[Title 36 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2003 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



                    36


          Parts 200 to 299

                         Revised as of July 1, 2003

Parks, Forests, and Public Property





          Containing a codification of documents of general 
          applicability and future effect
          As of July 1, 2003
          With Ancillaries
          Published by:
          Office of the Federal Register
          National Archives and Records
          Administration

A Special Edition of the Federal Register



[[Page ii]]

                                      




                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003



  For sale by the Superintendent of Documents, U.S. Government Printing 
                                  Office
  Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area 
                              (202) 512-1800
      Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001



[[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........................     429
      Alphabetical List of Agencies Appearing in the CFR......     447
      List of CFR Sections Affected...........................     457



[[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

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2003), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

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 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

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, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
info@fedreg.nara.gov.

SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call toll free, 
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or 
fax your order to 202-512-2250, 24 hours a day. For payment by check, 
write to the Superintendent of Documents, Attn: New Orders, P.O. Box 
371954, Pittsburgh, PA 15250-7954. For GPO Customer Service call 202-
512-1803.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers, Weekly Compilation of Presidential 
Documents and the Privacy Act Compilation are available in electronic 
format at www.access.gpo.gov/nara (``GPO Access''). For more 
information, contact Electronic Information Dissemination Services, U.S. 
Government Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-
free). E-mail, gpoaccess@gpo.gov.

[[Page vii]]

    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.archives.gov/federal--
register. The NARA site also contains links to GPO Access.

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

July 1, 2003.



[[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, 2003.

[[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 transportation 
                    system..................................          14
213             Administration of lands under Title III of 
                    the Bankhead-Jones Farm Tenant Act by 
                    the Forest Service......................          24
215             Notice, comment, and appeal procedures for 
                    National Forest System projects and 
                    activities..............................          25
216             Involving the public in the formulation of 
                    Forest Service directives...............          37
219             Planning....................................          39
221             Timber management planning..................          62
222             Range management............................          63
223             Sale and disposal of National Forest System 
                    timber..................................          81
228             Minerals....................................         140
230             State and private forestry assistance.......         175
241             Fish and wildlife...........................         192
242             Subsistence management regulations for 
                    public lands in Alaska..................         195
251             Land uses...................................         291
254             Landownership adjustments...................         333
261             Prohibitions................................         350
262             Law enforcement support activities..........         363
264             Property management.........................         366
271             Use of ``Smokey Bear'' symbol...............         368
272             Use of ``Woodsy Owl'' symbol................         369
290             Cave resources management...................         370
291             Occupancy and use of developed sites and 
                    areas of concentrated public use........         373
292             National recreation areas...................         374
293             Wilderness--primitive areas.................         400
294             Special areas...............................         405
295             Use of motor vehicles off forest service 
                    roads...................................         409

[[Page 4]]

296             Protection of archaeological resources: 
                    uniform regulations.....................         410
297             Wild and scenic rivers......................         423
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

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.
211.6  Cooperation in forest investigations or the protection, 
          management, and improvement of the National Forest System.

Subpart B [Reserved]

    Authority: 16 U.S.C. 472, 498, 551.



                         Subpart A--Cooperation



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]



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

[[Page 14]]

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]



Sec. 211.6  Cooperation in forest investigations or the protection, 
management, and improvement of the National Forest System.

    (a) Purpose and scope. Forest Service officers, when engaged in 
cooperative activities otherwise authorized, may receive monies from 
cooperators only for cooperative work in forest investigations or for 
the protection, management, and improvement of the National Forest 
System and only in accordance with written cooperative agreements. 
Management of the National Forest System may include such work as 
planning, analysis, and related studies, as well as resource activities.
    (b) Reimbursements. Agency expenditures for work undertaken in 
accordance with this section may be made from Forest Service 
appropriations available for such work, with subsequent reimbursement 
from the cooperator, in accordance with established written agreements. 
Forest Service officers shall issue written bills for collection for 
cooperator reimbursement payments within the same fiscal year as Forest 
Service expenditures.
    (c) Bonding. Each written agreement involving a non-Government 
cooperator's total contribution of $25,000 or more to the Forest Service 
on a reimbursable basis, must include a provision requiring a payment 
bond to guarantee the cooperator's reimbursement payment. Acceptable 
security for a payment bond includes Department of the Treasury approved 
corporate sureties, Federal Government obligations, and irrevocable 
letters of credit. For the purposes of this section, a non-Government 
cooperator is an entity that is not a member, division, or affiliate of 
a Federal, State, or local government.
    (d) Avoiding conflict of interest. Forest Service officers shall 
avoid acceptance of contributions from cooperators when such 
contributions would reflect unfavorably upon the ability of the Forest 
Service to carry out its responsibilities and duties. Forest Service 
officers shall be guided by the provisions of 18 U.S.C. parts 201-209, 5 
CFR part 2635, and applicable Department of Agriculture regulations, in 
determining if a conflict of interest or potential conflict of interest 
exists in a proposed cooperative effort. Forest Service ethics officials 
or the designated Department of Agriculture ethics official should be 
consulted on conflict of interest issues.

[64 FR 60678, Nov. 8, 1999]

Subpart B [Reserved]



PART 212--ADMINISTRATION OF THE FOREST 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.

[[Page 15]]

212.10  Maximum economy National Forest System roads.
212.11-212.19  [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:
    Chief. The Chief, Forest Service, Department of Agriculture.
    Construction engineering. All work and expense of setting out, 
controlling, inspecting, and measuring the construction or 
reconstruction of a forest 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.
    Federal airport funds. Discretionary funds available for airfields 
in 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).
    Forest 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.
    Forest Transportation Atlas. An inventory, description, display, and 
other associated information for those roads, trails, and airfields that 
are important to the management and use of National Forest System lands 
or to the development and use of resources upon which communities within 
or adjacent to the National Forests depend.
    Forest Transportation Facility. A classified road, designated trail, 
or designated airfield, including bridges, culverts, parking lots, log 
transfer facilities, safety devices and other transportation network 
appurtenances under Forest Service jurisdiction that is wholly or 
partially within or adjacent to National Forest System lands.
    Maintenance. The upkeep of the entire forest 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.
    National Forest System. As defined in the Forest Rangeland Renewable 
Resouces Planning Act, the ``National Forest System'' includes 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 Tennant Act (50 Stat. 525, 7 U.S.C. 1010-1012), 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.
    New Road Construction. Activity that results in the addition of 
forest classified or temporary road miles.
    Preconstruction engineering. All work and expense of preparing for 
construction or reconstruction of a forest 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.
    Regional forester. A regional forester of the Forest Service.
    Road. A motor vehicle travelway over 50 inches wide, unless 
designated and managed as a trail. A road may be classified, 
unclassified, or temporary.
    (1) Classified Roads. Roads wholly or partially within or adjacent 
to National Forest System lands that are determined to be needed for 
long-term motor vehicle access, including State roads, county roads, 
privately owned roads, National Forest System roads,

[[Page 16]]

and other roads authorized by the Forest Service.
    (2) Temporary Roads. Roads authorized by contract, permit, lease, 
other written authorization, or emergency operation not intended to be 
part of the forest transportation system and not necessary for long-term 
resource management.
    (3) Unclassified Roads. Roads on National Forest System lands that 
are not managed as part of the forest transportation system, such as 
unplanned roads, abandoned travelways, and off-road vehicle tracks that 
have not been designated and managed as a trail; and those roads that 
were once under permit or other authorization and were not 
decommissioned upon the termination of the authorization.
    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.
    Road Decommissioning. Activities that result in the stabilization 
and restoration of unneeded roads to a more natural state.
    Road Reconstruction. Activity that results in improvement or 
realignment of an existing classified road as defined below:
    (1) Road Improvement: Activity that results in an increase of an 
existing road's traffic service level, expands its capacity, or changes 
its original design function.
    (2) Road Realignment: Activity that results in a new location of an 
existing road or portions of an existing road and treatment of the old 
roadway.

(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 66 FR 3216, 3217, Jan. 12, 
2001]



Sec. 212.2  Forest transportation program.

    (a) For each national forest, national grassland, experimental 
forest, and any other unit of the National Forest System as defined in 
Sec. 212.1 and listed in 36 CFR part 200, subpart A, the Forest 
Supervisor or other responsible official must develop and maintain a 
forest transportation atlas, which is to be available to the public at 
administrative headquarters units. The purpose of the atlas is to 
display the system of roads, trails, and airfields of the unit. The 
atlas consists of the geo-spatial, tabular, and other data to support 
analysis needs and resource management objectives identified in land 
management plans. The atlas is a dynamic document that changes in 
response to new information on the existence and condition of roads, 
trails, and airfields of the unit. The atlas does not contain 
inventories of temporary roads, which are tracked by the project or 
activity authorizing the temporary road. The content and maintenance 
requirements for the atlas are identified in the Forest Service 
directive system (36 CFR 200.1).
    (b) A program of work for the forest transportation system shall be 
developed each fiscal year in accordance with procedures prescribed by 
the Chief.

[62 FR 58654, Oct. 30, 1997, as amended at 66 FR 3216, 3217, Jan. 12, 
2001]



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 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

[[Page 17]]

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 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 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; 66 FR 3216, Jan. 12, 2001]



Sec. 212.5  Road system management.

    (a) Traffic rules. Rules set forth under 36 CFR part 261 and this 
section shall apply to all National Forest System 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) Road system--(1) Identification of road system. For each 
national forest, national grassland, experimental forest, and any other 
units of the National Forest System (Sec. 212.1), the responsible 
official must identify the minimum road system needed for safe and 
efficient travel and for administration, utilization, and protection of 
National Forest System lands. In determining the minimum road system, 
the responsible official must incorporate a science-based roads analysis 
at the appropriate scale and, to the degree practicable, involve a broad 
spectrum of interested and affected citizens, other state and federal 
agencies, and tribal governments. The minimum system is the road system 
determined to be needed to meet resource and other management objectives 
adopted in the relevant land and resource management plan (36 CFR part 
219), to meet applicable statutory and regulatory requirements, to 
reflect long-term funding expectations, to ensure that the identified 
system minimizes adverse environmental impacts associated with road 
construction, reconstruction, decommissioning, and maintenance.
    (2) Identification of unneeded roads. Responsible officials must 
review the road system on each National Forest and Grassland and 
identify the roads on lands under Forest Service jurisdiction that are 
no longer needed to meet forest resource management objectives

[[Page 18]]

and that, therefore, should be decommissioned or considered for other 
uses, such as for trails. Decommissioning roads involves restoring roads 
to a more natural state. Activities used to decommission a road include, 
but are not limited to, the following: reestablishing former drainage 
patterns, stabilizing slopes, restoring vegetation, blocking the 
entrance to the road, installing water bars, removing culverts, 
reestablishing drainage-ways, removing unstable fills, pulling back road 
shoulders, scattering slash on the roadbed, completely eliminating the 
roadbed by restoring natural contours and slopes, or other methods 
designed to meet the specific conditions associated with the unneeded 
road. Forest officials should give priority to decommissioning those 
unneeded roads that pose the greatest risk to public safety or to 
environmental degradation.
    (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
    (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; 66 FR 3217, Jan. 12, 2001]



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

[[Page 19]]

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 National Forest 
System 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 National Forest 
System roads and trails shall be permitted for all proper 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; 66 FR 3217, Jan. 12, 2001]



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. 
National Forest System 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.

[[Page 20]]

    (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 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; 66 FR 3217, Jan. 12, 2001]



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

[[Page 21]]

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 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

[[Page 22]]

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:
    (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

[[Page 23]]

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 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 National Forest System roads.

    The Chief may acquire, construct, reconstruct, improve, and maintain 
National Forest System 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; 
66 FR 3217, Jan. 12, 2001]



Secs. 212.11-212.19  [Reserved]



Sec. 212.20  National Forest trail system operation.

    (a) National Forest System trails. National Forest System trails 
must be identified in the forest trail atlas and on maps, which are to 
be available to the public at Forest Supervisor and District Ranger 
offices. Trails must be clearly marked on the ground.
    (b) [Reserved]

[43 FR 20007, May 10, 1978, as amended at 66 FR 3218, Jan. 12, 2001]



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

[[Page 24]]

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:

------------------------------------------------------------------------
   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]

[[Page 25]]



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 legal notice and opportunity to 
          comment.
215.4  Actions not subject to legal notice and opportunity to comment.
215.5  Legal notice of proposed actions.
215.6  Comments on proposed actions.
215.7  Legal notice of decision.
215.8  Appeal Deciding Officer.
215.9  Decision implementation.
215.10  Emergency situations.
215.11  Decisions subject to appeal.
215.12  Decisions and actions not subject to appeal.
215.13  Who may appeal.
215.14  Appeal content.
215.15  Appeal time periods and process.
215.16  Dismissal of appeal without review.
215.17  Informal disposition.
215.18  Formal review and disposition procedures.
215.19  Appeal Reviewing Officer.
215.20  Secretary's authority.
215.21  Judicial proceedings.
215.22  Applicability and effective date.

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

    Source: 68 FR 33595, June 4, 2003, 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 the public receives notice and is 
provided an opportunity to comment on proposed actions for projects and 
activities implementing a land and resource management plan prior to a 
decision by the Responsible Official. Second, this part establishes an 
appeal process and identifies the decisions that may be appealed, who 
may appeal those decisions, the responsibilities of the participants in 
an appeal, and the procedures that apply for the prompt disposition of 
the appeal.
    (b) Scope. The notice of proposed actions and opportunity to comment 
provides an opportunity for the public to provide meaningful input prior 
to the decision on projects and activities implementing land and 
resource management plans. The rules of this part complement, but do not 
replace, numerous other opportunities to participate in and influence 
the agency's project and activity planning, such as those provided by 
the National Environmental Policy Act of 1969 (NEPA) implementing 
regulations and procedures at 40 CFR parts 1500-1508, the National

[[Page 26]]

Forest Management Act (NFMA) implementing regulations at part 219, and 
the pertinent requirements at part 216 regarding notice and comment for 
certain Forest Service Manual (FSM) directives. The appeal process is 
available to those who submit substantive comments during the comment 
period. Appeal disposition constitutes the final administrative 
determination of the United States Department of Agriculture. Throughout 
this part, references to decisions which affect an authorized use or 
occupancy of National Forest System lands and meet all other applicable 
requirements of this part, are subject to appeal by the holders of such 
authorizations under either this part or part 251, subpart C, but not 
under both parts. In addition, certain other parties meeting 
requirements of Sec. 251.86 may also be eligible to appeal projects 
under either this part or part 251, subpart C, but not under both parts.



Sec. 215.2  Definitions.

    Address--An individual's or organization's current physical mailing 
address. An e-mail address is insufficient for identification.
    Appeal--The written document filed with an Appeal Deciding Officer 
by someone seeking review of a decision.
    Appeal Deciding Officer--The Secretary of Agriculture (USDA) or the 
USDA or Forest Service designee having the delegated authority and 
responsibility to render a decision on an appeal filed under this part. 
The Appeal Deciding Officer is the next higher-level supervisor of the 
Responsible Official.
    Appeal disposition--Either a written appeal decision or written 
notification in cases where the original decision is the final agency 
action and no appeal decision is issued.
    Appeal period--The 45-calendar-day period following publication of 
the legal notice in the newspaper of record of a decision during which 
an appeal may be filed with the Appeal Deciding Officer.
    Appeal record--The information upon which review of an appeal is 
conducted, consisting of the transmittal letter, the appeal, decision 
documentation, the legal notice of decision, the Responsible Official's 
documentation of the informal disposition meeting, and the Appeal 
Reviewing Officer's recommendation.
    Appeal Reviewing Officer--A Forest Service line officer or USDA 
official who reviews an appeal and makes a written recommendation to the 
Appeal Deciding Officer on disposition of the appeal.
    Appellant--An individual or organization filing an appeal who 
submitted substantive oral or written comments during the comment period 
on a specific project or activity.
    Categorically excluded (CE)--Proposed 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; 
FSH 1909.15, Chapter 30).
    Comment period--The 30-calendar-day period following publication of 
the legal notice in the newspaper of record of a proposed action, during 
which the public has the opportunity to provide comments to a 
Responsible Official on a proposed action subject to this part, except 
for projects requiring an EIS which follow CEQ procedures for notice and 
comment (40 CFR parts 1503 and 1506.10; FSH 1909.15, Chapter 20). The 
time period is computed using calendar days, including Saturdays, 
Sundays, and Federal holidays. However, when the time period expires on 
a Saturday, Sunday, or Federal holiday, comments shall be accepted until 
the end of the next Federal working day.
    Decision documentation--The Decision Notice (DN) or Record of 
Decision (ROD) and all relevant environmental and other analysis 
documentation and records, including all comment letters received, on 
which the Responsible Official bases a decision under appeal.
    Decision Notice (DN)--A concise written record of a Responsible 
Official's decision based on an environmental assessment and a Finding 
of No Significant Impact (FONSI) (40 CFR 1508.13; FSH 1909.15, Chapter 
40).
    Emergency situation--A situation on National Forest System (NFS) 
lands for which immediate implementation of all or part of a decision is 
necessary for relief from hazards threatening

[[Page 27]]

human health and safety or natural resources on those NFS or adjacent 
lands; or that would result in substantial loss of economic value to the 
Federal Government if implementation of the decision were delayed.
    Environmental Assessment (EA)--A concise public document that 
provides sufficient evidence and analysis for determining whether to 
prepare an environmental impact statement (EIS) or a finding of no 
significant impact, aids an agency's compliance with the National 
Environmental Policy Act (NEPA) when no EIS is necessary, and 
facilitates preparation of a statement when one is necessary (40 CFR 
1508.9; FSH 1909.15, Chapter 40).
    Environmental Impact Statement (EIS)--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)--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 
CFR1508.13; FSH 1909.15, Chapter 40).
    Forest Service line officer--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.
    Lead appellant--For appeals submitted with multiple names, or having 
multiple organizations listed, the appellant identified to represent all 
other appellants for the purposes of communication, written or 
otherwise, regarding the appeal. The use of the generic term 
``appellant'' applies to lead appellant also.
    Name--The first and last name of an individual or the name of an 
organization. An electronic username is insufficient for identification 
of an individual or organization.
    National Forest System land--All lands, waters or interests therein 
administered by the Forest Service (Sec. 251.51).
    Newspaper(s) of record--Those principal newspapers of general 
circulation annually identified in a list and published in the Federal 
Register by each Regional Forester to be used for publishing notices of 
projects and activities implementing land and resource management plans.
    Projects and activities implementing a land and resource management 
plan--Site-specific projects and activities, including those for 
research, on National Forest System lands that are approved in a 
Decision Notice (DN) or Record of Decision (ROD) by a Forest Service 
official.
    Proposed action--A proposal made by the Forest Service that is a 
project or activity implementing a land and resource management plan on 
National Forest System lands and is subject to the notice and comment 
provisions of this part.
    Record of Decision (ROD)--A document signed by a Responsible 
Official recording a decision that was preceded by preparation of an 
environmental impact statement (40 CFR 1505.2; FSH 1909.15, Chapter 20).
    Responsible Official--The Forest Service employee who has the 
delegated authority to make and implement a decision subject to this 
part.
    Substantive comments--Comments that are within the scope of the 
proposed action, are specific to the proposed action, have a direct 
relationship to the proposed action and include supporting reasons for 
the Responsible Official to consider.
    Transmittal letter--The Responsible Official's letter transmitting 
the decision documentation. The letter shall include only an index of 
the transmitted documents and identification of those portions of the 
record that relate to the issues raised.



Sec. 215.3  Proposed actions subject to legal notice and opportunity to comment.

    The legal notice (Sec. 215.5) and opportunity to comment procedures 
(Sec. 215.6) apply only to:

[[Page 28]]

    (a) Proposed projects and activities implementing land and resource 
management plans (Sec. 215.2) for which an environmental assessment (EA) 
is prepared;
    (b) Proposed projects and activities described in a draft 
environmental impact statement (EIS), for which notice and comment 
procedures are governed by 40 CFR parts 1500-1508 also;
    (c) Proposed non-significant amendments to a land and resource 
management plan (pursuant to the 1982 planning regulations) that are 
included as part of a decision on a proposed action for which an EA is 
prepared;
    (d) A proposed action resulting in a revision of an EA based on 
consideration of new information or changed circumstances (FSH 1909.15, 
Chapter 10, section 18) as provided for in Sec. 215.18(b)(1); and
    (e) Proposed research activities to be conducted on National Forest 
System lands.



Sec. 215.4  Actions not subject to legal notice and opportunity to comment.

    The procedures for legal notice (Sec. 215.5) and opportunity to 
comment (Sec. 215.6) do not apply to:
    (a) Projects and activities which are categorically excluded from 
documentation in an environmental impact statement (EIS) or 
environmental assessment (EA) pursuant to FSH 1909.15, Chapter 30, 
section 31;
    (b) Proposed amendments to, revision of, or adoption of land and 
resource management plans that are made separately from any proposed 
actions, and which are therefore subject to either the objection process 
of Sec. 219.32 or the administrative appeal and review procedures of 
part 217 in effect prior to November 9, 2000 (see 36 CFR parts 200 to 
299, Revised as of July 1, 2000);
    (c) Projects and activities not subject to the provisions of the 
National Environmental Policy Act and the implementing regulations at 40 
CFR parts 1500-1508 and the National Forest Management Act and the 
implementing regulations at 36 CFR part 219;
    (d) Determinations by the Responsible Official, after consideration 
of new information or changed circumstances, that a revision of the EA 
is not required (1909.15, Chapter 10, section 18); and
    (e) Rules promulgated in accordance with the Administrative 
Procedure Act (5 U.S.C. 551 et seq.) or policies and procedures issued 
in the Forest Service Manual and Handbooks (part 216).



Sec. 215.5  Legal notice of proposed actions.

    (a) Responsible Official. The Responsible Official shall:
    (1) Provide notice of the opportunity to comment on a proposed 
action implementing the land and resource management plan.
    (2) Determine the most effective timing for publishing the legal 
notice of the proposed action and opportunity to comment.
    (3) Promptly mail notice about the proposed action to any individual 
or organization who has requested it and to those who have participated 
in project planning.
    (4) Publish a legal notice of the opportunity to comment on a 
proposed action as provided for in paragraph (b)(2).
    (5) Accept all written and oral comments on the proposed action as 
provided for in Sec. 215.6(a)(4).
    (6) Identify all substantive comments.
    (b) Legal notice of proposed action. (1) Content of legal notice. 
All legal notices shall include the following:
    (i) The title and brief description of the proposed action.
    (ii) A general description of the proposed action's location with 
sufficient information to allow the interested public to identify the 
location.
    (iii) A statement that the Responsible Official is requesting an 
emergency situation determination or it has been determined that an 
emergency situation exists for the project or activity as provided for 
in Sec. 215.10, when applicable.
    (iv) For a proposed action to be analyzed and documented in an 
environmental assessment (EA), a statement that the opportunity to 
comment ends 30 days following the date of publication of the legal 
notice in the newspaper of record (Sec. 215.6(a)(2)); legal notices 
shall not contain the specific date

[[Page 29]]

since newspaper publication dates may vary.
    (v) For a proposed action that is analyzed and documented in a draft 
environmental impact statement (EIS), a statement that the opportunity 
to comment ends 45 days following the date of publication of the notice 
of availability (NOA) in the Federal Register (Sec. 215.6(a)(2)). The 
legal notice must be published after the NOA and contain the NOA 
publication date.
    (vi) A statement that only those who submit timely and substantive 
comments will be accepted as appellants.
    (vii) The Responsible Official's name, title, telephone number, and 
addresses (street, postal, facsimile, and e-mail) to whom comments are 
to be submitted and the Responsible Official's office business hours for 
those submitting hand-delivered comments (Sec. 215.6(a)(4)(ii)).
    (viii) A statement indicating that for appeal eligibility each 
individual or representative from each organization submitting 
substantive comments must either sign the comments or verify identity 
upon request.
    (ix) The acceptable format(s) for electronic comments.
    (x) Instructions on how to obtain additional information on the 
proposed action.
    (2) Publication. (i) Through notice published annually in the 
Federal Register, each Regional Forester shall advise the public of the 
newspaper(s) of record utilized for publishing legal notices required by 
this part.
    (ii) Legal notice of the opportunity to comment on a proposed action 
shall be published in the applicable newspaper of record identified in 
paragraph (b)(2)(i) for each National Forest System unit. When the Chief 
is the Responsible Official, notice shall also be published in the 
Federal Register. The publication date of the legal notice in the 
newspaper of record is the exclusive means for calculating the time to 
submit comments on a proposed action to be analyzed and documented in an 
EA. The publication date of the NOA in the Federal Register is the 
exclusive means for calculating the time to submit comments on a 
proposed action that is analyzed and documented in a draft EIS.

    Effective Date Note: At 68 FR 33595, June 4, 2003, 
Sec. 215.5(b)(1)(vi)-(vii) was added, effective July 7, 2003.



Sec. 215.6  Comments on proposed actions.

    (a) Opportunity to comment. (1) Time period for submission of 
comments. (i) Environmental Assessment. Comments on the proposed action 
shall be accepted for 30 days following the date of publication of the 
legal notice.
    (ii) Draft Environmental Impact Statement. Comments on the proposed 
action shall be accepted for 45 days following the date of publication 
in the Federal Register pursuant to 40 CFR parts 1500-1508.
    (iii) It is the responsibility of all individuals and organizations 
to ensure that their comments are received in a timely manner as 
provided for in paragraph (a)(4).
    (iv) The time period for the opportunity to comment on environmental 
assessments shall not be extended.
    (2) Computation of the comment period. The time period is computed 
using calendar days, including Saturdays, Sundays, and Federal holidays. 
However, when the time period expires on a Saturday, Sunday, or Federal 
holiday, comments shall be accepted until the end of the next Federal 
working day (11:59 p.m.).
    (i) Environmental Assessment (EA). The 30-day comment period for 
proposed actions to be analyzed and documented in an EA begins on the 
first day after publication of the legal notice.
    (ii) Draft Environmental Impact Statement (EIS). The 45-day comment 
period for proposed actions that are analyzed and documented in a draft 
EIS begins on the first day after publication of the NOA in the Federal 
Register.
    (3) Requirements. Individuals and organizations wishing to be 
eligible to appeal must provide the following:
    (i) Name and address.
    (ii) Title of the proposed action.
    (iii) Specific substantive comments (Sec. 215.2) on the proposed 
action, along with supporting reasons that the Responsible Official 
should consider in reaching a decision.
    (iv) Signature or other verification of identity upon request; 
identification of the individual or organization who authored the 
comment(s) is necessary for appeal eligibility.

[[Page 30]]

    (A) For appeals listing multiple organizations or multiple 
individuals, a signature or other means of verification must be provided 
for the individual authorized to represent each organization and for 
each individual in the case of multiple names, to meet appeal 
eligibility requirements.
    (B) Those using electronic means may submit a scanned signature. 
Otherwise another means of verifying the identity of the individual or 
organizational representative may be necessary for electronically 
submitted comments or comments received by telephone.
    (v) Individual members of an organization must submit their own 
substantive comments to meet the requirements of appeal eligibility; 
comments received on behalf of an organization are considered as those 
of the organization only.
    (vi) Oral comments must be provided at the Responsible Official's 
office during normal business hours via telephone or in person, or if 
during non-business hours, must be at an official agency function (such 
as a public meeting) which is designed to elicit public comment.
    (4) Evidence of timely submission. When there is a question about 
timely submission of comments, timeliness shall be determined as 
follows:
    (i) Written comments must be postmarked by the Postal Service, e-
mailed, faxed, or otherwise submitted (for example, express delivery 
service) by 11:59 p.m. on the 30th calendar day following publication of 
the legal notice for proposed actions to be analyzed and documented in 
an EA or the 45th calendar day following publication of the NOA in the 
Federal Register for a draft EIS.
    (ii) Hand-delivered comments must be time and date imprinted at the 
correct Responsible Official's office by the close of business on the 
30th calendar day following publication of the legal notice for proposed 
actions to be analyzed and documented in an EA or the 45th calendar day 
following publication of the NOA in the Federal Register for a draft 
EIS.
    (iii) For electronically mailed comments, the sender should normally 
receive an automated electronic acknowledgment from the agency as 
confirmation of receipt. If the sender does not receive an automated 
acknowledgment of the receipt of the comments, it is the sender's 
responsibility to ensure timely receipt by other means.
    (b) Consideration of comments. (1) The Responsible Official shall 
consider all substantive written and oral comments submitted in 
compliance with paragraph (a).
    (2) All written comments received by the Responsible Official shall 
be placed in the project file and shall become a matter of public 
record.
    (3) The Responsible Official shall document and date all oral 
comments received in response to the legal notice (Sec. 215.5) and place 
them in the project file.

    Effective Date Note: At 68 FR 33595, June 4, 2003, 
Sec. 215.6(a)(4)(iii) was added, effective July 7, 2003.



Sec. 215.7  Legal notice of decision.

    (a) The Responsible Official shall promptly mail the Record of 
Decision (ROD) or the Decision Notice (DN) and Finding of No Significant 
Impact (FONSI) to those who requested the decision document and those 
who submitted substantive comments during the comment period 
(Sec. 215.6).
    (b) The Responsible Official shall publish a legal notice of any 
decision documented in a ROD or DN in the applicable newspaper of record 
(Sec. 215.5(b)(2)). The legal notice shall:
    (1) Include the title of the project or activity 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 DN 
and FONSI or ROD.
    (2) State that the decision is subject to appeal pursuant to 36 CFR 
part 215 and include the following:
    (i) Name and address of the Appeal Deciding Officer with whom an 
appeal is to be filed. The notice shall specify a street, postal, fax, 
and e-mail address, the acceptable format(s) for appeals electronically 
filed, and the Appeal Deciding Official's office business hours for 
those filing hand-delivered appeals.
    (ii) A statement that the publication date of the legal notice in 
the newspaper of record is the exclusive means for calculating the time 
to file an appeal (Sec. 215.15 (a)) and that those wishing

[[Page 31]]

to appeal should not rely upon dates or timeframe information provided 
by any other source. An actual date shall not be included in the legal 
notice.
    (iii) A statement that an appeal, including attachments, must be 
filed (regular mail, fax, e-mail, hand-delivery, express delivery, or 
messenger service) with the appropriate Appeal Deciding Officer 
(Sec. 215.8) within 45 days following the date of publication of the 
legal notice.
    (iv) A statement indicating that individuals or organizations who 
submitted substantive comments during the comment period (Sec. 215.6) 
may appeal.
    (v) A statement specifying, when applicable, that the Chief of the 
Forest Service, or a designee, has determined that an emergency 
situation exists (Sec. 215.10), and which portion of the project is 
covered by that determination as provided for in Sec. 215.10.
    (vi) A statement indicating how many days following publication of 
the decision that implementation may begin (Sec. 215.9), including those 
portions covered by an emergency situation determination, if applicable 
(Sec. 215.10).
    (3) When no substantive comments expressing concerns or only 
supportive comments are received, include a statement indicating that 
the decision is not subject to appeal pursuant to Sec. 215.12.

    Effective Date Note: At 68 FR 33595, June 4, 2003, 
Sec. 215.7(b)(2)(i) and (iii) were added, effective July 7, 2003.



Sec. 215.8  Appeal Deciding Officer.

