high sealed bids, the highest bidder will be determined by 
oral auction among those tied bidders; when no oral bid is higher that 
the sealed bids, the selected bidder will be determined by lot, the 
purchase price being the amount of the tied bid. For all oral auctions, 
including those used to break sealed-bid ties, the high bidder must 
confirm the bid in writing immediately upon being declared the high 
bidder. The authorized officer must mail notification of the bidding 
results to all bidders within 10 days.
    (2) The authorized officer may require bidders to furnish evidence 
of qualification at the time of award or, if such evidence has already 
been furnished and is still valid, make appropriate reference to the 
record containing it.
    (3) When it is in the interest of the United States to do so, the 
authorized officer may reject any or all bids.

[[Page 170]]

    (d) Bid deposits and award of contract. Sealed bids must be 
accompanied by a deposit. For mineral materials offered at oral auction, 
bidders must make the deposit before opening of the bidding.
    (1) Bid deposits must be equal to 10 percent of the appraised value 
but not less than $100.00.
    (2) Bid deposits must be in the form of cash, money order, bank 
drafts, cashier's or certified checks made payable to the Forest 
Service, or bonds acceptable to the Forest Service (Sec. 228.51(b)).
    (3) Upon conclusion of the bidding, the authorized officer will 
return the deposits of all unsuccessful bidders. The successful bidder's 
deposit will be applied toward the purchase price. If the contract is 
not awarded to the high bidder due to an inability to perform the 
obligations of the contract, the deposit, less expenses and damages 
incurred by the United States, may be returned. The return of a deposit 
does not prejudice any other rights or remedies of the United States. 
The contract may be offered and awarded to the next successive qualified 
high bidder, or, at the discretion of the authorized officer, the sale 
may be either readvertised or negotiated if it is determined that a 
competitive sale is impracticable.
    (4) Within 30 days after receipt of the contract, the successful 
bidder must sign and return the contract, together with any required 
bond, unless the authorized officer has granted an extension for an 
additional 30 days. The bidder must apply for the extension in writing 
within the first 30-day period. If the successful bidder fails to return 
the contract within the first 30-day period or within an approved 
extension, the bid deposit, less the costs of readvertising and damages, 
may be returned without prejudice to any other rights or remedies of the 
United States.
    (5) All sales must be processed on Forest Service-approved contract 
forms. The authorized officer may add provisions to the contract to 
cover conditions peculiar to the sale area. Such additional provisions 
must be made available for inspection by prospective bidders during the 
advertising period.



Sec. 228.59  Negotiated or noncompetitive sales.

    (a) Volume limitations. When it is determined by the authorized 
officer to be in the public interest and when it is impracticable to 
obtain competition, mineral materials not exceeding 100,000 cubic yards 
in volume (or weight equivalent) may be sold in any one sale at not less 
than the appraised value, without advertising or calling for bids, 
except as provided in paragraphs (b) and (c) of this section. The 
authorized officer may not approve noncompetitive sales that exceed the 
total of 200,000 cubic yards (or weight equivalent) made in any one 
State for the benefit of any applicant in any period of 12 consecutive 
months.
    (b) Government programs. In connection with a public works 
improvement project on behalf of a Federal, State, or local governmental 
agency, the authorized officer may sell to an applicant, at not less 
than the appraised value, without advertising or calling for bids, a 
volume of mineral materials not to exceed 200,000 cubic yards (or weight 
equivalent) when the public exigency will not permit delays incident to 
advertising (30 U.S.C. 602).
    (c) Appropriation for highway purposes. For interstate and/or 
Federal aid highways, the Secretary of Transportation may appropriate 
any volume in accordance with 23 U.S.C. 107 and 317.
    (d) Use in development of Federal mineral leases. When it is 
determined to be impracticable to obtain competition and the mineral 
materials are to be used in connection with the development of mineral 
leases issued by the United States (Sec. 228.44), the authorized officer 
may sell to a leaseholder a volume of mineral material not to exceed 
200,000 cubic yards (or weight equivalent) in one State in any period of 
12 consecutive months. No charge will be made for materials which must 
be moved in the process of extracting the mineral under lease, as long 
as the materials remain stockpiled within the boundaries of the leased 
area.
    (e) Exceptions. (1) The Chief of the Forest Service may authorize 
the noncompetitive sale of mineral materials in excess of the volume 
limitations in paragraphs (a), (b), and (d) of this section when 
necessary to:

[[Page 171]]

    (i) Respond to an emergency affecting public health, safety or 
property;
    (ii) Prevent the curtailment of operations conducted under the 
United States mining laws of May 10, 1872, as amended (30 U.S.C. 22 et 
seq.) which generate large volumes of mineral materials as a by-product; 
or
    (iii) Respond to a critical public need for the prompt development 
of a mineral lease issued by the United States or a mining claim located 
under the United States mining laws of May 10, 1872, as amended (30 
U.S.C. 22 et seq.).
    (2) Any noncompetitive sale of mineral materials in excess of the 
volume limitations in paragraphs (a), (b), and (d) shall be subject to 
such restrictions as the Chief of the Forest Service determines to be in 
the public interest.
    (3) Nothing in this paragraph shall otherwise alter the requirements 
of paragraphs (a) through (d) of this section.

[49 FR 29784, July 24, 1984, as amended at 52 FR 10565, Apr. 2, 1987; 53 
FR 43691, Oct. 28, 1988]



Sec. 228.60  Prospecting permits.

    (a) Right conferred. On acquired National Forest lands, prospecting 
permits may be issued which grant the permittee the exclusive right to 
explore for and to demonstrate the existence of a suitable mineral 
material deposit when existing information is insufficient. After the 
demonstration of a suitable deposit and confirmation of this by the 
authorized officer, the permittee will have a preference right to apply 
for a negotiated sale.
    (b) Limitations. Mineral material may be removed from lands under a 
prospecting permit only to the extent necessary for testing and analysis 
or for the demonstration of the existence of a suitable deposit.
    (c) Environmental analysis. Prospecting permits will be issued only 
after submission by applicant and approval by the authorized officer of 
a detailed operating plan. The authorized officer may require a bond in 
accordance with Sec. 228.51. The authorized officer must ensure 
compliance with the National Environmental Policy Act (42 U.S.C. 4321 et 
seq.).
    (d) Acreage and permit limitations. A prospecting permit may not 
cover more than 640 acres. No individual or group may have an interest 
at any one time in more than three prospecting permits on Forest Service 
lands administered by one Forest Supervisor.
    (e) Duration and extension of permits. Prospecting permits may be 
issued for a period not to exceed 24 months, but they may be extended 
once for up to an additional 24 months if necessary to complete 
prospecting. Any application for extension must be submitted no later 
than 30 days before the expiration of the permit. The application for 
extension must provide evidence of diligence and state the reasons why 
additional time is considered necessary to complete prospecting work.
    (f) Refusal to extend permits. The authorized officer may reject 
applications for extension of prospecting permits for the following 
reasons:
    (1) Failure to perform. Failure of the permittee to perform 
prospecting or exploration work without adequate justification may 
result in the denial of an extension; or
    (2) Failure to apply. If an application for extension is not 
submitted within the specified period, the permit may expire without 
notice to the permittee.
    (3) Public interest. If the authorized officer determines that an 
extension may not be in the public interest, the application may be 
rejected.



Sec. 228.61  Preference right negotiated sales.

    (a) Qualification for sale. When applying for a preference right 
negotiated sale, the permittee must demonstrate to the satisfaction of 
the authorized officer that a suitable deposit of mineral material has 
been discovered within the area covered by the prospecting permit. 
Information concerning trade secrets and financial matters submitted by 
the permittee and identified as confidential will not be available for 
public examination except as otherwise agreed upon by the permittee.
    (b) Application for sale. The application must be submitted to the 
District Ranger's office on or before the expiration date of the 
prospecting permit or its extension. The authorized officer may grant 30 
additional days for submitting the application if requested in

[[Page 172]]

writing by the permittee before expiration of the prospecting permit or 
its extension.
    (c) Terms and conditions of contract. The terms and conditions will 
be evaluated on an individual case basis. Only those mineral materials 
specified in the contract may be removed by the purchaser. Before a 
preference right negotiated contract is awarded, the authorized officer 
must ensure that an environmental analysis is conducted. All contracts 
are subject to the conditions under Secs. 228.47 through 228.56.
    (d) Acreage limitations. The authorized officer will determine the 
amount of acreage in the preference right negotiated sale based on a 
presentation of the permittee's needs. The maximum acreage allowable to 
any individual or group must not exceed 320 acres on National Forest 
lands administered by one Forest Supervisor. The allowable acreage may 
be in one or more units which are not necessarily contiguous.
    (e) Volume limitations. Preference right negotiated sales are exempt 
from volume limitations.
    (f) Contract time allowable. A contract or a renewal must not exceed 
5 years; however, the purchaser may have renewal options at the end of 
each contract or renewal period. The authorized officer may renew a 
contract if it is determined that the renewal is not detrimental to the 
public interest and that the purchaser has demonstrated diligence in 
conducting operations. The authorized officer may cancel the contract, 
or the purchaser may forfeit the contract, if no substantial commercial 
production occurs during any continuous 2-year period after the award of 
the contract or if the contract terms and conditions are breached. 
However, if a delay is caused by conditions beyond the purchaser's 
control, the authorized officer may grant an extension equal to the lost 
time.
    (g) Contract renewal reappraisal. At the time of contract renewal, 
the authorized officer will reappraise the mineral material deposit in 
accordance with Sec. 228.49.



Sec. 228.62  Free use.

    (a) Application. An application for a free-use permit must be made 
with the appropriate District Ranger's office.
    (b) Term. Permits may be issued for periods not to exceed 1 year and 
will terminate on the expiration date unless extended by the authorized 
officer as in Sec. 228.53(b). However, the authorized officer may issue 
permits to any local, State, Federal, or Territorial agency, unit or 
subdivision, including municipalities and county road districts, for 
periods up to 10 years.
    (c) Removal by agent. A free-use permittee may extract the mineral 
materials through a designated agent provided that the conditions of the 
permit are not violated. No part of the material may be used as payment 
for the services of an agent in obtaining or processing the material. A 
permit may be issued in the name of a designated agent for those 
entities listed in Sec. 228.62(d)(1), at the discretion of the 
authorized officer, provided there is binding agreement in which the 
entity retains responsibility for ensuring compliance with the 
conditions of the permit.
    (d) Conditions. Free-use permits may be issued for mineral materials 
to settlers, miners, residents, and prospectors for uses other than 
commercial purposes, resale, or barter (16 U.S.C. 477). Free-use permits 
may be issued to local, State, Federal, or Territorial agencies, units, 
or subdivisions, including municipalities, or any association or 
corporation not organized for profit, for other than commercial or 
industrial purposes or resale (30 U.S.C. 601). Free-use permits may not 
be issued when, in the judgment of the authorized officer, the applicant 
owns or controls an adequate supply of mineral material in the area of 
demand. The free-use permit, issued on a Forest Service-approved form, 
must include the basis for the free-use as well as the provisions 
governing the selection, removal, and use of the mineral materials. No 
mineral material may be removed until the permit is issued. The 
permittee must notify the authorized officer upon completion of mineral 
material removal. The permittee must complete the reclamation prescibed 
in the operating plan (Sec. 228.56).
    (1) A free-use permit may be issued to any local, State, Federal, or 
Territorial agency, unit, or subdivision, including

[[Page 173]]

municipalities and county road districts, without limitation on the 
number of permits or on the value of the mineral materials to be 
extracted or removed.
    (2) A free-use permit issued to a nonprofit association, 
corporation, or individual may not provide for the removal of mineral 
materials having a volume exceeding 5,000 cubic yards (or weight 
equivalent) during any period of 12 consecutive months.
    (e) Petrified wood. A free-use permit may be issued to amateur 
collectors and scientists to take limited quantities of petrified wood 
for personal use. The material taken may not be bartered or sold. Free-
use areas may be designated within which a permit may not be required. 
Removal of material from such areas must be in accord with rules issued 
by the authorized officer and posted on the area. Such rules must also 
be posted in the District Ranger's and Forest Supervisor's offices and 
be available upon request. The rules may vary by area depending on the 
quantity, quality, and accessibility of the material and the demand for 
it.



Sec. 228.63  Removal under terms of a timber sale or other Forest Service contract.

    In carrying out programs such as timber sales that involve 
construction and maintenance of various physical improvements, the 
Forest Service may specify that mineral materials be mined, 
manufactured, and/or processed for incorporation into the improvement. 
Where the mineral material is located on National Forest lands and is 
designated in the contract calling for its use, no permit is required as 
long as an operating plan as described in Sec. 228.56 is required by the 
contract provisions. Title to any excavated material in excess of that 
needed to fulfill contract requirements revests in the United States 
without reimbursement to the contract holder or to agents or 
representatives of the contract holder. Such excess material may be 
disposed of under Secs. 228.58, 228.59, or 228.62.



Sec. 228.64  Community sites and common-use areas.

    (a) Designation. Nonexclusive disposals may be made from the same 
deposit or areas designated by the authorized officer; the designation 
of such an area and any reclamation requirements must be based on an 
environmental analysis.
    (b) Pit plans. The Forest Service must prepare operating plans 
(Sec. 228.56) for the efficient removal of the material and for 
appropriate reclamation of community sites and common-use areas.
    (c) Reclamation. The Forest Service is responsible for reclamation 
of community sites and common-use areas.



Sec. 228.65  Payment for sales.

    (a) Conditions. Mineral materials may not be removed from the sale 
area until all conditions of payment in the contract have been met.
    (b) Advance payment. (1) For negotiated and competitive sales the 
full amount may be paid before removal is begun under the contract or by 
installment at the discretion of the authorized officer. Installment 
payments must be based on the estimated removal rate specified in the 
operating plan and must be, as a minimum, the value of 1 month's 
removal. The first installment must be paid before removal operations 
are begun; remaining installments must be paid in advance of removal of 
the remaining materials as billed by the authorized officer. The total 
amount of the purchase price must be paid at least 60 days before the 
expiration date of the contract.
    (2) All advance payment contracts must provide for reappraisal of 
the mineral material at the time of contract renewal or extension.
    (3) Minimum annual production must be sufficient to return a payment 
to the United States equal to the first installment. In lieu of minimum 
production, there must be an annual payment in the amount of the first 
installment which will not be credited to future years' production. 
Payments for or in lieu of minimum annual production must be received by 
the authorized officer on or before the anniversary of the effective 
date of the contract.

[[Page 174]]

    (4) If the purchaser fails to make payments when due, the contract 
will be considered breached; the authorized officer will terminate the 
contract, and all previous payments will be forfeited without prejudice 
to any other rights and remedies of the United States. Forfeiture will 
not result when the purchaser is unable to meet the minimum annual 
production (volume or value) for reasons beyond the purchaser's control.
    (5) In order to determine payment amount, the purchaser must make a 
report of operations. The report must include the amount of mineral 
material removed, which must be verified by the authorized officer.
    (c) Deferred payments. The authorized officer may approve deferred 
payments for sales.
    (1) The purchaser may make payments monthly or quarterly which must 
be based on the in-place value (volume or weight equivalent) of material 
removed during the contract period. The units of measurement must 
correspond to the units used in the appraisal. The purchaser must make 
all payments before contract renewal.
    (2) The purchaser must deliver a bond which conforms to the 
provisions of Sec. 228.51(a)(2) to the authorized officer before 
operations are begun under the contract.



Sec. 228.66  Refunds.

    Upon termination of any contract, payments in excess of $10 may be 
refunded, less the costs incurred by the United States, under any of the 
following conditions:
    (a) Payment in excess of value. If the total payment exceeds the 
value of the mineral material removed, unless it is the minimum annual 
payment in lieu of production;
    (b) Insufficiency of material. If insufficient mineral material 
existed in the sale area to provide the quantity of material estimated 
to have been available;
    (c) Termination. (1) If the contract is terminated by the authorized 
officer for reasons which are beyond the purchaser's control; or
    (2) If the contract is terminated by mutual agreement. This refund 
provision is not a warranty that a specific quantity of material exists 
in the sale area.



Sec. 228.67  Information collection requirements.

    (a) The following sections of this subpart contain information 
collection requirements as defined in the Paperwork Reduction Act of 
1980 (5 CFR part 1320): Sec. 228.45, Qualifications of applicants; 
Sec. 228.51, Bonding; Sec. 228.52(b)(1), Requirements of assignee; 
Sec. 228.53(b), Extension of time; Sec. 228.56, Operating plans; 
Sec. 228.57(c), Conduct of sales; Sec. 228.60, Prospecting permits; 
Sec. 228.61, Preference right negotiated sales; and Sec. 228.62, Free 
use. These requirements have been approved by the Office of Management 
and Budget and assigned clearance number 0596-0081.
    (b) The public reporting burden for this collection of information 
is estimated to vary from a few minutes to many hours per individual 
response, with an average of 2 hours per individual response, including 
time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Send comments regarding the burden 
estimate or any other aspect of this collection of information, 
including suggestions for reducing this burden, to Chief (2800), Forest 
Service, USDA, P.O. Box 96090, Washington, DC 20090-6090 and to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Washington, DC 20503.

[55 FR 51706, Dec. 17, 1990]



              Subpart D--Miscellaneous Minerals Provisions



Sec. 228.80  Operations within Misty Fjords and Admiralty Island National Monuments, Alaska.

    (a) Mineral activities on valid mining claims in the Misty Fjords 
and Admiralty Island National Monuments must be conducted in accordance 
with regulations in subpart A of this part and with the provisions of 
this section.
    (b) Prior to approving a plan of operations, the authorized officer 
must consider:

[[Page 175]]

    (1) The resources of ecological, cultural, geological, historical, 
prehistorical, and scientific interest likely to be affected by the 
proposed operations, including access; and
    (2) The potential adverse impacts on the identified resource values 
resulting from the proposed operations.
    (c) A plan of operations will be approved if, in the judgment of the 
authorized officer, proposed operations are compatible, to the maximum 
extent feasible, with the protection of the resource values identified 
pursuant to paragraph (b)(1) of this section.
    (1) The authorized officer will deem operations to be compatible if 
the plan of operations includes all feasible measures which are 
necessary to prevent or minimize potential adverse impacts on the 
resource values identified pursuant to paragraph (b)(1) of this section 
and if the operations are conducted in accordance with the plan.
    (2) In evaluating the feasibility of mitigating measures, the 
authorized officer shall, at a minimum, consider the following:
    (i) The effectiveness and practicality of measures utilizing the 
best available technology for preventing or minimizing adverse impacts 
on the resource values identified pursuant to paragraph (b)(1) of this 
section; and
    (ii) The long- and short-term costs to the operator of utilizing 
such measures and the effect of these costs on the long- and short-term 
economic viability of the operations.
    (3) The authorized officer shall not require implementation of 
mitigating measures which would prevent the evaluation or development of 
any valid claim for which operations are proposed.
    (d) In accordance with the procedures described in subpart A and 
paragraphs (c)(1) through (c)(3) of this section, the authorized officer 
may approve modifications of an existing plan of operations:
    (1) If, in the judgment of the authorized officer, environmental 
impacts unforeseen at the time of approval of the existing plan may 
result in the incompatibility of the operations with the protection of 
the resource values identified pursuant to paragraph (b)(1) of this 
section; or
    (2) Upon request by the operator to use alternative technology and 
equipment capable of achieving a level of environmental protection 
equivalent to that to be achieved under the existing plan of operations.

[51 FR 20827, June 9, 1986]



                    Subpart E--Oil and Gas Resources

    Source: 55 FR 10444, Mar. 21, 1990, unless otherwise noted.



Sec. 228.100  Scope and applicability.

    (a) Scope. This subpart sets forth the rules and procedures by which 
the Forest Service of the United States Department of Agriculture will 
carry out its statutory responsibilities in the issuance of Federal oil 
and gas leases and management of subsequent oil and gas operations on 
National Forest System lands, for approval and modification of attendant 
surface use plans of operations, for monitoring of surface disturbing 
operations on such leases, and for enforcement of surface use 
requirements and reclamation standards.
    (b) Applicability. The rules of this subpart apply to leases on 
National Forest System lands and to operations that are conducted on 
Federal oil and gas leases on National Forest System lands as of April 
20, 1990.
    (c) Applicability of other rules. Surface uses associated with oil 
and gas prospecting, development, production, and reclamation 
activities, that are conducted on National Forest System lands outside a 
leasehold must receive prior authorization from the Forest Service. Such 
activities are subject to the regulations set forth elsewhere in 36 CFR 
chapter II, including but not limited to the regulations set forth in 36 
CFR parts 251, subpart B, and 261.



Sec. 228.101  Definitions.

    For the purposes of this subpart, the terms listed in this section 
have the following meaning:
    Authorized Forest officer. The Forest Service employee delegated the 
authority to perform a duty described in these rules. Generally, a 
Regional Forester, Forest Supervisor, District

[[Page 176]]

Ranger, or Minerals Staff Officer, depending on the scope and level of 
the duty to be performed.
    Compliance Officer. The Deputy Chief, or the Associate Deputy 
Chiefs, National Forest System or the line officer designated to act in 
the absence of the Deputy Chief.
    Leasehold. The area described in a Federal oil and gas lease, 
communitized, or unitized area.
    Lessee. A person or entity holding record title in a lease issued by 
the United States.
    National Forest System. All National Forest lands reserved or 
withdrawn from the public domain of the United States, all National 
Forest lands acquired through purchase, exchange, donation, or other 
means, the National Grasslands and land utilization projects 
administered under title III of the Bankhead-Jones Farm Tenant Act (7 
U.S.C. 1010 et seq.), and other lands, waters, or interests therein 
which are administered by the Forest Service or are designated for 
administration through the Forest Service as a part of the system (16 
U.S.C. 1609).
    Notices To Lessees, Transferees, and Operators. A written notice 
issued by the authorized Forest officer. Notices To Lessees, 
Transferees, and Operators implement the regulations in this subpart and 
serve as instructions on specific item(s) of importance within a Forest 
Service Region, National Forest, or Ranger District.
    Onshore Oil and Gas Order. A formal numbered order issued by or 
signed by the Chief of the Forest Service that implements and 
supplements the regulations in this subpart.
    Operating right. The interest created out of a lease that authorizes 
the holder of that interest to enter upon the leased lands to conduct 
drilling and related operations, including production of oil and gas 
from such lands in accordance with the terms of the lease.
    Operating rights owner. A person holding operating rights in a lease 
issued by the United States. A leasee also may be an operating rights 
owner if the operating rights in a lease or portion thereof have not 
been conveyed to another person.
    Operations. Surface disturbing activities that are conducted on a 
leasehold on National Forest System lands pursuant to a current approved 
surface use plan of operations, including but not limited to, 
exploration, development, and production of oil and gas resources and 
reclamation of surface resources.
    Operator. Any person or entity, including, but not limited to, the 
lessee or operating rights owner, who has stated in writing to the 
authorized Forest officer that they are responsible under the terms and 
conditions of the lease for the operations conducted on the leased lands 
or a portion thereof.
    Person. An individual, partnership, corporation, association or 
other legal entity.
    Substantial modification. A change in lease terms or a modification, 
waiver, or exception of a lease stipulation that would require an 
environmental assessment or environmental impact statement be prepared 
pursuant to the National Environmental Policy Act of 1969.
    Surface use plan of operations. A plan for surface use, disturbance, 
and reclamation.
    Transfer. Any conveyance of an interest in a lease by assignment, 
sublease or otherwise. This definition includes the terms: Assignment 
which means a conveyance of all or a portion of the lessee's record 
title interest in a lease; and sublease which means a conveyance of a 
non-record interest in a lease, i.e., a conveyance of operating rights 
is normally a sublease and a sublease also is a subsidiary arrangement 
between the lessee (sublessor) and the sublessee, but a sublease does 
not include a transfer of a purely financial interest, such as 
overriding royalty interest or payment out of production, nor does it 
affect the relationship imposed by a lease between the lessee(s) and the 
United States.
    Transferee. A person to whom an interest in a lease issued by the 
United States has been transferred.

                                 Leasing



Sec. 228.102  Leasing analyses and decisions.

    (a) Compliance with the National Environmental Policy Act of 1969. 
In analyzing lands for leasing, the authorized Forest officer shall 
comply with the

[[Page 177]]

National Environmental Policy Act of 1969, implementing regulations at 
43 CFR parts 1500-1508, and Forest Service implementing policies and 
procedures set forth in Forest Service Manual chapter 1950 and Forest 
Service Handbook 1909.15.
    (b) Scheduling analysis of available lands. Within 6 months of April 
20, 1990, Forest Supervisors shall develop, in cooperation with the 
Bureau of Land Management and with public input, a schedule for 
analyzing lands under their jurisdiction that have not been already 
analyzed for leasing. The Forest Supervisors shall revise or make 
additions to the schedule at least annually. In scheduling lands for 
analysis, the authorized Forest officer shall identify and exclude from 
further review the following lands which are legally unavailable for 
leasing:
    (1) Lands withdrawn from mineral leasing by an act of Congress or by 
an order of the Secretary of the Interior;
    (2) Lands recommended for wilderness allocation by the Secretary of 
Agriculture;
    (3) Lands designated by statute as wilderness study areas, unless 
oil and gas leasing is specifically allowed by the statute designating 
the study area; and
    (4) Lands within areas allocated for wilderness or further planning 
in Executive Communication 1504, Ninety-Sixth Congress (House Document 
No. 96-119), unless such lands subsequently have been allocated to uses 
other than wilderness by an approved Forest land and resource management 
plan or have been released to uses other than wilderness by an act of 
Congress.
    (c) Leasing analyses. The leasing analysis shall be conducted by the 
authorized Forest officer in accordance with the requirements of 36 CFR 
part 219 (Forest land and resource management planning) and/or, as 
appropriate, through preparation of NEPA documents. As part of the 
analysis, the authorized Forest oficer shall:
    (1) Identify on maps those areas that will be:
    (i) Open to development subject to the terms and conditions of the 
standard oil and gas lease form (including an explanation of the typical 
standards and objectives to be enforced under the standard lease terms);
    (ii) Open to development but subject to constraints that will 
require the use of lease stipulations such as those prohibiting surface 
use on areas larger than 40 acres or such other standards as may be 
developed in the plan for stipulation use (with discussion as to why the 
constraints are necessary and justifiable); and
    (iii) Closed to leasing, distinguishing between those areas that are 
being closed through exercise of management direction, and those closed 
by law, regulation, etc.
    (2) Identify alternatives to the areas listed in paragraph (c)(1) of 
this section, including that of not allowing leasing.
    (3) Project the type/amount of post-leasing activity that is 
reasonably foreseeable as a consequence of conducting a leasing program 
consistent with that described in the proposal and for each alternative.
    (4) Analyze the reasonable foreseeable impacts of post-leasing 
activity projected under paragraph (c)(3) of this section.
    (d) Area or Forest-wide leasing decisions (lands administratively 
available for leasing). Upon completion of the leasing analysis, the 
Regional Forest shall promptly notify the Bureau of Land Management as 
to the area or Forest-wide leasing decisions that have been made, that 
is, identify lands which have been found administratively available for 
leasing.
    (e) Leasing decisions for specific lands. At such time as specific 
lands are being considered for leasing, the Regional Forester shall 
review the area or Forest-wide leasing decision and shall authorize the 
Bureau of Land Management to offer specific lands for lease subject to:
    (1) Verifying that oil and gas leasing of the specific lands has 
been adequately addressed in a NEPA document, and is consistent with the 
Forest land and resource management plan. If NEPA has not been 
adequately addressed, or if there is significant new information or 
circumstances as defined by 40 CFR 1502.9 requiring further 
environmental analysis, additional environment analysis shall be done 
before

[[Page 178]]

a leasing decision for specific lands will be made. If there is 
inconsistency with the Forest land and resource management plan, no 
authorization for leasing shall be given unless the plan is amended or 
revised.
    (2) Ensuring that conditions of surface occupancy identified in 
Sec. 228.102(c)(1) are properly included as stipulations in resulting 
leases.
    (3) Determining that operations and development could be allowed 
somewhere on each proposed lease, except where stipulations will 
prohibit all surface occupancy.

[55 FR 10444, Mar. 21, 1990, as amended at 56 FR 56157, Nov. 1, 1991]



Sec. 228.103  Notice of appeals of decisions.

    The authorized Forest officer shall promptly notify the Bureau of 
Land Management if appeals of either an area or Forest-wide leasing 
decision or a leasing decision for specific lands are filed during the 
periods provided for under 36 CFR part 217.



Sec. 228.104  Consideration of requests to modify, waive, or grant exceptions to lease stipulations.

    (a) General. An operator submitting a surface use plan of operations 
may request the authorized Forest officer to authorize the Bureau of 
Land Management to modify (permanently change), waive (permanently 
remove), or grant an exception (case-by-case exemption) to a stipulation 
included in a lease at the direction of the Forest Service. The person 
making the request is encouraged to submit any information which might 
assist the authorized Forest officer in making a decision.
    (b) Review. The authorized Forest officer shall review any 
information submitted in support of the request and any other pertinent 
information.
    (1) As part of the review, consistent with 30 U.S.C. 226 (f)-(g), 
the authorized Forest officer shall ensure compliance with the National 
Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.) and any other 
applicable laws, and shall ensure preparation of any appropriate 
environmental documents.
    (2) The authorized Forest officer may authorize the Bureau of Land 
Management to modify, waive, or grant an exception to a stipulation if:
    (i) The action would be consistent with applicable Federal laws;
    (ii) The action would be consistent with the current forest land and 
resource management plan;
    (iii) The management objectives which led the Forest Service to 
require the inclusion of the stipulation in the lease can be met without 
restricting operations in the manner provided for by the stipulation 
given the change in the present condition of the surface resources 
involved, or given the nature, location, timing, or design of the 
proposed operations; and
    (iv) The action is acceptable to the authorized Forest officer based 
upon a review of the environmental consequences.
    (c) Other agency stipulations. If a stipulation was included in a 
lease by the Forest Service at the request of another agency, the 
authorized Forest officer shall consult with that agency prior to 
authorizing modification, waiver, or exception.
    (d) Notice of decision. (1) When the review of a stipulation 
modification, waiver, or exception request has been completed and the 
authorized Forest officer has reached a decision, the authorized Forest 
officer shall promptly notify the operator and the appropriate Bureau of 
Land Management office, in writing, of the decision to grant, or grant 
with additional conditions, or deny the request.
    (2) Any decision to modify, waive, or grant an exception to a lease 
stipulation shall be subject to administrative appeal only in 
conjunction with an appeal of a decision on a surface use plan of 
operation or supplemental surface use plan of operation.

              Authorization of Occupancy Within a Leasehold



Sec. 228.105  Issuance of onshore orders and notices to lessees.

    (a) Onshore oil and gas orders. The Chief of the Forest Service may 
issue, or cosign with the Director, Bureau of Land Management, Onshore 
Oil and Gas Orders necessary to implement and supplement the regulations 
of this subpart.

