[Title 36 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2007 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
36
Parts 200 to 299
Revised as of July 1, 2007
Parks, Forests, and Public Property
________________________
Containing a codification of documents of general
applicability and future effect
As of July 1, 2007
With Ancillaries
Published by:
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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[[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........................ 391
Alphabetical List of Agencies Appearing in the CFR...... 409
List of CFR Sections Affected........................... 419
[[Page iv]]
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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
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Title 1 through Title 16.................................as of January 1
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[[Page vi]]
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July 1, 2007.
[[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, 2007.
For this volume, Elmer Barksdale was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Ann Worley.
[[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
Abbreviations Used in This Chapter:
A.O. = Administrative order. P.L.O. = Public Land order.
[[Page 3]]
CHAPTER II--FOREST SERVICE, DEPARTMENT OF AGRICULTURE
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Part Page
200 Organization, functions, and procedures..... 5
211 Administration.............................. 13
212 Travel management........................... 14
213 Administration of lands under Title III of
the Bankhead-Jones Farm Tenant Act by
the Forest Service...................... 27
215 Notice, comment, and appeal procedures for
National Forest System projects and
activities.............................. 29
216 Involving the public in the formulation of
Forest Service directives............... 40
218 Predecisional administrative review
processes............................... 43
219 Planning.................................... 48
221 Timber management planning.................. 60
222 Range management............................ 60
223 Sale and disposal of National Forest System
timber.................................. 78
228 Minerals.................................... 137
230 State and private forestry assistance....... 171
241 Fish and wildlife........................... 188
242 Subsistence management regulations for
public lands in Alaska.................. 191
251 Land uses................................... 246
254 Landownership adjustments................... 297
261 Prohibitions................................ 315
262 Law enforcement support activities.......... 328
264 Property management......................... 332
271 Use of ``Smokey Bear'' symbol............... 333
272 Use of ``Woodsy Owl'' symbol................ 334
290 Cave resources management................... 336
292 National recreation areas................... 338
293 Wilderness--primitive areas................. 365
294 Special areas............................... 370
296 Protection of archaeological resources:
uniform regulations..................... 373
297 Wild and scenic rivers...................... 386
298-299 [Reserved]
[[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 Sec. etary 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
Sec. etary 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 Sec. etary 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
Sec. 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_TRAVEL MANAGEMENT--Table of Contents
Subpart A_Administration of the Forest Transportation System
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 [Reserved]
212.21 Pacific Crest National Scenic Trail.
Subpart B_Designation of Roads, Trails, and Areas for Motor Vehicle Use
212.50 Purpose, scope, and definitions.
212.51 Designation of roads, trails, and areas.
212.52 Public involvement.
212.53 Coordination with Federal, State, county, and other local
governmental entities and tribal governments.
212.54 Revision of designations.
212.55 Criteria for designation of roads, trails, and areas.
212.56 Identification of designated roads, trails, and areas.
212.57 Monitoring of effects of motor vehicle use on designated roads
and trails and in designated areas.
Subpart C_Use by Over-Snow Vehicles
212.80 Purpose, scope, and definitions.
212.81 Use by over-snow vehicles.
Subpart A_Administration of the Forest Transportation System
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:
Administrative unit. A National Forest, a National Grassland, a
purchase unit, a land utilization project, Columbia River Gorge National
Scenic Area, Land Between the Lakes, Lake Tahoe Basin Management Unit,
Midewin National Tallgrass Prairie, or other comparable unit of the
National Forest System.
Area. A discrete, specifically delineated space that is smaller, and
in most cases much smaller, than a Ranger District.
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.
Designated road, trail, or area. A National Forest System road, a
National Forest System trail, or an area on National Forest System lands
that is designated for motor vehicle use pursuant to Sec. 212.51 on a
motor vehicle use map.
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 road or trail. A road or trail wholly or partly within or
adjacent to and serving the National Forest System that the Forest
Service determines is necessary for the protection, administration, and
utilization of the National Forest System and the use and development of
its resources.
Forest transportation atlas. A display of the system of roads,
trails, and airfields of an administrative unit.
Forest transportation facility. A forest road or trail or an
airfield that is displayed in a forest transportation atlas, including
bridges, culverts, parking lots, marine access facilities, safety
devices, and other improvements appurtenant to the forest transportation
system.
Forest transportation system. The system of National Forest System
roads, National Forest System trails, and airfields on 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.
Motor vehicle. Any vehicle which is self-propelled, other than:
(1) A vehicle operated on rails; and
[[Page 16]]
(2) Any wheelchair or mobility device, including one that is
battery-powered, that is designed solely for use by a mobility-impaired
person for locomotion, and that is suitable for use in an indoor
pedestrian area.
Motor vehicle use map. A map reflecting designated roads, trails,
and areas on an administrative unit or a Ranger District of the National
Forest System.
National Forest System. As defined in the Forest Rangeland Renewable
Resources 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.
National Forest System road. A forest road other than a road which
has been authorized by a legally documented right-of-way held by a
State, county, or other local public road authority.
National Forest System trail. A forest trail other than a trail
which has been authorized by a legally documented right-of-way held by a
State, county, or other local public road authority.
Off-highway vehicle. Any motor vehicle designed for or capable of
cross-country travel on or immediately over land, water, sand, snow,
ice, marsh, swampland, or other natural terrain.
Over-snow vehicle. A motor vehicle that is designed for use over
snow and that runs on a track or tracks and/or a ski or skis, while in
use over snow.
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 route over 50 inches wide, unless identified
and managed as a trail.
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 construction or reconstruction. Supervising, inspecting, actual
building, and incurrence of all costs incidental to the construction or
reconstruction of a road.
Road Decommissioning. Activities that result in the stabilization
and restoration of unneeded roads to a more natural state.
Temporary road or trail. A road or trail necessary for emergency
operations or authorized by contract, permit, lease, or other written
authorization that is not a forest road or trail and that is not
included in a forest transportation atlas.
Trail. A route 50 inches or less in width or a route over 50 inches
wide that is identified and managed as a trail.
Travel management atlas. An atlas that consists of a forest
transportation atlas and a motor vehicle use map or maps.
Unauthorized road or trail. A road or trail that is not a forest
road or trail or a temporary road or trail and that is not included in a
forest transportation atlas.
(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; 70 FR 68287, Nov. 9, 2005]
[[Page 17]]
Sec. 212.2 Forest transportation program.
(a) Travel management atlas. For each administrative unit of the
National Forest System, the responsible official must develop and
maintain a travel management atlas, which is to be available to the
public at the headquarters of that administrative unit.
(b) Forest transportation atlas. A forest transportation atlas may
be updated to reflect new information on the existence and condition of
roads, trails, and airfields of the administrative unit. A forest
transportation 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 a forest
transportation atlas are identified in the Forest Service directives
system.
(c) Program of work for the forest transportation system. A program
of work for the forest transportation system shall be developed each
fiscal year in accordance with procedures prescribed by the Chief.
(d) 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; 70 FR 68288, Nov. 9, 2005]
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 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 designations established under
subpart B of this part or with the rules at 36 CFR part 261.
[[Page 18]]
(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 may include but are not limited to distinguishable
groupings such as passenger cars, buses, trucks, motorcycles, all-
terrain vehicles, 4-wheel drive vehicles, off-highway vehicles, and
trailers. Types of traffic may include but are not 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 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 National Forest System 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.
[[Page 19]]
(d) Maintenance and reconstruction of National Forest System 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; 70 FR
68288, Nov. 9, 2005]
Sec. 212.6 Ingress and egress.
(a) Policy in acquiring and granting access. To assure effective
protection, management, and utilization of lands administered by the
Forest Service and intermingled and adjacent private and public lands,
and for the use and development of the resources upon which communities
within or adjacent to the National Forests are dependent, the Chief
shall as promptly as is feasible obtain needed access thereto and shall
grant appropriate access across National Forest and other lands and
easements administered by the Forest Service to intermingled or adjacent
landowners. Construction, reconstruction or maintenance of a road or
highway requires written authorization.
(b) Actual settlers and other persons residing within the National
Forests and other areas administered by the Forest Service. Actual
settlers and other persons residing within the National Forests and
other areas administered by the Forest Service shall be permitted
ingress and egress over the same and use of existing 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
[[Page 20]]
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 roads that are or will be part of a
transportation system of a State, county, or other local public road
authority. Forest roads that are or will be part of a transportation
system of a State, county, or other local public road authority and are
on rights-of-way held by a State, county, or other local public road
authority may be constructed, reconstructed, improved, or maintained by
the Forest Service when there is an appropriate agreement with the
State, county, or other local public road authority under 23 U.S.C. 205
and the construction, reconstruction, improvement, or maintenance is
essential to provide safe and economical access to National Forest
System lands.
(b) Acquisition of easements and rights of use. Except as otherwise
provided in the regulations of this part, easements for road and trail
construction across non-Federal lands and easements or rights of use
over non-Federal roads and trails will be acquired in the name of the
United States of America and its assigns. The easements or rights of use
may be acquired by purchase, condemnation, donation, or as a reciprocal
for permits or easements for roads or trails to be constructed or for
easements over or permits to use existing roads or trails.
(c) Methods of compensation for easements and rights of use acquired
by the United States. Compensation in negotiated acquisitions may be:
(1) By payment from appropriated funds;
(2) Pursuant to reservation in the grant of easement to the United
States whereby the grantor reserves the right to require haulers of
Federal timber or other Federal products over the road conveyed or
thereafter constructed by the grantor to make payments to the grantor in
accordance with the terms of the reservation;
(3) By granting reciprocal rights; or
(4) By a combination of these methods.
(d) Cooperative construction and use agreements. Where areas, partly
lands administered by the Forest Service and partly private or other
ownership are undeveloped or inadequately developed by roads, the Chief
will, to the extent feasible and advantageous to the United States, join
in planning, constructing, reconstructing, improving, maintaining, and
using an adequate road system on the basis of each party bearing the
proportion of the cost attributable to the anticipated benefits as set
forth in Sec. 212.9.
(e) Condemnation. Where access across non-Federal land or over a
non-Federal road or trail cannot be obtained through negotiations with
reasonable promptness, condemnation will be undertaken.
(f) Access over non-Federal land and use of non-Federal roads or
trails on a temporary basis. The Chief may negotiate a temporary
agreement for access over non-Federal land and for use of an existing
non-Federal road or trail where there is immediate need for temporary
access for limited purposes that can be economically met by such
procedure, or where the foreseeable need does not justify the
expenditures necessary to provide a permanent road or trail.
(g) Use and control of interests in roads, trails, and easements
acquired by the United States. Interests in roads, trails, and easements
acquired by the United States shall be under the control of the United
States, subject to approved reservations, limitations and other
provisions set forth in the easement, permit, or other indenture. This
control by the United States may include restricting or conditioning the
use of the interest owned by the United States in the
[[Page 21]]
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; 70 FR 68288, Nov. 9, 2005]
Sec. 212.8 Permission to cross lands and easements owned by the United States
and administered by the Forest Service.
(a) Permission to construct or use roads across lands and assignable
easements owned by the United States and administered by the Forest
Service. If a reciprocal benefit is needed by the United States,
permission to construct or use a road across lands and across assignable
easements owned by the United States and administered by the Forest
Service will be conditioned, except as provided in this section, for any
applicant who seeks a permit to construct or use a road across the same,
upon the grant to the United States of a reciprocal benefit. Such
benefit shall bear:
(1) A reasonable relation to the management of lands administered by
the Forest Service; and
(2) A value substantially similar to the value of the estate or
interest in lands or easements applied for. In those instances where the
values of the interests needed by the United States exceed those applied
for by the applicant, the additional interests required by the United
States will be acquired as provided in Sec. 212.7(b) and (c). Where
values needed by the applicant exceed those needed by the United States,
the difference in values will be determined under principles set forth
below and in Secs. 212.5(c) and 212.9. If a reciprocal benefit is
not needed by the United States, or the applicant shows good cause why
the reciprocal benefit needed by the United States cannot or should not
be granted by him, or the applicant declines to grant the reciprocal
benefit requested by the United States or if a bona fide emergency
exists, permission to construct or use a road across lands owned by the
United States may be conditioned for any applicant upon reasonable
charges and all other terms and conditions required by the Chief to
protect the interests of the United States. Permits for such road
construction or use will be non-exclusive and will be conditioned upon
compliance with their terms and conditions and with the rules and
regulations governing the protection and administration of the lands and
those applicable to such roads.
(b) [Reserved]
(c) Replacement of prior grants. (1) Upon application to the Chief,
an easement under the Act of March 3, 1899 (30 Stat. 1233, 16 U.S.C.
525), shall be replaced by an easement under paragraph (d) of this
section.
(2) Upon application to the Chief, an easement shall be granted
under paragraph (d) of this section as a replacement for any
stipulations for ingress and egress issued under the Act of June 4, 1897
or permit or other document evidencing the applicant's right to use a
road: Provided, The applicant has met the requirements for obtaining
such easement as set forth in paragraph (d) of this section.
(d) Easements for roads crossing lands or easements administered by
the Forest Service. (1) Applications for permanent or temporary
easements for specified periods or otherwise to be granted under the Act
of October 13, 1964 (78 Stat. 1039, 16 U.S.C. 533), over lands or
easements administered by the Forest Service, or over roads thereon will
be approved by the Chief for those applicants who have conveyed or
provided appropriate easements over roads, assignable easements and
lands owned or controlled by them to the United States of America and
its assigns and who have already constructed, or will, as scheduled by
agreement, construct their proportionate share of the road or road
system of which the segments described in the application are parts. The
Chief, after approval of the application and the grant of the easement,
will cause the same to be entered in the records of the Forest Service,
and delivered to the applicant.
[[Page 22]]
(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 Sec. etary of the Interior.
(5) The Chief may terminate any easement granted under the
provisions of the Act of October 13, 1964 (78 Stat. 1089, 16 U.S.C.
534),
(i) By consent of the owner of the easement,
(ii) By condemnation, or
(iii) Upon abandonment after nonuse by the owner of the easement for
a period of 5 years. Before any easement is terminated for nonuse or
abandonment, the owner of the easement must be given notice and, upon
his request made within 60 days after receipt of the notice, a hearing
in accordance with the provisions of 36 CFR part 211, subpart B.