    (a) Appropriate Appeal Deciding Officer. Appeals must be filed with 
the Appeal Deciding Officer as follows:

------------------------------------------------------------------------
 If the responsible official who made the     Then the Appeal Deciding
               decision is:                          Officer is:
------------------------------------------------------------------------
Chief.....................................  Secretary of Agriculture.
Regional Forester or Station Director.....  Chief of the Forest Service.
Forest Supervisor.........................  Regional Forester.
District Ranger...........................  Forest Supervisor.
------------------------------------------------------------------------

    (b) Authority. The Appeal Deciding Officer makes all procedural 
determinations. Such determinations are not subject to further 
administrative review.
    (1) Consolidation of appeal decisions. In cases involving more than 
one appeal of a decision, the Appeal Deciding Officer may consolidate 
appeals and may issue one or more appeal decisions.
    (2) Appeals with multiple names (organization(s) or individuals). 
(i) When an appeal lists multiple names, the Appeal Deciding Officer 
shall identify all qualified appellants (Sec. 215.13).
    (ii) The Appeal Deciding Officer may appoint the first name listed 
as the lead appellant (Sec. 215.2) to act on behalf of all parties to 
that appeal when the appeal does not specify a lead appellant 
(Sec. 215.14(b)(3)).
    (3) Appeal disposition. (i) The Appeal Deciding Officer shall render 
the final disposition on an appeal and notify the appellant(s) in 
writing concerning the disposition of the appeal (Sec. 215.15(e)(2)).
    (ii) The Appeal Deciding Officer may issue an appeal decision 
different from the Appeal Reviewing Officer's recommendation.



Sec. 215.9  Decision implementation.

    (a) When no appeal is filed within the 45-day time period, 
implementation of the decision may begin on, but not before, the 5th 
business day following the close of the appeal-filing period 
(Sec. 215.15).
    (b) Except for emergency situations (Sec. 215.10(c)), when an appeal 
is filed, implementation may occur on, but not before, the 15th business 
day following the date of appeal disposition (Sec. 215.2). In the event 
of multiple appeals of the same decision, the implementation date is 
controlled by the date of the last appeal disposition.
    (c) When a project or activity decision is not subject to appeal 
(Sec. 215.12), implementation may occur as follows:
    (1) Immediately after publication (Sec. 215.7(b)) of a decision 
documented in a Decision Notice; or
    (2) Immediately when documented in a Record of Decision after 
complying with the timeframes and publication requirements described in 
40 CFR 1506.10(b)(2).



Sec. 215.10  Emergency situations.

    (a) Authority. The Chief and the Associate Chief of the Forest 
Service are authorized to make the determination that an emergency 
situation (Sec. 215.2) exists, and they may delegate this authority only 
to the Deputy Chief for

[[Page 32]]

National Forest System and to the Regional Foresters. Persons acting in 
these positions may exercise this authority only when they are filling 
vacant positions and they have been formally delegated full acting 
authority for the positions. Persons acting in positions during 
temporary absences of the incumbents shall not be delegated this 
authority to make emergency situation determinations.
    (b) Determination. The determination that an emergency situation 
exists shall be based on an examination of the relevant information. 
During the review, additional information may be requested.
    (c) Implementation. When it is determined that an emergency 
situation exists with respect to all or part of the decision, 
implementation may proceed as follows:
    (1) Immediately after publication (Sec. 215.7(b)) of a decision 
documented in a Decision Notice, for that portion of the decision 
determined to be an emergency.
    (2) Immediately when documented in a Record of Decision, after 
complying with the timeframes and publication requirements described in 
40 CFR 1506.10(b)(2), for that portion of the decision determined to be 
an emergency.
    (d) Notification. The Responsible Official shall notify the public 
in the legal notice of the decision (Sec. 215.7) that the Forest Service 
made a determination that all or part of a project decision is an 
emergency situation.



Sec. 215.11  Decisions subject to appeal.

    The following decisions are subject to appeal under this part:
    (a) Decisions for projects and activities implementing land and 
resource management plans (Sec. 215.2) documented in a Record of 
Decision (ROD) or Decision Notice (DN), including those which contain a 
non-significant amendment to a land and resource management plan as a 
part of the decision;
    (b) A new DN after revision of an environmental assessment (EA), or 
a new ROD after supplementation or revision of an environmental impact 
statement (EIS), pursuant to FSH 1909.15, Chapter 10, section 18. 
However, only that portion of the decision that is changed is subject to 
appeal.
    (c) Decisions made in conjunction with other Federal agencies and 
meeting the requirements of preceding paragraph (a). However, only that 
portion of the decision made by the Forest Service affecting National 
Forest System lands (Sec. 215.2) is subject to appeal under this part.
    (d) Decisions which affect the holders of a special use 
authorization or certain applicants for special use authorizations for 
use or occupancy of National Forest System lands (Sec. 251.86) and 
meeting the requirements of preceding paragraph (a), are subject to 
appeal by those same parties under either this part or part 251, subpart 
C, but not under both parts.



Sec. 215.12  Decisions and actions not subject to appeal.

    The following decisions and actions are not subject to appeal under 
this part, except as noted:
    (a) The amendment, revision, or adoption of a land and resource 
management plan that includes a project decision, except that the 
project portion of the decision is subject to this part. The amendment, 
revision, or adoption portion of a decision is subject to either the 
objection process of Sec. 219.32 or the administrative appeal and review 
procedures of part 217 in effect prior to November 9, 2000 (see 36 CFR 
parts 200 to 299, Revised as of July 1, 2000);
    (b) Determination, with documentation, that a new decision is not 
needed following supplementation of an environmental impact statement 
(EIS) or revision of an environmental assessment (EA) pursuant to FSH 
1909.15, Chapter 10, section 18.
    (c) Preliminary findings made during planning and/or analysis 
processes on a project or activity. Such findings are appealable only 
upon issuance of a decision document.
    (d) Subsequent implementing actions that result from the initial 
project decision that was subject to appeal.
    (e) Projects or activities for which notice of the proposed action 
and opportunity to comment is published (Sec. 215.5) and

[[Page 33]]

    (1) No substantive comments expressing concerns or only supportive 
comments are received during the comment period for a proposed action 
analyzed and documented in an EA (Sec. 215.6); or
    (2) No substantive comments expressing concerns or only supportive 
comments are received during the comment period for a draft EIS (40 CFR 
1502.19), and the Responsible Official's decision does not modify the 
preferred alternative identified in the draft EIS.
    (f) Decisions for actions that have been categorically excluded from 
documentation in an EA or EIS pursuant to FSH 1909.15, Chapter 30, 
section 31.
    (g) An amendment, revision, or adoption of a land and resource 
management plan that is made independent of a project or activity 
(subject to either the objection process of Sec. 219.32 or the 
administrative appeal and review procedures of part 217 in effect prior 
to November 9, 2000 (see 36 CFR parts 200 to 299, Revised as of July 1, 
2000)).
    (h) Concurrences and recommendations to other Federal agencies.



Sec. 215.13  Who may appeal.

    (a) Individuals and organizations who submit substantive written or 
oral comments during the 30-day comment period for an environmental 
assessment, or 45-day comment period for a draft environmental impact 
statement (Sec. 215.6, 40 CFR 1506.10; FSH 1909.15, Chapter 20), except 
as provided for in paragraph (c) of this section, may file an appeal. 
Comments received from an authorized representative(s) of an 
organization are considered those of the organization only; individual 
members of that organization do not meet appeal eligibility solely on 
the basis of membership in an organization; the member(s) must submit 
substantive comments as an individual in order to meet appeal 
eligibility.
    (b) When an appeal lists multiple individuals or organizations, each 
shall meet the requirements of paragraph (a) of this section. 
Individuals or organizations that do not meet the requirements of 
paragraph (a) shall not be accepted as appellants.
    (c) Federal agencies may not appeal.
    (d) Federal employees, who otherwise meet the requirements of this 
part for filing appeals in a non-official capacity, 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 nor use government property or equipment 
in the preparation or filing of an appeal. Further, employees shall not 
incorporate information unavailable to the public, i.e. Federal agency 
documents that are exempt from disclosure under the Freedom of 
Information Act (5 U.S.C. 552 (b)).



Sec. 215.14  Appeal content.

    (a) It is the appellant's responsibility to provide sufficient 
project- or activity-specific evidence and rationale, focusing on the 
decision, to show why the Responsible Official's decision should be 
reversed (paragraph (b)(6-9)).
    (b) The appeal must be filed with the Appeal Deciding Officer 
Sec. 215.8 in writing. At a minimum, an appeal must include the 
following:
    (1) Appellant's name and address (Sec. 215.2), with a telephone 
number, if available;
    (2) Signature or other verification of authorship upon request (a 
scanned signature for electronic mail may be filed with the appeal);
    (3) When multiple names are listed on an appeal, identification of 
the lead appellant (Sec. 215.2) and verification of the identity of the 
lead appellant upon request;
    (4) The name of the project or activity for which the decision was 
made, the name and title of the Responsible Official, and the date of 
the decision;
    (5) The regulation under which the appeal is being filed, when there 
is an option to appeal under either this part or part 251, subpart C 
(Sec. 215.11(d));
    (6) Any specific change(s) in the decision that the appellant seeks 
and rationale for those changes;
    (7) Any portion(s) of the decision with which the appellant 
disagrees, and explanation for the disagreement;
    (8) Why the appellant believes the Responsible Official's decision 
failed to consider the substantive comments; and
    (9) How the appellant believes the decision specifically violates 
law, regulation, or policy.

[[Page 34]]

    (c) The Appeal Deciding Officer shall not process an appeal when one 
or more of the following applies:
    (1) An appellant's identity is not provided or cannot be determined 
from the signature (written or electronically scanned) and a reasonable 
means of contact is not provided.
    (2) The appellant has not provided a reasonable means of contact.
    (3) The decision cannot be identified.
    (4) The appeal is illegible for any reason, including those 
submitted electronically in a format different from that specified in 
the legal notice.



Sec. 215.15  Appeal time periods and process.

    (a) Time to file an appeal. Written appeals, including any 
attachments, must be filed with the Appeal Deciding Officer within 45 
days following the publication date of the legal notice of the decision 
in the newspaper of record (Sec. 215.7). It is the responsibility of 
appellants to ensure that their appeal is received in a timely manner.
    (b) Computation of time periods. (1) All time periods are computed 
using calendar days, including Saturdays, Sundays, and Federal holidays. 
However, when the time period expires on a Saturday, Sunday, or Federal 
holiday, the time is extended to the end of the next Federal working day 
(11:59 p.m.).
    (2) The day after the publication of the legal notice of the 
decision in the newspaper of record (Sec. 215.7) is the first day of the 
appeal-filing period.
    (3) The publication date of the legal notice of the decision in the 
newspaper of record is the exclusive means for calculating the time to 
file an appeal. Appellants should not rely on dates or timeframe 
information provided by any other source.
    (c) Evidence of timely filing. When there is a question about timely 
filing of an appeal, timeliness shall be determined by:
    (1) The date of the postmark, e-mail, fax, or other means of filing 
(for example, express delivery service) an appeal and any attachment;
    (2) The time and date imprint at the correct Appeal Deciding 
Officer's office on a hand-delivered appeal and any attachments; or
    (3) When an appeal is electronically mailed, the appellant should 
normally receive an automated electronic acknowledgment from the agency 
as confirmation of receipt. If the appellant does not receive an 
automated acknowledgment of the receipt of the appeal, it is the 
appellant's responsibility to ensure timely receipt by other means.
    (d) Extensions. Time extensions, except as noted in paragraph (b) of 
this section, are not permitted.
    (e) Other timeframes. Unless an appeal is resolved through the 
informal disposition process (Sec. 215.17), the following timeframes and 
processes shall apply:
    (1) Transmittal of decision documentation. Within 15 days of the 
close of the appeal-filing period, the Responsible Official shall 
transmit the decision documentation to the Appeal Reviewing Officer 
including a list of those individuals or organizations who submitted 
substantive comments.
    (2) Appeal disposition. Within 45 days following the end of the 
appeal-filing period, the Appeal Deciding Officer should render a 
written decision to the appellant(s) concerning their appeal. When an 
appeal decision is not rendered by day 45, the Appeal Deciding Officer 
shall notify the appellant(s) in writing that an appeal decision will 
not be issued (Sec. 215.18(b).
    (3) When an appeal decision is not issued within 45 days, the 
Responsible Official's decision is deemed the final agency action.

    Effective Date Note: At 68 FR 33595, June 4, 2003, Sec. 215.15(c)(1) 
and (3) were added, effective July 7, 2003.



Sec. 215.16  Dismissal of appeal without review.

    (a) The Appeal Deciding Officer shall dismiss an appeal without 
review when one or more of the following applies:
    (1) The postmark on an appeal mailed or otherwise filed (for 
example, express mail service) or the evidence of the date sent on an e-
mailed or faxed appeal is not within the 45-day appeal-filing period 
(Sec. 215.15).
    (2) The time and date imprint at the correct Appeal Deciding 
Officer's office on a hand-delivered appeal is not within the 45-day 
appeal-filing period (Sec. 215.15).

[[Page 35]]

    (3) The requested relief or change cannot be granted under law or 
regulation.
    (4) The appellant has appealed the same decision under part 251 
(Sec. 215.11(d)).
    (5) The decision is not subject to appeal (Sec. 215.12).
    (6) The individual or organization did not submit substantive 
comments during the comment period (Sec. 215.6).
    (7) The Responsible Official withdraws the decision.
    (8) The appeal does not provide sufficient information in response 
to Sec. 215.14(b)(6) through (b)(9) for the Appeal Deciding Officer to 
render a decision.
    (9) The appellant withdraws the appeal.
    (b) Any additional information or attachment to an appeal that is 
not filed within the 45-day appeal-filing period shall not be considered 
with the appeal.
    (c) The Appeal Deciding Officer shall give written notice to the 
appellant and the Responsible Official when an appeal is dismissed and 
shall give the reasons for dismissal.



Sec. 215.17  Informal disposition.

    (a) Offer to meet. When an appeal is received, the Responsible 
Official, or designee, must contact the appellant and offer to meet and 
discuss resolution of the issues raised in the appeal. This contact 
shall be made as soon as practicable after the Appeal Deciding Officer 
receives the appeal and the Responsible Official is notified. In the 
case of multiple names or organizations, it is the responsibility of the 
lead appellant (Sec. 215.2) to contact any other persons named in their 
appeal who may desire to participate in the informal disposition 
meeting. If the appellant(s) decline to meet, the Responsible Official 
shall so advise the Appeal Deciding Officer.
    (b) Time and location of meeting. When an appellant agrees to meet, 
the initial meeting shall take place within 15 days after the closing 
date for filing an appeal (Sec. 215.15). 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, 
Regional Forester, or the Chief is the Responsible Official, meetings 
will generally take place at a location within or near the National 
Forest.
    (c) Meeting structure. Generally, the appellant(s) should be 
physically present at informal disposition meetings. If the 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. All meetings are open 
to the public.
    (d) Outcome. After the informal disposition meeting, the Responsible 
Official shall notify the Appeal Deciding Officer in writing of the 
meeting participants and which of the following three outcomes occurred.
    (1) An appellant and the Responsible Official reach agreement on 
disposition of all or a portion of an appeal. The appellant shall 
withdraw all or the agreed upon portion of the appeal by letter to the 
Appeal Deciding Officer within 15 days of the agreement. When the 
appellant does not withdraw the appeal in writing, formal review and 
disposition of the appeal shall continue.
    (2) As a result of the agreement reached at the informal disposition 
meeting, new information is received or changes to the original decision 
or environmental analysis are proposed. The Responsible Official must 
follow the correction, supplementation, or revision of environmental 
documentation and reconsideration of decisions to take action guidance 
in FSH 1909.15, Chapter 10, section 18, and Secs. 215.3 and 215.4.
    (3) An appeal is not entirely resolved through informal disposition. 
Formal review and disposition of the unresolved portion of the appeal 
shall continue (Sec. 215.18).



Sec. 215.18  Formal review and disposition procedures.

    (a) Scope of review. The Appeal Deciding Officer shall complete a 
review based on the appeal record (Sec. 215.2) and the Appeal Reviewing 
Officer's recommendation (Sec. 215.19(b)).
    (b) Disposition. The Appeal Deciding Officer shall either:

[[Page 36]]

    (1) Issue a written appeal decision within 45 days following the end 
of the appeal-filing period, which affirms or reverses the Responsible 
Official's decision, either in whole or in part, and which may include 
instructions for further action. When an appeal decision involves 
instructions concerning new information or changed circumstances, the 
Responsible Official must follow the correction, supplementation, or 
revision of environmental documentation and reconsideration of decisions 
to take action guidance in FSH 1909.15, Chapter 10, section 18 and 
Secs. 215.3, 215.4, 215.11, and 215.12. The Appeal Deciding Officer 
shall send a copy of the appeal decision to the appellant(s), the Appeal 
Reviewing Officer, and the Responsible Official within 5 days; or
    (2) Not issue an appeal decision and so notify the appellant(s) in 
writing that an appeal decision will not be issued and that the 
Responsible Official's decision constitutes the final agency action of 
the Department of Agriculture (Sec. 215.15(e)(2)). Notification shall be 
sent no sooner than 46 days nor later than 50 days following the end of 
the appeal-filing period.
    (c) Final administrative determination. The Appeal Deciding 
Officer's appeal disposition constitutes the final administrative 
determination of the Department of Agriculture.



Sec. 215.19  Appeal Reviewing Officer.

    (a) Designation. The Appeal Reviewing Officer shall be:
    (1) Designated by the Chief or designee, and shall be a line officer 
at least at the level of the agency official who made the initial 
decision on the project or activity that is under appeal, who has not 
participated in the initial decision and will not be responsible for 
implementation of the initial decision after the appeal is decided; or
    (2) Designated by the Secretary in the case of Chief's decisions.
    (b) Review and recommendation. The Appeal Reviewing Officer shall 
review an appeal and the decision documentation and make a written 
recommendation to the Appeal Deciding Officer on the disposition of the 
appeal. That recommendation shall be released only upon issuance of an 
appeal decision.
    (c) Multiple appeals. In cases involving more than one appeal of a 
decision, the Appeal Reviewing Officer may consolidate appeals and issue 
one or more recommendations.



Sec. 215.20  Secretary's authority.

    (a) Nothing in this section shall restrict the Secretary of 
Agriculture from exercising any statutory authority regarding the 
protection, management, or administration of National Forest System 
lands.
    (b) Decisions of the Secretary of Agriculture or Under Secretary, 
Natural Resources and Environment are not subject to the notice, 
comment, and appeal procedures set forth in this part. A decision by the 
Secretary or Under Secretary constitutes the final administrative 
determination of the Department of Agriculture.



Sec. 215.21  Judicial proceedings.

    It is the position of the Department of Agriculture that any filing 
for Federal judicial review of a decision subject to appeal is premature 
and inappropriate unless the plaintiff has first sought to invoke and 
exhaust the appeal procedures in this part (7 U.S.C. 6912 (e)).



Sec. 215.22  Applicability and effective date.

    (a) The notice, comment, and appeal procedures set out in this part, 
except as noted in paragraph (b) below, apply to all projects and 
activities for which legal notice is published pursuant to Sec. 215.5 on 
or after June 4, 2003.
    (b) The provisions concerning electronic comments 
(Secs. 215.5(b)(vi-vii) and 215.6(a)(4)(iii)) and electronic appeals 
(Secs. 215.7(b)(2)(i) and (iii) and 215.15(c)(1) and (3)) are effective 
July 7, 2003.
    (c) The notice, comment, and appeal procedures of part 215 in effect 
prior to June 4, 2003 remain in effect for those projects and activities 
for which legal notice (Secs. 215.5 or 215.7) is published prior to June 
4, 2003 (see 36 CFR parts 200 to 299, Revised as of July 1, 2002).

[[Page 37]]



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.
    (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.

[[Page 38]]

    (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 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

[[Page 39]]

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 219--PLANNING--Table of Contents




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

                         Purpose and Principles

Sec.
219.1  Purpose.
219.2  Principles.

                       The Framework for Planning

219.3  Overview.
219.4  Identification and consideration of issues.
219.5  Information development and interpretation.
219.6  Proposed actions.
219.7  Plan decisions.
219.8  Amendment.
219.9  Revision.
219.10  Site-specific decisions.
219.11  Monitoring and evaluation for adaptive management.

                Collaborative Planning for Sustainability

219.12  Collaboration and cooperatively developed landscape goals.
219.13  Coordination among federal agencies.
219.14  Involvement of state and local governments.
219.15  Interaction with American Indian tribes and Alaska Natives.
219.16  Relationships with interested individuals and organizations.
219.17  Interaction with private landowners.
219.18  Role of advisory committees.

             Ecological, Social, and Economic Sustainability

219.19  Ecological, social, and economic sustainability.
219.20  Ecological sustainability.
219.21  Social and economic sustainability.

                       The Contribution of Science

219.22  The overall role of science in planning.
219.23  The role of science in assessments, analyses, and monitoring.
219.24  Science consistency evaluations.
219.25  Science advisory boards.

                         Special Considerations

219.26  Identifying and designating suitable uses.
219.27  Special designations.
219.28  Determination of land suitable for timber harvest.
219.29  Limitation on timber harvest.

                         Planning Documentation

219.30  Plan documentation.
219.31  Maintenance of the plan and planning records.

                         Objections and Appeals

219.32  Objections to amendments or revisions.
219.33  Appeals of site-specific decisions.

                      Applicability and Transition

219.34  Applicability.
219.35  Transition.

                               Definitions

219.36  Definitions.

Subpart B [Reserved]



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

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

    Source: 65 FR 67568, Nov. 9, 2000, unless otherwise noted.

                         Purpose and Principles



Sec. 219.1  Purpose.

    (a) Land and resource management planning guides how the Forest 
Service

[[Page 40]]

will fulfill its stewardship of the natural resources of the National 
Forest System to fulfill the designated purposes of the national forests 
and grasslands and honor their unique place in American life. The 
regulations in this subpart set forth a process for amending and 
revising land and resource management plans, hereafter referred to as 
plans, for the National Forest System and for monitoring the results of 
plan implementation under the Forest and Rangeland Renewable Resources 
Act of 1974, as amended by the National Forest Management Act of 1976, 
16 U.S.C. 1600 et seq. The regulations in this subpart also guide the 
selection and implementation of site-specific actions. The principal 
authorities governing the development and the management of the National 
Forest System include: the Organic Administration Act of 1897, as 
amended (16 U.S.C. 473 et seq.); the Multiple-Use Sustained-Yield Act of 
1960 (16 U.S.C. 528 et seq.); the Wilderness Act (16 U.S.C. 1121 et. 
seq.); the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
seq.); the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et 
seq.); the Forest and Rangeland Renewable Resource Act of 1974, as 
amended by the National Forest Management Act of 1976 (16 U.S.C. 1600 et 
seq.); and the Clean Water Act of 1948, as amended by the Federal Water 
Pollution Control Act Amendments of 1977 and the Water Quality Act of 
1987 and other laws (33 U.S.C. 1251 et seq., 1323 et seq.).
    (b) The National Forest System constitutes an extraordinary national 
legacy created by people of vision and preserved for future generations 
by diligent and far-sighted public servants and citizens. These are the 
peoples' lands, emblems of the nation's democratic traditions.
    (1) The national forests and grasslands provide a wide variety of 
uses, values, products, and services that are important to many people, 
including outdoor recreation, forage, timber, wildlife and fish, 
biological diversity, productive soils, clean air and water, and 
minerals. They also afford intangible benefits such as beauty, 
inspiration, and wonder.
    (2) To assure the continuation of this array of benefits this 
regulation affirms sustainability as the overall goal for stewardship of 
the natural resources of each national forest and grassland consistent 
with the laws that guide management of these lands.
    (3) Sustainability, composed of interdependent ecological, social, 
and economic elements, embodies the principles of multiple-use and 
sustained-yield without impairment to the productivity of the land. 
Sustainability means meeting needs of the present generation without 
compromising the ability of future generations to meet their needs. 
Planning contributes to social and economic sustainability without 
compromising the basic composition, structure, and functioning of 
ecological systems. The progress toward achievement of sustainability is 
assessed through monitoring and evaluation.



Sec. 219.2  Principles.

    The planning regulations in this subpart are based on the following 
principles:
    (a) The first priority for planning to guide management of the 
National Forest System is to maintain or restore ecological 
sustainability of national forests and grasslands to provide for a wide 
variety of uses, values, products, and services. The benefits sought 
from these lands depend upon long-term ecological sustainability. 
Considering increased human uses, it is essential that uses of today do 
not impair the functioning of ecological processes and the ability of 
these natural resources to contribute to sustainability in the future.
    (1) Planning provides the guidance for maintaining or restoring the 
diversity of plant and animal communities and the productive capacity of 
ecological systems, the core elements of ecological sustainability.
    (2) Planning is based on science and other knowledge, including the 
use of scientifically based strategies for sustainability and benefits 
from independent scientific peer review.
    (3) Planning is based on the temporal and spatial scales necessary 
for sustainability.

[[Page 41]]

    (4) Planning includes the monitoring and evaluation of the 
achievement of goals.
    (b) Planning contributes to social and economic sustainability by 
providing for a wide variety of uses, values, products, and services 
without compromising the basic composition, structure, and function of 
ecological systems.
    (1) Planning recognizes and fosters a broad-based understanding of 
the interdependence of national forests and grasslands with economies 
and communities.
    (2) Planning fosters strategies and actions that provide for human 
use in ways that contribute to long-term sustainability.
    (c) Planning is efficiently integrated into the broader geographic, 
legal, and social landscape within which national forests and grasslands 
exist. Other agencies, governments, corporations, and citizens manage 
land in and around the national forests and grasslands. Planning, 
therefore, is outward looking with the goal of understanding the broader 
landscape in which the national forests and grasslands lie.
    (1) Planning fosters coordination among all affected federal 
agencies.
    (2) Planning proceeds in close cooperation with state, tribal, and 
local governments.
    (3) Planning recognizes the rights of American Indian tribes and 
Alaska Natives.
    (4) Planning is interdisciplinary, providing analyses and options 
that are responsive to a broad range of ecological, social, and 
economic.
    (5) Planning acknowledges the limits and variability of likely 
budgets.
    (d) Planning meaningfully engages the American people in the 
stewardship of their national forests and grasslands. Just as the Forest 
Service can help the American people learn about the limits and 
capabilities of the national forests and grasslands, managers also 
should be guided by the knowledge and values of the American people.
    (1) Planning encourages extensive collaborative citizen 
participation and builds upon the human resources in local communities 
and throughout the nation.
    (2) Planning actively seeks and addresses key issues and promotes a 
shared vision of desired conditions.
    (3) Planning and plans are understandable.
    (4) Planning restores and maintains the trust of the American people 
in the management of the national forests and grasslands.
    (e) Planning is an ongoing process, where decisions are adapted, as 
necessary, to address new issues, new information, and unforeseen 
events.
    (1) Planning is innovative and practical.
    (2) Planning is expeditious and efficient in achieving goals.
    (f) Planning seeks to manage National Forest System resources in a 
combination that best serves the public interest without impairment of 
the productivity of the land consistent with the Multiple-Use Sustained-
Yield Act of 1960.

                       The Framework for Planning



Sec. 219.3  Overview.

    (a) The planning framework. Land and resource management planning is 
a flexible process for fitting solutions to the scope and scale of 
needed action. Planning, conducted according to the planning framework 
outlined in Secs. 219.3-219.11, involves engaging the public 
(Secs. 219.12-219.18) and applying the best available science 
(Secs. 219.22-219.25) to contribute to sustainability (Secs. 219.19-
219.21) in the use and enjoyment of National Forest System lands.
    (b) Levels of planning. Planning may be undertaken at the national, 
regional, national forest or grassland, and/or ranger district 
administrative levels depending on the scope and scale of issues.
    (1) The Chief of the Forest Service is responsible for national 
planning. National planning includes the Forest Service national 
strategic plan required under the Government Performance and Results Act 
of 1993 (5 U.S.C. 306, 31 U.S.C. 1115-1119 and 9703-9704) that 
establishes national long-term goals, outcome measures, and strategies 
to be considered in managing the National Forest System and the 
Resources Planning Act Program (16 U.S.C. 1600).

[[Page 42]]

    (2) The Forest or Grassland Supervisor is the responsible official 
for a plan amendment or revision, except to the extent the Regional 
Forester or Chief decides to act as the responsible official.
    (3) When appropriate, two or more Forest or Grassland Supervisors, 
one or more Regional Foresters, or the Chief of the Forest Service may 
undertake planning which may amend or revise one or more plans.
    (4) The Chief of the Forest Service, Regional Foresters, National 
Forest and Grassland Supervisors, or District Rangers may authorize and 
implement site-specific actions.
    (c) An interdisciplinary, collaborative approach to planning. An 
interdisciplinary, collaborative approach to planning may be achieved by 
engaging the skills and interests of appropriate combinations of Forest 
Service staff, consultants, contractors, other federal agencies, states, 
American Indian tribes, Alaska Natives, or local government personnel, 
or other interested or affected people consistent with applicable laws.
    (d) Key elements. The planning cycle begins with the identification 
and consideration of issues and concludes with the monitoring and 
evaluation of results. Based upon the scope and scale of issues, 
planning includes one or more of the following key elements:
    (1) Identification and consideration of issues (Sec. 219.4);
    (2) Information development and interpretation (Sec. 219.5);
    (3) Proposed actions (Sec. 219.6);
    (4) Plan decisions (Sec. 219.7);
    (5) Amendment (Sec. 219.8);
    (6) Revision (Sec. 219.9);
    (7) Site-specific decisions (Sec. 219.10); and
    (8) Monitoring and evaluation for adaptive management (Sec. 219.11).



Sec. 219.4  Identification and consideration of issues.

    (a) Origination of issues. Issues may originate from a variety of 
sources including, but are not limited to: inventories, assessments, 
analyses, monitoring and evaluation of projects; discussions among 
people and proposals by organizations or governments interested in or 
affected by National Forest System management; Presidential, 
Departmental, and Forest Service conservation leadership initiatives; 
cooperatively developed landscape goals (Sec. 219.12(b)); evaluation of 
sustainability (Sec. 219.9(b)(4)); enactment of new laws; policies such 
as the Forest Service national strategic plan; and applications for 
authorization for occupancy and use of National Forest System lands.
    (b) Consideration of issues. The responsible official has the 
discretion to determine, at any time, whether and to what extent an 
issue is appropriate for consideration.
    (1) In making this determination, the responsible official should 
consider:
    (i) The scope, complexity, and geographic scale of potential actions 
that may address an issue;
    (ii) Statutory requirements;
    (iii) Organizational and community capabilities and available 
resources, including current and likely Forest Service budgets;
    (iv) The scientific basis and merit of available data and analyses;
    (v) The relationship of possible actions to the Forest Service 
national strategic plan, other existing plans, adopted conservation 
strategies, biological opinions, or other strategies applicable within 
all or a portion of the plan area; and
    (vi) The opinions of interested or affected individuals, 
organizations, or other entities and the social and cultural values 
related to an issue.
    (2) The responsible official should consider the extent to which 
addressing the issue relates to or provides:
    (i) Opportunities to contribute to the achievement of cooperatively 
developed landscape goals;
    (ii) Opportunities for the national forests and grasslands to 
contribute to the restoration or maintenance of ecological 
sustainability, including maintenance or restoration of watershed 
function, such as water flow regimes to benefit aquatic resources, 
groundwater recharge, municipal water supply, or other uses, and 
maintaining or restoring ecological conditions needed for ecosystem and 
species diversity;
    (iii) Opportunities for the national forests or grasslands to 
contribute to social and economic sustainability;

[[Page 43]]

    (iv) Opportunities to recover threatened or endangered species and 
maintain or restore their habitat;
    (v) The potential for negative environmental effects, including 
human health, economic and social effects, upon minority and low income 
communities;
    (vi) Opportunities to maintain or restore ecological conditions that 
are similar to the biological and physical range of expected variability 
(Sec. 219.20(b)(1)); and
    (vii) Opportunities to contribute to knowledge about and 
preservation of historic and cultural resources.



Sec. 219.5  Information development and interpretation.