[[Page 179]]

    (1) Adoption of Onshore Oil and Gas Order No. 1. Until such time as 
another order is adopted and codified in the CFR, operators shall submit 
surface use plans of operations in accordance with Section III.G.4(b), 
Guidelines for preparing surface use program, of the Department of the 
Interior, Bureau of Land Management, Onshore Oil and Gas Order No. 1, 48 
FR 48915-30 (Oct. 21, 1983), published as Appendix A to this subpart.
    (2) Adoption of additional onshore oil and gas orders. Additional 
onshore oil and gas orders shall be published in the Federal Register 
for public comment and codified in the CFR.
    (3) Applicability of onshore oil and gas orders. Onshore Oil and Gas 
Orders issued pursuant to this section are binding on all operations 
conducted on National Forest System lands, unless otherwise provided 
therein.
    (b) Notices to lessees, transferees, and operators. The authorized 
Forest officer may issue, or cosign with the authorized officer of the 
Bureau of Land Management, Notices to Lessees, Transferees, and 
Operators necessary to implement the regulations of this subpart. 
Notices to Lessees, Transferees, and Operators are binding on all 
operations conducted on the administrative unit of the National Forest 
System (36 CFR 200.2) supervised by the authorized Forest officer who 
issued or cosigned such notice.



Sec. 228.106  Operator's submission of surface use plan of operations.

    (a) General. No permit to drill on a Federal oil and gas lease for 
National Forest System lands may be granted without the analysis and 
approval of a surface use plan of operations covering proposed surface 
disturbing activities. An operator must obtain an approved surface use 
plan of operations before conducting operations that will cause surface 
disturbance. The operator shall submit a proposed surface use plan of 
operations as part of an Application for a Permit to Drill to the 
appropriate Bureau of Land Management office for forwarding to the 
Forest Service, unless otherwise directed by the Onshore Oil and Gas 
Order in effect when the proposed plan of operations is submitted.
    (b) Preparation of plan. In preparing a surface use plan of 
operations, the operator is encouraged to contact the local Forest 
Service office to make use of such information as is available from the 
Forest Service concerning surface resources and uses, environmental 
considerations, and local reclamation procedures.
    (c) Content of plan. The type, size, and intensity of the proposed 
operations and the sensitivity of the surface resources that will be 
affected by the proposed operations determine the level of detail and 
the amount of information which the operator includes in a proposed plan 
of operations. However, any surface use plan of operations submitted by 
an operator shall contain the information specified by the Onshore Oil 
and Gas Order in effect when the surface use plan of operations is 
submitted.
    (d) Supplemental plan. An operator must obtain an approved 
supplemental surface use plan of operations before conducting any 
surface disturbing operations that are not authorized by a current 
approved surface use plan of operations. The operator shall submit a 
proposed supplemental surface use plan of operations to the appropriate 
Bureau of Land Management office for forwarding to the Forest Service, 
unless otherwise directed by the Onshore Oil and Gas Order in effect 
when the proposed supplemental plan of operations is submitted. The 
supplemental plan of operations need only address those operations that 
differ from the operations authorized by the current approved surface 
use plan of operations. A supplemental plan is otherwise subject to the 
same requirements under this subpart as an initial surface use plan of 
operations.



Sec. 228.107  Review of surface use plan of operations.

    (a) Review. The authorized Forest officer shall review a surface use 
plan of operations as promptly as practicable given the nature and scope 
of the proposed plan. As part of the review, the authorized Forest 
officer shall comply with the National Environmental Policy Act of 1969, 
implementing regulations at 40 CFR parts 1500-1508, and the Forest 
Service implementing policies

[[Page 180]]

and procedures set forth in Forest Service Manual Chapter 1950 and 
Forest Service Handbook 1909.15 and shall ensure that:
    (1) The surface use plan of operations is consistent with the lease, 
including the lease stipulations, and applicable Federal laws;
    (2) To the extent consistent with the rights conveyed by the lease, 
the surface use plan of operations is consistent with, or is modified to 
be consistent with, the applicable current approved forest land and 
resource management plan;
    (3) The surface use plan of operations meets or exceeds the surface 
use requirements of Sec. 228.108 of this subpart; and
    (4) The surface use plan of operations is acceptable, or is modified 
to be acceptable, to the authorized Forest officer based upon a review 
of the environmental consequences of the operations.
    (b) Decision. The authorized Forest officer shall make a decision on 
the approval of a surface use plan of operations as follows:
    (1) If the authorized Forest officer will not be able to make a 
decision on the proposed plan within 3 working days after the conclusion 
of the 30-day notice period provided for by 30 U.S.C. 226(f), the 
authorized Forest officer shall advise the appropriate Bureau of Land 
Managemnt office and the operator as soon as such delay becomes 
apparent, either in writing or orally with subsequent written 
confirmation, that additional time will be needed to process the plan. 
The authorized Forest officer shall explain the reason why additional 
time is needed and project the date by which a decision on the plan will 
likely be made.
    (2) When the review of a surface use plan of operations has been 
completed, the authorized Forest officer shall promptly notify the 
operator and the appropriate Bureau of Land Management office, in 
writting, that:
    (i) The plan is approved as submitted:
    (ii) The plan is approved subject to specified conditions; or,
    (iii) The plan is disapproved for the reasons stated.
    (c) Notice of decision. The authorized Forest officer shall give 
public notice of the decision on a pan and include in the notice that 
the decision is subject to appeal under the administrative appeal 
procedures at 36 CFR parts 217 and 251, subpart C.
    (d) Transmittal of decision. The authorized Forest officer shall 
immediately forward a decision on a surface use plan of operations to 
the appropriate Bureau of Land Management office and the operator. This 
transmittal shall include the estimated cost of reclamation and 
restoration (Sec. 228.109(a)) if the authorized Forest officer believes 
that additional bonding is required.
    (e) Supplemental plans. A supplemental surface use plan of 
operations (Sec. 228.106(d)) shall be reviewed in the same manner as an 
initial surface use plan of operations.



Sec. 228.108  Surface use requirements.

    (a) General. The operator shall conduct operations on a leasehold on 
National Forest System lands in a manner that minimizes effects on 
surface resources, prevents unnecessary or unreasonable surface resource 
disturbance, and that is in compliance with the other requirements of 
this section.
    (b) Notice of operations. The operator must notify the authorized 
Forest officer 48 hours prior to commencing operations or resuming 
operations following their temporary cessation (Sec. 228.111).
    (c) Access facilities. The operator shall construct and maintain 
access facilities to assure adequate drainage and to minimize or prevent 
damage to surface resources.
    (d) Cultural and historical resources. The operator shall report 
findings of cultural and historical resources to the authorized Forest 
officer immediately and, except as otherwise authorized in an approved 
surface use plan of operations, protect such resources.
    (e) Fire prevention and control. To the extent practicable, the 
operator shall take measures to prevent uncontrolled fires on the area 
of operation and to suppress uncontrolled fires resulting from the 
operations.
    (f) Fisheries, wildlife and plant habitat. The operator shall comply 
with the requirements of the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) and its implementing regulations (50 CFR chapter IV), and, 
except as otherwise

[[Page 181]]

provided in an approved surface use plan of operations, conduct 
operations in such a manner as to maintain and protect fisheries, 
wildlife, and plant habitat.
    (g) Reclamation. (1) Unless otherwise provided in an approved 
surface use plan of operations, the operator shall conduct reclamation 
concurrently with other operations.
    (2) Within 1 year of completion of operations on a portion of the 
area of operation, the operator must reclaim that portion, unless a 
different period of time is approved in writing by the authorized Forest 
officer.
    (3) The operator must:
    (i) Control soil erosion and landslides;
    (ii) Control water runoff;
    (iii) Remove, or control, solid wastes, toxic substances, and 
hazardous substances;
    (iv) Reshape and revegetate disturbed areas;
    (v) Remove structures, improvements, facilities and equipment, 
unless otherwise authorized; and
    (vi) Take such other reclamation measures as specified in the 
approved surface use plan of operations.
    (h) Safety measures. (1) The operator must maintain structures, 
facilities, improvements, and equipment located on the area of operation 
in a safe and neat manner and in accordance with an approved surface use 
plan of operations.
    (2) The operator must take appropriate measures in accordance with 
applicable Federal and State laws and regulations to protect the public 
from hazardous sites or conditions resulting from the operations. Such 
measures may include, but are not limited to, posting signs, building 
fences, or otherwise identifyng the hazardous site or condition.
    (i) Wastes. The operator must either remove garbage, refuse, and 
sewage from National Forest System lands or treat and dispose of that 
material in such a manner as to minimize or prevent adverse impacts on 
surface resources. The operator shall treat or dispose of produced 
water, drilling fluid, and other waste generated by the operations in 
such a manner as to minimize or prevent adverse impacts on surface 
resources.
    (j) Watershed protection. (1) Except as otherwise provided in the 
approved surface use plan of operations, the operator shall not conduct 
operations in areas subject to mass soil movement, riparian areas and 
wetlands.
    (2) The operator shall take measures to minimize or prevent erosion 
and sediment production. Such measures include, but are not limited to, 
siting structures, facilities, and other improvements to avoid steep 
slopes and excessive clearing of land.



Sec. 228.109  Bonds.

    (a) General. As part of the review of a proposed surface use plan of 
operations, the authorized Forest officer shall consider the estimated 
cost to the Forest Service to reclaim those areas that would be 
disturbed by operations and to restore any lands or surface waters 
adversely affected by the lease operations after the abandonment or 
cessation of operations on the lease. If at any time prior to or during 
the conduct of operations, the authorized Forest officer determines the 
financial instrument held by the Bureau of Land Management is not 
adequate to ensure complete and timely reclamation and restoration, the 
authorized Forest officer shall give the operator the option of either 
increasing the financial instrument held by the Bureau of Land 
Management or filing a separate instrument with the Forest Service in 
the amount deemed adequate by the authorized Forest officer to ensure 
reclamation and restoration.
    (b) Standards for estimating reclamation costs. The authorized 
Forest officer shall consider the costs of the operator's proposed 
reclamation program and the need for additional measures to be taken 
when estimating the cost to the Forest Service to reclaim the disturbed 
area.
    (c) Release of reclamation liability. An operator may request the 
authorized Forest officer to notify the Bureau of Land Management of 
reduced reclamation liability at any time after reclamation has 
commenced. The authorized Forest officer shall, if appropriate, notify 
the Bureau of Land Management

[[Page 182]]

as to the amount to which the liability has been reduced.



Sec. 228.110  Indemnification.

    The operator and, if the operator does not hold all of the interest 
in the applicable lease, all lessees and transferees are jointly and 
severally liable in accordance with Federal and State laws for 
indemnifying the United States for:
    (a) Injury, loss or damage, including fire suppression costs, which 
the United States incurs as a result of the operations; and
    (b) Payments made by the United States in satisfaction of claims, 
demands or judgments for an injury, loss or damage, including fire 
suppression costs, which result from the operations.

                      Administration of Operations



Sec. 228.111  Temporary cessation of operations.

    (a) General. As soon as it becomes apparent that there will be a 
temporary cessation of operations for a period of 45 days or more, the 
operator must verbally notify and subsequently file a statement with the 
authorized Forest officer verifying the operator's intent to maintain 
structures, facilities, improvements, and equipment that will remain on 
the area of operation during the cessation of operations, and specifying 
the expected date by which operations will be resumed.
    (b) Seasonal shutdowns. The operator need not file the statement 
required by paragraph (a) of this section if the cessation of operations 
results from seasonally adverse weather conditions and the operator will 
resume operations promptly upon the conclusion of those adverse weather 
conditions.
    (c) Interim measures. The authorized Forest officer may require the 
operator to take reasonable interim reclamation or erosion control 
measures to protect surface resources during temporary cessations of 
operations, including during cessations of operations resulting from 
seasonally adverse weather conditions.



Sec. 228.112  Compliance and inspection.

    (a) General. Operations must be conducted in accordance with the 
lease, including stipulations made part of the lease at the direction of 
the Forest Service, an approved surface use plan of operations, the 
applicable Onshore Oil and Gas Order (Sec. 228.105(a)), an applicable 
Notice to lessees, transferees, and operators (Sec. 228.105(b)), and 
regulations of this subpart.
    (b) Completion of reclamation. The authorized Forest officer shall 
give prompt written notice to an operator whenever reclamation of a 
portion of the area affected by surface operations has been 
satisfactorily completed in accordance with the approved surface use 
plan of operations and Sec. 228.108 of this subpart. The notice shall 
describe the portion of the area on which the reclamation has been 
satisfactorily completed.
    (c) Compliance with other statutes and regulations. Nothing in this 
subpart shall be construed to relieve an operator from complying with 
applicable Federal and State laws or regulations, including, but not 
limited to:
    (1) Federal and State air quality standards, including the 
requirements of the Clean Air Act, as amended (42 U.S.C. 1857 et seq.);
    (2) Federal and State water quality standards, including the 
requirements of the Federal Water Pollution Control Act, as amended (33 
U.S.C. 1151 et seq.);
    (3) Federal and State standards for the use or generation of solid 
wastes, toxic substances and hazardous substances, including the 
requirements of the Comprehensive Environmental Response, Compensation 
and Liability Act, as amended, 42 U.S.C. 9601 et seq., and its 
implementing regulations, 40 CFR chapter I, subchapter J, and the 
Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq., and its 
implementing regulations, 40 CFR chapter I, subchaper I;
    (4) The Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., and 
its implementing regulations, 50 CFR chapter IV;
    (5) The Archeological Resources Protection Act of 1979, as amended 
(16 U.S.C. 470aa et seq.) and its implementing regulations 36 CFR part 
296;

[[Page 183]]

    (6) The Mineral Leasing Act of 1920, 30 U.S.C. 1981 et seq., the 
Mineral Leasing Act of Acquired Lands of 1947, 30 U.S.C. 351 et seq., 
the Federal Oil and Gas Royalty Management Act of 1982, 30 U.S.C. 1701 
et seq., and their implementing regulations, 43 CFR chapter II, group 
3100; and
    (7) Applicable Onshore Oil and Gas Orders and Notices to Lessees and 
Operators (NTL's) issued by the United States Department of the 
Interior, Bureau of Land Management pursuant to 43 CFR chapter II, part 
3160, subpart 3164.
    (d) Penalties. If surface disturbing operations are being conducted 
that are not authorized by an approved surface use plan of operations or 
that violate a term or operating condition of an approved surface use 
plan of operations, the person conducting those operations is subject to 
the prohibitions and attendant penalties of 36 CFR part 261.
    (e) Inspection. Forest Service officers shall periodically inspect 
the area of operations to determine and document whether operations are 
being conducted in compliance with the regulations in this subpart, the 
stipulations included in the lease at the direction of the Forest 
Service, the approved surface use plan of operations, the applicable 
Onshore Oil and Gas Order, and applicable Notices to Lessees, 
Transferees, and Operators.



Sec. 228.113  Notice of noncompliance.

    (a) Issuance. When an authorized Forest officer finds that the 
operator is not in compliance with a reclamation or other standard, a 
stipulation included in a lease at the direction of the Forest Service, 
an approved surface use plan of operation, the regulations in this 
subpart, the applicable onshore oil and gas order, or an applicable 
notice to lessees, transferees, and operators, the authorized Forest 
officer shall issue a notice of noncompliance.
    (1) Content. The notice of noncompliance shall include the 
following:
    (i) Identification of the reclamation requirements or other 
standard(s) with which the operator is not in compliance;
    (ii) Description of the measures which are required to correct the 
noncompliance;
    (iii) Specification of a reasonable period of time within which the 
noncompliance must be corrected;
    (iv) If the noncompliance appears to be material, identification of 
the possible consequences of continued noncompliance of the 
requirement(s) or standard(s) as described in 30 U.S.C. 226(g);
    (v) If the noncompliance appears to be in violation of the 
prohibitions set forth in 36 CFR part 261, identification of the 
possible consequences of continued noncompliance of the requirement(s) 
or standard(s) as described in 36 CFR 261.1b; and
    (vi) Notification that the authorized Forest officer remains willing 
and desirous of working cooperatively with the operator to resolve or 
remedy the noncompliance.
    (2) Extension of deadlines. The operator may request an extension of 
a deadline specified in a notice of noncompliance if the operator is 
unable to come into compliance with the applicable requirement(s) or 
standard(s) identified in the notice of noncompliance by the deadline 
because of conditions beyond the operator's control. The authorized 
Forest officer shall not extend a deadline specified in a notice of 
noncompliance unless the operator requested an extension and the 
authorized Forest officer finds that there was a condition beyond the 
operator's control, that such condition prevented the operator from 
complying with the notice of noncompliance by the specified deadline, 
and that the extension will not adversely affect the interests of the 
United States. Conditions which may be beyond the operator's control 
include, but are not limited to, closure of an area in accordance with 
36 CFR part 261, subparts B or C, or inaccessibility of an area of 
operations due to such conditions as fire, flooding, or snowpack.
    (3) Manner of service. The authorized Forest officer shall serve a 
notice of noncompliance or a decision on a request for extension of a 
deadline specified in a notice upon the operator in person, by certified 
mail or by telephone. However, if notice is initially provided in person 
or by telephone, the authorized Forest officer shall send the

[[Page 184]]

operator written confirmation of the notice or decision by certified 
mail.
    (b) Failure to come into compliance. If the operator fails to come 
into compliance with the applicable requirement(s) or standard(s) 
identified in a notice of noncompliance by the deadline specified in the 
notice, or an approved extension, the authorized Forest officer shall 
decide whether: The noncompliance appears to be material given the 
reclamation requirements and other standards applicable to the lease 
established by 30 U.S.C. 226(g), the regulations in this subpart, the 
stipulations included in a lease at the direction of the Forest Service, 
an approved surface use plan of operations, the applicable Onshore Oil 
and Gas Order, or an applicable Notice to lessees, transferees, and 
operators; the noncompliance is likely to result in danger to public 
health or safety or irreparable resource damage; and the noncompliance 
is resulting in an emergency.
    (1) Referral to compliance officer. When the operations appear to be 
in material noncompliance, the authorized Forest officer shall promptly 
refer the matter to the compliance officer. The referral shall be 
accompanied by a complete statement of the facts supported by 
appropriate exhibits. Apparent material noncompliance includes, but is 
not limited to, operating without an approved surface use plan of 
operations, conducting operations that have been suspended, failure to 
timely complete reclamation in accordance with an approved surface use 
plan of operations, failure to maintain an additional bond in the amount 
required by the authorized Forest officer during the period of 
operation, failure to timely reimburse the Forest Service for the cost 
of abating an emergency, and failing to comply with any term included in 
a lease, stipulation, or approved surface use plan of operations, the 
applicable onshore oil and gas order, or an applicable Notice to 
lessees, transferees, and operators, relating to the protection of a 
threatened or endangered species.
    (2) Suspension of operations. When the noncompliance is likely to 
result in danger to public health or safety or in irreparable resource 
damage, the authorized Forest officer shall suspend the operations, in 
whole or in part.
    (i) A suspension of operations shall remain in effect until the 
authorized Forest officer determines that the operations are in 
compliance with the applicable requirement(s) or standard(s) identified 
in the notice of noncompliance.
    (ii) The authorized Forest officer shall serve decisions suspending 
operations upon the operator in person, by certified mail, or by 
telephone. If notice is initially provided in person or by telephone, 
the authorized Forest officer shall send the operator written 
confirmation of the decision by certified mail.
    (iii) The authorized Forest officer shall immediately notify the 
appropriate Bureau of Land Management office when an operator has been 
given notice to suspend operations.
    (3) Abatement of emergencies. When the noncompliance is resulting in 
an emergency, the authorized Forest officer may take action as necessary 
to abate the emergency. The total cost to the Forest Service of taking 
actions to abate an emergency becomes an obligation of the operator.
    (i) Emergency situations include, but are not limited to, imminent 
dangers to public health or safety or irreparable resource damage.
    (ii) The authorized Forest officer shall promptly serve a bill for 
such costs upon the operator by certified mail.



Sec. 228.114  Material noncompliance proceedings.

    (a) Evaluation of referral. The compliance officer shall promptly 
evaluate a referral made by the authorized Forest officer pursuant to 
Sec. 228.113(b)(1) of this subpart.
    (b) Dismissal of referral. The compliance officer shall dismiss the 
referral if the compliance officer determines that there is not adequate 
evidence to support a reasonable belief that:
    (1) The operator was not in compliance with the applicable 
requirement(s) or standard(s) identified in a notice of noncompliance by 
the deadline specified in the notice, or an extension approved by the 
authorized Forest officer; or

[[Page 185]]

    (2) The noncompliance with the applicable requirement(s) or 
standard(s) identified in the notice of noncompliance may be material.
    (c) Initiation of proceedings. The compliance officer shall initiate 
a material noncompliance proceeding if the compliance officer agrees 
that there is adequate evidence to support a reasonable belief that an 
operator has failed to come into compliance with the applicable 
requirement(s) or standard(s) identified in a notice of noncompliance by 
the deadline specified in the notice, or extension approved by the 
authorized Forest officer, and that the noncompliance may be material.
    (1) Notice of proceedings. The compliance officer shall inform the 
lessee and operator of the material noncompliance proceedings by 
certified mail, return receipt requested.
    (2) Content of notice. The notice of the material noncompliance 
proceeding shall include the following:
    (i) The specific reclamation requirement(s) or other standard(s) of 
which the operator may be in material noncompliance;
    (ii) A description of the measures that are required to correct the 
violation;
    (iii) A statement that if the compliance officer finds that the 
operator is in material noncompliance with a reclamation requirement or 
other standard applicable to the lease, the Secretary of the Interior 
will not be able to issue new leases or approve new transfers of leases 
to the operator, any subsidiary or affiliate of the operator, or any 
person controlled by or under common control with the operator until the 
compliance officer finds that the operator has come into compliance with 
such requirement or standard; and
    (iv) A recitation of the specific procedures governing the material 
noncompliance proceeding set forth in paragraphs (d) through (g) of this 
section.
    (d) Answer. Within 30 calendar days after receiving the notice of 
the proceeding, the operator may submit, in person, in writing, or 
through a representative, an answer containing information and argument 
in opposition to the proposed material noncompliance finding, including 
information that raises a genuine dispute over the material facts. In 
that submission, the operator also may:
    (1) Request an informal hearing with the compliance officer; and
    (2) Identify pending administrative or judicial appeal(s) which are 
relevant to the proposed material noncompliance finding and provide 
information which shows the relevance of such appeal(s).
    (e) Informal hearing. If the operator requests an informal hearing, 
it shall be held within 20 calendar days from the date that the 
compliance officer receives the operator's request.
    (1) The compliance officer may postpone the date of the informal 
hearing if the operator requests a postponement in writing.
    (2) At the hearing, the operator, appearing personally or through an 
attorney or another authorized representative, may informally present 
and explain evidence and argument in opposition to the proposed material 
noncompliance finding.
    (3) A transcript of the informal hearing shall not be required.
    (f) Additional procedures as to disputed facts. If the compliance 
officer finds that the answer raises a genuine dispute over facts 
essential to the proposed material noncompliance finding, the compliance 
officer shall so inform the operator by certified mail, return receipt 
requested. Within 10 days of receiving this notice, the operator may 
request a fact-finding conference on those disputed facts.
    (1) The fact-finding conference shall be scheduled within 20 
calendar days from the date the compliance officer receives the 
operator's request, unless the operator and compliance officer agree 
otherwise.
    (2) At the fact-finding conference, the operator shall have the 
opportunity to appear with counsel, submit documentary evidence, present 
witnesses, and confront the person(s) the Forest Service presents.
    (3) A transcribed record of the fact-finding conference shall be 
made, unless the operator and the compliance officer by mutual agreement 
waive the requirement for a transcript. The transcript will be made 
available to the operator at cost upon request.

[[Page 186]]

    (4) The compliance officer may preside over the fact-finding 
conference or designate another authorized Forest officer to preside 
over the fact-finding conference.
    (5) Following the fact-finding conference, the authorized Forest 
officer who presided over the conference shall promptly prepare written 
findings of fact based upon the preponderance of the evidence. The 
compliance officer may reject findings of fact prepared by another 
authorized Forest officer, in whole or in part, if the compliance 
officer specifically determines that such findings are arbitrary and 
capricious or clearly erroneous.
    (g) Dismissal of proceedings. The compliance officer shall dismiss 
the material noncompliance proceeding if, before the compliance officer 
renders a decision pursuant to paragraph (h) of this section, the 
authorized Forest officer who made the referral finds that the operator 
has come into compliance with the applicable requirements or standards 
identified in the notice of proceeding.
    (h) Compliance officer's decision. The compliance officer shall base 
the decision on the entire record, which shall consist of the authorized 
Forest officer's referral and its accompanying statement of facts and 
exhibits, information and argument that the operator provided in an 
answer, any information and argument that the operator provided in an 
informal hearing if one was held, and the findings of fact if a fact-
finding conference was held.
    (1) Content. The compliance officer's decision shall state whether 
the operator has violated the requirement(s) or standard(s) identified 
in the notice of proceeding and, if so, whether that noncompliance is 
material given the requirements of 30 U.S.C. 226(g), the stipulations 
included in the lease at the direction of the Forest Service, the 
regulations in this subpart or an approved surface use plan of 
operations, the applicable onshore oil and gas order, or an applicable 
notice to lessees, transferees, and operators. If the compliance officer 
finds that the operator is in material noncompliance, the decision also 
shall:
    (i) Describe the measures that are required to correct the 
violation;
    (ii) Apprise the operator that the Secretary of the Interior is 
being notified that the operator has been found to be in material 
noncompliance with a reclamation requirement or other standard 
applicable to the lease; and
    (iii) State that the decision is the final administrative 
determination of the Department of Agriculture.
    (2) Service. The compliance officer shall serve the decision upon 
the operator by certified mail, return receipt requested. If the 
operator is found to be in material noncompliance, the compliance 
officer also shall immediately send a copy of the decision to the 
appropriate Bureau of Land Management office and to the Secretary of the 
Interior.
    (i) Petition for withdrawal of finding. If an operator who has been 
found to be in material noncompliance under the provisions of this 
section believes that the operations have subsequently come into 
compliance with the applicable requirement(s) or standard(s) identified 
in the compliance officer's decision, the operator may submit a written 
petition requesting that the material noncompliance finding be 
withdrawn. The petition shall be submitted to the authorized Forest 
officer who issued the operator the notice of noncompliance under 
Sec. 228.113(a) of this subpart and shall include information or 
exhibits which shows that the operator has come into compliance with the 
requirement(s) or standard(s) identified in the compliance officer's 
decision.
    (1) Response to petition. Within 30 calendar days after receiving 
the operator's petition for withdrawal, the authorized Forest officer 
shall submit a written statement to the compliance officer as to whether 
the authorized Forest officer agrees that the operator has come into 
compliance with the requirement(s) or standard(s) identified in the 
compliance officer's decision. If the authorized Forest officer 
disagrees with the operator, the written statement shall be accompanied 
by a complete statement of the facts supported by appropriate exhibits.
    (2) Additional procedures as to disputed material facts. If the 
compliance officer finds that the authorized Forest officer's response 
raises a genuine dispute over facts material to the decision as

[[Page 187]]

to whether the operator has come into compliance with the requirement(s) 
or standard(s) identified in the compliance officer's decision, the 
compliance officer shall so notify the operator and authorized Forest 
officer by certified mail, return receipt requested. The notice shall 
also advise the operator that the fact finding procedures specified in 
paragraph (f) of this section apply to the compliance officer's decision 
on the petition for withdrawal.
    (3) Compliance officer's decision. The compliance officer shall base 
the decision on the petition on the entire record, which shall consist 
of the operator's petition for withdrawal and its accompanying exhibits, 
the authorized Forest officer's response to the petition and, if 
applicable, its accompanying statement of facts and exhibits, and if a 
fact-finding conference was held, the findings of fact. The compliance 
officer shall serve the decision on the operator by certified mail.
    (i) If the compliance officer finds that the operator remains in 
violation of requirement(s) or standard(s) identified in the decision 
finding that the operator was in material noncompliance, the decision on 
the petition for withdrawal shall identify such requirement(s) or 
standard(s) and describe the measures that are required to correct the 
violation(s).
    (ii) If the compliance officer finds that the operator has 
subsequently come into compliance with the requirement(s) or standard(s) 
identified in the compliance officer's decision finding that the 
operator was in material noncompliance, the compliance officer also 
shall immediately send a copy of the decision on the petition for 
withdrawal to the appropriate Bureau of Land Management office and 
notify the Secretary of the Interior that the operator has come into 
compliance.
    (j) List of operators found to be in material noncompliance. The 
Deputy Chief, National Forest System, shall compile and maintain a list 
of operators who have been found to be in material noncompliance with 
reclamation requirements and other standards as provided in 30 U.S.C. 
226(g), the regulations in this subpart, a stipulation included in a 
lease at the direction of the Forest Service, or an approved surface use 
plan of operations, the applicable onshore oil and gas order, or an 
applicable notice to lessees, transferees, and operators, for a lease on 
National Forest System lands to which such standards apply. This list 
shall be made available to Regional Foresters, Forest Supervisors, and 
upon request, members of the public.



Sec. 228.115  Additional notice of decisions.

    (a) The authorized Forest officer shall promptly post notices 
provided by the Bureau of Land Management of:
    (1) Competitive lease sales which the Bureau plans to conduct that 
include National Forest System lands;
    (2) Substantial modifications in the terms of a lease which the 
Bureau proposes to make for leases on National Forest System lands; and
    (3) Applications for permits to drill which the Bureau has received 
for leaseholds located on National Forest System lands.
    (b) The notice shall be posted at the offices of the affected Forest 
Supervisor and District Ranger in a prominent location readily 
accessible to the public.
    (c) The authorized Forest officer shall keep a record of the date(s) 
the notice was posted in the offices of the affected Forest Supervisor 
and District Ranger.
    (d) The posting of notices required by this section are in addition 
to the requirements for public notice of decisions provided in 
Sec. 228.104(d) (Notice of decision) and Sec. 228.107(c) (Notice of 
decision) of this subpart.



Sec. 228.116  Information collection requirements.

    (a) Sections containing information requirements. The following 
sections of this subpart contain information requirements as defined in 
5 CFR part 1320 and have been approved for use by the Office of 
Management and Budget:
    (1) Section 228.104(a) Requests to Modify, Waive, or Grant 
Exceptions to Leasing Stipulations;
    (2) Section 228.106 (a), (c), and (d) Submission of Surface Use Plan 
of Operations;

[[Page 188]]

    (3) Section 228.109(c) Request for Reduction in Reclamation 
Liability after Reclamation;
    (4) Section 228.111(a) Notice of Temporary Cessation of Operations;
    (5) Section 228.113(a)(2) Extension of Deadline in Notice of 
Noncompliance; and
    (6) Section 228.114 (c) through (i) Material Noncompliance 
Proceedings.
    (b) OMB control number. The information requirements listed in 
paragraph (a) of this section have been assigned OMB Control No. 0596-
0101.
    (c) Average estimated burden hours. (1) The average burden hours per 
response are estimated to be:
    (i) 5 minutes for the information requirements in Sec. 228.104(a) of 
this subpart;
    (ii) No additional burden hours required to meet the information 
requirements in Sec. 228.106 (a), (c), and (d) of this subpart;
    (iii) 10 minutes for the information requirements in Sec. 228.109(c) 
of this subpart;
    (iv) 10 minutes for the information requirements in Sec. 228.111(a) 
of this subpart;
    (v) 5 minutes for the information requirements in Sec. 228.113(a)(2) 
of this subpart; and
    (vi) 2 hours for the information requirements in Sec. 228.114 (c) 
through (i) of this subpart.
    (2) Send comments regarding the burden estimate or any other aspect 
of this collection of information, including suggestions for reducing 
this burden, to Chief (2800), Forest Service, USDA, P.O. Box 96090, 
Washington, DC 20090-6090 and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Washington, DC 
20503.