(25 Stat. 357, 26 Stat. 1103, 30 Stat. 35-36, 1233, 38 Stat. 430, 46
Stat. 1421, 64 Stat. 82, 72 Stat. 885, as amended, 74 Stat. 215, 78
Stat. 1089; 16 U.S.C. 471, 478, 498, 525, 528-531, 532, 538, 551, 572,
23 U.S.C. 101, 205, 40 U.S.C. 257, 258a et seq.; 42 Atty. Gen. Op. No.
7; Comp. Gen. B-65972, May 19, 1947; 40 Comp. Gen. 372; 41 Comp. Gen. 1;
41 Comp. Gen. 576, and 42 Comp. Gen. 590)
[30 FR 5476, Apr. 16, 1965, as amended at 39 FR 27650, July 31, 1974; 48
FR 28638, June 23, 1983. Redesignated and amended at 62 FR 58654, Oct.
30, 1997]
Sec. 212.9 Principles for sharing use of roads.
The use of roads under arrangements for sharing costs or performance
shall be in accordance with the following:
(a) Road improvement. Use of a road for commercial hauling, except
occasional or minor amounts, will be conditioned upon improvement or
supplemental construction of the road to safety and economically serve
the contemplated use, unless the Chief determines that the safety and
economy of the established and foreseeable use by the United States, its
users and cooperators will not be impaired by the use for which
application is being made. With the consent of the Chief the applicant
may deposit funds in the estimated amount required for the improvements
or supplemental construction in lieu of performance. Such funds will be
used by the Forest Service to do the planned work. The cost of the
improvements or supplemental construction will be taken into account in
determining any otherwise required contribution to cover the
proportionate share of the cost of road acquisition, construction,
reconstruction or improvement attributable to the use.
(b) Corresponding benefits. Corresponding benefits which may be
accepted by the Chief for sharing road use will be those which bear a
reasonable relation to the management of lands administered by the
Forest Service. They may be in the form of:
(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;
[[Page 23]]
(2) The grant of a reciprocal right of substantially similar value
to the road use sought;
(3) Construction, reconstruction, or improvement by applicant of a
road needed for access to and use of lands administered by the Forest
Service; or (4) any combination of these.
(c) Cost determinations for roads cooperatively constructed under
agreements. When roads are constructed under cooperative agreements to
meet mutual needs of the United States and others for access,
determinations of the shares of costs to be borne by the United States
and the cooperating parties will include consideration of:
(1) The standard of road required for the planned hauling;
(2) The share of planned use;
(3) The location and volume of tributary timber owned by each party
and expected to be hauled over the road or roads;
(4) The tributary areas owned or controlled by each party;
(5) Expected use by the public; and
(6) Other appropriate considerations.
(d) Cost recovery by the United States from others. When roads are
used under permit for commercial hauling instead of under cooperative
agreement, any cost to be recovered by the United States will be
calculated in proportion to the planned use of the road. The road cost
used in such calculation will be the amount or estimated amount expended
in the acquisition, construction, reconstruction, and improvement of
that capacity of the road required to serve the use needs of all parties
that are or reasonably can be expected to use the road. The road costs
shall not exceed the replacement value of the road. Such road share-cost
payments will be through deposits in advance of use unless the user
provides a payment bond satisfactory to the Chief guaranteeing that
payments will be made promptly upon billing by the Forest Service.
(e) Cost sharing with a cooperator. The costs to achieve the agreed
upon road or road system may be met by:
(1) Use of appropriated funds;
(2) Construction, reconstruction, or improvement of roads or
segments of roads by purchasers of products from lands administered by
the Forest Service or other users;
(3) Use of deposits made by cooperator with the Forest Service to
cover cooperator's agreed share;
(4) Agreement with cooperator pursuant to which cooperator does more
than his agreed share of constructing, reconstructing, or improving a
road and recovers costs incurred in excess of his agreed share by
charging purchasers of products from lands administered by the Forest
Service an equitable amount within the limits and to the total amount
specified in the agreement; or
(5) A combination of the aforementioned methods.
(f) Road maintenance and resurfacing. Cooperators will share the
road maintenance and resurfacing costs under suitable agreements to
perform, arrange for performance by others, or by making deposits with
the Forest Service which will be used to pay the cost of work necessary
to keep such roads in satisfactory condition commensurate with use
requirements of each cooperator. No cooperator shall be required to
perform or bear such costs other than those occasioned by its individual
use. Other users will bear costs in accordance with Sec. 212.5(d).
(g) Interests to be acquired by the United States in roads or
easements therefor. Where the United States is to bear or share the cost
of constructing or improving, or acquiring a road system, a road, or a
segment thereof, or acquires an easement therefor, the interest acquired
will:
(1) Be for perpetual use unless the road use falls within the
limited classes where temporary roads or roads for limited periods are
acceptable;
(2) Provide adequately for foreseeable management, protection, and
utilization needs of lands administered by the Forest Service and
intermingled and adjacent private and public lands and for the use and
development of the resources upon which communities within or adjacent
to the National Forest are dependent; and
(3) not be subject to conditions, reservations, or convenants
unrelated to the road use, or which seek or might
[[Page 24]]
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 are
to be constructed at a higher standard than the standard--consistent
with applicable environmental laws and regulations--that is sufficient
for harvesting and removal of National Forest timber and other products
covered by a particular sale, the purchaser of the timber and other
products shall not be required to bear the part of the cost necessary to
meet the higher standard, and the Chief may make such arrangements to
achieve this end as may be appropriate.
(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; 70 FR 68288, Nov. 9, 2005]
Sec. 212.11-212.19 [Reserved]
Sec. 212.20 [Reserved]
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 Sec. etary of the Interior. The use of motorized
vehicles may be authorized by the Federal Agency administering the
segment of trail involved when use of such vehicles is necessary to meet
emergencies or to enable landowners or land users to have reasonable
access to their lands or timber rights.
(82 Stat. 919 (16 U.S.C. 1241 et seq.))
[43 FR 20007, May 10, 1978]
Subpart B_Designation of Roads, Trails, and Areas for Motor Vehicle Use
Authority: 7 U.S.C. 1011(f), 16 U.S.C. 551, E.O. 11644, 11989 (42 FR
26959).
Source: 70 FR 68288, Nov. 9, 2005, unless otherwise noted.
Sec. 212.50 Purpose, scope, and definitions.
(a) Purpose. This subpart provides for a system of National Forest
System roads, National Forest System trails, and areas on National
Forest System lands that are designated for motor vehicle use. After
these roads, trails, and areas are designated, motor vehicle use,
including the class of vehicle and time of year, not in accordance with
[[Page 25]]
these designations is prohibited by 36 CFR 261.13. Motor vehicle use off
designated roads and trails and outside designated areas is prohibited
by 36 CFR 261.13.
(b) Scope. The responsible official may incorporate previous
administrative decisions regarding travel management made under other
authorities, including designations and prohibitions of motor vehicle
use, in designating National Forest System roads, National Forest System
trails, and areas on National Forest System lands for motor vehicle use
under this subpart.
(c) For definitions of terms used in this subpart, refer to Sec.
212.1 in subpart A of this part.
Sec. 212.51 Designation of roads, trails, and areas.
(a) General. Motor vehicle use on National Forest System roads, on
National Forest System trails, and in areas on National Forest System
lands shall be designated by vehicle class and, if appropriate, by time
of year by the responsible official on administrative units or Ranger
Districts of the National Forest System, provided that the following
vehicles and uses are exempted from these designations:
(1) Aircraft;
(2) Watercraft;
(3) Over-snow vehicles (see Sec. 212.81);
(4) Limited administrative use by the Forest Service;
(5) Use of any fire, military, emergency, or law enforcement vehicle
for emergency purposes;
(6) Authorized use of any combat or combat support vehicle for
national defense purposes;
(7) Law enforcement response to violations of law, including
pursuit; and
(8) Motor vehicle use that is specifically authorized under a
written authorization issued under Federal law or regulations.
(b) Motor vehicle use for dispersed camping or big game retrieval.
In designating routes, the responsible official may include in the
designation the limited use of motor vehicles within a specified
distance of certain designated routes, and if appropriate within
specified time periods, solely for the purposes of dispersed camping or
retrieval of a downed big game animal by an individual who has legally
taken that animal.
Sec. 212.52 Public involvement.
(a) General. The public shall be allowed to participate in the
designation of National Forest System roads, National Forest System
trails, and areas on National Forest System lands and revising those
designations pursuant to this subpart. Advance notice shall be given to
allow for public comment, consistent with agency procedures under the
National Environmental Policy Act, on proposed designations and
revisions. Public notice with no further public involvement is
sufficient if a National Forest or Ranger District has made previous
administrative decisions, under other authorities and including public
involvement, which restrict motor vehicle use over the entire National
Forest or Ranger District to designated routes and areas, and no change
is proposed to these previous decisions and designations.
(b) Absence of public involvement in temporary, emergency closures--
(1) General. Nothing in this section shall alter or limit the authority
to implement temporary, emergency closures pursuant to 36 CFR part 261,
subpart B, without advance public notice to provide short-term resource
protection or to protect public health and safety.
(2) Temporary, emergency closures based on a determination of
considerable adverse effects. If the responsible official determines
that motor vehicle use on a National Forest System road or National
Forest System trail or in an area on National Forest System lands is
directly causing or will directly cause considerable adverse effects on
public safety or soil, vegetation, wildlife, wildlife habitat, or
cultural resources associated with that road, trail, or area, the
responsible official shall immediately close that road, trail, or area
to motor vehicle use until the official determines that such adverse
effects have been mitigated or eliminated and that measures have been
implemented to prevent future recurrence. The responsible official shall
provide public notice of the closure pursuant to 36 CFR 261.51,
including
[[Page 26]]
reasons for the closure and the estimated duration of the closure, as
soon as practicable following the closure.
Sec. 212.53 Coordination with Federal, State, county, and other local
governmental entities and tribal governments.
The responsible official shall coordinate with appropriate Federal,
State, county, and other local governmental entities and tribal
governments when designating National Forest System roads, National
Forest System trails, and areas on National Forest System lands pursuant
to this subpart.
Sec. 212.54 Revision of designations.
Designations of National Forest System roads, National Forest System
trails, and areas on National Forest System lands pursuant to Sec.
212.51 may be revised as needed to meet changing conditions. Revisions
of designations shall be made in accordance with the requirements for
public involvement in Sec. 212.52, the requirements for coordination
with governmental entities in Sec. 212.53, and the criteria in Sec.
212.55, and shall be reflected on a motor vehicle use map pursuant to
Sec. 212.56.
Sec. 212.55 Criteria for designation of roads, trails, and areas.
(a) General criteria for designation of National Forest System
roads, National Forest System trails, and areas on National Forest
System lands. In designating National Forest System roads, National
Forest System trails, and areas on National Forest System lands for
motor vehicle use, the responsible official shall consider effects on
National Forest System natural and cultural resources, public safety,
provision of recreational opportunities, access needs, conflicts among
uses of National Forest System lands, the need for maintenance and
administration of roads, trails, and areas that would arise if the uses
under consideration are designated; and the availability of resources
for that maintenance and administration.
(b) Specific criteria for designation of trails and areas. In
addition to the criteria in paragraph (a) of this section, in
designating National Forest System trails and areas on National Forest
System lands, the responsible official shall consider effects on the
following, with the objective of minimizing:
(1) Damage to soil, watershed, vegetation, and other forest
resources;
(2) Harassment of wildlife and significant disruption of wildlife
habitats;
(3) Conflicts between motor vehicle use and existing or proposed
recreational uses of National Forest System lands or neighboring Federal
lands; and
(4) Conflicts among different classes of motor vehicle uses of
National Forest System lands or neighboring Federal lands.
In addition, the responsible official shall consider:
(5) Compatibility of motor vehicle use with existing conditions in
populated areas, taking into account sound, emissions, and other
factors.
(c) Specific criteria for designation of roads. In addition to the
criteria in paragraph (a) of this section, in designating National
Forest System roads, the responsible official shall consider:
(1) Speed, volume, composition, and distribution of traffic on
roads; and
(2) Compatibility of vehicle class with road geometry and road
surfacing.
(d) Rights of access. In making designations pursuant to this
subpart, the responsible official shall recognize:
(1) Valid existing rights; and
(2) The rights of use of National Forest System roads and National
Forest System trails under Sec. 212.6(b).
(e) Wilderness areas and primitive areas. National Forest System
roads, National Forest System trails, and areas on National Forest
System lands in wilderness areas or primitive areas shall not be
designated for motor vehicle use pursuant to this section, unless, in
the case of wilderness areas, motor vehicle use is authorized by the
applicable enabling legislation for those areas.
Sec. 212.56 Identification of designated roads, trails, and areas.
Designated roads, trails, and areas shall be identified on a motor
vehicle use map. Motor vehicle use maps shall be made available to the
public at the headquarters of corresponding administrative units and
Ranger Districts of the National Forest System and, as
[[Page 27]]
soon as practicable, on the website of corresponding administrative
units and Ranger Districts. The motor vehicle use maps shall specify the
classes of vehicles and, if appropriate, the times of year for which use
is designated.
Sec. 212.57 Monitoring of effects of motor vehicle use on designated roads
and trails and in designated areas.
For each administrative unit of the National Forest System, the
responsible official shall monitor the effects of motor vehicle use on
designated roads and trails and in designated areas under the
jurisdiction of that responsible official, consistent with the
applicable land management plan, as appropriate and feasible.
Subpart C_Use by Over-Snow Vehicles
Authority: 7 U.S.C. 1011(f), 16 U.S.C. 551, E.O. 11644, 11989 (42 FR
26959).
Source: 70 FR 68290, Nov. 9, 2005, unless otherwise noted.
Sec. 212.80 Purpose, scope, and definitions.
The purpose of this subpart is to provide for regulation of use by
over-snow vehicles on National Forest System roads and National Forest
System trails and in areas on National Forest System lands. For
definitions of terms used in this subpart, refer to Sec. 212.1 in
subpart A of this part.
Sec. 212.81 Use by over-snow vehicles.
(a) General. Use by over-snow vehicles on National Forest System
roads and National Forest System trails and in areas on National Forest
System lands may be allowed, restricted, or prohibited.
(b) Exemptions from restrictions and prohibitions. The following
uses are exempted from restrictions and prohibitions on use by over-snow
vehicles:
(1) Limited administrative use by the Forest Service;
(2) Use of any fire, military, emergency, or law enforcement vehicle
for emergency purposes;
(3) Authorized use of any combat or combat support vehicle for
national defense purposes;
(4) Law enforcement response to violations of law, including
pursuit; and
(5) Use by over-snow vehicles that is specifically authorized under
a written authorization issued under Federal law or regulations.