    If the responsible official determines an issue should receive 
consideration, the responsible official should review relevant 
information such as inventories, broad-scale assessments, local 
analyses, or monitoring results to determine if additional information 
is desirable and if it can be obtained at a reasonable cost and in a 
timely manner. The responsible official, at his or her discretion, may 
choose the methods and determine the scope of information development 
and interpretation for an issue under consideration. A broad-scale 
assessment or a local analysis may be developed or supplemented if 
appropriate to the scope and scale of an issue. Broad-scale assessments, 
local analyses, monitoring results, and other studies are not site-
specific or plan decisions or proposals for agency action 
(Sec. 219.6(a)) subject to Forest Service NEPA procedures.
    (a) Broad-scale assessments. Broad-scale assessments provide 
information regarding ecological, economic, or social issues that are 
broad in geographic scale, sometimes crossing Forest Service regional 
administrative boundaries. Ecological information and analyses that may 
be provided in an assessment are addressed in Sec. 219.20(a). Social and 
economic information and analyses that may be provided in an assessment 
are addressed in Sec. 219.21(a).
    (1) Broad-scale assessment should provide the following as 
appropriate:
    (i) Findings and conclusions that describe historic conditions, 
current status, and future trends of ecological, social, and/or economic 
conditions, their relationship to sustainability, and the principal 
factors contributing to those conditions and trends. The responsible 
official may use these findings and conclusions to identify other issues 
(Sec. 219.4), develop proposals for action (Sec. 219.6), or for other 
purposes.
    (ii) Identification of needs for additional research to develop new 
information or address conflicting interpretations of existing 
information.
    (2) Station Directors and Regional Foresters must have joint 
responsibility for Forest Service participation in broad-scale 
assessments. Each broad-scale assessment should be designed and 
conducted with the assistance of scientists, resource professionals, 
governmental entities, and other individuals and organizations 
knowledgeable of the assessment area.
    (b) Local analyses. Local analyses provide ecological, social, or 
economic information as deemed appropriate by the responsible official. 
Local analyses may cover watersheds, ecological units, and social and 
economic units, and may tier to or provide information to update a 
broad-scale assessment. Local analyses should provide the following, as 
appropriate:
    (1) Characterization of the area of analysis;
    (2) Description of issues within the analysis area;
    (3) Description of current conditions;
    (4) Description of likely future conditions;
    (5) Synthesis and interpretation of information; and
    (6) Recommendations for proposals (Sec. 219.6(a)) or identification 
of other issues (Sec. 219.4).



Sec. 219.6  Proposed actions.

    (a) Proposal. The responsible official may propose to amend or 
revise a plan, propose a site-specific action, or both.
    (b) NEPA requirements. Unless otherwise provided by law, the 
responsible official must analyze the effects of the proposal and 
alternative(s) in conformance with Forest Service NEPA procedures. The 
responsible official may use issues identified and information reviewed 
pursuant to Secs. 219.4-219.5 for scoping required in Forest Service 
NEPA procedures.

[[Page 44]]



Sec. 219.7  Plan decisions.

    Plan decisions guide or limit uses of National Forest System 
resources and provide the basis for future agency action. Plan decisions 
link the requirements of laws, regulations, Executive Orders, policies, 
and the Forest Service national strategic plan to specific national 
forests and grasslands. While plan decisions generally do not commit 
resources to a site-specific action, plan decisions provide a framework 
for authorizing site-specific actions that may commit resources. In 
making decisions, the responsible official should seek to manage 
National Forest System resources in a combination that best serves the 
public interest without impairment of the productivity of the land 
consistent with the Multiple-Use Sustained-Yield Act of 1960. Plan 
decisions may apply to all or part of a plan area. Paragraphs (a) 
through (e) of this section describe the decisions in a plan.
    (a) Desired resource conditions. These plan decisions define the 
resource conditions sought within all or portions of the plan area. 
Desired resource conditions may include, but are not limited to, the 
desired watershed and ecological conditions and aquatic and terrestrial 
habitat characteristics.
    (b) Objectives. These plan decisions are concise statements 
describing measurable results intended to contribute to sustainability 
(Sec. 219.19), including a desired level of uses, values, products, and 
services, assuming current or likely budgets and considering other 
spending levels as appropriate. Objectives include an estimate of the 
time and resources needed for their completion.
    (c) Standards. These plan decisions are the requirements and 
limitations for land uses and management actions necessary for the 
achievement of desired conditions and objectives and compliance with 
applicable laws, regulations, Executive Orders, and policies. Standards 
include, but are not limited to:
    (1) Limitations on even-aged timber harvest methods;
    (2) Maximum size openings from timber harvest;
    (3) Methods for achieving aesthetic objectives by blending the 
boundaries of vegetation treatments; and
    (4) Other requirements to achieve multiple-use of the national 
forests and grasslands.
    (d) Designation of suitable land uses. These plan decisions identify 
lands within the National Forest System that are or are not suitable for 
specific uses (Sec. 219.26), including, but not limited to: the 
transportation system; livestock grazing; special designations as 
described in Sec. 219.27; and lands where timber production is an 
objective (Sec. 219.28).
    (e) Monitoring strategy. A monitoring strategy is required by each 
plan as described in Sec. 219.11(a).



Sec. 219.8  Amendment.

    (a) Amending plans. A plan amendment may add, modify, or rescind one 
or more of the decisions of a plan (Sec. 219.7). An amendment decision 
must be based on the identification and consideration of issues 
(Sec. 219.4), applicable information (Sec. 219.5), and an analysis of 
the effects of the proposed amendment (Sec. 219.6). In developing an 
amendment, the responsible official must provide opportunities for 
collaboration consistent with Sec. 219.12 through Sec. 219.18.
    (b) Environmental review of a proposed plan amendment. For each 
proposal for a plan amendment, the responsible official must complete 
appropriate environmental analyses and public involvement in accordance 
with Forest Service NEPA procedures. A proposed amendment that may 
create a significant environmental effect and thus require preparation 
of an environmental impact statement is considered to be a significant 
change in the plan. If a proposal for amendment requires the preparation 
of an environmental impact statement, the responsible official must give 
public notice and an opportunity to comment on the draft environmental 
impact statement for at least 90 calendar days.



Sec. 219.9  Revision.

    (a) Application of the revision process. Revision of a plan is 
required by 16 U.S.C. 1604(f)(5). The revision process is a review of 
the overall management of a unit of the National Forest System and an 
opportunity to consider the likely results if plan decisions were to 
remain in effect.

[[Page 45]]

    (b) Initiating revision. To begin the revision process, the 
responsible official must:
    (1) Provide opportunities for collaboration consistent with 
Sec. 219.12 through Sec. 219.18;
    (2) Summarize those issues the responsible official determines to be 
appropriate for consideration (Sec. 219.4), any relevant inventories, 
new data, findings and conclusions from appropriate broad-scale 
assessments and local analyses, monitoring and evaluation results, new 
or revised Forest Service policies, relevant portions of the Forest 
Service national strategic plan, and changes in circumstances affecting 
the entire or significant portions of the plan area;
    (3) Develop the information and complete the analyses described in 
Sec. 219.20(a) and Sec. 219.21(a);
    (4) Evaluate the effectiveness of the current plan in contributing 
to sustainability (Secs. 219.19-219.21) based on the information, 
analyses, and requirements described in Sec. 219.20(a) and (b) and 
Sec. 219.21(a) and (b), and provide for an independent scientific peer 
review (Sec. 219.22) of the evaluation;
    (5) Identify new proposals for special areas, special designation, 
or for recommendation as wilderness (Sec. 219.27);
    (6) Identify specific watersheds in need of protective or 
restoration measures;
    (7) Identify lands classified as not suitable for timber production 
(Sec. 219.28);
    (8) Identify and evaluate inventoried roadless areas and unroaded 
areas based on the information, analyses, and requirements in 
Sec. 219.20(a) and Sec. 219.21(a). During the plan revision process or 
at other times as deemed appropriate, the responsible official must 
determine which inventoried roadless areas and unroaded areas warrant 
additional protection and the level of protection to be afforded; and
    (9) Develop an estimate of outcomes that would be anticipated, 
including uses, values, products, or services, for a 15-year period 
following initiation of the revision process, if the plan decisions in 
effect at the time the revision process began remain in effect.
    (c) Public notice of revision process and review of information. 
After the responsible official has compiled the information required 
under paragraph (b) of this section, the responsible official must give 
public notice of the plan revision process and make the information 
compiled under paragraph (b) of this section available for public 
comment for at least 45 calendar days.
    (d) Notice of Intent. Based upon the information compiled under 
paragraph (b) of this section and any comments received during the 
comment period required under paragraph (c) of this section, the 
responsible official must publish a Notice of Intent to prepare an 
environmental impact statement to add, modify, remove, or continue in 
effect the decisions embodied in a plan. The responsible official must 
give the public notice and an opportunity to comment on the draft 
environmental impact statement for at least 90 calendar days. Following 
public comment, the responsible official must oversee preparation of a 
final environmental impact statement in accordance with Forest Service 
NEPA procedures.
    (e) Final decision on plan revision. The revision process is 
completed when the responsible official signs a record of decision for a 
plan revision.



Sec. 219.10  Site-specific decisions.

    To the extent appropriate and practicable and subject to valid 
existing rights and appropriate statutes, the responsible official must 
provide opportunities for collaboration consistent with Sec. 219.12 
through Sec. 219.18, follow the planning framework described in 
Secs. 219.4-219.6 and comply with Sec. 219.11 to make site-specific 
decisions. All site-specific decisions, including authorized uses of 
land, must be consistent with the applicable plan. If a proposed site-
specific decision is not consistent with the applicable plan, the 
responsible official may modify the proposed decision to make it 
consistent with the plan, reject the proposal; or amend the plan to 
authorize the action.



Sec. 219.11  Monitoring and evaluation for adaptive management.

    (a) Plan monitoring strategy. Each plan must contain a practicable, 
effective, and efficient monitoring strategy to evaluate sustainability 
in the plan area (Secs. 219.19-219.21). The strategy must require 
monitoring of appropriate plan

[[Page 46]]

decisions and characteristics of sustainability.
    (1) Monitoring and evaluation of ecological sustainability. The plan 
monitoring strategy for the monitoring and evaluation of ecological 
sustainability must require monitoring of:
    (i) Ecosystem diversity. Monitoring must be used to evaluate the 
status and trend of selected physical and biological characteristics of 
ecosystem diversity (Sec. 219.20(a)(1)). The plan monitoring strategy 
must document the reasons for selection of characteristics to be 
monitored, monitoring objectives, methodology, and designate critical 
values that will prompt reviews of plan decisions.
    (ii) Species diversity. Monitoring must be used to evaluate focal 
species and species-at-risk as follows:
    (A) The status and trends of ecological conditions known or 
suspected to support focal species and selected species-at-risk must be 
monitored. The plan monitoring strategy must document the reasons for 
the selection of species-at-risk for which ecological conditions are to 
be monitored, including the degree of risk to the species, the factors 
that put the species at risk, and the strength of association between 
ecological conditions and population dynamics.
    (B) In addition to monitoring of ecological conditions, the plan 
monitoring strategy may require population monitoring for some focal 
species and some species-at-risk. This monitoring may be accomplished by 
a variety of methods including population occurrence and presence/
absence data, sampling population characteristics, using population 
indices to track relative population trends, or inferring population 
status from ecological conditions.
    (C) A decision by the responsible official to monitor populations 
and the responsible official's choice of methodologies for monitoring 
selected focal species and selected species-at-risk may be based upon 
factors that include, but are not limited to, the degree of risk to the 
species, the degree to which a species' life history characteristics 
lend themselves to monitoring, the reasons that a species is included in 
the list of focal species or species-at-risk, and the strength of 
association between ecological conditions and population dynamics. 
Monitoring of population trend is often appropriate in those cases where 
risk to species viability is high and population characteristics cannot 
be reliably inferred from ecological conditions. The reasons for 
selection of species, monitoring objectives, and methodologies must be 
documented as part of the plan monitoring strategy. Critical values that 
will prompt reviews of plan decisions must be designated in the 
monitoring strategy.
    (iii) Monitoring effectiveness. As a part of the plan monitoring 
strategy, the responsible official must evaluate the effectiveness of 
selected characteristics of ecosystem diversity and species diversity in 
providing reliable information regarding ecological sustainability.
    (2) Monitoring and evaluation of social and economic sustainability. 
The plan monitoring strategy for the monitoring and evaluation of social 
and economic sustainability should provide for periodic review of 
national, regional, and local supply and demand for products, services, 
and values. Special consideration should be given to those uses, values, 
products, and services that the National Forest System is uniquely 
poised to provide. Monitoring should improve the understanding of the 
National Forest System contributions to social and economic 
sustainability. The plan monitoring strategy must require the 
responsible official to evaluate the effectiveness of information and 
analyses described in Sec. 219.21(a) in providing reliable information 
regarding social and economic sustainability.
    (b) Monitoring of site-specific actions. The decision document 
authorizing a site-specific action should describe any required 
monitoring and evaluation for the site-specific action. The responsible 
official must determine that there is a reasonable expectation that 
anticipated funding is adequate to complete any required monitoring and 
evaluation prior to authorizing a site-specific action.
    (c) Monitoring methods. Unless required by the monitoring strategy, 
monitoring methods may be changed to reflect new information without 
plan amendment or revision.

[[Page 47]]

    (d) Use of monitoring information. Where monitoring and evaluation 
is required by the plan monitoring strategy, the responsible official 
must ensure that monitoring information is used to determine one or more 
of the following:
    (1) If site-specific actions are completed as specified in 
applicable decision documents;
    (2) If the aggregated outcomes and effects of completed and ongoing 
actions are achieving or contributing to the desired conditions;
    (3) If key assumptions identified for monitoring in plan decisions 
remain valid; and
    (4) If plan or site-specific decisions need to be modified.
    (e) Coordination of monitoring activities. To the extent 
practicable, monitoring and evaluation should be conducted jointly with 
other federal agencies, state, local, and tribal governments, scientific 
and academic communities, and others. In addition, the responsible 
official must provide appropriate opportunities for the public to be 
involved and utilize scientists as described in Sec. 219.23.
    (f) Annual monitoring and evaluation report. The responsible 
official must prepare a monitoring and evaluation report for the plan 
area within 6 months following the end of each fiscal year. The report 
must be maintained with the plan documents (Sec. 219.30(d)(5)), and 
include the following:
    (1) A list or reference to monitoring required by the plan; and
    (2) A summary of the results of monitoring and evaluation performed 
during the preceding fiscal year and appropriate results from previous 
years. The summary must include:
    (i) A description of the progress toward achievement of desired 
conditions within the plan area; and
    (ii) A description of the plan area's contribution to the 
achievement of applicable outcomes of the Forest Service national 
strategic plan.

                Collaborative Planning for Sustainability



Sec. 219.12  Collaboration and cooperatively developed landscape goals.

    (a) Collaboration. To promote sustainability, the responsible 
official must actively engage the American public, interested 
organizations, private landowners, state, local, and Tribal governments, 
federal agencies, and others in the stewardship of National Forest 
System lands. To engage people in the stewardship of National Forest 
System lands, the responsible official may assume many roles, such as 
leader, organizer, facilitator, or participant. The responsible official 
must provide early and frequent opportunities for people to participate 
openly and meaningfully in planning taking into account the diverse 
roles, jurisdictions, and responsibilities of interested and affected 
organizations, groups, and individuals. The responsible official has the 
discretion to determine how to provide these opportunities in the 
planning process.
    (b) Cooperatively developed landscape goals. (1) The responsible 
official and other Forest Service employees involved in planning must 
invite and encourage others to engage in the collaborative development 
of landscape goals. Using information from broad-scale assessments or 
other available information, and subject to applicable laws, the 
responsible official may initiate or join ongoing collaborative efforts 
to develop or propose landscape goals for areas that include National 
Forest System lands.
    (2) During collaborative efforts, responsible officials and other 
Forest Service employees, must communicate and foster understanding of 
the nation's declaration of environmental policy as set forth in section 
101(b) of the National Environmental Policy Act, as amended (42 U.S.C. 
4321-4347), which states that it is the continuing responsibility of the 
Federal Government to use all practicable means, consistent with other 
essential considerations of national policy, to improve and coordinate 
federal plans, functions, programs, and resources to the end that the 
Nation may--
    (i) Fulfill the responsibilities of each generation as trustee of 
the environment for succeeding generations;
    (ii) Assure for all Americans safe, healthful, productive, and 
esthetically and culturally pleasing surroundings;
    (iii) Attain the widest range of beneficial uses of the environment 
without degradation, risk to health or safety,

[[Page 48]]

or other undesirable and unintended consequences;
    (iv) Preserve important historic, cultural, and natural aspects of 
our national heritage, and maintain, wherever possible, an environment 
which supports diversity, and variety of individual choice;
    (v) Achieve a balance between population and resource use which will 
permit high standards of living and a wide sharing of life's amenities; 
and
    (vi) Enhance the quality of renewable resources and approach the 
maximum attainable recycling of depletable resources.
    (3) Cooperatively developed landscape goals, whether the result of 
efforts initiated by the Forest Service or others, must be deemed an 
issue for the purposes under Sec. 219.4.



Sec. 219.13  Coordination among federal agencies.

    The responsible official must provide early and frequent 
coordination with appropriate federal agencies and may provide 
opportunities:
    (a) For interested or affected federal agencies to participate in 
the identification of issues and formulation of proposed actions;
    (b) For the streamlined coordination of federal agency policies, 
resource management plans, or programs; and
    (c) The development, where appropriate and practicable, of joint 
resource management plans.



Sec. 219.14  Involvement of state and local governments.

    The responsible official must provide early and frequent 
opportunities for state and local governments to:
    (a) Participate in the planning process, including the 
identification of issues; and
    (b) Contribute to the streamlined coordination of resource 
management plans or programs.



Sec. 219.15  Interaction with American Indian tribes and Alaska Natives.

    (a) The Forest Service shares in the federal government's overall 
trust responsibility for federally recognized American Indian tribes and 
Alaska Natives.
    (b) During planning, the responsible official must consider the 
government-to-government relationship between American Indian or Alaska 
Native tribal governments and the federal government.
    (c) The responsible official must consult with and invite American 
Indian tribes and Alaska Natives to participate in the planning process 
to assist in:
    (1) The early identification of treaty rights, treaty-protected 
resources, and American Indian tribe trust resources;
    (2) The consideration of tribal data and resource knowledge provided 
by tribal representatives; and
    (3) The consideration of tribal concerns and suggestions during 
decisionmaking.



Sec. 219.16  Relationships with interested individuals and organizations.

    The responsible official must:
    (a) Make planning information available to the extent allowed by 
law;
    (b) Conduct planning processes that are fair, meaningful, and open 
to persons with diverse opinions;
    (c) Provide early and frequent opportunities for participation in 
the identification of issues;
    (d) Encourage interested individuals and organizations to work 
collaboratively with one another to improve understanding and develop 
cooperative landscape and other goals;
    (e) Consult with individuals and organizations who can provide 
information about current and historic public uses within an assessment 
or plan area, about the location of unique and sensitive resources and 
values and cultural practices related to issues in the plan area; and
    (f) Consult with scientific experts and other knowledgeable persons, 
as appropriate, during consideration of collaboratively developed 
landscape goals and other activities.



Sec. 219.17  Interaction with private landowners.

    The responsible official must seek to collaborate with those who 
have control or authority over lands adjacent to or within the external 
boundaries of national forests or grasslands to identify:

[[Page 49]]

    (a) Local knowledge;
    (b) Potential actions and partnership activities;
    (c) Potential conditions and activities on the adjacent lands that 
may affect management of National Forest System lands, or vice versa; 
and
    (d) Issues (Sec. 219.4).



Sec. 219.18  Role of advisory committees.

    (a) Advisory committees. Advisory committees can provide an 
immediate, representative, and predictable structure within which public 
dialogue can occur and the Forest Service can develop relationships with 
diverse communities of interests. The responsible official may seek the 
assistance or advice from a committee, consistent with the requirements 
of the Federal Advisory Committee Act (5 U.S.C. app.) in determining 
whether there is a reasonable basis to propose an action to address an 
issue. Each Forest or Grassland Supervisor must have access to an 
advisory committee with knowledge of local conditions and issues, 
although an advisory committee is not required for each national forest 
or grassland. Responsible officials may request establishment of 
advisory committees and recommend members to the Secretary of 
Agriculture. Advisory committees used by other agencies may be utilized 
through proper agreements.
    (b) Participation in other types of community-based groups. When 
appropriate, the responsible official should consider participating in 
community-based groups organized for a variety of public purposes, 
particularly those groups organized to develop landscape goals 
(Sec. 219.12(b)).

             Ecological, Social, and Economic Sustainability



Sec. 219.19  Ecological, social, and economic sustainability.

    Sustainability, composed of interdependent ecological, social, and 
economic elements, embodies the Multiple-Use Sustained-Yield Act of 1960 
(16 U.S.C. 528 et seq.) without impairment to the productivity of the 
land and is the overall goal of management of the National Forest 
System. The first priority for stewardship of the national forests and 
grasslands is to maintain or restore ecological sustainability to 
provide a sustainable flow of uses, values, products, and services from 
these lands.



Sec. 219.20  Ecological sustainability.

    To achieve ecological sustainability, the responsible official must 
ensure that plans provide for maintenance or restoration of ecosystems 
at appropriate spatial and temporal scales determined by the responsible 
official.
    (a) Ecological information and analyses. Ecosystem diversity and 
species diversity are components of ecological sustainability. The 
planning process must include the development and analysis of 
information regarding these components at a variety of spatial and 
temporal scales. These scales include geographic areas such as 
bioregions and watersheds, scales of biological organization such as 
communities and species, and scales of time ranging from months to 
centuries. Information and analyses regarding the components of 
ecological sustainability may be identified, obtained, or developed 
through a variety of methods, including broad-scale assessments and 
local analyses (Sec. 219.5), and monitoring results (Sec. 219.11). For 
plan revisions, and to the extent the responsible official considers 
appropriate for plan amendments or site-specific decisions, the 
responsible official must develop or supplement the following 
information and analyses related to ecosystem and species diversity:
    (1) Characteristics of ecosystem and species diversity. 
Characteristics of ecosystem and species diversity must be identified 
for assessing and monitoring ecological sustainability. In general, 
these identified characteristics should be consistent at various scales 
of analyses.
    (i) Ecosystem diversity. Characteristics of ecosystem diversity 
include, but are not limited to:
    (A) Major vegetation types. The composition, distribution, and 
abundance of the major vegetation types and successional stages of 
forest and grassland systems; the prevalence of invasive or noxious 
plant or animal species.
    (B) Water resources. The diversity, abundance, and distribution of 
aquatic and riparian systems including

[[Page 50]]

streams, stream banks, coastal waters, estuaries, groundwater, lakes, 
wetlands, shorelines, riparian areas, and floodplains; stream channel 
morphology and condition, and flow regimes.
    (C) Soil resources. Soil productivity; physical, chemical and 
biological properties; soil loss; and compaction.
    (D) Air resources. Air quality, visibility, and other air resource 
values.
    (E) Focal species. Focal species that provide insights to the larger 
ecological systems with which they are associated.
    (ii) Species diversity. Characteristics of species diversity 
include, but are not limited to, the number, distribution, and 
geographic ranges of plant and animal species, including focal species 
and species-at-risk that serve as surrogate measures of species 
diversity. Species-at-risk and focal species must be identified for the 
plan area.
    (2) Evaluation of ecological sustainability. Evaluations of 
ecological sustainability must be conducted at the scope and scale 
determined by the responsible official to be appropriate to the planning 
decision. These evaluations must describe the current status of 
ecosystem diversity and species diversity, risks to ecological 
sustainability, cumulative effects of human and natural disturbances, 
and the contribution of National Forest System lands to the ecological 
sustainability of all lands within the area of analysis.
    (i) Evaluation of ecosystem diversity. Evaluations of ecosystem 
diversity must include, as appropriate, the following:
    (A) Information about focal species that provide insights to the 
integrity of the larger ecological system to which they belong.
    (B) A description of the biological and physical properties of the 
ecosystem using the characteristics identified in paragraph (a)(1)(i) of 
this section.
    (C) A description of the principal ecological processes occurring at 
the spatial and temporal scales that influence the characteristic 
structure and composition of ecosystems in the assessment or analysis 
area. These descriptions must include the distribution, intensity, 
frequency, and magnitude of natural disturbance regimes of the current 
climatic period, and should include other ecological processes important 
to ecological sustainability, such as nutrient cycling, migration, 
dispersal, food web dynamics, water flows, and the identification of the 
risks to maintaining these processes. These descriptions may also 
include an evaluation of the feasibility of maintaining natural 
ecological processes as a tool to contribute to ecological 
sustainability.
    (D) A description of the effects of human activities on ecosystem 
diversity. These descriptions must distinguish activities that had an 
integral role in the landscape's ecosystem diversity for a long period 
of time from activities that are of a type, size, or rate that were not 
typical of disturbances under which native plant and animal species and 
ecosystems developed.
    (E) An estimation of the range of variability of the characteristics 
of ecosystem diversity, identified in paragraph (a)(l)(i) of this 
section, that would be expected under the natural disturbance regimes of 
the current climatic period. The current values of these characteristics 
should be compared to the expected range of variability to develop 
insights about the current status of ecosystem diversity.
    (F) An evaluation of the effects of air quality on ecological 
systems including water.
    (G) An estimation of current and foreseeable future Forest Service 
consumptive and non-consumptive water uses and the quantity and quality 
of water needed to support those uses and contribute to ecological 
sustainability.
    (H) An identification of reference landscapes to provide for 
evaluation of the effects of actions.
    (ii) Evaluations of species diversity. Evaluations of species 
diversity must include, as appropriate, assessments of the risks to 
species viability and the identification of ecological conditions needed 
to maintain species viability over time based on the following:
    (A) The viability of each species listed under the Endangered 
Species Act as threatened, endangered, candidate, and proposed species 
must be assessed.

[[Page 51]]

Individual species assessments must be used for these species.
    (B) For all other species, including other species-at-risk and those 
species for which there is little information, a variety of approaches 
may be used, including individual species assessments and assessments of 
focal species or other indicators used as surrogates in the evaluation 
of ecological conditions needed to maintain species viability.
    (C) Except as provided in paragraph (a)(2)(ii)(A) of this section, 
for species groups that contain many species, assessments of functional, 
taxonomic, or habitat groups rather than individual species may be 
appropriate.
    (D) In analyzing viability, the extent of information available 
about species, their habitats, the dynamic nature of ecosystems and the 
ecological conditions needed to support them must be identified. Species 
assessments may rely on general conservation principles and expert 
opinion. When detailed information on species habitat relationships, 
demographics, genetics, and risk factors is available, that information 
should be considered.
    (b) Plan decisions. When making plan decisions that will affect 
ecological sustainability, the responsible official must use the 
information developed under paragraph (a) of this section. The following 
requirements must apply at the spatial and temporal scales that the 
responsible official determines to be appropriate to the plan decision:
    (1) Ecosystem diversity. Plan decisions affecting ecosystem 
diversity must provide for maintenance or restoration of the 
characteristics of ecosystem composition and structure within the range 
of variability that would be expected to occur under natural disturbance 
regimes of the current climatic period in accordance with paragraphs 
(b)(1)(i) through (v) of this section.
    (i) Except as provided in paragraph (b)(1)(iv) of this section, in 
situations where ecosystem composition and structure are currently 
within the expected range of variability, plan decisions must maintain 
the composition and structure within the range.
    (ii) Except as provided in paragraph (b)(1)(v) of this section, 
where current ecosystem composition and structure are outside the 
expected range of variability, plan decisions must provide for 
measurable progress toward ecological conditions within the expected 
range of variability.
    (iii) Where the range of variability cannot be practicably defined, 
plan decisions must provide for measurable progress toward maintaining 
or restoring ecosystem diversity. The responsible official must use 
independently peer-reviewed scientific methods other than the expected 
range of variability to maintain or restore ecosystem diversity. The 
scientific basis for such alternative methods must be documented in 
accordance with (Secs. 219.22-219.25).
    (iv) Where the responsible official determines that ecological 
conditions are within the expected range of variability and that 
maintaining ecosystem composition and structure within that range is 
ecologically, socially or economically unacceptable, plan decisions may 
provide for ecosystem composition and structure outside the expected 
range of variability. In such circumstances, the responsible official 
must use independently peer-reviewed scientific methods other than the 
expected range of variability to provide for the maintenance or 
restoration of ecosystem diversity. The scientific basis for such 
alternative methods must be documented in accordance with (Secs. 219.22-
219.25).
    (v) Where the responsible official determines that ecological 
conditions are outside the expected range of variability and that it is 
not practicable to make measurable progress toward conditions within the 
expected range of variability, or that restoration would result in 
conditions that are ecologically, socially or economically unacceptable, 
plan decisions may provide for ecosystem composition and structure 
outside the expected range of variability. In such circumstances, the 
responsible official must use independently peer-reviewed scientific 
methods other than the expected range of variability to provide for the 
maintenance or restoration of ecosystem diversity. The scientific basis 
for such alternative methods must be documented (Secs. 219.22-219.25).
    (2) Species diversity. (i) Plan decisions affecting species 
diversity must provide for ecological conditions that the

[[Page 52]]

responsible official determines provide a high likelihood that those 
conditions are capable of supporting over time the viability of native 
and desired non-native species well distributed throughout their ranges 
within the plan area, except as provided in paragraphs (b)(2)(ii)-(iv) 
of this section. Methods described in paragraph (a)(2)(ii) of this 
section may be used to make the determinations of ecological conditions 
needed to maintain viability. A species is well distributed when 
individuals can interact with each other in the portion of the species 
range that occurs within the plan area. When a plan area occupies the 
entire range of a species, these decisions must provide for ecological 
conditions capable of supporting viability of the species and its 
component populations throughout that range. When a plan area 
encompasses one or more naturally disjunct and self-sustaining 
populations of a species, these decisions must provide ecological 
conditions capable of supporting over time viability of each population. 
When a plan area encompasses only a part of a population, these 
decisions must provide ecological conditions capable of supporting 
viability of that population well distributed throughout its range 
within the plan area.
    (ii) When conditions outside the authority of the agency prevent the 
agency from providing ecological conditions that provide a high 
likelihood of supporting over time the viability of native and desired 
non-native species well distributed throughout their ranges within the 
plan area, plan decisions must provide for ecological conditions well 
distributed throughout the species range within the plan area to 
contribute to viability of that species.
    (iii) Where species are inherently rare or not naturally well 
distributed in the plan area, plan decisions should not contribute to 
the extirpation of the species from the plan area and must provide for 
ecological conditions to maintain these species considering their 
natural distribution and abundance.
    (iv) Where environmental conditions needed to support a species have 
been so degraded that it is technically infeasible to restore ecological 
conditions that would provide a high likelihood of supporting viability, 
plan decisions must provide for ecological conditions to contribute to 
supporting over time viability to the degree practicable.
    (3) Federally listed threatened and endangered species. (i) Plan 
decisions must provide for implementing actions in conservation 
agreements with the U.S. Fish and Wildlife Service or the National 
Marine Fisheries Service that provide a basis for not needing to list a 
species. In some situations, conditions or events beyond the control or 
authority of the agency may limit the Forest Service's ability to 
prevent the need for federal listing. Plan decisions should reflect the 
unique opportunities that National Forest System lands provide to 
contribute to recovery of listed species.
    (ii) Plan decisions involving species listed under the Endangered 
Species Act must include, at the scale determined by the responsible 
official to be appropriate to the plan decision, reasonable and prudent 
measures and associated terms and conditions contained in final 
biological opinions issued under 50 CFR part 402. The plan decision 
documents must provide a rationale for adoption or rejection of 
discretionary conservation recommendations contained in final biological 
opinions.



Sec. 219.21  Social and economic sustainability.

