[Title 36 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 1998 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
36
Parks, Forests, and Public Property
PARTS 200 TO 299
Revised as of July 1, 1998
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JULY 1, 1998
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1998
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 36:
Chapter II--Forest Service, Department of Agriculture..... 3
Finding Aids:
Table of CFR Titles and Chapters.......................... 409
Alphabetical List of Agencies Appearing in the CFR........ 427
List of CFR Sections Affected............................. 437
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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.
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EXPLANATION
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Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
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[[Page vi]]
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[[Page vii]]
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Office of the Federal Register.
July 1, 1998.
[[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, 1998.
Redesignation tables appear in the Finding Aids section of the third
volume.
For this volume, Carol Conroy was Chief Editor. The Code of Federal
Regulations publication program is under the direction of Frances D.
McDonald, assisted by Alomha S. Morris.
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[[Page 1]]
TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY
(This book contains parts 200 to 299)
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Part
Chapter ii--Forest Service, Department of Agriculture....... 200
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CHAPTER II--FOREST SERVICE, DEPARTMENT OF AGRICULTURE
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Part Page
200 Organization, functions, and procedures..... 5
211 Administration.............................. 13
212 Administration of the forest development
transportation system................... 23
213 Administration of lands under Title III of
the Bankhead-Jones Farm Tenant Act by
the Forest Service...................... 31
215 Notice, comment, and appeal procedures for
National Forest System projects and
activities.............................. 33
216 Involving the public in the formulation of
Forest Service directives............... 41
217 Appeal of regional guides and National
Forest land and resource management
plans................................... 43
219 Planning.................................... 51
221 Timber management planning.................. 77
222 Range management............................ 78
223 Sale and disposal of National Forest System
timber.................................. 96
228 Minerals.................................... 152
230 State and private forestry assistance....... 187
241 Fish and wildlife........................... 194
242 Subsistence management regulations for
public lands in Alaska.................. 197
251 Land uses................................... 282
254 Landownership adjustments................... 316
261 Prohibitions................................ 333
262 Law enforcement support activities.......... 345
264 Property management......................... 349
271 Use of ``Smokey Bear'' symbol............... 351
272 Use of ``Woodsy Owl'' symbol................ 352
290 Cave resources management................... 353
291 Occupancy and use of developed sites and
areas of concentrated public use........ 356
292 National recreation areas................... 356
293 Wilderness--primitive areas................. 383
294 Special areas............................... 388
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295 Use of motor vehicles off forest development
roads................................... 389
296 Protection of archaeological resources:
uniform regulations..................... 390
297 Wild and scenic rivers...................... 404
298-299
[Reserved]
Cross References: Bureau of Land Management, Department of the Interior:
See 43 CFR 2567.8; Group 2500.
Note:Other regulations relating to agriculture appear in title 7;
title 9; title 17, chapter I; title 48, chapter 4.
Abbreviations:
The following abbreviations are used in this chapter:
A.O.=Administrative order P.L.O.=Public Land order.
[[Page 5]]
PART 200--ORGANIZATION, FUNCTIONS, AND PROCEDURES--Table of Contents
Subpart A--Organization
Sec.
200.1 Central organization
200.2 Field organization.
Subpart B--Functions and Procedures
200.3 Forest Service functions.
200.4 Administrative issuances.
200.5 Indexes.
200.6 Information available; inspection, copying, and charges.
200.7 Request for records.
200.8 Appeals.
200.12 Land status and title records.
Authority: 5 U.S.C. 552; 7 U.S.C. 6706; 16 U.S.C. 472, 521, 1603,
and 2101 et seq.
Subpart A--Organization
Sec. 200.1 Central organization.
(a) Central office. The national office of the Forest Service, U.S.
Department of Agriculture, is located in the Auditors Building, 14th and
Independence Avenue, SW. Washington, DC. It consists of the Office of
the Chief and Associate Chief, and a Deputy Chief for each of the
following five activities: Programs and Legislation, National Forest
System, Research, State and Private Forestry, and Administration. All
communications should be addressed to the Forest Service, Department of
Agriculture, P.O. Box 96090, Washington, DC 20090-6090.
(b) Chief of the Forest Service. The Chief of the Forest Service,
under the direction of the Secretary of Agriculture, administers the
formulation, direction, and execution of Forest Service policies,
programs, and activities.
(c) Deputy Chiefs. The major activities of the Forest Service at the
headquarters level are divided into five Deputy Chief areas with each
further divided into staff units. The programs and functions of staff
units are directed by staff directors and may be subdivided into groups
headed by group leaders. A description of the major activities of each
Deputy Chief follows:
(1) Programs and legislation. Overall planning of Forest Service
programs, policy formulation and analysis, budgeting, legislative
development, reporting and liaison, and environmental coordination.
(2) National Forest System. Administration of National Forest System
lands and management of natural resources within the principle of
multiple use and sustained yield. Management includes planning,
coordinating, and directing the national resource programs of timber,
range, wildlife, recreation, watershed, and mineral areas; and support
activities of fire, engineering, lands, aviation, and computer systems.
The National Forest System includes:
155 Proclaimed or designated National Forests
20 National Grasslands
51 Purchase Units
8 Land Utilization Projects
20 Research and Experimental Areas
33 Other Areas
The first four classifications listed above are administered as 121
Forest Service Administrative Units, each headed by a Forest Supervisor.
National Recreation Areas, National Forest Wildernesses, and Primitive
Areas are included in the above land classifications.
(3) Research. Plan, coordinate, and direct research programs to
learn how man can best use and protect the plant, animal, soil, water,
and esthetic resources of nonagricultural rural and exurban lands for
his well-being and enjoyment. These programs include research on timber
management, forest products and engineering, forest economics and
marketing, watersheds, wildlife and fish habitat, range, recreation and
other environmental concerns, forest insects and disease, forest fire
and atmospheric science. Plans and directs international forestry
activities and disseminates forestry research information throughout the
world.
(4) State and private forestry. Coordinate and provide leadership
for intergovernmental resource programs for technical and financial
assistance to improve and protect State and privately-owned forest
resources and urban and community forestry. Carries out this action
through cooperative forestry, area planning and development, cooperative
fire protection, forest insect and disease management, cooperative tree
planting, and overall
[[Page 6]]
Forest Service participation in rural development and environmental
concern, including civil defense and other emergency activities.
(5) Administration. Provide support for Forest Service programs
through management improvement, fiscal and accounting, administrative
services, personnel management, manpower and youth conservation,
antipoverty programs, communication and electronics, internal review
system, external audits, coordination of civil rights activities, public
information, and Service-wide management of systems and computer
applications.
[41 FR 24350, June 16, 1976, as amended at 42 FR 32230, June 24, 1977;
43 FR 27190, June 23, 1978; 44 FR 5660, Jan. 29, 1979; 62 FR 33366, June
19, 1997]
Sec. 200.2 Field organization.
The field organization of the Forest Service consists of regions,
stations, and areas as described below:
(a) Regions of the National Forest System. For the purpose of
managing the lands administered by the Forest Service, the United States
is divided into nine geographic regions of the National Forest System.
Each region has a headquarters office and is supervised by a Regional
Forester who is responsible to the Chief for the activities assigned to
that region. Within each region are located national forests and other
lands of the Forest Service.
(1) National Forests. Each Forest has a headquarters office and is
supervised by a Forest Supervisor who is responsible to the Regional
Forester. Two or more proclaimed or designated National Forests, or all
of the Forests in a State, may be combined into one Forest Service
Administrative Unit headed by one Forest Supervisor. Each Forest is
divided into Ranger Districts. The Alaska Region is composed of two
National Forests without Ranger Districts; with one Forest divided into
three areas, each administered by a Forest Supervisor.
(2) Ranger districts. Each district may include a portion of a
national forest, a national grassland or portion thereof, a national
recreation area, a wilderness or primitive area, and other lands
administered by the Forest Service. Each district has a headquarters
office and is supervised by a District Ranger (or Area Ranger in some
cases) who is responsible to the Forest Supervisor.
(b) Forest and rangeland research coordination. The field research
program is coordinated by six research stations, the national Forest
Products Laboratory, and the International Institute of Tropical
Forestry. Each has a headquarters office and a Director who is
responsible to the Chief for all research activities within a
geographical area of the United States or its territories. Scientists
are based at Research Work Units with laboratories located in 36 lower
States, Hawaii, Alaska, and Puerto Rico. Scientists primarily conduct
their work within a given geographical area, but due to the integrated
and cooperative nature of the research program, they make work
nationwide and internationally.
(c) State and private forestry cooperation. Field level cooperation
between the Forest Service, States, and the private sector on forestry
activities is accomplished by the Northeastern Area State and Private
Forestry for the Northeastern States; and by the National Forest
Regional Offices in the Southeastern and Western States. The
Northeastern Area is supervised by an Area Director who is responsible
to the Chief for State and private forestry activities within the Area.
Regional Foresters in Regions 1 through 8 and Region 10 are responsible
for State and private forestry activities within those regions.
(d) International Institute of Tropical Forestry. The Institute is
managed by a Director who is the senior Forest Service official in
Puerto Rico. The Director is responsible to the Chief for planning and
directing research, science and technology exchange, technical
assistance to the Commonwealth of Puerto Rico, and international
cooperation on natural resources concerning tropical forestry.
(e) Field addresses. The addresses of Regional Foresters, Station
Directors, and Area Directors are given below. Under each Regional
Office address is a list of National Forest Administrative Units by
States with locations of Forest Supervisor headquarters. Headquarters
locations for Ranger Districts, National Grasslands, and National
[[Page 7]]
Recreation Areas are not listed but may be obtained from Forest
Supervisors or Regional Foresters.
National Forests by Region
------------------------------------------------------------------------
Headquarters
State in which forest is National forest location of
located administration unit forest
supervisor
------------------------------------------------------------------------
Region 1, Northern Region
(Regional Forester, Federal
Bldg., P.O. Box 7669,
Missoula, MT 59807):
Idaho........................ Clearwater........... Orofino.
Idaho Panhandle Coeur d'Alene.
National Forests
(Kaniksu-Coeur
'dAlene-St. Joe.
Nezperce............. Grangeville.
Montana...................... Beaverhead........... Dillon.
Bitterroot........... Hamilton.
Custer............... Billings.
Deerlodge............ Butte.
Flathead............. Kalispell.
Gallatin............. Bozeman.
Helena............... Helena.
Kootenai............. Libby.
Lewis and Clark...... Great Falls.
Lolo................. Missoula.
Region 2, Rocky Mountain Region
(Regional Forester, 740 Simms
Street, P. O. Box 25127,
Lakewood, CO 80225):
Colorado..................... Arapaho-Roosevelt.... Fort Collins.
Grand Mesa- Delta.
Uncompahgre and
Gunnison.
Pike-San Isabel...... Pueblo.
San Juan-Rio Grande.. Monte Vista.
White River.......... Glenwood
Springs.
Nebraska..................... Nebraska (Samuel R. Chadron.
McKelvie).
South Dakota................. Black Hills.......... Custer.
Wyoming...................... Bighorn.............. Sheridan.
Medicine Bow-Routt... Laramie.
Shoshone............. Cody.
Region 3, Southwestern Region
(Regional Forester, Federal
Bldg., 517 Gold Ave. SW.,
Albuquerque, NM 87102):
Arizona...................... Apache-Sitgreaves.... Springerville.
Coconino............. Flagstaff.
Coronado............. Tucson.
Kaibab............... Williams.
Prescott............. Prescott.
Tonto................ Phoenix.
New Mexico................... Carson............... Taos.
Cibola............... Albuquerque.
Gila................. Silver City.
Lincoln.............. Alamogordo.
Santa Fe............. Santa Fe.
Region 4, Intermountain Region
(Regional Forester, 324 25th
St., Ogden, UT 84401):
Idaho........................ Boise................ Boise.
Caribou (Cache-Idaho Pocatello.
portion).
Challis.............. Challis.
Payette.............. McCall.
Salmon............... Salmon.
Sawtooth............. Twin Falls.
Targhee.............. St. Anthony.
Nevada....................... Humboldt............. Elko.
Toiyabe, except the Sparks.
Lake Tahoe basin
management unit.
Utah......................... Ashley............... Vernal.
Dixie................ Cedar City.
Fishlake............. Richfield.
Manti-La Sal......... Price.
Uinta................ Provo.
Wasatch (Cache-Utah Salt Lake City.
portion).
Wyoming...................... Bridger-Teton........ Jackson.
Region 5, Pacific Southwest
Region (Regional Forester, 630
Sansome St., San Francisco, CA
94111):
California................... Angeles.............. Arcadia.
Cleveland............ San Diego.
Eldorado, except the Placerville.
Lake Tahoe basin
management unit.
[[Page 8]]
Inyo................. Bishop.
Klamath.............. Yreka.
Lassen............... Susanville.
Los Padres........... Goleta.
Mendocino............ Willows.
Modoc................ Alturas.
Plumas............... Quincy.
San Bernardino....... San Bernardino.
Sequoia.............. Porterville.
Shasta-Trinity....... Redding.
Sierra............... Fresno.
Six Rivers........... Eureka.
Stanislaus (Calaveras Sonora.
Bigtree).
Tahoe, except the Nevada City.
Lake Tahoe basin
management unit.
Lake Tahoe basin South Lake Tahoe
management unit (headed by an
(portions of administrator).
Toiyabe, Eldorado,
and Tahoe National
Forests).
Region 6, Pacific Northwest
Region (Regional Forester, 333
S.W. 1st Avenue, P.O. Box
3623, Portland, OR 97208):
Oregon....................... Deschutes............ Bend
Fremont.............. Lakeview.
Malheur.............. John Day.
Mount Hood........... Gresham.
Ochoco............... Prineville.
Rogue River.......... Medford.
Siskiyou............. Grants Pass.
Siuslaw.............. Corvallis.
Umatilla............. Pendleton.
Umpqua............... Roseburg.
Wallowa-Whitman...... Baker.
Willamette........... Eugene.
Winema............... Klamath Falls.
Washington................... Colville............. Colville.
Gifford Pinchot...... Vancouver.
Mount Baker- Mountain
Snoqualmie. Terrace.
Okanogan............. Okanogan.
Olympic.............. Olympia.
Wenatchee............ Wenatchee.
Region 8, Southern Region
(Regional Forester, 1720
Peachtree Rd. NW., Atlanta, GA
30367):
Alabama...................... National forests in Montgomery.
Alabama (William B.
Bankhead, Conecuh,
Talladega, Tuskegee).
Arkansas..................... Ouachita............. Hot Springs.
Ozark-St. Francis.... Russellville.
Florida...................... National forests in Tallahassee.
Florida
(Apalachicola,
Ocala, Osceola).
Georgia...................... Chattahoochee-Oconee. Gainesville.
Kentucky..................... Daniel Boone......... Winchester.
Louisiana.................... Kisatchie............ Pineville.
Mississippi.................. National Forests in Jackson.
Mississippi
(Bienville, Delta,
De Soto, Holly
Springs, Homochitto,
Tombigbee).
North Carolina............... National forests in Asheville.
North Carolina
(Croatan, Nantahala,
Pisgah, Uwharrie).
Puerto Rico.................. Caribbean............ Rio Piedras, PR.
South Carolina............... Francis Marion and Columbia.
Sumter.
Tennessee.................... Cherokee............. Cleveland.
Texas........................ National forests in Lufkin.
Texas (Angelina,
Davy Crockett,
Sabine, Sam Houston).
Virginia..................... George Washington- Roanoke.
Jefferson.
Region 9, Eastern Region
(Regional Forester, 310 West
Wisconsin Ave., Milwaukee, WI
53203):
Illinois..................... Shawnee.............. Harrisburg.
Indiana and Ohio............. Wayne-Hoosier........ Bedford, IN.
Michigan..................... Hiawatha............. Escanaba.
Huron-Manistee....... Cadillac.
[[Page 9]]
Ottawa............... Ironwood.
Minnesota.................... Chippewa............. Cass Lake.
Superior............. Duluth.
Missouri..................... Mark Twain........... Rolla.
New Hampshire and Maine...... White Mountain....... Laconia, NH.
Pennsylvania................. Allegheny............ Warren.
Vermont...................... Green Mountain....... Rutland.
West Virginia................ Monongahela.......... Elkins.
Wisconsin.................... Chequamegon.......... Park Falls.
Nicolet.............. Rhinelander.
Region 10, Alaska Region
(Regional Forester, Federal
Office Bldg., P.O. Box 21628,
Juneau, AK 99802-1628):
Alaska....................... Chugach.............. Anchorage.
Tongass:.............
Chatham area....... Sitka.
Ketchikan area..... Ketchikan.
Sitkine area....... Petersburg.
------------------------------------------------------------------------
Forest and Range Experiment Stations, Laboratories, and Institutes Name
of Unit and Headquarters of Director
North Central Research Station--1995 Folwell Avenue, St. Paul, MN 55108.