 Appendix A to Subpart E of Part 228--Guidelines for Preparing Surface 
                   Use Plans of Operation for Drilling

       I. Components of a Complete Application for Permit to Drill

    (a) Guidelines for Preparing Surface Use Program. In preparing this 
program, the lessee or operator shall submit maps, plats, and narrative 
descriptions which adhere closely to the following (maps and plats 
should be of a scale no smaller than 1:24,000 unless otherwise stated 
below):
    (1) Existing Roads. A legible map (USGS topographic, county road, 
Alaska Borough, or other such map), labeled and showing the access route 
to the location, shall be used for locating the proposed well site in 
relation to a town (village) or other locatable point, such as a highway 
or county road, which handles the majority of the through traffic to the 
general area. The proposed route to the location, including appropriate 
distances from the point where the access route exits established roads, 
shall be shown. All access roads shall be appropriately labeled. Any 
plans for improvement and/or a statement that existing roads will be 
maintained in the same or better condition shall be provided. Existing 
roads and newly constructed roads on surface under the jurisdiction of a 
Surface Management Agency shall be maintained in accordance with the 
standards of the Surface Management Agency.
    Information required by items (2), (3), (4), (5), (6), and (8) of 
this subsection also may be shown on this map if appropriately labeled 
or on a separate plat or map.
    (2) Access Roads to Be Constructed and Reconstructed. All permanent 
and temporary access roads that are to be constructed, or reconstructed, 
in connection with the drilling of the proposed well shall be 
appropriately identified and submitted on a map or plat. Width, maximum 
grade, major cuts and fills, turnouts, drainage design, location and 
size of culverts and/or bridges, fence cuts and/or cattleguards, and 
type of surfacing material, if any, shall be stated for all 
construction. In addition, where permafrost exists, the methods for 
protection from thawing must be indicated. Modification of proposed road 
design may be required during the onsite inspection.
    Information also should be furnished to indicate where existing 
facilities may be altered or modified. Such facilities include gates, 
cattleguards, culverts, and bridges which, if installed or replaced, 
shall be designed to adequately carry anticipated loads.
    (3) Location of Existing Wells. It is recommended that this 
information be submitted on a map or plat and include all wells (water, 
injection or disposal, producing, and drilling) within a 1-mile radius 
of the proposed location.
    (4) Location of Existing and/or Proposed Facilities if Well is 
Productive.
    (i) On well pad--A map or plat shall be included showing, to the 
extent known or anticipated, the location of all production facilities 
and lines to be installed if the well is successfully completed for 
production.
    (ii) Off well pad--A map or plat shall be included showing to the 
extent known or anticipated, the existing or new production facilities 
to be utilized and the lines to be installed if the well is successfully 
completed

[[Page 189]]

for production. If new construction, the dimensions of the facility 
layout are to be shown.
    If the information required under (a) or (b) above is not known and 
cannot be accurately presented and the well subsequently is completed 
for production, the operator shall then comply with section IV of this 
Order.
    (5) Location and Type of Water Supply (Rivers, Creeks, Springs, 
Lakes, Ponds, and Wells). This information may be shown by quarter-
quarter section on a map or plat, or may be a written description. The 
source and transportation method for all water to be used in drilling 
the proposed well shall be noted if the source is located on Federal or 
Indian lands or if water is to be used from a Federal or Indian project. 
If the water is obtained from other than Federal or Indian lands, only 
the location need be identified. Any access roads crossing Federal or 
Indian lands that are needed to haul the water shall be described in 
items G.4.b. (1) and (2), as appropriate. If a water supply well is to 
be drilled on the lease, it shall be so stated under this item, and the 
authorized officer of the BLM may require the filing of a separate APD.
    (6) Construction Materials. The lessee or operator shall state the 
character and intended use of all construction materials such as sand, 
gravel, stone and soil material. If the materials to be used are 
Federally-owned, the proposed source shall be shown by either quarter-
quarter section on a map or plat, or a written description. The use of 
materials under BLM jurisdiction is governed by 43 CFR 3610.2-3. The 
authorized officer shall inform the lessee or operator if the materials 
may be used free of charge or if an application for sale is required. If 
the materials to be used are Indian owned or under the jurisdiction of 
any Surface Management Agency other than BLM, the specific tribe and or 
Area Superintendent of BIA, or the appropriate Surface Management Agency 
office shall be contacted to determine the appropriate procedure for use 
of the materials.
    (7) Methods for Handling Waste Disposal. A written description shall 
be given of the methods and locations proposed for safe containment and 
disposal of each type of waste material (e.g., cuttings, garbage, salts, 
chemicals, sewage, etc.) that results from the drilling of the proposed 
well. Likewise, the narrative shall include plans for the eventual 
disposal of drilling fluids and any produced oil or water recovered 
during testing operations.
    (8) Ancillary Facilities. The plans, or subsequent amendments to 
such plans, shall identify all ancillary facilities such as camps and 
airstrips as to their location, land area required, and the methods and 
standards to be employed in their construction. Such facilities shall be 
shown on a map or plat. The approximate center of proposed camps and the 
center line of airstrips shall be staked on the ground.
    (9) Well Site Layout. A plat of suitable scale (not less than 1 
inch=50 feet) showing the proposed drill pad and its location with 
respect to topographic features is required. Cross section diagrams of 
the drill pad showing any cuts and fills and the relation to topography 
are also required. The plat shall also include the approximate proposed 
location of the reserve and burn pits, access roads onto the pad, 
turnaround areas, parking area, living facilities, soil material 
stockpiles, and the orientation of the rig with respect to the pad and 
other facilities. Plans, if any to line the reserve pit should be 
detailed.
    (10) Plans for Reclamation of the Surface. The program for surface 
reclamation upon completion of the operation, such as configuration of 
the reshaped topography, drainage system, segregation of spoil 
materials, surface manipulations, waste disposal, revegetation methods, 
and soil treatments, plus other practices necessary to reclaim all 
disturbed areas, including any access roads or portions of well pads 
when no longer needed, shall be stated. An estimate of the time for 
commencement and completion of reclamation operations, dependent on 
weather conditions and other local uses of the area, shall be provided.
    (11) Surface Ownership. The surface ownership (Federal, Indian, 
State or private) at the well location, and for all lands crossed by 
roads which are to be constructed or upgraded, shall be indicated. Where 
the surface of the well site is privately owned, the operator shall 
provide the name, address, and telephone number of the surface owner, 
unless previously provided.
    (12) Other Information. The lessee or operator is encouraged to 
submit any additional information that may be helpful in processing the 
application.
    (13) Lessee's or Operator's Representative and Certification. The 
name, address, and telephone number of the lessee's or operator's field 
representative shall be included. The lessee or operator submitting the 
APD shall certify as follows:
    I hereby certify that I, or persons under my direct supervision, 
have inspected the proposed drill site and access route; that I am 
familiar with the conditions which currently exist; that the statements 
made in this plan are, to the best of my knowledge, true and correct; 
and that the work associated with operations proposed herein will be 
performed by __________ and its contractors and subcontractors in 
conformity with this plan and the terms and conditions under which it is 
approved. This statement is subject to the provisions of 18 U.S.C. 1001 
for the filing of a false statement.

  Date__________________________________________________________________


[[Page 190]]

________________________________________________________________________
  Name and Title________________________________________________________



PART 230--STATE AND PRIVATE FORESTRY ASSISTANCE--Table of Contents




                Subpart A--Stewardship Incentive Program

Sec.
230.1  Purpose and scope.
230.2  Definitions.
230.3  National program administration.
230.4  State program administration.
230.5  Eligibility requirements.
230.6  Landowner forest stewardship plan.
230.7  Program practices.
230.8  Application and approval.
230.9  Payment to landowners.
230.10  Prohibitions.
230.11  Recapture of payment.
230.12  Reconsideration.
230.13  Information requirements.

    Authority: 16 U.S.C. 2103b, 2114.

    Source: 56 FR 63585, Dec. 4, 1991, unless otherwise noted.



                Subpart A--Stewardship Incentive Program



Sec. 230.1  Purpose and scope.

    (a) The regulations in this subpart govern the operation of the 
Stewardship Incentive Program as provided in section 6 of the 
Cooperative Forestry Assistance Act, as amended by title XII of the 
Food, Agriculture, Conservation, and Trade Act of 1990 (16 U.S.C. 2101, 
et seq.). This subpart sets forth the rules and procedures by which the 
Stewardship Incentive Program will be administered by the Forest Service 
to establish forest stewardship practices on nonindustrial private 
forest land.
    (b) The cost-share assistance provided under the Stewardship 
Incentive Program shall complement rather than replace or duplicate the 
existing Agricultural Conservation Program and Forestry Incentives 
Program. Tree planting and improvement and other State priorities for 
program activities and practices funded under the Stewardship Incentive 
Program shall be designed to provide multiple resource benefits not 
available through other cost-share programs.



Sec. 230.2  Definitions.

    As used in this subpart, the following terms shall mean:
    Act means the Cooperative Forestry Assistance Act as amended (16 
U.S.C. 2101, et seq).
    Assignee means any person, corporation, government agency, or other 
legal entity to whom a landowner transfers legal rights to receive all 
or part of federal cost-share payments.
    Chief means the Chief of the Forest Service.
    Committee means the State Forest Stewardship Coordinating Committee 
established pursuant to section 19(b)(1) of the Act.
    Fiscal year means the fiscal year of the United States Government 
which is October 1 through September 30.
    Landowner means any private individual, group, association, 
corporation, Indian tribe or other native group, or other private legal 
entity, excluding corporations whose stocks are publicly traded or legal 
entities principally engaged in the production of wood products.
    Nonindustrial private forest land means rural lands with existing 
tree cover or which are suitable for growing trees and owned by any 
landowner as defined in this subpart.
    Practice means a stewardship activity or conservation measure 
consistent with the landowner plan to accomplish the landowner's desired 
management objectives.
    Program means the Stewardship Incentive Program.
    Regional Forester means the Forest Service official charged with the 
administration of a Region of the National Forest System as described in 
36 CFR 200.2, except that with reference to the States covered by the 
Eastern Region, such term shall mean the Area Director for States and 
Private Forestry, Northeastern Area (36 CFR 200.2);
    Resource Management Professional means any person who is recognized 
by the State Forester as having the knowledge and skills to develop 
landowner plans for managing the biological, economic, and environmental 
interrelationship of forest resources and to identify appropriate 
activities to manage, protect, or enhance forest resources including, 
but not limited to, an employee of a State forestry agency, other State 
resource agency, the

[[Page 191]]

Soil Conservation Service, a consulting forester, or wildlife biologist.
    Service Representative means a resource management professional 
designated by the State Forester to perform any or all of the following 
technical assistance functions: Review and approval of landowner plans, 
determination of need and feasibility of practices, establishment of 
site specific practice specifications, certification of completion of 
practices and performance of compliance checks pursuant to this subpart.
    State means any one of the United States, the District of Columbia, 
the Commonwealth of Puerto Rico, the Virgin Islands of the United 
States, Guam, American Samoa, the Commonwealth of the North Marianas 
Islands, the Trust Territory of the Pacific Islands and the Territories 
and possessions of the United States.
    State Forester means the employee of a State responsible for 
administration and delivery of forestry and assistance within such 
State.
    USDA means the U.S. Department of Agriculture.



Sec. 230.3  National program administration.

    (a) The Chief shall develop and oversee all Program policy and 
procedure and monitor the implementation of such policy and procedure 
over the life of the Program.
    (b) The Chief shall annually distribute among the States such cost-
share funds as may be available for the Program after addressing the 
public benefit incidental to such distribution and after giving 
appropriate consideration to the following: The total acreage of 
nonindustrial private forest land in each State, the potential 
productivity of such land, the number of owners eligible for cost 
sharing in each State, the need for reforestation in each State, the 
opportunities to enhance nontimber resources on such forest lands, and 
the anticipated demand for timber and nontimber resources in each State. 
In making distributions under this paragraph, the Chief shall consult 
with a group of not less than five State Foresters selected by a 
majority of the State foresters.
    (c) Tree planting, tree maintenance, and tree improvement are 
national priorities for cost-share practices under the Programs. In 
addition to these practices, the Chief, in consultation with the State 
Foresters, may develop other national priorities for practices to be 
cost shared under the Program and shall communicate such priorities to 
guide administration of the Program.
    (d) The Chief shall review and determine approval of State plans, 
including any revisions of such plans.
    (e) The Chief, in consultation with the State Foresters, shall 
annually reevaluate and set the percentage of Program funding to be made 
available for landowner forest stewardship plan development 
(Sec. 230.7(a)(1) of this sub-part).
    (f) The Chief may enter into such agreements with any other USDA 
agency as are necessary to administer the Program. These agreements may 
include provisions authorizing the collection of Program participant 
information, the management of accounting ledgers, and the disbursement 
of payment to participants.
    (g) The Chief shall retain final authority to resolve all issues 
which may arise in the administration of the Program.



Sec. 230.4  State program administration.

    (a) In each State participating in the Program, the Secretary of 
Agriculture, in consultation with the State Forester, shall establish a 
State Forest Stewardship Coordinating Committee whose composition meets 
the requirements of section 19(b) of the Act. The Committee shall be 
chaired by the State Forester, or the designee thereof.
    (b) In each State participating in the Program, the Committee shall 
recommend to the State Forester for approval:
    (1) Stewardship Incentive Program needs within the State;
    (2) The minimum contiguous acreage of eligible nonindustrial private 
forest land, consistent with Sec. 230.5(c) of this subpart;
    (3) Those nationally approved practices that will be eligible for 
cost-share assistance within the State;

[[Page 192]]

    (4) Those nationally approved technical practices and minimum 
specifications to be used in implementing practices;
    (5) The cost-share levels, by practice, which will encourage tree 
planting, maintenance, and improvement, and other high priority 
practices within the State that will result in multiple resource 
benefits:
    (6) The fixed rate or reimbursement or designated percentage of 
total cost for practice components;
    (7) The distribution mechanism for the allocation of cost-share 
funds within the State;
    (8) The assignment of technical responsibility, by type of Program 
practice, to the appropriate Service Representative;
    (9) Guidelines for establishing annual priorities for the approval 
of landowner applications;
    (10) The mechanisms for ensuring landowner compliance with practice 
specification;
    (11) The mechanisms to monitor State participation in the Program; 
and
    (12) Any adjustments in Program guideline, administration, or 
funding levels to better achieve Program objectives within the State.
    (c) The State Forester, after giving full consideration to the 
recommendations of the Committee, shall approve Program administration 
procedures as set forth in paragraph (b) of this section. In the event a 
Committee fails to make timely recommendations with regard to any matter 
listed in paragraph (b) of this section, the State Forester is 
authorized to approve administrative procedures for implementing the 
Program without further delay.
    (d) To participate in the Program, the State Forester, in 
consultation with the Committee, shall develop a State plan that shall 
provide baseline data on the forest resources of the State; outline 
threats to the forest resources of the State; describe economic and 
environmental opportunities that are linked with the forest resources of 
the State; address management problems, opportunities, and objectives 
associated with intermingled Federal, State, and private land ownership 
patterns within the State; and make planning recommendations for 
Federal, State, and local implementation of the Act.
    (1) The State Plan shall cover a 5-year period, identify management 
goals for nonindustrial private forest lands and set priorities for 
achieving the goals and objectives identified for the State for each 
year.
    (2) State Foresters may use existing resource inventories, landowner 
surveys, and other relevant planning data to develop the State plan.
    (3) State plans shall become effective upon approval by the Chief.
    (e) The State Forester shall administer the Program within the State 
and monitor the Programs to ensure that it is achieving desired results 
and shall ensure landowner compliance with practice installation 
specifications and maintenance of the practice.
    (f) Not more than 10 percent of a State allocation of funds may be 
used to finance State Program development and administration. The State 
Forester must obtain approval from the Regional Forester of the amount 
of the State's Program allocation to be used for State Program 
development and administration.
    (g) The percent of the State's Program allocation of funds that may 
be used to cost-share the development of Landowner Forest Stewardship 
plans will be determined pursuant to Sec. 230.3(e) of this subpart. The 
State Forester must obtain approval from the Regional Forester of the 
amount of the State's Program allocation to be used for Landowner Forest 
Stewardship Plan development (Sec. 230.7(a)(1) of this subpart).
    (h) The State Forester shall document and make available for public 
inspection all determinations made in consultation with the Committee.



Sec. 230.5  Eligibility requirements.

    (a) All nonindustrial private forest landowners as defined in 
Sec. 230.2 of this subpart, including those who produce forest products 
on a part-time or intermittent basis, who meet the requirements of this 
section, are eligible to apply for and receive assistance under the 
Program without regard to race, color, religion, national origin, age, 
sex, marital status, or handicap.

[[Page 193]]

    (b) To be eligible to receive cost-share funds under the Program, a 
landowner shall own not more than a total of 1,000 acres of 
nonindustrial private forest land, except where the State Forester, with 
the concurrence of the Regional Forester, determines that significant 
public benefits would accrue from approval of a landowner owning not 
more than 5,000 acres. In making a determination of significant public 
benefits, the State Forester and the Regional Forester shall consider, 
at a minimum, whether the installation of practices by landowners who 
own more than 1,000 acres but less than 5,000 acres are necessary to 
achieve cost-effective resource management objectives without unduly 
affecting Program participation of other eligible landowners.
    (c) To be eligible to receive cost-share funds under the Program, a 
landowner shall not own less than the minimum contiguous acreage as 
established by the State Forester. However, in no case shall the minimum 
contiguous acreage requirement be higher than 25 acres.
    (d) To be eligible to receive cost-share funds under the Program, a 
landowner must agree to manage the following lands under a Landowner 
Forest Stewardship Plan prepared pursuant to Sec. 230.6 of this subpart:
    (1) All of their nonindustrial private forest land with existing 
tree cover within a contiguous tract; and
    (2) Other nonindustrial private forest land within the same 
contiguous tract which is identified by the landowner and approved by 
the Service Representative as suitable for growing trees and scheduled 
for conversion to a Program practice.
    (e) To be eligible to receive cost-share funds under the Program, a 
landowner must agree to maintain Program practices for 10 years, unless 
otherwise specified by the Chief.



Sec. 230.6  Landowner forest stewardship plan.

    (a) Prior to receiving approval to implement any Program practice 
identified in Sec. 230.7(a)(2)-(9) of this subpart, eligible landowners 
shall have an approved landowner forest stewardship plan. The landowner 
forest stewardship plan shall be prepared by a Resource Management 
Professional and approved by a Service Representative and shall identify 
and describe actions to be taken by the landowner to protect and manage 
soil, water, aesthetic qualities, recreation, timber, and fish and 
wildlife resources in a manner which is compatible with the objectives 
of the landowner.
    (b) A landowner forest stewardship plan shall be effective for not 
less than 10 years, but shall be reviewed at least every five years and 
may be revised as needed, subject to approval of the Service 
Representative.
    (c) To the extent deemed applicable by the Service Representative, 
where existing landowner management plans such as conservation plans, 
Tree Farm management plans, or similar plans meet or can be amended to 
meet Landowner Forest Stewardship Plan requirements, such plans shall 
satisfy the requirements of this section.
    (d) If a landowner sells or otherwise conveys land covered by a 
landowner forest stewardship plan, such plan shall remain in effect if 
agreed to by the new owner. New landowner objectives shall be 
incorporated through plan revision as needed. Where the new landowner 
does not agree to adopt the Landowner Forest Stewardship plan, the new 
landowner cannot obtain approval of new Program practices without 
preparation and approval of a new Landowner Forest Stewardship Plan.



Sec. 230.7  Program practices.

    (a) Practices for which cost sharing is available under the 
Stewardship Incentive Program and the reporting codes assigned to each 
are as follows:
    (1) Landowner Forest Stewardship Plan Development (SIP1), which 
identifies landowner objectives and multiple resource management 
decisions.
    (2) Reforestation and Afforestation (SIP2), which includes 
establishment or reestablishment of diverse stands of forest trees 
through natural regeneration, planting, or direct seeding for 
conservation purposes and sustainable timber production.
    (3) Forest and Agroforest Improvement (SIP3), which includes the 
improvement of forest and agroforest stand productivity, vigor, and 
health,

[[Page 194]]

and the value and quality of wood products.
    (4) Windbreak and Hedgerow Establishment, Maintenance and Renovation 
(SIP4), which includes the establishment, maintenance, and renovation of 
windbreaks and hedgerows to conserve energy, protect farmsteads, 
livestock, and crops, and reduce soil erosion.
    (5) Soil and Water Protection and Improvement (SIP5), which includes 
the maintenance or improvement of water quality and soil productivity on 
forest land.
    (6) Riparian and Wetland Protection and Improvement (SIP6), which 
includes the protection, restoration, and improvement of wetlands and 
riparian areas to maintain water quality and enhance habitat.
    (7) Fisheries Habitat Enhancement (SIP7), which includes the 
protection and enhancement of habitat for native resident and anadromous 
fisheries.
    (8) Wildlife Habitat Enhancement (SIP8), which includes the 
establishment and enhancement of permanent habitat for game and nongame 
wildlife species.
    (9) Forest Recreation Enhancement (SIP9), which includes the 
enhancement of outdoor recreation activities and aesthetics.
    (b) In the application and use of pesticides, including biological, 
chemical, and behavioral substances, practice performance shall meet all 
label requirements, State and Federal regulations, and local ordinances.
    (c) Anyone who carries out practices under this Program shall be 
responsible for obtaining the authorities, rights, easements, or other 
approvals necessary to the performance and maintenance of the practices 
in keeping with applicable laws and regulations.



Sec. 230.8  Application and approval.

    (a) A landowner wishing to participate in the Program shall contact 
the local office of the State Forester who shall provide information 
necessary to make application.
    (b) The State Forester, or such official as the State Forester may 
designate, shall make basic eligibility determinations, including 
whether the applicant meets nonindustrial private forest land ownership 
criteria and minimum and maximum acreage criteria in accordance with 
Sec. 230.5 of this subpart, and approve Program practices. The landowner 
shall be notified of such determination in writing by mail.
    (c) The State Forester, or such official as the State Forester may 
designate, shall approve Program practices based on the following:
    (1) For approval of practices described in Sec. 230.7(a)(2)-(a)(9) 
of this subpart, verification that the landowner has an approved 
landowner forest stewardship plan.
    (2) A determination whether the practice is needed and feasible.
    (3) A determination that the practice is consistent with funding 
priorities established by the State Forester.
    (d) Applications shall not be approved unless cost-share funds are 
available. Approval of an application shall constitute an agreement by 
the United States and the landowner to cost-share approved practices 
upon acceptable performance.
    (e) Upon approval of Program practices, a Service Representative 
shall prepare a project outline that identifies the needed technical 
practices, specifications, and approximate time frame(s) for the 
implementation of the practice(s) to achieve the objectives of the 
landowner forest stewardship plan. Upon agreement by the landowner and 
the Service Representative to the requirements set forth in the project 
outline, the outline shall be attached to and become part of the 
landowner forest stewardship plan and shall be effective for the 
duration of the practice. Requirements of a project outline shall 
constitute the basis for determining acceptable performance upon 
practice completion.
    (f) Upon approval of Program practices, the landowner shall be 
notified of approved practices in writing. Such notice shall state that 
the landowner can begin implementing approved practices.



Sec. 230.9  Payment to landowners.

    (a) To be eligible for cost-share payments, a landowner must 
complete each practice within eighteen months of approval. However, if 
practice(s) are not completed in eighteen months due

[[Page 195]]

to conditions beyond the landowner's control, a six month extension 
period may be granted by the Service Representative.
    (b) Upon certification by the Service Representative that a practice 
has been completed in accordance with specifications, the federal cost-
share payment will be calculated and disbursed to the landowner. Service 
Representatives shall have the right of access to the landowner's 
property to inspect practices for the duration of the practice 
maintenance period.
    (c) The amount of payment under the Program to any one landowner 
shall not exceed $10,000 in any given fiscal year. For each landowner 
participating in the Program, the payment limitation shall apply as 
follows:
    (1) Where husband and wife hold joint ownership, they shall be 
considered as a single landowner.
    (2) Where any number of individuals hold common ownership, they 
shall be considered as a single landowner.
    (3) Where the individual is a partner, corporate shareholder, or has 
an ownership interest in another private legal entity, the amount of 
payment to the individual shall be equivalent to the percentage of 
ownership the individual holds in such partnership, corporation or other 
private legal entity times the payment made to such partnership, 
corporation or other legal entity.
    (d) Levels of federal cost-share funds to be paid to landowners 
shall be set by the State Forester, but shall not exceed 75 percent of 
the actual costs incurred by a participating landowner. Non-Federal 
program funds and other donated assistance may be used to supplement 
cost-share assistance under the Program; however, the total of all funds 
and assistance shall not exceed 100 percent of the actual cost of 
practice implementation.
    (e) A practice may consist of one or more component activities. A 
landowner may receive partial payment for completed components on the 
condition that the landowner agrees to complete the remaining 
component(s) of the practice within the time period specified by the 
Service Representative, not to exceed eighteen months following approval 
to implement the practice, unless an extension is justified as provided 
in paragraph (a) of this section.
    (f) Where performance actually rendered does not meet the minimum 
specifications of a practice due to factors beyond the landowner's 
control, the State Forester or designee may approve cost-share payment 
under one of the following conditions:
    (1) The landowner repeats applications of components previously 
implemented or establishes additional eligible components under such 
terms and conditions as the Service Representative may require, in which 
case, the State Forester shall approve additional cost-sharing for 
additional or repeated components to the extent such measures are needed 
to meet the objectives of the landowner forest stewardship plan; or
    (2) The landowner establishes to the satisfaction of the Service 
Representative that:
    (i) A reasonable effort was made to meet the minimum requirements; 
and
    (ii) The practice, as performed, adequately meets the objectives of 
the landowner forest stewardship plan.
    (g) Where the landowner has received cost-share assistance for site 
preparation and the establishment of trees has been unsuccessful due to 
factors beyond the landowner's control, the Service Representative shall 
require that trees be re-established and shall approve cost-share 
assistance for such activity.
    (h) If a landowner sells, conveys, or otherwise loses control of 
lands upon which there is a continuing obligation to maintain a practice 
and the new landowner does not agree to assume the responsibility for 
maintaining the practice, the landowner who was originally obligated to 
maintain the practice shall be liable to reimburse the United States for 
all cost-share payments on such practices.
    (i) In case of death or incompetency of any landowner, the State 
Forester shall approve cost-share payments to the successor if the 
successor agrees to maintain the practices for the duration of the 
required maintenance period.
    (j) Any landowner who may be entitled to any cost-share payment 
under this subpart may assign the right

[[Page 196]]

thereto, in whole or in part, under the following terms:
    (1) Payments may be assigned only for performance of a Program 
practice.
    (2) A payment which is made to a landowner may not be assigned to 
pay or secure any preexisting debt.
    (3) Neither the United States, the Forest Service, the Secretary of 
Agriculture, nor any disbursing agent shall be liable in any suit if 
payment is made to an assignor rather than to an assignee, and nothing 
in this section shall be construed to authorize any suit against the 
United States, the Forest Service, the Secretary or any disbursing agent 
if payment is not made to the assignee, or if payment is made to only 
one of several assignees.
    (k) No cost-share payment or portion thereof due and owing any 
landowner shall be subject to any claim arising under State law by any 
creditor, except agencies of the United States Government.



Sec. 230.10  Prohibitions.

    (a) No cost-share funds shall be paid for the following:
    (1) Costs incurred before an application for cost-share assistance 
is approved;
    (2) The implementation of any practice(s) already required by law, 
regulation, or other authority; and
    (3) Repairs or normal upkeep or maintenance of any practice.
    (b) No cost-share assistance shall be paid for repeating practices 
on the same site by the same landowner which have been implemented under 
the Forestry Incentives Program (16 U.S.C. 2104) or any other Federal, 
State, or local government programs, or private sector programs, except 
where such practices are repeated due to a failure of a prior practice 
without fault of the landowner.



Sec. 230.11  Recapture of payment.

    (a) If any landowner, successor, or assignee uses any scheme or 
device to unjustly benefit from this program, the cost-share funds shall 
be withheld or a refund of all or part of any Program payments otherwise 
due or paid that person shall be secured. A scheme or device includes, 
but is not limited to, coercion, fraud or misrepresentation, false 
claims, or any business dissolution, reorganization, revival, or other 
legal mechanism designed for or having the effect of evading the 
requirements of this subpart.
    (b) If any landowner or successor takes any action or fails to take 
action which results in the destruction or impairment of a prescribed 
practice for the duration of the practice, cost-share funds shall be 
withheld or a recapture of all or part of any Program payments otherwise 
due or paid shall be secured based on the extent and effect of 
destruction and impairment.
    (c) Nothing in this section requiring the withholding or refunding 
of cost-share funds shall preclude any penalty or liability otherwise 
imposed by law.



Sec. 230.12  Reconsideration.

    Any landowner, successor, or assignee who is dissatisfied with any 
determination made under the Program may request reconsideration by the 
State Forester and, if the matter is still not resolved, by the Regional 
Forester. All requests for reconsideration shall be in writing and shall 
contain factual information explaining the basis for requesting 
reconsideration. All decisions upon reconsideration shall be issued in 
writing.



Sec. 230.13  Information requirements.

    The requirements governing the preparation of a State forest 
stewardship plan in Sec. 230.4(d) of this subpart, the landowner forest 
stewardship plan in Sec. 230.6 of this subpart, and the application 
requirements of Sec. 230.8 constitute information requirements as 
defined by the Paperwork Reduction Act of 1980 (44 U.S.C. 3507) and have 
been approved for use pursuant to 5 CFR part 1320 and assigned OMB 
Control Number 0596-0120.



PART 241--FISH AND WILDLIFE--Table of Contents




                      Subpart A--General Provisions

Sec.
241.1  Cooperation in wildlife protection.
241.2  Cooperation in wildlife management.
241.3  Federal refuge regulations.

[[Page 197]]

 Subpart B--Conservation of Fish, Wildlife, and Their Habitat, Chugach 
                         National Forest, Alaska

241.20  Scope and applicability.
241.21  Definitions.
241.22  Consistency determinations.
241.23  Taking of fish and wildlife.

    Authority: 16 U.S.C. 472, 539, 551, 683.



                      Subpart A--General Provisions

    Source: 6 FR 1987, Apr. 17, 1941, unless otherwise noted.



Sec. 241.1  Cooperation in wildlife protection.