(c) Establishment of restrictions and prohibitions. If the
responsible official proposes restrictions or prohibitions on use by
over-snow vehicles under this subpart, the requirements governing
designation of National Forest System roads, National Forest System
trails, and areas on National Forest System lands in Secs. 212.52,
212.53, 212.54, 212.55, 212.56, and 212.57 shall apply to establishment
of those restrictions or prohibitions. In establishing restrictions or
prohibitions on use by over-snow vehicles, the responsible official
shall recognize the provisions concerning rights of access in sections
811(b) and 1110(a) of the Alaska National Interest Lands Conservation
Act (16 U.S.C. 3121(b) and 3170(a), respectively).
PART 213_ADMINISTRATION OF LANDS UNDER TITLE III OF THE
BANKHEAD-JONESFARM 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.
[[Page 28]]
(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]
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]
[[Page 29]]
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 Sec. etary'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. Sec. nd, 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
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 Sec. etary of Agriculture (USDA) or the
[[Page 30]]
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 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
[[Page 31]]
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:
(a) Proposed projects and activities implementing land and resource
management plans (Sec. 215.2) for which an environmental assessment
(EA) is prepared, except hazardous fuel reduction projects conducted
under provisions of the Healthy Forests Restoration Act (HFRA), as set
out at part 218, subpart A of this title.
(b) Proposed projects and activities described in a draft
environmental impact statement (DEIS) for which notice and comment
procedures are governed by 40 CFR parts 1500 through 1508, except
hazardous fuel reduction projects conducted under provisions of the
HFRA, as set out at part 218, subpart A, of this title.
(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.
[68 FR 33595, June 4, 2003, as amended at 69 FR 1533, Jan. 9, 2004]
[[Page 32]]
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).
(f) Hazardous fuel reduction projects conducted under the provisions
of section 105 of the HFRA, except as provided in part 218, subpart A,
of this title.
[68 FR 33595, June 4, 2003, as amended at 69 FR 1533, Jan. 9, 2004]
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 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
[[Page 33]]
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.
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.
(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.
[[Page 34]]
(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.
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 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.
[[Page 35]]
(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.
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..................................... Sec. etary 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 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.
[[Page 36]]
(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
(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.
[[Page 37]]
(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.
(i) Hazardous fuel reduction projects conducted under provisions of
the HFRA, as set out at part 218, subpart A, of this title.
[68 FR 33595, June 4, 2003, as amended at 69 FR 1533, Jan. 9, 2004]
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.
(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.
[[Page 38]]
(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.
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).
(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.
[[Page 39]]
(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:
(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,
[[Page 40]]
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 Sec. etary 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 Sec. etary of
Agriculture from exercising any statutory authority regarding the
protection, management, or administration of National Forest System
lands.
(b) Decisions of the Sec. etary 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
Sec. etary 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).
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
[[Page 41]]
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 necessary, 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.
(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:
[[Page 42]]
(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 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
[[Page 43]]
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 218_PREDECISIONAL ADMINISTRATIVE REVIEW PROCESSES--
Table of Contents
Subpart A_Predecisional Administrative Review Process for Hazardous Fuel
Reduction Projects Authorized by the Healthy Forests Restoration Act of
2003
Sec.
218.1 Purpose and scope.
218.2 Definitions.
218.3 Authorized hazardous fuel reduction projects subject to the
objection process.
218.4 Legal notice of objection process for proposed authorized
hazardous fuel reduction projects.
218.5 Reviewing officer.
218.6 Who may file an objection.
218.7 Filing an objection.
218.8 Objections set aside from review.
218.9 Objection time periods and process.
218.10 Resolution of objections.
218.11 Timing of authorized hazardous fuel reduction project decision.
218.12 Sec. etary's authority.
218.13 Judicial proceedings.
218.14 Information collection requirements.
218.15 Applicability and effective date.
Subpart B [Reserved]
Authority: Pub. L. 108-148, 117 Stat 1887 (Healthy Forests
Restoration Act of 2003).
Source: 69 FR 1533, Jan. 9, 2004, unless otherwise noted.
Sec. 218.1 Purpose and scope.
This subpart establishes a predecisional administrative review
(hereinafter referred to as ``objection'') process for proposed
authorized hazardous fuel reduction projects as defined in the Healthy
Forests Restoration Act of 2003 (HFRA). The objection process is the
sole means by which administrative review of a proposed authorized
hazardous fuel reduction project on National Forest System land may be
sought. This subpart identifies who may file objections to those
proposed authorized hazardous fuel reduction projects, the
responsibilities of the participants in an objection, and the procedures
that apply for review of the objection.
Sec. 218.2 Definitions.
Address--An individual's or organization's current physical mailing
address. An e-mail address is not sufficient.
Authorized hazardous fuel reduction project--A hazardous fuel
reduction project authorized by the HFRA.
Comments--Specific written comments related to a proposed authorized
hazardous fuel reduction project pursuant to the HFRA.
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).
Environmental Assessment (EA)--A 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).
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 approving hazardous fuel
reduction projects subject to this subpart.
Lead objector--For objections submitted with multiple individuals
and/or organizations listed, the individual or organization identified
to represent all other objectors for the purposes of communication,
written or otherwise, regarding the objection.
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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, water, 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.
Objection--The written document filed with a Reviewing Officer by an
individual or organization seeking predecisional administrative review
of a proposed authorized hazardous fuel reduction project as defined in
the Healthy Forests Restoration Act of 2003.
Objection period--The 30-calendar-day period following publication
of the legal notice in the newspaper of record of an environmental
assessment or final environmental impact statement for a proposed
authorized hazardous fuel reduction project during which an objection
may be filed with the Reviewing Officer.
Objection process--Those procedures established for predecisional
administrative review of proposed authorized hazardous fuel reduction
projects subject to the Healthy Forests Restoration Act of 2003.
Objector--An individual or organization filing an objection who
submitted comments specific to the proposed authorized hazardous fuel
reduction project during scoping or other opportunity for public comment
as described in the Healthy Forests Restoration Act of 2003. The use of
the term ``objector'' applies to all persons that meet eligibility
requirements associated with the filed objection.
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 approving proposed
authorized hazardous fuel reduction projects subject to this subpart.
Reviewing Officer--The USDA or Forest Service official having the
delegated authority and responsibility to review an objection filed
under this subpart. The Reviewing Officer is the next higher level
supervisor of the Responsible Official.
Sec. 218.3 Authorized hazardous fuel reduction projects subject to the objection
process.
Only authorized hazardous fuel reduction projects as defined by the
Healthy Forests Restoration Act of 2003, section 101(2), occurring on
National Forest System lands that have been analyzed in an environmental
assessment or environmental impact statement are subject to this
subpart. Authorized hazardous fuel reduction projects processed under
the provisions of the HFRA are not subject to the notice, comment, and
appeal provisions set forth in part 215 of this chapter.
Sec. 218.4 Legal notice of objection process for proposed authorized hazardous
fuel reduction projects.
(a) The Responsible Official shall promptly mail the final
environmental impact statement (FEIS) or the environmental assessment
(EA) to those who have previously requested to be included on the
proposed authorized hazardous fuel reduction project mailing list or are
known to have submitted specific written comments related to the
proposed authorized hazardous fuel reduction project during the
opportunity for public comment provided during preparation of the
environmental assessment or environmental impact statement.
(b) Upon completion and mailing of the FEIS or EA, legal notice of
the opportunity to object to a proposed authorized hazardous fuel
reduction project shall be published in the applicable newspaper of
record identified in paragraph (c) of this section for each National
Forest System unit. When the Chief is the Responsible Official, notice
shall also be published in the Federal Register. The legal notice shall:
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(1) Include the name of the proposed authorized hazardous fuel
reduction project and a concise description of the preferred
alternative, name and title of the Responsible Official, name of the
Forest and/or District on which the proposed authorized hazardous fuel
reduction project will occur, instructions for obtaining a copy of the
FEIS or EA, and instructions on how to obtain additional information on
the proposed authorized hazardous fuel reduction project.
(2) State that the proposed authorized hazardous fuel reduction
project is subject to the objection process pursuant to 36 CFR part 218,
subpart A, and include the following:
(i) Name and address of the Reviewing Officer with whom an objection
is to be filed. The notice shall specify a street, postal, fax, and e-
mail address, the acceptable format(s) for objections filed
electronically, and the Reviewing Officer's office business hours for
those filing hand-delivered objections.
(ii) A statement that objections will be accepted only from those
who have previously submitted written comments specific to the proposed
authorized hazardous fuel reduction project during scoping or other
opportunity for public comment (Sec. 218.6(a)).
(iii) 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 objection (Sec. 218.9(a)) and that those wishing to object
should not rely upon dates or timeframe information provided by any
other source. A specific date shall not be included in the legal notice.
(iv) A statement that an objection, including attachments, must be
filed (regular mail, fax, e-mail, hand-delivery, express delivery, or
messenger service) with the appropriate Reviewing Officer (Sec. 218.7)
within 30 days of the date of publication of the legal notice for the
objection process. Incorporation of documents by reference shall not be
allowed.
(v) A statement describing the minimum content requirements of an
objection (Sec. 218.7(b)-(c)).
(vi) A statement that the proposed authorized hazardous fuel
reduction project is not subject to the notice, comment, and appeal
procedures found at part 215 of this chapter (Sec. 218.3).
(c) Publication. 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 notice required by
this subpart.
Sec. 218.5 Reviewing officer.
The Reviewing Officer determines procedures to be used for
processing objections when the procedures are not specifically described
in this subpart, including such procedures as needed to be compatible to
the extent practicable, with the administrative review processes of
other Federal agencies, for authorized hazardous fuel reduction projects
proposed jointly with other agencies. Such determinations are not
subject to further administrative review.
Sec. 218.6 Who may file an objection.
(a) Individuals and organizations who have submitted specific
written comments related to the proposed authorized hazardous fuel
reduction project during the opportunity for public comment provided
during preparation of an environmental assessment or environmental
impact statement for the proposed authorized hazardous fuel reduction
project as characterized in section 104(g) of the HFRA may file an
objection. For proposed authorized hazardous fuel reduction projects
described in a draft environmental impact statement, such opportunity
for public comment will be fulfilled by the comment procedures set forth
in 40 CFR 1506.10. For proposed authorized hazardous fuel reduction
projects described in an environmental assessment, such opportunity for
public comment will be fulfilled during scoping or other public
involvement opportunities as environmental assessments are not
circulated for public comment in draft form.
(b) 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 objection eligibility
requirements solely on the basis of membership in an organization. A
member or an individual
[[Page 46]]
must submit comments independently in order to be eligible to file an
objection in an individual capacity.
(c) When an objection lists multiple individuals or organizations,
each individual or organization shall meet the requirements of paragraph
(a) of this section. Individuals or organizations listed on an objection
that do not meet eligibility requirements shall not be considered
objectors. Objections from individuals or organizations that do not meet
the requirements of paragraph (a) shall not be accepted. This shall be
documented in the objection record.
(d) Federal agencies may not file objections.
(e) Federal employees who otherwise meet the requirements of this
subpart for filing objections 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 objection. Further, employees shall
not incorporate information unavailable to the public, such as Federal
agency documents that are exempt from disclosure under the Freedom of
Information Act (5 U.S.C. 552 (b)).
Sec. 218.7 Filing an objection.
(a) Objections must be filed with the Reviewing Officer in writing.
All objections shall be open to public inspection during the objection
process.
(b) It is the objector's responsibility to provide sufficient
narrative description of those aspects of the proposed authorized
hazardous fuel reduction project addressed by the objection, specific
issues related to the proposed authorized hazardous fuel reduction
project, and suggested remedies which would resolve the objection.
(c) Incorporation of documents by reference shall not be allowed.
(d) At a minimum, an objection must include the following:
(1) Objector's name and address (Sec. 218.2), 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 objection);
(3) When multiple names are listed on an objection, identification
of the lead objector (Sec. 218.2). Verification of the identity of the
lead objector shall be provided upon request;
(4) The name of the proposed authorized hazardous fuel reduction
project, the name and title of the Responsible Official, and the name(s)
of the National Forest(s) and/or Ranger District(s) on which the
proposed authorized hazardous fuel reduction project will be
implemented.
Sec. 218.8 Objections set aside from review.
(a) The Reviewing Officer shall set aside and not review an
objection when one or more of the following applies:
(1) Objections are not filed in a timely manner (Sec.
218.4(b)(2)(iv), Sec. 218.9(c)).
(2) The proposed project is not subject to the objection procedures
of this subpart (Sec. 218.3).
(3) The individual or organization did not submit written comments
during scoping or other opportunity for public comment (Sec. 218.6(a)).
(4) The objection does not provide sufficient information as
required by Sec. 218.7(b) through (d) for the Reviewing Officer to
review.
(5) The objector withdraws the objection.
(6) An objector'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 (Sec. 218.7(c)(1)).
(7) The objection is illegible for any reason, including submissions
in an electronic format different from that specified in the legal
notice.
(b) The Reviewing Officer shall give written notice to the objector
and the Responsible Official when an objection is set aside from review
and shall state the reasons for not reviewing the objection. If the
objection is set aside from review for reasons of illegibility or lack
of a means of contact, the reasons shall be documented in the project
record.
[[Page 47]]
Sec. 218.9 Objection time periods and process.
(a) Time to file an objection. Written objections, including any
attachments, must be filed with the Reviewing Officer within 30 days
following the publication date of the legal notice of the EA or FEIS in
the newspaper of record (Sec. 218.4(b)). It is the responsibility of
objectors to ensure that their objection 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
as stated in the legal notice or to the end of the calendar day (11:59
p.m.) for objections filed by electronic means such as e-mail or
facsimile machine.
(2) The day after publication of the legal notice for this subpart
of the EA or FEIS in the newspaper of record (Sec. 218.4(b)) is the
first day of the objection-filing period.
(3) The publication date of the legal notice of the EA or FEIS in
the newspaper of record is the exclusive means for calculating the time
to file an objection. Objectors may not rely on dates or timeframe
information provided by any other source.
(c) Evidence of timely filing. Timeliness shall be determined by:
(1) The date of the postmark, e-mail, fax, or other means of filing
(for example, express delivery service) of an objection and any
attachment;
(2) The time and date imprint at the correct Reviewing Officer's
office on a hand-delivered objection and any attachments; or
(3) When an objection is electronically mailed, the objector should
normally receive an automated electronic acknowledgment from the agency
as confirmation of receipt. If the objector does not receive an
automated acknowledgment of the receipt of the objection, it is the
objector's responsibility to ensure timely receipt by other means.