Northeastern Research Station--100 Matsonford Road, 5 Radnor Corporate
Center, Suite 200, P.O. Box 6775, Radnor, PA 19087-4585.
Pacific Northwest Research Station--333 S.W. 1st Avenue, P.O. Box 3890,
Portland, OR 97208-3890.
Pacific Southwest Research Station--800 Buchanan Street, West Building,
Albany, CA 94710-0011.
Rocky Mountain Research Station--240 West Prospect Street, Fort Collins,
CO 80526-2098.
Southern Research Station--200 Weaver Boulevard, P.O. Box 2680,
Asheville, NC 28802.
Laboratory
Forest Products Laboratory--One Gifford Pinchot Drive, Madison, WI
53705-2398.
Institute
International Institute of Tropical Forestry--Call Box 25000, UPR
Experimental Station Grounds, Rio Piedras, Puerto Rico 00928-2500.
State and Private Forestry Area Office
Director, Northeastern Area--100 Matsonford Road, P.O. Box 6775, Radnor,
PA 19087-4585.
Note: In Regions 1 through 8 and 10, State and Private Forestry
activities are directed from Regional headquarters.
[41 FR 24350, June 16, 1976, as amended at 42 FR 32230, June 24, 1977;
42 FR 40438, Aug. 10, 1977; 43 FR 27190, June 23, 1978; 44 FR 5660, Jan.
29, 1979; 62 FR 33366, 33367, June 19, 1997]
Subpart B--Functions and Procedures
Sec. 200.3 Forest Service functions.
(a) Legislative authority. The basic laws authorizing activities of
the Forest Service are set forth in the U.S.C. in title 7 (Agriculture),
chapters 14, 17, 33, 55, 59, and 61; title 16 (Conservation), chapters
2, 3, 4, 5C, 6, 23, 27, 28, 30, 36, and 37; title 29 (Labor), chapter
17; and title 43 (Public Lands), chapters 22 and 35.
(b) Work of the Forest Service. Under delegated authority from the
Secretary of Agriculture, the broad responsibilities of the Forest
Service are:
(1) Leadership in forestry. The Forest Service provides overall
leadership in forest and forest-range conservation, development, and
use. This involves determination of forestry conditions and
requirements, and recommendations of policies and programs needed to
keep the Nation's private and public lands fully productive.
(2) National Forest System administration. (i) The Forest Service
administers and manages the National Forest System lands in accordance
with the Multiple-Use Sustained-Yield Act of June 12, 1960 (16 U.S.C.
528-531); the Forest and Rangeland Renewable Resources Planning Act of
August 17, 1974 (16 U.S.C. 1600-1614); and the National Forest
Management Act of October 22, 1976 (16 U.S.C. 472a, 476, 500, 513-516,
521b; 576b, 1600-1602, 1604, 1606, 1608-1614).
[[Page 10]]
(ii) The National Forest System comprises about 188 million acres of
land in the National Forests, National Grasslands, and other areas which
have been transferred to the Forest Service for administration. On these
public lands:
(A) Forestry methods are applied in growing and harvesting timber,
(B) Forage is scientifically managed for the use of domestic
livestock whose numbers are kept in balance with the carrying capacity
of the range,
(C) Wildlife habitat and species are managed,
(D) Watersheds are managed to safeguard the water supply and
stabilize streamflow,
(E) Recreation resources are managed for public enjoyment and
benefit,
(F) Many forms of land and resource use are granted under permit or
lease, and
(G) Physical and resource improvements needed to develop, protect,
and use all resources are built and maintained.
(3) Cooperative forestry. The Forest Service carries out cooperative
forestry programs for public benefit through programs initiated by
State, county, and other Federal agencies in accordance with the
Cooperative Forestry Assistance Act of July 1, 1978 (16 U.S.C. 2101-
2111). These programs are directed at the protection, development, and
sustained production of all forestry resources, both public and private.
(4) Forest research. The Forest Service conducts research on
problems involving protection, development, management, renewal, and
continuous use of all resources, products, values, and services of
forest lands in accordance with the Forest and Rangeland Renewable
Resources Research Act of June 30, 1978 (16 U.S.C. 1641-1647). Research
is conducted on:
(i) Forest and range management, including the five basic resources
of timber, forest soil and water, range forage, wildlife and fish
habitat, and forest recreation,
(ii) Forest protection from fire, insects, and disease,
(iii) Forest products and engineering, and
(iv) Forest resource economics including forest survey, forest
economics, and forest products marketing.
[44 FR 37505, June 27, 1979]
Sec. 200.4 Administrative issuances.
(a) The regulations of the Secretary of Agriculture governing the
protection and administration of National Forest System lands and other
programs of the Forest Service are set forth in Chapter 2 of Title 36 of
the Code of Federal Regulations.
(b) Administrative policy, procedure, and guidance to Forest Service
employees for the conduct of Forest Service activities are issued as
directives, or through correspondence, by the office of the Chief of the
Forest Service and by the field officers listed in Sec. 200.2.
(1) Directives are issued through the Forest Service Directive
System, which is comprised of the Forest Service Manual and related
Forest Service Handbooks. The Directive System codifies the agency's
policy, practice, and procedure affecting more than one unit and the
delegations of continuing authority and assignment of continuing
responsibilities; serves as the primary administrative basis for the
internal management and control of all programs; and is the primary
source of administrative direction to Forest Service employees.
(2) In contrast to direction issued through the Directive System,
guidance issued to one or more organizational units through letters and
memoranda relate to decisions or interpretations on specific activities,
cases, or incidents or to other matters of agency business, especially
those matters of short-term duration or immediate interest.
(c) Forest Service Directive System issuances are published under
delegated authority as follows:
(1) The Forest Service Manual and Forest Service Handbook issuances
to all Forest Service units are published by the Office of the Chief.
(2) Forest Service Manual and Forest Service Handbook issuances may
be supplemented as needed for field office use by a Regional Forester, a
Regional
[[Page 11]]
Special Agent in Charge of Law Enforcement and Investigations, a
Research Station Director, the International Institute for Tropical
Forestry Director, the Area Director, or a Forest Supervisor.
(d) Guidance issued through letters and memoranda must be issued in
accordance with signing authorities delegated through issuances to the
Forest Service Directive System.
(e) An alphabetical index of the contents of the Forest Service
Manual and related Forest Service Handbooks is published in Forest
Service Handbook 1109.11, Directive System User Guide. The index
contains a listing of all Series, Titles, and Chapters in the Forest
Service Manual and a listing of all Forest Service Handbooks in the
Directive System.
(f) Forest Service Handbook 6209.11, Records Management Handbook,
outlines and indexes the filing system for all correspondence and other
records.
(g) Forms and reports used by the agency are listed in, and
instructions for their use are issued throughout, the Forest Service
Directive System and are collated in Forest Service Handbook 1309.14,
Information Requirements Handbook.
[62 FR 33367, June 19, 1997]
Sec. 200.5 Indexes.
Publication of the indexes described in Sec. 200.4 is deemed both
unnecessary and impractical because of the large volume of material
involved. However, copies of the indexes are available for public review
in the Forest Service headquarters office in Washington, DC, and at
field offices listed under Sec. 200.2(d). The Forest Service will
provide copies of any index upon request at a cost not to exceed the
direct cost of duplication.
[40 FR 12790, Mar. 21, 1975. Redesignated at 62 FR 13540, Mar. 21, 1997]
Sec. 200.6 Information available; inspection, copying, and charges.
(a) In accordance with 5 U.S.C. 552(a) and 7 CFR 1.2, the Forest
Service shall make available for public inspection and copying all
published or unpublished directives, forms, records, and final opinions,
including concurring or dissenting opinions and orders made in the
adjudication of cases. Charges for information requested from the Forest
Service are set out in paragraph (d) of this section and vary according
to the type of information requested.
(b) Information made available pursuant to paragraph (a) of this
section may be obtained at the Office of the Chief, or the office of any
Regional Forester, Research Station Director, Area Director, Institute
Director, Forest Supervisor, or District Ranger. The addresses of these
offices are set forth in Secs. 200.1 and 200.2. Forest Service personnel
at these offices will assist members of the public seeking Forest
Service records. However, Research Station and Institute Directors and
District Rangers may not have all volumes of the Forest Service Manual
and Handbooks. When the information requested is not available at a
given location, the personnel where the request is received will direct
the requester to another office where the information may be obtained.
(c) Inspection and copying availability is as follows:
(1) Facilities for inspection and copying are available at the
offices listed in Secs. 200.1 and 200.2, during established office hours
for the particular location, usually 8 a.m. to 5 p.m., Monday through
Friday. Copying facilities may not be available at all Forest Service
offices.
(2) Requesters for information may make copies of available
information without charge if they elect to bring their own copy
equipment to the appropriate offices listed in Secs. 200.1 and 200.2.
(3) Requesters should make prior arrangements for using agency
copying facilities or for bringing in copying equipment and, in the
later case, should get advance approval from the office.
(d) Any request for information pursuant to the provisions of the
Freedom of Information Act must be submitted in accordance with
Secs. 200.7 and 200.8. The Forest Service charges a fee for copies of
records not generally made available to the public but released pursuant
to a FOIA request in accordance with a schedule of fees established by
the Department of Agriculture at 7 CFR Part 1, Subpart A, Appendix A.
[[Page 12]]
These fees do not apply to information that is generally and routinely
made available to the public upon request, such as recreational
brochures, pamphlets, maps, and technical guides as well as agency
directive issuances. Separate charges for such general information are
established in the agency's Directive System (Sec. 200.4). For example,
some pamphlets and small segments of the Forest Service Manual and
Handbook may be provided at no cost, but maps of the National Forest
System and larger sections of the Manual and Handbook are available for
a charge. Current charges are explained at the time the request is made.
[62 FR 13540, Mar. 21, 1997]
Sec. 200.7 Request for records.
Requests for records and the processing of those records are
governed by the rules at 7 CFR 1.6. Agency officials are authorized to
receive and act on requests for records as follows:
(a) The Regional Forester, Regional Special Agent in Charge,
Research Station Director, and Area Director at the field locations and
addresses listed in Sec. 200.2; the Director of Law Enforcement and
Investigations; and the Deputy Chief for the program area involved,
located in Washington, DC, 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]
Sec. 200.8 Appeals.
(a) Appeals from denials of requests submitted under Sec. 200.7
shall be submitted in accordance with 7 CFR 1.6(e) of the Chief, Forest
Service, U.S. Department of Agriculture, Auditors Building, 14th and
Independence Avenue, SW., 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 pursuant to 7 CFR 1.14, discretionary
release pursuant to 7 CFR 1.17(b) of records exempt from mandatory
disclosure under 5 U.S.C. 552(b), and charging the appropriate fees.
[62 FR 33368, June 19, 1997]
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:
(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
[[Page 13]]
derived and which includes the following:
(A) Discrete title files of each landownership adjustment.
(B) The original authorizing documents establishing or adjusting
National Forest System lands and interests therein.
(C) Withdrawals, use restrictions, and special designated areas on
National Forest System lands.
(D) Other information as deemed necessary.
(iii) Such reporting systems as are needed to provide title or
status reports.
(2) Display of Information. Information in the system may be
collected and maintained in narrative, graphic, tabular, or other form
and may be entered into and maintained in automated systems as well as
produced in paper form in accordance with such administrative direction
as the Chief of the Forest Service or Regional Foresters may establish.
(b) Availability. A Land Status Atlas shall be maintained at each
National Forest administrative unit or subunit, such as Ranger Districts
or National Recreation Area offices. Each Regional Office shall maintain
copies of the Atlas for all National Forests within that Region. Related
land title and realty records for each National Forest System unit shall
be maintained at the administrative headquarters of that unit. The Land
Status Atlas and such title and realty records as are held at an
administrative unit shall be available for public inspection.
[56 FR 29181, June 26, 1991, as amended at 59 FR 2987, Jan. 20, 1994]
PART 211--ADMINISTRATION--Table of Contents
Subpart A--Cooperation With Private and State Agencies
Sec.
211.1-211.2 [Reserved]
211.3 Cooperation with State officers.
211.4 Cooperation for fire prevention and control.
211.5 Emergency fire suppression assistance.
Subpart B--Appeal of Decisions Concerning the National Forest System
211.16 Appeal of resource recovery and rehabilitation decisions
resulting from natural catastrophes.
211.17 Appeal of decisions to reoffer returned or defaulted timber
sales on National Forests.
211.18 Appeal of decisions of forest officers.
Authority: 16 U.S.C. 551, 472.
Subpart A--Cooperation With Private and State Agencies
Secs. 211.1-211.2 [Reserved]
Sec. 211.3 Cooperation with State officers.
All forest officers will cooperate with State officials, insofar as
practicable, to enforce State fire, game, and health laws. They are
authorized to accept appointments, without compensation, as deputy State
fire wardens, game wardens, and/or health officers whenever in the
judgment of the Chief of the Forest Service the performance of the
duties required by these offices will not interfere with their duties as
Federal forest officers.
[1 FR 1261, Aug. 15, 1936]
Sec. 211.4 Cooperation for fire prevention and control.
The Forest Service shall, whenever possible, and is hereby
authorized to enter into such agreements with private owners of timber,
with railroads, and with other industrial concerns operating in or near
the national forests as will result in mutual benefit in the prevention
and suppression of forest fires: Provided, That the service required of
each party by such agreements shall be in proportion to the benefits
conferred.
[1 FR 1261, Aug. 15, 1936]
Sec. 211.5 Emergency fire suppression assistance.
(a) Definitions. For the purpose of this subpart these definitions
apply:
(1) Prescribed fire means a fire burning under a set of specified
conditions which will accomplish certain planned resource management
objectives.
[[Page 14]]
(2) Escaped prescribed fire means a prescribed fire which has either
exceeded the prescription or has rekindled after it has been declared to
be out.
(b) In the absence of a written reciprocal agreement with any fire
organization or in situations outside the scope of an agreement, the
Forest Service is authorized to render emergency assistance in
suppressing fires and in preserving life and property from the threat of
fire within the vicinity of Forest Service fire protection facilities
under the following conditions:
(1) If a prescribed fire initiated on lands administered by the
Forest Service escapes onto lands not administered by the Forest
Service, the Forest Service may commit personnel, materials, and
equipment without reimbursement or consideration of the fire's
continuing threat to National Forest System lands or resources.
(2) When requested, the Forest Service may commit personnel,
materials, and equipment on a reimbursable basis on lands not
administered by the Forest Service without regard to the fire's threat
to National Forest System lands or resources.
[48 FR 44537, Sept. 29, 1983]
Subpart B--Appeal of Decisions Concerning the National Forest System
Sec. 211.16 Appeal of resource recovery and rehabilitation decisions resulting from natural catastrophes.
(a) Purpose. These rules provide an expedited and streamlined
administrative appeal process for decisions arising from recovery and
rehabilitation efforts on National Forest System lands and resources
damaged in natural catastrophes.
(b) Matters subject to appeal. The procedures established in this
section apply only to initial written decisions concerning resource
removal, recovery, and rehabilitation activities resulting from natural
catastrophes, such as forest fires, insect and disease epidemics,
floods, winds, and earthquakes, that result from documentation required
by the National Environmental Policy Act and its implementing
regulations, policies, and procedures. Notice of the decisions
appealable under this section and made after the effective date of this
regulation shall be published in a local newspaper of general
circulation immediately following the documentation referenced above.
Subsequent implementing decisions, such as advertising timber salvage
sales and/or awarding contracts, are not appealable under this section
or 36 CFR 211.18.
(c) Who may appeal. The process set forth in this section is
available to any individual or organization wishing to appeal a decision
arising from resource removal, recovery, and rehabilitation activities
resulting from natural catastrophe.
(d) Who may comment. Any person or organization interested in an
appeal of a decision under this subpart may submit written comments to
the Reviewing Officer for inclusion in the record.
(e) Levels of appeal. One level of administrative appeal is
available.
(1) Appeals of decisions subject to the procedures of this section
made by a District Ranger shall be filed with the Forest Supervisor.
(2) Appeals of decisions subject to the procedures of this section
made by a Forest Supervisor shall be filed with the Regional Forester.
(f) Filing procedures. (1) To appeal a decision under this section.
an appellant must file a written notice of appeal with the Reviewing
Officer. If an appellant wishes to request a stay of implementation of
the decision, the request must accompany the notice of appeal and be
made in accordance with paragraph (i) of this section. The appellant
must simultaneously provide a copy of the notice of appeal and any stay
request to the Forest officer making the initial decision.
(2) All notices of appeal must be filed within 30 days of
publication of the notice of decision.
(g) Extensions of time. There shall be no extension of the time
periods specified in this section for either an appellant or the Forest
Service.