    (a) Officials of the Forest Service will cooperate with State, 
county, and Federal officials in the enforcement of all laws and 
regulations for the protection of wildlife.
    (b) Officials of the Forest Service who have been, or hereafter may 
be, lawfully appointed deputy game wardens under the laws of any State, 
will serve in such capacity with full power to enforce the State laws 
and regulations relating to fur-bearing and game animals, birds, and 
fish. Such officials will serve as State deputy game wardens without 
additional pay, except that they may accept the usual fees allowed by 
the respective States for issuing hunting and fishing licenses. All 
officials of the Forest Service are prohibited from accepting bounties, 
rewards, or parts of fines offered by any person, corporation or State 
for aid rendered in the enforcement of any Federal or State law relating 
to fur-bearing and game animals, birds, and fish.



Sec. 241.2  Cooperation in wildlife management.

    The Chief of the Forest Service, through the Regional Foresters and 
Forest Supervisors, shall determine the extent to which national forests 
or portions thereof may be devoted to wildlife protection in combination 
with other uses and services of the national forests, and, in 
cooperation with the Fish and Game Department or other constituted 
authority of the State concerned, he will formulate plans for securing 
and maintaining desirable populations of wildlife species, and he may 
enter into such general or specific cooperative agreements with 
appropriate State officials as are necessary and desirable for such 
purposes. Officials of the Forest Service will cooperate with State game 
officials in the planned and orderly removal in accordance with the 
requirements of State laws of the crop of game, fish, fur-bearers, and 
other wildlife on national forest lands.



Sec. 241.3  Federal refuge regulations.

    Until a cooperative agreement has been entered into between the 
Chief of the Forest Service and appropriate State officials for the 
regulation of game as provided in Sec. 241.2 and the necessary 
implementing laws or regulations have been promulgated and taken effect 
in order to carry out such cooperative agreement the following 
paragraphs shall be effective:
    (a) Any person desiring to hunt or take game or non-game animals, 
game or non-game birds, or fish, upon any National Forest lands or 
waters embraced within the boundaries of a military reservation or a 
national game or bird refuge, preserve, sanctuary, or reservation 
established by or under authority of an act of Congress, shall procure 
in advance a permit from the Forest Supervisor. The permit shall be 
issued for a specified season, shall fix the bag or creel limits, and 
shall prescribe such other conditions as the Regional Forester may 
consider necessary for carrying out the purposes for which such lands 
have been set aside or reserved.
    (b) Officials of the Forest Service will cooperate with persons, 
firms, corporations, and State and county officials in the protection, 
management, and utilization of game and non-game animals, game and non-
game birds, and fish, upon national forest lands of the character 
referred to in paragraph (a) of this section. The Chief of the Forest 
Service may authorize the acceptance of contributions from cooperators 
for the payment of expenses incurred in carrying out the provisions of 
this section.
    (c) When necessary for the protection of the forest or the 
conservation of animal life on refuges under paragraphs (a) and (b) of 
this section, the Chief of

[[Page 198]]

the Forest Service may sell, barter, exchange, or donate game and non-
game animals. When the interests of game conservation will be promoted 
thereby, the Chief of the Forest Service may accept donations of game 
and non-game animals, game and non-game birds, and fish, or the eggs of 
birds and fish.



 Subpart B--Conservation of Fish, Wildlife, and Their Habitat, Chugach 
                         National Forest, Alaska

    Source: 56 FR 63463, Dec. 4, 1991, unless otherwise noted.



Sec. 241.20  Scope and applicability.

    (a) The regulations in this subpart apply to management of the 
Copper River-Rude River addition and Copper River-Bering River portion 
of the Chugach National Forest, for the conservation of fish, wildlife 
and their habitat as required by the Alaska National Interest Lands 
Conservation Act (16 U.S.C. 539). These regulations supplement the 
general regulations governing use and occupancy of National Forest 
System lands nationwide in 36 CFR part 251--Land Uses.
    (b) The rules of this subpart are applicable only on Federally-owned 
lands within the boundaries of the Copper River-Rude River addition and 
the Copper River-Bering River portion of the Chugach National Forest, 
Alaska, known as the Copper River Management Area and as described and 
displayed in the Chugach National Forest Land and Resource Management 
Plan, July 1984.
    (c) Nothing in these regulations is intended to enlarge or diminish 
the responsibility and authority of the State of Alaska for management 
of fish and wildlife.
    (d) The primary purpose for the management of the Copper River-Rude 
River addition and the Copper River-Bering River portion of the Chugach 
National Forest, Alaska, is the conservation of fish and wildlife and 
their habitat. Consistent with the regulations at part 219 of this 
chapter, direction for managing the fish and wildlife resources of these 
units shall be documented in the land management plan for the Chugach 
National Forest.



Sec. 241.21  Definitions.

    For the purpose of this subpart, the terms listed in this section 
shall be defined as follows:
    ANILCA refers to the Alaska National Interest Lands Conservation Act 
(16 U.S.C. 3101 et seq.)
    Federal lands mean lands the title to which is in the United States, 
but does not include those lands: (1) Tentatively approved, 
legislatively conveyed, or patented to the State of Alaska, or (2) 
interim-conveyed or patented to a Native corporation or person.
    Fish and Wildlife means any member of the animal kingdom, including 
without limitation any mammal, fish, bird, amphibian, reptile, mollusk, 
crustacean, arthropod, or other invertebrate, and includes any part, 
product, egg, or offspring thereof, or dead body or part thereof. For 
the purposes of this subpart, birds also include any migratory or 
endangered bird for which protection is afforded by treaty or other 
international agreement.
    Land means lands, waters, and interests therein.
    Multiple-use activity is a specific management or permitted 
activity, use, measure, course of action, or treatment of National 
Forest System lands carried out under the statutory charter of the 
Multiple-Use Sustained-Yield Act of 1960 (16 U.S.C. 528 et seq.) and the 
National Forest Management Act (16 U.S.C. 1600 et seq.).
    Responsible Forest Officer is the Forest Service employee who has 
the authority to select, authorize, permit and/or carry out a specific 
multiple-use activity.



Sec. 241.22  Consistency determinations.

    (a) Subject to valid existing rights, a multiple-use activity may be 
permitted or authorized within the areas of the Chugach National Forest 
subject to this subpart only after a determination by the responsible 
Forest Officer that such activity is consistent with the conservation of 
fish, wildlife, and their habitat. A use or activity may be determined 
to be consistent if it will not materially interfere with or detract

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from the conservation of fish, wildlife and their habitat.
    (b) Where an evaluation is made pursuant to section 102(2)(C) of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321) for a 
proposed multiple-use activity, and the responsible Forest Officer 
prepares an environmental impact statement (EIS) or environmental 
assessment (EA) or categorically excludes an activity from documentation 
in an EA or EIS, the consistency determination required by this section 
for the use or activity shall be included as a part of the decision 
document.
    (c) Guidelines that are consistent with this section may be 
developed for specific multiple-use activities as a part of the planning 
and implementation process required by the National Forest Management 
Act and the implementing regulations at 36 CFR part 219, National Forest 
System Land and Resource Management Planning.
    (d) Subject to valid existing rights, the responsible Forest Officer 
may incorporate into any permit or other authorization issued pursuant 
to 36 CFR part 251 or other regulations of this chapter any reasonably 
practicable measures that are determined to be necessary to maintain 
consistency with the conservation of fish, wildlife, and their habitat 
as provided by this subpart.
    (e) Subject to valid existing rights, the responsible Forest Officer 
may terminate, suspend, restrict, or require modification of any 
activity if it is determined that such measures are required to conserve 
wildlife, fish, or their habitat within the areas of the Chugach 
National Forest subject to this subpart. Prior to taking action to 
terminate, suspend, restrict, or require modification of an activity 
under this section, the responsible Forest Officer shall give affected 
parties reasonable prior notice and an opportunity to comment, unless it 
is determined that doing so would likely result in irreparable harm to 
conservation of fish, wildlife, and their habitat.
    (f) Decisions made pursuant to this section are subject to appeal 
only as provided in 36 CFR parts 217 and 251, subpart C.
    (g) Nothing in this section affects subsistence activities carried 
out in accordance with Sec. 241.23 of this subpart or other applicable 
law.



Sec. 241.23  Taking of fish and wildlife.

    (a) The taking of fish and wildlife by hunting, trapping, or fishing 
from lands subject to the rules of this subpart is authorized in 
accordance with applicable State and Federal law.
    (b) To the extent consistent with the conservation of fish and 
wildlife and their habitat in accordance with recognized scientific 
management principles, local rural residents who depend upon the Chugach 
National Forest for subsistence needs shall continue to have the 
opportunity to engage in a subsistence way of life on the lands to which 
this subpart applies pursuant to applicable State and Federal law.
    (c) To the extent consistent with the conservation of fish and 
wildlife and their habitat, the continuation of existing uses and the 
future establishment and use of temporary campsites, tent, platforms, 
shelters, and other temporary facilities and equipment directly and 
necessarily related to the taking of fish and wildlife may be authorized 
in accordance with applicable law and regulations. However, the Forest 
Supervisor may restrict or prohibit facilities or uses in the Copper 
River-Rude River addition or Copper River-Bering River area if it is 
determined, after adequate notice to the affected parties, that the 
continuation of such facilities or uses would materially interfere with 
or adversely affect the conservation of fish and wildlife and their 
habitat.



PART 242--SUBSISTENCE MANAGEMENT REGULATIONS FOR PUBLIC LANDS IN ALASKA--Table of Contents




                      Subpart A--General Provisions

Sec.
242.1  Purpose.
242.2  Authority.
242.3  Applicability and scope.
242.4  Definitions.
242.5  Eligibility for subsistence use.
242.6  Licenses, permits, harvest tickets, tags, and reports.
242.7  Restriction on use.
242.8  Penalties.

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242.9  Information collection requirements.

                      Subpart B--Program Structure

242.10  Federal Subsistence Board.
242.11  Regional advisory councils.
242.12  Local advisory committees.
242.13  Board/agency relationships.
242.14  Relationship to State procedures and regulations.
242.15  Rural determination process.
242.16  Customary and traditional use determination process.
242.17  Determining priorities for subsistence uses among rural Alaska 
          residents.
242.18  Regulation adoption process.
242.19  Closures and other special actions.
242.20  Request for reconsideration.
242.21  [Reserved]

                     Subpart C--Board Determinations

242.22  Subsistence resource regions.
242.23  Rural determinations.
242.24  Customary and traditional use determinations.

           Subpart D--Subsistence Taking of Fish and Wildlife

242.25  Subsistence taking of wildlife.
242.26  Subsistence taking of fish.
242.27  Subsistence taking of shellfish.

    Authority: 16 U.S.C. 3, 472, 551, 668dd, 3101-3126; 18 U.S.C. 3551-
3586; 43 U.S.C. 1733.



                      Subpart A--General Provisions

    Source:  64 FR 1286, Jan. 8, 1999, unless otherwise noted.

    Effective Date Note:  At 64 FR 1286, Jan. 8, 1999, subpart A to part 
242 was revised, effective Oct. 1, 1999. For the convenience of the 
user, the superseded text follows subpart C.



Sec. 242.1  Purpose.

    The regulations in this part implement the Federal Subsistence 
Management Program on public lands within the State of Alaska.



Sec. 242.2  Authority.

    The Secretary of the Interior and Secretary of Agriculture issue the 
regulations in this part pursuant to authority vested in Title VIII of 
the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. 
3101-3126.



Sec. 242.3  Applicability and scope.

    (a) The regulations in this part implement the provisions of Title 
VIII of ANILCA relevant to the taking of fish and wildlife on public 
lands in the State of Alaska. The regulations in this part do not permit 
subsistence uses in Glacier Bay National Park, Kenai Fjords National 
Park, Katmai National Park, and that portion of Denali National Park 
established as Mt. McKinley National Park prior to passage of ANILCA, 
where subsistence taking and uses are prohibited. The regulations in 
this part do not supersede agency specific regulations.
    (b) The regulations contained in this part apply on all public lands 
including all non-navigable waters located on these lands, on all 
navigable and non-navigable water within the exterior boundaries of the 
following areas, and on inland waters adjacent to the exterior 
boundaries of the following areas:
    (1) Alaska Maritime National Wildlife Refuge;
    (2) Alaska Peninsula National Wildlife Refuge;
    (3) Aniakchak National Monument and Preserve;
    (4) Arctic National Wildlife Refuge;
    (5) Becharof National Wildlife Refuge;
    (6) Bering Land Bridge National Preserve;
    (7) Cape Krusenstern National Monument;
    (8) Chugach National Forest, excluding marine waters;
    (9) Denali National Preserve and the 1980 additions to Denali 
National Park;
    (10) Gates of the Arctic National Park and Preserve;
    (11) Glacier Bay National Preserve;
    (12) Innoko National Wildlife Refuge;
    (13) Izembek National Wildlife Refuge;
    (14) Katmai National Preserve;
    (15) Kanuti National Wildlife Refuge;
    (16) Kenai National Wildlife Refuge;
    (17) Kobuk Valley National Park;
    (18) Kodiak National Wildlife Refuge;
    (19) Koyukuk National Wildlife Refuge;
    (20) Lake Clark National Park and Preserve;
    (21) National Petroleum Reserve in Alaska;
    (22) Noatak National Preserve;
    (23) Nowitna National Wildlife Refuge;

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    (24) Selawik National Wildlife Refuge;
    (25) Steese National Conservation Area;
    (26) Tetlin National Wildlife Refuge;
    (27) Togiak National Wildlife Refuge;
    (28) Tongass National Forest, including Admiralty Island National 
Monument and Misty Fjords National Monument, and excluding marine 
waters;
    (29) White Mountain National Recreation Area;
    (30) Wrangell-St. Elias National Park and Preserve;
    (31) Yukon-Charley Rivers National Preserve;
    (32) Yukon Delta National Wildlife Refuge;
    (33) Yukon Flats National Wildlife Refuge;
    (34) All components of the Wild and Scenic River System located 
outside the boundaries of National Parks, National Preserves or National 
Wildlife Refuges, including segments of the Alagnak River, Beaver Creek, 
Birch Creek, Delta River, Fortymile River, Gulkana River, and Unalakleet 
River.
    (c) The public lands described in paragraph (b) of this section 
remain subject to change through rulemaking pending a Department of the 
Interior review of title and jurisdictional issues regarding certain 
submerged lands beneath navigable waters in Alaska.



Sec. 242.4  Definitions.

    The following definitions apply to all regulations contained in this 
part:
    Agency means a subunit of a cabinet level Department of the Federal 
government having land management authority over the public lands 
including, but not limited to, the U.S. Fish & Wildlife Service, Bureau 
of Indian Affairs, Bureau of Land Management, National Park Service, and 
USDA Forest Service.
    ANILCA means the Alaska National Interest Lands Conservation Act, 
Pub. L. 96-487, 94 Stat. 2371 (codified, as amended, in scattered 
sections of 16 U.S.C. and 43 U.S.C.)
    Area, District, Subdistrict, and Section mean one of the 
geographical areas defined in the codified Alaska Department of Fish and 
Game regulations found in Title 5 of the Alaska Administrative Code.
    Barter means the exchange of fish or wildlife or their parts taken 
for subsistence uses; for other fish, wildlife or their parts; or, for 
other food or for nonedible items other than money, if the exchange is 
of a limited and noncommercial nature.
    Board means the Federal Subsistence Board as described in 
Sec. 242.10.
    Commissions means the Subsistence Resource Commissions established 
pursuant to section 808 of ANILCA.
    Conservation of healthy populations of fish and wildlife means the 
maintenance of fish and wildlife resources and their habitats in a 
condition that assures stable and continuing natural populations and 
species mix of plants and animals in relation to their ecosystem, 
including the recognition that local rural residents engaged in 
subsistence uses may be a natural part of that ecosystem; minimizes the 
likelihood of irreversible or long-term adverse effects upon such 
populations and species; ensures the maximum practicable diversity of 
options for the future; and recognizes that the policies and legal 
authorities of the managing agencies will determine the nature and 
degree of management programs affecting ecological relationships, 
population dynamics, and the manipulation of the components of the 
ecosystem.
    Customary trade means cash sale of fish and wildlife resources 
regulated in this part, not otherwise prohibited by Federal law or 
regulation, to support personal and family needs; and does not include 
trade which constitutes a significant commercial enterprise.
    Customary and traditional use means a long-established, consistent 
pattern of use, incorporating beliefs and customs which have been 
transmitted from generation to generation. This use plays an important 
role in the economy of the community.
    FACA means the Federal Advisory Committee Act, Pub. L. 92-463, 86 
Stat. 770 (codified as amended, at 5 U.S.C. Appendix II, 1-15).
    Family means all persons related by blood, marriage or adoption, or 
any person living within the household on a permanent basis.
    Federal Advisory Committees or Federal Advisory Committee means the 
Federal

[[Page 202]]

Local Advisory Committees as described in Sec. 242.12.
    Federal lands means lands and waters and interests therein the title 
to which is in the United States, including navigable and non-navigable 
waters in which the United States has reserved water rights.
    Fish and wildlife means any member of the animal kingdom, including 
without limitation any mammal, fish, bird (including any migratory, 
nonmigratory or endangered bird for which protection is also afforded by 
treaty or other international agreement), amphibian, reptile, mollusk, 
crustacean, arthropod, or other invertebrate, and includes any part, 
product, egg, or offspring thereof, or the carcass or part thereof.
    Game Management Unit or GMU means one of the 26 geographical areas 
listed under game management units in the codified State of Alaska 
hunting and trapping regulations and the Game Unit Maps of Alaska.
    Inland Waters means, for the purposes of this part, those waters 
located landward of the mean high tide line or the waters located 
upstream of the straight line drawn from headland to headland across the 
mouths of rivers or other waters as they flow into the sea. Inland 
waters include, but are not limited to, lakes, reservoirs, ponds, 
streams, and rivers.
    Marine Waters means, for the purposes of this part, those waters 
located seaward of the mean high tide line or the waters located seaward 
of the straight line drawn from headland to headland across the mouths 
of rivers or other waters as they flow into the sea.
    Person means an individual and does not include a corporation, 
company, partnership, firm, association, organization, business, trust 
or society.
    Public lands or public land means:
    (1) Lands situated in Alaska which are Federal lands, except--
    (i) Land selections of the State of Alaska which have been 
tentatively approved or validly selected under the Alaska Statehood Act 
and lands which have been confirmed to, validly selected by, or granted 
to the Territory of Alaska or the State under any other provision of 
Federal law;
    (ii) Land selections of a Native Corporation made under the Alaska 
Native Claims Settlement Act, 43 U.S.C. 1601 et seq., which have not 
been conveyed to a Native Corporation, unless any such selection is 
determined to be invalid or is relinquished; and
    (iii) Lands referred to in section 19(b) of the Alaska Native Claims 
Settlement Act, 43 U.S.C. 1618(b).
    (2) Notwithstanding the exceptions in paragraphs (1)(i) through 
(iii) of this definition, until conveyed or interim conveyed, all 
Federal lands within the boundaries of any unit of the National Park 
System, National Wildlife Refuge System, National Wild and Scenic Rivers 
Systems, National Forest Monument, National Recreation Area, National 
Conservation Area, new National forest or forest addition shall be 
treated as public lands for the purposes of the regulations in this part 
pursuant to section 906(o)(2) of ANILCA.
    Regional Councils or Regional Council means the Regional Advisory 
Councils as described in Sec. 242.11.
    Regulatory year means July 1 through June 30, except for fish and 
shellfish where it means March 1 through the last day of February.
    Reserved water right(s) means the Federal right to use 
unappropriated appurtenant water necessary to accomplish the purposes 
for which a Federal reservation was established. Reserved water rights 
include nonconsumptive and consumptive uses.
    Resident means any person who has his or her primary, permanent home 
for the previous 12 months within Alaska and whenever absent from this 
primary, permanent home, has the intention of returning to it. Factors 
demonstrating the location of a person's primary, permanent home may 
include, but are not limited to: the address listed on an Alaska 
Permanent Fund dividend application; an Alaska license to drive, hunt, 
fish, or engage in an activity regulated by a government entity; 
affidavit of person or persons who know the individual; voter 
registration; location of residences owned, rented or leased; location 
of stored household goods; residence of spouse, minor children or 
dependents; tax documents; or whether the person claims

[[Page 203]]

residence in another location for any purpose.
    Rural means any community or area of Alaska determined by the Board 
to qualify as such under the process described in Sec. 242..15.
    Secretary means the Secretary of the Interior, except that in 
reference to matters related to any unit of the National Forest System, 
such term means the Secretary of Agriculture.
    State means the State of Alaska.
    Subsistence uses means the customary and traditional uses by rural 
Alaska residents of wild, renewable resources for direct personal or 
family consumption as food, shelter, fuel, clothing, tools, or 
transportation; for the making and selling of handicraft articles out of 
nonedible byproducts of fish and wildlife resources taken for personal 
or family consumption; for barter, or sharing for personal or family 
consumption; and for customary trade.
    Take or taking as used with respect to fish or wildlife, means to 
pursue, hunt, shoot, trap, net, capture, collect, kill, harm, or attempt 
to engage in any such conduct.
    Year means calendar year unless another year is specified.



Sec. 242.5  Eligibility for subsistence use.

    (a) You may take fish and wildlife on public lands for subsistence 
uses only if you are an Alaska resident of a rural area or rural 
community. The regulations in this part may further limit your 
qualifications to harvest fish or wildlife resources for subsistence 
uses. If you are not an Alaska resident or are a resident of a non-rural 
area or community listed in Sec. 242.23, you may not take fish or 
wildlife on public lands for subsistence uses under the regulations in 
this part.
    (b) Where the Board has made a customary and traditional use 
determination regarding subsistence use of a specific fish stock or 
wildlife population, in accordance with, and as listed in, Sec. 242.24, 
only those Alaskans who are residents of rural areas or communities 
designated by the Board are eligible for subsistence taking of that 
population or stock on public lands for subsistence uses under the 
regulations in this part. If you do not live in one of those areas or 
communities, you may not take fish or wildlife from that population or 
stock, on public lands under the regulations in this part.
    (c) Where customary and traditional use determinations for a fish 
stock or wildlife population within a specific area have not yet been 
made by the Board (e.g. ``no determination''), all Alaskans who are 
residents of rural areas or communities may harvest for subsistence from 
that stock or population under the regulations in this part.
    (d) The National Park Service may regulate further the eligibility 
of those individuals qualified to engage in subsistence uses on National 
Park Service lands in accordance with specific authority in ANILCA, and 
National Park Service regulations at 36 CFR Part 13.



Sec. 242.6  Licenses, permits, harvest tickets, tags, and reports.

    (a) If you wish to take fish and wildlife on public lands for 
subsistence uses, you must be a rural Alaska resident and:
    (1) Possess the pertinent valid Alaska resident hunting and trapping 
licenses (no license required to take fish or shellfish) unless Federal 
licenses are required or unless otherwise provided for in subpart D of 
this part;
    (2) Possess and comply with the provisions of any pertinent Federal 
permits (Federal Subsistence Registration Permit or Federal Designated 
Harvester Permit) required by subpart D of this part; and
    (3) Possess and comply with the provisions of any pertinent permits, 
harvest tickets, or tags required by the State unless any of these 
documents or individual provisions in them are superseded by the 
requirements in subpart D of this part.
    (b) If you have been awarded a permit to take fish and wildlife, you 
must have that permit in your possession during the taking and must 
comply with all requirements of the permit and the regulations in this 
section pertaining to validation and reporting and to regulations in 
subpart D of this part pertaining to methods and means, possession and 
transportation, and utilization. Upon the request of a State or Federal 
law enforcement agent, you

[[Page 204]]

must also produce any licenses, permits, harvest tickets, tags or other 
documents required by this section. If you are engaged in taking fish 
and wildlife under these regulations, you must allow State or Federal 
law enforcement agents to inspect any apparatus designed to be used, or 
capable of being used to take fish or wildlife, or any fish or wildlife 
in your possession.
    (c) You must validate the harvest tickets, tags, permits, or other 
required documents before removing your kill from the harvest site. You 
must also comply with all reporting provisions as set forth in subpart D 
of this part.
    (d) If you take fish and wildlife under a community harvest system, 
you must report the harvest activity in accordance with regulations 
specified for that community in subpart D of this part, and as required 
by any applicable permit conditions. Individuals may be responsible for 
particular reporting requirements in the conditions permitting a 
specific community's harvest. Failure to comply with these conditions is 
a violation of these regulations. Community harvests are reviewed 
annually under the regulations in subpart D of this part.
    (e) You may not make a fraudulent application for Federal or State 
licenses, permits, harvest tickets or tags or intentionally file an 
incorrect harvest report.



Sec. 242.7  Restriction on use.

    (a) You may not trade or sell fish and wildlife, taken pursuant to 
the regulations in this part, except as provided for in Secs. 242.25, 
242.26, and 242.27.
    (b) You may not use, sell, or trade fish and wildlife, taken 
pursuant to the regulations in this part, in any significant commercial 
enterprise.



Sec. 242.8  Penalties.

    If you are convicted of violating any provision of 50 CFR Part 100 
or 36 CFR Part 242, you may be punished by a fine or by imprisonment in 
accordance with the penalty provisions applicable to the public land 
where the violation occurred.



Sec. 242.9  Information collection requirements.

    (a) The rules in this part contain information collection 
requirements subject to Office of Management and Budget (OMB) approval 
under 44 U.S.C. 3501-3520. They apply to fish and wildlife harvest 
activities on public lands in Alaska. Subsistence users will not be 
required to respond to an information collection request unless a valid 
OMB number is displayed on the information collection form.
    (1) Section 242.6, Licenses, permits, harvest tickets, tags, and 
reports. The information collection requirements contained in Sec. 242.6 
(Federal Subsistence Registration Permit or Federal Designated Hunter 
Permit forms) provide for permit-specific subsistence activities not 
authorized through the general adoption of State regulations. Identity 
and location of residence are required to determine if you are eligible 
for a permit and a report of success is required after a harvest 
attempt. These requirements are not duplicative with the requirements of 
paragraph (a)(3) of this section. The regulations in Sec. 242.6 require 
this information before a rural Alaska resident may engage in 
subsistence uses on public lands. The Department estimates that the 
average time necessary to obtain and comply with this permit information 
collection requirement is 0.25 hours.
    (2) Section 242.20, Request for reconsideration. The information 
collection requirements contained in Sec. 242.20 provide a standardized 
process to allow individuals the opportunity to appeal decisions of the 
Board. Submission of a request for reconsideration is voluntary but 
required to receive a final review by the Board. We estimate that a 
request for reconsideration will take 4 hours to prepare and submit.
    (3) The remaining information collection requirements contained in 
this part imposed upon subsistence users are those adopted from State 
regulations. These collection requirements would exist in the absence of 
Federal subsistence regulations and are not subject to the Paperwork 
Reduction Act. The burden in this situation is negligible and 
information gained from these reports are systematically available to 
Federal managers by routine

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computer access requiring less than one hour.
    (b) You may direct comments on the burden estimate or any other 
aspect of the burden estimate to: Information Collection Officer, U.S. 
Fish and Wildlife Service, 1849 C Street, N.W., MS 224 ARLSQ, 
Washington, D.C. 20240; and the Desk Officer for the Interior 
Department, Office of Information and Regulatory Affairs, Office of 
Management and Budget, Washington, D.C. 20503. Additional information 
requirements may be imposed if Local Advisory Committees or additional 
Regional Councils, subject to the Federal Advisory Committee Act (FACA), 
are established under subpart B of this part. Such requirements will be 
submitted to OMB for approval prior to their implementation.



                      Subpart B--Program Structure

    Source:  64 FR 1289, Jan. 8, 1999, unless otherwise noted.

    Effective Date Note:  At 64 FR 1289, Jan. 8, 1999, subpart B to part 
242 was revised, effective Oct. 1, 1999. For the convenience of the 
user, the superseded text follows subpart C.



Sec. 242.10  Federal Subsistence Board.

    (a) The Secretary of the Interior and Secretary of Agriculture 
hereby establish a Federal Subsistence Board, and assign them 
responsibility for, administering the subsistence taking and uses of 
fish and wildlife on public lands, and the related promulgation and 
signature authority for regulations of subparts C and D of this part. 
The Secretaries, however, retain their existing authority to restrict or 
eliminate hunting, fishing, or trapping activities which occur on lands 
or waters in Alaska other than public lands when such activities 
interfere with subsistence hunting, fishing, or trapping on the public 
lands to such an extent as to result in a failure to provide the 
subsistence priority.
    (b) Membership. (1) The voting members of the Board are: a Chair to 
be appointed by the Secretary of the Interior with the concurrence of 
the Secretary of Agriculture; the Alaska Regional Director, U.S. Fish 
and Wildlife Service; Alaska Regional Director, National Park Service; 
Alaska Regional Forester, USDA Forest Service; the Alaska State 
Director, Bureau of Land Management; and the Alaska Area Director, 
Bureau of Indian Affairs. Each member of the Board may appoint a 
designee.
    (2) [Reserved]
    (c) Liaisons to the Board are: a State liaison, and the Chairman of 
each Regional Council. The State liaison and the Chairman of each 
Regional Council may attend public sessions of all Board meetings and be 
actively involved as consultants to the Board.
    (d) Powers and duties. (1) The Board shall meet at least twice per 
year and at such other times as deemed necessary. Meetings shall occur 
at the call of the Chair, but any member may request a meeting.
    (2) A quorum consists of four members.
    (3) No action may be taken unless a majority of voting members are 
in agreement.
    (4) The Board is empowered, to the extent necessary, to implement 
Title VIII of ANILCA, to:
    (i) Issue regulations for the management of subsistence taking and 
uses of fish and wildlife on public lands;
    (ii) Determine which communities or areas of the State are rural or 
non-rural;
    (iii) Determine which rural Alaska areas or communities have 
customary and traditional subsistence uses of specific fish and wildlife 
populations;
    (iv) Allocate subsistence uses of fish and wildlife populations on 
public lands;
    (v) Ensure that the taking on public lands of fish and wildlife for 
nonwasteful subsistence uses shall be accorded priority over the taking 
on such lands of fish and wildlife for other purposes;
    (vi) Close public lands to the non-subsistence taking of fish and 
wildlife;
    (vii) Establish priorities for the subsistence taking of fish and 
wildlife on public lands among rural Alaska residents;
    (viii) Restrict or eliminate taking of fish and wildlife on public 
lands;
    (ix) Determine what types and forms of trade of fish and wildlife 
taken for subsistence uses constitute allowable customary trade;

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    (x) Authorize the Regional Councils to convene;
    (xi) Establish a Regional Council in each subsistence resource 
region and recommend to the Secretaries, appointees to the Regional 
Councils, pursuant to the FACA;
    (xii) Establish Federal Advisory Committees within the subsistence 
resource regions, if necessary and recommend to the Secretaries that 
members of the Federal Advisory Committees be appointed from the group 
of individuals nominated by rural Alaska residents;
    (xiii) Establish rules and procedures for the operation of the 
Board, and the Regional Councils;
    (xiv) Review and respond to proposals for regulations, management 
plans, policies, and other matters related to subsistence taking and 
uses of fish and wildlife;
    (xv) Enter into cooperative agreements or otherwise cooperate with 
Federal agencies, the State, Native organizations, local governmental 
entities, and other persons and organizations, including international 
entities to effectuate the purposes and policies of the Federal 
subsistence management program;
    (xvi) Develop alternative permitting processes relating to the 
subsistence taking of fish and wildlife to ensure continued 
opportunities for subsistence;
    (xvii) Evaluate whether hunting, fishing, or trapping activities 
which occur on lands or waters in Alaska other than public lands 
interfere with subsistence hunting, fishing, or trapping on the public 
lands to such an extent as to result in a failure to provide the 
subsistence priority, and after appropriate consultation with the State 
of Alaska, the Regional Councils, and other Federal agencies, make a 
recommendation to the Secretaries for their action;
    (xviii) Identify, in appropriate specific instances, whether there 
exists additional Federal reservations, Federal reserved water rights or 
other Federal interests in lands or waters, including those in which the 
United States holds less than a fee ownership, to which the Federal 
subsistence priority attaches, and make appropriate recommendation to 
the Secretaries for inclusion of those interests within the Federal 
Subsistence Management Program; and
    (xix) Take other actions authorized by the Secretaries to implement 
Title VIII of ANILCA.
    (5) The Board may implement one or more of the following harvest and 
harvest reporting or permit systems:
    (i) The fish and wildlife is taken by an individual who is required 
to obtain and possess pertinent State harvest permits, tickets, or tags, 
or Federal permit (Federal Subsistence Registration Permit);
    (ii) A qualified subsistence user may designate another qualified 
subsistence user (by using the Federal Designated Harvester Permit) to 
take fish and wildlife on his or her behalf;
    (iii) The fish and wildlife is taken by individuals or community 
representatives permitted (via a Federal Subsistence Registration 
Permit) a one-time or annual harvest for special purposes including 
ceremonies and potlatches; or
    (iv) The fish and wildlife is taken by representatives of a 
community permitted to do so in a manner consistent with the community's 
customary and traditional practices.
    (6) The Board may delegate to agency field officials the authority 
to set harvest limits, define harvest areas, and open or close specific 
fish or wildlife harvest seasons within frameworks established by the 
Board.
    (7) The Board shall establish a Staff Committee for analytical and 
administrative assistance composed of a member from the U.S. Fish and 
Wildlife Service, National Park Service, U.S. Bureau of Land Management, 
Bureau of Indian Affairs, and USDA Forest Service. A U.S. Fish and 
Wildlife Service representative shall serve as Chair of the Staff 
Committee.
    (8) The Board may establish and dissolve additional committees as 
necessary for assistance.
    (9) The U.S. Fish and Wildlife Service shall provide appropriate 
administrative support for the Board.
    (10) The Board shall authorize at least two meetings per year for 
each Regional Council.