    To contribute to economic and social sustainability, the responsible 
official involves interested and affected people in planning for 
National Forest System lands (Secs. 219.12-219.18), provides for the 
development and consideration of relevant social and economic 
information and analyses, and a range of uses, values, products, and 
services.
    (a) Social and economic information and analyses. To understand the 
contribution national forests and grasslands make to the economic and 
social sustainability of local communities, regions, and the nation, the 
planning process must include the analysis of economic and social 
information at

[[Page 53]]

variable scales, including national, regional, and local scales. Social 
analyses address human life-styles, cultures, attitudes, beliefs, 
values, demographics, and land-use patterns, and the capacity of human 
communities to adapt to changing conditions. Economic analyses address 
economic trends, the effect of national forest and grassland management 
on the well-being of communities and regions, and the net benefit of 
uses, values, products, or services provided by national forests and 
grasslands. Social and economic analyses should recognize that the uses, 
values, products, and services from national forests and grasslands 
change with time and the capacity of communities to accommodate shifts 
in land uses change. Social and economic analyses may rely on 
quantitative, qualitative, and participatory methods for gathering and 
analyzing data. Social and economic information may be developed and 
analyzed through broad-scale assessments and local analyses 
(Sec. 219.5), monitoring results (Sec. 219.11), or other means. For plan 
revisions, and to the extent the responsible official considers to be 
appropriate for plan amendments or site-specific decisions, the 
responsible official must develop or supplement the information and 
analyses related to the following:
    (1) Describe and analyze, as appropriate, the following:
    (i) Demographic trends; life-style preferences; public values; land-
use patterns; related conservation and land use policies at the state 
and local level; cultural and American Indian tribe and Alaska Native 
land settlement patterns; social and cultural history; social and 
cultural opportunities provided by national forest system lands; the 
organization and leadership of local communities; community assistance 
needs; community health; and other appropriate social and cultural 
information;
    (ii) Employment, income, and other economic trends; the range and 
estimated long-term value of market and non-market goods, uses, 
services, and amenities that can be provided by national forest system 
lands consistent with the requirements of ecological sustainability, the 
estimated cost of providing them, and the estimated effect of providing 
them on regional and community well-being, employment, and wages; and 
other appropriate economic information. Special attention should be paid 
to the uses, values, products, or services that the Forest Service is 
uniquely poised to provide;
    (iii) Opportunities to provide social and economic benefits to 
communities through natural resource restoration strategies;
    (iv) Other social or economic information, if appropriate, to 
address issues being considered by the responsible official 
(Sec. 219.4).
    (2) Analyze community or region risk and vulnerability. Risk and 
vulnerability analyses assess the vulnerability of communities from 
changes in ecological systems as a result of natural succession or 
potential management actions. Risk may be considered for geographic, 
relevant occupational, or other related communities of interest. 
Resiliency and community capacity should be considered in a risk and 
vulnerability analysis. Risk and vulnerability analysis may also address 
potential consequences to communities and regions from land management 
changes in terms of capital availability, employment opportunities, wage 
levels, local tax bases, federal revenue sharing, the ability to support 
public infrastructure and social services, human health and safety, and 
other factors as necessary and appropriate.
    (b) Plan decisions. When making plan decisions that will affect 
social or economic sustainability, the responsible official must use the 
information analyses developed in paragraph (a) of this section. Plan 
decisions contribute to social and economic sustainability by providing 
for a range of uses, values, products, and services, consistent with 
ecological sustainability.

                       The Contribution of Science



Sec. 219.22  The overall role of science in planning.

    (a) The responsible official must ensure that the best available 
science is considered in planning. The responsible official, when 
appropriate, should acknowledge incomplete or unavailable information, 
scientific uncertainty,

[[Page 54]]

and the variability inherent in complex systems.
    (b) When appropriate and practicable and consistent with applicable 
law, the responsible official should provide for independent, scientific 
peer reviews of the use of science in planning. Independent, scientific 
peer reviews are conducted using generally accepted scientific practices 
that do not allow individuals to participate in the peer reviews of 
documents they authored or co-authored.



Sec. 219.23  The role of science in assessments, analyses, and monitoring.

    (a) Broad-scale assessments. If the Forest Service is leading a 
broad-scale assessment, the assessment must be led by a Chief Scientist 
selected by the Deputy Chief of Research and Development. When 
appropriate and practicable, a responsible official may provide for 
independent, scientific peer review of the findings and conclusions 
originating from a broad-scale assessment. Independent, scientific peer 
review may be provided by scientists from the Forest Service, other 
federal, state, or tribal agencies, or other institutions.
    (b) Local analyses. Though not required, a responsible official may 
include scientists in the development or technical reviews of local 
analyses and field reviews of the design and selection of subsequent 
site-specific actions.
    (c) Monitoring. (1) The responsible official must include scientists 
in the design and evaluation of monitoring strategies. Additionally, the 
responsible official must provide for an independent, scientific peer 
review of plan monitoring on at least a biennial basis to validate 
adherence to appropriate protocols and methods in collecting and 
processing of monitoring samples and to validate that data are 
summarized and interpreted properly.
    (2) When appropriate and practicable, the responsible official 
should include scientists in the review of monitoring data and 
analytical results to determine trends relative to ecological, economic, 
or social sustainability.



Sec. 219.24  Science consistency evaluations.

    (a) The responsible official must ensure that plan amendments and 
revisions are consistent with the best available science. The 
responsible official may use a science advisory board (Sec. 219.25) to 
assist in determining whether information gathered, evaluations 
conducted, or analyses and conclusions reached in the planning process 
are consistent with the best available science. If the responsible 
official decides to use a science advisory board, the board and the 
responsible official are to jointly establish criteria for the science 
advisory board and the responsible official to use in reviewing the 
consistency of proposed plan amendments and revisions with the best 
available science.
    (b) The science advisory board is responsible for organizing and 
conducting a scientific consistency evaluation to determine the 
following:
    (1) If relevant scientific (ecological, social, or economic) 
information has been considered by the responsible official in a manner 
consistent with current scientific understanding at the appropriate 
scales;
    (2) If uncertainty of knowledge has been recognized, acknowledged, 
and adequately documented; and
    (3) If the level of risk in achievement of sustainability is 
acknowledged and adequately documented by the responsible official.
    (c) If substantial disagreement among members of the science 
advisory board or between the science advisory board and the responsible 
official is identified during a science consistency evaluation, a 
summary of such disagreement should be noted in the appropriate 
environmental documentation within Forest Service NEPA procedures.



Sec. 219.25  Science advisory boards.

    (a) National science advisory board. The Forest Service Deputy Chief 
for Research and Development must establish, convene, and chair a 
science advisory board to provide scientific advice on issues identified 
by the Chief of the Forest Service. Board membership

[[Page 55]]

must represent a broad range of scientific disciplines including, but 
not limited to, the physical, biological, economic, and social sciences.
    (b) Regional science advisory boards. Based upon needs identified by 
Regional Forester(s) or Research Station Director(s), the Forest Service 
Research Station Director(s), should establish and convene science 
advisory boards consistent with the Federal Advisory Committee Act (5 
U.S.C. app.) to provide advice to one or more Regional Foresters 
regarding the application of science in planning and decisionmaking for 
National Forest System lands. At least one regional science advisory 
board must be available for each national forest and grassland. The 
Station Director(s) must chair the board or appoint a chair of such 
boards. The geographical boundaries of the boards need not align with 
National Forest System Regional boundaries. Board membership must 
represent a broad range of science disciplines including, but not 
limited to, the physical, biological, economic, and social sciences. 
Regional science advisory board tasks may include, but are not limited, 
to:
    (1) Evaluating significance and relevance of new information related 
to current plan decisions, including the results of monitoring and 
evaluation; and
    (2) Evaluating science consistency as described in Sec. 219.24.
    (c) Work groups. With the concurrence of the appropriate chair and 
subject to available funding, the national or regional science advisory 
boards may convene work groups to study issues and provide 
recommendations.

                         Special Considerations



Sec. 219.26  Identifying and designating suitable uses.

    National forests and grasslands are suitable for a wide variety of 
public uses, such as outdoor recreation, livestock grazing, timber 
harvest, off-road vehicle travel, or other uses except where lands are 
determined to be unsuited for a particular use. Lands are not suited for 
a particular use if that use: is prohibited by law, regulation, or 
Executive Order; is incompatible with the mission or policies of the 
National Forest System; or would result in substantial and permanent 
impairment of the productivity of the land. Through a plan amendment or 
revision, the responsible official may determine whether specific uses 
may begin, continue, or terminate within the plan area. Planning 
documents should describe or display lands suitable for various uses in 
areas large enough to provide sufficient latitude for periodic 
adjustments in use to conform to changing needs and conditions.



Sec. 219.27  Special designations.

    The Forest Service may recommend special designations to higher 
authorities or, to the extent permitted by law, adopt special 
designations through plan amendment or revision. Special designations 
are areas within the National Forest System that are identified for 
their unique or special characteristics and include the following:
    (a) Congressionally designated areas. Congressionally designated 
areas may include, but are not limited to, wilderness, wild and scenic 
rivers, national trails, scenic areas, recreation areas, and monuments. 
These nationally significant areas must be managed as required by 
Congress and may have specific requirements for their management.
    (b) Wilderness area reviews. Unless federal statute directs 
otherwise, all undeveloped areas that are of sufficient size as to make 
practicable their preservation and use in an unimpaired condition must 
be evaluated for recommended wilderness designation during the plan 
revision process. These areas may be evaluated at other times as 
determined by the responsible official.
    (c) Administratively designated areas. Administratively designated 
areas may include, but are not limited to, critical watersheds, research 
natural areas, national monuments, geological areas, inventoried 
roadless areas, unroaded areas, motorized and non-motorized recreation 
areas, botanical areas, and scenic byways.



Sec. 219.28  Determination of land suitable for timber harvest.

    (a) Lands where timber may not be harvested. The plan must identify 
lands

[[Page 56]]

within the plan area where timber may not be harvested. These lands 
include:
    (1) Lands where timber harvest would violate statute, Executive 
Order, or regulation and those lands that have been withdrawn from 
timber harvest by the Secretary of Agriculture or the Chief of the 
Forest Service;
    (2) Lands where technology is not available for conducting timber 
harvesting without causing irreversible damage to soil, slope, or other 
watershed conditions or produce substantial and permanent impairment of 
the productivity of the land; and
    (3) Lands where there are no assurances that such lands can be 
adequately restocked within 5 years after harvest;
    (b) Lands where timber may be harvested for timber production. The 
responsible official may establish timber production as a multiple-use 
plan objective for lands not identified in paragraph (a) of this section 
if the costs of timber production are justified by the ecological, 
social, or economic benefits considering physical, economic, and other 
pertinent factors to the extent feasible. Lands where timber production 
is not established as a plan objective are deemed not suited for timber 
production. These lands must be reviewed by the responsible official at 
least once every 10 years, or as prescribed by law, to determine their 
suitability for timber production considering physical, economic, and 
other pertinent factors to the extent feasible. Based on this review, 
timber production may be established as a plan objective for these lands 
through amendment or revision of the plan.
    (c) Lands where timber may be harvested for other multiple-use 
values. Except for lands identified in paragraph (a) of this section, 
timber may be harvested from land where timber production is not 
established as a plan objective if, based on a site-specific analysis, 
the responsible official determines and documents that such timber 
harvest would contribute to achievement of desired conditions and 
ecological sustainability, and is necessary to protect multiple-use 
values other than timber production.



Sec. 219.29  Limitation on timber harvest.

    (a) Estimate of the limitation of timber harvest. The responsible 
official must estimate the amount of timber that can be sold annually in 
perpetuity on a sustained-yield basis from National Forest System lands 
other than those identified in Sec. 219.28(a). This estimate must be 
based on the yield of timber that can be removed consistent with 
achievement of objectives or desired conditions in the applicable plan. 
In those cases where a national forest has less than 200,000 acres of 
forested land identified in lands other than those in Sec. 219.28(a), 
two or more national forests may be combined for the purpose of 
estimating amount of timber that can be sold annually on a sustained-
yield basis. Estimations for lands where timber production is 
established as a plan objective Sec. 219.28(b) and estimations for lands 
identified in Sec. 219.28(c) cannot be combined.
    (b) Limitation of timber harvest. The responsible official must 
limit the sale of timber from the lands where timber production is an 
objective and from other lands to a quantity equal to or less than that 
estimated in paragraph (a) of this section.
    (c) Exceptions to limitations of timber harvest. For purposes of 
limiting the sale of timber, the responsible official may sell timber 
from areas that are substantially affected by fire, wind, or other 
events, or for which there is an imminent threat from insects or 
disease, and may either substitute such timber for timber that would 
otherwise be sold or, if not feasible, sell such timber over and above 
the plan limit established in paragraph (b) of this section. If 
departure from the quantity of timber removal established in paragraph 
(b) of this section is necessary to meet overall multiple-use 
objectives, the requirements in 16 U.S.C. 1611 must be followed.

                         Planning Documentation



Sec. 219.30  Plan documentation.

    A plan is a repository of documents that integrates and displays the 
desired conditions, objectives, standards, and other plan decisions that 
apply to a unit of the National Forest System.

[[Page 57]]

The plan also contains maps, monitoring and evaluation results, the 
annual monitoring and evaluation report, and other information relevant 
to how the plan area is to be managed. Planning documents should be 
clear, understandable, and readily available for public review. Plan 
documents should be updated through amendments, revision, and routine 
maintenance (Sec. 219.31). Plan documents include, at a minimum, the 
following:
    (a) A summary of the plan. The summary is a concise description of 
the plan that includes a summary of the plan decisions and a description 
of the plan area and appropriate planning units. The summary should 
include a brief description of the ecological, social, and economic 
environments within the plan area and the overall strategy for 
maintenance or restoration of sustainability, including desired 
conditions and objectives for their achievement. The summary also 
includes appropriate maps, a description of the transportation system, 
utility corridors, land ownership patterns and proposed land ownership 
adjustments, charts, figures, photographs, and other information to 
enhance understanding.
    (b) Display of public uses. The plan documents must identify the 
suitability of the plan area for various uses (Sec. 219.26) such as 
recreation uses, livestock grazing, timber harvest, and mineral 
developments. The plan documents must identify land where timber may not 
be harvested and where timber production is an objective (Sec. 219.28). 
The plan documents also must describe the limitations on the removal of 
timber (Sec. 219.29) and the standards for timber harvest and 
regeneration methods (Sec. 219.7(c)).
    (c) Plan decisions. The plan documents must display or describe the 
plan decisions (Sec. 219.7).
    (d) Display of actions and outcomes. The plan documents must also 
contain:
    (1) An annually updated list or other display of proposed, 
authorized, and completed actions to achieve desired conditions and 
objectives within the plan area;
    (2) A 2-year schedule, updated annually, of anticipated outcomes 
which may include anticipated uses, values, products, or services based 
on an estimate of Forest Service budget and capacity to perform the 
identified program of work. The estimate of Forest Service budget and 
capacity should be based on recent funding levels;
    (3) A 2-year summary, updated annually, of the actual outcomes which 
may include specific uses, values, products, or services provided as a 
result of completed site-specific actions;
    (4) A projected range of outcomes which may include anticipated 
uses, values, products, and services for the next 15 years, assuming 
current or likely budgets while considering other spending levels as 
appropriate. These projections are estimates and as such often contain a 
high degree of uncertainty; they are intended to describe expected 
progress in achieving desired conditions and objectives within the plan 
area. The projections are to be updated during revision of each plan;
    (5) A description of the monitoring strategy to occur in the plan 
area and the annual monitoring and evaluation report; and
    (6) A summary of the projected program of work, updated annually, 
including costs for inventories, assessments, proposed and authorized 
actions, and monitoring. The projected program of work must be based on 
reasonably anticipated funding levels. Reasonably anticipated funding 
levels should be based on recent funding levels. The plan documents must 
also include a description of the total current-year budget, funded 
actions, projections for future budgets over the next 2 years; and a 
display of the budget trends over at least the past 5 years.
    (e) Other components. A plan must contain or reference a list of 
materials, Forest Service policies, and decisions used in forming plan 
decisions. The information should include, but is not limited to, lists 
of previous decision and environmental documents, assessments, 
conservation agreements and strategies, biological opinions, 
inventories, administrative studies, monitoring results, and research 
relevant to adoption of plan decisions.

[[Page 58]]



Sec. 219.31  Maintenance of the plan and planning records.

    (a) Each National Forest or Grassland Supervisor must maintain a 
complete set of the planning documents required under Sec. 219.30 that 
constitute the plan for the unit. The set of documents must be readily 
available to the public using appropriate and relevant technology.
    (b) The following administrative corrections and additions may be 
made at any time, are not plan amendments or revisions, and do not 
require public notice or the preparation of an environmental document 
under Forest Service NEPA procedures:
    (1) Corrections and updates of data and maps;
    (2) Updates to activity lists and schedules as required by 
Sec. 219.30(d)(1)-(6);
    (3) Corrections of typographical errors or other non-substantive 
changes; and
    (4) Changes in monitoring methods other than those required in a 
monitoring strategy (Sec. 219.11(c)).

                         Objections and Appeals



Sec. 219.32  Objections to amendments or revisions.

    (a) Any person may object to a proposed amendment or revision 
prepared under the provisions of this subpart, except for an amendment 
or revision proposed by the Chief. The objection must be filed within 30 
calendar days from the date that the Environmental Protection Agency 
publishes the notice of availability of a final environmental impact 
statement regarding a proposed amendment or revision in the Federal 
Register, or within 30 calendar days of the publication of a public 
notice of a proposed amendment not requiring preparation of an 
environmental impact statement. Within ten days after the close of the 
objection period, the Responsible Official shall publish notice of all 
objections in the local newspaper of record. An objection must be filed 
with the reviewing officer identified in the notice and contain:
    (1) The name, mailing address, and telephone number of the person 
filing the objection;
    (2) A specific statement of the basis for each objection; and
    (3) A description of the objector's participation in the planning 
process for the proposed amendment or revision, including a copy of any 
relevant documents submitted during the planning process.
    (b) Objectors may request meetings with the reviewing officer and 
the responsible official to discuss the objection, to narrow the issues, 
agree on facts, and explore opportunities for resolution. The reviewing 
officer must allow other interested persons to participate in such 
meetings. An interested person must file a request to participate in an 
objection within ten days after publication of the notice of objection 
as described in paragraph (a) of this section.
    (c) The reviewing officer must respond, in writing, to an objection 
within a reasonable period of time and may respond to all objections in 
one response. The reviewing officer's response regarding an objection is 
the final decision of the Department of Agriculture.
    (d) The responsible official may not approve a proposed amendment or 
revision until the reviewing officer has responded to all objections. A 
decision by the responsible official approving an amendment or revision 
must be consistent with the reviewing officer's response to objections 
to the proposed amendment or revision.
    (e) Where the Forest Service is a participant in a multi-agency 
decision subject to objection under this subpart, the responsible 
official and reviewing officer may waive the objection procedures of 
this subpart to adopt the administrative review procedure of another 
participating federal agency, if the responsible official and the 
responsible official of the other agencies agree to provide a joint 
response to those who have filed for administrative review of the multi-
agency decision.
    (f) The information collection requirements of this section have 
been approved by the Office of Management and Budget and assigned 
control number 0596-0158.

[[Page 59]]



Sec. 219.33  Appeals of site-specific decisions.

    If a site-specific decision is proposed in conjunction with a plan 
amendment or revision, a person may object to the proposed plan 
amendment or revision as described in (Sec. 219.32). If a decision is 
made to authorize a site-specific action, a person may request 
administrative review of that decision as described in 36 CFR part 215.

                      Applicability and Transition



Sec. 219.34  Applicability.

    The provisions of this subpart are applicable to all units of the 
National Forest System as defined by 16 U.S.C. 1609.



Sec. 219.35  Transition.

    (a) The transition period begins on November 9, 2000 and ends upon 
the completion of the revision process (Sec. 219.9) for each unit of the 
National Forest System. During the transition period, the responsible 
official must consider the best available science in implementing and, 
if appropriate, amending the current plan.
    (b) Until the Department promulgates the revised final planning 
regulations announced in the December 3, 2001, Semiannual Unified Agenda 
of Federal Regulatory and Deregulatory Actions, a responsible official 
may elect to continue or to initiate new plan amendments or revisions 
under the 1982 planning regulations in effect prior to November 9, 2000 
(See 36 CFR parts 200 to 299, Revised as of July 1, 2001), or the 
responsible official may conduct the amendment or revision process in 
conformance with the provisions of this subpart. For the purposes of 
this paragraph, the reference to initiation of a plan amendment or 
revision means that the agency has issued a Notice of Intent or other 
public notification announcing the commencement of a plan amendment or 
revision as provided for in the Council on Environmental Quality 
regulations at 40 CFR 1501.7 or in Forest Service Handbook 1909.15, 
Environmental Policy and Procedures Handbook, section 11.
    (c) If a review of lands not suited for timber production is 
required before the completion of the revision process, the review must 
take place as described by the provisions of Sec. 219.28, except as 
provided in paragraph (b) of this section.
    (d) Site-specific decisions made by the responsible official 3 years 
from November 9, 2000 and afterward must be in conformance with the 
provisions of this subpart.
    (e) Within 1 year of November 9, 2000, the Regional Forester must 
withdraw the regional guide. When a regional guide is withdrawn, the 
Regional Forester must identify the decisions in the regional guide that 
are to be transferred to a regional supplement of the Forest Service 
directive system (36 CFR 200.4) or to one or more plans and give notice 
in the Federal Register of these actions. The transfer of direction from 
a regional guide to a regional supplement of the Forest Service 
directive system or to one or more plans does not constitute an 
amendment, revision, or site-specific action subject to Forest Service 
NEPA procedures.
    (f) Within 3 years after completion of the revision process for a 
unit, the responsible official must complete the first monitoring and 
evaluation report as required in Sec. 219.11(f).
    (g) Within 1 year of November 9, 2000, the Chief of the Forest 
Service must establish a schedule for completion of the revision process 
for each unit of the National Forest System.

                        Appendix A to Sec. 219.35

            Interpretive Rule Related to Paragraph 219.35(b)

    The Department is making explicit its preexisting understanding of 
paragraph (b) of this section with regard to the appeal or objection 
procedures that may be applied to amendments or revisions of land and 
resource management plans during the transition from the appeal 
procedures of 36 CFR part 217 in effect prior to November 9, 2000 (See 
CFR 36 parts 200 to 299, Revised as of July 1, 2000), to the objection 
procedures of Sec. 219.32 as follows:
    1. The option to proceed under the 1982 regulations or under the 
provisions of this subpart specifically includes the option to select 
either the administrative appeal and review procedures of 36 CFR part 
217 in effect prior to November 9, 2000, or the objection procedures of 
36 CFR 219.32.
    2. The Department interprets the term ``initiated,'' as used in 
paragraph (b) of this section, to indicate that the agency has

[[Page 60]]

issued a Notice of Intent or other public notification announcing the 
commencement of a plan revision or amendment as provided for in the 
Council on Environmental Quality regulations at 40 CFR 1501.7 or in 
Forest Service Handbook 1909.15, Environmental Policy and Procedures 
Handbook, section 11.

[65 FR 67568, Nov. 9, 2000, as amended at 66 FR 1865, Jan. 10, 2001; 66 
FR 27554, May 17, 2001; 67 FR 35434, May 20, 2002]

                               Definitions



Sec. 219.36  Definitions.

    Definitions of the special terms used in this subpart are set out in 
alphabetical order in this section as follows:
    Adaptive management: An approach to natural resource management 
wherein the effects of policies, plans, and actions are monitored for 
the purpose of learning and adjusting future management actions. 
Successive iteration of the adaptive process is essential in 
contributing to sustainability.
    Assessment or analysis area: The geographic area included within the 
scope of a broad-scale assessment or local analysis.
    Candidate species: Species identified by the United States Fish and 
Wildlife Service (USFWS) or the National Marine Fisheries Service 
(NMFS), which are considered to be candidates for listing under the 
Endangered Species Act as published in the Federal Register.
    Conservation agreement: A formal agreement between the Forest 
Service and the USFWS and/or NMFS identifying management actions 
necessary to prevent the need to list species under the Endangered 
Species Act.
    Current climatic period: The period of time since establishment of 
the modern major vegetation types, which typically encompass the late 
Holocene Epoch including the present, including likely climatic 
conditions within the planning period. The climatic period is typically 
centuries to millennia in length, a period of time that is long enough 
to encompass the variability that species and ecosystems have 
experienced.
    Desired condition: A statement describing a common vision for a 
specific area of land or type of land within the plan area. Statements 
of desired conditions should include the estimated time required for 
their achievement.
    Desired non-native species: Those species of plants or animals which 
are not indigenous to an area but valued for their contribution to 
species diversity or their high social, cultural or economic value.
    Disturbance regime: Actions, functions, or events that influence or 
maintain the structure, composition, or function of terrestrial or 
aquatic ecosystems. Natural disturbances include, among others, drought, 
floods, wind, fires, insects, and pathogens. Human-caused disturbances 
include actions such as recreational use, livestock grazing, mining, 
road construction, timber harvest, and the introduction of exotic 
species.
    Diversity of plant and animal communities: The distribution and 
relative abundance of plant and animal communities and their component 
species occurring within an area.
    Ecological conditions: Components of the biological and physical 
environment that can affect the diversity of plant and animal 
communities, including species viability, and the productive capacity of 
ecological systems. These could include the abundance and distribution 
of aquatic and terrestrial habitats, roads and other structural 
developments, human uses, and invasive and exotic species.
    Ecological sustainability: The maintenance or restoration of the 
composition, structure, and processes of ecosystems including the 
diversity of plant and animal communities and the productive capacity of 
ecological systems.
    Ecosystem composition: The plant and animal species and communities 
in the plan area.
    Ecosystem processes: Ecological functions such as photosynthesis, 
energy flow, nutrient cycling, water movement, disturbance, and 
succession.
    Ecosystem structure: The biological and physical attributes that 
characterize ecological systems.
    Focal species: Focal species are surrogate measures used in the 
evaluation of ecological sustainability, including species and ecosystem 
diversity. The key characteristic of a focal species is

[[Page 61]]

that its status and trend provide insights to the integrity of the 
larger ecological system to which it belongs. Individual species, or 
groups of species that use habitat in similar ways or which perform 
similar ecological functions, may be identified as focal species. Focal 
species serve an umbrella function in terms of encompassing habitats 
needed for many other species, play a key role in maintaining community 
structure or processes, are sensitive to the changes likely to occur in 
the area, or otherwise serve as an indicator of ecological 
sustainability. Certain focal species may be used as surrogates to 
represent ecological conditions that provide for viability of some other 
species, rather than directly representing the population dynamics of 
those other species.
    Forest Service NEPA procedures: The Forest Service policy and 
procedures for implementing the National Environmental Policy Act (NEPA) 
and the Council on Environmental Quality regulations (40 CFR chapter V) 
as described in Chapter 1950 of the Forest Service Manual and Forest 
Service Handbook 1909.15, Environmental Policy and Procedures Handbook 
(See 36 CFR 200.4 for availability).
    Inherently rare species: A species is inherently rare if it occurs 
in only a limited number of locations, has low population numbers, or 
has both limited occurrences and low population numbers, and those 
conditions are natural characteristics of the life history and ecology 
of the species and not primarily the result of human disturbance.
    Inventoried roadless areas: Areas are identified in a set of 
inventoried roadless area maps, contained in Forest Service Roadless 
Area Conservation, Draft Environmental Impact Statement, Volume 2, dated 
May 2000, which are held at the National headquarters office of the 
Forest Service, or any subsequent update or revision of those maps.
    Major vegetation types: Plant communities, which are typically named 
after dominant plant species that are characteristic of the macroclimate 
and geology of the region or sub-region.
    Native species: Species of the plant and animal kingdom indigenous 
to the plan area or assessment area.
    Plan area: The geographic area of National Forest System lands 
covered by an individual land and resource management plan. The area may 
include one or more administrative units.
    Productive capacity of ecological systems: The ability of an 
ecosystem to maintain primary productivity including its ability to 
sustain desirable conditions such as clean water, fertile soil, riparian 
habitat, and the diversity of plant and animal species; to sustain 
desirable human uses; and to renew itself following disturbance.
    Range of variability: The expected range of variation in ecosystem 
composition, and structure that would be expected under natural 
disturbance regimes in the current climatic period. These regimes 
include the type, frequency, severity, and magnitude of disturbance in 
the absence of fire suppression and extensive commodity extraction.
    Reference landscapes: Places identified in the plan area where the 
conditions and trends of ecosystem composition, structure, and processes 
are deemed useful for setting objectives for desired conditions and for 
judging the effectiveness of plan decisions.
    Responsible official: The officer with the authority and 
responsibility to oversee the planning process and make decisions on 
proposed actions.
    Reviewing officer: The supervisor of the responsible official.
    Social and economic sustainability: Meeting the economic, social, 
aesthetic, and cultural needs and desires of current generations without 
reducing the capacity of the environment to provide for the needs and 
desires of future generations, considering both local communities and 
the nation as a whole. It also involves the capacity of citizens to 
communicate effectively with each other and to make sound choices about 
their environment.
    Species: Any member of the animal or plant kingdom that is described 
as a species in a peer-reviewed scientific publication and is identified 
as a species by the responsible official pursuant to a plan decision, 
and must include all species listed under the Endangered Species Act as 
threatened, endangered, candidate, or proposed for listing by the U.S. 
Fish and Wildlife

[[Page 62]]

Service or National Marine Fisheries Service.
    Species-at-risk: Federally listed endangered, threatened, candidate, 
and proposed species and other species for which loss of viability, 
including reduction in distribution or abundance, is a concern within 
the plan area. Other species-at-risk may include sensitive species and 
state listed species. A species-at-risk also may be selected as a focal 
species.
    Species viability: A species consisting of self-sustaining and 
interacting populations that are well distributed through the species' 
range. Self-sustaining populations are those that are sufficiently 
abundant and have sufficient diversity to display the array of life 
history strategies and forms to provide for their long-term persistence 
and adaptability over time.
    Successional stages: The different structural and compositional 
phases of vegetation development of forests and grasslands that occur 
over time following disturbances that kill, remove, or reduce vegetation 
and include the major developmental or seral stages that occur within a 
particular environment.
    Timber production: The sustained long-term and periodic harvest of 
wood fiber from National Forest System lands undertaken in support of 
social and economic objectives identified in one or more land and 
resource management plans. For purposes of this regulation, the term 
timber production includes fuel wood.
    Undeveloped areas: Areas, including but not limited to inventoried 
roadless areas and unroaded areas, within national forests or grasslands 
that are of sufficient size and generally untrammeled by human 
activities such that they are appropriate for consideration for 
wilderness designation in the planning process.
    Unroaded areas: Any area, without the presence of a classified road, 
of a size and configuration sufficient to protect the inherent 
characteristics associated with its roadless condition. Unroaded areas 
do not overlap with inventoried roadless areas.

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 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]

[[Page 63]]



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 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

[[Page 64]]

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: 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.

[[Page 65]]

    (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 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.

[[Page 66]]

    (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 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

[[Page 67]]

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 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

[[Page 68]]

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.



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

[[Page 69]]

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 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

[[Page 70]]

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.
    (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

[[Page 71]]

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.
    (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.

[[Page 72]]

    (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
    (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

[[Page 73]]

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.
    (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

[[Page 74]]

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 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.

[[Page 75]]



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 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]

[[Page 76]]



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.



                         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

[[Page 77]]

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 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

[[Page 78]]

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 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

[[Page 79]]

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 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

[[Page 80]]

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 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

[[Page 81]]

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

                          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.

[[Page 82]]

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.
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

[[Page 83]]

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 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]

[[Page 84]]



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 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)

[[Page 85]]



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

[[Page 86]]



                    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, 
unless such removal is specifically authorized in the contract.
    (b) National Forest timber sold on board foot scale shall be scaled 
by the

[[Page 87]]

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 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

[[Page 88]]

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.
    (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.