(d) Extensions. Time extensions are not permitted.
(e) Other timeframes. The Reviewing Officer shall issue a written
response to the objector(s) concerning their objection(s) within 30 days
following the end of the objection-filing period.
Sec. 218.10 Resolution of objections.
(a) Meetings. Prior to the issuance of the Reviewing Officer's
written response, either the Reviewing Officer or the objector may
request to meet to discuss issues raised in the objection and potential
resolution. The Reviewing Officer has the discretion to determine
whether or not adequate time remains in the review period to make a
meeting with the objector practical. All meetings are open to the
public.
(b) Response to objections. (1) A written response shall set forth
the reasons for the response, but need not be a point-by-point review,
and may contain instructions to the Responsible Official, if necessary.
In cases involving more than one objection to a proposed authorized
hazardous fuel reduction project, the Reviewing Officer may consolidate
objections and issue one or more responses.
(2) There shall be no further review from any other Forest Service
or USDA official of the Reviewing Officer's written response to an
objection.
Sec. 218.11 Timing of authorized hazardous fuel reduction project decision.
(a) The Responsible Official may not issue a Record of Decision
(ROD) or Decision Notice (DN) concerning an authorized hazardous fuel
reduction project subject to the provisions of this subpart until the
Reviewing Officer has responded to all pending objections.
(b) When no objection is filed within the 30-day time period, the
Reviewing Officer shall notify the Responsible Official, and approval of
the authorized hazardous fuel reduction project in a Record of Decision
or Decision Notice may occur on, but not before, the fifth business day
following the end of the objection-filing period.
Sec. 218.12 Secretary's authority.
(a) Nothing in this section shall restrict the Sec. etary of
Agriculture from exercising any statutory authority regarding the
protection, management, or administration of National Forest System
lands.
[[Page 48]]
(b) Authorized hazardous fuel reduction projects proposed by the
Sec. etary of Agriculture or the Under Secretary, Natural Resources and
Environment are not subject to the procedures set forth in this subpart.
A decision by the Sec. etary or Under Secretary constitutes the final
administrative determination of the Department of Agriculture.
Sec. 218.13 Judicial proceedings.
The objection process set forth in this subpart fully implements
Congress' design for a predecisional administrative review process for
proposed hazardous fuel reduction projects authorized by the HFRA. These
procedures present a full and fair opportunity for concerns to be raised
and considered on a project-by-project basis. Individuals and groups
must structure their participation so as to alert the local agency
officials making particular land management decisions of their positions
and contentions. Further, any filing for Federal judicial review of an
authorized hazardous fuel reduction project is premature and
inappropriate unless the plaintiff has submitted specific written
comments relating to the proposed action during scoping or other
opportunity for public comment as prescribed by the HFRA, and the
plaintiff has challenged the authorized hazardous fuel reduction project
by exhausting the administrative review process set out in this subpart.
Further, judicial review of hazardous fuel reduction projects that are
subject to these procedures is strictly limited to those issues raised
by the plaintiff's submission during the objection process, except in
exceptional circumstances such as where significant new information
bearing on a specific claim only becomes available after conclusion of
the administrative review.
Sec. 218.14 Information collection requirements.
The rules of this subpart specify the information that objectors
must provide in an objection to a proposed authorized hazardous fuel
reduction project as defined in the HFRA (Sec. 218.7). As such, these
rules contain information collection requirements as defined in 5 CFR
part 1320. These information requirements are assigned OMB Control
Number 0596-0172.
Sec. 218.15 Applicability and effective date.
The provisions of this subpart are effective as of January 9, 2004
and apply to all proposed authorized hazardous fuel reduction projects
conducted under the provisions of the HFRA for which scoping begins on
or after January 9, 2004.
Subpart B [Reserved]
PART 219_PLANNING--Table of Contents
Subpart A_National Forest System Land Management Planning
Sec.
219.1 Purpose and applicability.
219.2 Levels of planning and planning authority.
219.3 Nature of land management planning.
219.4 National Environmental Policy Act compliance.
219.5 Environmental management systems.
219.6 Evaluations and monitoring.
219.7 Developing, amending, or revising a plan.
219.8 Application of a new plan, plan amendment, or plan revision.
219.9 Public participation, collaboration, and notification.
219.10 Sustainability.
219.11 Role of science in planning.
219.12 Suitable uses and provisions required by NFMA.
219.13 Objections to plans, plan amendments, or plan revisions.
219.14 Effective dates and transition.
219.15 Severability.
219.16 Definitions.
Subpart B [Reserved]
Subpart A_National Forest System Land and Resource Management Planning
Authority: 5 U.S.C. 301; 16 U.S.C. 1604, 1613.
Source: 70 FR 1055, Jan. 5, 2005, unless otherwise noted.
Sec. 219.1 Purpose and applicability.
(a) The rules of this subpart set forth a process for land
management planning, including the process for developing, amending, and
revising land
[[Page 49]]
management plans (also referred to as plans) for the National Forest
System, as required by the Forest and Rangeland Renewable Resources
Planning Act of 1974, as amended by the National Forest Management Act
of 1976 (16 U.S.C. 1600 et seq.), hereinafter referred to as NFMA. This
subpart also describes the nature and scope of plans and sets forth the
required components of a plan. This subpart is applicable to all units
of the National Forest System as defined by 16 U.S.C. 1609 or subsequent
statute.
(b) Consistent with the Multiple-Use Sustained-Yield Act of 1960 (16
U.S.C. 528-531), the overall goal of managing the National Forest System
is to sustain the multiple uses of its renewable resources in perpetuity
while maintaining the long-term productivity of the land. Resources are
to be managed so they are utilized in the combination that will best
meet the needs of the American people. Maintaining or restoring the
health of the land enables the National Forest System to provide a
sustainable flow of uses, benefits, products, services, and visitor
opportunities.
(c) The Chief of the Forest Service shall establish planning
procedures for this subpart for plan development, plan amendment, or
plan revision in the Forest Service Directive System.
Sec. 219.2 Levels of planning and planning authority.
Planning occurs at multiple organizational levels and geographic
areas.
(a) National. The Chief of the Forest Service is responsible for
national planning, such as preparation of the Forest Service Strategic
Plan required under the Government Performance and Results Act of 1993
(5 U.S.C. 306; 31 U.S.C. 1115-1119; 31 U.S.C. 9703-9704), which is
integrated with the requirements of the Forest and Rangeland Renewable
Resources Planning Act of 1974, as amended by the NFMA. The Strategic
Plan establishes goals, objectives, performance measures, and strategies
for management of the National Forest System, as well as the other
Forest Service mission areas.
(b) Forest, grassland, prairie, or other comparable administrative
unit. (1) Land management plans provide broad guidance and information
for project and activity decisionmaking in a national forest, grassland,
prairie, or other comparable administrative unit. The Supervisor of the
National Forest, Grassland, Prairie, or other comparable administrative
unit is the Responsible Official for development and approval of a plan,
plan amendment, or plan revision for lands under the responsibility of
the Supervisor, unless a Regional Forester, the Chief, or the Sec. etary
chooses to act as the Responsible Official.
(2) When plans, plan amendments, or plan revisions are prepared for
more than one administrative unit, a unit Supervisor identified by the
Regional Forester, or the Regional Forester, the Chief, or the Sec. etary
may be the Responsible Official. Two or more Responsible Officials may
undertake joint planning over lands under their respective
jurisdictions.
(3) The appropriate Station Director must concur with that part of a
plan applicable to any experimental forest within the plan area.
(c) Projects and activities. The Supervisor or District Ranger is
the Responsible Official for project and activity decisions, unless a
higher-level official chooses to act as the Responsible Official.
Requirements for project or activity planning are established in the
Forest Service Directive System. Except as specifically provided, none
of the requirements of this subpart applies to projects or activities.
(d) Developing, amending, and revising plans--(1) Plan development.
If a new national forest, grassland, prairie, or other administrative
unit of the National Forest System is established, the Regional
Forester, or a forest, grassland, prairie, or other comparable unit
Supervisor identified by the Regional Forester must either develop a
plan for the unit or amend or revise an existing plan to apply to the
lands within the new unit.
(2) Plan amendment. The Responsible Official may amend a plan at any
time.
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(3) Plan revision. The Responsible Official must revise the plan if
the Responsible Official concludes that conditions within the plan area
have significantly changed. Unless otherwise provided by law, a plan
must be revised at least every 15 years.
Sec. 219.3 Nature of land management planning.
(a) Principles of land management planning. Land management planning
is an adaptive management process that includes social, economic, and
ecological evaluation; plan development, plan amendment, and plan
revision; and monitoring. The overall aim of planning is to produce
responsible land management for the National Forest System based on
useful and current information and guidance. Land management planning
guides the Forest Service in fulfilling its responsibilities for
stewardship of the National Forest System to best meet the needs of the
American people.
(b) Force and effect of plans. Plans developed in accordance with
this subpart generally contain desired conditions, objectives, and
guidance for project and activity decisionmaking in the plan area. Plans
do not grant, withhold, or modify any contract, permit, or other legal
instrument, subject anyone to civil or criminal liability, or create any
legal rights. Plans typically do not approve or execute projects and
activities. Decisions with effects that can be meaningfully evaluated
(40 CFR 1508.23) typically are made when projects and activities are
approved.
Sec. 219.4 National Environmental Policy Act compliance.
(a) In accordance with 16 U.S.C. 1604(g)(1) this subpart clarifies
how the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4346)
(hereinafter referred to as NEPA) applies to National Forest System land
management planning.
(b) Approval of a plan, plan amendment, or plan revision, under the
authority of this subpart, will be done in accordance with the Forest
Service NEPA procedures and may be categorically excluded from NEPA
documentation under an appropriate category provided in such procedures.
(c) Nothing in this subpart alters the application of NEPA to
proposed projects and activities.
(d) Monitoring and evaluations, including those required by Sec.
219.6, may be used or incorporated by reference, as appropriate, in
applicable NEPA documents.
Sec. 219.5 Environmental management systems.
The Responsible Official must establish an environmental management
system (EMS) for each unit of the National Forest System. The scope of
an EMS will include, at the minimum, the land management planning
process defined by this subpart. An EMS for any unit may include
environmental aspects unrelated to the land management planning process
under this subpart.
(a) Plan development, plan amendment, or plan revision must be
completed in accordance with the EMS and Sec. 219.14. An EMS may be
established independently of the planning process.
(b) The EMS must conform to the consensus standard developed by the
International Organization for Standardization (ISO) and adopted by the
American National Standards Institute (ANSI) as ``ISO 14001:
Environmental Management Systems--Specification With Guidance For Use''
(ISO 14001). The ISO 14001 describes EMSs and outlines the elements of
an EMS. The ISO 14001 is available from the ANSI website at http://
webstore.ansi.org/ansidocstore/default.asp.
(c) Pursuant to Sec. 219.1(c), the Chief of the Forest Service
shall establish procedures in the Forest Service Directive System to
ensure that appropriate EMSs are in place. The Responsible Official may
determine whether and how to change and improve an EMS for the plan
area, consistent with applicable Forest Service Directive System
procedures.
Sec. 219.6 Evaluations and monitoring.
(a) Evaluations. The Responsible Official shall keep the Plan Set of
Documents up to date with evaluation reports, which will reflect
changing conditions, science, and other relevant information. The
following three types of
[[Page 51]]
evaluations are required for land management planning: comprehensive
evaluations for plan development and revision, evaluations for plan
amendment, and annual evaluations of monitoring information. The
Responsible Official shall document evaluations in evaluation reports,
make these reports available to the public as required in Sec. 219.9,
and include these reports in the Plan Set of Documents (Sec.
219.7(a)(1)). Evaluations under this section should be commensurate to
the level of risk or benefit associated with the nature and level of
expected management activities in the plan area.
(1) Comprehensive evaluations. These evaluate current social,
economic, and ecological conditions and trends that contribute to
sustainability, as described in Sec. 219.10. Comprehensive evaluations
and comprehensive evaluation reports must be updated at least every five
years to reflect any substantial changes in conditions and trends since
the last comprehensive evaluation. The Responsible Official must ensure
that comprehensive evaluations, including any updates necessary, include
the following elements:
(i) Area of analysis. The area(s) of analysis must be clearly
identified.
(ii) Conditions and trends. The current social, economic, and
ecological conditions and trends and substantial changes from previously
identified conditions and trends must be described based on available
information, including monitoring information, surveys, assessments,
analyses, and other studies as appropriate. Evaluations may build upon
existing studies and evaluations.
(2) Evaluation for a plan amendment. An evaluation for a plan
amendment must analyze the issues relevant to the purposes of the
amendment and may use the information in comprehensive evaluations
relevant to the plan amendment. When a plan amendment is made
contemporaneously with, and only applies to, a project or activity
decision, the analysis prepared for the project or activity satisfies
the requirements for an evaluation for an amendment.
(3) Annual evaluation of the monitoring information. Monitoring
results must be evaluated annually and in accordance with paragraph
(b)(2) of this section.
(b) Monitoring. The plan must describe the monitoring program for
the plan area. Monitoring information in the Plan Document or Set of
Documents may be changed and updated as appropriate, at any time. Such
changes and updates are administrative corrections (Sec. 219.7(b)) and
do not require a plan amendment or revision.
(1) The plan-monitoring program shall be developed with public
participation and take into account:
(i) Financial and technical capabilities;
(ii) Key social, economic, and ecological performance measures
relevant to the plan area: and
(iii) The best available science.
(2) The plan-monitoring program shall provide for:
(i) Monitoring to determine whether plan implementation is achieving
multiple use objectives;
(ii) Monitoring to determine the effects of the various resource
management activities within the plan area on the productivity of the
land;
(iii) Monitoring of the degree to which on-the-ground management is
maintaining or making progress toward the desired conditions and
objectives for the plan; and
(iv) Adjustment of the monitoring program as appropriate to account
for unanticipated changes in conditions.
(3) The Responsible Official may conduct monitoring jointly with
others, including but not limited to, Forest Service units, Federal,
State or local government agencies, federally recognized Indian Tribes,
and members of the public.
Sec. 219.7 Developing, amending, or revising a plan.