[[Page 207]]

    (e) Relationship to Regional Councils. (1) The Board shall consider 
the reports and recommendations of the Regional Councils concerning the 
taking of fish and wildlife on public lands within their respective 
regions for subsistence uses. The Board may choose not to follow any 
Regional Council recommendation which it determines is not supported by 
substantial evidence, violates recognized principles of fish and 
wildlife conservation, would be detrimental to the satisfaction of 
subsistence needs, or in closure situations, for reasons of public 
safety or administration or to assure the continued viability of a 
particular fish or wildlife population. If a recommendation is not 
adopted, the Board shall set forth the factual basis and the reasons for 
the decision, in writing, in a timely fashion.
    (2) The Board shall provide available and appropriate technical 
assistance to the Regional Councils.



Sec. 242.11  Regional advisory councils.

    (a) The Board shall establish a Regional Council for each 
subsistence resource region to participate in the Federal subsistence 
management program. The Regional Councils shall be established, and 
conduct their activities, in accordance with the FACA. The Regional 
Councils shall provide a regional forum for the collection and 
expression of opinions and recommendations on matters related to 
subsistence taking and uses of fish and wildlife resources on public 
lands. The Regional Councils shall provide for public participation in 
the Federal regulatory process.
    (b) Establishment of Regional Councils; membership. (1) The number 
of members for each Regional Council shall be established by the Board, 
and shall be an odd number. A Regional Council member must be a resident 
of the region in which he or she is appointed and be knowledgeable about 
the region and subsistence uses of the public lands therein. The Board 
shall accept nominations and recommend to the Secretaries that 
representatives on the Regional Councils be appointed from those 
nominated by subsistence users. Appointments to the Regional Councils 
shall be made by the Secretaries.
    (2) Regional Council members shall serve 3 year terms and may be 
reappointed. Initial members shall be appointed with staggered terms up 
to three years.
    (3) The Chair of each Regional Council shall be elected by the 
applicable Regional Council, from its membership, for a one year term 
and may be reelected.
    (c) Powers and Duties. (1) The Regional Councils are authorized to:
    (i) Hold public meetings related to subsistence uses of fish and 
wildlife within their respective regions, after the Chair of the Board 
or the designated Federal Coordinator has called the meeting and 
approved the meeting agenda;
    (ii) Elect officers;
    (iii) Review, evaluate, and make recommendations to the Board on 
proposals for regulations, policies, management plans, and other matters 
relating to the subsistence take of fish and wildlife under these 
regulations within the region;
    (iv) Provide a forum for the expression of opinions and 
recommendations by persons interested in any matter related to the 
subsistence uses of fish and wildlife within the region;
    (v) Encourage local and regional participation, pursuant to the 
provisions of the regulations in this part in the decisionmaking process 
affecting the taking of fish and wildlife on the public lands within the 
region for subsistence uses;
    (vi) Prepare and submit to the Board an annual report containing--
    (A) An identification of current and anticipated subsistence uses of 
fish and wildlife populations within the region;
    (B) An evaluation of current and anticipated subsistence needs for 
fish and wildlife populations from the public lands within the region;
    (C) A recommended strategy for the management of fish and wildlife 
populations within the region to accommodate such subsistence uses and 
needs related to the public lands; and
    (D) Recommendations concerning policies, standards, guidelines, and 
regulations to implement the strategy;
    (vii) Appoint members to each Subsistence Resource Commission within

[[Page 208]]

their region in accordance with the requirements of Section 808 of 
ANILCA;
    (viii) Make recommendations on determinations of customary and 
traditional use of subsistence resources;
    (ix) Make recommendations on determinations of rural status;
    (x) Make recommendations regarding the allocation of subsistence 
uses among rural Alaska residents pursuant to Sec. 242.17;
    (xi) Develop proposals pertaining to the subsistence taking and use 
of fish and wildlife under these regulations, and review and evaluate 
such proposals submitted by other sources;
    (xii) Provide recommendations on the establishment and membership of 
Federal Advisory Committees.
    (2) The Regional Councils shall:
    (i) Operate in conformance with the provisions of FACA and comply 
with rules of operation established by the Board;
    (ii) Perform other duties specified by the Board.



Sec. 242.12  Local advisory committees.

    (a) The Board shall establish such local Federal Advisory Committees 
within each region as necessary at such time that it is determined, 
after notice and hearing and consultation with the State, that the 
existing State fish and game advisory committees do not adequately 
provide advice to, and assist, the particular Regional Council in 
carrying out its function as set forth in Sec. 242.11.
    (b) Local Federal Advisory Committees, if established by the Board, 
shall operate in conformance with the provisions of the FACA, and comply 
with rules of operation established by the Board.



Sec. 242.13  Board/agency relationships.

    (a) General. (1) The Board, in making decisions or recommendations, 
shall consider and ensure compliance with specific statutory 
requirements regarding the management of resources on public lands, 
recognizing that the management policies applicable to some public lands 
may entail methods of resource and habitat management and protection 
different from methods appropriate for other public lands.
    (2) The Board shall issue regulations for subsistence taking of fish 
and wildlife on public lands. The Board is the final administrative 
authority on the promulgation of subpart C and D regulations relating to 
the subsistence taking of fish and wildlife on public lands.
    (3) Nothing in the regulations in this part shall enlarge or 
diminish the authority of any agency to issue regulations necessary for 
the proper management of public lands under their jurisdiction in 
accordance with ANILCA and other existing laws.
    (b) Section 808 of ANILCA establishes National Park and Park 
Monument Subsistence Resource Commissions. Nothing in the regulations in 
this part affects the duties or authorities of these commissions.



Sec. 242.14  Relationship to State procedures and regulations.

    (a) State fish and game regulations apply to public lands and such 
laws are hereby adopted and made a part of the regulations in this part 
to the extent they are not inconsistent with, or superseded by the 
regulations in this part.
    (b) The Board may close public lands to hunting and fishing, or take 
actions to restrict the taking of fish and wildlife despite any State 
authorization for taking fish and wildlife on public lands. The Board 
may review and adopt State openings, closures, or restrictions which 
serve to achieve the objectives of the regulations in this part.
    (c) The Board may enter into agreements with the State in order to 
coordinate respective management responsibilities.
    (d) Petition for repeal of subsistence rules and regulations. (1) 
The State of Alaska may petition the Secretaries for repeal of the 
subsistence rules and regulations in this part when the State has 
enacted and implemented subsistence management and use laws which:
    (i) Are consistent with sections 803, 804, and 805 of ANILCA; and
    (ii) Provide for the subsistence definition, preference, and 
participation specified in sections 803, 804, and 805 of ANILCA.
    (2) The State's petition shall:
    (i) Be submitted to the Secretary of the Interior, U.S. Department 
of the

[[Page 209]]

Interior, Washington, D.C. 20240, and the Secretary of Agriculture, U.S. 
Department of Agriculture, Washington, D.C. 20240;
    (ii) Include the entire text of applicable State legislation 
indicating compliance with sections 803, 804, and 805 of ANILCA; and
    (iii) Set forth all data and arguments available to the State in 
support of legislative compliance with sections 803, 804, and 805 of 
ANILCA.
    (3) If the Secretaries find that the State's petition contains 
adequate justification, a rulemaking proceeding for repeal of the 
regulations in this part will be initiated. If the Secretaries find that 
the State's petition does not contain adequate justification, the 
petition will be denied by letter or other notice, with a statement of 
the ground for denial.



Sec. 242.15  Rural determination process.

    (a) The Board shall determine if an area or community in Alaska is 
rural. In determining whether a specific area of Alaska is rural, the 
Board shall use the following guidelines:
    (1) A community or area with a population of 2500 or less shall be 
deemed to be rural unless such a community or area possesses significant 
characteristics of a non-rural nature, or is considered to be socially 
and economically a part of an urbanized area.
    (2) Communities or areas with populations above 2500 but not more 
than 7000 will be determined to be rural or non-rural.
    (3) A community with a population of more than 7000 shall be 
presumed non-rural, unless such a community or area possesses 
significant characteristics of a rural nature.
    (4) Population data from the most recent census conducted by the 
United States Bureau of Census as updated by the Alaska Department of 
Labor shall be utilized in this process.
    (5) Community or area characteristics shall be considered in 
evaluating a community's rural or non-rural status. The characteristics 
may include, but are not limited to:
    (i) Use of fish and wildlife;
    (ii) Development and diversity of the economy;
    (iii) Community infrastructure;
    (iv) Transportation; and
    (v) Educational institutions.
    (6) Communities or areas which are economically, socially and 
communally integrated shall be considered in the aggregate.
    (b) The Board shall periodically review rural determinations. Rural 
determinations shall be reviewed on a ten year cycle, commencing with 
the publication of the year 2000 U.S. census. Rural determinations may 
be reviewed out-of-cycle in special circumstances. Once the Board makes 
a determination that a community has changed from rural to non-rural, a 
waiting period of five years shall be required before the non-rural 
determination becomes effective.
    (c) Current determinations are listed at Sec. 242.23.



Sec. 242.16  Customary and traditional use determination process.

    (a) The Board shall determine which fish stocks and wildlife 
populations have been customarily and traditionally used for 
subsistence. These determinations shall identify the specific 
community's or area's use of specific fish stocks and wildlife 
populations. For areas managed by the National Park Service, where 
subsistence uses are allowed, the determinations may be made on an 
individual basis.
    (b) A community or area shall generally exhibit the following 
factors, which exemplify customary and traditional use. The Board shall 
make customary and traditional use determinations based on application 
of the following factors:
    (1) A long-term consistent pattern of use, excluding interruptions 
beyond the control of the community or area;
    (2) A pattern of use recurring in specific seasons for many years;
    (3) A pattern of use consisting of methods and means of harvest 
which are characterized by efficiency and economy of effort and cost, 
conditioned by local characteristics;
    (4) The consistent harvest and use of fish or wildlife as related to 
past methods and means of taking; near, or reasonably accessible from 
the community or area;
    (5) A means of handling, preparing, preserving, and storing fish or 
wildlife

[[Page 210]]

which has been traditionally used by past generations, including 
consideration of alteration of past practices due to recent 
technological advances, where appropriate;
    (6) A pattern of use which includes the handing down of knowledge of 
fishing and hunting skills, values and lore from generation to 
generation;
    (7) A pattern of use in which the harvest is shared or distributed 
within a definable community of persons; and
    (8) A pattern of use which relates to reliance upon a wide diversity 
of fish and wildlife resources of the area and which provides 
substantial cultural, economic, social, and nutritional elements to the 
community or area.
    (c) The Board shall take into consideration the reports and 
recommendations of any appropriate Regional Council regarding customary 
and traditional uses of subsistence resources.
    (d) Current determinations are listed in Sec. 242.24.



Sec. 242.17  Determining priorities for subsistence uses among rural Alaska residents.

    (a) Whenever it is necessary to restrict the subsistence taking of 
fish and wildlife on public lands in order to protect the continued 
viability of such populations, or to continue subsistence uses, the 
Board shall establish a priority among the rural Alaska residents after 
considering any recommendation submitted by an appropriate Regional 
Council.
    (b) The priority shall be implemented through appropriate 
limitations based on the application of the following criteria to each 
area, community, or individual determined to have customary and 
traditional use, as necessary:
    (1) Customary and direct dependence upon the populations as the 
mainstay of livelihood;
    (2) Local residency; and
    (3) The availability of alternative resources.
    (c) If allocation on an area or community basis is not achievable, 
then the Board shall allocate subsistence opportunity on an individual 
basis through application of the criteria in paragraphs (b) (1) through 
(3) of this section.
    (d) In addressing a situation where prioritized allocation becomes 
necessary, the Board shall solicit recommendations from the Regional 
Council in the area affected.



Sec. 242.18  Regulation adoption process.

    (a) Proposals for changes to the Federal subsistence regulations in 
subpart D of this part shall be accepted by the Board according to a 
published schedule. The Board may establish a rotating schedule for 
accepting proposals on various parts of subpart D regulations over a 
period of years. The Board shall develop and publish proposed 
regulations in the Federal Register and publish notice in local 
newspapers. Comments on the proposed regulations in the form of 
proposals shall be distributed for public review.
    (1) Proposals shall be made available for at least a thirty (30) day 
review by the Regional Councils. Regional Councils shall forward their 
recommendations on proposals to the Board. Such proposals with 
recommendations may be submitted in the time period as specified by the 
Board or as a part of the Regional Council's annual report described in 
Sec. 242.11, whichever is earlier.
    (2) The Board shall publish notice throughout Alaska of the 
availability of proposals received.
    (3) The public shall have at least thirty (30) days to review and 
comment on proposals.
    (4) After the comment period the Board shall meet to receive public 
testimony and consider the proposals. The Board shall consider 
traditional use patterns when establishing harvest levels and seasons, 
and methods and means. The Board may choose not to follow any 
recommendation which the Board determines is not supported by 
substantial evidence, violates recognized principles of fish and 
wildlife conservation, or would be detrimental to the satisfaction of 
subsistence needs. If a recommendation approved by a Regional Council is 
not adopted by the Board, the Board shall set forth the factual basis 
and the reasons for its decision in writing to the Regional Council.
    (5) Following consideration of the proposals the Board shall publish 
final

[[Page 211]]

regulations pertaining to subpart D of this part in the Federal 
Register.
    (b) Proposals for changes to subpart C of this part shall be 
accepted by the Board according to a published schedule. The Board shall 
develop and publish proposed regulations in the Federal Register and 
publish notice in local newspapers. Comments on the proposed regulations 
in the form of proposals shall be distributed for public review.
    (1) Public and governmental proposals shall be made available for a 
thirty (30) day review by the regional councils. Regional Councils shall 
forward their recommendations on proposals to the Board. Such proposals 
with recommendations may be submitted within the time period as 
specified by the Board or as a part of the Regional Council's annual 
report described in Sec. 242.11, whichever is earlier.
    (2) The Board shall publish notice throughout Alaska of the 
availability of proposals received.
    (3) The public shall have at least thirty (30) days to review and 
comment on proposals.
    (4) After the comment period the Board shall meet to receive public 
testimony and consider the proposals. The Board may choose not to follow 
any recommendation which the Board determines is not supported by 
substantial evidence, violates recognized principles of fish and 
wildlife conservation, or would be detrimental to the satisfaction of 
subsistence needs. If a recommendation approved by a Regional Council is 
not adopted by the Board, the Board shall set forth the factual basis 
and the reasons for their decision in writing to the Regional Council.
    (5) Following consideration of the proposals the Board shall publish 
final regulations pertaining to subpart C of this part in the Federal 
Register. A Board decision to change a community's or area's status from 
rural to non-rural will not become effective until five years after the 
decision has been made.
    (c) [Reserved]
    (d) Proposals for changes to subparts A and B of this part shall be 
accepted by the Secretary of the Interior in accordance with 43 CFR Part 
14.



Sec. 242.19  Closures and other special actions.

    (a) The Board may make or direct restriction, closure, or opening 
for the taking of fish and wildlife for non-subsistence uses on public 
lands when necessary to assure the continued viability of particular 
fish or wildlife population, to continue subsistence uses of a fish or 
wildlife population, or for reasons of public safety or administration.
    (b) After consulting with the State of Alaska, providing adequate 
notice to the public, and holding at least one public hearing in the 
vicinity of the affected communities, the Board may make or direct 
temporary openings or closures to subsistence uses of a particular fish 
or wildlife population on public lands to assure the continued viability 
of a fish or wildlife population, or for reasons of public safety or 
administration. A temporary opening or closure will not extend beyond 
the regulatory year for which it is promulgated.
    (c) In an emergency situation, the Board may direct immediate 
openings or closures related to subsistence or non-subsistence uses of 
fish and wildlife on public lands, if necessary to assure the continued 
viability of a fish or wildlife population, to continue subsistence uses 
of fish or wildlife, or for public safety reasons. The Board shall 
publish notice and reasons justifying the emergency closure in the 
Federal Register and in newspapers of any area affected. The emergency 
closure shall be effective when directed by the Board, may not exceed 60 
days, and may not be extended unless it is determined by the Board, 
after notice and hearing, that such closure should be extended.
    (d) The Board may make or direct a temporary change to open or 
adjust the seasons or to increase the bag limits for subsistence uses of 
fish and wildlife populations on public lands. An affected rural 
resident, community, Regional Council, or administrative agency may 
request a temporary change in seasons or bag limits. Prior to 
implementing a temporary change, the Board shall consult with the State, 
shall comply with the provisions of 5 U.S.C. 551-559 (Administrative 
Procedure Act or APA), and shall provide

[[Page 212]]

adequate notice and opportunity to comment. The length of any temporary 
change shall be confined to the minimum time period or bag limit 
determined by the Board to be necessary to satisfy subsistence uses. In 
addition, a temporary change may be made only after the Board determines 
that the proposed temporary change will not interfere with the 
conservation of healthy fish and wildlife populations. The decision of 
the Board shall be the final administrative action.
    (e) Regulations authorizing any individual agency to direct 
temporary or emergency closures on public lands managed by the agency 
remain unaffected by the regulations in this part, which authorize the 
Board to make or direct restrictions, closures, or temporary changes for 
subsistence uses on public lands.
    (f) You may not take fish and wildlife in violation of a 
restriction, closure, opening, or temporary change authorized by the 
Board.



Sec. 242.20  Request for reconsideration.

    (a) Regulations in subparts C and D of this part published in the 
Federal Register are subject to requests for reconsideration.
    (b) Any aggrieved person may file a request for reconsideration with 
the Board.
    (c) To file a request for reconsideration, you must notify the Board 
in writing within sixty (60) days of the effective date or date of 
publication of the notice, whichever is earliest, for which 
reconsideration is requested.
    (d) It is your responsibility to provide the Board with sufficient 
narrative evidence and argument to show why the action by the Board 
should be reconsidered. You must include the following information in 
your request for reconsideration:
    (1) Your name, and mailing address;
    (2) The action which you request be reconsidered and the date of 
Federal Register publication of that action;
    (3) A detailed statement of how you are adversely affected by the 
action;
    (4) A detailed statement of the facts of the dispute, the issues 
raised by the request, and specific references to any law, regulation, 
or policy that you believe to be violated and your reason for such 
allegation;
    (5) A statement of how you would like the action changed.
    (e) Upon receipt of a request for reconsideration, the Board shall 
transmit a copy of such request to any appropriate Regional Council for 
review and recommendation. The Board shall consider any Regional Council 
recommendations in making a final decision.
    (f) If the request is justified, the Board shall implement a final 
decision on a request for reconsideration after compliance with 5 U.S.C. 
551-559 (APA).
    (g) If the request is denied, the decision of the Board represents 
the final administrative action.



Sec. 242.21  [Reserved]



                     Subpart C--Board Determinations

    Source:  64 FR 1293, Jan. 8, 1999, unless otherwise noted.

    Effective Date Note:  At 64 FR 1293 subpart C to part 242 was 
revised, effective Oct. 1, 1999. At 64 FR 35780, July 1, 1999, 
Sec. 242.24 was revised again, effective July 1, 1999. For the 
convenience of the user, the superseded text follows this subpart.



Sec. 242.22  Subsistence resource regions.

    (a) The Board hereby designates the following areas as subsistence 
resource regions:
    (1) Southeast Region;
    (2) Southcentral Region;
    (3) Kodiak/Aleutians Region;
    (4) Bristol Bay Region;
    (5) Yukon-Kuskokwim Delta Region;
    (6) Western Interior Region;
    (7) Seward Peninsula Region;
    (8) Northwest Arctic Region;
    (9) Eastern Interior Region;
    (10) North Slope Region.
    (b) You may obtain maps delineating the boundaries of subsistence 
resources regions from the U.S. Fish and Wildlife Service, 1011 East 
Tudor Road, Anchorage, Alaska 99503.



Sec. 242.23  Rural determinations.

    (a) The Board has determined all communities and areas to be rural 
in accordance with Sec. 242.15 except the following:

    Adak;

[[Page 213]]

    Fairbanks North Star Borough;
    Homer area--including Homer, Anchor Point, Kachemak City, and Fritz 
Creek;
    Juneau area--including Juneau, West Juneau and Douglas;
    Kenai area--including Kenai, Soldotna, Sterling, Nikiski, Salamatof, 
Kalifornsky, Kasilof, and Clam Gulch;
    Ketchikan area--including Ketchikan City, Clover Pass, North Tongass 
Highway, Ketchikan East, Mountain Pass, Herring Cove, Saxman East, and 
parts of Pennock Island;
    Municipality of Anchorage;
    Seward area--including Seward and Moose Pass;
    Valdez; and
    Wasilla area--including Palmer, Wasilla, Sutton, Big Lake, Houston, 
and Bodenberg Butte.

    (b) You may obtain maps delineating the boundaries of non-rural 
areas from the U.S. Fish and Wildlife Service at the address in 
Sec. 242.22(b).



Sec. 242.24  Customary and traditional use determinations.

    (a) The Federal Subsistence Board has determined that rural Alaska 
residents of the listed communities, areas, and individuals have 
customary and traditional use of the specified species on Federal public 
land in the specified areas. Persons granted individual customary and 
traditional use determinations will be notified in writing by the Board. 
The Fish & Wildlife Service and the local NPS Superintendent will 
maintain the list of individuals having customary and traditional use on 
National Parks and Monuments. A copy of the list is available upon 
request. When there is a determination for specific communities or areas 
of residence in a Unit, all other communities not listed for that 
species in that Unit have no Federal subsistence for that species in 
that Unit. If no determination has been made for a species in a Unit, 
all rural Alaska residents are eligible to harvest fish or wildlife 
under this Part.
    (1) Wildlife determinations.

------------------------------------------------------------------------
             Area                    Species           Determination
------------------------------------------------------------------------
Unit 1(C).....................  Black Bear.......  Residents of Unit
                                                    1(C), 1(D), 3, and
                                                    residents of Hoonah,
                                                    Pelican, Point
                                                    Baker, Sitka, and
                                                    Tenakee Springs.
1(A)..........................  Brown Bear.......  Residents of Unit
                                                    1(A) except no
                                                    subsistence for
                                                    residents of Hyder.
1(B)..........................  Brown Bear.......  Residents of Unit
                                                    1(A), Petersburg,
                                                    and Wrangell, except
                                                    no subsistence for
                                                    residents of Hyder.
1(C)..........................  Brown Bear.......  Residents of Unit
                                                    1(C), Haines,
                                                    Hoonah, Kake,
                                                    Klukwan, Skagway,
                                                    and Wrangell, except
                                                    no subsistence for
                                                    residents of
                                                    Gustavus.
1(D)..........................  Brown Bear.......  Residents of 1(D).
1(A)..........................  Deer.............  Residents of 1(A) and
                                                    2.
1(B)..........................  Deer.............  Residents of Unit
                                                    1(A), residents of
                                                    1(B), 2 and 3.
1(C)..........................  Deer.............  Residents of 1(C) and
                                                    (D), and residents
                                                    of Hoonah, Kake, and
                                                    Petersburg.
1(D)..........................  Deer.............  No Federal
                                                    subsistence
                                                    priority.
1(B)..........................  Goat.............  Residents of Units
                                                    1(B) and 3.
1(C)..........................  Goat.............  Residents of Haines,
                                                    Kake, Klukwan,
                                                    Petersburg, and
                                                    Hoonah.
1(B)..........................  Moose............  Residents of Units,
                                                    1, 2, 3, and 4.
1(C) Berner's Bay.............  Moose............  No Federal
                                                    subsistence
                                                    priority.
1(D)..........................  Moose............  Residents of Unit
                                                    1(D).
Unit 2........................  Brown Bear.......  No Federal
                                                    subsistence
                                                    priority.
2.............................  Deer.............  Residents of Unit
                                                    1(A) and residents
                                                    of Units 2 and 3.
Unit 3........................  Deer.............  Residents of Unit
                                                    1(B) and 3, and
                                                    residents of Port
                                                    Alexander, Port
                                                    Protection, Pt.
                                                    Baker, and Meyer's
                                                    Chuck.
3, Wrangell and Mitkof Islands  Moose............  Residents of Units
                                                    1(B), 2, and 3.
Unit 4........................  Brown Bear.......  Residents of Unit 4
                                                    and Kake.
4.............................  Deer.............  Residents of Unit 4
                                                    and residents of
                                                    Kake, Gustavus,
                                                    Haines, Petersburg,
                                                    Pt. Baker, Klukwan,
                                                    Port Protection,
                                                    Wrangell, and
                                                    Yakutat.
4.............................  Goat.............  Residents of Sitka,
                                                    Hoonah, Tenakee,
                                                    Pelican, Funter Bay,
                                                    Angoon, Port
                                                    Alexander, and Elfin
                                                    Cove.
Unit 5........................  Black Bear.......  Residents of Unit
                                                    5(A).
5.............................  Brown Bear.......  Residents of Yakutat.

[[Page 214]]

 
5.............................  Deer.............  Residents of Yakutat.
5.............................  Goat.............  Residents of Unit
                                                    5(A).
5.............................  Moose............  Residents of Unit
                                                    5(A).
5.............................  Wolf.............  Residents of Unit
                                                    5(A).
Unit 6(A).....................  Black Bear.......  Residents of Yakutat
                                                    and residents of
                                                    6(C) and 6(D),
                                                    except no
                                                    subsistence for
                                                    Whittier.
6, remainder..................  Black Bear.......  Residents of Unit
                                                    6(C) and 6(D),
                                                    except no
                                                    subsistence for
                                                    Whittier.
6.............................  Brown Bear.......  No Federal
                                                    subsistence
                                                    priority.
6(A)..........................  Goat.............  Residents of Unit
                                                    5(A), 6(C), Chenega
                                                    Bay and Tatitlek.
6(C) and (D)..................  Goat.............  Residents of Unit
                                                    6(C) and (D).
6(A)..........................  Moose............  Unit 6(A)--Residents
                                                    of Units 5(A), 6(A),
                                                    6(B) and 6(C).
6(B) and (C)..................  Moose............  Residents of Units
                                                    6(A), 6(B) and 6(C).
6(D)..........................  Moose............  No Federal
                                                    subsistence
                                                    priority.
6(A)..........................  Wolf.............  Residents of Units
                                                    5(A), 6, 9,
                                                    10(Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
6, remainder..................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon and 16-
                                                    26.
Unit 7........................  Brown Bear.......  No Federal
                                                    subsistence
                                                    priority.
7.............................  Caribou..........  No Federal
                                                    subsistence
                                                    priority.
7, Brown Mountain hunt area...  Goat.............  Residents of Port
                                                    Graham and English
                                                    Bay.
7, that portion draining into   Moose............  Residents of Chenega
 Kings Bay.                                         Bay and Tatitlek.
7, remainder..................  Moose............  No Federal
                                                    subsistence
                                                    priority.
7.............................  Sheep............  No Federal
                                                    subsistence
                                                    priority.
Unit 8........................  Brown Bear.......  Residents of Old
                                                    Harbor, Akhiok,
                                                    Larsen Bay, Karluk,
                                                    Ouzinkie, and Port
                                                    Lions.
8.............................  Deer.............  Residents of Unit 8.
8.............................  Elk..............  Residents of Unit 8.
8.............................  Goat.............  No Federal
                                                    subsistence
                                                    priority.
Unit 9(D).....................  Bison............  No Federal
                                                    subsistence
                                                    priority.
9(A) and (B)..................  Black Bear.......  Residents of Units
                                                    9(A) and (B), and
                                                    17(A), (B), and (C).
9(A)..........................  Brown Bear.......  Residents of Pedro
                                                    Bay.
9(B)..........................  Brown Bear.......  Residents of Unit
                                                    9(B).
9(C)..........................  Brown Bear.......  Residents of Unit
                                                    9(C).
9(D)..........................  Brown Bear.......  Residents of Units
                                                    9(D) and 10 (Unimak
                                                    Island).
9(E)..........................  Brown Bear.......  Residents of Chignik,
                                                    Chignik Lagoon,
                                                    Chignik Lake,
                                                    Egegik, Ivanof Bay,
                                                    Perryville, Pilot
                                                    Point, Ugashik, and
                                                    Port Heiden/Meshik.
9(A) and (B)..................  Caribou..........  Residents of Units
                                                    9(B), 9(C) and 17.
9(C)..........................  Caribou..........  Residents of Unit
                                                    9(B), 9(C), 17 and
                                                    residents of Egegik.
9(D)..........................  Caribou..........  Residents of Unit
                                                    9(D), and residents
                                                    of False Pass.
9(E)..........................  Caribou..........  Residents of Units
                                                    9(B), (C), (E), 17,
                                                    and residents of
                                                    Nelson Lagoon and
                                                    Sand Point.
9(A), (B), (C) and (E)........  Moose............  Residents of Unit
                                                    9(A), (B), (C) and
                                                    (E).
9(D)..........................  Moose............  Residents of Cold
                                                    Bay, False Pass,
                                                    King Cove, Nelson
                                                    Lagoon, and Sand
                                                    Point.
9(B)..........................  Sheep............  Residents of Iliamna,
                                                    Newhalen, Nondalton,
                                                    Pedro Bay, and Port
                                                    Alsworth.
9, remainder..................  Sheep............  No determination.
9.............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon and 16-
                                                    26.
9(A), (B), (C), & (E).........  Beaver...........  Residents of Units
                                                    9(A), (B), (C), (E),
                                                    and 17.
Unit 10 Unimak Island.........  Brown Bear.......  Residents of Units
                                                    9(D) and 10 (Unimak
                                                    Island).
Unit 10 Unimak Island.........  Caribou..........  Residents of False
                                                    Pass, King Cove, and
                                                    Sand Point.
10, remainder.................  Caribou..........  No determination.
10............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon and 16-
                                                    26.
Unit 11.......................  Bison............  No Federal
                                                    subsistence
                                                    priority.
11, north of the Sanford River  Black Bear.......   Residents of
                                                    Chistochina,
                                                    Chitina, Copper
                                                    Center, Gakona,
                                                    Glennallen, Gulkana,
                                                    Kenny Lake, Mentasta
                                                    Lake, Tazlina,
                                                    Tonsina, and Units
                                                    11 and 12.