[[Page 89]]

    (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 
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

[[Page 90]]

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 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

[[Page 91]]

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.
    (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

[[Page 92]]

for timber charges exceeding the current contract value.
    (e) Dates for determining future periodic payments shall be adjusted 
as follows:
    (1) When contract term adjustments are granted under Sec. 223.46,
    (2) When market-related contract term additions are granted under 
Sec. 223.52,
    (3) When urgent removal extensions are granted under Sec. 223.53, or
    (4) When extensions in the substantial overriding public interest 
are granted under Sec. 223.115(b). Periodic payment determination dates 
shall not be adjusted when a contract term extension is granted under 
the general authority of Sec. 223.115(a).
    (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; 
67 FR 70169, Nov. 21, 2002]



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
Sec. 223.53  Urgent removal contract extensions.

    (a) Finding. There is substantial, overriding public interest in 
extending National Forest System timber sale contracts for undamaged 
(green) timber not requiring expeditious removal in order to facilitate 
the rapid harvest of catastrophically damaged timber requiring 
expeditious removal on private or other non-National Forest System 
lands. Such an extension may be granted when a specific catastrophic 
event beyond the control of the landowner occurs on non-National Forest 
System lands that poses a threat to general forest health, public 
safety, and property. Catastrophic events include, but are not limited 
to, severe wildfire, wind, floods, insects and disease infestation, and 
drought.
    (b) Regional Forester determination. If the Regional Forester 
determines that adequate cause for urgent removal extensions exists, 
Contracting Officers may extend a National Forest System timber sale 
contract, up to a maximum of 1 year, for the estimated amount of time 
required to harvest and process the damaged timber on non-National 
Forest System lands. The Contracting Officer may grant an urgent removal 
extension only when the Regional Forester verifies in writing that:
    (1) A specific catastrophe occurred on the particular geographic 
area for which urgent removal extensions may be granted;
    (2) There is a high risk that substantial timber quantities or 
values of the damaged non-National Forest System timber in the affected 
geographic area would deteriorate unless expeditiously removed;
    (3) The manufacturing facilities or logging equipment capacity 
available to purchasers are insufficient to provide for both the rapid 
harvest of damaged non-National Forest System timber in need of 
expeditious removal and the continued harvest of undamaged

[[Page 94]]

(green) timber under contract with the Forest Service; and
    (4) Failure to harvest the damaged non-National Forest System timber 
promptly could result in the following:
    (i) Significant private or other public resource loss,
    (ii) Pose a threat to public safety, or
    (iii) Create a threat of an insect or disease epidemic to National 
Forest System or other lands or resources.
    (c) Purchaser request. In order to obtain an urgent removal 
extension on a National Forest System timber sale contract, a purchaser 
must make a written request to the Contracting Officer, which includes 
the following:
    (1) An explanation of why the harvest of the damaged non-National 
Forest System timber in need of expeditious removal will prevent or 
otherwise impede the removal of undamaged (green) National Forest System 
timber within the term of the existing National Forest System 
contract(s);
    (2) Documentation that the manufacturing facilities or logging 
equipment capacity available to a purchaser would be insufficient to 
provide for both the rapid salvage of damaged non-National Forest System 
timber in need of expeditious removal and continued harvest of undamaged 
(green) National Forest System timber under contract with the Forest 
Service; and
    (3) A notarized statement that the purchaser will not hold the 
Forest Service liable for any damages or lost time incurred on the non-
National Forest System and National Forest System contracts in the event 
that a request for an extension is delayed or denied, or for any damages 
under National Forest System contracts due to delay, suspension, 
modification, or cancellation (in whole or in part) subsequent to or 
during the extension.
    (d) Contracting Officer determination. In order to grant an urgent 
removal extension, the timber sale Contracting Officer must verify the 
following:
    (1) That it is likely that the undamaged (green) timber from 
National Forest System land would be delivered to the same manufacturing 
facilities as are needed to process the damaged non-National Forest 
System timber or the National Forest System timber sale contract would 
require the use of the same logging equipment as is needed to remove the 
damaged non-National Forest System timber from the area affected by the 
catastrophe;
    (2) That extension of the National Forest System contract will not 
be injurious to the United States and will protect, to the extent 
possible, the health of the National Forest System lands;
    (3) That the urgent removal extension does not adversely affect 
other resource management objectives to be implemented by the National 
Forest System timber sale being extended;
    (4) That the National Forest System timber sale contract to be 
extended is not a sale containing damaged, dead, or dying timber subject 
to rapid deterioration;
    (5) That the National Forest System timber sale contract at issue 
has not been granted a previous urgent removal extension;
    (6) That the revised National Forest System timber sale contract 
term will not exceed 10 years from the date the National Forest System 
contract was awarded;
    (7) That the National Forest System contract is not in breach, and 
all work items, payments, and deposits are current; and
    (8) That the purchaser has signed and had notarized the following 
statement:

    By submission of this request, I release, waive, and abandon any and 
all claims against the United States for delay in the processing or 
denial of this request for an urgent removal extension of my National 
Forest System timber sale(s), contract number(s) ------, including, but 
not limited to, all claims for costs, expenses, attorney fees, 
compensatory damages, and exemplary damages arising out of or related to 
any non-National Forest System timber sale contract(s) and the National 
Forest System timber sale(s) contract(s) identified above. Should my 
request be granted, I release, waive, and abandon any and all claims 
against the United States due to delay, suspension, modification, or 
cancellation (in whole or in part) of the extended National Forest 
System timber sale contract(s), including, but not limited to, all 
claims for costs, expenses, attorney fees, compensatory damages, and 
exemplary damages. This liability limitation supersedes any other 
compensation or liability provisions set forth in the timber sale 
contract, Federal regulation, or the common law.


[[Page 95]]


    (e) Execution of contract extension. An urgent removal extension of 
a National Forest System timber sale contract is executed through a 
mutual agreement contract modification pursuant to Sec. 223.112, which 
must include specific contract provisions. An agreement to modify a 
contract must identify the specific provision(s) of the contract being 
modified and must include the following terms and conditions:
    (1) Purchasers must make cash payment to the Forest Service at the 
time of modification granting an urgent removal extension in 
consideration for the additional contract term. Such payment (P) shall 
be equal to interest on the difference between current contract value 
(CCV) at the time of the modification and the credit balance of any 
deposits (D). The interest rate (i) shall be the prevailing U.S. 
Department of the Treasury current value of funds rate in effect at time 
of modification. The time period (t) to be used in the calculation of 
interest shall be the number of months of contract extension granted. 
Payments so made shall not be refunded as excess cash deposits. This 
calculation is expressed by the following formula:

    P=i(CCV-D)(t/12)

    (2) Purchasers must make cash payment to cover the costs of 
remarking timber on the sale area or reestablishing cutting unit 
boundaries if the Contracting Officer determines such work is necessary.
    (3) For sales subject to stumpage rate adjustment, future adjustment 
of tentative rates will not result in rates less than the current 
contract rates at the time of the extension.
    (f) Information collection. The information required of a purchaser 
to request an extension of an National Forest System timber sale 
contract, as outlined in paragraph (c) of this section, to facilitate 
expeditious removal of timber from non-National Forest System lands 
constitutes an information collection requirement as defined in 5 CFR 
Part 1320 and has been assigned Office of Management and Budget control 
number 0596-0167.

[67 FR 70169, Nov. 21, 2002]

                          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 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

[[Page 96]]

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]



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

[[Page 97]]

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.
    (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.

[[Page 98]]

    (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 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

[[Page 99]]

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,
    (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

[[Page 100]]

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 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

[[Page 101]]

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 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

[[Page 102]]

    (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 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

[[Page 103]]

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 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

[[Page 104]]

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 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

[[Page 105]]

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.
    (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.

[[Page 106]]

    (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 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

[[Page 107]]

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, 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:

[[Page 108]]

    (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 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

[[Page 109]]

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]



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)

[[Page 110]]

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.
    (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.

[[Page 111]]

    (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.
    (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.

[[Page 112]]

    (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 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

[[Page 113]]

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 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.

[[Page 114]]

    (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 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

[[Page 115]]

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.



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.

[[Page 116]]



         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 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.

[[Page 117]]

    (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 118]]

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 119]]

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

[[Page 120]]

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 121]]

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 122]]

(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 123]]

    (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 124]]

    (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 125]]

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 126]]

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 127]]

    (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 128]]

(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 129]]


    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 130]]


    (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 131]]

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 132]]


    (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 133]]

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 134]]

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 135]]

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 136]]

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 137]]

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 138]]

    (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 139]]

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 140]]

    (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 141]]



                      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 142]]

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 143]]

    (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 144]]

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 145]]

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 146]]

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 147]]

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 148]]

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 149]]

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 150]]

    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 151]]

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 152]]

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 153]]

    (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 154]]

    (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 155]]

    (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 156]]

    (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 157]]

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 158]]

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 159]]

    (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 160]]

    (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 161]]

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 162]]

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 163]]

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 164]]

    (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 165]]

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 166]]

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 167]]

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 168]]

    (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 169]]

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 170]]

    (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 171]]

    (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 172]]

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 173]]

    (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 174]]

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 175]]

________________________________________________________________________
  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.

       Subpart B--Urban and Community Forestry Assistance Program

230.20  Scope and authority.
230.21  Implementation of the program.

               Subpart C--Forest Land Enhancement Program

230.30  Purpose and scope.
230.31  Definitions.
230.32  National program administration.
230.33  Responsible official program administration.
230.34  State program administration.
230.35  FLEP elements.
230.36  State priority plan--purpose and scope.
230.37  State priority plan--educational assistance component.
230.38  State priority plan--technical assistance.
230.39  State priority plan--financial assistance component.
230.40  Eligible practices for cost-share assistance.
230.41  Eligibility requirements for cost-share assistance.
230.42  Cost-share assistance--application and payment procedures.
230.43  Cost-share assistance--prohibited practices.
230.44  Cost-share assistance--reporting requirement.
230.45  Recapture of cost-share assistance.
230.46  Information collection requirements.

    Authority: 16 U.S.C. 2101 et seq.

    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.

[[Page 176]]

    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 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

[[Page 177]]

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;
    (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

[[Page 178]]

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.
    (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.

[[Page 179]]

    (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, 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

[[Page 180]]

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 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

[[Page 181]]

    (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 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.

[[Page 182]]



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.



       Subpart B--Urban and Community Forestry Assistance Program

    Source: 65 FR 57549, Sept. 25, 2000, unless otherwise noted.



Sec. 230.20  Scope and authority.

    The Urban and Community Forestry Assistance Program is authorized by 
Section 9 of the Cooperative Forestry Assistance Act of 1978, as amended 
(16 U.S.C. 2105). The scope of this authority includes the provision of 
technical, financial, and related assistance to State and local 
governments, non-profits, and other members of the public to: maintain, 
expand, and preserve forest and tree cover; expand research and 
education efforts related to trees and forest cover; enhance technical 
skills and understanding of tree maintenance and practices involving 
cultivation of trees, shrubs and complementary ground covers; and 
implementing a tree planting program to complement urban tree 
maintenance and open space programs. The Secretary has delegated the 
authority for implementing the program to the Chief of the Forest 
Service under 7 CFR 2.60(a)(16).



Sec. 230.21  Implementation of the program.

    (a) The Urban and Community Forestry Assistance Program is 
implemented through the Forest Service Grants, Cooperative Agreements, 
and Other Agreements Program (FSM 1580) and the Grants, Cooperative 
Agreements, and Other Agreements Handbook (FSH 1509.11). The Forest 
Service Manual and Handbook are available from the Forest Service 
internet homepage or at National Forest offices.
    (b) The Forest Service, under the authority of the Cooperative 
Forestry Assistance Act of 1978 and through the Urban and Community 
Forestry Assistance Program, coordinates financial, technical, and 
related assistance with the Natural Resources Conservation Service for 
the Urban Resources Partnership initiative. The Natural Resources 
Conservation Service provides similar assistance through the Urban 
Resources Partnership initiative under the authority of the Soil 
Conservation and Domestic Allotment Act (16 U.S.C. 590a-590f). The Urban 
Resources Partnership is an initiative in which Federal agencies, in 
cooperation with State and local agencies, community groups, and non-
governmental organizations endeavor to be more effective, responsive, 
and efficient in working together to protect, improve, and rehabilitate 
the environment in urban areas of the Nation. The Forest Service and 
Natural Resources Conservation Service implement the Urban Resources 
Partnership initiative under the ``Urban Resources Partnership National 
Guidance for U.S. Department of Agriculture Personnel'' and applicable 
agency and departmental procedures for Federal grants and cooperative 
agreements. Copies of the Guidance may be obtained from the Cooperative 
Forestry Staff, Forest Service, USDA, P.O. Box 96090, Washington, DC 
20090-6090.



               Subpart C--Forest Land Enhancement Program

    Source: 68 FR 34314, June 9, 2003, unless otherwise noted.

[[Page 183]]



Sec. 230.30  Purpose and scope.

    (a) The regulations in this subpart govern the operation of the 
Forest Land Enhancement Program (hereafter, FLEP) as provided in Section 
4 of the Cooperative Forestry Assistance Act (16 U.S.C. 2101 et seq.), 
as amended by title VIII of the Farm Security and Rural Investment Act 
of 2002 (Pub. L. 107-171). The purpose of FLEP is to provide a 
coordinated and cooperative Federal, State, and local sustainable 
forestry program for the establishment, management, maintenance, 
enhancement, and restoration of forests on nonindustrial private forest 
land.
    (b) The educational assistance, resource management expertise, and 
financial assistance provided under FLEP shall complement any existing 
Federal or State programs or programs offered through institutions of 
higher learning providing assistance to nonindustrial private forest 
landowners. FLEP promotes improved coordination and cooperation among 
Federal, State, and local programs regarding the establishment, 
maintenance, enhancement, and restoration of nonindustrial private 
forestlands.
    (c) Participation in FLEP is voluntary on the part of both the State 
and the nonindustrial forest landowner. To participate, each State must 
have nonindustrial private forest lands, a State Forester or equivalent, 
and a State Forest Stewardship Coordinating Committee.



Sec. 230.31  Definitions.

    The terms used in this subpart are defined as follows:
    Capital investment or improvement. Durable equipment or assets 
capable of being amortized or depreciated over a period of 3 or more 
years, not including activities or practices carried out as part of the 
Forest Land Enhancement Program (FLEP) cost-share element.
    Catastrophic natural event. Destructive natural event, which 
includes, but is not limited to, wildfires, insect infestations, disease 
outbreaks, droughts, floods, windstorms, freezing, ice storms, hail, 
sleet, mudslides, landslides, earthquakes, avalanches, tornadoes, 
volcanoes, hurricanes, or tsunamis.
    Chief. The Chief of the Forest Service, United States Department of 
Agriculture.
    Committee. The State Forest Stewardship Coordinating Committee.
    Concurrence. Review, verification, and confirmation by the 
Responsible Official that the State priority plan contains all of the 
key elements required by law and the rules of this subpart.
    Cost-share. A program payment, on a reimbursable basis, at a maximum 
of 75 percent of the cost incurred by a landowner for implementation of 
a State-approved activity or practice authorized under FLEP.
    Financial assistance. Funds disbursed as an award by the Federal 
Government to an eligible party from the FLEP annual apportionment, in 
the form of money, including grants, agreements, contracts, and other 
arrangements.
    Fiscal year. The accounting period, used by the United States 
Government, from October 1 through September 30.
    Landowner. An individual, group, association, corporation, Indian 
Tribe, or other legal private entity owning nonindustrial private forest 
land or a person who receives concurrence from the landowner for 
practice implementation and who holds a lease on the land for a minimum 
of 10 years. Corporations whose stocks are publicly traded or owners 
principally engaged in the primary processing of raw wood products are 
excluded.
    Management plan. A written plan prepared by a service representative 
and approved by a State Forester.
    Nonindustrial private forest land. Rural lands with existing tree 
cover, or which are suitable for growing trees, that are owned by any 
landowner as defined in this section.
    Practice. A prescribed, natural resource management activity that is 
consistent with a practice plan and implemented through FLEP to enhance 
the multiple resource values and benefits and that results in improved 
conditions on nonindustrial private forest land. A practice may consist 
of multiple components.
    Practice plan. A plan prepared by a service representative and 
approved by the State Forester that documents the

[[Page 184]]

specific practices that are to occur as a result of a landowner 
application for cost-share. A practice plan may be a stand-alone 
document or it may be a part of a management plan.
    Responsible official. USDA Forest Service Regional Forester, Area 
Director, or Institute Director charged with the administration of FLEP.
    Service representative. Any person who is recognized by a State 
Forester as having the knowledge and skills to develop management plans, 
understanding of the economic and environmental interrelationships of 
forestry and/or agroforestry resources, and the ability to identify 
appropriate activities to manage, protect, or enhance such resources. 
The State Forester designates service representatives as the line 
officers to perform specified FLEP elements.
    State. Includes each of the States in the United States, and the 
Commonwealth of Puerto Rico, the Virgin Islands of the United States, 
Guam, American Samoa, and the Commonwealth of the Northern Mariana 
Islands.
    State Forester. The director or other head of a State forestry 
agency or equivalent State official.
    State priority plan. The document required from a State to 
participate in FLEP. A State Forester jointly prepares this plan with 
the State Forest Stewardship Coordinating Committee to facilitate long-
term sustainability of nonindustrial private forest lands within the 
State.



Sec. 230.32  National program administration.

    (a) The Chief shall develop and implement FLEP in partnership with 
State forestry agencies and in consultation with other Federal, State, 
and local natural resource management agencies, institutions of higher 
learning, and a broad range of private sector interests.
    (b) In collaboration with State Foresters, the Chief of the Forest 
Service and Responsible Officials shall oversee developing and 
implementing FLEP policy and procedure, including the monitoring of 
program results over the life of FLEP to ensure that environmental, 
economic, and social values and public benefits are derived from the 
program.
    (c) The Chief shall annually distribute such funds as may be 
available for FLEP to the Responsible Official(s) for each of the three 
geographic funding areas based on the criteria set out in the Forest 
Service Manual Chapter 3310.
    (d) In developing allocation factors for making FLEP distributions 
under this subpart,
    (1) The Chief shall consult with the State Foresters through their 
Forest Resource Management Committee, a standing committee of the 
National Association of State Foresters, or its successor.
    (2) Allocation factors shall be based on National data sources that 
address the current status of forest lands of each State or Territory 
participating in FLEP. Data must be measurable, inclusive of all States, 
objective, and reliable. The data will address those factors described 
in the Cooperative Forestry Assistance Act (16 U.S.C. 2103(i), 
Distribution of Cost-Share Funds).
    (e) National priorities for FLEP shall reflect the Department and 
Forest Service priorities for nonindustrial private forest land as 
provided in the Forest Service Manual Chapter 3310.
    (f) The Responsible Official(s) in each of the three geographic 
funding areas shall coordinate with their respective State Foresters to 
determine the final allocation to each State based on the following:
    (1) National priorities;
    (2) National allocation factors;
    (3) Regional and State-wide priorities;
    (4) Ability of the State to deliver FLEP; and
    (5) Direction in the Forest Service Manual Chapter 3310.
    (g) FLEP financial assistance may be disbursed to a third party that 
will assist in program delivery. The Forest Service may disburse funds 
directly to a third party, which may include, but is not limited to, 
Federal, State, or local agencies, and landowner, nonprofit, or private 
organizations, with written approval by the State Forester.
    (h) Except as provided at Sec. 230.34(d), no financial assistance 
shall be provided by the Forest Service to a State

[[Page 185]]

Forester or any third party, until the Responsible Official has 
concurred with the State's priority plan.
    (i) The Chief has final authority to resolve all issues that may 
arise in the administration of FLEP.
    (j) The Forest Service shall provide National and regional 
administrative and financial support and oversight through distribution 
of available FLEP funds to State Foresters and through monitoring, 
review, and evaluation of FLEP activities and accomplishments.
    (k) FLEP funds may not be used by States for capital investments or 
capital improvements unless specifically authorized in a funding 
document and must be limited to $5,000. The limitation on capital 
improvements excludes practices and activities cost-shared with 
landowners through FLEP.
    (l) Funds may not be authorized in the financial assistance document 
or used for the purchase of land, any interest in land, or any interest 
in an endowment.
    (m) By September 30, 2006, the Chief must submit a cumulative report 
to the Secretary of Agriculture summarizing all the activities and 
practices funded under FLEP as of that date.



Sec. 230.33  Responsible Official program administration.

    (a) The Responsible Official shall review and provide concurrence 
with State priority plans, including any revisions of such plans.
    (b) The Responsible Official shall provide oversight for all aspects 
of FLEP, including program reviews and shall ensure that the Forest 
Service is represented on each State Forest Stewardship Coordinating 
Committee.
    (c) The Responsible Official shall disburse funds to the State 
Forester or their designated third parties in a timely manner.
    (d) The Responsible Official shall determine the final funds 
distribution to States.
    (e) The funds will be distributed to individual States based on 
criteria in Sec. 230.32 (f).
    (f) Policy in the Forest Service Manual Chapter 3310 will provide 
additional direction for funding distribution.
    (g) The Responsible Official must submit an annual report to the 
Chief summarizing all activities and practices funded through FLEP for 
the previous fiscal year.
    (h) By September 1, 2006, the Responsible Official must submit a 
cumulative report to the Chief summarizing all activities and practices 
funded through FLEP as of June 1, 2006, along with copies of the reports 
submitted from the participating States.



Sec. 230.34  State program administration.

    (a) In States electing to participate in FLEP, the State Forester 
and the State Forest Stewardship Coordinating Committee, established 
pursuant to section 19(b) of the Cooperative Forestry Assistance Act, as 
amended (16 U.S.C. 2101, et seq.), shall jointly develop a State 
priority plan. The plan must be submitted to the appropriate Responsible 
Official for review and concurrence.
    (b) The State Forester shall develop, implement and administer FLEP 
consistent with the State priority plan. The State Forester must ensure 
that all activities are carried out properly and that all cost-shared 
practices meet the appropriate standards and specifications.
    (c) No match of funds is required from the State for participation 
in FLEP.
    (d) In order to facilitate development of FLEP any State may request 
up to $50,000 of the first-year allocation in advance of Forest Service 
concurrence with a State priority plan.
    (e) Each State participating in FLEP shall submit an annual report 
to the respective Responsible Official, reporting all activities and 
practices funded through FLEP for the previous fiscal year. The report 
shall contain data on accomplishments by educational assistance, 
technical assistance, and cost-share assistance based on State 
objectives and measurable outcomes included in State priority plans.
    (f) By July 15, 2006, the State Forester of each State participating 
in FLEP must submit to the respective Responsible Official a summary 
report of all State activities and practices funded through FLEP as of 
June 1, 2006.

[[Page 186]]



Sec. 230.35  FLEP elements.

    (a) States may use FLEP funds to assist landowners in managing their 
nonindustrial private forest lands and related resources through the 
following elements:
    (1) Development and implementation of educational programs;
    (2) Resource management expertise and technical assistance; and
    (3) Financial assistance through cost-share programs.
    (b) All participating States may use a portion of allocated funds 
for FLEP administration costs.
    (c) States do not have to participate in all FLEP elements.



Sec. 230.36  State priority plan--purpose and scope.

    (a) The State priority plan shall be used to guide FLEP 
implementation in each participating State through fiscal year 2007 and 
can be revised as needed.
    (b) The State priority plan must describe the various roles and 
responsibilities of the State Forester, State Forest Stewardship 
Coordinating Committee, and other agencies and organizations in FLEP 
planning, delivery, and accountability to the program objectives.
    (c) The State priority plan must contain the following:
    (1) Data from standard forest inventory and analysis reports on the 
forest resources found within the State;
    (2) A description of concerns, issues, problems and threats related 
to resource management for all nonindustrial private forest and 
agroforestry resources;
    (3) Identification of the desired objectives and environmental, 
economic, and social values and public benefits to be derived from FLEP;
    (4) An explanation of how FLEP funds are to be used to complement 
efforts of sustainable forestry management already in place within the 
State;
    (5) A rationale for, and a proposed distribution of, funds for the 
FLEP elements listed at section 230.35 that the State plans to 
implement; and
    (6) A description of the public participation process used in the 
development of the plan, including outreach efforts to landowners with 
limited resources.
    (d) If an existing State Forest Stewardship plan, as described at 
section 19(b)(3) of the Cooperative Forestry Assistance Act (16 U.S.C. 
2101, et seq.), adequately addresses some or all of the required 
information, it may be incorporated into the State priority plan by 
reference.
    (e) The State priority plan must also outline the State FLEP 
priorities, policies, and procedures that will be implemented to 
encourage landowners to practice sustainable management and to actively 
conserve and enhance their forest resources.
    (f) Each FLEP element described in the State priority plan must 
clearly state objectives and measurable outcomes to be achieved.
    (g) All activities performed using FLEP funds must be consistent 
with the purpose of the program.



Sec. 230.37  State priority plan--educational assistance.

    (a) Educational assistance includes development and delivery of:
    (1) Activities;
    (2) Events;
    (3) Programs;
    (4) Curriculum;
    (5) Written materials;
    (6) Workshops;
    (7) Training sessions;
    (8) Web site construction and maintenance; or
    (9) Similar activities designed to bring landowners to an informed 
decision point and accelerate adoption of sustainable forest practices 
in a State.
    (b) If a State determines that all or some of its funds will be used 
for education, the State priority plan must describe the types of 
activities that will be covered, participating entities, expected 
outcomes, and method(s) that will be used for documenting and evaluating 
accomplishments.



Sec. 230.38  State priority plan--technical assistance.

    (a) Technical assistance includes, but is not limited to:
    (1) Agreements with other agencies, institutions of higher 
education, natural resource consultants, or private organizations to 
augment or complement existing services of a State Forestry agency;

[[Page 187]]

    (2) Grants, agreements, contracts or other arrangements to provide 
services to landowners not offered by a State;
    (3) Support of existing technical assistance delivery by State 
forestry agencies or development of such technical assistance;
    (4) The development or application of new tools or technology for 
servicing landowners; or
    (5) Similar undertakings.
    (b) If a State determines that all or some of its funds will be used 
for technical assistance, the State priority plan shall describe:
    (1) Who will provide the assistance;
    (2) Outreach efforts directed at specific groups or categories of 
landowners;
    (3) Expected long- and short-term outcomes; and
    (4) Method(s) for documenting accomplishments.



Sec. 230.39  State priority plan--financial assistance.

    (a) Cost-share financial assistance includes a wide range of 
activities and practices developed by a State Forester, in cooperation 
with the State Forest Stewardship Coordinating Committee.
    (b) A State does not have to adopt a separate FLEP cost-share 
program if a State cost-share program already exists that meets the 
objectives of FLEP. However, FLEP funds must be accounted for in 
accordance with Federal financial accounting standards. If an existing 
cost-share program is used, a copy of the guidelines for that program 
must be referenced and attached to the State priority plan.
    (c) If a State determines that all or some of its funds will be 
placed into a cost-share program, the State priority plan must identify 
and describe how the cost-share funds will be made available to 
landowners participating in FLEP and expected outcomes and method(s) for 
documenting and evaluating accomplishments.
    (d) The cost-share section of the State priority plan must include 
all of the following information:
    (1) Describe any land ownership or annual acreage eligibility 
limitation under FLEP that is more restrictive than that established by 
the authorizing statute;
    (2) Describe any limitations for cost-share of management plans;
    (3) Define what constitutes a management plan if a State chooses to 
adopt more restrictive requirements than those established in this 
subpart; and
    (4) Identify aggregate payment limitations to any one landowner 
receiving cost-share funds through FLEP.
    (e) The State priority plan must also describe how funds identified 
for cost-share with landowners will be distributed and how cost-share 
rates are determined and established for each practice.
    (f) The State priority plan must describe the application and 
payment process for landowners interested in participating in and 
receiving cost-share through FLEP (Sec. 230.42).
    (g) The State priority plan must also address the following steps 
related to financial assistance:
    (1) Application procedure;
    (2) Approval process;
    (3) Performance period;
    (4) Cancellation of approvals;
    (5) Certification of performance;
    (6) Payment;
    (7) Maintenance and compliance;
    (8) Procedure for recapture of funds for non-compliance; and
    (9) Appeals procedures.



Sec. 230.40  Eligible practices for cost-share assistance.

    (a) The State priority plan must document and describe which of the 
following eleven categories will be made available to landowners for 
cost-share funding:
    (1) Management Plan Development--Development or revision of a 
management plan that must meet the minimum standards of a Forest 
Stewardship Plan (16 U.S.C. 2103a(f)(i)). The plan applies to those 
portions of the landowner's property on which any practice or activity 
funded under FLEP shall be carried out, as well as any property of the 
owner that may be affected by the activity or practice. Management plans 
are not subject to any acreage limits, and therefore cost-sharing such a 
plan under FLEP is exempt from the 1,000-acre (or 5,000-acre) limit

[[Page 188]]

unless restricted as described in the State priority plan.
    (2) Afforestation and Reforestation--Site preparation, planting, 
seeding, or other practices to encourage natural regeneration or to 
ensure forest establishment and carbon sequestration.
    (3) Forest Stand Improvement--Practices to enhance growth and 
quality of wood fiber, special forest products, and carbon 
sequestration.
    (4) Agroforestry Implementation--Establishment, maintenance, and 
renovation of windbreaks, riparian forest buffers, silvopasture, alley 
cropping, or other agroforestry practices, including purposes for energy 
conservation and carbon sequestration in conjunction with agriculture, 
forest, and other land uses.
    (5) Water Quality Improvement and Watershed Protection--
Establishment, maintenance, renovation, and restoration practices, 
including any necessary design and engineering to improve and protect 
water quality, riparian areas, and forest wetlands and watersheds.
    (6) Fish and Wildlife Habitat Improvement--Establishment, 
maintenance, and restoration practices to create, protect, or improve 
fish and wildlife habitat, including any necessary design and 
engineering.
    (7) Forest Health and Protection--Establishment of practices 
primarily to detect, monitor, assess, protect, improve, or restore 
forest health, including detection and control of insects, diseases, and 
animal damage to established stands.
    (8) Invasive Species Control--Establishment, maintenance and 
restoration practices primarily to detect, monitor, eradicate, or 
control the spread of invasive species.
    (9) Wildfire and Catastrophic Risk Reduction--Establishment of 
practices primarily to reduce the risk from wildfire and other 
catastrophic natural events.
    (10) Wildfire and Catastrophic Event Rehabilitation--Establishment 
of practices primarily to restore and rehabilitate forests following 
wildfire and other catastrophic natural events.
    (11) Special Practices--Establishment, maintenance, and restoration 
practices addressing other conservation concerns on nonindustrial 
private forest lands as proposed by the State Forester and the 
Committee, which must have concurrence by the responsible official.
    (b) A practice may consist of one or more components.



Sec. 230.41  Eligibility requirements for cost-share assistance.

    (a) All landowners of nonindustrial private forest land as defined 
in Sec. 230.31 of this subpart, including those who engage in primary 
processing of raw wood products on a part-time or intermittent basis and 
who otherwise meet the requirements of this section, are eligible to 
apply for and receive assistance under FLEP without regard to race, 
color, religion, national origin, age, sex, disability, political 
affiliation, sexual orientation, or marital or family status.
    (b) A landowner is eligible to receive funds under the cost-share 
element of FLEP for treatment of not more than a total of 1,000 acres of 
land annually, except where a State Forester, with the concurrence of a 
responsible official, determines that significant public benefits would 
accrue from approval of a landowner's treating up to 5,000 acres 
annually. In making a determination of significant public benefits, the 
State Forester and the responsible official shall consider, at a 
minimum, whether landowners who treat more than 1,000 acres annually can 
achieve cost-effective resource management objectives without unduly 
excluding FLEP participation of other eligible landowners.
    (c) In order to meet the following minimum requirements to be 
eligible to receive cost-share through FLEP for all practices except 
development of a management plan, a landowner must:
    (1) Own the minimum acreage as established in the State priority 
plan; however, in no case shall the minimum acreage requirement be 
higher than 25 acres;
    (2) Agree to conduct land treatment(s) according to the landowner's 
practice plan and to maintain FLEP practices for a minimum of 10 years, 
unless the State Forester specifies a shorter duration. The 10-year 
lifespan does not apply to recurring practices such as prescribed 
burning, light

[[Page 189]]

disking in openings, herbicide application, and other practices that are 
identified as needed in the management plan and practice plan; and
    (3) Have a management plan submitted to the State Forester in which 
the lands are located that meets any requirements established by the 
State in its priority plan. Existing landowner management plans such as 
Tree Farm management plans, Forest Stewardship management plans, or 
similar plans may either meet, or can be amended to meet this 
requirement.
    (d) A leaseholder who has a long-term lease on the land to be 
treated through FLEP must provide a copy of the lease to the State 
Forester in order to be eligible to receive cost-share assistance.