(a) General planning requirements--(1) Plan Documents or Set of
Documents. The Responsible Official must maintain a Plan Document or Set
of Documents for the plan. A Plan Document or Set of Documents includes,
but is not limited to, evaluation reports; documentation of public
involvement; the plan, including applicable maps; applicable plan
approval documents; applicable NEPA documents, if any; the monitoring
program for the plan area; and
[[Page 52]]
documents relating to the EMS established for the unit.
(2) Plan components. Plan components may apply to all or part of the
plan area. A plan should include the following components:
(i) Desired conditions. Desired conditions are the social, economic,
and ecological attributes toward which management of the land and
resources of the plan area is to be directed. Desired conditions are
aspirations and are not commitments or final decisions approving
projects and activities, and may be achievable only over a long time
period.
(ii) Objectives. Objectives are concise projections of measurable,
time-specific intended outcomes. The objectives for a plan are the means
of measuring progress toward achieving or maintaining desired
conditions. Like desired conditions, objectives are aspirations and are
not commitments or final decisions approving projects and activities.
(iii) Guidelines. Guidelines provide information and guidance for
project and activity decisionmaking to help achieve desired conditions
and objectives. Guidelines are not commitments or final decisions
approving projects and activities.
(iv) Suitability of areas. Areas of each National Forest System unit
are identified as generally suitable for various uses (Sec. 219.12). An
area may be identified as generally suitable for uses that are
compatible with desired conditions and objectives for that area. The
identification of an area as generally suitable for a use is guidance
for project and activity decisionmaking and is not a commitment or a
final decision approving projects and activities. Uses of specific areas
are approved through project and activity decisionmaking.
(v) Special areas. Special areas are areas within the National
Forest System designated because of their unique or special
characteristics. Special areas such as botanical areas or significant
caves may be designated, by the Responsible Official in approving a
plan, plan amendment, or plan revision. Such designations are not final
decisions approving projects and activities. The plan may also recognize
special areas designated by statute or through a separate administrative
process in accordance with NEPA requirements (Sec. 219.4) and other
applicable laws.
(3) Changing plan components. Plan components may be changed through
plan amendment or revision, or through an administrative correction in
accordance with Sec. 219.7(b).
(4) Planning authorities. The Responsible Official has the
discretion to determine whether and how to change the plan, subject to
the requirement that the plan be revised at least every 15 years. A
decision by a Responsible Official about whether or not to initiate the
plan amendment or plan revision process and what issues to consider for
plan development, plan amendment, or plan revision is not subject to
objection under this subpart (Sec. 219.13).
(5) Plan process. (i) Required evaluation reports, plan, plan
amendments, and plan revisions must be prepared by an interdisciplinary
team; and
(ii) Unless otherwise provided by law, all National Forest System
lands possessing wilderness characteristics must be considered for
recommendation as potential wilderness areas during plan development or
revision.
(6) Developing plan options. In the collaborative and participatory
process of land management planning, the Responsible Official may use an
iterative approach in development of a plan, plan amendment, and plan
revision in which plan options are developed and narrowed successively.
The key steps in this process shall be documented in the Plan Set of
Documents.
(b) Administrative corrections. Administrative corrections may be
made at any time and are not plan amendments or revisions.
Administrative corrections include the following:
(1) Corrections and updates of data and maps;
(2) Corrections of typographical errors or other non-substantive
changes;
(3) Changes in the monitoring program and monitoring information
(Sec. 219.6(b));
(4) Changes in timber management projections; and
(5) Other changes in the Plan Document or Set of Documents, except
for substantive changes in the plan components.
[[Page 53]]
(c) Approval document. The Responsible Official must record approval
of a new plan, plan amendment, or plan revision in a plan approval
document, which must include:
(1) The rationale for the approval of the plan, plan amendment, or
plan revision;
(2) Concurrence by the appropriate Station Director with any part of
the plan applicable to any experimental forest within the plan area, in
accordance with Sec. 219.2(b)(3);
(3) A statement of how the plan, plan amendment, or plan revision
applies to approved projects and activities, in accordance with Sec.
219.8;
(4) Science documentation, in accordance with Sec. 219.11; and
(5) The effective date of the approval (Sec. 219.14(a)).
Sec. 219.8 Application of a new plan, plan amendment, or plan revision.
(a) Application of a new plan, plan amendment, or plan revision to
existing authorizations and approved projects or activities. (1) The
Responsible Official must include in any document approving a plan
amendment or revision a description of the effects of the plan, plan
amendments, or plan revision on existing occupancy and use, authorized
by permits, contracts, or other instruments implementing approved
projects and activities. If not expressly excepted, approved projects
and activities must be consistent with applicable plan components, as
provided in paragraph (e) of this section. Approved projects and
activities are those for which a Responsible Official has signed a
decision document.
(2) Any modifications of such permits, contracts, or other
instruments necessary to make them consistent with applicable plan
components as developed, amended, or revised are subject to valid
existing rights. Such modifications should be made as soon as
practicable following approval of a new plan, plan amendment, or plan
revision.
(b) Application of a new plan, plan amendment, or plan revision to
authorizations and projects or activities subsequent to plan approval.
Decisions approving projects and activities subsequent to approval of a
plan, plan amendment, or plan revision must be consistent with the plan
as provided in paragraph (e) of this section.
(c) Application of a plan. Plan provisions remain in effect until
the effective date of a new plan, plan amendment, or plan revision.
(d) Effect of new information on projects or activities. Although
new information will be considered in accordance with agency NEPA
procedures, nothing in this subpart requires automatic deferral,
suspension, or modification of approved decisions in light of new
information.
(e) Ensuring project or activity consistency with plans. Projects
and activities must be consistent with the applicable plan. If an
existing (paragraph (a) of this section) or proposed (paragraph (b) of
this section) use, project, or activity is not consistent with the
applicable plan, the Responsible Official may take one of the following
steps, subject to valid existing rights:
(1) Modify the project or activity to make it consistent with the
applicable plan components;
(2) Reject the proposal or terminate the project or activity,
subject to valid existing rights; or
(3) Amend the plan contemporaneously with the approval of the
project or activity so that it will be consistent with the plan as
amended. The amendment may be limited to apply only to the project or
activity.
Sec. 219.9 Public participation, collaboration, and notification.
The Responsible Official must use a collaborative and participatory
approach to land management planning, in accordance with this subpart
and consistent with applicable laws, regulations, and policies, by
engaging the skills and interests of appropriate combinations of Forest
Service staff, consultants, contractors, other Federal agencies,
federally recognized Indian Tribes, State or local governments, or other
interested or affected communities, groups, or persons.
(a) Providing opportunities for participation. The Responsible
Official must provide opportunities for the public to collaborate and
participate openly and meaningfully in the planning process, taking into
account the discrete and
[[Page 54]]
diverse roles, jurisdictions, and responsibilities of interested and
affected parties. Specifically, as part of plan development, plan
amendment, and plan revision, the Responsible Official shall involve the
public in developing and updating the comprehensive evaluation report,
establishing the components of the plan, and designing the monitoring
program. The Responsible Official has the discretion to determine the
methods and timing of public involvement opportunities.
(1) Engaging interested individuals and organizations. The
Responsible Official must provide for and encourage collaboration and
participation by interested individuals and organizations, including
private landowners whose lands are within, adjacent to, or otherwise
affected by future management actions within the plan area.
(2) Engaging State and local governments and Federal agencies. The
Responsible Official must provide opportunities for the coordination of
Forest Service planning efforts undertaken in accordance with this
subpart with those of other resource management agencies. The
Responsible Official also must meet with and provide early opportunities
for other government agencies to be involved, collaborate, and
participate in planning for National Forest System lands. The
Responsible Official should seek assistance, where appropriate, from
other State and local governments, Federal agencies, and scientific and
academic institutions to help address management issues or
opportunities.
(3) Engaging Tribal governments. The Forest Service recognizes the
Federal Government's trust responsibility for federally recognized
Indian Tribes. The Responsible Official must consult with, invite, and
provide opportunities for federally recognized Indian Tribes to
collaborate and participate in planning. In working with federally
recognized Indian Tribes, the Responsible Official must honor the
government-to-government relationship between Tribes and the Federal
Government.
(b) Public notification. The following public notification
requirements apply to plan development, amendment, or revision, except
when a plan amendment is approved contemporaneously with approval of a
project or activity and the amendment applies only to the project or
activity, in which case 36 CFR part 215 or part 218, subpart A, applies:
(1) When formal public notification is provided. Public notification
must be provided at the following times:
(i) Initiation of development of a plan, plan amendment, or plan
revision;
(ii) Commencement of the 90-day comment period on a proposed plan,
plan amendment, or plan revision;
(iii) Commencement of the 30-day objection period prior to approval
of a plan, plan amendment, or plan revision;
(iv) Approval of a plan, plan amendment, or plan revision; and
(v) Adjustment to conform to this subpart of a planning process for
a plan, plan amendment, or plan revision initiated under the provisions
of a previous planning regulation.
(2) How public notice is provided. Public notice must be provided in
the following manner:
(i) All required public notices applicable to a new plan, plan
revision, or adjustment of any ongoing plan revision as provided at
Sec. 219.14(e) must be published in the Federal Register and
newspaper(s) of record.
(ii) Required notifications that are associated with a plan
amendment or adjustment of any ongoing plan amendment as provided at
Sec. 219.14(e) and that apply to one plan must be published in the
newspaper(s) of record. Required notifications that are associated with
plan amendments and adjustment of any ongoing plan amendments (as
provided at Sec. 219.14(e)) and that apply to more than one plan must
be published in the Federal Register.
(iii) Public notification of evaluation reports and monitoring
program changes may be made in a manner deemed appropriate by the
Responsible Official.
(3) Content of the public notice. Public notices must contain the
following information:
(i) Content of the public notice for initiating a plan development,
plan amendment, or plan revision. The notice must inform the public of
the documents available for review and how to obtain
[[Page 55]]
them; provide a summary of the need to develop a plan or change a plan;
invite the public to comment on the need for change in a plan and to
identify any other need for change in a plan that they feel should be
addressed during the planning process; and provide an estimated schedule
for the planning process, including the time available for comments, and
inform the public how to submit comments.
(ii) Content of the public notice for a proposed plan, plan
amendment, or plan revision. The notice must inform the public of the
availability of the proposed plan, plan amendment, or plan revision,
including any relevant evaluation report; the commencement of the 90-day
comment period; and the process for submitting comments.
(iii) Content of the public notice for a plan, plan amendment, or
plan revision prior to approval. The notice must inform the public of
the availability of the plan, plan amendment, or plan revision; any
relevant evaluation report; and the commencement of the 30-day objection
period; and the process for objecting.
(iv) Content of the public notice for approval of a plan, plan
amendment, or plan revision. The notice must inform the public of the
availability of the approved plan, plan amendment, or plan revision, the
approval document, and the effective date of the approval (Sec.
219.14(a)).
(v) Content of the public notice for an adjustment to an ongoing
planning process. The notice must state how a planning process initiated
before the transition period (Sec. 219.14(b) and (e)) will be adjusted
to conform to this subpart.
Sec. 219.10 Sustainability.
Sustainability, for any unit of the National Forest System, has
three interrelated and interdependent elements: social, economic, and
ecological. A plan can contribute to sustainability by creating a
framework to guide on-the-ground management of projects and activities;
however, a plan by itself cannot ensure sustainability. Agency
authorities, the nature of a plan, and the capabilities of the plan area
are some of the factors that limit the extent to which a plan can
contribute to achieving sustainability.
(a) Sustaining social and economic systems. The overall goal of the
social and economic elements of sustainability is to contribute to
sustaining social and economic systems within the plan area. To
understand the social and economic contributions that National Forest
System lands presently make, and may make in the future, the Responsible
Official, in accordance with Sec. 219.6, must evaluate relevant
economic and social conditions and trends as appropriate during plan
development, plan amendment, or plan revision.
(b) Sustaining ecological systems. The overall goal of the
ecological element of sustainability is to provide a framework to
contribute to sustaining native ecological systems by providing
ecological conditions to support diversity of native plant and animal
species in the plan area. This will satisfy the statutory requirement to
provide for diversity of plant and animal communities based on the
suitability and capability of the specific land area in order to meet
overall multiple-use objectives (16 U.S.C. 1604(g)(3)(B)). Procedures
developed pursuant to Sec. 219.1(c) for sustaining ecological systems
must be consistent with the following:
(1) Ecosystem diversity. Ecosystem diversity is the primary means by
which a plan contributes to sustaining ecological systems. Plan
components must establish a framework to provide the characteristics of
ecosystem diversity in the plan area.
(2) Species diversity. If the Responsible Official determines that
provisions in plan components, in addition to those required by
paragraph (b)(1) of this section, are needed to provide appropriate
ecological conditions for specific threatened and endangered species,
species-of-concern, and species-of-interest, then the plan must include
additional provisions for these species, consistent with the limits of
agency authorities, the capability of the plan area, and overall
multiple use objectives.
Sec. 219.11 Role of science in planning.
(a) The Responsible Official must take into account the best
available science. For purposes of this subpart, taking into account the
best available
[[Page 56]]
science means the Responsible Official must:
(1) Document how the best available science was taken into account
in the planning process within the context of the issues being
considered;
(2) Evaluate and disclose substantial uncertainties in that science;
(3) Evaluate and disclose substantial risks associated with plan
components based on that science; and
(4) Document that the science was appropriately interpreted and
applied.
(b) To meet the requirements of paragraph (a) of this section, the
Responsible Official may use independent peer review, a science advisory
board, or other review methods to evaluate the consideration of science
in the planning process.
Sec. 219.12 Suitable uses and provisions required by NFMA.
(a) Suitable uses--(1) Identification of suitable land uses.
National Forest System lands are generally suitable for a variety of
multiple uses, such as outdoor recreation, range, timber, watershed, and
wildlife and fish purposes. The Responsible Official, as appropriate,
shall identify areas within a National Forest System unit as generally
suitable for uses that are compatible with desired conditions and
objectives for that area. Such identification is guidance for project
and activity decisionmaking, is not a permanent land designation, and is
subject to change through plan amendment or plan revision. Uses of
specific areas are approved through project and activity decisionmaking.
(2) Identification of lands not suitable for timber production. (i)
The Responsible Official must identify lands within the plan area as not
suitable for timber production (Sec. 219.16) if:
(A) Statute, Executive order, or regulation prohibits timber
production on the land; or
(B) The Sec. etary of Agriculture or the Chief of the Forest Service
has withdrawn the land from timber production; or
(C) The land is not forest land (as defined at Sec. 219.16); or
(D) Timber production would not be compatible with the achievement
of desired conditions and objectives established by the plan for those
lands.