[[Page 215]]

 
11, remainder.................  Black Bear.......   Residents of
                                                    Chistochina,
                                                    Chitina, Copper
                                                    Center, Gakona,
                                                    Glennallen, Gulkana,
                                                    Kenny Lake, Mentasta
                                                    Lake, Tazlina,
                                                    Tonsina, and Unit
                                                    11.
11, north of the Sanford River  Brown Bear.......   Residents of
                                                    Chistochina,
                                                    Chitina, Copper
                                                    Center, Gakona,
                                                    Glennallen, Gulkana,
                                                    Kenny Lake, Mentasta
                                                    Lake, Tazlina,
                                                    Tonsina, and Units
                                                    11 and 12.
11, remainder.................  Brown Bear.......   Residents of
                                                    Chistochina,
                                                    Chitina, Copper
                                                    Center, Gakona,
                                                    Glennallen, Gulkana,
                                                    Kenny Lake, Mentasta
                                                    Lake, Tazlina,
                                                    Tonsina, and Unit
                                                    11.
11, north of the Sanford River  Caribou..........  Residents of Units
                                                    11, 12, and 13 (A)-
                                                    (D) and the
                                                    residents of
                                                    Chickaloon, Healy
                                                    Lake, and Dot Lake.
11, remainder.................  Caribou..........  Residents of Units 11
                                                    and 13 (A)-(D) and
                                                    the residents of
                                                    Chickaloon.
11............................  Goat.............  Residents of Unit 11
                                                    and the residents of
                                                    Chitina,
                                                    Chistochina, Copper
                                                    Center, Gakona,
                                                    Glennallen, Gulkana,
                                                    Mentasta Lake,
                                                    Tazlina, Tonsina,
                                                    and Dot Lake.
11, north of the Sanford River  Moose............  Residents of Units
                                                    11, 12, and 13 (A)-
                                                    (D) and the
                                                    residents of
                                                    Chickaloon, Healy
                                                    Lake, and Dot Lake.
11, remainder.................  Moose............  Residents of Units
                                                    11, 13 (A)-(D), and
                                                    residents of
                                                    Chickaloon.
11, north of the Sanford River  Sheep............  Residents of Unit 12
                                                    and the communities
                                                    and areas of
                                                    Chistochina,
                                                    Chitina, Copper
                                                    Center, Dot Lake,
                                                    Gakona, Glennallen,
                                                    Gulkana, Healy Lake,
                                                    Kenny Lake, Mentasta
                                                    Lake, Slana,
                                                    McCarthy/South
                                                    Wrangell/ South
                                                    Park, Tazlina and
                                                    Tonsina; residents
                                                    along the Nabesna
                                                    Road--Milepost 0-46
                                                    (Nabesna Road), and
                                                    residents along the
                                                    McCarthy Road--
                                                    Milepost 0-62
                                                    (McCarthy Road).
11, remainder.................  Sheep............  Residents of the
                                                    communities and
                                                    areas of Chisana,
                                                    Chistochina,
                                                    Chitina, Copper
                                                    Center, Gakona,
                                                    Glennallen, Gulkana,
                                                    Kenny Lake, Mentasta
                                                    Lake, Slana,
                                                    McCarthy/South
                                                    Wrangell/ South
                                                    Park, Tazlina and
                                                    Tonsina; residents
                                                    along the Tok
                                                    Cutoff--Milepost 79-
                                                    110 (Mentasta Pass),
                                                    residents along the
                                                    Nabesna Road--
                                                    Milepost 0-46
                                                    (Nabesna Road), and
                                                    residents along the
                                                    McCarthy Road--
                                                    Milepost 0-62
                                                    (McCarthy Road).
11............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon and 16-
                                                    26.
11............................  Grouse (Spruce,     Residents of Units
                                 Blue, Ruffed and   11, 12, 13 and the
                                 Sharp-tailed).     residents of
                                                    Chickaloon, 15, 16,
                                                    20(D), 22 and 23.
11............................  Ptarmigan (Rock,    Residents of Units
                                 Willow and White-  11, 12, 13 and the
                                 tailed).           residents of
                                                    Chickaloon, 15, 16,
                                                    20(D), 22 and 23.
Unit 12.......................  Brown Bear.......  Residents of Unit 12
                                                    and Dot Lake,
                                                    Chistochina, Gakona,
                                                    Mentasta Lake, and
                                                    Slana.
12............................  Caribou..........  Residents of Unit 12
                                                    and residents of Dot
                                                    Lake, Healy Lake,
                                                    and Mentasta Lake.
12, south of a line from Noyes  Moose............   Residents of Unit 11
 Mountain, southeast of the                         north of 62nd
 confluence of Tatschunda                           parallel (excluding
 Creek to Nabesna River..                           North Slana
                                                    Homestead and South
                                                    Slana Homestead);
                                                    and residents of
                                                    Unit 12, 13(A)-(D)
                                                    and the residents of
                                                    Chickaloon, Dot
                                                    Lake, and Healy
                                                    Lake.
12, east of the Nabesna River   Moose............   Residents of Unit 12
 and Nabesna Glacier, south of                      and Healy Lake.
 the Winter Trail from
 Pickerel Lake to the Canadian
 Border..
12, remainder.................  Moose............   Residents of Unit 12
                                                    and residents of Dot
                                                    Lake, Healy Lake,
                                                    and Mentasta Lake.
12............................  Sheep............   Residents of Unit 12
                                                    and residents of
                                                    Chistochina, Dot
                                                    Lake, Healy Lake,
                                                    and Mentasta Lake.
12............................  Wolf.............   Residents of Units
                                                    6, 9, 10 (Unimak
                                                    Island only), 11-13
                                                    and the residents of
                                                    Chickaloon and 16-
                                                    26.
Unit 13.......................  Brown Bear.......  Residents of Unit 13.

[[Page 216]]

 
13(B).........................  Caribou..........  Residents of Units
                                                    11, 12 (along the
                                                    Nabesna Road), 13,
                                                    residents of Unit
                                                    20(D) except Fort
                                                    Greely, and the
                                                    residents of
                                                    Chickaloon.
13(C).........................  Caribou..........  Residents of Units
                                                    11, 12 (along the
                                                    Nabesna Road), 13,
                                                    and the residents of
                                                    Chickaloon, Dot Lake
                                                    and Healy Lake.
13(A) & (D)...................  Caribou..........  Residents of Units
                                                    11, 12 (along the
                                                    Nabesna Road), 13,
                                                    and the residents of
                                                    Chickaloon.
13(E).........................  Caribou..........  Residents of Units
                                                    11, 12 (along the
                                                    Nabesna Road), 13,
                                                    and the residents of
                                                    Chickaloon, McKinley
                                                    Village, and the
                                                    area along the Parks
                                                    Highway between
                                                    milepost 216 and 239
                                                    (except no
                                                    subsistence for
                                                    residents of Denali
                                                    National Park
                                                    headquarters).
13(D).........................  Goat.............  No Federal
                                                    subsistence
                                                    priority.
13(A) and (D).................  Moose............  Residents of Unit 13
                                                    and the residents of
                                                    Chickaloon.
13(B).........................  Moose............  Residents of Units
                                                    13, 20(D) except
                                                    Fort Greely, and the
                                                    residents of
                                                    Chickaloon.
13(C).........................  Moose............  Residents of Units
                                                    12, 13 and the
                                                    residents of
                                                    Chickaloon, Healy
                                                    Lake, and Dot Lake.
13(E).........................  Moose............  Residents of Unit 13
                                                    and the residents of
                                                    Chickaloon and of
                                                    McKinley Village,
                                                    and the area along
                                                    the Parks Highway
                                                    between milepost 216
                                                    and 239 (except no
                                                    subsistence for
                                                    residents of Denali
                                                    National Park
                                                    headquarters).
13(D).........................  Sheep............  No Federal
                                                    subsistence
                                                    priority.
13............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
13............................  Grouse (Spruce,    Residents of Units
                                 Blue, Ruffed &     11, 13 and the
                                 Sharp-tailed.      residents of
                                                    Chickaloon, 15, 16,
                                                    20(D), 22 & 23.
13............................  Ptarmigan (Rock,   Residents of Units
                                 Willow and White-  11, 13 and the
                                 tailed).           residents of
                                                    Chickaloon, 15, 16,
                                                    20(D), 22 & 23.
Unit 14(B) and (C)............  Brown Bear.......  No Federal
                                                    subsistence
                                                    priority.
14............................  Goat.............  No Federal
                                                    subsistence
                                                    priority.
14............................  Moose............  No Federal
                                                    subsistence
                                                    priority.
14(A) and (C).................  Sheep............  No Federal
                                                    subsistence
                                                    priority.
Unit 15(C)....................  Black Bear.......  Residents of Port
                                                    Graham and Nanwalek
                                                    only.
15, remainder.................  Black Bear.......  No Federal
                                                    subsistence
                                                    priority.
15............................  Brown Bear.......  No Federal
                                                    subsistence
                                                    priority.
15(C), Port Graham and English  Goat.............  Residents of Port
 Bay hunt areas.                                    Graham and Nanwalek.
15(C), Seldovia hunt area.....  Goat.............  Residents Seldovia
                                                    area.
15............................  Moose............  Residents of
                                                    Ninilchik, Nanwalek,
                                                    Port Graham, and
                                                    Seldovia.
15............................  Sheep............  No Federal
                                                    subsistence
                                                    priority.
15............................  Ptarmigan (Rock,   Residents of Unit 15.
                                 Willow and White-
                                 tailed).
15............................  Grouse (Spruce)..  Residents of Unit 15.
15............................  Grouse (Ruffed)..  No Federal
                                                    subsistence
                                                    priority.
Unit 16(B)....................  Black Bear.......  Residents of Unit
                                                    16(B).
16............................  Brown Bear.......  No Federal
                                                    subsistence
                                                    priority.
16(A).........................  Moose............  No Federal
                                                    subsistence
                                                    priority.
16(B).........................  Moose............  Residents of Unit
                                                    16(B).
16............................  Sheep............  No Federal
                                                    subsistence
                                                    priority.
16............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
16............................  Grouse (Spruce,    Residents of Units
                                 Blue, Ruffed and   11, 13 and the
                                 Sharp-tailed).     residents of
                                                    Chickaloon, 15, 16,
                                                    20(D), 22 and 23.
16............................  Ptarmigan (Rock,   Residents of Units
                                 Willow and White-  11, 13 and the
                                 tailed).           residents of
                                                    Chickaloon, 15, 16,
                                                    20(D), 22 and 23.
Unit 17(A) and that portion of  Black Bear.......  Residents of Units
 17(B) draining into Nuyakuk                        9(A) and (B), 17,
 Lake and Tikchik Lake.                             and residents of
                                                    Akaik and Akiachak.
17, remainder.................  Black Bear.......  Residents of Units
                                                    9(A) and (B), and
                                                    17.
17(A).........................  Brown Bear.......  Residents of Unit 17,
                                                    and residents of
                                                    Akiak, Akiachak,
                                                    Goodnews Bay and
                                                    Platinum.

[[Page 217]]

 
17(A) and (B), those portions   Brown Bear.......  Residents of
 north and west of a line                           Kwethluk.
 beginning from the Unit 18
 boundary at the northwest end
 of Nenevok Lake, to the
 southern point of upper
 Togiak Lake, and northeast to
 the northern point of Nuyakuk
 Lake, northeast to the point
 where the Unit 17 boundary
 intersects the Shotgun Hills.
17(B), that portion draining    Brown Bear.......  Residents of Akaik
 into Nuyakuk Lake and Tikchik                      and Akiachak.
 Lake.
17(B) and (C).................  Brown Bear.......  Residents of Unit 17.
17............................  Caribou..........  Residents of Units
                                                    9(B), 17 and
                                                    residents of Lime
                                                    Village and Stony
                                                    River.
Unit 17(A, that portion west    Caribou..........  Residents of Goodnews
 of the Izaveieknik River,                          Bay, Platinum,
 Upper Togiak Lake, Togiak                          Quinhagak, Eek,
 Lake, and the main course of                       Tuntutuliak, and
 the Togiak River.                                  Napakiak.
17(A) and (B), those portions   Caribou..........  Residents of
 north and west of a line                           Kwethluk.
 beginning from the Unit 18
 boundary at the northwest end
 of Nenevok Lake, to the
 southern point of upper
 Togiak Lake, and northeast to
 the northern point of Nuyakuk
 Lake, northeast to the point
 where the Unit 17 boundary
 intersects the Shotgun Hills.
Unit 17(B), that portion of     Caribou..........  Residents of Bethel,
 Togiak National Wildlife                           Goodnews Bay,
 Refuge within Unit 17(B).                          Platinum, Quinhagak,
                                                    Eek, Tuntutuliak,
                                                    and Napakiak.
17(A) and (B), those portions   Moose............  Residents of
 north and west of a line                           Kwethluk.
 beginning from the Unit 18
 boundary at the northwest end
 of Nenevok Lake, to the
 southern point of upper
 Togiak Lake, and northeast to
 the northern point of Nuyakuk
 Lake, northeast to the point
 where the Unit 17 boundary
 intersects the Shotgun Hills.
17(A).........................  Moose............  Residents of Unit 17
                                                    and residents of
                                                    Goodnews Bay and
                                                    Platinum; however,
                                                    no subsistence for
                                                    residents of
                                                    Akiachak, Akiak and
                                                    Quinhagak.
17(B) and (C).................  Moose............  Residents of Unit 17,
                                                    and residents of
                                                    Nondalton, Levelock,
                                                    Goodnews Bay, and
                                                    Platinum.
17............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
17............................  Beaver...........  Residents of Units
                                                    9(A), (B), (C), (E),
                                                    and 17.
Unit 18.......................  Black Bear.......  Residents of Unit 18,
                                                    residents of Unit
                                                    19(A) living
                                                    downstream of the
                                                    Holokuk River, and
                                                    residents of Holy
                                                    Cross, Stebbins, St.
                                                    Michael, Twin Hills,
                                                    and Togiak.
18............................  Brown Bear.......  Residents of
                                                    Akiachak, Akiak,
                                                    Eek, Goodnews Bay,
                                                    Kwethluk, Mt.
                                                    Village, Napaskiak,
                                                    Platinum, Quinhagak,
                                                    St. Mary's, and
                                                    Tuluksak.
18............................  Caribou (Kilbuck   INTERIM DETERMINATION
                                 caribou herd       BY FEDERAL
                                 only).             SUBSISTENCE BOARD
                                                    (12/18/91):
                                                    residents of
                                                    Tuluksak, Akiak,
                                                    Akiachak, Kwethluk,
                                                    Bethel, Oscarville,
                                                    Napaskiak, Napakiak,
                                                    Kasigluk,
                                                    Atmanthluak,
                                                    Nunapitchuk,
                                                    Tuntutliak, Eek,
                                                    Quinhagak, Goodnews
                                                    Bay, Platinum,
                                                    Togiak, and Twin
                                                    Hills.
18, north of the Yukon River..  Caribou (except    Residents of
                                 Kilbuck caribou    Alakanuk,
                                 herd).             Andreafsky, Chevak,
                                                    Emmonak, Hooper Bay,
                                                    Kotlik, Kwethluk,
                                                    Marshall, Mountain
                                                    Village, Pilot
                                                    Station, Pitka's
                                                    Point, Russian
                                                    Mission, St. Marys,
                                                    St. Michael, Scammon
                                                    Bay, Sheldon Point,
                                                    and Stebbins.
18, remainder.................  Caribou (except    Residents of
                                 Kilbuck caribou    Kwethluk.
                                 herd).
18, that portion of the Yukon   Moose............  Residents of Unit 18
 River drainage upstream of                         and residents of
 Russian Mission and that                           Upper Kalskag, Lower
 portion of the Kuskokwim                           Kalskag, Aniak, and
 River drainage upstream of,                        Chuathbaluk.
 but not including the
 Tuluksak River drainage.
18, remainder.................  Moose............  Residents of Unit 18
                                                    and residents of
                                                    Upper Kalskag and
                                                    Lower Kalskag.
18............................  Muskox...........  No Federal
                                                    subsistence
                                                    priority.
18............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon and 16-
                                                    26.
Unit 19(C), (D)...............  Bison............  No Federal
                                                    subsistence
                                                    priority.

[[Page 218]]

 
19(A) and (B).................  Brown Bear.......  Residents of Units 19
                                                    and 18 within the
                                                    Kuskokwim River
                                                    drainage upstream
                                                    from, and including,
                                                    the Johnson River.
19(C).........................  Brown Bear.......  No Federal
                                                    subsistence
                                                    priority.
19(D).........................  Brown Bear.......  Residents of Units
                                                    19(A) and (D), and
                                                    residents of Tulusak
                                                    and Lower Kalskag.
19(A) and (B).................  Caribou..........  Residents of Units
                                                    19(A) and 19(B),
                                                    residents of Unit 18
                                                    within the Kuskokwim
                                                    River drainage
                                                    upstream from, and
                                                    including, the
                                                    Johnson River, and
                                                    residents of St.
                                                    Marys, Marshall,
                                                    Pilot Station,
                                                    Russian Mission.
19(C).........................  Caribou..........  Residents of Unit
                                                    19(C), and residents
                                                    of Lime Village,
                                                    McGrath, Nikolai,
                                                    and Telida.
19(D).........................  Caribou..........  Residents of Unit
                                                    19(D), and residents
                                                    of Lime Village,
                                                    Sleetmute, and Stony
                                                    River.
19(A) and (B).................  Moose............  Residents of Unit 18
                                                    within Kuskokwim
                                                    River drainage
                                                    upstream from and
                                                    including the
                                                    Johnson River, and
                                                    Unit 19.
Unit 19(B), west of the         Moose............  Residents of Eek and
 Kogrukluk River.                                   Quinhagak.
19(C).........................  Moose............  Residents of Unit 19.
19(D).........................  Moose............  Residents of Unit 19
                                                    and residents of
                                                    Lake Minchumina.
19............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon and 16-
                                                    26.
Unit 20(D)....................  Bison............  No Federal
                                                    subsistence
                                                    priority.
20(F).........................  Black Bear.......  Residents of Unit
                                                    20(F) and residents
                                                    of Stevens Village
                                                    and Manley.
20(E).........................  Brown Bear.......  Residents of Unit 12
                                                    and Dot Lake.
20(F).........................  Brown Bear.......  Residents of Unit
                                                    20(F) and residents
                                                    of Stevens Village
                                                    and Manley.
20(A).........................  Caribou..........  Residents of
                                                    Cantwell, Nenana,
                                                    and those domiciled
                                                    between milepost 216
                                                    and 239 of the Parks
                                                    Highway. No
                                                    subsistence priority
                                                    for residents of
                                                    households of the
                                                    Denali National Park
                                                    Headquarters.
20(B).........................  Caribou..........  Residents of Unit
                                                    20(B), Nenana, and
                                                    Tanana.
20(C).........................  Caribou..........  Residents of Unit
                                                    20(C) living east of
                                                    the Teklanika River,
                                                    residents of
                                                    Cantwell, Lake
                                                    Minchumina, Manley
                                                    Hot Springs, Minto,
                                                    Nenena, Nikolai,
                                                    Tanana, Talida, and
                                                    those domiciled
                                                    between milepost 216
                                                    and 239 of the Parks
                                                    Highway and between
                                                    milepost 300 and
                                                    309. No subsistence
                                                    priority for
                                                    residents of
                                                    households of the
                                                    Denali National Park
                                                    Headquarters.
20(D) and (E).................  Caribou..........  Residents of 20(D),
                                                    20(E), and Unit 12
                                                    north of the
                                                    Wrangell-St. Elias
                                                    National Park and
                                                    Preserve.
20(F).........................  Caribou..........  Residents of 20(F),
                                                    25(D), and Manley.
20(A).........................  Moose............  Residents of
                                                    Cantwell, Minto, and
                                                    Nenana, McKinley
                                                    Village, the area
                                                    along the Parks
                                                    Highway between
                                                    mileposts 216 and
                                                    239, except no
                                                    subsistence for
                                                    residents of
                                                    households of the
                                                    Denali National Park
                                                    Headquarters.
20(B).........................  Moose............  Minto Flats
                                                    Management Area--
                                                    residents of Minto
                                                    and Nenana.
20(B).........................  Moose............  Remainder--residents
                                                    of Unit 20(B), and
                                                    residents of Nenana
                                                    and Tanana.
20(C).........................  Moose............  Residents of Unit
                                                    20(C) (except that
                                                    portion within
                                                    Denali National Park
                                                    and Preserve and
                                                    that portion east of
                                                    the Teklanika
                                                    River), and
                                                    residents of
                                                    Cantwell, Manley,
                                                    Minto, Nenana, the
                                                    Parks Highway from
                                                    milepost 300-309,
                                                    Nikolai, Tanana,
                                                    Telida, McKinley
                                                    Village, and the
                                                    area along the Parks
                                                    Highway between
                                                    mileposts 216 and
                                                    239. No subsistence
                                                    for residents of
                                                    households of the
                                                    Denali National Park
                                                    Headquarters.
20(D).........................  Moose............  Residents of Unit
                                                    20(D) and residents
                                                    of Tanacross.
20(F).........................  Moose............  Residents of Unit
                                                    20(F), Manley,
                                                    Minto, and Stevens
                                                    Village.

[[Page 219]]

 
20(F).........................  Wolf.............  Residents of Unit
                                                    20(F) and residents
                                                    of Stevens Village
                                                    and Manley.
20, remainder.................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon and 16-
                                                    26.
20(D).........................  Grouse, (Spruce,   Residents of Units
                                 Blue, Ruffed and   11, 13 and the
                                 Sharp-tailed).     residents of
                                                    Chickaloon, 15, 16,
                                                    20(D), 22, and 23.
20(D).........................  Ptarmigan (Rock,   Residents of Units
                                 Willow and White-  11, 13 and the
                                 tailed).           residents of
                                                    Chickaloon, 15, 16,
                                                    20(D), 22, and 23.
Unit 21.......................  Brown Bear.......  Residents of Units 21
                                                    and 23.
21(A).........................  Caribou..........  Residents of Units
                                                    21(A), 21(D), 21(E),
                                                    Aniak, Chuathbaluk,
                                                    Crooked Creek,
                                                    McGrath, and
                                                    Takotna.
21(B) & (C)...................  Caribou..........  Residents of Units
                                                    21(B), 21(C), 21(D),
                                                    and Tanana.
21(D).........................  Caribou..........  Residents of Units
                                                    21(B), 21(C), 21(D),
                                                    and Huslia.
21(E).........................  Caribou..........  Residents of Units
                                                    21(A), 21(E) and
                                                    Aniak, Chuathbaluk,
                                                    Crooked Creek,
                                                    McGrath, and
                                                    Takotna.
21(A).........................  Moose............  Residents of Units
                                                    21(A), (E), Takotna,
                                                    McGrath, Aniak, and
                                                    Crooked Creek.
21(B) and (C).................  Moose............  Residents of Units
                                                    21(B) and (C),
                                                    Tanana, Ruby, and
                                                    Galena.
21(D).........................  Moose............  Residents of Units
                                                    21(D), Huslia, and
                                                    Ruby.
21(E).........................  Moose............  Residents of Unit
                                                    21(E) and residents
                                                    of Russian Mission.
21............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
Unit 22(A)....................  Black Bear.......  Residents of Unit
                                                    22(A) and Koyuk.
22(B).........................  Black Bear.......  Residents of Unit
                                                    22(B).
22(C), (D), and (E)...........  Black Bear.......  No Federal
                                                    subsistence
                                                    priority.
22............................  Brown Bear.......  Residents of Unit 22.
22(A).........................  Caribou..........  Residents of Unit
                                                    21(D) west of the
                                                    Koyukuk and Yukon
                                                    Rivers, and
                                                    residents of Units
                                                    22 (except residents
                                                    of St. Lawrence
                                                    Island), 23, 24, and
                                                    residents of Kotlik,
                                                    Emmonak, Hooper Bay,
                                                    Scammon Bay, Chevak,
                                                    Marshall, Mountain
                                                    Village, Pilot
                                                    Station, Pitka's
                                                    Point, Russian
                                                    Mission, St. Marys,
                                                    Sheldon Point, and
                                                    Alakanuk.
22, remainder.................  Caribou..........  Residents of Unit
                                                    21(D) west of the
                                                    Koyukuk and Yukon
                                                    Rivers, and
                                                    residents of Units
                                                    22 (except residents
                                                    of St. Lawrence
                                                    Island), 23, 24.
22............................  Moose............  Residents of Unit 22.
22(B).........................  Muskox...........  Residents of Unit
                                                    22(B).
22(C).........................  Muskox...........  Residents of Unit
                                                    22(C).
22(D).........................  Muskox...........  Residents of Unit
                                                    22(D) excluding St.
                                                    Lawrence Island.
22(E).........................  Muskox...........  Residents of Unit
                                                    22(E) excluding
                                                    Little Diomede
                                                    Island.
22............................  Wolf.............  Residents of Units
                                                    23, 22, 21(D) north
                                                    and west of the
                                                    Yukon River, and
                                                    residents of Kotlik.
22............................  Grouse (Spruce,    Residents of Units
                                 Blue, Ruffed and   11, 13 and the
                                 Sharp-tailed).     residents of
                                                    Chickaloon, 15, 16,
                                                    20(D), 22, and 23.
                                                    Unit 23.
22............................  Ptarmigan (Rock,   Residents of Units
                                 Willow and White-  11, 13 and the
                                 tailed).           residents of
                                                    Chickaloon, 15, 16,
                                                    20(D), 22, and 23.
Unit 23.......................  Black Bear.......  Residents of Unit 23,
                                                    Alatna, Allakaket,
                                                    Bettles, Evansville,
                                                    Galena, Hughes,
                                                    Huslia, and Koyukuk.
23............................  Brown Bear.......  Residents of Units 21
                                                    and 23.
23............................  Caribou..........  Residents of Unit
                                                    21(D) west of the
                                                    Koyukuk and Yukon
                                                    Rivers, residents of
                                                    Galena, and
                                                    residents of Units
                                                    22, 23, 24 including
                                                    residents of Wiseman
                                                    but not including
                                                    other residents of
                                                    the Dalton Highway
                                                    Corridor Management
                                                    Area, and 26(A).
                                  ...............  Residents of Unit 23.
23............................  Moose............   Residents of Unit 23
                                                    South of Kotzebue
                                                    Sound and west of
                                                    and including the
                                                    Buckland River
                                                    drainage.

[[Page 220]]

 
23, south of Kotzebue Sound     Muskox...........   Residents of Unit 23
 and west of and including the                      east and north of
 Buckland River drainage.                           the Buckland River
                                                    drainage.
23, remainder.................  Muskox...........   Residents of Point
                                                    Lay and Unit 23
                                                    north of the Arctic
                                                    Circle.
23............................  Sheep............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
23............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
23............................  Grouse (Spruce,    Residents of Units
                                 Blue, Ruffed and   11, 13 and the
                                 Sharp-tailed).     residents of
                                                    Chickaloon, 15, 16,
                                                    20(D), 22, and 23.
23............................  Ptarmigan (Rock,
                                 Willow and White-
                                 tailed).
Unit 24, that portion south of  Black Bear.......  Residents of Stevens
 Caribou Mountain, and within                       Village and
 the public lands composing or                      residents of Unit 24
 immediately adjacent to the                        and Wiseman, but not
 Dalton Highway Corridor                            including any other
 Management Area.                                   residents of the
                                                    Dalton Highway
                                                    Corridor Management
                                                    Area.
24, remainder.................  Black Bear.......  Residents of Unit 24
                                                    and Wiseman, but not
                                                    including any other
                                                    residents of the
                                                    Dalton Highway
                                                    Corridor Management
                                                    Area.
24, that portion south of       Brown Bear.......  Residents of Stevens
 Caribou Mountain, and within                       Village and
 the public lands composing or                      residents of Unit 24
 immediately adjacent to the                        and Wiseman, but not
 Dalton Highway Corridor                            including any other
 Management Area.                                   residents of the
                                                    Dalton Highway
                                                    Corridor Management
                                                    Area.
24, remainder.................  Brown Bear.......  Residents of Unit 24
                                                    including Wiseman,
                                                    but not including
                                                    any other residents
                                                    of the Dalton
                                                    Highway Corridor
                                                    Management Area.
24............................  Caribou..........  Residents of Unit 24
                                                    including Wiseman,
                                                    but not including
                                                    any other residents
                                                    of the Dalton
                                                    Highway Corridor
                                                    Management Area;
                                                    residents of Galena,
                                                    Kobuk, Koyukuk,
                                                    Stevens Village, and
                                                    Tanana.
24............................  Moose............  Residents of Unit 24,
                                                    Koyukuk, and Galena.
24............................  Sheep............  Residents of Unit 24
                                                    residing north of
                                                    the Arctic Circle
                                                    and residents of
                                                    Allakaket, Alatna,
                                                    Hughes, and Huslia.
24............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon and 16-
                                                    26.
Unit 25(D)....................  Black Bear.......  Residents of Unit
                                                    25(D).
25(D).........................  Brown Bear.......  Residents of Unit
                                                    25(D).
25, remainder.................  Brown Bear.......  No Federal
                                                    subsistence
                                                    priority.
25(D).........................  Caribou..........  Residents of 20(F),
                                                    25(D), and Manley.
25(A).........................  Moose............  Residents of Units
                                                    25(A) and 25(D).
25(D) West....................  Moose............  Residents of Beaver,
                                                    Birch Creek, and
                                                    Stevens Village.
25(D), remainder..............  Moose............  Residents of
                                                    Remainder of Unit
                                                    25.
25(A).........................  Sheep............  Residents of Arctic
                                                    Village, Chalkytsik,
                                                    Fort Yukon,
                                                    Kaktovik, and
                                                    Venetie.
25(B) and (C).................  Sheep............  No Federal
                                                    subsistence
                                                    priority.
25(D).........................  Wolf.............  Residents of Unit
                                                    25(D).
25, remainder.................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon and 16-
                                                    26.
Unit 26.......................  Brown Bear.......  Residents of Unit 26
                                                    (except the Prudhoe
                                                    Bay-Deadhorse
                                                    Industrial Complex)
                                                    and residents of
                                                    Anaktuvuk Pass and
                                                    Point Hope.
26(A).........................  Caribou..........  Residents of Unit 26,
                                                    Anaktuvuk Pass and
                                                    Point Hope.
26(B).........................  Caribou..........  Residents of Unit 26,
                                                    Anaktuvuk Pass,
                                                    Point Hope, and
                                                    Wiseman.
26(C).........................  Caribou..........  Residents of Unit 26,
                                                    Anaktuvuk Pass and
                                                    Point Hope.
26............................  Moose............  Residents of Unit 26,
                                                    (except the Prudhoe
                                                    Bay-Deadhorse
                                                    Industrial Complex),
                                                    and residents of
                                                    Point Hope and
                                                    Anaktuvuk Pass.
26(A).........................  Muskox...........  Residents of
                                                    Anaktuvuk Pass,
                                                    Atqasuk, Barrow,
                                                    Nuiqsut, Point Hope,
                                                    Point Lay, and
                                                    Wainwright.
26(B).........................  Muskox...........  Residents of
                                                    Anaktuvuk Pass,
                                                    Nuiqsut, and
                                                    Kaktovik.
26(C).........................  Muskox...........  Residents of
                                                    Kaktovik.