(h) Content of notice of appeal. Parties appealing a decision under
this section must include the following information in the written
notice of appeal:
(1) The specific activity being appealed;
[[Page 15]]
(2) The date notice of the decision was published;
(3) The Forest Officer who made the decision;
(4) How the appellant is affected by the decision; and
(5) The relief desired.
(i) Stays. (1) To request a stay, the appellant must:
(i) File a written request with the Reviewing Officer at the time
the appeal is filed, simultaneously providing a copy to the Forest
officer who made the initial decision in question.
(ii) Provide a written justification of the need for a stay, which
includes a description of the specific activities to be stayed, and
specific reasons why the stay should be granted, including:
(A) Harmful site-specific impacts or effects on resources in the
area affected by the activity; and
(B) How the cited effects and impacts would prevent a meaningful
decision on the merits.
(2) The Reviewing Officer shall rule on a stay request no later than
10 calendar days from receipt.
(i) If a stay is granted, the stay shall specify the activities to
be stopped, duration of the stay, and reasons for granting the stay.
(ii) If a stay is denied in whole or in part, the decision shall
specify the reasons for the denial.
(iii) A copy of the stay decision shall be sent to the appellant and
the Forest Officer who made the initial decision.
(iv) A Reviewing Officer's decision on a stay is not subject to
further appeal or review.
(j) Review procedures. (1) The Reviewing Officer shall determine if
the notice of appeal has been timely filed. In the event of question,
legible postmarks will be considered evidence of timely filing. Where
postmarks are illegible, the Reviewing Officer shall rule on the timely
receipt of the notice of appeal. If the appeal is untimely, the
Reviewing Officer will immediately dismiss the appeal and notify the
Forest Officer making the initial decision and the appellant.
(2) Upon receipt of a copy of the notice of appeal, the Forest
Officer making the decision shall assemble the relevant decision
documents and pertinent records and transmit them to the Reviewing
Officer within 15 calendar days.
(3) In transmitting the decision documentation to the Reviewing
Officer, the Forest Officer shall indicate how and specifically where
the appellant's issues are addressed. Where time permits, the Forest
Officer may also respond briefly to issues raised in the notice of
appeal. A copy of the transmittal letter shall be provided to the
appellant(s).
(4) The record on which the Reviewing Officer shall conduct a review
consists of the notice of appeal, any other written comments received,
the official documentation prepared by the Forest Officer making the
initial decision, and any related correspondence, including additional
information requested by the Reviewing Officer.
(5) The review record is available for public inspection.
(k) Requests for additional information. At any time during the
appeal, the Reviewing Officer may request additional information from an
appellant, the Forest Officer making the initial decision, or anyone who
has submitted written comments. In addition, the Reviewing Officer may
discuss issues related to the appeal with the Forest Officer making the
initial decision, appellants, or affected parties.
(l) Decision. (1) The Reviewing Officer shall issue a final decision
on the appeal, in writing, within 90 days of the Reviewing Officer's
receipt of the notice of appeal, with a copy to anyone submitting
comments.
(2) The Reviewing Officer's decision shall either affirm or reverse
the original decision in whole or in part and include the reason(s) for
the decision. The Reviewing Officer's decision may include instructions
for further action by the Forest Officer making the initial decision.
(3) The Reviewing Officer's decision is the final administrative
decision of the Department of Agriculture and that decision is not
subject to further review under this section or any other appeal
regulation.
(m) Dismissal. (1) A Reviewing Officer shall dismiss an appeal
without decision on the merits when:
[[Page 16]]
(i) The appeal is not received within the time specified in
paragraph (f) of this section;
(ii) The requested relief cannot be granted under existing facts,
law or regulation;
(iii) The notice of appeal does not meet the requirements of
paragraph (h) of this section;
(iv) The appellant withdraws the appeal; or
(v) The Forest Officer making the initial decision withdraws that
decision.
(2) A Reviewing Officer's decision to dismiss is not subject to
further appeal or review.
(3) A Reviewing Officer shall give written notice of a dismissal to
the appellant and Forest Officer whose initial decision or appeal
decision is being appealed.
(n) Continuance. Provisions of 36 CFR 211.18 will remain in effect
for appeals of decisions concerning activities that result from natural
catastrophes filed prior to May 13, 1988.
(o) Applicability and effective date. The procedures of this section
shall not apply to any appeal received after February 22, 1989.
[53 FR 17032, May 13, 1988, as amended at 54 FR 3357, Jan. 23, 1989]
Sec. 211.17 Appeal of decisions to reoffer returned or defaulted timber sales on National Forests.
(a) Purpose. These rules provide an expedited and streamlined
administrative appeal process for decisions to reoffer sales of timber
that were returned to the Government under the provisions of the Federal
Timber Contract Modification Payment Act of 1984 (16 U.S.C. 618) or that
were defaulted by the purchaser.
(b) Matters subject to appeal. The procedures established in this
section apply only to decisions to reoffer timber sales resulting from
returned or defaulted timber sale contracts. Implementing decisions,
such as advertising and/or awarding a reoffered sale, made subsequent to
the initial decision to reoffer a returned or defaulted sale are not
appealable under this section or 36 CFR 211.18.
(c) Notice requirements. (1) Notice of decisions appealable under
this section and made after April 22, 1988, shall be published in a
local newspaper of general circulation and also shall be provided in
writing to parties to written instruments issued by the Forest Service
who are known to be affected by the decision, as well as to any other
interested persons or organizations who have requested notification of
the specific decision.
(2) If the sale that is the subject of an appeal has been bid upon
or awarded, the Reviewing Officer shall immediately notify the apparent
high bidder or sale awardee of the appeal and the opportunity to comment
as provided for in paragraph (f) of this section.
(d) Who may appeal. The process set forth in this section is
available to:
(1) Any individual or organization who, following publication of the
interim rule at 36 CFR 211.17 on January 28, 1988, submitted a timely
Notice of Appeal on a decision to reoffer a sale of returned or
defaulted timber.
(2) Any other individual or organization wishing to appeal a
decision made prior to January 28, 1988, to reoffer a sale of returned
or defaulted timber.
(3) Except as provided in paragraph (e) of this section, any
individual or organization may appeal a decision made after January 28,
1988, to reoffer timber resulting from returned or defaulted timber
sales.
(e) Who may not appeal. The process set forth in this section is not
available to the defaulting purchaser of the original timber sale that
is being or has been reoffered.
(f) Who may comment. Any person or organization interested in an
appeal of a decision under this subpart may submit written comments to
the Reviewing Officer for inclusion in the record.
(g) Levels of appeal. For decisions to reoffer timber sales made
after October 30, 1986, one level of administrative appeal is available.
For decisions to reoffer timber sales made prior to October 30, 1986,
two levels of administrative appeal are available; the second level
being to the next higher administrative level.
(1) Appeals of decisions to reoffer timber sales made by a District
Ranger shall be filed with the Forest Supervisor.
[[Page 17]]
(2) Appeals of decisions to reoffer timber sales made by a Forest
Supervisor shall be filed with the Regional Forester.
(h) Filing procedures. To appeal a decision under this section, an
appellant must file a written notice of appeal with the Reviewing
Officer. If an appellant wishes to request a stay of implementation of
the decision, the request must accompany the notice of appeal and be
made in accordance with paragraph (j) of this section. The appellant
must simultaneously provide a copy of the notice of appeal and any stay
request to the Forest officer making the initial decision to reoffer.
(1) For appeals filed pursuant to paragraph (d)(1) of this section,
the notice of appeal must have been submitted by February 29, 1988.
(2) All notices of appeal pursuant to paragraph (d)(2) of this
section must be submitted by May 23, 1988.
(3) All notices of appeal pursuant to paragraph (d)(3) of this
section must be filed within 30 days of publication of the notice of
decision, or from the date of the written decision for those parties
pursuant to paragraph (c)(1) of this section entitled to receive written
decision.
(i) Extensions of time. There shall be no extension of the time
periods specified in this section for either an appellant or the Forest
Service.
(j) Content of notice of appeal. Parties appealing a decision to
reoffer a sale must include the following information in the written
notice of appeal:
(1) The timber sale being appealed;
(2) Either the decision date or the date notice of the decision was
published;
(3) The Forest Officer who made the decision;
(4) How the appellant is affected by the decision;
(5) The relief desired; and
(6) A description of environmentally significant modifications or
changed circumstances which are alleged to have occurred between when
the initial timber sale was offered and sold and the date of the appeal
on the decision to reoffer the sale.
(k) Second level appeals. For appeals to the second level filed
pursuant to paragraph (g) of this section, a notice of appeal must be
filed with the next higher administrative level within 15 days from the
date of the first level Reviewing Officer's appeal decision. If the
first level Reviewing Officer is the Forest Supervisor, the appeal is to
the Regional Forester. If the first level Reviewing Officer is the
Regional Forester, the appeal is to the Chief. The notice need only
include the documents submitted at the previous level, the first level
decision letter, and a statement addressing why the appellant believes
the Reviewing Officer's decision is erroneous. A copy of that statement
must be provided to the first level Reviewing Officer also. The first
level Reviewing Officer may provide a response to the notice of appeal
to the second level Reviewing Officer; and must send a copy to the
appellant. The review will be based on the existing record from the
first level appeal, the second level notice of appeal, and any response
by the first level Reviewing Officer. A decision shall be issued within
45 days after receiving the notice of appeal.
(l) Stays. (1) To request a stay, the appellant must:
(i) File a written request with the Reviewing Officer at the time
the appeal is filed, simultaneously providing a copy to the Forest
officer who made the initial decision to reoffer the timber sale in
question.
(ii) Provide a written justification of the need for a stay, which
includes a description of the specific activities to be stayed, and
specific reasons why the stay should be granted, including:
(A) Harmful site-specific impacts or effects on resources in the
area affected by the reoffered timber sale; and
(B) How the cited effects and impacts would prevent a meaningful
decision on the merits.
(2) The Reviewing Officer shall rule on a stay request no later than
10 calendar days from receipt.
(i) If a stay is granted, the stay shall specify the activities to
be stopped, duration of the stay, and reasons for granting the stay.
(ii) If a stay is denied in whole or in part, the decision shall
specify the reasons for the denial.
(iii) A copy of the decision shall be sent to the appellant and the
Forest
[[Page 18]]
Officer who made the initial decision to reoffer.
(iv) A Reviewing Officer's decision on a stay is not subject to
further appeal or review.
(m) Review procedures. (1) The Reviewing Officer shall determine if
the notice of appeal has been timely filed. In the event of question,
legible postmarks will be considered evidence of timely filing. Where
postmarks are illegible, the Reviewing Officer shall rule on the timely
receipt of the notice of appeal. If the appeal is untimely, the
Reviewing Officer will immediately dismiss the appeal and notify the
Forest officer making the initial decision and the appellant.
(2) Upon receipt of a copy of the notice of appeal, the Forest
Officer making the decision to reoffer a sale shall assemble the
relevant decision documents and pertinent records and transmit them to
the Reviewing Officer within 15 calendar days.
(3) In transmitting the decision documentation to the Reviewing
Officer, the Forest Officer shall indicate how and specifically where
the appellant's issues are addressed. Where time permits, the Forest
Officer may also respond briefly to issues raised in the notice of
appeal. A copy of the transmittal letter shall be provided to the
appellant(s).
(4) The record on which the Reviewing Officer shall conduct a review
consists of the notice of appeal, any other written comments received,
the official documentation prepared by the Forest Officer making the
initial decision to reoffer, and any related correspondence, including
additional information requested by the Reviewing Officer.
(5) The review record is open to public inspection.
(n) Requests for additional information. At any time during the
review, the Reviewing Officer may request additional information from an
appellant, the Forest officer making the initial decision to reoffer, or
anyone who has submitted written comments. In addition, the Reviewing
Officer may discuss issues related to the appeal with the Forest officer
making the initial decision to reoffer, appellants, or those receiving
notice pursuant to paragraph (c) of this section, as needed to clarify
information submitted or to seek resolution of the issues in question.
(o) Decision. (1) The Reviewing Officer shall issue a final decision
on the appeal, in writing, within 90 days of the Reviewing Officer's
receipt of the notice of appeal, with a copy to any person submitting
comments.
(2) The Reviewing Officer's decision shall either affirm or reverse
the original decision in whole or in part and include the reason(s) for
the decision. The Reviewing Officer's decision may include instructions
for further action by the Forest Officer making the initial decision.
(3) The Reviewing Officer's decision is the final administrative
decision of the Department of Agriculture and that decision is not
subject to further review under this section or any other appeal
regulation, except for appeals to the second level filed pursuant to
paragraph (g) of this section.
(p) Dismissal. (1) A Reviewing Officer shall dismiss an appeal
without decision on the merits when:
(i) The appeal is not received within the time specified in
paragraph (h) of this section;
(ii) The requested relief cannot be granted under existing facts,
law or regulation;
(iii) The notice of appeal does not meet the requirements of
paragraph (j) or (k) of this section;
(iv) The appellant withdraws the appeal; or
(v) The Forest Officer making the initial decision to reoffer a sale
withdraws that decision.
(2) An appeal may be dismissed in whole or in part if an appellant
challenges a Decision Notice or Record of Decision without referring to
(i) changed circumstances or (ii) environmentally significant
modifications which are alleged to have occurred after the initial
timber sale was offered and the decision made to sell the timber.
(3) A Reviewing Officer's decision to dismiss is not subject to
further appeal or review.
(4) A Reviewing Officer shall give written notice of dismissal to
the appellant and Forest Officer whose initial decision or appeal
decision is being appealed.
[[Page 19]]
(q) Applicability and effective date. The procedures of this section
shall not apply to any decision signed on or after September 13, 1991.
[53 FR 13265, Apr. 22, 1988; 53 FR 40730, Oct. 18, 1988, as amended at
56 FR 46550, Sept. 13, 1991]
Sec. 211.18 Appeal of decisions of forest officers.
(a) Matters subject to appeal. (1) Decisions of Forest Officers
concerning the National Forest System and not excluded in paragraph (b)
of this section are subject to appeal.
(2) Written notice of a decision shall be provided to the party or
parties to a written instrument issued by the Forest Service and
affected by the decision, and to any other interested person who has
requested in writing notification of the specific decision.
(3) For other persons, notification of a decision may be provided
through publication in a newspaper of general circulation.
(b) Matters excluded from appeal under this section. (1) Decisions
appealable to the Agriculture Board of Contract Appeals, USDA, under 7
CFR part 24.
(2) Decisions involving Freedom of Information Act denials under 7
CFR part 1 or Privacy Act determinations under 7 CFR 1.118.
(3) Decisions in which the jurisdiction of another Government
agency, the Comptroller General, or a court supersedes that of the
Department of Agriculture, or decisions to provide advisory, non-binding
recommendations to other agencies which have the final authority to
implement the recommendations in question.
(4) Decisions appealable under separate administrative proceedings,
including, but not limited to, those under 36 CFR 228.14 (Minerals); 36
CFR 292.15(l) (Appeals, Sawtooth National Recreation Area, Private
Lands); 36 CFR 223.117 (Administration of Cooperative or Federal
Sustained Yield Units); 7 CFR 21.104 (Eligibility for Relocation Payment
or Amount); and 4 CFR part 21 (Bid Protests).
(5) Decisions pursuant to OMB Circular A-76.
(6) Decisions concerning contracts under the Federal Property and
Administrative Services Act of 1949, as amended.
(7) Decisions covered by the Contract Disputes Act.
(8) Decisions involving personnel matters.
(9) Decisions where relief sought is reformation of a contract or
award of monetary damages.
(10) Procedural decisions made under this subpart, except those
involving stays and dismissals.
(11) Preliminary planning process decisions made prior to completion
of final plans and guides prepared pursuant to 36 CFR part 219 and 40
CFR parts 1500-1508.
(12) Decisions resulting from review of previous decisions to
terminate a recreation residence permit.
(13) Decisions to reoffer timber from returned or defaulted timber
sales appealable under Sec. 211.17.
(14) Subsequent actions to advertise and/or award a reoffered sale.
(15) Initial decisions arising from recovery and rehabilitation
activities resulting from natural catastrophes appealable under
Sec. 211.16 of this subpart and subsequent implementing decisions, such
as advertising timber salvage sales and/or awarding contracts made
pursuant to such decisions.
(c) Filing procedures and timeliness. (1) A notice of appeal of any
initial decision must be filed with the Forest Officer who made the
decision, known as the Deciding Officer, within 45 days of the date of
the decision. A statement of reasons to support the appeal, and any
request for an oral presentation must also be filed within the 45-day
period for filing a notice of appeal unless an extension is granted.
(2) A notice of appeal at the second level must be filed within 30
days of written decision. A statement of reasons to support the appeal
and any request for an oral presentation must accompany any notice of
appeal at the second level.