(ii) This identification is not a final decision compelling,
approving, or prohibiting projects and activities. A final determination
of suitability for timber production is made through project and
activity decisionmaking. Salvage sales or other harvest necessary for
multiple-use objectives other than timber production may take place on
areas that are not suitable for timber production.
(b) NFMA requirements. (1) The Chief of the Forest Service must
include in the Forest Service Directive System procedures for estimating
the quantity of timber that can be removed annually in perpetuity on a
sustained-yield basis in accordance with 16 U.S.C. 1611.
(2) The Chief of the Forest Service must include in the Forest
Service Directive System procedures to ensure that plans include the
resource management guidelines required by 16 U.S.C. 1604(g)(3).
(3) Forest Service Directive System procedures adopted to fulfill
the requirements of this paragraph shall provide public involvement as
described in 36 CFR part 216.
Sec. 219.13 Objections to plans, plan amendments, or plan revisions.
(a) Opportunities to object. Before approving a plan, plan
amendment, or plan revision, the Responsible Official must provide the
public 30 calendar days for pre-decisional review and the opportunity to
object. Federal agencies may not object under this subpart. During the
30-day review period, any person or organization, other than a Federal
agency, who participated in the planning process through the submission
of written comments, may object to a plan, plan amendment, or plan
revision according to the procedures in this section, except in the
following circumstances:
(1) When a plan amendment is approved contemporaneously with a
project or activity decision and the plan amendment applies only to the
project or activity, in which case the administrative review process of
36 CFR part 215 or part 218, subpart A, applies instead of the objection
process established in this section; or
[[Page 57]]
(2) When the Responsible Official is an official in the Department
of Agriculture at a level higher than the Chief of the Forest Service,
in which case there is no opportunity for administrative review.
(b) Submitting objections. The objection must be in writing and must
be filed with the Reviewing Officer within 30 days following the
publication date of the legal notice in the newspaper of record of the
availability of the plan, plan amendment, or plan revision. Specific
details will be included in the Forest Service Directive System. An
objection must contain:
(1) The name, mailing address, and telephone number of the person or
entity filing the objection. Where a single objection is filed by more
than one person, the objection must indicate the lead objector to
contact. The Reviewing Officer may appoint the first name listed as the
lead objector to act on behalf of all parties to the single objection
when the single objection does not specify a lead objector. The
Reviewing Officer may communicate directly with the lead objector and is
not required to notify the other listed objectors of the objection
response or any other written correspondence related to the single
objection;
(2) A statement of the issues, the parts of the plan, plan
amendment, or plan revision to which the objection applies, and how the
objecting party would be adversely affected; and
(3) A concise statement explaining how the objector believes that
the plan, plan amendment, or plan revision is inconsistent with law,
regulation, or policy or how the objector disagrees with the decision
and providing any recommendations for change.
(c) Responding to objections. (1) The Reviewing Officer (Sec.
219.16) has the authority to make all procedural determinations related
to the objection not specifically explained in this subpart, including
those procedures necessary to ensure compatibility, to the extent
practicable, with the administrative review processes of other Federal
agencies. The Reviewing Officer must promptly render a written response
to the objection. The response must be sent to the objecting party by
certified mail, return receipt requested.
(2) The response of the Reviewing Officer shall be the final
decision of the Department of Agriculture on the objection.
(d) Use of other administrative review processes. Where the Forest
Service is a participant in a multi-Federal agency effort that would
otherwise be subject to objection under this subpart, the Reviewing
Officer may waive the objection procedures of this subpart and instead
adopt the administrative review procedure of another participating
Federal agency. As a condition of such a waiver, the Responsible
Official for the Forest Service must have agreement with the Responsible
Official of the other agency or agencies that a joint agency response
will be provided to those who file for administrative review of the
multi-agency effort.
(e) Compliance with the Paperwork Reduction Act. The information
collection requirements associated with submitting an objection have
been approved by the Office of Management and Budget and assigned
control number 0596-0158.
Sec. 219.14 Effective dates and transition.
(a) Effective dates. A plan, plan amendment, or plan revision is
effective 30 days after publication of notice of its approval (Sec.
219.9(b)), except when a plan amendment is approved contemporaneously
with a project or activity and applies only to the project or activity,
in which case 36 CFR part 215 or part 218, subpart A, apply.
(b) Transition period. For each unit of the National Forest System,
the transition period begins on January 5, 2005 and ends on the unit's
establishment of an EMS in accordance with Sec. 219.5 or on January 7,
2008 whichever comes first.
(c) Initiation of plans, plan amendments, or plan revisions. For the
purposes of this section, initiation means that the agency has provided
notice under Sec. 219.9(b) or issued a Notice of Intent or other public
notice announcing the commencement of the process to develop a plan,
plan amendment, or plan revision.
(d) Plan development, plan amendments, or plan revisions initiated
during the transition period. (1) Plan development and plan revisions
initiated after
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January 5, 2005 must conform to the requirements of this subpart, except
that the plan for the Tongass National Forest may be revised once under
this subpart or the planning regulations in effect before November 9,
2000.
(2) Plan amendments initiated during the transition period may
continue using the provisions of the planning regulations in effect
before November 9, 2000 (See 36 CFR parts 200 to 299, Revised as of July
1, 2000) or may conform to the requirements of this subpart if the
Responsible Official establishes an EMS in accordance with Sec. 219.5.
(3) Plan amendments initiated after the transition period must
conform to the requirements of this subpart.
(e) Plan development, plan amendments, or plan revisions previously
initiated. Plan development, plan amendments, or plan revisions
initiated before the transition period may continue to use the
provisions of the planning regulations in effect before November 9, 2000
(See 36 CFR parts 200 to 299, Revised as of July 1, 2000), or may
conform to the requirements of this subpart, in accordance with the
following:
(1) The Responsible Official is not required to halt the process and
start over. Rather, upon the unit's establishment of an EMS in
accordance with Sec. 219.5, the Responsible Official may apply this
subpart as appropriate to complete the plan development, plan amendment,
or plan revision process.
(2) The Responsible Official may elect to use either the
administrative appeal and review procedures at 36 CFR part 217 in effect
prior to November 9, 2000, (See 36 CFR parts 200 to 299, Revised as of
July 1, 2000), or the objection procedures of this subpart, except when
a plan amendment is approved contemporaneously with a project or
activity and applies only to the project or activity, in which case 36
CFR part 215 or part 218, subpart A, apply.
(f) Management indicator species. For units with plans developed,
amended, or revised using the provisions of the planning rule in effect
prior to November 9, 2000, the Responsible Official may comply with any
obligations relating to management indicator species by considering data
and analysis relating to habitat unless the plan specifically requires
population monitoring or population surveys for the species. Site-
specific monitoring or surveying of a proposed project or activity area
is not required, but may be conducted at the discretion of the
Responsible Official.
[70 FR 1055, Jan. 5, 2005, as amended at 71 FR 10838, Mar. 3, 2006]
Sec. 219.15 Severability.
In the event that any specific provision of this rule is deemed by a
court to be invalid, the remaining provisions shall remain in effect.
Sec. 219.16 Definitions.
Definitions of the special terms used in this subpart are set out in
alphabetical order.
Adaptive management: An approach to natural resource management
where actions are designed and executed and effects are monitored for
the purpose of learning and adjusting future management actions, which
improves the efficiency and responsiveness of management.
Area of analysis: The geographic area within which ecosystems, their
components, or their processes are evaluated during analysis and
development of one or more plans, plan revisions, or plan amendments.
This area may vary in size depending on the relevant planning issue. For
a plan, an area of analysis may be larger than a plan area. For
development of a plan amendment, an area of analysis may be smaller than
the plan area. An area of analysis may include multiple ownerships.
Diversity of plant and animal communities: The distribution and
relative abundance or extent of plant and animal communities and their
component species, including tree species, occurring within an area.
Ecological conditions: Components of the biological and physical
environment that can affect diversity of plant and animal communities
and the productive capacity of ecological systems. These components
could include the abundance and distribution of aquatic and terrestrial
habitats, roads and other structural developments, human uses, and
invasive, exotic species.
[[Page 59]]
Ecosystem diversity: The variety and relative extent of ecosystem
types, including their composition, structure, and processes within all
or a part of an area of analysis.
Environmental management system: The part of the overall management
system that includes organizational structure, planning activities,
responsibilities, practices, procedures, processes, and resources for
developing, implementing, achieving, reviewing, and maintaining the
environmental policy of the planning unit.
Federally recognized Indian Tribe: An Indian or Alaska Native Tribe,
band, nation, pueblo, village, or community that the Sec. etary of the
Interior acknowledges to exist as an Indian Tribe pursuant to the
Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
Forest land: Land at least 10 percent occupied by forest trees of
any size or formerly having had such tree cover and not currently
developed for nonforest uses. Lands developed for non-forest use include
areas for crops; improved pasture; residential or administrative areas;
improved roads of any width and adjoining road clearing; and power line
clearings of any width.
ISO 14001: A consensus standard developed by the International
Organization for Standardization and adopted by the American National
Standards Institute that describes environmental management systems and
outlines the elements of an environmental management system.
Newspaper(s) of record: The principal newspapers of general
circulation annually identified and published in the Federal Register by
each Regional Forester to be used for publishing notices as required by
36 CFR 215.5. The newspaper(s) of record for projects in a plan area is
(are) the newspaper(s) of record for notices related to planning.
Plan: A document or set of documents that integrates and displays
information relevant to management of a unit of the National Forest
System.
Plan area: The National Forest System lands covered by a plan.
Productivity: The capacity of National Forest System lands and their
ecological systems to provide the various renewable resources in certain
amounts in perpetuity. For the purposes of this subpart it is an
ecological, not an economic, term.
Public participation: Activities that include a wide range of public
involvement tools and processes, such as collaboration, public meetings,
open houses, workshops, and comment periods.
Responsible Official: The official with the authority and
responsibility to oversee the planning process and to approve plans,
plan amendments, and plan revisions.
Reviewing Officer: The supervisor of the Responsible Official. The
Reviewing Officer responds to objections made to a plan, plan amendment,
or plan revision prior to approval.
Species: Any member of the currently accepted and scientifically
defined plant or animal kingdoms of organisms.
Species-of-concern: Species for which the Responsible Official
determines that management actions may be necessary to prevent listing
under the Endangered Species Act.
Species-of-interest: Species for which the Responsible Official
determines that management actions may be necessary or desirable to
achieve ecological or other multiple use objectives.
Timber production: The purposeful growing, tending, harvesting, and
regeneration of regulated crops of trees to be cut into logs, bolts, or
other round sections for industrial or consumer use.
Visitor opportunities: The spectrum of settings, landscapes,
scenery, facilities, services, access points, information, learning-
based recreation, wildlife, natural features, cultural and heritage
sites, and so forth available for National Forest System visitors to use
and enjoy.
Wilderness: Any area of land designated by Congress as part of the
National Wilderness Preservation System that was established in the
Wilderness Act of 1964 (16 U.S.C. 1131-1136).
Subpart B [Reserved]
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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]
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.
[[Page 61]]
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 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.
[[Page 62]]
(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.
(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
[[Page 63]]
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.
(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.
[[Page 64]]
(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,
administration or other work being conducted. This may be authorized
without written permit.
(H) Paid permits to holders of grazing permits for breeding animals
used to service livestock permitted to graze on lands administered by
the Forest Service.
(I) Paid permits or cooperative agreements entered into as a
management tool to manipulate revegetation 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 Sec. etary 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.
[[Page 65]]
(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 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 Sec. etary and Treasurer must be
grazing permittees on the range allotment or allotments involved.
[[Page 66]]
(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 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
[[Page 67]]
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 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 Sec. etary 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 Sec. etary
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
[[Page 68]]
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
Sec. ion 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
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.
[[Page 69]]
(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 Sec. etary of Agriculture and the Secretary of the
Interior under the provisions of the Act.
(10) National Forest System includes the National Forests, National
Grasslands, and other Federal lands for which the Forest Service has
administrative jurisdiction.
(11) Old means a wild free-roaming horse or burro characterized by
inability to fend for itself because of age, physical deterioration,
suffering or closeness to death.
(12) Sick means a wild free-roaming horse or burro with failing
health, infirmness, or disease from which there is little chance of
recovery.
(13) Wild free-roaming horses and burros mean all unbranded and
unclaimed horses and burros and their progeny that have used lands of
the National Forest System on or after December 15, 1971, or do
hereafter use these lands as all or part of their habitat, but does not
include any horse or burro introduced onto the National Forest System on
or after December 15, 1971, by accident, negligence, or willful
disregard of private ownership. Unbranded, claimed horses and burros for
which the claim is found to be erroneous, are also considered as wild
and free-roaming if they meet the criteria above.
(14) Wild-horse and burro range means an area of National Forest
System specifically so designated by the Chief, Forest Service, from
wild horse and burro territory, for the purpose of sustaining an
existing herd or herds of wild free-roaming horses and burros, provided
the range does not exceed known territorial limits and is devoted
principally, but not necessarily exclusively, to the welfare of the wild
horses and burros, in keeping with the multiple-use management concept
for the National Forest System.
(15) Wild horse and burro territory means lands of the National
Forest System which are identified by the Chief, Forest Service, as
lands which were territorial habitat of wild free-roaming horses and/or
burros at the time of the passage of the Act.
Sec. 222.21 Administration of wild free-roaming horses and
burros and their environment.
(a) The Chief, Forest Service, shall:
(1) Administer wild free-roaming horses and burros and their progeny
on the National Forest System in the areas where they now occur (wild
horse and burro territory) to maintain a thriving ecological balance
considering
[[Page 70]]
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 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.
[[Page 71]]
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 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
[[Page 72]]
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.
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
[[Page 73]]
(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]
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.
[[Page 74]]
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 Sec. etary of the Interior and the
Sec. etary 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 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
[[Page 75]]
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 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]
[[Page 76]]
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 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
[[Page 77]]
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
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
[[Page 78]]
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 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.
[[Page 79]]
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.
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 specified road
construction.
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.
[[Page 80]]
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 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)
[[Page 81]]
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]
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 $200 in value in any
one fiscal year. Supervisors may grant permits for material not
exceeding $5,000 in value. Regional Foresters may approve permits for
larger amounts, and in times of emergency may delegate authority to
supervisors for not over $10,000 in value. Prior review by the Chief of
the Forest Service will be given if the amount involved exceeds $10,000
in value.