Sec. 230.42  Cost-share assistance application and payment procedures.

    (a) Landowner applications for cost-share payments shall not be 
approved unless cost-share funds are available. The obligation of funds 
upon approval of an application constitutes an agreement by the State 
and the landowner to cost-share a completed practice on a reimbursable 
basis when the service representative verifies that the practice has 
been implemented.
    (b) Upon receiving an application for an eligible FLEP practice and 
making a determination that funds are available, a service 
representative shall prepare a practice plan that identifies the needed 
practices, specifications, and performance period for the implementation 
of the practice(s) to achieve the objectives of the landowner. The 
requirements of a practice plan may be contained in a management plan. 
The practice plan is the basis for determining acceptable performance 
upon completion of the practice.
    (c) Upon approval of a FLEP application, the State Forester shall 
notify the landowner in writing. Such notice shall state that the 
landowner can begin implementing the approved practice(s) and that funds 
have been obligated for reimbursement of a specified amount of the total 
cost. Practice costs incurred before approval are not eligible unless 
authorized by the State Forester. The notice shall also state that 
payment shall be made upon the service representative's verification 
that the practice has been implemented in accordance with the 
specifications of the practice plan and activities described in the 
management plan.
    (d) Any landowner who carries out practices under FLEP 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.
    (e) To be eligible for cost-share reimbursement payment, a landowner 
must complete each practice within the performance period specified in 
the State priority plan, not to exceed 24 months. However, if 
practice(s) are not completed within the performance period specified, 
due to conditions beyond the landowner's control, the State Forester may 
grant an extension for a time period specified in the State priority 
plan, not to exceed 12 months.
    (f) Upon certification by the service representative that a practice 
has been completed in accordance with the practice plan, the cost-share 
payment shall be calculated and disbursed to the landowner. Landowners 
must provide to service representatives the right of access to the 
landowner's property to inspect practices for the duration of the 
maintenance period for the practices.
    (g) The maximum aggregate amount of cost-share payment under FLEP to 
any one landowner shall not exceed $100,000 through 2007, with the 
following exception for Alaska Indian Tribes. The Alaska State Forester, 
in consultation with the State Forest Stewardship Coordinating Committee 
and the Responsible Official, shall establish the maximum aggregate 
payment to any one Alaska Indian Tribe, however, the 1,000- and 5,000-
acre limits shall apply.
    (h) The State priority plan shall set the levels of cost-share 
assistance to be paid to landowners, not to exceed 75 percent of the 
total costs incurred by a participating landowner. Non-Federal program 
funds and other donated assistance may be used to supplement cost-share 
through FLEP; however, the total of all funds and assistance shall not 
exceed 100 percent of the total cost

[[Page 190]]

of practice implementation, and the Federal share of the total cost 
shall be reduced by any gross revenue from any material sold as a result 
of the cost-share practice.
    (i) States may use the cost-share rate to define priority practices 
and priority areas by reserving the maximum rate of 75 percent of the 
total costs for the practices and areas having the highest priority.
    (j) State priorities for cost-share shall reflect the national 
priorities as listed in the Forest Service Manual Chapter 3310.
    (k) Other priorities may be developed by the State Forester in 
consultation with the State Forest Stewardship Coordinating Committee.
    (l) A landowner may receive partial payment, if allowed in the State 
priority plan, for completed components on the condition that the 
landowner agrees to complete the remaining components of the practice 
within the performance period specified in the practice plan.
    (m) Where performance actually rendered does not meet the minimum 
specifications of a practice due to factors beyond the landowner's 
control, the State Forester may approve cost-share payments under one of 
the following conditions:
    (1) The landowner repeats application of practices previously 
implemented or establishes additional eligible practices under such 
terms and conditions as the service representative may require, in which 
case the State Forester may approve cost-share payments for additional 
or repeated practices to the extent such measures are needed to meet the 
objectives of the management 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 practice plan.
    (n) In case of death or incompetence of any landowner, the State 
Forester shall approve cost-share payments to the successor in title or 
other persons or entities in control of the landowner property if they 
agree to maintain the practices for the duration of the required 
maintenance period.
    (o) Any landowner who may be entitled to a cost-share payment under 
this subpart may assign the right thereto, in whole or in part, under 
the following terms:
    (1) Payments may be assigned only for performance of a FLEP 
practice;
    (2) A payment that is made to a landowner may not be assigned to pay 
or secure any preexisting debt; and
    (3) Nothing in this section shall be construed to authorize suit 
against the United States, the Department of Agriculture, the Forest 
Service, any State or any disbursing agent acting on their behalf, if 
payment is made to an assignor rather than to an assignee or if payment 
is made to only one of several assignees.
    (p) No financial assistance or portion thereof due and owing to any 
landowner shall be subject to any claim arising under State or other law 
by any creditor, except for claims of agencies of the United States 
Government.
    (q) Prior to receiving approval to implement any FLEP practice 
identified in the State priority plan, except for management plan 
development, eligible landowners shall have an approved practice plan 
providing appropriate technical standards concerning the performance of 
the requested practice(s). A service representative shall approve the 
plan. In reviewing and approving plans, to the extent deemed applicable 
by the service representative, existing landowner management plans such 
as Tree Farm management plans, Forest Stewardship management plans, or 
similar plans may either meet, or can be amended to meet, the practice 
plan requirements under FLEP.



Sec. 230.43  Cost-share assistance--prohibited practices.

    (a) Cost-share payments for the following are prohibited:
    (1) Costs incurred before an application for cost-share is approved 
in writing, except:
    (i) As pre-approved by the State Forester, or
    (ii) The materials and items that may be purchased before approval 
of the practice as described in the State priority plan;

[[Page 191]]

    (2) Repeated practices on the same site within the required 
maintenance period which have been implemented under 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 or recurring practices as noted in this 
subpart;
    (3) Capital investments or capital improvements not related to FLEP 
practices, purchase of land or any interest in land, or any interest in 
an endowment as provided in section 230.32(k) and (l);
    (4) Practices associated with the development of or improvement to 
landowner nursery operations;
    (5) Practices associated with the development of or improvement to 
nut and fruit orchards or Christmas tree plantings or maintenance; or
    (6) Any practice that is not related to the long-term sustainability 
of nonindustrial private forest lands or agroforestry activities.



Sec. 230.44  Cost-share assistance--reporting requirement.

    (a) FLEP cost-share accomplishments should be reported using the 
following standard categories of practices:
    (1) FLEP1--Management Plan Development;
    (2) FLEP2--Afforestation and Reforestation;
    (3) FLEP3--Forest Stand Improvement;
    (4) FLEP4--Agroforestry Implementation;
    (5) FLEP5--Water Quality Improvement and Watershed Protection;
    (6) FLEP6--Fish and Wildlife Habitat Improvement;
    (7) FLEP7--Forest Health and Protection;
    (8) FLEP8--Invasive Species Control;
    (9) FLEP9--Fire and Catastrophic Risk Reduction;
    (10) FLEP10--Fire and Catastrophic Event Rehabilitation; and
    (11) FLEP11--Special Practices.
    (b) All reporting must include activities and accomplishments for 
each category of FLEP practices.



Sec. 230.45  Recapture of cost-share assistance.

    (a) Payments made to landowners may be recaptured under one or more 
of the following circumstances:
    (1) If any landowner, successor, or assignee uses any scheme or 
device to unjustly benefit from FLEP. 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 FLEP. Financial assistance payments shall be withheld or a refund of 
all or part of any FLEP payments otherwise due or paid to that person 
shall be secured.
    (2) 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 payments shall be 
withheld or a recapture of all or part of any FLEP payments otherwise 
due or paid shall be secured, based on the extent and effect of 
destruction and impairment.
    (3) If a landowner sells, conveys, or otherwise loses control of the 
land, except when determined by a State Forester to have been beyond the 
landowner's control, 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. In such cases the landowner 
who was originally obligated to maintain the practice shall be liable to 
reimburse the State(s) for all cost-share on such practices.
    (b) Nothing in this section requiring the withholding or refunding 
of financial assistance payments shall preclude any penalty or liability 
otherwise imposed by law.
    (c) Any landowner, successor, or assignee who is dissatisfied with 
any determination made under FLEP may request reconsideration by the 
State Forester and, if the matter is not resolved, by the Responsible 
Official. All requests for reconsideration shall be in writing and shall 
contain factual information explaining the basis for the request. All 
decisions on reconsideration must be issued in writing.

[[Page 192]]



Sec. 230.46  Information collection requirements.

    The requirements governing the preparation of a State priority plan, 
management plan, and practice plan, the reporting requirements, and the 
application requirements of this subpart constitute information 
requirements as defined by the Paperwork Reduction Act of 1995 and have 
been assigned Office of Management and Budget (OMB) control number 0596-
0168.



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.

 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

[[Page 193]]

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 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.).

[[Page 194]]

    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 
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

[[Page 195]]

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.
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   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 fish, wildlife, and shellfish: general 
          regulations.
242.26  Subsistence taking of wildlife.
242.27  Subsistence taking of fish.
242.28  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: 67 FR 30563, May 7, 2002, 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.

    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;

[[Page 196]]

    (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;
    (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, 
Public Law 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 exchange for cash 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.

[[Page 197]]

    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, Public Law 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 other person living within the household on a permanent basis.
    Federal Advisory Committees or Federal Advisory Committee means the 
Federal 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

[[Page 198]]

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 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 an eligible rural Alaska resident and:
    (1) Possess the pertinent valid Alaska resident hunting and trapping 
licenses (no license required to take fish or shellfish, but you must be 
an Alaska resident) 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

[[Page 199]]

    (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) In order to receive a Federal Subsistence Registration Permit or 
Federal Designated Harvester Permit or designate someone to harvest fish 
or wildlife for you under a Federal Designated Harvester Permit, you 
must be old enough to reasonably harvest that species yourself (or under 
the guidance of an adult).
    (c) 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 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 the regulations in 
this part, 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.
    (d) 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.
    (e) 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 the regulations in this part. Community harvests are 
reviewed annually under the regulations in subpart D of this part.
    (f) You may not make a fraudulent application for Federal or State 
licenses, permits, harvest tickets or tags or intentionally file an 
incorrect harvest report.

[67 FR 30563, May 7, 2002, as amended at 68 FR 7704, Feb. 18, 2003]



Sec. 242.7  Restriction on use.

    (a) You may not use fish or wildlife or their parts, taken pursuant 
to the regulations in this part, unless provided for in this part.
    (b) You may not exchange in customary trade or sell fish or wildlife 
or their parts, taken pursuant to the regulations in this part, unless 
provided for in this part.
    (c) You may barter fish or wildlife or their parts, taken pursuant 
to the regulations in this part, unless restricted in Secs. 242.25, 
242.26, 242.27, or 242.28.



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 Harvester 
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

[[Page 200]]

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 is systematically available to 
Federal managers by routine computer access requiring less than 1 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 222 ARLSQ, 
Washington, D.C. 20240; and the Office of Management and Budget, 
Paperwork Reduction Project (Subsistence), 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: 67 FR 30563, May 7, 2002, unless otherwise noted.



Sec. 242.10  Federal Subsistence Board.

    (a) The Secretary of the Interior and Secretary of Agriculture 
hereby establish a Federal Subsistence Board, and assign it 
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 Regional 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;

[[Page 201]]

    (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 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

[[Page 202]]

with the community's customary and traditional practices.
    (6) The Board may delegate to agency field officials the authority 
to set harvest and possession limits, define harvest areas, specify 
methods or means of harvest, specify permit requirements, 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 members 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.
    (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. 
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 make recommendations to the Secretaries for 
representatives on the Regional Councils. 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 3 years.
    (3) The Chair of each Regional Council shall be elected by the 
applicable Regional Council, from its membership, for a 1-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 the 
regulations in this part 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;

[[Page 203]]

    (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 
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 the regulations in this part, 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.
    (3) The Regional Council recommendations to the Board should be 
supported by substantial evidence, be consistent with recognized 
principles of fish and wildlife conservation, and not be detrimental to 
the satisfaction of subsistence needs.

[67 FR 30563, May 7, 2002, as amended at 68 FR 7704, Feb. 18, 2003]



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 subparts 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.

[[Page 204]]



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, trapping, or 
fishing, or take actions to restrict the taking of fish and wildlife 
when necessary to conserve healthy populations of fish and wildlife, 
continue subsistence uses of such populations, or pursuant to other 
applicable Federal law. 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 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 2,500 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 2,500 but not more 
than 7,000 will be determined to be rural or non-rural.
    (3) A community with a population of more than 7,000 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 10-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 5 years shall be required before the

[[Page 205]]

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 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 
subparts C or 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 sections of subpart C or subpart D 
regulations over a period of years. The Board shall develop and publish 
proposed regulations

[[Page 206]]

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 regulations pertaining to subparts C and D of this part in the 
Federal Register.
    (b) 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  Special actions.

    (a) The Board may restrict, close, or reopen the taking of fish and 
wildlife for non-subsistence uses on public lands when necessary to 
assure the continued viability of a particular fish or wildlife 
population, to continue subsistence uses of a fish or wildlife 
population, or for reasons of public safety or administration.
    (b) The Board may open, close, or restrict subsistence uses of a 
particular fish or wildlife population on public lands to assure the 
continued viability of a fish or wildlife population, to continue 
subsistence uses of a fish or wildlife population, or for reasons of 
public safety or administration.
    (c) The Board will accept a request for a change in seasons, methods 
and means, harvest limits and/or restrictions on harvest under this 
Sec. 242.19 only if there are extenuating circumstances necessitating a 
regulatory change before the next annual subpart D proposal cycle. 
Extenuating circumstances include unusual and significant changes in 
resource abundance or unusual conditions affecting harvest opportunities 
that could not reasonably have been anticipated and that potentially 
could have significant adverse effects on the health of fish and 
wildlife populations or subsistence uses. Requests for Special Action 
that do not meet these conditions will be rejected; however, a rejected 
Special Action request will be deferred, if appropriate, to the next 
annual regulatory proposal cycle for consideration, after coordination 
with the submitter. In general, changes to Customary and Traditional Use 
Determinations will only be considered through the annual subpart C 
proposal cycle.
    (d) In an emergency situation, the Board may immediately open, 
close, liberalize, or restrict subsistence uses of fish and wildlife on 
public lands, or close or restrict 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. Prior to implementing an 
emergency action, the Board shall consult with the State. The emergency 
action 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 public hearing, that such action should be extended. 
The Board shall, in a timely manner, provide notice via radio 
announcement or personal contact of the emergency action and shall

[[Page 207]]

publish notice and reasons justifying the emergency action in newspapers 
of any area affected, and in the Federal Register thereafter.
    (e) After consultation with the State, the appropriate Regional 
Advisory Council(s), and adequate notice and public hearing, the Board 
may make or direct a temporary change to close, open, or adjust the 
seasons, to modify the harvest limits, or to modify the methods and 
means of harvest 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, harvest limits, or methods or means of harvest. 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, will not be detrimental to the 
long-term subsistence use of fish or wildlife resources, and is not an 
unnecessary restriction on non-subsistence users. The decision of the 
Board shall be the final administrative action. The temporary change 
shall be effective when directed by the Board following notice in the 
affected area(s). This notice may include publication in newspapers or 
announcement on local radio stations. The Board shall publish notice and 
reasons justifying the temporary action in the Federal Register 
thereafter. The length of any temporary change shall be confined to the 
minimum time period or harvest limit determined by the Board to be 
necessary to satisfy subsistence uses. A temporary opening or closure 
will not extend beyond the regulatory year for which it is promulgated.
    (f) 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.
    (g) 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 earlier, 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. The Board will accept a request for 
reconsideration only if it is based upon information not previously 
considered by the Board, demonstrates that the existing information used 
by the Board is incorrect, or demonstrates that the Board's 
interpretation of information, applicable law, or regulation is in error 
or contrary to existing law. 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 and 
the Alaska Department of Fish and Game (ADFG) for review and 
recommendation. The Board shall consider any Regional Council and ADFG 
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).

[[Page 208]]

    (g) If the request is denied, the decision of the Board represents 
the final administrative action.



Sec. 242.21  [Reserved]



                     Subpart C--Board Determinations



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 
resource regions from the U.S. Fish and Wildlife Service, 3601 C Street, 
Suite 1030, Anchorage, Alaska 99503.

[67 FR 30570, May 7, 2002]



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;
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 Point, Herring Cove, Saxman East, 
Pennock Island, and parts of Gravina 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.

    You may obtain maps delineating the boundaries of non-rural areas 
from the U.S. Fish and Wildlife Service.
    (b) [Reserved]

[67 FR 30570, May 7, 2002]



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 priority 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. The rural Alaska residents of the 
listed communities and areas have a customary and traditional use of the 
specified species on Federal public lands within the listed areas:

------------------------------------------------------------------------
             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).

[[Page 209]]

 
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.
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.
7.............................  Ruffed Grouse....  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).

[[Page 210]]

 
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 Akutan, 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, Port
                                                    Alsworth, and
                                                    residents of Lake
                                                    Clark National Park
                                                    and Preserve within
                                                    Unit 9(B).
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 Akutan,
                                                    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, Slana,
                                                    Tazlina, Tonsina,
                                                    and Units 11 and 12.
11, remainder.................  Black Bear.......  Residents of
                                                    Chistochina,
                                                    Chitina, Copper
                                                    Center, Gakona,
                                                    Glennallen, Gulkana,
                                                    Kenny Lake, Mentasta
                                                    Lake, Slana,
                                                    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, Slana,
                                                    Tazlina, Tonsina,
                                                    and Units 11 and 12.
11, remainder.................  Brown Bear.......  Residents of
                                                    Chistochina,
                                                    Chitina, Copper
                                                    Center, Gakona,
                                                    Glennallen, Gulkana,
                                                    Kenny Lake, Mentasta
                                                    Lake, Slana,
                                                    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,
                                                    Slana, 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
                                                    the residents of
                                                    Chickaloon.

[[Page 211]]

 
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--Wolf
                                                    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, residents
 Creek to Nabesna River.                            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
                                                    Wolf 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
                                                    and Slana.
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 and
                                                    Slana.
13(B).........................  Moose............  Residents of Units
                                                    13, 20(D) except
                                                    Fort Greely, and the
                                                    residents of
                                                    Chickaloon and
                                                    Slana.

[[Page 212]]

 
13(C).........................  Moose............  Residents of Units
                                                    12, 13 and the
                                                    residents of
                                                    Chickaloon, Healy
                                                    Lake, Dot Lake and
                                                    Slana.
13(E).........................  Moose............  Residents of Unit 13
                                                    and the residents of
                                                    Chickaloon McKinley
                                                    Village, Slana, 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
                                 and Ruffed).       11, 13 and the
                                                    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
                                                    Akiak 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.
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 Akiak
 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 Izavieknik River,                           Bay, Platinum,
 Upper Togiak Lake, Togiak                          Quinhagak, Eek,
 Lake, and the main course of                       Tuntutuliak, and
 the Togiak River.                                  Napakiak.
Unit 17(A)--That portion north  Caribou..........  Residents of Akiak,
 of Togiak Lake that includes                       Akiachak, and
 Izavieknik River drainages.                        Tuluksak.

[[Page 213]]

 
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, Akiak,
                                                    Akiachak, and
                                                    Tuluksak,
                                                    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.
Unit 17(A)--That portion north  Moose............  Residents of Akiak,
 of Togiak Lake that includes                       Akiachak.
 Izavieknik River drainages.
Unit 17(B)--That portion        Moose............  Residents of Akiak,
 within the Togiak National                         Akiachak.
 Wildlife Refuge.
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, that portion of the Yukon   Moose............  Residents of Unit 18
 River drainage upstream of                         and residents of
 Russian Mission and that                           Upper Kalskag,
 portion of the Kuskokwin                           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.
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.

[[Page 214]]

 
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.
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
                                 Ruffed and Sharp-  11, 13 and the
                                 tailed).           residents of
                                                    Chickaloon, 15, 16,
                                                    20(D), 22, and 23.
20(D).........................  Ptarmigan (Rock    Residents of Units
                                 and Willow).       11, 13 and the
                                                    residents of
                                                    Chickaloon, 15, 16,
                                                    20(D), 22, and 23.
Unit 21.......................  Brown Bear.......  Residents of Units 21
                                                    and 23.

[[Page 215]]

 
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), (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
                                                    22(A) 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,
                                                    Nunam Iqua, 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
                                                    11, 13 and the
                                                    residents of
                                                    Chickaloon, 15, 16,
                                                    20(D), 22, and 23.
22............................  Ptarmigan (Rock    Residents of Units
                                 and Willow).       11, 13 and the
                                                    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).
23............................  Moose............  Residents of Unit 23.
23, south of Kotzebue Sound     Muskox...........  Residents of Unit 23
 and west of and including the                      South of Kotzebue
 Buckland River drainage.                           Sound and west of
                                                    and including the
                                                    Buckland River
                                                    drainage.
23, remainder.................  Muskox...........  Residents of Unit 23
                                                    east and north of
                                                    the Buckland River
                                                    drainage.
23............................  Sheep............  Residents of Point
                                                    Lay and Unit 23
                                                    north of the Arctic
                                                    Circle.
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
                                 and Ruffed).       11, 13 and the
                                                    residents of
                                                    Chickaloon, 15, 16,
                                                    20(D), 22, and 23.

[[Page 216]]

 
23............................  Ptarmigan (Rock,   Residents of Units
                                 Willow and White-  11, 13 and the
                                 tailed).           residents of
                                                    Chickaloon, 15, 16,
                                                    20(D), 22, and 23.
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,
                                                    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.......  Residents of Unit 25
                                                    and Eagle.
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 Unit
                                                    25(D) west.
25(D), reminder...............  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.
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.
------------------------------------------------------------------------


[[Page 217]]

    (2) Fish determinations. The following communities and areas have 
been found to have a positive customary and traditional use 
determination in the listed area for the indicated species:

------------------------------------------------------------------------
             Area                    Species           Determination
------------------------------------------------------------------------
KOTZEBUE AREA.................  All fish.........  Residents of the
                                                    Kotzebue Area.
NORTON SOUND--PORT CLARENCE
 AREA:
    Norton Sound--Port          All fish.........  Residents of
     Clarence Area, waters                          Stebbins, St.
     draining into Norton                           Michael, and Kotlik.
     Sound between Point
     Romanof and Canal Point.
    Norton Sound-Port Clarence  All fish.........  Residents of the
     Area, remainder.                               Norton Sound--Port
                                                    Clarence Area.
YUKON-NORTHERN AREA:
    Yukon River Drainage......  Salmon, other      Residents of the
                                 than fall chum     Yukon River
                                 salmon.            drainage, including
                                                    the community of
                                                    Stebbins.
    Yukon River drainage......  Fall chum salmon.  Residents of the
                                                    Yukon River
                                                    drainage, including
                                                    the communities of
                                                    Stebbins, Scammon
                                                    Bay, Hooper Bay, and
                                                    Chevak.
    Yukon River drainage......  Freshwater fish    Residents of the
                                 (other than        Yukon-Northern Area.
                                 salmon).
    Remainder of the Yukon-     All fish.........  Residents of the
     Northern Area.                                 Yukon-Northern Area,
                                                    excluding the
                                                    residents of the
                                                    Yukon River drainage
                                                    and excluding those
                                                    domiciled in Unit 26-
                                                    B.
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,
                                                    Akiachak, Akiak, and
                                                    Platinum.
                                Pacific cod......  Residents of the
                                                    communities of
                                                    Chevak, Newtok,
                                                    Tununak, Toksook
                                                    Bay, Nightmute,
                                                    Chefornak, Kipnuk,
                                                    Mekoryuk,
                                                    Kwigillingok,
                                                    Kongiganak, Eek, and
                                                    Tuntutuliak.
                                All other fish     Residents of the
                                 other than         Kuskokwim Area,
                                 herring.           except those persons
                                                    residing on the
                                                    United States
                                                    military
                                                    installation located
                                                    on Cape Newenham,
                                                    Sparevohn USAFB, and
                                                    Tatalina USAFB.
Waters around Nunivak Island..  Herring and        Residents within 20
                                 herring roe.       miles of the coast
                                                    between the
                                                    westernmost tip of
                                                    the Naskonat
                                                    Peninsula and the
                                                    terminus of the
                                                    Ishowik River and on
                                                    Nunivak Island.
BRISTOL BAY AREA:
    Nushagak District,          Salmon and         Residents of the
     including drainages         freshwater fish.   Nushagak District
     flowing into the district.                     and freshwater
                                                    drainages flowing
                                                    into the district.
    Naknek-Kvichak District--   Salmon and         Residents of the
     Naknek River drainage.      freshwater fish.   Naknek and Kvichak
                                                    River drainages.
    Naknek-Kvichak District--   Salmon and         Residents of the
     Kvichak/Iliamna-Lake        freshwater fish.   Kvichak/Iliamna-Lake
     Clark drainage.                                Clark drainage.
    Togiak District, including  Salmon and         Residents of the
     drainages flowing into      freshwater fish.   Togiak District,
     the district.                                  freshwater drainages
                                                    flowing into the
                                                    district, and the
                                                    community of
                                                    Manokotak.
    Egegik District, including  All fish.........  Residents of the
     drainages flowing into                         Bristol Bay Area.
     the district.
    Ugashik District,           All fish.........  Residents of the
     including drainages                            Bristol Bay Area.
     flowing into the district.
    Togiak District...........  Herring spawn on   Residents of the
                                 kelp.              Togiak District and
                                                    freshwater drainages
                                                    flowing into the
                                                    district.
    Remainder of the Bristol    All fish.........  Residents of the
     Bay Area.                                      Bristol Bay Area.
ALEUTIAN ISLANDS AREA.........  All fish.........  Residents of the
                                                    Aleutian Islands
                                                    Area and the
                                                    Pribilof Islands.
ALASKA PENINSULA AREA.........  Halibut..........  Residents of the
                                                    Alaska Peninsula
                                                    Area and the
                                                    communities of
                                                    Ivanof Bay and
                                                    Perryville.
                                All other fish in  Residents of the
                                 the Alaska         Alaska Peninsula
                                 Peninsula Area.    Area.
CHIGNIK AREA..................  Halibut, salmon    Residents of the
                                 and fish other     Chignik Area.
                                 than rainbow/
                                 steelhead trout.

[[Page 218]]

 
KODIAK AREA--except the         Salmon...........  Residents of the
 Mainland District, all waters                      Kodiak Island
 along the south side of the                        Borough, except
 Alaska Peninsula bounded by                        those residing on
 the latitude of Cape Douglas                       the Kodiak Coast
 (58 deg.52[min] North                              Guard Base.
 latitude) mid-stream Shelikof
 Strait, and east of the
 longitude of the southern
 entrance of Imuya Bay near
 Kilokak Rocks (57
 deg.11[min]22[sec] North
 latitude, 156
 deg.20[min]30[sec]W
 longitude).
Kodiak Area...................  Fish other than    Residents of the
                                 rainbow/           Kodiak Area.
                                 steelhead trout
                                 and salmon.
COOK INLET AREA...............  Fish other than    Residents of the Cook
                                 salmon, Dolly      Inlet Area.
                                 Varden, trout,
                                 char, grayling,
                                 and burbot.
                                Salmon, Dolly      No Determination.
                                 Varden trout,
                                 char, grayling,
                                 and burbot.
PRINCE WILLIAM SOUND AREA:
    South-Western District and  Salmon...........  Residents of the
     Green Island.                                  Southwestern
                                                    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.
    North of a line from        Salmon...........  Residents of the
     Porcupine Point to                             villages of Tatitlek
     Granite Point, and south                       and Ellamar.
     of a line from Point Lowe
     to Tongue Point.
    Copper River drainage       Freshwater fish..  Residents of
     upstream from Haley Creek.                     Cantwell, Chisana,
                                                    Chistochina,
                                                    Chitina, Copper
                                                    Center, Dot Lake,
                                                    Gakona, Gakona
                                                    Junction,
                                                    Glennallen, Gulkana,
                                                    Healy Lake, Kenny
                                                    Lake, Lower Tonsina,
                                                    McCarthy, Mentasta
                                                    Lake, Nabesna,
                                                    Northway, Slana,
                                                    Tanacross, Tazlina,
                                                    Tetlin, Tok,
                                                    Tonsina, and those
                                                    individuals that
                                                    live along the Tok
                                                    Cutoff from Tok to
                                                    Mentasta Pass, and
                                                    along the Nabesna
                                                    Road.
    Chitina Subdistrict of the  Salmon...........  Residents of
     Upper Copper River                             Cantwell, Chisana,
     District.                                      Chistochina,
                                                    Chitina, Copper
                                                    Center, Dot Lake,
                                                    Gakona, Gakona
                                                    Junction,
                                                    Glennallen, Gulkana,
                                                    Healy Lake, Kenny
                                                    Lake, Lower Tonsina,
                                                    McCarthy, Mentasta
                                                    Lake, Nabesna,
                                                    Northway, Slana,
                                                    Tanacross, Tazlina,
                                                    Tetlin, Tok,
                                                    Tonsina, and those
                                                    individuals that
                                                    live along the Tok
                                                    Cutoff from Tok to
                                                    Mentasta Pass, and
                                                    along the Nabesna
                                                    Road.
    Glennallen Subdistrict of   Salmon...........  Residents of the
     the Upper Copper River                         Prince William Sound
     District.                                      Area and residents
                                                    of Cantwell,
                                                    Chisana, Dot Lake,
                                                    Healy Lake,
                                                    Northway, Tanacross,
                                                    Tetlin, Tok and
                                                    those individuals
                                                    living along the
                                                    Alaska Highway from
                                                    the Alaskan/Canadian
                                                    border to along the
                                                    Tok Cutoff from Tok
                                                    to Mentasta Pass,
                                                    and along the
                                                    Nabesna Road.
    Waters of the Copper River  Salmon...........  Residents of Mentasta
     between National Park                          Lake and Dot Lake.
     Service regulatory
     markers located near the
     mouth of Tanada Creek,
     and in Tanada Creek
     between National Park
     Service regulatory
     markers identifying the
     open waters of the creek.
    Remainder of the Prince     Salmon...........  Residents of the
     William Sound Area.                            Prince William Sound
                                                    Area.
YAKUTAT AREA:
    Freshwater upstream from    Salmon...........  Residents of the area
     the terminus of streams                        east of Yakutat Bay,
     and rivers of the Yakutat                      including the
     Area from the Doame River                      islands within
     to the Tsiu River.                             Yakutat Bay, west of
                                                    the Situk River
                                                    drainage, and south
                                                    of and including
                                                    Knight Island.
    Freshwater upstream from    Dolly Varden,      Residents of the area
     the terminus of streams     steelhead trout,   east of Yakutat Bay,
     and rivers of the Yakutat   and smelt.         including the
     Area from the Doame River                      islands within
     to Point Manby.                                Yakutat Bay, west of
                                                    the Situk River
                                                    drainage, and south
                                                    of and including
                                                    Knight Island.
    Remainder of the Yakutat    Dolly Varden,      Residents of
     Area.                       trout, smelt and   Southeastern Alaska
                                 eulachon.          and Yakutat Areas.