[[Page 221]]

 
26(A).........................  Sheep............  Residents of Unit 26,
                                                    Anaktuvuk Pass, and
                                                    Point Hope.
26(B).........................  Sheep............  Residents of Unit 26,
                                                    Anaktuvuk Pass,
                                                    Point Hope, and
                                                    Wiseman.
26(C).........................  Sheep............  Residents of Unit 26,
                                                    Anaktuvuk Pass,
                                                    Arctic Village,
                                                    Chalkytsik, Fort
                                                    Yukon, Point Hope,
                                                    and Venetie.
26............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon and 16-
                                                    26.
------------------------------------------------------------------------

    (2) Fish and shellfish determinations.

------------------------------------------------------------------------
             Area                    Species           Determination
------------------------------------------------------------------------
KOTZEBUE-NORTHERN AREA--        All finfish......  Residents of the
 Northern District.                                 Northern District,
                                                    except for those
                                                    domiciled in State
                                                    of Alaska Unit 26-B.
Kotzebue District.............  Salmon, sheefish,  Residents of the
                                 char.              Kotzebue District.
NORTON SOUND--PORT CLARENCE     Salmon...........  Residents of the
 AREA.                                              Norton Sound--Port
                                                    Clarence Area.
YUKON AREA....................  Salmon...........  Residents of the
                                                    Yukon Area,
                                                    including the
                                                    community of
                                                    Stebbins.
                                Yukon River Fall   Residents of the
                                 chum salmon.       Yukon River
                                                    drainage, including
                                                    the communities of
                                                    Stebbins, Scammon
                                                    Bay, Hooper Bay, and
                                                    Chevak.
                                Freshwater fish    Residents of the
                                 species,           Yukon Area.
                                 including
                                 sheefish,
                                 whitefish,
                                 lamprey, burbot,
                                 sucker,
                                 grayling, pike,
                                 char, and
                                 blackfish.
KUSKOKWIM AREA................  Salmon...........  Residents of the
                                                    Kuskokwim Area,
                                                    except those persons
                                                    residing on the
                                                    United States
                                                    military
                                                    installation located
                                                    on Cape Newenham,
                                                    Sparevohn USAFB, and
                                                    Tatalina USAFB.
                                Rainbow trout....  Residents of the
                                                    communities of
                                                    Quinhagak, Goodnews
                                                    Bay, Kwethluk, Eek,
                                                    Akiak, and Platinum.
                                Pacific cod......  Residents of the
                                                    communities of
                                                    Chevak, Newtok,
                                                    Tununak, Toksook
                                                    Bay, Nightmute,
                                                    Chefornak, Kipnuk,
                                                    Mekoryuk,
                                                    Kwigillingok,
                                                    Kongiganak, Eek, and
                                                    Tuntutuliak.
Waters adjacent to the western- Herring and        Residents within 20
 most tip of the Naskonant       herring roe.       miles of the coast
 Peninsula and the terminus of                      between the
 the Ishowik River and around                       westernmost tip of
 Nunivak Island.                                    the Naskonant
                                                    Peninsula and the
                                                    terminus of the
                                                    Ishowik River and on
                                                    Nunivak Island.
BRISTOL BAY AREA--Nushagak      Salmon...........  Residents of the
 District, including drainages                      Nushagak District
 flowing into the district.                         and freshwater
                                                    drainages flowing
                                                    into the district.
Naknek-Kvichek District--       Salmon...........  Residents of the
 Naknek River drainage.                             Naknek and Kvichak
                                                    River drainages.
Naknek-Kvichek District--       Salmon...........  Residents of the
 Iliamna-Lake Clark drainage.                       Iliamna-Lake Clark
                                                    drainage.
Togiak District, including      Salmon and other   Residents of the
 drainages flowing into the      freshwater         Togiak District,
 district.                       finfish.           freshwater drainages
                                                    flowing into the
                                                    district, and the
                                                    community of
                                                    Manokotak.
KODIAK AREA--except the         Salmon...........  Residents of the
 Mainland District, which is                        Kodiak Island
 all waters along the south                         Borough, except
 side of the Alaska Peninsula                       those residing on
 bounded by the latitude of                         the Kodiak Coast
 Cape Douglas (58 deg.52'                           Guard Base.
 North latitude) mid-stream
 Shelikof Strait, and west of
 the longitude of the southern
 entrance of Imuya Bay near
 Kilokak Rocks (57 deg.11'22"
 North latitude, 156
 deg.20'30" W longitude).
KODIAK AREA--except the Semidi  King crab........  Residents of the
 Island, the North Mainland,                        Kodiak Island
 and the South Mainland                             Borough except those
 Sections.                                          residents on the
                                                    Kodiak Coast Guard
                                                    base.
COOK INLET AREA--Port Graham    Dolly Varden.....  Residents of Port
 Subdistrict.                                       Graham and English
                                                    Bay.
Port Graham Subdistrict and     Salmon...........  Residents of Port
 Koyuktolik Subdistrict.                            Graham and English
                                                    Bay.
Tyonek Subdistrict............  Salmon...........  Residents of the
                                                    village of Tyonek.

[[Page 222]]

 
PRINCE WILLIAM SOUND AREA--     Salmon...........  Residents of the
 South-Western District and                         Southwestern
 Green Island.                                      District which is
                                                    mainland waters from
                                                    the outer point on
                                                    the north shore of
                                                    Granite Bay to Cape
                                                    Fairfield, and
                                                    Knight Island,
                                                    Chenega Island,
                                                    Bainbridge Island,
                                                    Evans Island,
                                                    Elrington Island,
                                                    Latouche Island and
                                                    adjacent islands.
PRINCE WILLIAM SOUND AREA--     Salmon...........  Residents of the
 North of a line from                               villages of Tatitlek
 Porcupine Point to Granite                         and Ellamar.
 Point, and south of a line
 from Point Lowe to Tongue
 Point.
YAKUTAT AREA--freshwater        Salmon...........  Residents of the area
 upstream from the terminus of                      east of Yakutat Bay,
 streams and rivers of the                          including the
 Yakutat Area from the Doame                        islands within
 River to the Tsiu River.                           Yakutat Bay, west of
                                                    the Situk River
                                                    drainage, and south
                                                    of and including
                                                    Knight Island.
Freshwater upstream from the    Dolly Varden       Residents of the area
 terminus of streams and         char, steelhead    east of Yakutat Bay,
 rivers of the Yakutat Area      trout, and smelt.  including the
 from the Doame River to Point                      islands within
 Manby.                                             Yakutat Bay, west of
                                                    the Situk River
                                                    drainage, and south
                                                    of and including
                                                    Knight Island.
SOUTH-EASTERN ALASKA AREA--     Salmon and Dolly   Residents of the City
 District 1--Section 1-E in      Varden char.       of Saxman.
 waters of the Naha River and
 Roosevelt Lagoon.
District 1--Section 1-F in      Salmon and Dolly   Residents of the City
 Boca de Quadra in waters of     Varden char.       of Saxman.
 Sockeye Creek and Hugh Smith
 Lake within 500 yards of the
 terminus of Sockeye Creek.
District 2--north of the        Salmon and Dolly   Residents of the City
 latitude of the northern-most   Varden char.       of Kasaan and in the
 tip of Chasina Point and west                      drainage of the
 of a line from the northern-                       southeastern shore
 most tip of Chasina Point to                       of the Kasaan
 the eastern-most tip of                            Peninsula west of
 Grindall Island to the                             132 deg.20'W. long.
 eastern-most tip of the                            and east of 132
 Kasaan Peninsula.                                  deg.25'W. long.
District 3--Section 3-A.......  Salmon and Dolly   Residents of the
                                 Varden char.       townsite of
                                                    Hydaburg.
District 3--Section 3-B in      Salmon, Dolly      Residents of the City
 waters east of a line from      Varden char, and   of Klawock and on
 Point Ildefonso to Tranquil     steelhead trout.   Prince of Wales
 Point.                                             Island within the
                                                    boundaries of the
                                                    Klawock Heenya
                                                    Corporation land
                                                    holdings as they
                                                    exist in January
                                                    1989, and those
                                                    residents of the
                                                    City of Craig and on
                                                    Prince of Wales
                                                    Island within the
                                                    boundaries of the
                                                    Shan Seet
                                                    Corporation land
                                                    holdings as they
                                                    exist in January
                                                    1989.
District 3--Section 3-C in      Salmon, Dolly      Residents of the City
 waters of Sarkar Lakes.         Varden char, and   of Klawock and on
                                 steelhead trout.   Prince of Wales
                                                    Island within the
                                                    boundaries of the
                                                    Klawock Heenya
                                                    Corporation land
                                                    holdings as they
                                                    exist in January
                                                    1989, and those
                                                    residents of the
                                                    City of Craig and on
                                                    Prince of Wales
                                                    Island within the
                                                    boundaries of the
                                                    Shan Seet
                                                    Corporation land
                                                    holdings as they
                                                    exist in January
                                                    1989.
District 5--north of a line     Salmon and Dolly   Residents of the City
 from Point Barrie to Boulder    Varden char.       of Kake and in
 Point.                                             Kupreanof Island
                                                    drainages emptying
                                                    into Keku Strait
                                                    south of Point White
                                                    and north of the
                                                    Portage Bay boat
                                                    harbor.
District 9--Section 9-A.......  Salmon and Dolly   Residents of the City
                                 Varden char.       of Kake and in
                                                    Kupreanof Island
                                                    drainages emptying
                                                    into Keku Strait
                                                    south of Point White
                                                    and north of the
                                                    Portage Bay boat
                                                    harbor.
District 9--Section 9-B north   Salmon and Dolly   Residents of the City
 of the latitude of Swain        Varden char.       of Kake and in
 Point.                                             Kupreanof Island
                                                    drainages emptying
                                                    into Keku Strait
                                                    south of Point White
                                                    and north of the
                                                    Portage Bay boat
                                                    harbor.
District 10--west of a line     Salmon and Dolly   Residents of the City
 from Pinta Point to False       Varden char.       of Kake and in
 Point Pybus.                                       Kupreanof Island
                                                    drainages emptying
                                                    into Keku Strait
                                                    south of Point White
                                                    and north of the
                                                    Portage Bay boat
                                                    harbor.
District 12--south of a line    Salmon and Dolly   Residents of the City
 from Fishery Point to south     Varden char.       of Angoon and along
 Passage Point and north of                         the western shore of
 the latitude of Point Caution.                     Admiralty Island
                                                    north of the
                                                    latitude of Sand
                                                    Island, south of the
                                                    latitude of Thayer
                                                    Creek, and west of
                                                    134 deg.30' W.
                                                    long., including
                                                    Killisnoo Island.
District 13--Section 13-A       Sockeye salmon...  Residents of the City
 south of the latitude of Cape                      and Borough of Sitka
 Edward.                                            in drainages which
                                                    empty into Section
                                                    13-B north of the
                                                    latitude of Dorothy
                                                    Narrows.
District 13--Section 13-B       Sockeye salmon...  Residents of the City
 north of the latitude of                           and Borough of Sitka
 Redfish Cape.                                      in drainages which
                                                    empty into Section
                                                    13-B north of the
                                                    latitude of Dorothy
                                                    Narrows.

[[Page 223]]

 
District 13--Section 13-C.....  Sockeye salmon...  Residents of the City
                                                    and Borough of Sitka
                                                    in drainages which
                                                    empty into Section
                                                    13-B north of the
                                                    latitude of Dorothy
                                                    Narrows.
District 13--Section 13-C east  Salmon and Dolly   Residents of the City
 of the longitude of Point       Varden char.       of Angoon and along
 Elizabeth.                                         the western shore of
                                                    Admiralty Island
                                                    north of the
                                                    latitude of Sand
                                                    Island, south of the
                                                    latitude of Thayer
                                                    Creek, and west of
                                                    134 deg.30' W.
                                                    long., including
                                                    Killisnoo Island.
District 14--Section 14-B and   Salmon, smelt and  Residents of the City
 14-C.                           Dolly Varden       of Hoonah and in
                                 char.              Chichagof Island
                                                    drainages on the
                                                    eastern shore of
                                                    Port Frederick from
                                                    Gartina Creek to
                                                    Point Sophia.
District 15--Chilkat and        Salmon and smelt.  Residents west of the
 Chilkoot Rivers.                                   Haines highway
                                                    between Mile 20 and
                                                    Mile 24 and east of
                                                    the Chilkat River,
                                                    but not elsewhere in
                                                    Klukwan; and, those
                                                    residents of other
                                                    areas of the city
                                                    and borough of
                                                    Haines, excluding
                                                    residents in the
                                                    drainage of
                                                    Excursion Inlet.
------------------------------------------------------------------------

    (b) [Reserved]

[64 FR 35780, July 1, 1999]

    Effective Date Note:  At 64 FR 1286, Jan. 8, 1999, subparts A, B, 
and C of part 242 (Sec. Sec. 242.1-242.24) were revised, effective Oct. 
1, 1999. At 64 FR 35780, July 1, 1999, Sec. 242.24 was revised again, 
effective July 1, 1999. For the convenience of the user, the superseded 
text for Sec. Sec. 242.1 through 242.23 follows:

                      Subpart A--General Provisions

    Source: 57 FR 22951, 22964, May 29, 1992, unless otherwise noted.

Sec. 242.1  Purpose.

    The regulations in this part implement the Federal Subsistence 
Management Program on public lands within the State of Alaska.

Sec. 242.2  Authority.

    These regulations are issued pursuant to authority designated above, 
and specifically the authority vested in the Secretary of the Interior 
and Secretary of Agriculture specified in section 814 of the Alaska 
National Interest Lands Conservation Act (ANILCA) 16 U.S.C. 3124 (1980).

Sec. 242.3  Applicability and scope.

    (a) The regulations of this part implement the provisions of Title 
VIII of ANILCA relevant to the taking of fish and wildlife on public 
lands in the State of Alaska. The regulations of this part do not permit 
subsistence uses in Glacier Bay National Park, Kenai Fjords National 
Park, Katmai National Park, and that portion of Denali National Park 
established as Mt. McKinley National Park prior to passage of ANILCA, 
where subsistence taking and uses are prohibited. These regulations do 
not supersede agency specific regulations.
    (b) The regulations contained in subpart D apply on all public lands 
including all non-navigable waters located on these lands. However, the 
regulations contained in subpart D do not authorize any subsistence uses 
in those National Parks listed in Sec. 242.3(a). In the following areas, 
the regulations in subpart D apply on all Federal public lands including 
all waters located on these lands:
    (1) The area beginning at a point on the boundary between the United 
States and Canada, on the divide between the north and south forks of 
the Firth River, approximate latitude 68 deg.52' N., longitude 
141 deg.00' W., thence westerly along this divide and the periphery of 
the watershed northward to the Arctic Ocean, along the crest of portions 
of the Brooks Range and the DeLong Mountains, to Cape Lisburne;
    (2) The area north of 61 deg. north latitude, south of 61 deg.21' 
north latitude, west of 163 deg.40' longitude and east of the Bering Sea 
shoreline including Hazen Bay;
    (3) Nunivak Island and waters of the Bering Sea within one mile of 
its shorelines;
    (4) The area west of the eastern most tip of Unimak Island to the 
terminus of the Aleutian Islands, except the area between Akutan Pass 
and Samalga Island;
    (5) Simeonof Island and all waters of the Pacific Ocean within one-
mile of Simeonof Island;
    (6) the Semidi Islands and all waters of the Pacific Ocean within 
one mile of each of the Semidi Islands;
    (7) Kodiak National Wildlife Refuge;
    (8) Waters of the Pacific Ocean enclosed by the boundaries of Womans 
Bay, Gibson Cove, and an area defined by a line one-half mile on either 
side of the mouth of Karluk River, and extending seaward 3,000 feet;
    (9) All waters of the Pacific Ocean within 1,500 feet seaward of the 
shoreline of Afognak Island;
    (10) Kenai National Wildlife Refuge;
    (11) Glacier Bay National Preserve.
    (c) The public lands described in Sec. 242.3(b) (1)-(11) remain 
subject to change through

[[Page 224]]

rulemaking pending a Department of the Interior review of title and 
jurisdictional issues regarding certain submerged lands beneath 
navigable waters in Alaska.

Sec. 242.4  Definitions.

    The following definitions apply to all regulations contained in this 
part.
    Agency means a subunit of a cabinet level Department of the Federal 
government having land management authority over the public lands 
including, but not limited to, the U.S. Fish & Wildlife Service, Bureau 
of Indian Affairs, Bureau of Land Management, National Park Service, and 
USDA Forest Service.
    ANILCA means the Alaska National Interest Lands Conservation Act, 
Public Law 96-487, 94 Stat. 2371 (December 2, 1980) (codified, as 
amended, in scattered sections of 16 U.S.C. and 43 U.S.C.)
    Barter means the exchange of fish or wildlife or their parts taken 
for subsistence uses; for other fish, wildlife or their parts; or, for 
other food or for nonedible items other than money, if the exchange is 
of a limited and noncommercial nature.
    Board means the Federal Subsistence Board as described in 
Sec. 242.10 of this part.
    Commissions means the Subsistence Resource Commissions established 
pursuant to section 808 of ANILCA.
    Conservation of healthy populations of fish and wildlife means the 
maintenance of fish and wildlife resources and their habitats in a 
condition that assures stable and continuing natural populations and 
species mix of plants and animals in relation to their ecosystem, 
including the recognition that local rural residents engaged in 
subsistence uses may be a natural part of that ecosystem; minimizes the 
likelihood of irreversible or long-term adverse effects upon such 
populations and species; ensures the maximum practicable diversity of 
options for the future; and recognizes that the policies and legal 
authorities of the managing agencies will determine the nature and 
degree of management programs affecting ecological relationships, 
population dynamics, and the manipulation of the components of the 
ecosystem.
    Customary and traditional use means a long-established, consistent 
pattern of use, incorporating beliefs and customs which have been 
transmitted from generation to generation. This use plays an important 
role in the economy of the community.
    Customary trade means cash sale of fish and wildlife resources 
regulated herein, not otherwise prohibited by State or Federal law or 
regulation, to support personal and family needs; and does not include 
trade which constitutes a significant commercial enterprise.
    FACA means the Federal Advisory Committee Act, Public Law 92-463, 86 
Stat. 770 (October 6, 1972) (codified as amended, at 5 U.S.C. appendix 
II 1-15).
    Federal Advisory Committees or Federal Advisory Committee means the 
Federal Local Advisory Committees as described in Sec. 242.12.
    Family means all persons related by blood, marriage or adoption, or 
any person living within the household on a permanent basis.
    Federal lands means lands and waters and interests therein the title 
to which is in the United States.
    Fish and wildlife means any member of the animal kingdom, including 
without limitation any mammal, fish, bird (including any migratory, 
nonmigratory or endangered bird for which protection is also afforded by 
treaty or other international agreement), amphibian, reptile, mollusk, 
crustacean, arthropod, or other invertebrate, and includes any part, 
product, egg, or offspring thereof, or the carcass or part thereof.
    Game Management Unit or GMU means one of the 26 geographical areas 
listed under game management units in the codified hunting and trapping 
regulations and the Game Unit Maps of Alaska.
    Person means an individual and does not include a corporation, 
company, partnership, firm, association, organization, business, trust 
or society.
    Public lands or public land means lands situated in Alaska which are 
Federal lands, except--
    (1) Land selections of the State of Alaska which have been 
tentatively approved or validly selected under the Alaska Statehood Act 
and lands which have been confirmed to, validly selected by, or granted 
to the Territory of Alaska or the State under any other provision of 
Federal law;
    (2) Land selections of a Native Corporation made under the Alaska 
Native Claims Settlement Act which have not been conveyed to a Native 
Corporation, unless any such selection is determined to be invalid or is 
relinquished; and
    (3) Lands referred to in section 19(b) of the Alaska Native Claims 
Settlement Act.
    Regional Councils or Regional Council means the Regional Advisory 
Councils as described in Sec. 242.11.
    Regulatory year means July 1 through June 30.
    Resident means any person who has his or her primary, permanent home 
within Alaska and whenever absent from this primary, permanent home, has 
the intention of returning to it. Factors demonstrating the location of 
a person's primary, permanent home may include, but are not limited to: 
The address listed on an Alaska license to drive, hunt, fish, or engage 
in an activity regulated by a government entity; affidavit of person or 
persons who know the individual; voter registration; location of 
residences owned,

[[Page 225]]

rented or leased; location of stored household goods; residence of 
spouse, minor children or dependents; tax documents; or whether the 
person claims residence in another location for any purpose.
    Rural means any community or area of Alaska determined by the Board 
to qualify as such under the process described in Sec. 242.15 of this 
part.
    Secretary means the Secretary of the Interior, except that in 
reference to matters related to any unit of the National Forest System, 
such term means the Secretary of Agriculture.
    State means the State of Alaska.
    Subsistence uses means the customary and traditional uses by rural 
Alaska residents of wild, renewable resources for direct personal or 
family consumption as food, shelter, fuel, clothing, tools, or 
transportation; for the making and selling of handicraft articles out of 
nonedible byproducts of fish and wildlife resources taken for personal 
or family consumption; for barter, or sharing for personal or family 
consumption; and for customary trade.
    Take or taking as used with respect to fish or wildlife, means to 
pursue, hunt, shoot, trap, net, capture, collect, kill, harm, or attempt 
to engage in any such conduct.
    Year means calendar year unless another year is specified.

Sec. 242.5  Eligibility for subsistence use.

    (a) The taking of fish and wildlife on public lands for subsistence 
uses is restricted to Alaskans who are residents of rural areas or 
communities. Other individuals, including Alaskans who are residents of 
non-rural areas or communities listed in Sec. 242.23, are prohibited 
from taking fish and wildlife on public lands for subsistence uses under 
these regulations.
    (b) Where the Board has made a customary and traditional use 
determination regarding subsistence use of a specific fish stock or 
wildlife population, in accordance with, and as listed in, Sec. 242.24, 
only those Alaskans who are residents of rural areas or communities so 
designated are eligible for subsistence taking of that population, on 
public lands for subsistence uses, under these regulations. All other 
individuals are prohibited from taking fish or wildlife from that 
population under these regulations.
    (c) Where customary and traditional use determinations for a fish 
stock or wildlife population within a specific area have not yet been 
made by the Board (e.g. ``no determination''), all Alaskans who are 
residents of rural areas or communities are eligible to participate in 
subsistence taking of that stock or population under these regulations.
    (d) This section does not limit the authority of the National Park 
Service to regulate further the eligibility of those individuals 
qualified to engage in subsistence uses on National Park Service lands 
in accordance with specific authority in ANILCA, and National Park 
Service regulations at 36 CFR part 13.

Sec. 242.6  Licenses, permits, harvest tickets, tags, and reports.

    (a) To take fish and wildlife on public lands for subsistence uses, 
subsistence users must possess and comply with the provisions of any 
pertinent permits, harvest tickets, or tags required by the State, or 
Federal permits, harvest tickets, or tags as required by the Board; and 
must possess the pertinent valid State hunting, fishing, and trapping 
licenses unless Federal licenses are required or unless otherwise 
provided for in these regulations.
    (b) To make a fraudulent application for Federal or State licenses, 
permits, harvest tickets or tags is prohibited.
    (c) Harvest tickets, tags, permits, or other required documents must 
be validated before removing the kill from the harvest site.
    (d) Persons engaged in taking fish and wildlife under these 
regulations must comply with all reporting provisions which the Board 
may require.
    (e) Licenses, permits, harvest tickets, tags or other documents 
required by this section must be produced by individuals upon the 
request of a State or Federal law enforcement agent. Persons engaged in 
taking fish and wildlife under these regulations must allow State or 
Federal law enforcement agents to inspect any apparatus designed to be 
used, or capable of being used to take fish or wildlife, or any fish or 
wildlife in possession.
    (f) The Board may implement harvest reporting systems or permit 
systems where:
    (1) The fish and wildlife is taken by an individual who is required 
to obtain and possess pertinent State harvest permits, tickets, or tags, 
or Federal permits, harvest tickets, or tags;
    (2) A qualified subsistence user may designate another qualified 
subsistence user to take fish and wildlife on his or her behalf; or
    (3) The fish and wildlife is taken by individuals or community 
representatives permitted a one-time or annual harvest for special 
purposes including ceremonies and potlatches;
    (4) The fish and wildlife is taken by representatives of a community 
permitted to do so in a manner consistent with the community's customary 
and traditional practices.
    (g) When the taking of fish and wildlife is in accordance with 
Sec. 242.6, the permittee must comply with all of the reporting 
requirements of the permit. Individuals designated on a permit to take 
fish and wildlife are required to have that permit in their possession 
during the taking and to comply with all requirements of the permit, 
regulations in subpart A Sec. 242.6 pertaining to validation and 
reporting, and to regulations in

[[Page 226]]

subpart D pertaining to methods and means, possession and 
transportation, and utilization.
    (h) When a community takes fish and wildlife in accordance with 
Sec. 242.6(f) (3) and (4), the harvest activity must be reported in 
accordance with regulations specified for that community in subpart D, 
and as required by any applicable permit conditions. Individuals may be 
responsible for particular reporting requirements in the conditions 
permitting a specific community's harvest. Failure to comply with these 
conditions is a violation of these regulations. Community harvests are 
reviewed annually under subpart D regulations.

Sec. 242.7  Restriction on use.

    (a) When fish and wildlife are taken pursuant to these regulations, 
trade of the fish and wildlife, other than for customary trade or 
barter, is prohibited.
    (b) When fish and wildlife are taken pursuant to these regulations, 
use or trade of the fish and wildlife which constitutes a significant 
commercial enterprise is prohibited.

Sec. 242.8  Penalties.

    A person convicted of violating any provision of 50 CFR part 100 or 
36 CFR part 242 may be punished by a fine or by imprisonment in 
accordance with the penalty provisions applicable to the public land 
where the violation occurred.

Sec. 242.9  Information collection requirements.

    (a) These rules contain information collection requirements subject 
to Office of Management and Budget (OMB) approval under 44 U.S.C. 3501-
3520. They apply to subsistence uses on public lands in Alaska.
    (1) Section 242.20, Request for reconsideration. The information 
collection requirements contained in this section provide a standardized 
process to allow individuals the opportunity to appeal decisions of the 
Board. Submission of a request for reconsideration is voluntary but 
required to receive a final determination by the Board. The Department 
of the Interior estimates that a request for reconsideration will take 4 
hours to prepare and submit.
    (2) Section 242.6, Licenses, permits, harvest tickets, tags, and 
reports. The information collection requirements contained in this 
section provide for permit-specific subsistence activities not 
authorized through the general adoption of State regulations. These 
regulations require this information before a rural Alaska resident may 
engage in subsistence uses on public lands. The Department estimates 
that the average time necessary to obtain and comply with this permit 
information collection requirement is 15 minutes.
    (3) The remaining information collection requirements contained in 
this part imposed upon subsistence uses are those adopted from State 
regulations. The information collection requirements must be satisfied 
before rural Alaska residents may engage in subsistence uses on public 
lands. The Department estimates that the average burden imposed upon 
individuals will be 8 minutes.
    (b) Direct comments on the burden estimate or any other aspect of 
the burden estimate to: Information Collection Officer, U.S. Fish and 
Wildlife Service, 1849 C Street NW., MS 224 ARLSQ, Washington, DC 20240; 
and the Office of Management and Budget, Paperwork Reduction Project 
(1018-0075), Washington, DC 20503. Additionally, information 
requirements will be imposed when the Regional Councils, subject to the 
Federal Advisory Committee Act (FACA), are established under subpart B. 
Such requirements will be submitted to OMB for approval prior to their 
implementation.

                      Subpart B--Program Structure

    Source: 57 FR 22953, 22964, May 29, 1992, unless otherwise noted.

Sec. 242.10  Federal Subsistence Board.

    (a) The Secretary of the Interior and Secretary of Agriculture 
hereby establish, and delegate responsibility for, administering the 
subsistence taking and uses of fish and wildlife on public lands, and 
the related promulgation and signature authority for regulations of 
subparts C and D, contained herein, to the Board.
    (b) Membership.
    (1) The voting membership of the Board shall consist of a Chair to 
be appointed by the Secretary of the Interior with the concurrence of 
the Secretary of Agriculture; the Alaska Regional Director, U.S. Fish 
and Wildlife Service; Alaska Regional Director, National Park Service; 
Alaska Regional Forester, USDA Forest Service; the Alaska State 
Director, Bureau of Land Management; and the Alaska Area Director, 
Bureau of Indian Affairs. Each member of the Board may appoint a 
designee.
    (2) [Reserved]
    (c) Liaisons to the Board shall consist of a State liaison, and the 
Chairpersons of each Regional Council. The State liaison and the 
Chairpersons of each Regional Council may attend public sessions of all 
Board meetings and be actively involved as consultants to the Board.
    (d) Powers and Duties.
    (1) Meetings shall occur at least twice per year and at such other 
times as deemed necessary by the Board. Meetings shall occur at the call 
of the Chair, but any member may request a meeting.
    (2) A quorum shall consist of four members.
    (3) No action may be taken unless a majority of voting members are 
in agreement.