(b) Regional Foresters may authorize supervisors to permit the
removal of specific classes of material without scaling or measurement.
[42 FR 28252, June 2, 1977. Redesignated at 49 FR 2760-2761, Jan. 23,
1984, as amended at 71 FR 525, Jan. 4, 2006]
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 Sec. ion 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
[[Page 82]]
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)
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 Sec. ion
[[Page 83]]
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.
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
[[Page 84]]
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 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
[[Page 85]]
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 costs of $50,000 or more shall include
a provision to ensure that if the purchaser elects government road
construction, the purchaser shall pay, in addition to the price paid for
the timber or other forest products, an amount equal to the estimated
cost of the roads.
[71 FR 11510, Mar. 8, 2006]
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 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]
[[Page 86]]
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.
(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 Sec. etary'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.
[[Page 87]]
(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 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
[[Page 88]]
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 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
[[Page 89]]
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 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 service wide timber sale procedures, as
they appear necessary, to discourage speculative bidding.
[50 FR 41500, Oct. 11, 1985]
[[Page 90]]
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:
------------------------------------------------------------------------
BLS producer price index Index series Index code
------------------------------------------------------------------------
Hardwood Lumber..................... Commodity............ 0812
Softwood Lumber..................... Commodity............ 0811
Wood Chips.......................... Industry............. 3211135
------------------------------------------------------------------------
(ii) Preliminary index values will be revised when final index
values become available, however, determination of a qualifying quarter
will not be revised when final index values become available.
(2) For PPI index codes 0811 and 0812, the Chief of the Forest
Service shall determine that a drastic reduction in wood prices has
occurred when, for any 2 or more consecutive qualifying quarters, the
applicable adjusted price index is less than 88.5 percent of the average
of such index for the 4 highest of the 8 calendar quarters immediately
prior to the qualifying quarter. A qualifying quarter is a quarter,
following the contract award date, where the applicable adjusted index
is more than 11.5 percent below the average of such index for the 4
highest of the previous 8 calendar quarters. For PPI index code 3211135,
the Chief of the Forest Service shall determine that a drastic reduction
in wood prices has occurred when, for any 2 or more consecutive
qualifying quarters, the adjusted price index is less than 85 percent of
the average of such index for the 4 highest of the 8 calendar quarters
immediately prior to the qualifying quarter. A qualifying quarter is a
quarter, following the contract award date, where the adjusted index is
more than 15 percent below the average of such index for the 4 highest
of the previous eight calendar quarters. Qualifying quarter
determinations will be made using the Producer Price Indices for the
months of March, June, September, and December.
(3) A determination, made pursuant to paragraph (b)(2) of this
section, that a drastic reduction in wood product prices has occurred,
shall constitute a finding that the substantial overriding public
interest justifies the contract term addition.
(c) Granting market-related contract term additions. When the Chief
of the Forest Service determines, pursuant to this section, that a
drastic reduction in wood product prices has occurred, the Forest
Service is to notify affected timber sale purchasers. For any contract
which has been awarded and has not been terminated, the Forest Service,
upon a purchaser's written request, will add 1 year to the contract's
terms, except as provided in paragraphs (c)(1) through (4) of this
section. This 1-year addition includes time outside of the normal
operating season.
(1) Additional contract time may not be granted for those portions
of the contract which have a required completion date or for those
portions of the
[[Page 91]]
contract where the Forest Service determines that the timber is in need
of urgent removal or that timber deterioration or resource damage will
result from delay.
(2) For each additional consecutive quarter, in which a contract
qualifies for a market-related contract term addition, the Forest
Service will, upon the purchaser's written request, add an additional 3
months during the normal operating season to the contract.
(3) No more than twice the original contract length or 3 years,
whichever is less, shall be added to a contract's term by market-related
contract term addition.
(4) In no event shall a revised contract term exceed 10 years as a
result of market-related contract term additions.
(d) Recalculation of periodic payments. Where a contract is
lengthened as a result of market conditions, any subsequent periodic
payment dates shall be delayed 1 month for each month added to the
contract's term.
[63 FR 24114, May 1, 1998, as amended at 70 FR 37269, June 29, 2005; 71
FR 3411, Jan. 23, 2006]
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 National Forest System timber sale
contracts, 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. Contracting Officers may grant urgent removal
extensions only when the Regional Forester verifies in writing that:
(1) A specific catastrophe occurred for which urgent removal
extensions should be granted;
(2) 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 (green)
timber under contract with the Forest Service; and
(3) Failure to harvest the damaged non-National Forest System timber
promptly could result in the following:
(i) Pose a threat to public safety,
(ii) Create a threat of an insect or disease epidemic to National
Forest System or other lands or resources, or
(iii) Significant private or other public resource loss.
(c) Purchaser request. 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 undamaged (green) National
Forest System timber within the term of the existing National Forest
System contract(s) will prevent or otherwise impede the removal of
damaged non-National Forest System timber in need of expeditious
removal; and
(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.
(d) Contracting Officer determination. To grant an urgent removal
extension, the timber sale Contracting Officer must verify the
following:
[[Page 92]]
(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, including:
(i) That urgent removal extension does not adversely affect other
resource management objectives to be implemented by the National Forest
System timber sale being extended; and
(ii) 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.
(3) That the purchaser has not been granted a previous urgent
removal extension on the same National Forest System timber sale
contract based on the current catastrophic event. Subsequent urgent
removal extensions may be granted if there are subsequent Regional
Forester determinations on other catastrophic events.
(4) 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; and
(5) That the purchaser is not in breach of the National Forest
System contract, and all work items, payments, and deposits are current.
(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 requirement that purchasers 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.
(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, as amended at 69 FR 33, Jan. 2, 2004]
Appraisal and Pricing
Sec. 223.60 Determining fair market value.
The objective of Forest Service timber appraisals is to determine
fair market value. Fair market value is estimated by such methods as are
authorized by the Chief, Forest Service, through issuance of agency
directives (36 CFR 200.4). Valid methods to determine fair market value
include, but are not limited to, transaction evidence appraisals,
analytical appraisals, comparison appraisals, and independent estimates
based on average investments. Pertinent factors affecting market value
also considered include, but are not limited to, prices paid and
valuations established for comparable timber, selling value of products
produced, estimated operating costs, operating difficulties, and quality
of timber. Considerations and valuations may recognize and adjust for
factors which are not normal market influences.
[61 FR 5685, Feb. 14, 1996]
Sec. 223.61 Establishing minimum stumpage rates.
The Chief, Forest Service, shall establish minimum stumpage rates,
i.e., ``base rates,'' for species and products on individual National
Forests, or groups of National Forests. Timber shall be sold for
appraised value or minimum stumpage rates, whichever is higher. No
timber may be sold or cut under timber sale contracts for less than
minimum stumpage rates except
[[Page 93]]
to provide for the removal of insect-infested, diseased, dead or
distressed timber or in accordance with contract provisions specifically
providing for catastrophically-affected timber and incidental amounts of
material not meeting utilization standards of the timber sale contract.
For any timber sale offering where deposits are to be required for
reforestation under the Act of June 9, 1930, as amended (46 Stat. 527;
16 U.S.C. 576-576b) which exceed the value of the established minimum
stumpage rates, the minimum rates may be increased by the approving
officer as necessary to the amount of such required reforestation
deposits and a minimum deposit to the Treasury. Minimum rates in timber
sale contracts will not be set higher than established minimum rates for
purposes other than assuring adequate funds for reforestation.
Sec. 223.62 Timber purchaser road construction credit.
Appraisal may also establish stumpage value as if unconstructed
roads or other developments needed by the purchaser for removal of the
timber were in place. When timber is appraised and sold on such basis,
purchaser credit for road construction, not to exceed the estimated
construction cost of such roads or other developments specified in the
timber sale contract, shall, when such construction is accomplished by
purchaser, be deducted from stumpage payments made by or due from
purchaser under the timber sale contract for other than minimum stumpage
rates and required deposits for slash disposal and road maintenance. As
used in this section estimated construction costs means the total cost
of constructing all permanent roads specified in the timber sale
contract, estimated as if construction is to be accomplished by an
independent contractor who is not the timber purchaser. In determining
the purchaser credit amount applicable against timber payments, the
estimated construction cost may be reduced for the effect of differences
in applicable wage rates.
Sec. 223.63 Advertised rates.
Timber shall be advertised for sale at its appraised value. The road
construction cost used to develop appraised value means the total
estimated cost of constructing all permanent roads specified in the
timber sale contract, estimated as if construction is to be accomplished
by the timber purchaser. 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 usable wood fiber.
[71 FR 11510, Mar. 8, 2006]
Sec. 223.64 Appraisal on a lump-sum value or rate per unit of measure basis.
Timber may be appraised and sold at a lump-sum value or at a rate
per unit of measure which rate may be adjusted during the period of the
contract and as therein specified in accordance with formulas or other
equivalent specifications for the following reasons:
(a) Variations in lumber or other product value indices between the
price index base specified in the contract and the price index actually
experienced during the cutting of the timber;
(b) Variance between advertised rates and rates redetermined by
appraisal at dates specified in the contract;
(c) Variance between redetermined rates and rates appropriate for
changes in costs or selling values subsequent to the rate
redetermination which reduce conversion value to less than such
redetermined rates; and
(d) Substantial loss of value due to physical deterioration of green
timber or other physical damage to the sale area or access to the
timber.
Sec. 223.65 Appraisal of timber for land exchange; right-of-way, or other authorized use.
The value of timber in land exchange or the value of timber required
to be cut for occupancy of a right-of-way or other authorized use of
National Forest System land for which payment will be made is to be
determined by the appraisal methods in Sec. 223.60 of this part.
[61 FR 48625, Sept. 16, 1996]
[[Page 94]]
Sec. 223.66 [Reserved]
Advertisement and Bids
Sec. 223.80 When advertisement is required.
Except as otherwise provided in this part each sale in which the
appraised value of the timber or other forest products exceeds $10,000
will be made only after advertisement for a period of 30 days or, if in
the opinion of the officer authorizing the sale, the quantity, value or
other conditions justify, a longer period; and any sale of smaller
appraised value will be advertised or informal bids solicited from
potential purchasers if, in the judgment of the officer authorizing the
sale, such action is deemed advisable.
Sec. 223.81 Shorter advertising periods in emergencies.
In emergency situations where prompt removal of timber included in a
sale is essential to avoid deterioration or to minimize the likelihood
of the spread of insects, the approving officer may authorize shortening
the formal advertising period to not less than 7 days. In other
emergency situations, or for timber sold under 36 CFR 223.2 the Regional
Forester or Chief may authorize shortening the formal advertising period
to not less than 7 days.
[44 FR 73029, Dec. 17, 1979. Redesignated at 49 FR 2761, Jan. 23, 1984]
Sec. 223.82 Contents of advertisement.
(a) A timber sale advertisement shall include the following
information:
(1) The location and estimated quantities of timber or other forest
products offered for sale.
(2) The time and place at which sealed bids will be opened in public
or at which sealed bids will be opened in public followed by an oral
auction.
(3) A provision asserting the agency's right to reject any and all
bids.
(4) The place where complete information on the offering may be
obtained.
(5) Notice that a prospectus is available to the public and to
interested potential bidders.
(b) For each timber sale which includes specified road construction
with total estimated construction costs of $50,000 or more, the
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, as amended at 71 FR 523, Jan. 4, 2006; 71
FR 11510, Mar. 8, 2006]
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.
[[Page 95]]
(14) The amount of performance bond required.
(15) The road standards for specified roads to be constructed.
(16) The estimated road construction cost and the estimated public
works construction cost.
(17) For deficit sales:
(i) An estimate of the difference between fair market value and
advertised value, that is, the amount by which the advertised value
exceeds the appraised value.
(ii) The amount of Forest Service funds or materials to be used to
offset the deficit.
(18) Status of financial assistance available to small business
purchasers.
(19) Notification of preferential award to small business firms and
certification requirements for set-aside sales.
(20) Notification of log export and substitution restrictions.
(21) Notification of Equal Employment Opportunity compliance review
requirements.
(22) General or special information concerning the sale which are
deemed appropriate to furnish sufficient information to prospective
purchasers to warrant further investigation.
(b) For each advertisement which extends to small concerns the
option to have all permanent roads constructed by the Forest Service,
the prospectus shall also include:
(1) The road standards applicable to construction of permanent roads
or a reference to the source of such information.
(2) The date of final completion for all permanent roads.
(3) A statement explaining how the Forest Service intends to perform
road construction by force account or contract, if the high bidder
elects Forest Service construction.
(4) The maximum period for which timber sale contract award will be
delayed while the Forest Service seeks a satisfactory construction bid.
The period stated shall not exceed 120 days unless the Regional Forester
approves a longer period.
[50 FR 32696, Aug. 14, 1985, as amended at 71 FR 523, Jan. 4, 2006; 71
FR 11510, Mar. 8, 2006]
Sec. 223.84 Small business bid form provisions on sales with specified road construction.
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. 472a(d),
are defined to include the potential harm to natural resources,
including fish and
[[Page 96]]
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) of this section 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 Sec. etary 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.
(c) Extraordinary conditions, as provided for in 16 U.S.C. 472a(d),
includes those conditions under which contracts for the sale or exchange
of timber or other forest products must be suspended, modified, or
terminated under the terms of such contracts to prevent environmental
degradation or resource damage, or as the result of administrative
appeals, litigation, court orders, or catastrophic events.
Notwithstanding the provisions of paragraph (a) of this section or any
other regulation in this part, when such extraordinary conditions exist
on sales not addressed in paragraph (b) of this section, the Sec. etary
of Agriculture may allow forest officers to, without advertisement,
modify those contracts by substituting timber or other forest products
from outside the contract area specified in the contract for timber or
forest products within the area specified in the contract. When such
extraordinary conditions exist, the Forest Service and the purchaser
shall make good faith efforts to identify replacement timber or forest
products of similar volume, quality, value, access, and topography. When
replacement timber or forest products agreeable to both parties is
identified, the contract will be modified to reflect the changes
associated with the substitution, including a rate redetermination.
Concurrently, both parties will sign an agreement waiving any future
claims for damages associated with the deleted timber or forest
products, except those specifically provided for under the contract up
to the time of the modification. If the Forest Service and the purchaser
cannot reach agreement on satisfactory replacement timber or forest
products, or the proper value of such material, either party may opt to
end the search. Replacement timber or forest products must come from the
same national forest as the original contract, and must meet agency
requirements for compliance with applicable laws and regulations.