[[Page 219]]

 
SOUTHEASTERN ALASKA AREA:
    District 1--Section 1-E in  Salmon, Dolly      Residents of the City
     waters of the Naha River    Varden, trout,     of Saxman.
     and Roosevelt Lagoon.       smelt and
                                 eulachon.
    District 1--Section 1-F in  Salmon, Dolly      Residents of the City
     Boca de Quadra in waters    Varden, trout,     of Saxman.
     of Sockeye Creek and Hugh   smelt and
     Smith Lake within 500       eulachon.
     yards of the terminus of
     Sockeye Creek.
    District 2--North of the    Salmon, Dolly      Residents of the City
     latitude of the northern-   Varden, trout,     of Kasaan and in the
     most tip of Chasina Point   smelt and          drainage of the
     and west of a line from     eulachon.          southeastern shore
     the northern-most tip of                       of the Kasaan
     Chasina Point to the                           Peninsula west of
     eastern-most tip of                            132 deg. 20[min] W.
     Grindall Island to the                         long and east of 132
     eastern-most tip of the                        deg. 25[min] W.
     Kasaan Peninsula.                              long.
    District 3--Section 3-A...  Salmon, Dolly      Residents of the
                                 Varden, trout,     townsite of
                                 smelt and          Hydaburg.
                                 eulachon.
    District 3--Section A.....  Halibut and        Residents of
                                 bottomfish.        Southeast Area.
    District 3--Section 3-B in  Salmon, Dolly      Residents of the City
     waters east of a line       Varden, trout,     of Klawock and on
     from Point Ildefonso to     smelt and          Prince of Wales
     Tranquil Point.             eulachon.          Island within the
                                                    boundaries of the
                                                    Klawock Heenya
                                                    Corporation land
                                                    holdings as they
                                                    existed 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
                                                    existed in January
                                                    1989.
    District 3--Section 3-C in  Salmon, Dolly      Residents of the City
     waters of Sarkar Lakes.     Varden, trout,     of Klawock and on
                                 smelt and          Prince of Wales
                                 eulachon.          Island within the
                                                    boundaries of the
                                                    Klawock Heenya
                                                    Corporation land
                                                    holdings as they
                                                    existed 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
                                                    existed in January
                                                    1989.
    District 5--North of a      Salmon, Dolly      Residents of the City
     line from Point Barrie to   Varden, trout,     of Kake and in
     Boulder Point.              smelt and          Kupreanof Island
                                 eulachon.          drainages emptying
                                                    into Keku Strait
                                                    south of Point White
                                                    and north of the
                                                    Portage Bay boat
                                                    harbor.
    District 9--Section 9-A...  Salmon, Dolly      Residents of the City
                                 Varden, trout,     of Kake and in
                                 smelt and          Kupreanof Island
                                 eulachon.          drainages emptying
                                                    into Keku Strait
                                                    south of Point White
                                                    and north of the
                                                    Portage Bay boat
                                                    harbor.
    District 9--Section 9-B     Salmon, Dolly      Residents of the City
     north of the latitude of    Varden, trout,     of Kake and in
     Swain Point.                smelt and          Kupreanof Island
                                 eulachon.          drainages emptying
                                                    into Keku Strait
                                                    south of Point White
                                                    and north of the
                                                    Portage Bay boat
                                                    harbor.
    District 10--West of a      Salmon, Dolly      Residents of the City
     line from Pinta Point to    Varden, trout,     of Kake and in
     False Point Pybus.          smelt and          Kupreanof Island
                                 eulachon.          drainages emptying
                                                    into Keku Strait
                                                    south of Point White
                                                    and north of the
                                                    Portage Bay boat
                                                    harbor.
    District 12--South of a     Salmon, Dolly      Residents of the City
     line from Fishery Point     Varden, trout,     of Angoon and along
     to south Passage Point      smelt and          the western shore of
     and north of the latitude   eulachon.          Admiralty Island
     of Point Caution.                              north of the
                                                    latitude of Sand
                                                    Island, south of the
                                                    latitude of Thayer
                                                    Creek, and west of
                                                    134 deg. 30[min] W.
                                                    long., including
                                                    Killisnoo Island.
    District 13--Section 13-A   Salmon, Dolly      Residents of the City
     south of the latitude of    Varden, trout,     and Borough of Sitka
     Cape Edward.                smelt and          in drainages which
                                 eulachon.          empty into Section
                                                    13-B north of the
                                                    latitude of Dorothy
                                                    Narrows.
    District 13--Section 13-B   Salmon, Dolly      Residents of the City
     north of the latitude of    Varden, trout,     and Borough of Sitka
     Redfish Cape.               smelt and          in drainages which
                                 eulachon.          empty into Section
                                                    13-B north of the
                                                    latitude of Dorothy
                                                    Narrows.
    District 13--Section 13-C.  Salmon, Dolly      Residents of the City
                                 Varden, trout,     and Borough of Sitka
                                 smelt and          in drainages which
                                 eulachon.          empty into Section
                                                    13-B north of the
                                                    latitude of Dorothy
                                                    Narrows.
    District 13--Section 13-C   Salmon, Dolly      Residents of the City
     east of the longitude of    Varden, trout,     of Angoon and along
     Point Elizabeth.            smelt and          the western shore of
                                 eulachon.          Admiralty Island
                                                    north of the
                                                    latitude of Sand
                                                    Island, south of the
                                                    latitude of Thayer
                                                    Creek, and west of
                                                    134 deg. 30[min] W.
                                                    long., including
                                                    Killisnoo Island.
    District 14--Section 14-B   Salmon, Dolly      Residents of the City
     and 14-C.                   Varden, trout,     of Hoonah and in
                                 smelt and          Chichagof Island
                                 eulachon.          drainages on the
                                                    eastern shore of
                                                    Port Frederick from
                                                    Gartina Creek to
                                                    Point Sophia.

[[Page 220]]

 
    Remainder of the            Dolly Varden,      Residents of
     Southeastern Alaska Area.   trout, smelt and   Southeastern Alaska
                                 eulachon.          and Yakutat Areas.
------------------------------------------------------------------------

    (3) Shellfish determinations. The following communities and areas 
have been found to have a positive customary and traditional use 
determination in the listed area for the indicated species:

------------------------------------------------------------------------
             Area                    Species           Determination
------------------------------------------------------------------------
BERING SEA AREA...............  All shellfish....  Residents of the
                                                    Bering Sea Area.
ALASKA PENINSULA--ALEUTIAN      Shrimp,            Residents of the
 ISLANDS AREA.                   Dungeness, king,   Alaska Peninsula-
                                 and Tanner crab.   Aleutian Islands
                                                    Area.
KODIAK AREA...................  Shrimp,            Residents of the
                                 Dungeness, and     Kodiak Area.
                                 Tanner crab.
Kodiak Area, except for the     King crab........  Residents of the
 Semidi Island, the North                           Kodiak Island
 Mainland, and the South                            Borough except those
 Mainland Sections.                                 residents on the
                                                    Kodiak Coast Guard
                                                    base.
COOK INLET AREA:
    Federal waters in the       Shellfish........  Residents of Tuxedni
     Tuxedni Bay Area within                        Bay, Chisik Island,
     boundaries of Lake Clark                       and Tyonek.
     National Park & Preserve
     or Alaska Maritime NWR.
PRINCE WILLIAM SOUND AREA.....  Shrimp, the        Residents of the
                                 clams,             Prince William Sound
                                 Dungeness, king,   Area.
                                 and Tanner crab.
SOUTHEASTERN ALASKA--YAKUTAT
 AREA:
    Section 1-E south of the    Shellfish, except  Residents of the
     latitude of Grant Island    shrimp, king       Southeast Area.
     light.                      crab, and Tanner
                                 crab.
    Section 1-F north of the    Shellfish, except  Residents of the
     latitude of the             shrimp, king       Southeast Area.
     northernmost tip of Mary    crab, and Tanner
     Island, except waters of    crab.
     Boca de Quadra.
    Section 3-A and 3-B.......  Shellfish, except  Residents of the
                                 shrimp, king       Southeast Area.
                                 crab, and Tanner
                                 crab.
    District 13...............  Dungeness crab,    Residents of the
                                 shrimp, abalone,   Southeast Area.
                                 sea cucumbers,
                                 gum boots,
                                 cockles, and
                                 clams, except
                                 geoducks.
------------------------------------------------------------------------

    (b) [Reserved]

[64 FR 1301, Jan. 8, 1999; 64 FR 35823, 35780, July 1, 1999, as amended 
at 65 FR 40734, June 30, 2000; 66 FR 10145, Feb. 13, 2001; 66 FR 31544, 
June 12, 2001; 66 FR 33748, June 25, 2001; 67 FR 5893, Feb. 7, 2002; 67 
FR 30570, May 7, 2002; 67 FR 43714, June 28, 2002; 68 FR 7279, Feb. 12, 
2003]



           Subpart D--Subsistence Taking of Fish and Wildlife



Sec. 242.25  Subsistence taking of fish, wildlife, and shellfish: general 
regulations.

    (a) Definitions. The following definitions shall apply to all 
regulations contained in this part:
    Abalone iron means a flat device which is used for taking abalone 
and which is more than 1 inch (24 mm) in width and less than 24 inches 
(610 mm) in length, with all prying edges rounded and smooth.
    ADF&G means the Alaska Department of Fish and Game.
    Airborne means transported by aircraft.
    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.
    Anchor means a device used to hold a fishing vessel or net in a 
fixed position relative to the beach; this includes using part of the 
seine or lead, a ship's anchor, or being secured to another vessel or 
net that is anchored.

[[Page 221]]

    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.
    Bait means any material excluding a scent lure that is placed to 
attract an animal by its sense of smell or taste; however, those parts 
of legally taken animals that are not required to be salvaged and which 
are left at the kill site are not considered bait.
    Beach seine means a floating net which is designed to surround fish 
and is set from and hauled to the beach.
    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.
    Cast net means a circular net with a mesh size of no more than 1\1/
2\ inches and weights attached to the perimeter which, when thrown, 
surrounds the fish and closes at the bottom when retrieved.
    Char means the following species: Arctic char (Salvelinus alpinis); 
lake trout (Salvelinus namaycush); brook trout (Salvelinus fontinalis), 
and Dolly Varden (Salvelinus malma).
    Closed season means the time when fish, wildlife, or shellfish may 
not be taken.
    Crab means the following species: Red king crab (Paralithodes 
camshatica); blue king crab (Paralithodes platypus); brown king crab 
(Lithodes aequispina); Lithodes couesi; all species of tanner or snow 
crab (Chionoecetes spp.); and Dungeness crab (Cancer magister).
    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.
    Depth of net means the perpendicular distance between cork line and 
lead line expressed as either linear units of measure or as a number of 
meshes, including all of the web of which the net is composed.
    Designated hunter or fisherman means a Federally qualified hunter or 
fisherman who may take all or a portion of another Federally qualified 
hunter's or fisherman's harvest limit(s) only under situations approved 
by the Board.
    Dip net means a bag-shaped net supported on all sides by a rigid 
frame; the maximum straight-line distance between any two points on the 
net frame, as measured through the net opening, may not exceed 5 feet; 
the depth of the bag must be at least one-half of the greatest straight-
line distance, as measured through the net opening; no portion of the 
bag may be constructed of webbing that exceeds a stretched measurement 
of 4.5 inches; the frame must be attached to a single rigid handle and 
be operated by hand.
    Diving gear means any type of hard hat or skin diving equipment, 
including SCUBA equipment; a tethered, umbilical, surface-supplied unit; 
or snorkel.
    Drainage means all of the lands and waters comprising a watershed, 
including tributary rivers, streams, sloughs, ponds, and lakes, which 
contribute to the water supply of the watershed.
    Drift gillnet means a drifting gillnet that has not been 
intentionally staked, anchored, or otherwise fixed in one place.
    Edible meat means the breast meat of ptarmigan and grouse, and, 
those parts of 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 distal 
(bottom) joint of the radius-ulna (knee), hindquarters as far as the 
distal joint (bottom) of the tibia-fibula (hock) and that portion of the 
animal between the front and hindquarters; however, edible meat of 
species listed in

[[Page 222]]

this definition 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. For black bear, brown and grizzly bear, 
``edible meat'' means the meat of the front quarter and hindquarters and 
meat along the backbone (backstrap).
    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.
    Field means an area outside of established year-round dwellings, 
businesses, or other developments usually associated with a city, town, 
or village; field does not include permanent hotels or roadhouses on the 
State road system or at State or Federally maintained airports.
    Fifty-inch (50-inch) moose means a bull moose with an antler spread 
of 50 inches or more.
    Fish wheel means a fixed, rotating device, with no more than four 
baskets on a single axle, for catching fish, which is driven by river 
current or other means.
    Freshwater of streams and rivers means the line at which freshwater 
is separated from saltwater at the mouth of streams and rivers by a line 
drawn headland to headland across the mouth as the waters flow into the 
sea.
    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.
    Fyke net means a fixed, funneling (fyke) device used to entrap fish.
    Gear means any type of fishing apparatus.
    Gillnet means a net primarily designed to catch fish by entanglement 
in a mesh that consists of a single sheet of webbing which hangs between 
cork line and lead line, and which is fished from the surface of the 
water.
    Grappling hook means a hooked device with flukes or claws, which is 
attached to a line and operated by hand.
    Groundfish or bottomfish means any marine fish except halibut, 
osmerids, herring and salmonids.
    Grouse collectively refers to all species found in Alaska, including 
spruce grouse, ruffed grouse, blue grouse, and sharp-tailed grouse.
    Hand purse seine means a floating net which is designed to surround 
fish and which can be closed at the bottom by pursing the lead line; 
pursing may only be done by hand power, and a free-running line through 
one or more rings attached to the lead line is not allowed.
    Handicraft means a finished product in which the shape and 
appearance of the natural material has been substantially changed by the 
skillful use of hands, such as sewing, carving, etching, scrimshawing, 
painting, or other means, and which has substantially greater monetary 
and aesthetic value than the unaltered natural material alone.
    Handline means a hand-held and operated line, with one or more hooks 
attached.
    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 or designated group, per specified time period, 
in a Unit or portion of a Unit in which the taking occurs even if part 
or all of the harvest is preserved. A fish, when landed and killed by 
means of rod and reel becomes part of the harvest limit of the person 
originally hooking it.
    Herring pound means an enclosure used primarily to contain live 
herring over extended periods of time.
    Highway means the driveable surface of any constructed road.
    Household means that group of people residing in the same residence.
    Hung measure means the maximum length of the cork line when measured 
wet or dry with traction applied at one end only.

[[Page 223]]

    Hunting means the taking of wildlife within established hunting 
seasons with archery equipment or firearms, and as authorized by a 
required hunting license.
    Hydraulic clam digger means a device using water or a combination of 
air and water used to harvest clams.
    Jigging gear means a line or lines with lures or baited hooks, drawn 
through the water by hand, and which are operated during periods of ice 
cover from holes cut in the ice, or from shore ice and which are drawn 
through the water by hand.
    Lead means either a length of net employed for guiding fish into a 
seine, set gillnet, or other length of net, or a length of fencing 
employed for guiding fish into a fish wheel, fyke net, or dip net.
    Legal limit of fishing gear means the maximum aggregate of a single 
type of fishing gear permitted to be used by one individual or boat, or 
combination of boats in any particular regulatory area, district, or 
section.
    Long line means either a stationary, buoyed, or anchored line, or a 
floating, free-drifting line with lures or baited hooks attached.
    Marmot collectively refers to all species of marmot that occur in 
Alaska including the hoary marmot, Alaska marmot, and the woodchuck.
    Mechanical clam digger means a mechanical device used or capable of 
being used for the taking of clams.
    Mechanical jigging machine means a mechanical device with line and 
hooks used to jig for halibut and bottomfish, but does not include hand 
gurdies or rods with reels.
    Mile means a nautical mile when used in reference to marine waters 
or a statute mile when used in reference to fresh water.
    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 that 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.
    Possession limit means the maximum number of fish, grouse, or 
ptarmigan a person or designated group may have in possession if they 
have not been canned, salted, frozen, smoked, dried, or otherwise 
preserved so as to be fit for human consumption after a 15-day period.
    Pot means a portable structure designed and constructed to capture 
and retain live fish and shellfish in the water.
    Ptarmigan collectively refers to all species found in Alaska, 
including white-tailed ptarmigan, rock ptarmigan, and willow ptarmigan.
    Purse seine means a floating net which is designed to surround fish 
and which can be closed at the bottom by means of a free-running line 
through one or more rings attached to the lead line.
    Ram means a male Dall sheep.
    Registration permit means a permit that 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.
    Ring net means a bag-shaped net suspended between no more than two 
frames; the bottom frame may not be larger in perimeter than the top 
frame; the gear must be nonrigid and collapsible so that free movement 
of fish or shellfish across the top of the net is not prohibited when 
the net is employed.
    Rockfish means all species of the genus Sebastes.
    Rod and reel means either a device upon which a line is stored on a 
fixed or revolving spool and is deployed through guides mounted on a 
flexible

[[Page 224]]

pole, or a line that is attached to a pole. In either case, bait or an 
artificial fly or lure is used as terminal tackle. This definition does 
not include the use of rod and reel gear for snagging.
    Salmon means the following species: pink salmon (Oncorhynchus 
gorbuscha); sockeye salmon (Oncorhynchus nerka); chinook salmon 
(Oncorhynchus tshawytscha); coho salmon (Oncorhynchus kisutch); and chum 
salmon (Oncorhynchus keta).
    Salmon stream means any stream used by salmon for spawning, rearing, 
or for traveling to a spawning or rearing area.
    Salvage means to transport the edible meat, skull, or hide, as 
required by regulation, of a regulated fish, wildlife, or shellfish to 
the location where the edible meat will be consumed by humans or 
processed for human consumption in a manner which saves or prevents the 
edible meat from waste, and preserves the skull or hide for human use.
    Scallop dredge means a dredge-like device designed specifically for 
and capable of taking scallops by being towed along the ocean floor.
    Sea urchin rake means a hand-held implement, no longer than 4 feet, 
equipped with projecting prongs used to gather sea urchins.
    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.
    Set gillnet means a gillnet that has been intentionally set, staked, 
anchored, or otherwise fixed.
    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.
    Shovel means a hand-operated implement for digging clams.
    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.
    Spear means a shaft with a sharp point or fork-like implement 
attached to one end which is used to thrust through the water to impale 
or retrieve fish and which is operated by hand.
    Spike-fork moose means a bull moose with only one or two tines on 
either antler; male calves are not spike-fork bulls.
    Stretched measure means the average length of any series of 10 
consecutive meshes measured from inside the first knot and including the 
last knot when wet; the 10 meshes, when being measured, shall be an 
integral part of the net, as hung, and measured perpendicular to the 
selvages; measurements shall be made by means of a metal tape measure 
while the 10 meshes being measured are suspended vertically from a 
single peg or nail, under 5-pound weight.
    Subsistence fishing permit means a permit issued by the Alaska 
Department of Fish and Game or the Federal Subsistence Board.
    Take or Taking means to fish, 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.
    To operate fishing gear means any of the following: To deploy gear 
in the water; to remove gear from the water; to remove fish or shellfish 
from the gear during an open season or period; or to possess a gillnet 
containing fish during an open fishing period, except that a gillnet 
which is completely clear of the water is not considered to be operating 
for the purposes of minimum distance requirement.
    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.
    Trawl means a bag-shaped net towed through the water to capture fish 
or

[[Page 225]]

shellfish, and includes beam, otter, or pelagic trawl.
    Troll gear means a power gurdy troll gear consisting of a line or 
lines with lures or baited hooks which are drawn through the water by a 
power gurdy; hand troll gear consisting of a line or lines with lures or 
baited hooks which are drawn through the water from a vessel by hand 
trolling, strip fishing, or other types of trolling, and which are 
retrieved by hand power or hand-powered crank and not by any type of 
electrical, hydraulic, mechanical, or other assisting device or 
attachment; or dinglebar troll gear consisting of one or more lines, 
retrieved and set with a troll gurdy or hand troll gurdy, with a 
terminally attached weight from which one or more leaders with one or 
more lures or baited hooks are pulled through the water while a vessel 
is making way.
    Trout means the following species: Cutthroat trout (Oncorhynchus 
clarki) and rainbow/steelhead trout (Oncorhynchus mykiss).
    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) Taking fish, wildlife, or shellfish for subsistence uses by a 
prohibited method is a violation of this part. Seasons are closed unless 
opened by Federal regulation. Hunting, trapping, or fishing during a 
closed season or in an area closed by this part is prohibited. You may 
not take for subsistence fish, wildlife, or shellfish outside 
established Unit or Area seasons, or in excess of the established Unit 
or Area harvest limits, unless otherwise provided for by the Board. You 
may take fish, wildlife, or shellfish under State regulations on public 
lands, except as otherwise restricted at Secs. 242.26 through 242.28. 
Unit/Area-specific restrictions or allowances for subsistence taking of 
fish, wildlife, or shellfish are identified at Secs. 242.26 through 
242.28.
    (c) Harvest limits. (1) Harvest limits authorized by this section 
and harvest limits established in State regulations may not be 
accumulated.
    (2) Fish, wildlife, or shellfish taken by a designated individual 
for another person pursuant to Sec. 242.10(d)(5)(ii), counts toward the 
individual harvest limit of the person for whom the fish, wildlife, or 
shellfish is taken.
    (3) A harvest limit applies to the number of fish, wildlife, or 
shellfish that can be taken during a regulatory year; however, harvest 
limits for grouse, ptarmigan, and caribou (in some Units) are regulated 
by the number that may be taken per day. Harvest limits of grouse and 
ptarmigan are also regulated by the number that can be held in 
possession.
    (4) Unless otherwise provided, any person who gives or receives 
fish, wildlife, or shellfish shall furnish, upon a request made by a 
Federal or State agent, a signed statement describing the following: 
Names and addresses of persons who gave and received fish, wildlife, or 
shellfish, the time and place that the fish, wildlife, or shellfish was 
taken, and identification of species transferred. Where a qualified 
subsistence user has designated another qualified subsistence user to 
take fish, wildlife, or shellfish on his or her behalf in accordance 
with Sec. 242.10(d)(5)(ii), the permit shall be furnished in place of a 
signed statement.
    (d) Fishing by designated harvest permit. (1) Any species of fish 
that may be taken by subsistence fishing under this part may be taken 
under a designated harvest permit.
    (2) If you are a Federally-qualified subsistence user, you 
(beneficiary) may designate another Federally-qualified subsistence user 
to take fish on your behalf. The designated fisherman must obtain a 
designated harvest permit prior to attempting to harvest fish and

[[Page 226]]

must return a completed harvest report. The designated fisherman may 
fish for any number of beneficiaries but may have no more than two 
harvest limits in his/her possession at any one time.
    (3) The designated fisherman must have in possession a valid 
designated fishing permit when taking, attempting to take, or 
transporting fish taken under this section, on behalf of a beneficiary.
    (4) The designated fisherman may not fish with more than one legal 
limit of gear.
    (5) You may not designate more than one person to take or attempt to 
take fish on your behalf at one time. You may not personally take or 
attempt to take fish at the same time that a designated fisherman is 
taking or attempting to take fish on your behalf.
    (e) Hunting by designated harvest permit. In Units 1-8, 9(D), 10-16, 
18-26, if you are a Federally qualified subsistence user (recipient), 
you may designate another Federally qualified subsistence user to take 
deer, moose and caribou on your behalf unless you are a member of a 
community operating under a community harvest system or unless Unit 
specific regulations in section 242.26 preclude or modify the use of the 
designated hunter system or allow the harvest of additional species by a 
designated hunter. The designated hunter must obtain a designated hunter 
permit and must return a completed harvest report. The designated hunter 
may hunt for any number of recipients but may have no more than two 
harvest limits in his/her possession at any one time, unless otherwise 
specified in Unit-Specific regulations in Section 242.26.
    (f) A rural Alaska resident who has been designated to take fish, 
wildlife, or shellfish on behalf of another rural Alaska resident in 
accordance with Sec. 242.10(d)(5)(ii), shall promptly deliver the fish, 
wildlife, or shellfish to that rural Alaska resident and may not charge 
the recipient for his/her services in taking the fish, wildlife, or 
shellfish or claim for themselves the meat or any part of the harvested 
fish, wildlife, or shellfish.
    (g) The U.S. Fish and Wildlife Service, Office of Subsistence 
Management may issue a permit to harvest fish, wildlife, or shellfish 
for a qualifying cultural/educational program to an organization that 
has been granted a Federal subsistence permit for a similar event within 
the previous five years. A qualifying program must have instructors, 
enrolled students, minimum attendance requirements, and standards for 
successful completion of the course. Applications must be submitted to 
the Office of Subsistence Management 60 days prior to the earliest 
desired date of harvest. Permits will be issued for no more than one 
large mammal per culture/education camp. Large mammal species allowed to 
be harvested are limited to deer, moose, caribou, black bear, and 
mountain goat. Permits will be issued for no more than 25 fish per 
culture/education camp. Any animals harvested will count against any 
established Federal harvest quota for the area in which harvested. 
Appeal of a rejected request can be made to the Federal Subsistence 
Board. Application for an initial permit for a qualifying cultural/
educational program, for a permit when the circumstances have changed 
significantly, when no permit has been issued within the previous five 
years, or when there is a request for harvest in excess of that provided 
in this paragraph (g), will be considered by the Federal Subsistence 
Board.
    (h) If a subsistence fishing or hunting permit is required by this 
part, the following permit conditions apply unless otherwise specified 
in this section:
    (1) You may not take more fish, wildlife, or shellfish for 
subsistence use than the limits set out in the permit;
    (2) You must obtain the permit prior to fishing or hunting;
    (3) You must have the permit in your possession and readily 
available for inspection while fishing, hunting, or transporting 
subsistence-taken fish, wildlife, or shellfish;
    (4) If specified on the permit, you shall keep accurate daily 
records of the harvest, showing the number of fish, wildlife, or 
shellfish taken by species, location and date of harvest, and other such 
information as may be required for management or conservation purposes; 
and

[[Page 227]]

    (5) If the return of harvest information necessary for management 
and conservation purposes is required by a permit and you fail to comply 
with such reporting requirements, you are ineligible to receive a 
subsistence permit for that activity during the following calendar year, 
unless you demonstrate that failure to report was due to loss in the 
mail, accident, sickness, or other unavoidable circumstances.
    (i) You may not possess, transport, give, receive, or barter fish, 
wildlife, or shellfish that was taken in violation of Federal or State 
statutes or a regulation promulgated thereunder.
    (j) Utilization of fish, wildlife, or shellfish. (1) You may not use 
wildlife as food for a dog or furbearer, or as bait, except as allowed 
for in Sec. 242.26, Sec. 242.27, or Sec. 242.28, or except for the 
following:
    (i) The hide, skin, viscera, head, or bones of wildlife;
    (ii) The skinned carcass of a furbearer;
    (iii) Squirrels, hares (rabbits), grouse, and ptarmigan; however, 
you may not use the breast meat of grouse and ptarmigan as animal food 
or bait;
    (iv) Unclassified wildlife.
    (2) If you take wildlife for subsistence, you must salvage the 
following parts for human use:
    (i) The hide of a wolf, wolverine, coyote, fox, lynx, marten, mink, 
weasel, or otter;
    (ii) The hide and edible meat of a brown bear, except that the hide 
of brown bears taken in the Western and Northwestern Alaska Brown Bear 
Management Areas and Units 5 and 9(B) need not be salvaged;
    (iii) The hide and edible meat of a black bear;
    (iv) The hide or meat of squirrels, hares (rabbits), marmots, 
beaver, muskrats, or unclassified wildlife.
    (3) You must salvage the edible meat of ungulates, bear, grouse and 
ptarmigan.
    (4) You may not intentionally waste or destroy any subsistence-
caught fish or shellfish; however, you may use for bait or other 
purposes, whitefish, herring, and species for which bag limits, seasons, 
or other regulatory methods and means are not provided in this section, 
as well as the head, tail, fins, and viscera of legally-taken 
subsistence fish.
    (5) Failure to salvage the edible meat may not be a violation if 
such failure is caused by circumstances beyond the control of a person, 
including theft of the harvested fish, wildlife, or shellfish, 
unanticipated weather conditions, or unavoidable loss to another animal.
    (6) You may sell handicraft articles made from the fur of a black 
bear.
    (k) The regulations found in this part do not apply to the 
subsistence taking and use of fish, wildlife, or shellfish regulated 
pursuant to the Fur Seal Act of 1966 (80 Stat. 1091, 16 U.S.C. 1187), 
the Endangered Species Act of 1973 (87 Stat. 884, 16 U.S.C. 1531-1543), 
the Marine Mammal Protection Act of 1972 (86 Stat. 1027; 16 U.S.C. 1361-
1407), and the Migratory Bird Treaty Act (40 Stat. 755; 16 U.S.C. 703-
711), or any amendments to these Acts. The taking and use of fish, 
wildlife, or shellfish, covered by these Acts, will conform to the 
specific provisions contained in these Acts, as amended, and any 
implementing regulations.
    (l) Rural residents, nonrural residents, and nonresidents not 
specifically prohibited by Federal regulations from fishing, hunting, or 
trapping on public lands in an area, may fish, hunt, or trap on public 
lands in accordance with the appropriate State regulations.

[68 FR 38475, June 27, 2003]



Sec. 242.26  Subsistence taking of wildlife.

    (a) You 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.
    (b) Except for special provisions found at paragraphs (m)(1) through 
(26) of this section, the following methods and means of taking wildlife 
for subsistence uses are prohibited:
    (1) Shooting from, on, or across a highway;
    (2) Using any poison;
    (3) Using a helicopter in any manner, including transportation of 
individuals, equipment, or wildlife; however, this

[[Page 228]]

prohibition does not apply to transportation of an individual, gear, or 
wildlife during an emergency rescue operation in a life-threatening 
situation;
    (4) 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;
    (5) Using a motorized vehicle to drive, herd, or molest wildlife;
    (6) Using or being aided by use of a machine gun, set gun, or a 
shotgun larger than 10 gauge;
    (7) 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--
    (i) An individual in possession of a valid trapping license may use 
a firearm that shoots rimfire cartridges to take wolves and wolverine;
    (ii) Only a muzzle-loading rifle of .54-caliber or larger, or a .45-
caliber muzzle-loading rifle with a 250-grain, or larger, elongated slug 
may be used to take brown bear, black bear, elk, moose, musk oxen and 
mountain goat;
    (8) Using or being aided by use of a pit, fire, artificial light, 
radio communication, artificial salt lick, explosive, barbed arrow, 
bomb, smoke, chemical, conventional steel trap with a jaw spread over 
nine inches, or conibear style trap with a jaw spread over 11 inches;
    (9) Using a snare, except that an individual in possession of a 
valid hunting license may use nets and snares to take unclassified 
wildlife, ptarmigan, grouse, or hares; and, individuals in possession of 
a valid trapping license may use snares to take furbearers;
    (10) Using a trap to take ungulates or bear;
    (11) Using hooks to physically snag, impale, or otherwise take 
wildlife; however, hooks may be used as a trap drag;
    (12) Using a crossbow to take ungulates, bear, wolf, or wolverine in 
any area restricted to hunting by bow and arrow only;
    (13) Taking of ungulates, bear, wolf, or wolverine with a bow, 
unless the bow is capable of casting a 7/8 inch wide broadhead-tipped 
arrow at least 175 yards horizontally, and the arrow and broadhead 
together weigh at least one ounce (437.5 grains);
    (14) Using bait for taking ungulates, bear, wolf, or wolverine; 
except, you may use bait to take wolves and wolverine with a trapping 
license, and, you may use bait to take black bears with a hunting 
license as authorized in Unit-specific regulations at paragraphs (m)(1) 
through (26) of this section. Baiting of black bears is subject to the 
following restrictions:
    (i) Before establishing a black bear bait station, you must register 
the site with ADF&G;
    (ii) When using bait you must clearly mark the site with a sign 
reading ``black bear bait station'' that also displays your hunting 
license number and ADF&G assigned number;
    (iii) You may use only biodegradable materials for bait; you may use 
only the head, bones, viscera, or skin of legally harvested fish and 
wildlife for bait;
    (iv) You may not use bait within one-quarter mile of a publicly 
maintained road or trail;
    (v) You may not use bait within one mile of a house or other 
permanent dwelling, or within one mile of a developed campground, or 
developed recreational facility;
    (vi) When using bait, you must remove litter and equipment from the 
bait station site when done hunting;
    (vii) You may not give or receive payment for the use of a bait 
station, including barter or exchange of goods;
    (viii) You may not have more than two bait stations with bait 
present at any one time;
    (15) Taking swimming ungulates, bears, wolves or wolverine;
    (16) Taking or assisting in the taking of ungulates, bear, wolves, 
wolverine, or other furbearers before 3 a.m. following the day in which 
airborne travel occurred (except for flights in regularly scheduled 
commercial aircraft); however, this restriction does not apply to 
subsistence taking of deer, the setting of snares or traps, or the 
removal of furbearers from traps or snares;
    (17) Taking a bear cub or a sow accompanied by cub(s).