(3) The period to appeal a decision made according to 40 CFR 1505.2
shall not end prior to the 30-day period provided for in 40 CFR 1506.10.
(4) When determining time of filing, Reviewing Officers shall give
precedence to United States Postal Service (USPS) postmarks over other
evidence
[[Page 20]]
of timely filing. Filing is defined as either mailing or delivery of the
appropriate documents. If documents are delivered by means other than
the USPS, date of receipt determines time of filing. If the date of
mailing cannot be determined from a legible USPS postmark, the Reviewing
Officer may accept other evidence of timely filing. Weekends or Federal
holidays are included in computing the time allowed for filing, but when
the filing time would expire on a weekend or holiday, the filing time is
extended to the end of the next business day.
(5) Questions on timeliness will be decided by the Reviewing
Officer.
(6) Decisions may be implemented unless a stay is granted.
(d) Extensions. (1) Time for filing notice of appeal may not be
extended.
(2) Written requests for extensions to request an oral presentation,
to prepare a statement of reasons, to provide comments on the responsive
statement, and to submit comments following an oral presentation may be
granted by the Reviewing Officer for good cause shown by the Applicant.
A decision will be made within 10 days of receipt and written
notification will be provided.
(e) Notice of appeal content. The notice must specifically identify
the decision being appealed, the decision date, the Forest Officer who
made the decision, how the Appellant is affected by the decision, and
the relief desired.
(f) Levels of appeal. (1) The available levels of appeal are in
sequence according to the National Forest System line officer
relationship. A decision made within delegated authority by any officer
who serves as staff to a line officer listed below is considered a
decision made by the line officer. A procedural decision cannot be
appealed to a level higher than that available for the initial
substantive decision from which the procedural matter arises.
(i) Initial decisions of a District Ranger may be appealed to the
Forest Supervisor, with second level appeal to the Regional Forester.
(ii) Initial decisions of a Forest Supervisor may be appealed to the
Regional Forester, with second level appeal to the Chief.
(iii) Initial decisions of a Regional Forester may be appealed to
the Chief.
(iv) Initial decisions of the Chief may be appealed to the Secretary
of Agriculture.
(2) Appeal decisions made by the Chief will be sent to the Secretary
within one business day: The Secretary may exercise discretion to review
such decisions, but will accept a notice of appeal or petition only for
initial decisions made by the Chief.
(3) A notice of appeal of any initial decision made by the Chief
shall, within 5 days of its receipt by the Chief, be sent along with the
relevant decision to the Secretary for review at the Secretary's
discretion. The appeal is deemed denied if the Secretary takes no action
within 10 days of receiving the appeal.
(4) Appeal decisions made by the Chief may be implemented if the
Secretary, within 10 days of receipt, does not exercise discretionary
review.
(5) If the Secretary elects to review a decision made by the Chief,
the review may be conducted based on the record before the Chief, or
under other procedures the Secretary may deem appropriate, including the
preparation of a responsive statement.
(6) Decisions at the final level of review constitute the final
administrative determination of the Department of Agriculture.
(g) Responsive statement. At each level of appeal except for
decisions of the Chief, the Deciding Officer will, within 30 days of
receiving a statement of reasons, prepare a responsive statement and
send it to the parties to the appeal. The responsive statement will
respond to Appellant's reasons, and by specific reference may
incorporate documents submitted by parties to the appeal. Appellants
may, within 20 days from the mailing date of the responsive statement,
provide a concise reply. Upon receipt of such reply, or at the end of
the 20-day period, whichever comes first, the appeal record will be sent
to the Reviewing Officer.
(h) Stay of decision pending appeal. (1) An appellant or intervenor
may request a stay of decision at any time while an appeal is pending.
[[Page 21]]
(2) When a request to intervene is accompanied by a stay request,
the Reviewing Officer shall first decide whether to grant intervention.
The 21-day period for ruling on the stay request begins on the date
intervention is granted. The Reviewing Officer will not rule on the stay
request if intervention is denied.
(3) In making a request for stay of decision, an appellant or
intervenor must:
(i) File the request for stay and accompanying documents with the
Reviewing Officer and simultaneously provide a copy to the Deciding
Officer.
(ii) Enclose a copy of the Notice of Appeal or request for
intervention, unless already submitted and acknowledged.
(iii) As part of the request, provide a written description of the
specific project(s), activity(ies), or other action(s) to be stopped.
The request must state the specific reason(s) why the stay should be
granted in detail sufficient to permit the Reviewing Officer to evaluate
and rule upon the stay request. Requesters' description shall include:
(A) Specific effect(s) upon the requester in site-specific terms of
the project(s), activity(ies), or other action(s) to be stopped; (B)
impacts or affects to resources in the area affected by the project(s),
activity(ies), or action(s) to be stopped; and (C) how the effects in
paragraphs (h)(3)(iii) (A) and (B) of this section would prevent a
meaningful appeal on the merits while the appeal decision is pending.
(4) The Reviewing Officer may rule on a stay request or petition to
change or lift a stay at any time, but, must rule no later than 21
calendar days from receipt.
(i) If a stay is granted, the stay shall specify: Specific
activities to be stopped; duration of the stay; and reasons for granting
the stay. A stay shall remain in effect for 10 days after a decision on
the merits, unless a different period is specified in the stay decision
document, or a Reviewing Officer changes a stay decision pursuant to
paragraph (h)(7) of this section.
(ii) If a stay is denied, in whole or in part, the decision document
shall specify the reasons for the denial and any subsequent appeal
rights.
(5) In deciding a stay request, a Reviewing Officer shall consider
the following:
(i) Information provided by the requester pursuant to paragraph
(h)(3)(iii) of this section including the validity of any claims of
injury to the requester or the public interest.
(ii) The effect a stay decision would have on the preservation of a
meaningful appeal on the merits.
(iii) Any other factors the Reviewing Officer may consider relevant.
(6) Deciding Officers may provide Reviewing Officers with a response
to stay requests. A copy of any response provided shall be sent to all
parties to the appeal.
(7) A Reviewing Officer may change a stay decision, according to any
terms established in the stay decision itself, or at any time during
pendancy of an appeal that circumstances support a change of the stay.
(i) A Reviewing Officer may change a stay decision upon petition by
any party to the appeal (including the Deciding Officer) at any time
that circumstances support such action. A decision not to change a stay
decision is not appealable.
(ii) In making any change to a stay decision, the Reviewing Officer
must consider the criteria outlined in paragraph (h)(5) of this section.
(iii) Petitions to change an existing stay decision must contain an
explanation of how circumstances have changed.
(8) Levels of appeal for any decision on a stay request or change
thereof are those specified in paragraphs (f), (l), and (o) of this
section. Appellants may choose to file a procedural appeal of a stay
decision pursuant to paragraph (o)(4) of this section or to request a
change in a stay decision pursuant to paragraph (h)(7) of this section,
but may not elect to pursue both options. In appeals with multiple
parties (appellants and/or intervenors), once any party invokes a
procedural appeal of a stay decision or a request to change a stay
decision, whichever occurs first, all other parties shall be bound by
that action and cannot then pursue the alternate course of action.
[[Page 22]]
(9) The provisions of paragraphs (h)(1) through (h)(8) of this
section apply to all appeals pending on July 20, 1987.
(i) Dismissal. (1) An Appellant may withdraw an appeal at any time
by notifying the Deciding Officer and other parties to the appeal in
writing.
(2) A Reviewing Officer may dismiss an appeal when:
(i) Appellant has failed to submit a timely statement of reasons and
the notice of appeal provides an insufficient basis upon which to base a
decision.
(ii) Relief desired by the Appellant cannot be granted under
existing facts or laws.
(3) Dismissals are appealable, if a level is available as set forth
in paragraph (f) of this section.
(j) Scope of appeal. Throughout all levels of appeal, an Appellant
and any Intervenor shall be confined to the issues originally raised in
the appeal. New information on the original issues may be introduced at
any level.
(k) Provision for comments. Any person or organization may submit
written comments for the record. Such comments will be considered as
provided for in paragraph (p) of this section.
(l) Intervenors. (1) At the discretion of the Reviewing Officer, any
person or organization having an immediate interest in the subject of an
appeal may intervene by submitting written information at any level of
the apppeal process. Such intervention shall not act to elevate the
appeal to levels higher than available to the original Appellant.
(2) In appeals involving Intervenors, the Reviewing Officer may
prescribe special procedures to expedite the process. The parties to the
appeal will be notified of these procedures.
(3) Appellants and Intervenors must concurrently furnish copies of
all submissions to each other; otherwise, such submissions may be
removed from the appeal record. At the discretion of the Reviewing
Officer, Appellants may be given time to review and comment on initial
submissions by intervenors and vice versa.
(4) Appellants or Intervenors appealing a decision to a higher level
must furnish copies of their notice of appeal to all other named parties
to the appeal.
(m) Oral presentation. Within the appeal time limits established
herein, parties to an appeal may ask to give an oral presentation. The
Reviewing Officer will respond in writing to the request no later than
10 days after receiving the appeal record. If the request is granted,
the Reviewing Officer will advise the parties of who will hear the
presentation, and of the place, time, and date. Participants may provide
documentary material at the presentation and, within 10 days after the
presentation, may also submit a brief summary of their remarks.
(n) Consolidation of appeals. Multiple appeals of the same decision,
or of similar decisions involving common issues, facts, or law, may be
consolidated by the Reviewing Officer who may then issue one appeal
decision. At the discretion of the Reviewing Officer, the Deciding
Officer may prepare one responsive statement to multiple appeals.
(o) Procedural matters. (1) Decisions on stays and dismissals are
the only appealable procedural decisions. Such appeals must be filed
with the Deciding Officer within 30 days of the procedural decision. A
statement of the Appellant's reasons must be included.
(2) Within 10 days of receipt, the Deciding Officer shall send
appeals on stays and dismissals and a response to the Reviewing Officer
for decision.
(3) Decisions on procedural matters will be made by the Reviewing
Officer within 10 days of receipt and all parties will be notified of
the decision in writing.
(4) Appeal of decisions on procedural matters cannot exceed the
highest level available for the initial substantive decision appealed.
(p) Appeal record. The record consists of a distinct set of
identifiable documents directly concerning the appeal, including, but
not limited to, notices of appeal, comments, statements of reasons,
responsive statements, procedural determinations, correspondence,
summaries of oral presentations and related documents, appeal decisions,
and other information the Reviewing Officer may consider necessary to
reach a decision. For a period not to
[[Page 23]]
exceed 10 days following the date the record is received by the
Reviewing Officer or from the date of the oral presentation, whichever
is the later date, parties may submit additional information to the
Reviewing Officer for the record. They must concurrently send copies to
all other parties who may within 20 days of the date they receive such
material, provide a concise response to the Reviewing Officer. Upon
receipt of such response, the record will be closed. The record is open
for public inspection.
(q) Request for additional information or remand for further action.
If the appeal record is considered inadequate to affirm or reverse a
decision, the Reviewing Officer may suspend the appeal process and
request additional information, or remand the case with instructions for
further action.
(r) Appeal decision. An appeal decision will be based only on the
record and should be made within 30 days of the date the record is
closed. The Appellant will be notified if more time is needed.
(s) Continuance of appeals. Provisions of 36 CFR 211.19 will remain
in effect for appeals initially filed between June 28, 1977, and the
effective date of 36 CFR 211.18. The procedures of this section shall
not apply to any decision of a forest officer made after February 21,
1989.
[48 FR 13425, Mar. 31, 1983, as amended at 49 FR 26591, June 28, 1984;
51 FR 19831, June 3, 1986; 51 FR 41785, Nov. 19, 1986; 52 FR 23178, June
18, 1987; 52 FR 27547, July 22, 1987; 53 FR 2493, Jan. 28, 1988; 53 FR
17033, May 13, 1988; 54 FR 3357, Jan. 23, 1989; 54 FR 6892, Feb. 15,
1989]
PART 212--ADMINISTRATION OF THE FOREST DEVELOPMENT TRANSPORTATION SYSTEM--Table of Contents
Sec.
212.1 Definitions.
212.2 Forest development transportation program.
212.3 Cooperative work.
212.4 Construction and maintenance.
212.5 Road system management.
212.6 Ingress and egress.
212.7 Access procurement by the United States.
212.8 Permission to cross lands and easements owned by the United
States and administered by the Forest Service.
212.9 Principles for sharing use of roads.
212.10 Maximum economy forest development roads.
212.11--212.19 [Reserved]
212.20 National forest development trail system operation.
212.21 Pacific Crest National Scenic Trail.
Authority: 16 U.S.C. 551, 23 U.S.C. 205.
Sec. 212.1 Definitions.
For the purpose of this part the following terms, respectively,
shall mean:
(a) Chief. The Chief, Forest Service, Department of Agriculture.
(b) Regional forester. A regional forester of the Forest Service.
(c) Forest development transportation plan. The plan for the system
of access roads, trails, and airfields needed for the protection,
administration, and utilization of the National Forests and other lands
administered by the Forest Service, or the development and use of
resources upon which communities within or adjacent to the National
Forests are dependent.
(d) Forest development transportation facility. An access road,
trail, or airfield wholly or partly within or adjacent to and serving a
National Forest and other lands administered by the Forest Service which
has been included in the forest development transportation plan.
(e) Forest development road and trail funds. Funds authorized or
appropriated for the purpose of carrying out the provisions of section
205 of the Act of August 27, 1958 (72 Stat. 907), as amended; 23 U.S.C.
205.
(f) Road and trail 10 percent funds. Funds available from the
permanent appropriation ``Roads and Trails for States'' under the Act of
March 4, 1913 (37 Stat. 843), as amended; 16 U.S.C. 501.
(g) Federal airport funds. Discretionary funds available for
airfields in National Forests under section 6(b)(3) of the Act of May
13, 1946 (60 Stat. 173), as amended; 49 U.S.C. 1105(b)(3).
(h) Construction. The supervising, inspecting, actual building, and
all expense incidental to the construction or reconstruction of a forest
development
[[Page 24]]
transportation facility, including locating, surveying, and mapping
(including the establishment of temporary and permanent geodetic markers
in accordance with the specifications of the Coast and Geodetic Survey
in the Department of Commerce), costs of rights-of-way, and elimination
of hazards.
(i) Maintenance. The upkeep of the entire forest development
transportation facility including surface and shoulders, parking and
side areas, structures, and such traffic-control devices as are
necessary for its safe and efficient utilization.
(j) Preconstruction engineering. All work and expense of preparing
for construction or reconstruction of a forest development
transportation facility including:
(1) Engineering and economic investigations, studies, and reports;
(2) Reconnaissance surveys;
(3) Preliminary surveys;
(4) Preliminary location surveys;
(5) Soils, foundations, and materials investigations, surveys, and
tests;
(6) Preliminary and final designs;
(7) Preliminary and final plans, drawings, specifications, and
estimates of quantities and cost;
(8) Final location surveys staked on the ground; and
(9) Rights-of-way surveys, plans, and descriptions.
(k) Construction engineering. All work and expense of setting out,
controlling, inspecting, and measuring the construction or
reconstruction of a forest development transportation facility
including:
(1) Construction surveys to establish line and grade for the work,
to control the work, and to measure quantities;
(2) Redesigning, adjusting, and changing the plans, specifications,
and materials to meet conditions;
(3) Inspecting, directing, and controlling operations for compliance
with plans and specifications;
(4) Inspecting, testing, and accepting materials and equipment to be
installed in the work; and
(5) Inspecting, measuring, and accepting completed work.
(25 Stat. 357, 26 Stat. 1103, 30 Stat. 35-36, 1233, 38 Stat. 430, 46
Stat. 1421 64 Stat. 82, 72 Stat. 885, as amended, 74 Stat. 215, 78 Stat.
1089; 16 U.S.C. 471, 478, 498, 525, 528, 531, 532, 538, 551, 572, 23
U.S.C. 101, 205, 40 U.S.C. 257, 258a, et seq., 42 Atty. Gen. Op. No. 7,
Comp. Gen. B-65972, May 19, 1947; 40 Comp. Gen. 372; 41 Comp. Gen. 1; 41
Comp. Gen. 576, and 42 Comp. Gen. 590)
[30 FR 5476, Apr. 16, 1965]
Sec. 212.2 Forest development transportation program.
(a) A forest development transportation plan must be prepared for
each National Forest and experimental forest and other areas under
Forest Service administration. The plan must be prepared, maintained,
revised, and reported on in accordance with procedures prescribed by the
Chief.
(b) A program of work for the forest development transportation
system shall be developed each fiscal year in accordance with procedures
prescribed by the Chief.
(c) Forest development transportation system funds shall be
allocated based on consideration of relative needs of the various
National Forests and other lands administered by the Forest Service, the
existing transportation facilities, the value of timber or other
resources served, relative fire danger, and comparative difficulties of
construction.