Replacement timber or forest products must also come from an area
included in an approved National Environmental Policy Act decision in
which the appeals process has been exhausted. The value of replacement
timber or forest products may not exceed the value of the material it is
replacing by more than 10% or $10,000, whichever is less as determined
by standard Forest Service appraisal methods.
[61 FR 14621, Apr. 3, 1996, as amended at 71 FR 34826, June 16, 2006]
Sec. 223.86 Bid restriction on resale of noncompleted contract.
(a) Except as otherwise provided in this section, no bid will be
considered in the resale of timber remaining from any uncompleted timber
sale contract from any person, or from an affiliate of such person, who
failed to complete the original contract:
(1) Because of termination for purchaser's branch or; or
(2) Through failure to cut designated timber on portions of the sale
area by the termination date, unless acceptance of such bid is
determined to be in the public interest.
(b) The no bid restriction in the preceding paragraph:
(1) Shall only apply when 50 percent or more of the timber included
in the resale is timber remaining from the uncompleted contract and the
resale is advertised within 3 years of the date the uncompleted contract
terminated;
(2) When imposed because of failure to cut designated timber on
portions of the sale area by the termination date, shall not apply to
resales of timber for which the original contract was awarded prior to
April 30, 1972, unless the contract is extended thereafter; and
(3) Shall not apply to:
(i) Resales of timber within a sustained yield unit unless
competition
[[Page 97]]
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 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
[[Page 98]]
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 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.
[[Page 99]]
(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
(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--
[[Page 100]]
(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.
(a) 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.
(b) Timber sale contracts awarded after October 1, 1995, that have
been suspended for more than 90 days, during the normal operating
season, at no fault of the purchaser, because of administrative appeals
or litigation, that did not include contract provisions for rate
redeterminations may be modified at the request of the timber sale
purchaser to include a rate redetermination for the remaining
unharvested volume to reflect significant decreases in market value
during the period of delay. Rates in effect at the time of the
suspension will be redetermined in accordance with the standard Forest
Service methods in effect 45 days prior to the rate redetermination.
[42 FR 28252, June 2, 1977. Redesignated at 49 FR 2760-2761, Jan. 23,
1984, as amended at 69 FR 18814, Apr. 9, 2004]
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.
[[Page 101]]
(3) Upon application of the purchaser if the value of the timber
remaining to be cut is diminished materially because of catastrophic
damage caused by forces beyond the control of the purchaser resulting in
(i) physical change in the sale area or access to it, or (ii) damage to
timber remaining to be cut.
(4) For conviction of violation of criminal statutes or, following
final agency or judicial determination, of violation of civil standards,
orders, permits, or others regulations for the protection of
environmental quality issued by a Federal agency, State agency, or
political subdivision thereof, in the conduct of operations thereunder,
on National Forest System land, unless compliance with such laws or
regulations would preclude performance of other contractual
requirements.
(5) Upon determination by the Chief, Forest Service, that operations
thereunder would result in serious environmental degradation or resource
damage and with reasonable compensation to the purchaser for unrecovered
costs incurred under the contract and the difference between the current
contract value and the average value of comparable National Forest
timber sold during the preceding 6-month period.
(b) Cancellation will be by the Chief, Forest Service. Authority to
cancel contracts under paragraph (a)(1) through (4) of this section may
be delegated to Regional Foresters for sales within their authorization.
All contract cancellations under paragraph (a)(5) of this section shall
be by the Chief, Forest Service, whose decision shall be the final
agency decision.
[42 FR 28252, June 2, 1977, as amended at 48 FR 23819, May 27, 1983.
Redesignated at 49 FR 2761, Jan. 23, 1984]
Sec. 223.117 Administration of cooperative or Federal sustained yield units.
With respect to sustained yield units established pursuant to the
provisions of the Act of March 29, 1944 (58 Stat. 132; 16 U.S.C. 583-
583l), the Chief, Forest Service, with authority to delegate to other
officers and employees of the Forest Service:
(a) Shall provide that National Forest timber in any sustained yield
unit shall be available in sufficient amounts to meet the needs of bona
fide farmers, settlers, miners, residents and prospectors for minerals
for personal and domestic use as provided by law and by regulation.
(b) May offer for sale to cooperators, without competition but at
not less than appraised value, timber on National Forest lands within an
approved cooperative sustained yield unit; or, if the approved sustained
yield unit consists entirely of federally owned or administered forest
land and if necessary for the maintenance of a stable community or
communities, may offer National Forest timber for sale to responsible
operators within such community or communities, at not less than
appraised value but without competition or with competition restricted
to responsible operators who will manufacture the timber to at least a
stated degree within the community or communities to be maintained. Each
such sale which involves more than $500 in stumpage value may be made
only 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
[[Page 102]]
the notice not later than 15 days after the first publication of such
notice. If a public advisory hearing is to be held, notice of it shall
be published in the same newspaper or newspapers as the original notice,
stating the place where it will be held and the time, which shall not be
earlier than 10 days after the first publication of the said notice of
hearing, and shall appear once each week, but not for more than four
successive weeks in any event, until the date set for the hearing. Any
such hearing shall be conducted by the Chief or by any officer
designated by him as his representative, except that if the amount of
the proposed sale is not in excess of that which the Regional Forester
has been authorized to sell without prior approval of the Chief the
hearing may be held by the Regional Forester concerned or by his
representative and decision may be by the Regional Forester. At any such
hearing, opportunity shall be given to those having a reasonable
interest to make oral statements or to file written statements
discussing the advantages and disadvantages of the proposed sale; and
the officer holding the hearing may, in his discretion, permit the
filing of such statements within a reasonable period after the close of
the hearing to become part of the record for consideration before a
decision is made.
(c) Shall keep available for public inspection,
(1) During the life of any sustained yield unit, the minutes or
other record of the hearing held on the establishment thereof, and the
determination of action taken following the hearing including any
modification of the proposals as submitted at the hearing; and
(2) During the life of any cooperative agreement for coordinated
management the similar record of the hearings and actions determined
upon; and
(3) During the life of any sustained yield unit the similar record
of any public hearing which may be held on a sale made without
competition or with restricted competition and the action determined
upon. Such records of any case may be kept in any office of the Forest
Service designated by the Chief as being suitable and convenient of
access for probably interested persons.
(d) Shall make provision, in any contract for the purchase of timber
without competition or with restricted competition, if that contract is
of more than 7 years' duration and in his discretion in any case of
shorter duration, for the redetermination of rates for stumpage and for
required deposits to be paid by the purchasers, such redetermination to
be effective at intervals or dates stated in the contract; but the sum
of such redetermined rates for stumpage and sale area betterment shall
not be less than the base rates in the published notice of the proposed
sale.
(e) May modify and revise existing cooperative agreements entered
into under said act after taking appropriate action.
Sec. 223.118 Appeal process for small business timber sale set-aside program
share recomputation decisions.
(a) Decisions subject to appeal. The rules of this section govern
appeal of 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
[[Page 103]]
sale bidders list for the affected area. The notice of decision must
identify the name of the Appeal Deciding Officer, the address, the date
by which an appeal must be filed, and a source for obtaining the appeal
procedures information.
(c) Who may appeal or file written comments as an interested party.
(1) Only timber sale purchasers, or their representatives, who are
affected by recomputations of the small business share of timber sales
as described in paragraph (a) of this section and who have submitted
predecisional comments pursuant to paragraph (b)(1) of this section, may
appeal recomputation decisions under this section or may file written
comments as an interested party.
(2) Interested parties are defined as the Small Business
Administration and those timber sale purchasers, or their
representatives, who are affected by recomputations of the small
business share of timber sales as described in paragraph (a) of this
section and who have individually, or through an association to which
they belong, submitted predecisional comments pursuant to paragraph
(b)(1) of this section.
(i) A timber sale purchaser may submit comments on an appeal as an
interested party if an association to which the purchaser belongs filed
predecisional comment but later decides not to appeal or not to file
comments as an interested party.
(ii) A timber sale purchaser, who is a member of an association that
appeals a decision, may not file a separate appeal unless that purchaser
filed separate predecisional comment under paragraph (b)(1).
(3) Interested parties who submit written comments on an appeal
filed by another party may not continue an appeal if the appellant
withdraws the appeal.
(d) Level of appeal. Only one level of review is available for
appeal of decisions pertaining to recomputations under the Small
Business Timber Sale Set-aside Program. The Appeal Deciding Officer is
the official one level above the level of the Responsible Official who
made the recomputation of shares decision. The Responsible Official is
normally the Forest Supervisor; thus, the Appeal Deciding Officer is
normally the Regional Forester. However, when the Regional Forester
makes recomputation decisions, the Appeal Deciding Officer is the Chief
or such officer at the National headquarters level as the Chief may
designate.
(e) Filing procedures. In order to file an appeal under this
section, an appellant must file a notice of appeal, as specified in the
notice of decision, with the Appeal Deciding Officer within 20 days of
the date on the notice of the decision. This date must be specified in
the notice of decision given pursuant to paragraph (b)(2) of this
section. Written comments filed by an interested party in response to an
appeal must be filed within 15 days after the close of the appeal filing
period.
(f) Content of notice of appeal. (1) It is the responsibility of the
appellant to provide sufficient narrative evidence and argument to show
why a recomputation decision by the Responsible Official should be
reversed or changed.
(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
[[Page 104]]
(viii) A statement of the relief the appellant seeks.
(g) Time periods and timeliness. (1) All time periods applicable to
this section will begin on the first day following a decision or action
related to the appeal.
(2) Time periods applicable to this section are computed using
calendar days. Saturdays, Sundays, or Federal holidays are included in
computing the time allowed for filing an appeal; however, when the
filing period would expire on a Saturday, Sunday, or Federal holiday,
the filing time is automatically extended to the end of the next Federal
working day.
(3) It is the responsibility of those filing an appeal to file the
notice of appeal by the end of the filing period. In the event of
questions, legible postmarks on a mailed appeal or the time and date
imprint on a facsimile appeal will be considered evidence of timely
filing. Where postmarks or facsimile imprints are illegible, the Appeal
Deciding Officer shall rule on the timeliness of the notice of appeal.
(4) The time period for filing a notice of appeal is not extendable.
(h) Dismissal without decision. The Appeal Deciding Officer shall
dismiss an appeal and close the record without a decision in any of the
following circumstances:
(1) The appellant is not on the timber sale bidders list for the
area affected by the recomputation decision;
(2) The appellant's notice of appeal is not filed within the
required time period;
(3) The appellant's notice of appeal does not contain responses
required by paragraphs (f)(2)(i) through (f)(2)(viii) of this section;
or
(4) The appellant did not submit written comments on the proposed
decision of the new recomputed shares as described in paragraph (c) of
this section.
(i) Appeal record. The appeal record consists of the written
decision being appealed, any predecisional comments received, any
written comments submitted by interested parties, any other supporting
data used to make the decision, the notice of appeal, and, if prepared,
a responsive statement by the Responsible Official which addresses the
issues raised in the notice of appeal. The Responsible Official must
forward the record to the Appeal Deciding Officer within 7 days of the
date the notice of appeal is received. A copy of the appeal record must
be sent to the appellant at the same time.
(j) Appeal decision--(1) Responsive statement for appeal decision.
The Appeal Deciding Officer may request the Responsible Official to
prepare a responsive statement. However, if the information in the files
clearly demonstrates the rationale for the Responsible Official's
decision, then a responsive statement addressing the points of the
appeal is not necessary.
(2) Appeal issue clarification. For clarification of issues raised
in the appeal, the Appeal Deciding Officer may request additional
information from either the Responsible Official, the appellant, or an
interested party who has submitted comments on the appeal. At the
discretion of the Appeal Deciding Officer, an appellant or interested
party may be invited to discuss data 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
[[Page 105]]
shares arising from a scheduled 5-year recomputation are effective on
April 1 following the end of the 5-year period being considered. If an
appeal that may affect the shares for the next 5-year period is not
resolved by the April 1 date, the share decision announced by the
Responsible Official must be implemented. If an appeal decision results
in a change in the shares, the revised total share of the Small Business
Timber Sale Set-aside Program must be accomplished during the remaining
portion of the 5-year period.
(l) Timber sale set-aside policy changes. Timber purchasers shall
receive an opportunity, in accordance with all applicable laws and
regulations, to review and comment on significant changes in the Small
Business Timber Sale Set-aside Program or policy prior to adoption and
implementation.
(m) Information collection requirements. The provisions of paragraph
(f) of this section specify the information that appellants must provide
when appealing decisions pertaining to recomputation of shares. As such,
these rules contain information requirements as defined in 5 CFR Part
1320. These information requirements have been approved by the Office of
Management and Budget and assigned control number 0596-0141.
[64 FR 411, Jan. 5, 1999]
Subpart C_Suspension and Debarment of Timber Purchasers
Source: 52 FR 43329, Nov. 12, 1987, unless otherwise noted.
Sec. 223.130 Scope.
(a) This subpart prescribes policies and procedures governing the
debarment and suspension of purchasers of National Forest System timber.
This subpart further prescribes policies and procedures governing those
persons who violate the Forest Resources Conservation and Shortage
Relief Act of 1990 (16 U.S.C. 620, et seq.).
(b) It provides for the listing of debarred and suspended
purchasers.
(c) It sets forth the causes and procedures for debarment and
suspension and for determining the scope, duration, and treatment to be
accorded to purchasers listed as debarred or suspended.
[52 FR 43329, Nov. 12, 1987, as amended at 60 FR 46921, Sept. 8, 1995]
Sec. 223.131 Applicability.
These regulations apply to purchasers of National Forest System
timber as well as to those persons who violate the Forest Resources
Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.).
These regulations do not apply to Forest Service procurement contracts
which are governed by regulations at 41 CFR 4-1.6.
[60 FR 46921, Sept. 8, 1995]
Sec. 223.132 Policy.
(a) The Forest Service shall solicit and consider timber sale bids
from and award contracts only to responsible business concerns and
individuals. Debarment and suspension by the Forest Service are
discretionary actions that, 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 106]]
(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 107]]
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 108]]
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 109]]
(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
official. 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 110]]
(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); and
(D) Specify any limitations on the terms of the debarment.
(ii) The debarring official shall also promptly notify Regional
Foresters and Forest Supervisors of the decision.
[52 FR 43329, Nov. 12, 1987, as amended at 72 FR 31438, June 7, 2007]
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 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.
[[Page 111]]
(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 determining 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.
(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
[[Page 112]]
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 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
[[Page 113]]
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.