[[Page 229]]

    (c) Wildlife taken in defense of life or property is not a 
subsistence use; wildlife so taken is subject to State regulations.
    (d) The following methods and means of trapping furbearers, for 
subsistence uses pursuant to the requirements of a trapping license are 
prohibited, in addition to the prohibitions listed at paragraph (b) of 
this section:
    (1) Disturbing or destroying a den, except that you may disturb a 
muskrat pushup or feeding house in the course of trapping;
    (2) Disturbing or destroying any beaver house;
    (3) Taking beaver by any means other than a steel trap or snare, 
except that you may use firearms in certain Units with established 
seasons as identified in Unit-specific regulations found in this 
subpart;
    (4) Taking otter with a steel trap having a jaw spread of less than 
five and seven-eighths inches during any closed mink and marten season 
in the same Unit;
    (5) Using a net, or fish trap (except a blackfish or fyke trap);
    (6) Taking or assisting in the taking of furbearers by firearm 
before 3 a.m. on the day following the day on which airborne travel 
occurred; however, this does not apply to a trapper using a firearm to 
dispatch furbearers caught in a trap or snare.
    (e) Possession and transportation of wildlife. (1) Except as 
specified in paragraph (e)(2) or (f)(1) of this section, or as otherwise 
provided, you may not take a species of wildlife in any Unit, or portion 
of a Unit, if your total take of that species already obtained anywhere 
in the State under Federal and State regulations equals or exceeds the 
harvest limit in that Unit.
    (2) An animal taken under Federal or State regulations by any member 
of a community with an established community harvest limit for that 
species counts toward the community harvest limit for that species. 
Except for wildlife taken pursuant to Sec. 242.10(d)(5)(iii) or as 
otherwise provided for by this Part, an animal taken as part of a 
community harvest limit counts toward every community member's harvest 
limit for that species taken under Federal or State of Alaska 
regulations.
    (f) Harvest limits. (1) The harvest limit specified for a trapping 
season for a species and the harvest limit set for a hunting season for 
the same species are separate and distinct. This means that if you have 
taken a harvest limit for a particular species under a trapping season, 
you may take additional animals under the harvest limit specified for a 
hunting season or vice versa.
    (2) A brown/grizzly bear taken in a Unit or portion of a Unit having 
a harvest limit of one brown/grizzly bear per year counts against a one 
brown/grizzly bear every four regulatory years harvest limit in other 
Units; an individual may not take more than one brown/grizzly bear in a 
regulatory year.
    (g) Evidence of sex and identity. (1) If subsistence take of Dall 
sheep is restricted to a ram, you may not possess or transport a 
harvested sheep unless both horns accompany the animal.
    (2) If the subsistence taking of an ungulate, except sheep, is 
restricted to one sex in the local area, you may not possess or 
transport the carcass of an animal taken in that area unless sufficient 
portions of the external sex organs remain attached to indicate 
conclusively the sex of the animal, except in Units 11, 13, 19, 21, and 
24 where you may possess either sufficient portions of the external sex 
organs (still attached to a portion of the carcass) or the head (with or 
without antlers attached; however, the antler stumps must remain 
attached), to indicate the sex of the harvested moose; however, this 
paragraph (g)(2) does not apply to the carcass of an ungulate that has 
been butchered and placed in storage or otherwise prepared for 
consumption upon arrival at the location where it is to be consumed.
    (3) If a moose harvest limit requires an antlered bull, an antler 
size, or configuration restriction, you may not possess or transport the 
moose carcass or its parts unless both antlers accompany the carcass or 
its parts. If you possess a set of antlers with less than the required 
number of brow tines on one antler, you must leave the antlers naturally 
attached to the unbroken, uncut skull plate; however, this paragraph 
(g)(3) does not apply to a moose carcass or its parts that have been

[[Page 230]]

butchered and placed in storage or otherwise prepared for consumption 
after arrival at the place where it is to be stored or consumed.
    (h) You must leave all edible meat on the bones of the front 
quarters and hind quarters of caribou and moose harvested in Units 9(B), 
17, 18 south of the Yukon River, and 19(B) prior to October 1 until you 
remove the meat from the field or process it for human consumption. You 
must leave all edible meat on the bones of the front quarters, hind 
quarters, and ribs of moose harvested in Unit 21 prior to October 1 
until you remove the meat from the field or process it for human 
consumption. You must leave all edible meat on the bones of the front 
quarters, hind quarters, and ribs of caribou and moose harvested in Unit 
24 prior to October 1 until you remove the meat from the field or 
process it for human consumption. Meat of the front quarters, hind 
quarters, or ribs from a harvested moose or caribou may be processed for 
human consumption and consumed in the field; however, meat may not be 
removed from the bones for purposes of transport out of the field.
    (i) If you take an animal that has been marked or tagged for 
scientific studies, you must, within a reasonable time, notify the ADF&G 
or the agency identified on the collar or marker, when and where the 
animal was taken. You also must retain any ear tag, collar, radio, 
tattoo, or other identification with the hide until it is sealed, if 
sealing is required; in all cases, you must return any identification 
equipment to the ADF&G or to an agency identified on such equipment.
    (j) Sealing of bear skins and skulls. (1) Sealing requirements for 
bear shall apply to brown bears taken in all Units, except as specified 
in this paragraph, and black bears of all color phases taken in Units 1-
7, 11-17, and 20.
    (2) You may not possess or transport from Alaska, the untanned skin 
or skull of a bear unless the skin and skull have been sealed by an 
authorized representative of ADF&G in accordance with State or Federal 
regulations, except that the skin and skull of a brown bear taken under 
a registration permit in the Western Alaska Brown Bear Management Area, 
the Northwest Alaska Brown Bear Management Area, Unit 5, or Unit 9(B) 
need not be sealed unless removed from the area.
    (3) You must keep a bear skin and skull together until a 
representative of the ADF&G has removed a rudimentary premolar tooth 
from the skull and sealed both the skull and the skin; however, this 
provision shall not apply to brown bears taken within the Western Alaska 
Brown Bear Management Area, the Northwest Alaska Brown Bear Management 
Area, Unit 5, or Unit 9(B) which are not removed from the Management 
Area or Unit.
    (i) In areas where sealing is required by Federal regulations, you 
may not possess or transport the hide of a bear which does not have the 
penis sheath or vaginal orifice naturally attached to indicate 
conclusively the sex of the bear.
    (ii) If the skin or skull of a bear taken in the Western Alaska 
Brown Bear Management Area is removed from the area, you must first have 
it sealed by an ADF&G representative in Bethel, Dillingham, or McGrath; 
at the time of sealing, the ADF&G representative shall remove and retain 
the skin of the skull and front claws of the bear.
    (iii) If you remove the skin or skull of a bear taken in the 
Northwestern Alaska Brown Bear Management Area from the area or present 
it for commercial tanning within the Management Area, you must first 
have it sealed by an ADF&G representative in Barrow, Fairbanks, Galena, 
Nome, or Kotzebue; at the time of sealing, the ADF&G representative 
shall remove and retain the skin of the skull and front claws of the 
bear.
    (iv) If you remove the skin or skull of a bear taken in Unit 5 from 
the area, you must first have it sealed by an ADF&G representative in 
Yakutat; at the time of sealing, the ADF&G representative shall remove 
and retain the skin of the skull and front claws of the bear.
    (4) You may not falsify any information required on the sealing 
certificate or temporary sealing form provided by the ADF&G in 
accordance with State regulations.
    (k) Sealing of beaver, lynx, marten, otter, wolf, and wolverine. You 
may not possess or transport from Alaska the

[[Page 231]]

untanned skin of a marten taken in Units 1-5, 7, 13(E), and 14-16 or the 
untanned skin of a beaver, lynx, otter, wolf, or wolverine, whether 
taken inside or outside the State, unless the skin has been sealed by an 
authorized representative of ADF&G in accordance with State regulations. 
In Unit 18, you must obtain an ADF&G seal for beaver skins only if they 
are to be sold or commercially sold.
    (1) You must seal any wolf taken in Unit 2 on or before the 30th day 
after the date of taking.
    (2) You must leave the radius and ulna of the left foreleg naturally 
attached to the hide of any wolf taken in Units 1-5 until the hide is 
sealed.
    (l) If you take a species listed in paragraph (k) of this section 
but are unable to present the skin in person, you must complete and sign 
a temporary sealing form and ensure that the completed temporary sealing 
form and skin are presented to an authorized representative of ADF&G for 
sealing consistent with requirements listed in paragraph (k) of this 
section.
    (m) You may take wildlife, outside of established season or harvest 
limits, for food in traditional religious ceremonies, that are part of a 
funerary or mortuary cycle, including memorial potlatches, under the 
following provisions:
    (1) The harvest does not violate recognized principles of wildlife 
conservation and uses the methods and means allowable for the particular 
species published in the applicable Federal regulations. The appropriate 
Federal land manager will establish the number, species, sex, or 
location of harvest, if necessary, for conservation purposes. Other 
regulations relating to ceremonial harvest may be found in the unit-
specific regulations in Sec. 242.26(n).
    (2) No permit or harvest ticket is required for harvesting under 
this section; however, the harvester must be a Federally qualified 
subsistence user with customary and traditional use in the area where 
the harvesting will occur.
    (3) In Units 1-26 (except for Koyukon/Gwich'in potlatch ceremonies 
in Units 20(F), 21, 24, or 25):
    (i) A tribal chief, village council president or the chief's or 
president's designee for the village in which the religious ceremony 
will be held, or a Federally qualified subsistence user outside of a 
village or tribal-organized ceremony, must notify the nearest Federal 
land manager that a wildlife harvest will take place. The notification 
must include the species, harvest location, and number of animals 
expected to be taken.
    (ii) Immediately after the wildlife is taken, the tribal chief, 
village council president or designee, or other Federally qualified 
subsistence user must create a list of the successful hunters and 
maintain these records including the name of the decedent for whom the 
ceremony will be held. If requested, this information must be available 
to an authorized representative of the Federal land manager.
    (iii) The tribal chief, village council president or designee, or 
other Federally qualified subsistence user outside of the village in 
which the religious ceremony will be held must report to the Federal 
land manager the harvest location, species, sex, and number of animals 
taken as soon as practicable, but not more than 15 days after the 
wildlife is taken.
    (4) In Units 20(F), 21, 24, and 25 (for Koyukon/Gwich'in potlatch 
ceremonies only):
    (i) Taking wildlife outside of established season and harvest limits 
is authorized if it is for food for the traditional Koyukon/Gwich'in 
Potlatch Funerary or Mortuary ceremony and if it is consistent with 
conservation of healthy populations.
    (ii) Immediately after the wildlife is taken, the tribal chief, 
village council president, or the chief's or president's designee for 
the village in which the religious ceremony will be held must create a 
list of the successful hunters and maintain these records. The list must 
be made available, after the harvest is completed, to a Federal land 
manager upon request.
    (iii) As soon as practical, but not more than 15 days after the 
harvest, the tribal chief, village council president, or designee must 
notify the Federal land manager about the harvest location, species, 
sex, and number of animals taken.

[[Page 232]]

    (n) Unit regulations. You may take for subsistence unclassified 
wildlife, all squirrel species, and marmots in all Units, without 
harvest limits, for the period of July 1-June 30. Unit-specific 
restrictions or allowances for subsistence taking of wildlife are 
identified at paragraphs (m)(1) through (26) of this section.
    (1) Unit 1. Unit 1 consists of all mainland drainages from Dixon 
Entrance to Cape Fairweather, and those islands east of the center line 
of Clarence Strait from Dixon Entrance to Caamano Point, and all islands 
in Stephens Passage and Lynn Canal north of Taku Inlet:
    (i) Unit 1(A) consists of all drainages south of the latitude of 
Lemesurier Point including all drainages into Behm Canal, excluding all 
drainages of Ernest Sound;
    (ii) Unit 1(B) consists of all drainages between the latitude of 
Lemesurier Point and the latitude of Cape Fanshaw including all 
drainages of Ernest Sound and Farragut Bay, and including the islands 
east of the center lines of Frederick Sound, Dry Strait (between Sergief 
and Kadin Islands), Eastern Passage, Blake Channel (excluding Blake 
Island), Ernest Sound, and Seward Passage;
    (iii) Unit 1(C) consists of that portion of Unit 1 draining into 
Stephens Passage and Lynn Canal north of Cape Fanshaw and south of the 
latitude of Eldred Rock including Berners Bay, Sullivan Island, and all 
mainland portions north of Chichagof Island and south of the latitude of 
Eldred Rock, excluding drainages into Farragut Bay;
    (iv) Unit 1(D) consists of that portion of Unit 1 north of the 
latitude of Eldred Rock, excluding Sullivan Island and the drainages of 
Berners Bay;
    (v) In the following areas, the taking of wildlife for subsistence 
uses is prohibited or restricted on public lands:
    (A) Public lands within Glacier Bay National Park are closed to all 
taking of wildlife for subsistence uses;
    (B) Unit 1(A)--in the Hyder area, the Salmon River drainage 
downstream from the Riverside Mine, excluding the Thumb Creek drainage, 
is closed to the taking of bear;
    (C) Unit 1(B)--the Anan Creek drainage within one mile of Anan Creek 
downstream from the mouth of Anan Lake, including the area within a one-
mile radius from the mouth of Anan Creek Lagoon, is closed to the taking 
of black bear and brown bear;
    (D) Unit 1(C):
    (1) You may not hunt within one-fourth mile of Mendenhall Lake, the 
U.S. Forest Service Mendenhall Glacier Visitor's Center, and the 
Center's parking area;
    (2) You may not take mountain goat in the area of Mt. Bullard 
bounded by the Mendenhall Glacier, Nugget Creek from its mouth to its 
confluence with Goat Creek, and a line from the mouth of Goat Creek 
north to the Mendenhall Glacier;
    (vi) You may not trap furbearers for subsistence uses in Unit 1(C), 
Juneau area, on the following public lands:
    (A) A strip within one-quarter mile of the mainland coast between 
the end of Thane Road and the end of Glacier Highway at Echo Cove;
    (B) That area of the Mendenhall Valley bounded on the south by the 
Glacier Highway, on the west by the Mendenhall Loop Road and Montana 
Creek Road and Spur Road to Mendenhall Lake, on the north by Mendenhall 
Lake, and on the east by the Mendenhall Loop Road and Forest Service 
Glacier Spur Road to the Forest Service Visitor Center;
    (C) That area within the U.S. Forest Service Mendenhall Glacier 
Recreation Area;
    (D) A strip within one-quarter mile of the following trails as 
designated on U.S. Geological Survey maps: Herbert Glacier Trail, 
Windfall Lake Trail, Peterson Lake Trail, Spaulding Meadows Trail 
(including the loop trail), Nugget Creek Trail, Outer Point Trail, Dan 
Moller Trail, Perseverance Trail, Granite Creek Trail, Mt. Roberts Trail 
and Nelson Water Supply Trail, Sheep Creek Trail, and Point Bishop 
Trail;
    (vii) Unit-specific regulations:
    (A) You may hunt black bear with bait in Units 1(A), 1(B), and 1(D) 
between April 15 and June 15;
    (B) You may not shoot ungulates, bear, wolves, or wolverine from a 
boat, unless you are certified as disabled.

[[Page 233]]



------------------------------------------------------------------------
              Harvest limits                        Open season
------------------------------------------------------------------------
                 Hunting
Black Bear:
    2 bears, no more than one may be a     Sept. 1-June 30.
     blue or glacier bear.
Brown Bear:
    1 bear every four regulatory years by  Sept. 15-Dec. 31.
     State registration permit only.
                                           Mar. 15-May 31.
Deer:
    Unit 1(A)-4 antlered deer............  Aug. 1-Dec. 31.
    Unit 1(B)-2 antlered deer............  Aug. 1-Dec. 31.
    Unit 1(C)-4 deer; however, antlerless  Aug. 1-Dec. 31.
     deer may be taken only from Sept. 15-
     Dec. 31.
Goat:
    Unit 1(A)-Revillagigedo Island only..  No open season.
    Unit 1(B)-that portion north of        Aug. 1-Dec. 31.
     LeConte Bay. 1 goat by State
     registration permit only; the taking
     of kids or nannies accompanied by
     kids is prohibited.
    Unit 1(A) and 1(B), that portion on    No open season.
     the Cleveland Peninsula south of the
     divide between Yes Bay and Santa
     Anna Inlet.
    Unit 1(A) and Unit 1(B)-remainder-2    Aug. 1-Dec. 31.
     goats; a State registration permit
     will be required for the taking of
     the first goat and a Federal
     registration permit for the taking
     of a second goat. The taking of kids
     or nannies accompanied by kids is
     prohibited.
    Unit 1(C)-that portion draining into   Oct. 1-Nov. 30.
     Lynn Canal and Stephens Passage
     between Antler River and Eagle
     Glacier and River, and all drainages
     of the Chilkat Range south of the
     Endicott River-1 goat by State
     registration permit only.
    Unit 1(C)-that portion draining into   No open season.
     Stephens Passage and Taku Inlet
     between Eagle Glacier and River and
     Taku Glacier.
    Unit 1(C)-remainder-1 goat by State    Aug. 1-Nov. 30.
     registration permit only.
    Unit 1(D)-that portion lying north of  Sept. 15-Nov. 30.
     the Katzehin River and northeast of
     the Haines highway-1 goat by State
     registration permit only.
    Unit 1(D)-that portion lying between   No open season.
     Taiya Inlet and River and the White
     Pass and Yukon Railroad.
    Unit 1(D)-remainder-1 goat by State    Aug. 1-Dec. 31.
     registration permit only.
Moose:
    Unit 1(A)-1 antlered bull by Federal   Sept. 5-Oct. 15.
     registration permit.
    Unit 1(B)-1 antlered bull with spike-  Sept. 15-Oct. 15.
     fork or 50-inch antlers or 3 or more
     brow tines on either antler, by
     State registration permit only.
    Unit 1(C), that portion south of       Sept. 15-Oct. 15.
     Point Hobart including all Port
     Houghton drainages-1 antlered bull
     with spike-fork or 50-inch antlers
     or 3 or more brow tines on either
     antler, by State registration permit
     only.
    Unit 1(C)-remainder, excluding         Sept. 15-Oct. 15.
     drainages of Berners Bay-1 antlered
     bull by State registration permit
     only.
    Unit 1(D)............................  No open season.
Coyote:
    2 coyotes............................  Sept. 1-Apr. 30.
Fox, Red (including Cross, Black, and
 Silver Phases):
    2 foxes..............................  Nov. 1-Feb. 15.
Hare (Snowshoe):
    5 hares per day......................  Sept. 1-Apr. 30.
Lynx:
    2 lynx...............................  Dec. 1-Feb. 15.
Wolf:
    5 wolves.............................  Aug. 1-Apr. 30.
Wolverine:
    1 wolverine..........................  Nov. 10-Feb. 15.
Grouse (Spruce, Blue, and Ruffed):
    5 per day, 10 in possession..........  Aug. 1-May 15.
Ptarmigan (Rock, Willow, and White-
 tailed):
    20 per day, 40 in possession.........  Aug. 1-May 15.
 
                 Trapping
Beaver:
    Unit 1(A), (B), and (C)-No limit.....  Dec. 1-May 15.
Coyote:
    No limit.............................  Dec. 1-Feb. 15.
Fox, Red (including Cross, Black, and
 Silver Phases):
    No limit.............................  Dec. 1-Feb. 15.
Lynx:
    No limit.............................  Dec. 1-Feb. 15.
Marten:
    No limit.............................  Dec. 1-Feb. 15.
Mink and Weasel:
    No limit.............................  Dec. 1-Feb. 15.
Muskrat:
    No limit.............................  Dec. 1-Feb. 15.
Otter:
    No limit.............................  Dec. 1-Feb. 15.

[[Page 234]]

 
Wolf:
    No limit.............................  Nov. 10-Apr. 30.
Wolverine:
    No limit.............................  Nov. 10-Apr. 30.
------------------------------------------------------------------------

    (2) Unit 2. Unit 2 consists of Prince of Wales Island and all 
islands west of the center lines of Clarence Strait and Kashevarof 
Passage, south and east of the center lines of Sumner Strait, and east 
of the longitude of the western most point on Warren Island.
    (i) Unit-specific regulations:
    (A) You may use bait to hunt black bear between April 15 and June 
15;
    (B) You may not shoot ungulates, bear, wolves, or wolverine from a 
boat, unless you are certified as disabled.
    (ii) [Reserved]

------------------------------------------------------------------------
              Harvest limits                        Open season
------------------------------------------------------------------------
                 Hunting
Black Bear: 2 bears, no more than one may  Sept. 1-June 30.
 be a blue or glacier bear.
Deer:
    4 deer by Federal registration         July 24-Dec. 31.
     permit; however, no more than one
     may be an antlerless deer.
     Antlerless deer may be taken only
     during the period Oct. 15-Dec. 31.
    The Federal public lands on Prince of
     Wales Island are closed to hunting
     of deer from Aug. 1 to Aug. 21,
     except by Federally-qualified
     subsistence users.
Coyote: 2 coyotes........................  Sept. 1-Apr. 30.
Fox, Red (including Cross, Black, and      Nov. 1-Feb. 15.
 Silver Phases): 2 foxes.
Hare (Snowshoe): 5 hares per day.........  Sept. 1-Apr. 30.
Lynx: 2 lynx.............................  Dec. 1-Feb. 15.
Wolf: wolves. The Forest Supervisor (or    Sept. 1-Mar. 15.
 designee) may close the Federal hunting
 and trapping season in consultation with
 ADF&G and the Chair of the Southeast
 Alaska Subsistence Regional Advisory
 Council, when the combined Federal-State
 harvest quota is reached.
Wolverine: 1 wolverine...................  Nov. 10-Feb. 15.
Grouse (Spruce and Ruffed): 5 per day, 10  Aug. 1-May 15.
 in possession.
Ptarmigan (Rock, Willow, and White-        Aug. 1-May 15.
 tailed): 20 per day, 40 in possession.
 
                 Trapping
Beaver: No limit.........................  Dec. 1-May 15.
Coyote: No limit.........................  Dec. 1-Feb. 15.
Fox, Red (including Cross, Black, and
 Silver Phases):.
    No limit.............................  Dec. 1-Feb. 15.
Lynx: No limit...........................  Dec. 1-Feb. 15.
Marten: No limit.........................  Dec. 1-Feb. 15.
Mink and Weasel: No limit................  Dec. 1-Feb. 15.
Muskrat: No limit........................  Dec. 1-Feb. 15.
Otter: No limit..........................  Dec. 1-Feb. 15.
Wolf: No limit...........................  Nov. 15-Mar. 15.
Wolverine: No limit......................  Nov. 10-Apr. 30.
------------------------------------------------------------------------

    (3) Unit 3. (i) Unit 3 consists of all islands west of Unit 1(B), 
north of Unit 2, south of the center line of Frederick Sound, and east 
of the center line of Chatham Strait including Coronation, Kuiu, 
Kupreanof, Mitkof, Zarembo, Kashevarof, Woronkofski, Etolin, Wrangell, 
and Deer Islands.
    (ii) In the following areas, the taking of wildlife for subsistence 
uses is prohibited or restricted on public lands:
    (A) In the Petersburg vicinity, you may not take ungulates, bear, 
wolves, and wolverine along a strip one-fourth mile wide on each side of 
the Mitkof Highway from Milepost 0 to Crystal Lake campground;
    (B) You may not take black bears in the Petersburg Creek drainage on 
Kupreanof Island;
    (C) You may not hunt in the Blind Slough draining into Wrangell 
Narrows and a strip one-fourth mile wide on each side of Blind Slough, 
from the hunting closure markers at the southernmost portion of Blind 
Island to the hunting closure markers one mile south of the Blind Slough 
bridge.
    (iii) Unit-specific regulations:

[[Page 235]]

    (A) You may use bait to hunt black bear between April 15 and June 
15;
    (B) You may not shoot ungulates, bear, wolves, or wolverine from a 
boat, unless you are certified as disabled.

------------------------------------------------------------------------
              Harvest limits                        Open season
------------------------------------------------------------------------
                 Hunting
 
Black Bear: 2 bears, no more than one may  Sept. 1-June 30.
 be a blue or glacier bear.
Deer:
    Unit 3--Mitkof, Woewodski, and         Oct. 15-Oct. 31.
     Butterworth Islands--1 antlered deer.
    Unit 3--remainder--2 antlered deer...  Aug. 1-Nov. 30.
Moose: 1 antlered bull with spike-fork or  Sept. 15-Oct. 15.
 50-inch antlers or 3 or more brow tines
 on either antler by State registration
 permit only.
Coyote: 2 coyotes........................  Sept. 1-Apr. 30.
Fox, Red (including Cross, Black, and      Nov. 1-Feb. 15.
 Silver Phases): 2 foxes.
Hare (Snowshoe): 5 hares per day.........  Sept. 1-Apr. 30.
Lynx: 2 lynx.............................  Dec. 1-Feb. 15.
Wolf: 5 wolves...........................  Aug. 1-Apr. 30.
Wolverine: 1 wolverine...................  Nov. 10-Feb. 15.
Grouse (Spruce, Blue, and Ruffed): 5 per   Aug. 1-May 15.
 day, 10 in possession.
Ptarmigan (Rock, Willow, and White-        Aug. 1-May 15.
 tailed): 20 per day, 40 in possession.
 
                 Trapping
 
Beaver:
    Unit 3--Mitkof Island--No limit......  Dec. 1-Apr. 15.
    Unit 3--except Mitkof Island--No       Dec. 1-May 15.
     limit.
Coyote: No limit.........................  Dec. 1-Feb. 15.
Fox, Red (including Cross, Black, and      Dec. 1-Feb. 15.
 Silver Phases): No limit.
Lynx: No limit...........................  Dec. 1-Feb. 15.
Marten: No limit.........................  Dec. 1-Feb. 15.
Mink and Weasel: No limit................  Dec. 1-Feb. 15.
Muskrat: No limit........................  Dec. 1-Feb. 15.
Otter: No limit..........................  Dec. 1-Feb. 15.
Wolf: No limit...........................  Nov. 10-Apr. 30.
Wolverine: No limit......................  Nov. 10.-Apr. 30.
------------------------------------------------------------------------

    (4) Unit 4. (i) Unit 4 consists of all islands south and west of 
Unit 1(C) and north of Unit 3 including Admiralty, Baranof, Chichagof, 
Yakobi, Inian, Lemesurier, and Pleasant Islands.
    (ii) In the following areas, the taking of wildlife for subsistence 
uses is prohibited or restricted on public lands:
    (A) You may not take bears in the Seymour Canal Closed Area 
(Admiralty Island) including all drainages into northwestern Seymour 
Canal between Staunch Point and the southernmost tip of the unnamed 
peninsula separating Swan Cove and King Salmon Bay including Swan and 
Windfall Islands;
    (B) You may not take bears in the Salt Lake Closed Area (Admiralty 
Island) including all lands within one-fourth mile of Salt Lake above 
Klutchman Rock at the head of Mitchell Bay;
    (C) You may not take brown bears in the Port Althorp Closed Area 
(Chichagof Island), that area within the Port Althorp watershed south of 
a line from Point Lucan to Salt Chuck Point (Trap Rock);
    (D) You may not use any motorized land vehicle for brown bear 
hunting in the Northeast Chichagof Controlled Use Area (NECCUA) 
consisting of all portions of Unit 4 on Chichagof Island north of 
Tenakee Inlet and east of the drainage divide from the northwest point 
of Gull Cove to Port Frederick Portage, including all drainages into 
Port Frederick and Mud Bay;
    (E) You may not use any motorized land vehicle for the taking of 
marten, mink, and weasel on Chichagof Island.
    (iii) Unit-specific regulations:
    (A) You may shoot ungulates from a boat. You may not shoot bear, 
wolves, or wolverine from a boat, unless you are certified as disabled;
    (B) Five Federal registration permits will be issued for the taking 
of brown bear for educational purposes associated with teaching 
customary and traditional subsistence harvest and use practices. Any 
bear taken under an educational permit does not count in an individual's 
one bear every four regulatory years limit.

[[Page 236]]



------------------------------------------------------------------------
              Harvest limits                        Open season
------------------------------------------------------------------------
                 Hunting
 
Brown Bear:
    Unit 4--Chichagof Island south and     Sept. 15-Dec. 31.
     west of a line that follows the       Mar. 15-May 31.
     crest of the island from Rock Point
     (58 deg. N. lat., 136 deg. 21' W.
     long.) to Rodgers Point (57 deg. 35'
     N. lat., 135 deg. 33' W. long.)
     including Yakobi and other adjacent
     islands; Baranof Island south and
     west of a line which follows the
     crest of the island from Nismeni
     Point (57 deg. 34' N. lat., 135 deg.
     25' W. long.) to the entrance of Gut
     Bay (56 deg. 44' N. lat., 134 deg.
     38' W. long.) including the
     drainages into Gut Bay and including
     Kruzof and other adjacent islands--1
     bear every four regulatory years by
     State registration permit only.
    Unit 4--remainder--1 bear every four   Sept. 15-Dec. 31.
     regulatory years by State             Mar. 15-May 20.
     registration permit only.
Deer: 6 deer; however, antlerless deer     Aug. 1-Jan. 31.
 may be taken only from Sept. 15-Jan. 31.
Goat: 1 goat by State registration permit  Aug. 1-Dec. 31.
 only.
Coyote: 2 coyotes........................  Sept. 1-Apr. 30.
Fox, Red (including Cross, Black, and      Nov. 1-Feb. 15.
 Silver Phases): 2 foxes.
Hare (Snowshoe): 5 hares per day.........  Sept. 1-Apr. 30.
Lynx: 2 lynx.............................  Dec. 1-Feb. 15.
Wolf: 5 wolves...........................  Aug. 1-Apr. 30.
Wolverine: 1 wolverine...................  Nov. 10-Feb. 15.
Grouse (Spruce, Blue, and Ruffed): 5 per   Aug. 1-May 15.
 day, 10 in possession.
Ptarmigan (Rock, Willow, and White-        Aug. 1-May 15.
 tailed): 20 per day, 40 in possession.
 
                 Trapping
 
Beaver: Unit 4--that portion east of       Dec. 1-May 15.
 Chatham Strait--No limit.
Remainder of Unit 4......................  No open season.
Coyote: No limit.........................  Dec. 1-Feb. 15.
Fox, Red (including Cross, Black, and      Dec. 1-Feb. 15.
 Silver Phases): No limit.
Lynx: No limit...........................  Dec. 1-Feb. 15.
Marten: No limit.........................  Dec. 1-Feb. 15.
Mink and Weasel: No limit................  Dec. 1-Feb. 15.
Muskrat: No limit........................  Dec. 1-Feb. 15.
Otter: No limit..........................  Dec. 1-Feb. 15.
Wolf: No limit...........................  Nov. 10-Apr. 30.
Wolverine: No limit......................  Nov. 10-Apr. 30.
------------------------------------------------------------------------

    (5) Unit 5. (i) Unit 5 consists of all Gulf of Alaska drainages and 
islands between Cape Fairweather and the center line of Icy Bay, 
incl