[62 FR 58654, Oct. 30, 1997]
Sec. 212.3 Cooperative work.
(a) Cooperative agreements for all projects which involve financial
contributions from cooperators shall be negotiated, approved, and
executed in accordance with procedures prescribed by the Chief.
(b) Cooperative funds contributed in advance shall be deposited in
the United States Treasury to the credit of the Forest Service
Cooperative Fund authorized by the Act of June 30, 1914 (38 Stat. 430),
as amended; 16 U.S.C. 498, or the Act of March 3, 1925 (43 Stat. 1132),
as amended; 16 U.S.C. 572, which deposits will be made available for
expenditure from the appropriation ``Cooperative Work, Forest Service.''
If a State, county or other governmental
[[Page 25]]
agency is unable to contribute funds under the Act of March 3, 1925, as
amended, in advance but is able to pay its share subsequent to
performance of the work, the subsequent payment of such funds will be
deposited to the credit of the Forest Service appropriation from which
the expenditures were made or to appropriations for similar purposes
currently available at the time of deposit.
[25 FR 6360, July 7, 1960. Redesignated at 62 FR 58654, Oct. 30, 1997]
Sec. 212.4 Construction and maintenance.
(a) Construction and maintenance work on forest development
transportation facilities with appropriated funds shall be directed to
what is necessary and economically justified for protection,
administration, development, and multiple-use management of the
federally owned lands and resources served.
(b) Preliminary engineering and the construction and maintenance of
forest development transportation facilities shall be performed by force
account or let to contract, unless otherwise approved by the Chief. The
contract method shall be employed for roads and trails in accordance
with section 205(c) of the Act of August 27, 1958 (72 Stat. 907); 23
U.S.C. 205, and for all other facilities when it is advantageous and in
the interest of the Government.
(c) No construction work shall be started by force account or let to
contract until all necessary rights of way have been secured, and
approved by the Attorney General, if required, and cooperative
agreements, if any, approved and executed.
[24 FR 10256, Dec. 18, 1959, as amended at 25 FR 6360, July 7, 1960.
Redesignated at 62 FR 58654, Oct. 30, 1997]
Sec. 212.5 Road system management.
(a) Traffic rules. Rules set forth under 36 CFR part 261 and this
section shall apply to all forest development roads under the
jurisdiction of the Forest Service except when in conflict with written
agreement.
(1) General. Traffic on roads is subject to State traffic laws where
applicable except when in conflict with the rules established under 36
CFR part 261.
(2) Specific. The following specific traffic rules shall apply
unless different rules are established in 36 CFR part 261.
(i) The load, weight, length, height, and width limitations of
vehicles shall be in accordance with the laws of the States wherein the
road is located. Greater or lesser limits may be imposed and these
greater or lesser limits shall be established as provided in 36 CFR part
261.
(ii) Roads, or segments thereof, may be restricted to use by certain
classes of vehicles or types of traffic as provided in 36 CFR part 261.
Classes of vehicles are defined to include, but not be limited to,
distinguishable groupings such as passenger cars, buses, trucks,
motorcycles, automobiles, 4-wheel drive vehicles and tailers. Types of
traffic are defined to include, but not be limited to, groupings such as
commercial hauling, recreation and administrative.
(iii) Roads, or segments thereof, may be closed to all vehicle use
as provided in 36 CFR part 261.
(iv) Additional rules may be imposed as provided in 36 CFR part 261.
(b) [Reserved]
(c) Cost recovery on forest service roads. The Chief may determine
that a share of the cost of acquisition, construction, reconstruction,
improvement, or maintenance of a road, or segment thereof, used or to be
used for commercial hauling of non-Federal forests products and other
non-Federal products, commodities and materials, should be borne by the
owners or haulers thereof. The Chief may condition the permission to use
a road, or segment thereof, upon payment to the United States of the
proportionate share of the cost and bearing proportionate maintenance as
determined to be attributable to the owner's or hauler's use in
accordance with Sec. 212.9. This condition to use roads would apply
where the owners or haulers:
(1) Have not shared in the cost of acquisition, construction,
reconstruction, or improvements, and
(2) Have not made contributions to pay their proportionate share of
the costs.
[[Page 26]]
(d) Maintenance and reconstruction of forest service roads by
users--(1) Maintenance. The Chief may require, but not in conflict with
an existing permit, easement, contract, or other agreement, the user or
users of a road, including purchasers of Government timber and other
products, to maintain the roads in a satisfactory condition commensurate
with the particular use requirements of each. The maintenance to be
borne by each user shall be proportionate to total use and no individual
user shall be required to perform or bear the costs of maintenance other
than that commensurate with his use.
(2) Reconstruction. The Chief may require, but not in conflict with
an existing permit, easement, contract, or other agreement, the user or
users of a road to reconstruct it when, at the time the use is
requested, reconstruction is determined to be necessary to accommodate
his use.
(3) Deposits in lieu of performance. If the maintenance or
reconstruction cannot be so provided or if the Chief determines that
maintenance or reconstruction by a user would not be practical, the
Chief may require that sufficient funds be deposited by the user to
provide his portion of the total maintenance or reconstruction costs.
Deposits made to cover maintenance or reconstruction of roads shall be
used for the purposes deposited, except that:
(i) Deposits received for work on adjacent and overlapping areas may
be combined when it is the most practicable and efficient manner of
performing the work, and cost thereof may be determined by estimates,
and
(ii) Unexpended balances upon accomplishment of the purposes for
which deposited shall be transferred to miscellaneous receipts or
refunded.
(e) Deposits for making delayed payments to cooperator. Any fees or
other collections received by the Chief under the terms of an agreement
or other document providing for delayed payments to the Government's
cooperator for use of a road shall be placed in a fund available for
making these payments.
[39 FR 27649, July 31, 1974, as amended at 42 FR 2957, Jan. 14, 1977; 43
FR 20007, May 10, 1978; 62 FR 58654, Oct. 30, 1997. Redesignated and
amended at 62 FR 58654, Oct. 30, 1997]
Sec. 212.6 Ingress and egress.
(a) Policy in acquiring and granting access. To assure effective
protection, management, and utilization of lands administered by the
Forest Service and intermingled and adjacent private and public lands,
and for the use and development of the resources upon which communities
within or adjacent to the National Forests are dependent, the Chief
shall as promptly as is feasible obtain needed access thereto and shall
grant appropriate access across National Forest and other lands and
easements administered by the Forest Service to intermingled or adjacent
landowners. Construction, reconstruction or maintenance of a road or
highway requires written authorization.
(b) Actual settlers and other persons residing within the National
Forests and other areas administered by the Forest Service. Actual
settlers and other persons residing within the National Forests and
other areas administered by the Forest Service shall be permitted
ingress and egress over the same and use of existing forest development
roads and trails in order to reach their homes and to utilize their
property: Provided, such ingress and egress or use shall conform to
rules and regulations governing the protection and administration of the
lands and the roads or trails to be used.
(c) Others. Entering upon the National Forests and other lands
administered by the Forest Service and use of existing forest
development roads and trails shall be permitted for all proper and
lawful purposes subject to compliance with rules and regulations
governing the lands and the roads or trails to be used.
(25 Stat. 357, 26 Stat. 1103, 30 Stat. 35-36, 1233 38 Stat. 430, 46
Stat. 1421, 64 Stat. 82, 72 Stat. 885; as amended, 74 Stat. 215, 78
Stat. 1089; 16 U.S.C. 471, 478, 498, 525, 528-531, 532, 538, 551, 572,
23 U.S.C. 101, 205, 40 U.S.C. 257, 258a et seq.; 42 Atty. Gen. Op. No.
7; Comp. Gen. B-65972, May 19, 1947; 40 Comp. Gen. 372; 41 Comp. Gen. 1;
41 Comp. Gen. 576, and 42 Comp. Gen. 590)
[40 FR 52611, Nov. 11, 1975, as amended at 42 FR 2957, Jan. 14, 1977.
Redesignated at 62 FR 58654, Oct. 30, 1997]
[[Page 27]]
Sec. 212.7 Access procurement by the United States.
(a) Existing or proposed forest development roads which are or will
be parts of a system of a State, county, or other local subdivision.
Forest development roads which are or will be parts of a road system of
a State, county, or other local subdivision and are on rights-of-way
held in the name of the State, county, or other local subdivision may be
constructed, reconstructed, improved or maintained by the Forest Service
when there is an appropriate agreement with the State, county, or other
local subdivision under authority of 23 U.S.C. 205: Provided, Such
construction, reconstruction, improvement, or maintenance is essential
to provide safe and economical access to the National Forests and other
lands administered by the Forest Service.
(b) Acquisition of easements and rights of use. Except as otherwise
provided in the regulations of this part, easements for road and trail
construction across non-Federal lands and easements or rights of use
over non-Federal roads and trails will be acquired in the name of the
United States of America and its assigns. The easements or rights of use
may be acquired by purchase, condemnation, donation, or as a reciprocal
for permits or easements for roads or trails to be constructed or for
easements over or permits to use existing roads or trails.
(c) Methods of compensation for easements and rights of use acquired
by the United States. Compensation in negotiated acquisitions may be:
(1) By payment from appropriated funds;
(2) Pursuant to reservation in the grant of easement to the United
States whereby the grantor reserves the right to require haulers of
Federal timber or other Federal products over the road conveyed or
thereafter constructed by the grantor to make payments to the grantor in
accordance with the terms of the reservation;
(3) By granting reciprocal rights; or
(4) By a combination of these methods.
(d) Cooperative construction and use agreements. Where areas, partly
lands administered by the Forest Service and partly private or other
ownership are undeveloped or inadequately developed by roads, the Chief
will, to the extent feasible and advantageous to the United States, join
in planning, constructing, reconstructing, improving, maintaining, and
using an adequate road system on the basis of each party bearing the
proportion of the cost attributable to the anticipated benefits as set
forth in Sec. 212.9.
(e) Condemnation. Where access across non-Federal land or over a
non-Federal road or trail cannot be obtained through negotiations with
reasonable promptness, condemnation will be undertaken.
(f) Access over non-Federal land and use of non-Federal roads or
trails on a temporary basis. The Chief may negotiate a temporary
agreement for access over non-Federal land and for use of an existing
non-Federal road or trail where there is immediate need for temporary
access for limited purposes that can be economically met by such
procedure, or where the foreseeable need does not justify the
expenditures necessary to provide a permanent road or trail.
(g) Use and control of interests in roads, trails, and easements
acquired by the United States. Interests in roads, trails, and easements
acquired by the United States shall be under the control of the United
States, subject to approved reservations, limitations and other
provisions set forth in the easement, permit, or other indenture. This
control by the United States may include restricting or conditioning the
use of the interest owned by the United States in the 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]
[[Page 28]]
Sec. 212.8 Permission to cross lands and easements owned by the United States and administered by the Forest Service.
(a) Permission to construct or use roads across lands and assignable
easements owned by the United States and administered by the Forest
Service. If a reciprocal benefit is needed by the United States,
permission to construct or use a road across lands and across assignable
easements owned by the United States and administered by the Forest
Service will be conditioned, except as provided in this section, for any
applicant who seeks a permit to construct or use a road across the same,
upon the grant to the United States of a reciprocal benefit. Such
benefit shall bear:
(1) A reasonable relation to the management of lands administered by
the Forest Service; and
(2) A value substantially similar to the value of the estate or
interest in lands or easements applied for. In those instances where the
values of the interests needed by the United States exceed those applied
for by the applicant, the additional interests required by the United
States will be acquired as provided in Sec. 212.7(b) and (c). Where
values needed by the applicant exceed those needed by the United States,
the difference in values will be determined under principles set forth
below and in Secs. 212.5(c) and 212.9. If a reciprocal benefit is not
needed by the United States, or the applicant shows good cause why the
reciprocal benefit needed by the United States cannot or should not be
granted by him, or the applicant declines to grant the reciprocal
benefit requested by the United States or if a bona fide emergency
exists, permission to construct or use a road across lands owned by the
United States may be conditioned for any applicant upon reasonable
charges and all other terms and conditions required by the Chief to
protect the interests of the United States. Permits for such road
construction or use will be non-exclusive and will be conditioned upon
compliance with their terms and conditions and with the rules and
regulations governing the protection and administration of the lands and
those applicable to such roads.
(b) [Reserved]
(c) Replacement of prior grants. (1) Upon application to the Chief,
an easement under the Act of March 3, 1899 (30 Stat. 1233, 16 U.S.C.
525), shall be replaced by an easement under paragraph (d) of this
section.
(2) Upon application to the Chief, an easement shall be granted
under paragraph (d) of this section as a replacement for any
stipulations for ingress and egress issued under the Act of June 4, 1897
or permit or other document evidencing the applicant's right to use a
road: Provided, The applicant has met the requirements for obtaining
such easement as set forth in paragraph (d) of this section.
(d) Easements for roads crossing lands or easements administered by
the Forest Service. (1) Applications for permanent or temporary
easements for specified periods or otherwise to be granted under the Act
of October 13, 1964 (78 Stat. 1039, 16 U.S.C. 533), over lands or
easements administered by the Forest Service, or over roads thereon will
be approved by the Chief for those applicants who have conveyed or
provided appropriate easements over roads, assignable easements and
lands owned or controlled by them to the United States of America and
its assigns and who have already constructed, or will, as scheduled by
agreement, construct their proportionate share of the road or road
system of which the segments described in the application are parts. The
Chief, after approval of the application and the grant of the easement,
will cause the same to be entered in the records of the Forest Service,
and delivered to the applicant.
(2) Notwithstanding paragraph (d)(1) of this section, the Chief may
grant to 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
[[Page 29]]
subdivision for general public use: Provided, That easements shall not
be granted under authority of this act (78 Stat. 1089), 16 U.S.C. 533
which may be granted under the Highway Act (72 Stat. 916, 23 U.S.C.
317), as amended. The easements shall contain such provisions, terms,
and conditions as the Chief may determine are necessary to retain and
protect the interests needed by the United States.
(4) All instruments affecting permanent interests in land executed
pursuant to this paragraph (d) of this section shall be recorded in each
county where the lands are located. Copies of all instruments affecting
interests in lands reserved from public domain shall be furnished by the
Chief to the Secretary of the Interior.
(5) The Chief may terminate any easement granted under the
provisions of the Act of October 13, 1964 (78 Stat. 1089, 16 U.S.C.
534),
(i) By consent of the owner of the easement,
(ii) By condemnation, or
(iii) Upon abandonment after nonuse by the owner of the easement for
a period of 5 years. Before any easement is terminated for nonuse or
abandonment, the owner of the easement must be given notice and, upon
his request made within 60 days after receipt of the notice, a hearing
in accordance with the provisions of 36 CFR part 211, subpart B.
(25 Stat. 357, 26 Stat. 1103, 30 Stat. 35-36, 1233, 38 Stat. 430, 46
Stat. 1421, 64 Stat. 82, 72 Stat. 885, as amended, 74 Stat. 215, 78
Stat. 1089; 16 U.S.C. 471, 478, 498, 525, 528-531, 532, 538, 551, 572,
23 U.S.C. 101, 205, 40 U.S.C. 257, 258a et seq.; 42 Atty. Gen. Op. No.
7; Comp. Gen. B-65972, May 19, 1947; 40 Comp. Gen. 372; 41 Comp. Gen. 1;
41 Comp. Gen. 576, and 42 Comp. Gen. 590)
[30 FR 5476, Apr. 16, 1965, as amended at 39 FR 27650, July 31, 1974; 48
FR 28638, June 23, 1983. Redesignated and amended at 62 FR 58654, Oct.
30, 1997]
Sec. 212.9 Principles for sharing use of roads.
The use of roads under arrangements for sharing costs or performance
shall be in accordance with the following:
(a) Road improvement. Use of a road for commercial hauling, except
occasional or minor amounts, will be conditioned upon improvement or
supplemental construction of the road to safety and economically serve
the contemplated use, unless the Chief determines that the safety and
economy of the established and foreseeable use by the United States, its
users and cooperators will not be impaired by the use for which
application is being made. With the consent of the Chief the applicant
may deposit funds in the estimated amount required for the improvements
or supplemental construction in lieu of performance. Such funds will be
used by the Forest Service to do the planned work. The cost of the
improvements or supplemental construction will be taken into account in
determining any otherwise required contribution to cover the
proportionate share of the cost of road acquisition, construction,
reconstruction or improvement attributable to the use.
(b) Corresponding benefits. Corresponding benefits which may be
accepted by the Chief for sharing road use will be those which bear a
reasonable relation to the management of lands administered by the
Forest Service. They may be in the form of:
(1) Deposit of funds with the Forest Service for use in paying the
cost of road construction, reconstruction, or improvement to be borne by
the user;
(2) The grant of a reciprocal right of substantially similar value
to the road use sought;
(3) Construction, reconstruction, or improvement by applicant of a
road needed for access to and use of lands administered by the Forest
Service; or (4) any combination of these.