[[Page 227]]

    (4) The Board is empowered, to the extent necessary, to implement 
Title VIII of ANILCA, to:
    (i) Promulgate regulations for the management of subsistence taking 
and uses of fish and wildlife on public lands;
    (ii) Determine which communities or areas of the State are rural or 
non-rural;
    (iii) Determine which rural Alaska areas or communities have 
customary and traditional subsistence uses of specific fish and wildlife 
populations;
    (iv) Allocate subsistence uses of fish and wildlife populations on 
public lands;
    (v) Ensure that the taking on public lands of fish and wildlife for 
nonwasteful subsistence uses shall be accorded priority over the taking 
on such lands of fish and wildlife for other purposes;
    (vi) Close public lands to the non-subsistence taking of fish and 
wildlife;
    (vii) Establish priorities for the subsistence taking of fish and 
wildlife on public lands among rural Alaska residents;
    (viii) Restrict or eliminate taking of fish and wildlife on public 
lands;
    (ix) Determine what types and forms of trade of fish and wildlife 
taken for subsistence uses constitute allowable customary trade;
    (x) Authorize the Regional Councils to convene;
    (xi) Establish a Regional Council in each subsistence resource 
region and recommend to the Secretaries, appointees to the Regional 
Councils, pursuant to the FACA;
    (xii) Establish Federal Advisory Committees within the subsistence 
resource regions, if necessary and recommend to the Secretaries that 
members of the Federal Advisory Committees be appointed from the group 
of individuals nominated by rural Alaska residents;
    (xiii) Establish rules and procedures for the operation of the 
Board, and the Regional Councils;
    (xiv) Review and respond to proposals for regulations, management 
plans, policies, and other matters related to subsistence taking and 
uses of fish and wildlife;
    (xv) Enter into cooperative agreements or otherwise cooperate with 
Federal agencies, the State, Native corporations, local governmental 
entities, and other persons and organizations, including international 
entities to effectuate the purposes and policies of the Federal 
subsistence management program;
    (xvi) Develop alternative permitting processes relating to the 
subsistence taking of fish and wildlife to ensure continued 
opportunities for subsistence; and
    (xvii) Take other actions authorized by the Secretaries to implement 
Title VIII of ANILCA.
    (5) The Board shall establish a Staff Committee composed of a member 
from the U.S. Fish and Wildlife Service, National Park Service, U.S. 
Bureau of Land Management, Bureau of Indian Affairs, and USDA Forest 
Service for analytical and administrative assistance. The U.S. Fish and 
Wildlife Service representative shall serve as Chair of the Staff 
Committee.
    (6) The Board may establish and dissolve additional committees as 
necessary for assistance.
    (7) The U.S. Fish and Wildlife Service shall provide appropriate 
administrative support for the Board.
    (8) The Board shall authorize at least two meetings per year for 
each Regional Council.
    (e) Relationship to Regional Councils.
    (1) The Board shall consider the reports and recommendations of the 
Regional Councils concerning the taking of fish and wildlife on public 
lands within their respective regions for subsistence uses. The Board 
may choose not to follow any Regional Council recommendation which it 
determines is not supported by substantial evidence, violates recognized 
principles of fish and wildlife conservation, would be detrimental to 
the satisfaction of subsistence needs, or in closure situations, for 
reasons of public safety or administration or to assure the continued 
viability of a particular fish or wildlife population. If a 
recommendation is not adopted, the Board shall set forth the factual 
basis and the reasons for the decision, in writing, in a timely fashion.
    (2) The Board shall provide available and appropriate technical 
assistance to the Regional Councils.

Sec. 242.11  Regional advisory councils.

    (a) The Board shall establish a Regional Council for each 
subsistence resource region to participate in the Federal subsistence 
management program. The Regional Councils shall be established, and 
conduct their activities, in accordance with the FACA. The Regional 
Councils shall provide a regional forum for the collection and 
expression of opinions and recommendations on matters related to 
subsistence taking and uses of fish and wildlife resources on public 
lands. The Regional Councils shall provide for public participation in 
the Federal regulatory process.
    (b) Establishment of Regional Councils--membership.
    (1) The number of members for each Regional Council shall be 
established by the Board, and shall be an odd number. A Regional Council 
member must be a resident of the region in which he or she is appointed 
and be knowledgeable about the region and subsistence uses of the public 
lands therein. The Board shall accept nominations and recommend to the 
Secretaries that representatives on the Regional Councils be appointed 
from those nominated by subsistence users. Appointments to the Regional 
Councils shall be made by the Secretaries.

[[Page 228]]

    (2) Regional Council members shall serve 3 year terms and may be 
reappointed. Initial members shall be appointed with staggered terms up 
to three years.
    (3) The Chair of each Regional Council shall be elected by the 
applicable Regional Council, from its membership, for a one year term 
and may be reelected.
    (c) Powers and Duties.
    (1) The Regional Councils are authorized to:
    (i) Hold public meetings related to subsistence uses of fish and 
wildlife within their respective regions, after the Chair of the Board 
or the designated Federal Coordinator has called the meeting and 
approved the meeting agenda;
    (ii) Elect officers;
    (iii) Review, evaluate, and make recommendations to the Board on 
proposals for regulations, policies, management plans, and other matters 
relating to the subsistence take of fish and wildlife under these 
regulations within the region;
    (iv) Provide a forum for the expression of opinions and 
recommendations by persons interested in any matter related to the 
subsistence uses of fish and wildlife within the region;
    (v) Encourage local and regional participation, pursuant to the 
provisions of these regulations in the decisionmaking process affecting 
the taking of fish and wildlife on the public lands within the region 
for subsistence uses;
    (vi) Prepare and submit to the Board an annual report containing--
    (A) An identification of current and anticipated subsistence uses of 
fish and wildlife populations within the region,
    (B) An evaluation of current and anticipated subsistence needs for 
fish and wildlife populations from the public lands within the region,
    (C) A recommended strategy for the management of fish and wildlife 
populations within the region to accommodate such subsistence uses and 
needs related to the public lands, and
    (D) Recommendations concerning policies, standards, guidelines, and 
regulations to implement the strategy;
    (vii) Appoint members to each Subsistence Resource Commission 
(Commission) within their region in accordance with the requirements of 
section 808 of ANILCA;
    (viii) Make recommendations on determinations of customary and 
traditional use of subsistence resources;
    (ix) Make recommendations on determinations of rural status;
    (x) Make recommendations regarding the allocation of subsistence 
uses among rural Alaska residents pursuant to Sec. 242.17 of these 
regulations;
    (xi) Develop proposals pertaining to the subsistence taking and use 
of fish and wildlife under these regulations, and review and evaluate 
such proposals submitted by other sources;
    (xii) Provide recommendations on the establishment and membership of 
Federal Advisory Committees.
    (2) The Regional Councils shall:
    (i) Operate in conformance with the provisions of FACA and comply 
with rules of operation established by the Board;
    (ii) Perform other duties specified by the Board.

Sec. 242.12  Local advisory committees.

    (a) The Board shall establish such Federal Advisory Committees 
within each region as necessary at such time that it is determined, 
after notice and hearing and consultation with the State, that the 
existing State fish and game advisory committees do not adequately 
provide advice to, and assist, the particular Regional Council in 
carrying out its function as set forth in Sec. 242.11 of these 
regulations.
    (b) Federal Advisory Committees, if established by the Board, shall 
operate in conformance with the provisions of the FACA, and comply with 
rules of operation established by the Board.

Sec. 242.13  Board/agency relationships.

    (a) General.
    (1) The Board, in making decisions or recommendations, shall 
consider and ensure compliance with specific statutory requirements 
regarding the management of resources on public lands, recognizing that 
the management policies applicable to some public lands may entail 
methods of resource and habitat management and protection different from 
methods appropriate for other public lands.
    (2) The Board shall promulgate regulations for subsistence taking of 
fish and wildlife on public lands. The Board is the final administrative 
authority on the promulgation of subparts C and D regulations relating 
to the subsistence taking of fish and wildlife on public lands.
    (3) Nothing in these regulations shall enlarge or diminish the 
authority of any agency to promulgate regulations necessary for the 
proper management of public lands under their jurisdiction in accordance 
with ANILCA and other existing laws.
    (b) Section 808 of ANILCA establishes National Park and Park 
Monument Subsistence Resource Commissions. Nothing in these regulations 
affects the duties or authorities of these commissions.

Sec. 242.14  Relationship to State procedures and regulations.

    (a) State fish and game regulations apply to public lands and such 
laws are hereby adopted and made a part of these regulations

[[Page 229]]

to the extent they are not inconsistent with, or superseded by this 
Part.
    (b) The Board may close public lands to hunting and fishing, or take 
actions to restrict the taking of fish and wildlife despite any State 
authorization for taking fish and wildlife on public lands. The Board 
may review and adopt State closures or restrictions which serve to 
achieve the objectives of these regulations.
    (c) The Board may enter into agreements with the State in order to 
coordinate respective management responsibilities.
    (d) Petition for repeal of subsistence rules and regulations.
    (1) The State of Alaska may petition the Secretaries for repeal of 
these subsistence rules and regulations when the State has enacted and 
implemented subsistence management and use laws which:
    (i) Are consistent with sections 803, 804, and 805 of ANILCA; and
    (ii) Provide for the subsistence definition, preference, and 
participation specified in sections 803, 804, and 805 of ANILCA.
    (2) The State's petition shall:
    (i) Be submitted to the Secretary of the Interior, U.S. Department 
of the Interior, Washington, DC 20240, and the Secretary of Agriculture, 
U.S. Department of Agriculture, Washington, DC 20240.
    (ii) Include the entire text of applicable State legislation 
indicating compliance with sections 803, 804, and 805 of ANILCA; and
    (iii) Set forth all data and arguments available to the State in 
support of legislative compliance with sections 803, 804, and 805 of 
ANILCA.
    (3) If the Secretaries find that the State's petition contains 
adequate justification, a rulemaking proceeding for repeal of these 
regulations will be initiated. If the Secretaries find that the State's 
petition does not contain adequate justification, the petition will be 
denied by letter or other notice, with a statement of the ground for 
denial.

Sec. 242.15  Rural determination process.

    (a) The Board shall determine if an area or community in Alaska is 
rural. In determining whether a specific area of Alaska is rural, the 
Board shall use the following guidelines.
    (1) A community or area with a population of 2500 or less shall be 
deemed to be rural unless such a community or area possesses significant 
characteristics of a non-rural nature, or is considered to be socially 
and economically a part of an urbanized area.
    (2) Communities or areas with populations above 2500 but not more 
than 7000 will be determined to be rural or non-rural.
    (3) A community with a population of more than 7000 shall be 
presumed non-rural, unless such a community or area possesses 
significant characteristics of a rural nature.
    (4) Population data from the most recent census conducted by the 
United States Bureau of Census as updated by the Alaska Department of 
Labor shall be utilized in this process.
    (5) Community or area characteristics shall be considered in 
evaluating a community's rural or non-rural status. The characteristics 
may include, but are not limited to:
    (i) Use of fish and wildlife;
    (ii) Development and diversity of the economy;
    (iii) Community infrastructure;
    (iv) Transportation; and
    (v) Educational institutions.
    (6) Communities or areas which are economically, socially and 
communally integrated shall be considered in the aggregate.
    (b) The Board shall periodically review rural determinations. Rural 
determinations shall be reviewed on a ten year cycle, commencing with 
the publication of the year 2000 U.S. census. Rural determinations may 
be reviewed out-of-cycle in special circumstances. Once the Board makes 
a determination that a community has changed from rural to non-rural, a 
waiting period of five years shall be required before the non-rural 
determination becomes effective.
    (c) Current determinations are listed at Sec. 242.23.

Sec. 242.16  Customary and traditional use determination process.

    (a) The Board shall determine which fish stocks and wildlife 
populations have been customarily and traditionally used for 
subsistence. These determinations shall identify the specific 
community's or area's use of specific fish stocks and wildlife 
populations. For areas managed by the National Park Service, where 
subsistence uses are allowed, the determinations may be made on an 
individual basis.
    (b) A community or area shall generally exhibit the following 
factors, which exemplify customary and traditional use. The Board shall 
make customary and traditional use determinations based on application 
of the following factors:
    (1) A long-term consistent pattern of use, excluding interruptions 
beyond the control of the community or area;
    (2) A pattern of use recurring in specific seasons for many years;
    (3) A pattern of use consisting of methods and means of harvest 
which are characterized by efficiency and economy of effort and cost, 
conditioned by local characteristics;
    (4) The consistent harvest and use of fish or wildlife as related to 
past methods and means of taking; near, or reasonably accessible from 
the community or area;
    (5) A means of handling, preparing, preserving, and storing fish or 
wildlife which has been traditionally used by past generations, 
including consideration of alteration

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of past practices due to recent technological advances, where 
appropriate;
    (6) A pattern of use which includes the handing down of knowledge of 
fishing and hunting skills, values and lore from generation to 
generation;
    (7) A pattern of use in which the harvest is shared or distributed 
within a definable community of persons; and
    (8) A pattern of use which relates to reliance upon a wide diversity 
of fish and wildlife resources of the area and which provides 
substantial cultural, economic, social, and nutritional elements to the 
community or area.
    (c) The Board shall take into consideration the reports and 
recommendations of any appropriate Regional Council regarding customary 
and traditional uses of subsistence resources.
    (d) Current determinations are listed in Sec. 242.24.

Sec. 242.17  Determining priorities for subsistence uses among rural 
          Alaska residents.

    (a) Whenever it is necessary to restrict the subsistence taking of 
fish and wildlife on public lands in order to protect the continued 
viability of such populations, or to continue subsistence uses, the 
Board shall establish a priority among the rural Alaska residents after 
considering any recommendation submitted by an appropriate Regional 
Council.
    (b) The priority shall be implemented through appropriate 
limitations based on the application of the following criteria to each 
area, community, or individual determined to have customary and 
traditional use, as necessary:
    (1) Customary and direct dependence upon the populations as the 
mainstay of livelihood;
    (2) Local residency; and
    (3) The availability of alternative resources.
    (c) If allocation on an area or community basis is not achievable, 
then the Board shall allocate subsistence opportunity on an individual 
basis through application of the above criteria.
    (d) In addressing a situation where prioritized allocation becomes 
necessary, the Board shall solicit recommendations from the Regional 
Council in the area affected.

Sec. 242.18  Regulation adoption process.

    (a) Proposals for changes to the Federal subsistence regulations in 
subpart D shall be accepted by the Board according to a published 
schedule, but at least once a year. The Board shall develop and publish 
proposed regulations in the Federal Register and publish notice in local 
newspapers. Comments on the proposed regulations in the form of 
proposals shall be distributed for public review.
    (1) Proposals shall be made available for at least a thirty (30) day 
review by the Regional Councils. Regional Councils shall forward their 
recommendations on proposals to the Board. Such proposals with 
recommendations may be submitted in the time period as specified by the 
Board or as a part of the Regional Council's annual report described in 
Sec. 242.11, whichever is earlier.
    (2) The Board shall publish notice throughout Alaska of the 
availability of proposals received.
    (3) The public shall have at least thirty (30) days to review and 
comment on proposals.
    (4) After the comment period the Board shall meet to receive public 
testimony and consider the proposals. The Board shall consider 
traditional use patterns when establishing harvest levels and seasons, 
and methods and means. The Board may choose not to follow any 
recommendation which the Board determines is not supported by 
substantial evidence, violates recognized principles of fish and 
wildlife conservation, or would be detrimental to the satisfaction of 
subsistence needs. If a recommendation approved by a Regional Council is 
not adopted by the Board, the Board shall set forth the factual basis 
and the reasons for their decision in writing to the Regional Council.
    (5) Following consideration of the proposals the Board shall publish 
final regulations pertaining to subpart D in the Federal Register.
    (b) Proposals for changes to subpart C shall be accepted by the 
Board according to a published schedule. The Board shall develop and 
publish proposed regulations in the Federal Register and publish notice 
in local newspapers. Comments on the proposed regulations in the form of 
proposals shall be distributed for public review.
    (1) Public and governmental proposals shall be made available for a 
thirty (30) day review by the regional councils. Regional Councils shall 
forward their recommendations on proposals to the Board. Such proposals 
with recommendations may be submitted in the time period as specified by 
the Board or as a part of the Regional Council's annual report described 
in Sec. 242.11, whichever is earlier.
    (2) The Board shall publish notice throughout Alaska of the 
availability of proposals received.
    (3) The public shall have at least thirty (30) days to review and 
comment on proposals.
    (4) After the comment period the Board shall meet to receive public 
testimony and consider the proposals. The Board may choose not to follow 
any recommendation which the Board determines is not supported by 
substantial evidence, violates recognized principles of fish and 
wildlife conservation, or would be detrimental to the satisfaction of 
subsistence needs. If a recommendation

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approved by a Regional Council is not adopted by the Board, the Board 
shall set forth the factual basis and the reasons for their decision in 
writing to the Regional Council.
    (5) Following consideration of the proposals the Board shall publish 
final regulations pertaining to subpart C in the Federal Register. A 
Board decision to change a community's or area's status from rural to 
non-rural will not become effective until five years after the decision 
has been made.
    (c) [Reserved]
    (d) Proposals for changes to subparts A and B shall be accepted by 
the Secretary of the Interior in accordance with 43 CFR 14.1-4.

Sec. 242.19  Closures and other special actions.

    (a) The Board may make or direct restriction or closure of the 
taking of fish and wildlife for non-subsistence uses on public lands 
when necessary to assure the continued viability of particular fish or 
wildlife population, to continue subsistence uses of a fish or wildlife 
population, or for reasons of public safety or administration.
    (b) After consulting with the State of Alaska, providing adequate 
notice to the public, and holding at least one public hearing in the 
vicinity of the affected communities, the Board may make or direct 
temporary closures to subsistence uses of a particular fish or wildlife 
population on public lands to assure the continued viability of a fish 
or wildlife population, or for reasons of public safety or 
administration. A temporary closure will not extend beyond the 
regulatory year in which it is promulgated.
    (c) In an emergency situation, the Board may direct immediate 
closures related to subsistence or non-subsistence uses of fish and 
wildlife on public lands, if necessary to assure the continued viability 
of a fish or wildlife population, or for public safety reasons. The 
Board shall publish notice and reasons justifying the emergency closure 
in the Federal Register and in newspapers of any area affected. The 
emergency closure shall be effective when directed by the Board, may not 
exceed 60 days, and may not be extended unless it is determined by the 
Board, after notice and hearing, that such closure should be extended.
    (d) The Board may make or direct a temporary change to open or 
adjust the seasons or to increase the bag limits for subsistence uses of 
fish and wildlife populations on public lands. An affected rural 
resident, community, Regional Council, or administrative agency may 
request a temporary change in seasons or bag limits. Prior to 
implementing a temporary change, the Board shall consult with the State, 
shall comply with the provisions of 5 U.S.C. 551-559 (Administrative 
Procedures Act or APA), and shall provide adequate notice and 
opportunity to comment. The length of any temporary change shall be 
confined to the minimum time period or bag limit determined by the Board 
to be necessary to satisfy subsistence uses. In addition, a temporary 
change may be made only after the Board determines that the proposed 
temporary change will not interfere with the conservation of healthy 
fish and wildlife populations. The decision of the Board shall be the 
final administrative action.
    (e) Regulations authorizing any individual agency to direct 
temporary or emergency closures on public lands managed by the agency 
remain unaffected by these regulations, which authorize the Board to 
make or direct restrictions, closures, or temporary changes for 
subsistence uses on public lands.
    (f) Taking fish and wildlife in violation of a restriction, or 
temporary change authorized by the Board is prohibited.

Sec. 242.20  Request for reconsideration.

    (a) Subparts C and D regulations published in the Federal Register 
are subject to requests for reconsideration.
    (b) Any aggrieved person may file a request for reconsideration with 
the Board.
    (c) To file a request for reconsideration, the requestor must notify 
the Board in writing within sixty (60) days of the effective date or 
date of publication of the notice, whichever is earliest, for which 
reconsideration is requested.
    (d) It is the responsibility of a requestor to provide the Board 
with sufficient narrative evidence and argument to show why the action 
by the Board should be reconsidered. The following information must be 
included in the request for reconsideration:
    (1) The requestor's name, and mailing address;
    (2) The action for which reconsideration is requested and the date 
of Federal Register publication of that action;
    (3) A detailed statement of how the requestor is adversely affected 
by the action;
    (4) A detailed statement of the facts of the dispute, the issues 
raised by the request, and specific references to any law, regulation, 
or policy that the requestor believes to be violated and the reason for 
such allegation;
    (5) A statement of how the requestor would like the action changed.
    (e) Upon receipt of a request for reconsideration, the Board shall 
transmit a copy of such request to any appropriate Regional Council for 
review and recommendation. The Board shall consider any Regional Council 
recommendations in making a final decision.
    (f) If the request is justified, the Board shall implement a final 
decision on a request for reconsideration after compliance with 5 U.S.C. 
551-559 (APA).
    (g) If the request is denied, the decision of the Board represents 
the final administrative action.

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Sec. 242.21  [Reserved]

                     Subpart C--Board Determinations

    Source: 57 FR 22957, 22964, May 29, 1992, unless otherwise noted.

Sec. 242.22  Subsistence resource regions.

    (a) The following areas are hereby designated as subsistence 
resource regions:
    (1) Southeast Region,
    (2) Southcentral Region,
    (3) Kodiak/Aleutians Region,
    (4) Bristol Bay Region,
    (5) Yukon-Kuskokwim Delta Region,
    (6) Western Interior Region,
    (7) Seward Peninsula Region,
    (8) Northwest Arctic Region,
    (9) Eastern Interior Region,
    (10) North Slope Region.
    (b) Maps delineating the boundaries of subsistence resources regions 
are available from the U.S. Fish and Wildlife Service.

Sec. 242.23  Rural determinations.

    (a) All communities and areas have been determined by the Board to 
be rural in accordance with Sec. 242.15 except the following:
    Adak;
    Fairbanks North Star Borough;
    Homer area--including Homer, Anchor Point, Kachemak City, and Fritz 
Creek;
    Juneau area--including Juneau, West Juneau and Douglas;
    Kenai area--including Kenai, Soldotna, Sterling, Nikiski, Salamatof, 
Kalifornsky, Kasilof, and Clam Gulch;
    Ketchikan area--including Ketchikan City, Clover Pass, North Tongass 
Highway, Ketchikan East, Mountain Pass, Herring Cove, Saxman East, and 
parts of Pennock Island;
    Municipality of Anchorage;
    Seward area--including Seward and Moose Pass; Valdez; and,
    Wasilla area--including Palmer, Wasilla, Sutton, Big Lake, Houston, 
and Bodenberg Butte.
    (2) Maps delineating the boundaries of non-rural areas listed in 
paragraph (a)(1) are available from the U.S. Fish and Wildlife Service.
    (b) [Reserved]



           Subpart D--Subsistence Taking of Fish and Wildlife



Sec. 242.25  Subsistence taking of wildlife.

    (a) Definitions. The following definitions shall apply to all 
regulations contained in this section:
    ADF&G means the Alaska Department of Fish and Game.
    Aircraft means any kind of airplane, glider, or other device used to 
transport people or equipment through the air, excluding helicopters.
    Airport means an airport listed in the Federal Aviation 
Administration, Alaska Airman's Guide and chart supplement.
    Animal means those species with a vertebral column (backbone).
    Antler means one or more solid, horn-like appendages protruding from 
the head of a caribou, deer, elk, or moose.
    Antlered means any caribou, deer, elk, or moose having at least one 
visible antler.
    Antlerless means any caribou, deer, elk, or moose not having visible 
antlers attached to the skull.
    Bear means black bear, or brown or grizzly bear.
    Bow means a longbow, recurve bow, or compound bow, excluding a 
crossbow, or any bow equipped with a mechanical device that holds arrows 
at full draw.
    Broadhead means an arrowhead that is not barbed and has two or more 
steel cutting edges having a minimum cutting diameter of not less than 
seven-eighths inch.
    Brow tine means a tine on the front portion of a moose antler, 
typically projecting forward from the base of the antler toward the 
nose.
    Buck means any male deer.
    Bull means any male moose, caribou, elk, or musk oxen.
    Closed season means the time when wildlife may not be taken.
    Cub bear means a brown or grizzly bear in its first or second year 
of life, or a black bear (including cinnamon and blue phases) in its 
first year of life.
    Designated hunter means a Federally qualified, licensed hunter who 
may take all or a portion of another Federally qualified, licensed 
hunter's harvest limit(s) only under situations approved by the Board.
    Edible meat means the breast meat of ptarmigan and grouse, and, 
those parts of black bear, brown and grizzly bear, caribou, deer, elk, 
mountain goat, moose, musk oxen, and Dall sheep that are typically used 
for human consumption, which are: the meat of the ribs, neck, brisket, 
front quarters as far as the juncture of the humerus and radius-ulna 
(elbow), hindquarters as far as the distal joint (bottom) of the

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tibia-fibula (hock) and that portion of the animal between the front and 
hindquarters; however, edible meat of species listed above does not 
include: meat of the head, meat that has been damaged and made inedible 
by the method of taking, bones, sinew, and incidental meat reasonably 
lost as a result of boning or close trimming of the bones, or viscera.
    Federally-qualified subsistence user means a rural Alaska resident 
qualified to harvest fish or wildlife on Federal public lands in 
accordance with the Federal Subsistence Management Regulations in this 
part.
    Fifty-inch (50-inch) moose means a bull moose with an antler spread 
of 50 inches or more.
    Full curl horn means the horn of a Dall sheep ram; the tip of which 
has grown through 360 degrees of a circle described by the outer surface 
of the horn, as viewed from the side, or that both horns are broken, or 
that the sheep is at least 8 years of age as determined by horn growth 
annuli.
    Furbearer means a beaver, coyote, arctic fox, red fox, lynx, marten, 
mink, weasel, muskrat, river (land) otter, red squirrel, flying 
squirrel, ground squirrel, marmot, wolf, or wolverine.
    Grouse collectively refers to all species found in Alaska, including 
spruce grouse, ruffed grouse, blue grouse and sharp-tailed grouse.
    Hare or hares collectively refers to all species of hares (commonly 
called rabbits) in Alaska and includes snowshoe hare and tundra hare.
    Harvest limit means the number of any one species permitted to be 
taken by any one person in a Unit or portion of a Unit in which the 
taking occurs.
    Highway means the driveable surface of any constructed road.
    Household means that group of people residing in the same residence.
    Hunting means the taking of wildlife within established hunting 
seasons with archery equipment or firearms, and as authorized by a 
required hunting license.
    Marmot collectively refers to all species of marmot that occur in 
Alaska including the hoary marmot, Alaska marmot, and the woodchuck.
    Motorized vehicle means a motor-driven land, air, or water 
conveyance.
    Open season means the time when wildlife may be taken by hunting or 
trapping; an open season includes the first and last days of the 
prescribed season period.
    Otter means river or land otter only, excluding sea otter.
    Permit hunt means a hunt for which State or Federal permits are 
issued by registration or other means.
    Poison means any substance which is toxic, or poisonous upon contact 
or ingestion.
    Possession means having direct physical control of wildlife at a 
given time or having both the power and intention to exercise dominion 
or control of wildlife either directly or through another person or 
persons.
    Ptarmigan collectively refers to all species found in Alaska, 
including white-tailed ptarmigan, rock ptarmigan, and willow ptarmigan.
    Ram means a male Dall sheep.
    Registration permit means a permit which authorizes hunting and is 
issued to a person who agrees to the specified hunting conditions. 
Hunting permitted by a registration permit begins on an announced date 
and continues throughout the open season, or until the season is closed 
by Board action. Registration permits are issued in the order 
applications are received and/or are based on priorities as determined 
by 50 CFR 100.17 and 36 CFR 242.17.
    Sealing means placing a mark or tag on a portion of a harvested 
animal by an authorized representative of the ADF&G; sealing includes 
collecting and recording information about the conditions under which 
the animal was harvested, and measurements of the specimen submitted for 
sealing or surrendering a specific portion of the animal for biological 
information.
    Seven-eighths curl horn means the horn of a male Dall sheep, the tip 
of which has grown through seven-eights (315 degrees) of a circle, 
described by the outer surface of the horn, as viewed from the side, or 
with both horns broken.
    Skin, hide, pelt, or fur means any tanned or untanned external 
covering of an animal's body; excluding bear. The skin, hide, fur, or 
pelt of a bear shall mean the entire external covering with claws 
attached.

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    Spike-fork moose means a bull moose with only one or two tines on 
either antler; male calves are not spike-fork bulls.
    Take or Taking means to pursue, hunt, shoot, trap, net, capture, 
collect, kill, harm, or attempt to engage in any such conduct.
    Tine or antler point refers to any point on an antler, the length of 
which is greater than its width and is at least one inch.
    Transportation means to ship, convey, carry, or transport by any 
means whatever and deliver or receive for such shipment, conveyance, 
carriage, or transportation.
    Trapping means the taking of furbearers within established trapping 
seasons and with a required trapping license.
    Unclassified wildlife or unclassified species means all species of 
animals not otherwise classified by the definitions in this paragraph 
(a), or regulated under other Federal law as listed in paragraph (i) of 
this section.
    Ungulate means any species of hoofed mammal, including deer, 
caribou, elk, moose, mountain goat, Dall sheep, and musk oxen.
    Unit means one of the 26 geographical areas in the State of Alaska 
known as Game Management Units, or GMU, and collectively listed in this 
section as Units.
    Wildlife means any hare (rabbit), ptarmigan, grouse, ungulate, bear, 
furbearer, or unclassified species and includes any part, product, egg, 
or offspring thereof, or carcass or part thereof.
    (b) Hunters may take wildlife for subsistence uses by any method, 
except as prohibited in this section or by other Federal statute. Taking 
wildlife for subsistence uses by a prohibited method is a violation of 
this part. Seasons are closed unless opened by Federal regulation. 
Hunting or trapping during a closed season or in an area closed by this 
part is prohibited.
    (1) Except for special provisions found at paragraphs (k)(1) through 
(26) of this section, the following methods and means of taking wildlife 
for subsistence uses are prohibited:
    (i) Shooting from, on, or across a highway;
    (ii) Using any poison;
    (iii) Using a helicopter in any manner, including transportation of 
individuals, equipment or wildlife; however, this prohibition does not 
apply to transportation of an individual, gear, or wildlife during an 
emergency rescue operation in a life threatening situation;
    (iv) Taking wildlife from a motorized land or air vehicle, when that 
vehicle is in motion or from a motor-driven boat when the boat's 
progress from the motor's power has not ceased;
    (v) Using a motorized vehicle to drive, herd, or molest wildlife;
    (vi) Using or being aided by use of a machine gun, set gun, or a 
shotgun larger than 10 gauge;
    (vii) Using a firearm other than a shotgun, muzzle-loaded rifle, 
rifle or pistol using center-firing cartridges, for the taking of 
ungulates, bear, wolves or wolverine, except that--
    (A) An individual in possession of a valid trapping license may use 
a firearm that shoots rimfire cartridges to take wolves and wolverine;
    (B) Only a muzzle-loading rifle of .54-caliber or larger, or a .45-
calibe