(c) Cost determinations for roads cooperatively constructed under
agreements. When roads are constructed under cooperative agreements to
meet mutual needs of the United States and others for access,
determinations of the shares of costs to be borne by the United States
and the cooperating parties will include consideration of:
(1) The standard of road required for the planned hauling;
(2) The share of planned use;
(3) The location and volume of tributary timber owned by each party
and expected to be hauled over the road or roads;
[[Page 30]]
(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 tend to direct or
limit policies and procedures for management of lands administered by
the Forest Service.
(25 Stat. 357, 26 Stat. 1103, 30 Stat. 35-36, 1233, 38 Stat. 430, 46
Stat. 1421, 64 Stat. 82, 72 Stat. 885, as amended, 74 Stat. 215, 78
Stat. 1089; 16 U.S.C. 471, 478, 498, 525, 528-531, 532, 538, 551, 572,
23 U.S.C. 101, 205, 40 U.S.C. 257, 258a et seq.; 42 Atty. Gen. Op. No.
7; Comp. Gen. B-65972, May 19, 1947; 40 Comp. Gen. 372; 41 Comp. Gen. 1;
41 Comp. Gen. 576, and 42 Comp. Gen. 590)
[30 FR 5478, Apr. 16, 1965, as amended at 39 FR 27650, July 31, 1974.
Redesignated and amended at 62 FR 58654, Oct. 30, 1997]
Sec. 212.10 Maximum economy forest development roads.
The Chief may acquire, construct, reconstruct, improve, and maintain
forest development roads within and near the National Forests and other
lands administered by the Forest Service in locations and according to
specifications which will permit maximum economy in harvesting timber
from such lands tributary to such roads and
[[Page 31]]
at the same time meet the requirements for protection, development, and
management thereof and for utilization of the other resources thereof.
Financing of such roads may be accomplished--
(a) By the Chief utilizing appropriated funds,
(b) By requirements on purchasers of National Forest timber and
other products, including provisions for amortization of road costs in
contracts,
(c) By cooperative financing with other public agencies and with
private agencies or persons, or
(d) By a combination of these methods: Provided, That where roads of
a higher standard than that needed in the harvesting and removal of the
timber and other products covered by the particular sale are to be
constructed, the purchaser of the National Forest timber and other
products shall not be required to bear that part of the costs necessary
to meet such higher standard, and the Chief may make such arrangements
to this end as may be appropriate, including arrangements for
performance of purchaser's road development work under the Act of March
3, 1925, as amended by section 5 of the Act of April 24, 1950 (16 U.S.C.
572).
(25 Stat. 357, 26 Stat. 1103, 30 Stat. 35-36, 1233, 38 Stat. 430, 46
Stat. 1421, 64 Stat. 82, 72 Stat. 885, as amended, 74 Stat. 215, 78
Stat. 1089; 16 U.S.C. 471, 478, 498, 525, 528-531, 532, 538, 551, 572,
23 U.S.C. 101, 205, 40 U.S.C. 257, 258a et seq.; 42 Atty. Gen. Op. No.
7; Comp. Gen. B-65972, May 19, 1947; 40 Comp. Gen. 372; 41 Comp. Gen. 1;
41 Comp. Gen. 576, and 42 Comp. Gen. 590)
[30 FR 5479, Apr. 16, 1965. Redesignated at 62 FR 58654, Oct. 30, 1997]
Secs. 212.11--212.19 [Reserved]
Sec. 212.20 National Forest development trail system operation.
(a) Forest development trails. Forest development trails shall be
identified on a map available to the public at the offices of the Forest
Supervisors and District Rangers and shall be marked on the ground by
appropriate signs which reasonably bring their location to the attention
of the public.
(b) [Reserved]
[43 FR 20007, May 10, 1978]
Sec. 212.21 Pacific Crest National Scenic Trail.
The Pacific Crest National Scenic Trail as defined by the National
Trails Systems Act, 82 Stat. 919, shall be administered primarily as a
footpath and horseback riding trail by the Forest Service in
consultation with the Secretary of the Interior. The use of motorized
vehicles may be authorized by the Federal Agency administering the
segment of trail involved when use of such vehicles is necessary to meet
emergencies or to enable landowners or land users to have reasonable
access to their lands or timber rights.
(82 Stat. 919 (16 U.S.C. 1241 et seq.))
[43 FR 20007, May 10, 1978]
PART 213--ADMINISTRATION OF LANDS UNDER TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT BY THE FOREST SERVICE--Table of Contents
Sec.
213.1 Designation, administration, and development of National
Grasslands.
213.2 Authority for Chief, Forest Service, to group, define, and name
national grasslands.
213.3 Protection, occupancy, use, administration, and exercise of
reservations.
213.4 Prior rules and regulations superseded.
Authority: 50 Stat. 525, as amended; 7 U.S.C. 1010-1012.
Sec. 213.1 Designation, administration, and development of National Grasslands.
(a) The land utilization projects administered by Department of
Agriculture designated in paragraph (e) of this section hereafter shall
be named and referred to as National Grasslands.
(b) The National Grasslands shall be a part of the National Forest
system and permanently held by the Department of Agriculture for
administration under the provisions and purposes of title III of the
Bankhead-Jones Farm Tenant Act.
(c) The National Grasslands shall be administered under sound and
progressive principles of land conservation and multiple use, and to
promote development of grassland agriculture and sustained-yield
management of the forage,
[[Page 32]]
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]
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
[[Page 33]]
superseded as to all such projects administered by the Forest Service,
but not as to such project lands administered by other agencies.
[27 FR 9217, Sept. 18, 1962]
PART 215--NOTICE, COMMENT, AND APPEAL PROCEDURES FOR NATIONAL FOREST SYSTEM PROJECTS AND ACTIVITIES--Table of Contents
Sec.
215.1 Purpose and scope.
215.2 Definitions.
215.3 Proposed actions subject to notice and comment.
215.4 Actions not subject to notice and comment.
215.5 Notice and comment on proposed actions.
215.6 Response to comments received on proposed actions.
215.7 Decisions subject to appeal.
215.8 Decisions not subject to appeal.
215.9 Notice of decisions.
215.10 Implementation of decisions.
215.11 Who may participate in appeals.
215.12 Where to file appeals.
215.13 Appeal time periods and process.
215.14 Content of an appeal.
215.15 Dismissal of appeal without review.
215.16 Informal disposition.
215.17 Formal disposition.
215.18 Appeal deciding officer authority.
215.19 Appeal reviewing officer authority.
215.20 Policy in event of judicial proceedings.
215.21 Applicability and effective date.
Authority: 16 U.S.C. 472, 551; sec. 322, Pub. L. 102-381, 106 Stat.
1419 (16 U.S.C. 1612 note).
Source: 58 FR 58910, Nov. 4, 1993, unless otherwise noted.
Sec. 215.1 Purpose and scope.
(a) Purpose. The rules of this part have two purposes. First, this
part establishes a process by which persons or organizations may receive
notice and be provided opportunity to comment on proposed actions
implementing national forest land and resource management plans prior to
a final decision by the responsible official. This includes notice of
and opportunity to comment on nonsignificant amendments of land and
resource management plans that are made in conjunction with those
proposed actions. Second, this part provides for prompt administrative
review of project and activities implementing forest plans and
establishes who may appeal decisions on planned actions, the kind of
decisions that may be appealed, the responsibilities of the participants
in an appeal, and the procedures that apply.
(b) Scope. The process established in this part constitutes the
final administrative opportunity for the public to influence National
Forest System project decisionmaking prior to implementation. The rules
of this part complement, but do not replace, numerous other
opportunities to participate in and influence agency decisionmaking
provided pursuant to the National Environmental Policy Act of 1969, the
National Forest Management Act, and the implementing regulations and
procedures in 40 CFR parts 1500-1508 and 36 CFR parts 216 and 219,
Forest Service Manual Chapters 1920 and 1950, and Forest Service
Handbooks 1909.12 and 1909.15.
Sec. 215.2 Definitions.
For the purpose of this part--
Appeal is the written document filed with an Appeal Deciding Officer
by one who objects to a decision covered by this part.
Appeal Deciding Officer is the Forest Service line officer having
the delegated authority and responsibile to render a decision on an
appeal filed under this part.
Appeal Period is the 45 calendar-day period during which an appeal
may be filed with the Appeal Deciding Officer.
Appeal Record is the information assembled and/or created during the
course of an appeal and upon which review of an appeal is conducted. It
consists of the decision documentation, the appeal, the Responsible
Official's documentation of the informal disposition meeting, the public
notice of decision document, and written comments submitted by
interested parties.
Appeal Reviewing Officer is an agency official who reviews an appeal
and makes a written recommendation to the Appeal Deciding Officer on the
disposition of the appeal.
Appellant is a person or organization filing an appeal under this
part.
Categorical Exclusion refers to a category of actions which do not
individually or cumulatively have a significant effect on the human
environment
[[Page 34]]
and for which neither an environmental impact statement (EIS) nor an
environmental assessment (EA) is required (40 CFR 1508.4; Forest Service
Handbook 1909.15, Chapter 30).
Comment Period is the 30 calendar day period, following publication
of the notice for public comment, available to interested persons to
provide comments to a Responsible Official on a proposed action subject
to this part.
Decision Document is the document that records the decisions for
actions implementing land and resource management plans. (See also,
Record of Decision, Decision Notice, and Decision Memo.)
Decision documentation refers to the decision document and all
relevant environmental and other analysis documentation and records on
which the Responsible Official based a decision that is at issue under
an appeal filed pursuant to this part. Decision documentation may
include, but is not limited to, a project or case file, Record of
Decision, Decision Notice, Decision Memo, environmental assessment,
finding of no significant impact, draft and final environmental impact
statement, land and resource management plan, regional guide, and
documents incorporated by reference in any of the preceding documents.
Decision Memo is a concise written record of a Responsible
Official's decision to implement actions that have been categorically
excluded from documentation in an environmental impact statement or
environmental assessment (40 CFR 1508.4, Forest Service Handbook
1909.15, Chapter 30).
Decision Notice is a concise written record of a Responsible
Official's decision based on an environmental assessment and a finding
of no significant impact. (40 CFR 1508.9, Forest Service Handbook
1909.15, Chapter 40).
Environmental Assessment is a concise public document that provides
sufficient evidence and analysis for determining whether to prepare an
environmental impact statement or a finding of no significant impact (40
CFR 1508.9; Forest Service Handbook (FSH), 1909.15, Chapter 40).
Environmental Impact Statement is a detailed written statement as
required by section 102(2)(C) of the National Environmental Policy Act
of 1969 (40 CFR 1508.11; FSH 1909.15, Chapter 20).
Finding of No Significant Impact (FONSI) is a document prepared by a
federal agency presenting the reasons why an action, not otherwise
excluded, will not have a significant effect on the human environment
and for which an environmental impact statement, therefore, will not be
prepared. It includes the environmental assessment or a summary of it
and shall note any other environmental documents related to it (40 CFR
1508.13; Forest Service Handbook 1909.15, Chapter 40).
Forest Service line officer is a Forest Service official who serves
in a direct line of command from the Chief and who has the delegated
authority to make and execute decisions subject to this part.
Specifically, for the purposes of this part, a Forest Service employee
who holds one of the following offices and titles: District Ranger,
Deputy Forest Supervisor, Forest Supervisor, Deputy Regional Forester,
Regional Forester, Associate Deputy Chief, Deputy Chief, Associate Chief
of the Forest Service, or an employee delegated the authority to act in
one of these capacities.
Interested Party is a person or organization other than the
appellant that provides written information to the Appeal Reviewing
Officer regarding an appeal.
Proposed action is a proposal made by the Forest Service to
authorize, recommend, or implement an action on National Forest System
lands to meet a specific purpose and need which is subject to the notice
and comment provisions of this part.
Proposed Timber Harvest Categorically Excluded from Documentation
under Forest Service Handbook 1909.12, section 31.2, paragraph 4 is
timber harvest which removes 250,000 board feet or less of merchantable
wood products, or salvage which removes 1,000,000 board feet or less of
merchantable wood products; which requires one mile or less of low
standard road construction (Service level D. FSH 7709.56); and assures
regeneration of harvested or salvaged areas, where required; which
normally
[[Page 35]]
are categorically excluded from documentation in an environmental
assessment or environmental impact statement; and for which a project or
case file and decision memo are required (Forest Service Handbook
1909.12, sec. 31.2, para. 4).
Record of Decision is a document signed by a Responsible Official
recording a decision that was preceded by preparation of an
environmental impact statement (40 CFR 1505.2; Forest Service Handbook
1909.15, Chapter 20).
Responsibile Official is the Forest Service line officer who has the
authority and responsibility to make decisions on proposed actions
subject to notice, comment and appeal under this part.
Sec. 215.3 Proposed actions subject to notice and comment.
The notice and comment procedures of Sec. 215.5 apply only to the
following actions:
(a) Proposed actions implementing national forest land and resource
management plans (36 CFR 219.11) for which an environmental assessment
is prepared.
(b) Proposed timber harvest as described in Paragraph 4, section
31.2 of Forest Service Handbook 1905.15 for which a project or case file
and Decision Memo are required.
(c) Nonsignificant amendments (36 CFR part 219) to land and resource
management plans that are included as part of a decision on a proposed
action as specified in paragraph (a) of this section.
(d) Proposed actions on those National Forests which do not yet have
approved land and resource management plans prepared pursuant to 36 CFR
part 219 as follows:
(1) Proposed actions for which an environmental assessment is
prepared; or
(2) Proposed timber harvest as described in Paragraph 4, section
31.2 of Forest Service Handbook 1905.15 for which a project or case file
and Decision Memo are required.
(e) Proposed forestry research activities to be conducted on
National Forest Systems lands for which an environmental assessment has
been prepared.
Sec. 215.4 Actions not subject to notice and comment.
The following proposed actions are not subject to notice and comment
procedures of Sec. 215.5
(a) Actions described in a draft environmental impact statement, for
which notice and comment procedures are governed by 40 CFR parts 1500-
1508;
(b) Actions categorically excluded from documentation in an
environmental impact statement or environmental assessment pursuant to 7
CFR 1b.3 or FSH 1909.15, sections 31.1 and 31.2, except timber harvest
actions as specified in Sec. 215.3(b) and (d)(2);
(c) Any action or policy not subject to the provisions of the
National Environmental Policy Act and the implementing regulations at 40
CFR parts 1500-1508;
(d) Rules promulgated in accordance with the Administrative
Procedure Act (5 U.S.C. 551 et seq.) or policies and procedures issued
in Forest Service Manuals and Handbooks (36 CFR parts 200, 216);
(e) A nonsignificant amendment to a land and resource management
plan which is made separately from a proposed action specified in
Sec. 215.3(c) and which, therefore, is subject to appeal under part 217
of this chapter.
Sec. 215.5 Notice and comment on proposed actions.
(a) Annual notice of newspapers. Annually, each Regional Forester
shall, through notice published in the Federal Register, advise the
public of the principal newspapers to be utilized for publishing notices
required by this section.
(b) Manner of giving notice. (1) The Responsible Official shall
publish notice of proposed actions as specified in Sec. 215.3 in a
newspaper of general circulation identified pursuant to the requirements
of paragraph (a) of this section.
(2) The Responsible Official also shall give the public notice of
the opportunity to comment on proposed actions subject to this part as
follows:
(i) For proposed actions requiring an environmental assessment, the
Responsible Official shall promptly mail the environmental assessment
along with a letter identifying the proposed action
[[Page 36]]
to any person who has requested it and to persons who are known to have
participated in the environmental analysis process.
(ii) For proposed timber harvest actions categorically excluded from
documentation under Forest Service Handbook 1909.15, section 31.2,
paragraph 4, the Responsible Official shall promptly mail a letter
briefly describing the proposed to any person who has requested notice,
to persons who are on a mailing list to receive notice of this type of
decision, or to persons who are known to have participated in the
decisionmaking process.
(c) Content of the public notice for comment on proposed actions.
All notices provided or published pursuant to this section shall include
the following:
(1) The title and brief description of the proposed action;
(2) A general description of the proposed action location;
(3) Instructions on how to obtain additional information on the
proposed action;
(4) The name, title, address, and telephone number of the
Responsible Official to whom comments should be addressed; and
(5) The date the comment period ends (Sec. 215.6(a)).
Sec. 215.6 Response to comments received on proposed actions.
(a) Comment period. The Responsible Official shall accept comments
on an proposed action subject to Sec. 215.3 for 30 days following the
date of publication of the notice for public comment. Both oral and
written comments shall be accepted. The 30-day period for comment begins
on the first day after publication of notice. Saturdays, Sundays, and
Federal holidays are included in computing all time periods in this
section; however, when the comment period ends on a Saturday, Sunday, or
Federal holiday, the comment period shall be extended to the close of
business of the next Federal working day.
(b) Submission. Persons expressing an interest or submitting
comments to the Responsible Official in response to a notice published
or provided pursuant to Sec. 215.5 shall provide the following
information, which will become a matter of public record:
(1) Name, address, and (if possible) telephone number;
(2) Title of the document(s) on which comment is being submitted;
and
(3) Specific facts or comments along with supporting reasons that
the person believes the Responsible Official should consider in reaching
a decision.
(c) Timeliness. It is the responsibility of persons providing
comments to submit them by the close of the comment period.
(1) When comments are received, the Responsible Official shall
clearly identify the date of receipt.
(2) The Responsible Official must consider all written comments
postmarked or facsimile imprinted by the close of business on the 30th
day following publication of the notice (Sec. 215.5) and all oral
comments received by the close of business on the 30th day following
publication of the notice.
(d) The Responsible Official shall address comments received from
the public during the comment period in an appendix to the environmental
assessment. For proposed timber harvest actions to be categorically
excluded from documentation under Forest Service Handbook 1909.15,
section 31.2, paragraph 4, public comments and responses to them shall
be placed in the project file.
(e) Notes of oral comments received in response to a notice for
public comment pursuant to Sec. 215.5 shall be placed in the files and
addressed pursuant to paragraph (d) of this section.
Sec. 215.7 Decisions subject to appeal.
Only the following decisions are subject to appeal under this part:
(a) Project and activity decisions documented in a Record of
Decision or Decision Notice, including those which, as a part of the
project approval decision, contain a nonsignificant amendment to a
National Forest Land and Resource Management Plan (36 CFR 219.10).
(b) Timber harvest project and activity decisions as described in
paragraph 4, Section 31.2 of Forest Service Handbook 1909.15 which are
documented in a decision memo.
[[Page 37]]
Sec. 215.8 Decisions not subject to appeal.
(a) The following decisions are not subject to appeal under this
part:
(1) Project or activity decisions included in a Record of Decision
for significant amendment, revision, or approval of a land and resource
management plan, appeal of which is governed by 36 CFR part 217;
(2) Preliminary findings made during planning and/or analysis
processes. Such findings are appealable only upon issuance of a decision
document;
(3) Actions for which notice and opportunity to comment have been
published and on which no expression of interest has been received
during the comment period (Sec. 215.6), and on which the Responsible
Official's decision does not modify the proposed action; and
(4) Decisions for actions that have been categorically excluded from
documentation in an environmental assessment or environmental impact
statement in FSH 1909.15, Section 31.1 and 31.2, except as noted in
Sec. 215.7(b).
(b) In addition to decisions excluded from appeal by paragraph (a)
of this section, the Appeal Deciding Officer shall dismiss any appeal
filed on subsequent implementing actions that result from the initial
project decision subject to appeal under Sec. 215.7. For example, an
initial decision to offer a timber sale is appealable under this part;
subsequent implementing actions to advertise or award that sales are not
appealable under this part.
(c) Decisions solely affecting the business relationship between the
Forest Service and holders of written instruments regarding occupancy
and use of National Forest System lands can be appealed by permit
holders under either 36 CFR part 251, subpart C, or this part, but
cannot be appealed under both regulations.
Sec. 215.9 Notice of decisions.
(a) Publication of public notice. The Responsible Official shall
publish a notice of any decision which is subject to notice and comment
under Sec. 215.3 in a newspaper of general circulation identified
pursuant to the requirements of Sec. 215.5(a).
(b) Publication of notice of a decision. A notice of a decision
published pursuant to this section shall:
(1) Include the decision title and a concise description of the
action(s) to be taken, the name and title of the Responsible Official,
and instructions for obtaining a copy of the decision document;
(2) Except for decisions on which no expression of interest was
received during the comment period Sec. 215.8(4), state that the
decision is subject to appeal pursuant this part and include the
following:
(i) State the name and address of the Appeal Deciding Officer with
whom an appeal should be filed;
(ii) Specify that an appeal must be postmarked and submitted to the
Appeal Deciding Officer within 45 days of the date of publication in
accordance with Sec. 215.13;
(3) For those decisions on which no comment was received, state that
the decision is not subject to appeal pursuant to Sec. 215.8(a)(4).
(c) Mailing decision documents. The Responsible Official shall
promptly mail the decision document to those who request the specific
document and to those who submitted comments on the proposed action
either before or during the comment period provided pursuant to
Sec. 215.6.
Sec. 215.10 Implementation of decisions.
(a) If no appeal is filed, implementation of decisions subject to
appeal pursuant to this part may occur on, but not before, 5 business
days from the close of the appeal filing period.
(b) If an appeal is filed, implementation may not occur for 15 days
following the date of appeal disposition. In the event of multiple
appeals of the same decision, the date of the disposition of the last
appeal controls the implementation date.
(c) If a project is not appealable because, pursuant to
Sec. 215.8(a)(4), no expression of interest has been received and there
is no change from the proposed action, implementation may occur
immediately upon publication of the notice of the decision as provided
in Sec. 215.9.
(d) A project decision is not subject to a stay if the Chief of the
Forest Service determines that an emergency
[[Page 38]]
situation exists with respect to the decision in accordance with the
following provisions of this paragraph:
(1) An emergency, as defined here, is an unexpected event, or a
serious occurrence or a situation requiring urgent action. Examples of
an emergency include, but are not limited to, the following:
(i) Vegetation loss which presents an immediate threat of flooding
or landslide.
(ii) Hazardous or unsafe situations as a result of wildfire or other
circumstances.
(iii) Damage to water quality caused by siltation due to fire or
flooding.
(iv) Potential loss of fish and wildlife habitat due to windstorms
and blowdowns.
(v) Sudden outbreaks of forest pests and diseases.
(2) The Responsible Official shall notify the public that the Forest
Service intends to handle this project as an emergency in the public
notice on proposed actions as provided in Sec. 215.5(c)(1). Actions
responding to emergency situations may be accomplished with force
account (Forest Service crews), service contracts or timber sale
contracts.
Sec. 215.11 Who may participate in appeals.
(a) Except as provided for in paragraph (c) of this section, an
appeal pursuant to this part may be filed by any person who, or any non-
Federal organization or entity that has met either of the following
criteria:
(1) Submitted written comment in response to a project draft
Environmental Impact Statement; or
(2) Provided comment or otherwise expressed interest in a particular
proposed action by the close of the comment period specified in
Sec. 215.6.
(b) Persons interested in or potentially affected by an appeal may
participate as an interested party, as provided in Sec. 215.13(e).
(c) Federal agencies may not participate as appellants or interested
parties.
(d) Federal employees filing appeals under this part shall comply
with Federal conflict of interest statutes at 18 U.S.C. 202-209 and with
employee ethics requirements at 5 CFR part 2635. Specifically, employees
shall not be on official duty or use government property or equipment in
the preparation or transmittal of an appeal. Employees also shall not
use official information not yet released to the public.
[58 FR 58910, Nov. 4, 1993, as amended at 63 FR 4188, Jan. 28, 1998]
Sec. 215.12 Where to file appeals.
The Appeal Deciding Officer with whom appeals must be filed are as
follows:
------------------------------------------------------------------------
If the responsible official who made the Then the appeal deciding
decision is: officer is:
------------------------------------------------------------------------
Regional Forester......................... Chief of the Forest Service.
Forest Supervisor or...................... Regional Forester.
District Ranger........................... Do.
------------------------------------------------------------------------
Sec. 215.13 Appeal time periods and process.
(a) Filing procedures. To appeal a decision under this part, a
person must submit a written appeal to the Appeal Deciding Officer
within the 45 day appeal filing period specified in the public notice
published pursuant to Sec. 215.9.
(b) Computation of time periods. (1) The day after the publication
of the public notice published pursuant to Sec. 215.9 is the first day
of the appeal filing period.
(2) All time periods in this section are to be computed using
calendar days. Saturdays, Sundays, and Federal holidays are included in
computing the time period for filing an appeal. However, when the filing
period would expire on a Saturday, Sunday, or Federal holiday, the
filing time is extended to the end of the next Federal working day.
(c) Evidence of timely filing. The appellant is responsible for
submitting an appeal on or before the last day of the appeal filing
period. Where there is a question about timelines of an appeal, the U.S.
Postal Service postmark on a mailed appeal or the time and date imprint
on a facsimile appeal will be used to determine timeliness.
(d) Time extensions. Time extensions are not permitted.
(e) Interested party comments. Interested parties must submit
written comments to the Appeal Reviewing Officer within 15 days after
close of the appeal
[[Page 39]]
filing period and are encouraged to provide a copy to the appellants at
the same time. An interested party can obtain the address of the Appeal
Reviewing Officer and appellants by contacting the Appeal Deciding
Officer.
(f) Time period for formal disposition. Unless an appeal is resolved
through the informal disposition process provided for in Sec. 215.16,
the following timeframe and process shall apply:
(1) Transmittal of decision documentation. Within 15 days of the
close of the appeal filing period, the Responsible Official shall
transmit the appeal record to the Appeal Reviewing Officer.
(2) Review recommendation. Within 30 days of the close of the appeal
filing period, the Appeal Reviewing Officer shall review the appeal
record and forward it to the Appeal Deciding Officer with a written
recommendation on the disposition of the appeal(s). The Appeal Reviewing
Officer's recommendation shall be released upon issuance of an appeal
decision.
(3) Appeal decision. Within 45 days following the end of the appeal
filing period, the Appeal Deciding Officer shall issue a written
decision or otherwise give notice to appellant(s) concerning the
disposition of the appeal. The decision or notice shall briefly explain
why the Responsible Official's original decision was affirmed or
reversed, in whole or in part.
Sec. 215.14 Content of an appeal.
(a) It is the appellant's responsibility to provide sufficient
written evidence and rationale to show why the Responsible Official's
decision should be remanded or reversed.
(b) An appeal submitted to the Appeal Deciding Officer becomes a
part of the appeal record. An appeal must meet the following
requirements:
(1) State that the document is an appeal filed pursuant to 36 CFR
part 215;
(2) List the name and address of the appellant and, if possible, a
telephone number;
(3) Identify the decision document by title and subject, date of the
decision, and name and title of the Responsible Official;
(4) Identify the specific change(s) in the decision that the
appellant seeks or portion of the decision to which the appellant
objects;
(5) State how the Responsible Official's decision fails to consider
comments previously provided, either before or during the comment period
specified in Sec. 215.6 and, if applicable, how the appellant believes
the decision violates law, regulation, or policy.
Sec. 215.15 Dismissal of appeal without review.
(a) An Appeal Deciding Officer shall dismiss an appeal without
review when:
(1) The appeal is not postmarked or the facsimile is not date
imprinted within the 45-day appeal filing period in accordance with
Sec. 215.13;
(2) The requested relief or change cannot be granted under law,
fact, or regulation;
(3) The decision at issue is being appealed by the appellant under
another administrative proceeding;
(4) The decision is excluded from appeal pursuant to Sec. 215.8;
(5) The appellant did not express an interest in the specific
proposal at any time prior to the close of the comment period specified
in Sec. 215.6;
(6) The Responsible Official has withdrawn the decision being
appealed; or
(7) The appellant has filed for Federal judicial review of the
decision and the Chief has waived the argument in Sec. 215.20.
(b) The Appeal Deciding Officer shall give written notice to the
appellant, interested parties, and Responsible Official that an appeal
is dismissed and state the reasons for dismissal.
Sec. 215.16 Informal disposition.
(a) Offer to meet. When a decision is appealed under this part, the
Responsible Official must contact the appellant(s) and offer to meet and
discuss resolution of the issues raised in the appeal. This contact
shall be made as soon as practicable after an appeal has been filed.
(b) Time and location of meeting. If one or more appellants agree to
meet, the meeting(s) must take place not later than 15 days after the
closing date for filing an appeal. The location of the meeting shall be
in the vicinity of the lands affected by the decision. When the District
Ranger is the Responsible
[[Page 40]]
Official, meetings will generally be located on or near that Ranger
District. When the Forest Supervisor or Regional Forester is the
Responsible Official, meetings will generally take place at a location
within or near the National Forest.
(c) Type of meeting. Generally, participants shall be physically
present at informal disposition meetings. Where an appellant cannot
attend a meeting in person because of schedule conflicts or travel
distances, alternative types of meetings (such as telephone conferences
or video conferences) may be arranged. This alternative type meeting
also must take place not later than 15 days after the closing date for
filing an appeal. The informal disposition meeting must be open to
interested parties and the public.
(d) Agreement on disposition. The Responsible Official must notify
the Appeal Deciding Officer of the names of meeting participants and the
outcome of the informal disposition meeting.
(1) If the appellant(s) and Responsible Official reach agreement on
disposition of the appeal, the Responsible Official shall so notify the
Appeal Deciding Officer and the appellant shall withdraw the appeal by
letter to the Appeal Deciding Officer no later than 15 days after the
meeting. Upon notice from the appellant that the appeal has been
withdrawn, the Appeal Deciding Officer shall notify the interested
parties, Appeal Reviewing Officer, and Responsible Official of the
conclusion of the appeal.
(2) If, as a result of the agreement reached at the informal
disposition meeting, new information is received or changes to the
original project decision or environmental analysis are proposed, the
Responsible Official must follow the procedures in the Environmental
Policy and Procedures Handbook, FSH 1909.15, section 18.
(e) Failure to reach agreement. If the appeal is not resolved
through the informal disposition meeting, the Responsible Official shall
so notify the Appeal Deciding Officer in writing. The Appeal Deciding
Officer shall then advise the Appeal Reviewing Officer to proceed with
formal review of the appeal.
Sec. 215.17 Formal disposition.
(a) Formal disposition period. The Appeal Deciding Officer shall
issue an appeal decision not later than 45 days after the end of the
appeal filing period.
(b) Appeal decision. The Appeal Deciding Officer shall complete a
review based on the appeal record as defined in Sec. 215.2 and the
Reviewing Officer's recommendation. The Appeal Deciding Officer shall
issue a written appeal decision either affirming or reversing the
Responsible Official's decision, in whole or in part, and may include
instructions for further action. The Appeal Deciding Officer shall send
a copy of the appeal decision to the appellant, interested parties, the
Appeal Reviewing Officer, and the Responsible Official. If a formal
decision is not issued, the Appeal Deciding Officer shall notify the
appellant(s) of the disposition of their appeal.
Sec. 215.18 Appeal deciding officer authority.
(a) Consolidation of appeal decisions. In cases involving multiple
appeals of a decision subject to this part, the Appeal Deciding Officer
shall determine whether to issue one appeal decision or separate appeal
decisions.
(b) Procedural decisions. The Appeal Deciding Officer shall make all
procedural determinations in this part. Such determinations are not
subject to further administrative review.
(c) Appeal decisions. The Appeal Deciding Officer's decision
constitutes the final administrative determination of the Department of
Agriculture.
Sec. 215.19 Appeal reviewing officer authority.
(a) Identification of Appeal Reviewing Officer. An agency official
at the Regional Office level designated by the Chief is the Appeal
Reviewing Officer for appeals of District Ranger and Forest Supervisor
decisions. An agency official at the Washington Office level designated
by the Chief is the Appeal Reviewing Officer for appeals of Regional
Forester Decisions. The Appeal Reviewing Officer shall be an officer at
least at the level of the agency official who made the initial decision
on the project or activity that is under appeal
[[Page 41]]
and has not participated in the initial decision and will not be
responsible for implementing the initial decision after the appeal is
decided.
(b) Scope of review. The Appeal Reviewing Officer's review of
decisions under this part focuses on decision documentation developed by
the Responsible Official in reaching the decision, issues raised in the
appeal, and comments submitted by interested parties.
(c) Consolidation of recommendations. In cases involving multiple
appeals of a decision subject to this part, the Appeal Reviewing Officer
shall determine whether to issue one recommendation or separate
recommendations.
Sec. 215.20 Policy in event of judicial proceedings.
Unless waived in a specific case, it is the position of the
Department of Agriculture that any filing for Federal judicial review of
a decision subject to review under this part is premature and
inappropriate unless the plaintiff has first sought to invoke and
exhaust the procedures available under this part.
Sec. 215.21 Applicability and effective date.
(a) The requirements of Sec. 215.5 of this part to provide notice
and opportunity to comment on proposed actions described in Sec. 215.3
is effective January 3, 1994.
(b) Decisions for which notice has been given pursuant to 36 CFR
217.5 prior to January 3, 1994, remain subject to the appeal procedures
of 36 CFR part 217.
PART 216--INVOLVING THE PUBLIC IN THE FORMULATION OF FOREST SERVICE DIRECTIVES--Table of Contents
Sec.
216.1 Purpose.
216.2 Definitions.
216.3 Applicability; relationship to other public participation
opportunities.
216.4 Determining the need for formal public review on proposed Manual
directives.
216.5 Documentation.
216.6 Notice and comment procedures for proposed Manual directives
identified for formal public review.
216.7 Exemption of proposed Manual directives from normal procedures.
216.8 Availability of proposed Manual directives identified for formal
public review.
Authority: Sec. 14, Forest and Rangeland Renewable Resources
Planning Act of 1974, 88 Stat. 476 as amended, 90 Stat. 2949, 2958 (16
U.S.C. 1612).
Source: 49 FR 16993, Apr. 23, 1984, unless otherwise noted.
Sec. 216.1 Purpose.
This part establishes procedures to ensure that Federal, State, and
local governments and the public have adequate notice and opportunity to
comment upon the formulation of standards, criteria, and guidelines
applicable to Forest Service programs.
Sec. 216.2 Definitions.
(a) The Forest Service Manual consists of numerous volumes organized
by numerically coded subject matter. The volumes contain legal
authorities, responsibilities, delegations, and general instruction and
direction needed on a continuous basis by Forest Service officers at
more than one unit to plan and execute programs. The parent text is
issued by the national headquarters and sets forth the policies, and
other guidance applicable Service-wide. National directives are
supplemented, as necesary, by Forest Service field offices. Supplements
to the Forest Service Manual are applicable only within the Forest
Service organizational jurisdiction for which they are issued. The
Forest Service Manual is revised to conform to changing law, orders,
regulations, or management needs.
(b) Public participation activities are actions initiated by the
Forest Service to facilitate an exchange of information with the public.
These actions include, but are not limited to, oral and written measures
such as public notices, letters, discussion papers, and gatherings such
as meetings, workshops, and hearings.
(c) Standards, criteria, and guidelines means those written
policies, instructions, and orders, originated by the Forest Service and
issued in the Forest Service Manual which establish the general
framework for the management and conduct of Forest Service programs.
[[Page 42]]
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:
(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
[[Page 43]]
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 District Rangers'
Offices when National Forest proposals are involved; in the Regional
Office and Forest Supervisors' Offices when regional proposals are
involved; and in Regional Offices and National Headquarters when
national proposals are involved. When Manual directives involve Forest
Service Research or State and Private Forestry programs, review copies
shall be available at comparable administrative offices.
PART 217--APPEAL OF REGIONAL GUIDES AND NATIONAL FOREST LAND AND RESOURCE MANAGEMENT PLANS--Table of Contents
Sec.
217.1 Purpose and scope.
217.2 Definitions.
217.3 Decisions subject to appeal.
217.4 Decisions not subject to appeal.
217.5 Giving notice of decisions subject to appeal.
217.6 Participants.
217.7 Levels of appeal.
217.8 Appeal process sequence.
217.9 Content of a notice of appeal.
217.10 Implementation and stays of decisions.
217.11 Dismissal without review.
217.12 Resolution of issues.
217.13 Reviewing officer authority.
217.14 Intervention.
217.15 Appeal record.
217.16 Decision.
217.17 Discretionary review.
217.18 Policy in event of judicial proceedings.
217.19 Applicability and effective date.
Authority: 16 U.S.C. 551, 472.
Source: 54 FR 3357, Jan. 23, 1989, unless otherwise noted.
Sec. 217.1 Purpose and scope.
(a) This part provides a process by which a person or organization
interested in the management of the National Forest System may
administratively appeal decisions to approve, amend, or revise a
National Forest land and resource management plan or approve or amend a
regional guide prepared pursuant to 36 CFR part 219. This part
establishes who may appeal such decisions, the kind of decisions that
may be appealed, the responsibilities of
[[Page 44]]
the participants in an appeal, and the procedures that apply. This part
provides a review of such decisions by an official at the next
administrative level.
(b) This part complements, but does not replace, numerous
opportunities to participate in and influence agency decisionmaking
provided pursuant to the National Environmental Policy Act of 1969
(NEPA) and the associated implementing regulations and procedures in 40
CFR parts 1500-1508, 36 CFR parts 215, 216, and 219, Forest Service
Manual Chapters 1920 and 1950, and Forest Service Handbooks 1909.12 and
1909.15.
[58 FR 58915, Nov. 4, 1993]
Sec. 217.2 Definitions.
For the purposes of this part--
Appellant is the term used to refer to a person or organization (or
an authorized agent or representative acting on their behalf) filing a
notice of appeal under this part.
Deciding Officer means the Forest Service line officer who has the
delegated authority and responsibility to make the decision being
questioned under these rules.
Decision document means a written document that a Deciding Officer
signs to execute a decision subject to review under this part.
Specifically a Record of Decision or a Decision Notice.
Decision documentation refers to the decision document and all
relevant environmental and other analysis documentation on which the
Deciding Officer based a decision that is at issue under the rules of
this part. Decision documentation includes, but is not limited to,
environmental assessments, findings of no significant impact,
environmental impact statements, land and resource management plans,
regional guides, documents incorporated by reference in any of the
preceding documents, and drafts of these documents released for public
review and comment.
Decision Notice means the written document signed by a Deciding
Officer when the decision was preceded by preparation of an
environmental assessment (40 CFR 1508.9).
Decision review or review is the term used to refer to the process
provided in this part by which a higher level officer reviews a decision
of a subordinate officer in response to a notice of appeal.
Forest Service line officer. The Chief of the Forest Service or a
Forest Service official who serves in a direct line of command from the
Chief and who has the delegated authority to make and execute decisions
under this subpart. Specifically, for the purposes of this subpart, a
Forest Service employee who hold one of the following offices and
titles: Forest Supervisor, Deputy Forest Supervisor, Regional Forester,
Deputy Regional Forester Deputy Chief, Associate Deputy Chief, Associate
Chief, or the Chief of the Forest Service.
Intervenor is an individual who, or organization that, is interested
in or potentially affected by a decision under appeal pursuant to this
part, who has made a timely request to intervene in that appeal.
Legal notice. A notice of a decision appealable under this part
published in the Federal Register or in the legal notices section of a
newspaper of general circulation as required by Sec. 217.5 of this part.
Notice of appeal is the written document filed with a Reviewing
Officer by one who objects to a decision covered by this part and who
requests review by the next higher line officer.
Participants include appellants, intervenors, the Deciding Officer,
and the Reviewing Officer.
Record of Decision is the document signed by a Deciding Officer
recording a decision that was preceded by preparation of an
environmental impact statement (40 CFR 1505.2).
Reviewing Officer is the line officer one administrative level
higher than the Deciding Officer or, in the case of a discretionary
review, one level higher than the line officer who issued a first-level
appeal decision.
[54 FR 3357, Jan. 23, 1989; 54 FR 13807, Apr. 5, 1989, as amended at 55
FR 7895, Mar. 6, 1990; 58 FR 58915, Nov. 4, 1993]
Sec. 217.3 Decisions subject to appeal.
(a) The following decisions are subject to appeal under this part:
(1) Decisions to approve, amend, or revise a National Forest Land
and Resource Management Plan including project or activity decisions for
which
[[Page 45]]
environmental effects have been analyzed and disclosed within a final
EIS and documented in a Record of Decision including approval,
significant amendments, or revisions of a land and resource management
plan.
(2) Decisions to approve or amend a regional guide prepared pursuant
to 36 CFR part 219 and documented in a Decision Notice or Record of
Decision are subject to appeal under this part, except as provided in
Sec. 217.4.
(b) Decisions as defined in paragraph (a) of this section and
documented in a Decision Notice or a Record of Decision that are made by
a subordinate Forest Service staff officer acting within delegated
authority are considered to be decisions of the Forest Service line
officer.
[58 FR 58915, Nov. 4, 1993]
Sec. 217.4 Decisions not subject to appeal.
The following decisions are not subject to appeal under this part.
(a) Decisions on projects or activities implementing National Forest
Land and Resource Management Plans including project decisions that
include a non-significant amendment to a National Forest Land and
Resource Management Plan.
(b) Preliminary planning decisions or preliminary decisions as to
National Environmental Policy Act or National Forest Management Act
processes made prior to release of final plans, guides, and
environmental documents.
(c) Recommendations of Forest Service line officers to higher
ranking Forest Service or Departmental officers or to other entities
having final authority to implement the recommendations in question,
such as wilderness and wild and scenic river recommendations.
[58 FR 58915, Nov. 4, 1993]
Sec. 217.5 Giving notice of decisions subject to appeal.
(a) For decisions subject to appeal under this part, Deciding
Officers shall promptly mail the appropriate decision document
(Sec. 217.3(a)(1)) to those who, in writing, have requested it, and to
those who are known to have participated in the decisionmaking process.
(b) The Deciding Officer shall also give notice of decisions
appealable under this part as follows:
(1) For all initial decisions of the Chief, notice shall be
published in the Federal Register.
(2) For all other decisions, legal notice of the decision shall be
published in a newspaper of general circulation identified pursuant to
the requirements of paragraph (d) of this section. Deciding Officers
may, at their discretion, also publish notice of their decisions in
additional newspapers. Where a Deciding Officer elects to publish such
additional notices, they shall be published after an initial legal
notice has been published in the principal newspaper identified in the
biannual Federal Register notice provided for in paragraph (d) of this
section. Any such additional newspaper notices shall indicate the date
that the appeal period ends, which shall be calculated based on the date
of publication of the initial notice in the principal newspaper
identified in the biannual Federal Register notice.
(c) All notices published pursuant to this section shall include a
concise description of the decision made by title or subject matter, the
date of the decision, the name and title of the official making the
decision, and information on how to obtain a copy of the decision, and
shall specify that the appeal period begins the day following the
notice's publication as provided for in Sec. 217.8(b)(1).
(d) At least twice annually, in April and in October, each
responsible Forest Service officer shall, through Federal Register
notice, advise the public of the principal newspaper to be utilized for
publishing legal notices required by this section. The Federal Register
notice shall also list all additional newspapers which the Deciding
Officer expects to use for purposes of providing additional notice
pursuant to paragraph (b) of this section.
[54 FR 3357, Jan. 23, 1989, as amended at 55 FR 7895, Mar. 6, 1990; 56
FR 4918, Feb. 6, 1991]
Sec. 217.6 Participants.
(a) Other than Forest Service employees, any person or any non-
Federal organization or entity may challenge a
[[Page 46]]
decision covered by this part and request a review by the Forest Service
line officer at the next administrative level.
(b) An intervenor as defined in Sec. 217.2 of the subpart.
Sec. 217.7 Levels of appeal.
(a) Decisions made by the Chief. If the Chief of the Forest Service
is the Deciding Officer, the notice of appeal is filed with the
Secretary of Agriculture. Review by the Secretary is wholly
discretionary. Within 15 days of receipt of a notice of appeal, the
Secretary shall determine whether or not to review the decision in
question. If the Secretary has not decided to review the Chief's
decision by the expiration of the 15-day period, the requester(s) shall
be notified by the Secretary's office that the Chief's decision is the
final administrative decision of the Department of Agriculture. When the
Secretary elects to review an initial decision made by the Chief, the
Secretary shall conduct the review in accordance with the first level
appeal procedures outlined in this rule.
(b) Decisions made by Forest Supervisors and Regional Foresters. The
levels of available review are as follows:
(1) If the decision is made by a Forest Supervisor, the notice of
appeal is filed with the Regional Forester;
(2) If the decision is made by a Regional Forester, the notice of
appeal is filed with the Chief of the Forest Service.
(c) Discretionary review of dismissal decisions. Dismissal decisions
rendered by Forest Service line officers pursuant to this part
(Sec. 217.11) are subject to discretionary review as follows:
(1) If the initial Reviewing Officer was the Regional Forester, the
Chief has discretion to review.
(2) If the Reviewing Officer was the Chief, the Secretary of
Agriculture has discretion to review.
(d) Discretionary review of appeal decisions. Appeal decisions
rendered by Regional Foresters and the Chief pursuant to this part are
subject to discretionary review as follows:
(1) If the Reviewing Officer was the Regional Forester, the Chief
has discretion to review.
(2) If the Reviewing Officer was the Chief, the Secretary of
Agriculture has discretion to review.
[54 FR 3357, Jan. 23, 1989, as amended at 54 FR 34509, Aug. 21, 1989; 58
FR 58915, Nov. 4, 1993]
Sec. 217.8 Appeal process sequence.
(a) Filing procedures. To appeal a decision under this part, a
person or organization must:
(1) File a written notice of appeal, in duplicate, with the next
higher line officer in accordance with the provisions of Sec. 217.9 of
this part.
(2) File the notice of appeal within 45 days of the date specified
in the published legal notice for non-significant amendments to land and
resource management plans documented in a Decision Notice or Record of
Decision.
(3) File the notice of appeal within 90 days of the date specified
in the published legal notice for land and resource management plan
approvals, significant amendments, or revisions, and for other
programmatic decisions documented in a Record of Decision.
(b) Computation of time periods. (1) The day after the published
notices required in Sec. 217.5(b) is the first day of the appeal period
provided for in paragraphs (a)(2) and (a)(3) of this section. All other
time periods applicable to this part are tied to the filing of a notice
of appeal and begin on the first day following that filing.
(2) All time periods in this rule are to be computed using calendar
days. Saturdays, Sundays, and Federal holidays are included in computing
the time period for filing a notice of appeal; however, when the filing
period would expire on a Saturday, Sunday, or Federal holiday, the
filing time is extended to the end of the next Federal working day.
(c) Evidence of timely filing. It is the responsibility of the
appellant to file the notice on or before the last day of the filing
period. In the event of question, a legible postmark will be considered
evidence of timely filing. Where postmarks are illegible, the Reviewing
Officer shall rule on the timely filing of the appeal. Notices of appeal
that are filed before the filing period specified in the published legal
notice shall be accepted, but premature filing does
[[Page 47]]
not affect timeframes specified in this rule.
(d) Time extensions. (1) The 45-day/90-day filing periods for a
notice of appeal are not extendable.
(2) Time extensions are not permitted except as provided in
Secs. 217.12, 217.13, and 217.17 of this subpart.
(e) Upon receipt of a timely Notice of Appeal, the Reviewing Officer
shall immediately forward a copy of it to the Deciding Officer.
(f) Appeal decision. Unless time has been extended as provided for
in Secs. 217.12 and 217.13, the Reviewing Officer shall not exceed the
following time periods for rendering an appeal decision:
(1) An appeal of a land and resource management plan approval,
significant amendment, or revision, or on a programmatic decision
documented in a Record of Decision, not more than 160 days from the date
the notice of appeal was filed.
(2) In the event of multiple appeals of the same decision, the
appeal decision date shall be calculated from the filing date of the
last notice of appeal.
[54 FR 3357, Jan. 23, 1989, as amended at 55 FR 7895, Mar. 6, 1990; 56
FR 4918, Feb. 6, 1991; 58 FR 58916, Nov. 4, 1993]
Sec. 217.9 Content of a notice of appeal.
(a) It is the responsibility of those who appeal a decision under
this part to provide a Reviewing Officer sufficient narrative evidence
and argument to show why the decision by the lower level officer should
be changed or reversed.
(b) At a minimum, a written notice of appeal filed with the
Reviewing Officer must:
(1) State that the document is a Notice of Appeal filed pursuant to
36 CFR part 217;
(2) List the name, address, and telephone number of the appellant;
(3) Identify the decision about which the requester objects;
(4) Identify the document in which the decision is contained by
title and subject, date of the decision, and name and title of the
Deciding Officer.
(5) Identify specifically that portion of the decision or decision
document to which the requester objects;
(6) State the reasons for objecting, including issues of fact, law,
regulation, or policy, and, if applicable, specifically how the decision
violates law, regulation, or policy; and
(7) Identify the specific change(s) in the decision that the
appellant seeks.
[54 FR 3357, Jan. 23, 1989, as amended at 55 FR 7895, Mar. 6, 1990; 56
FR 4918, Feb. 6, 1991]
Sec. 217.10 Implementation and stays of decisions.
(a) Implementation of any decision subject to appeal pursuant to
this part shall not occur for 7 calendar days following publication of
the legal notice of the decision as required in this part.
(b) Requests to stay the approval of land and resource management
plans prepared pursuant to 36 CFR part 219 shall not be granted.
However, requests to stay implementation of a project or activity
included in such a plan will be considered as provided for in paragraph
(c).
(c) Where a project or activity would be implemented before an
appeal decision could be issued, the Reviewing Officer shall consider
written requests to stay implementation of that decision pending
completion of the review.
(d) To request a stay of implementation, an appellant must--
(1) File a written request with the Reviewing Officer;
(2) Simultaneously send a copy of the stay request to any other
appellant(s), intervenor(s), and to the Deciding Officer; and
(3) Provide a written justification of the need for a stay, which at
a minimum includes the following:
(i) A description of the specific project(s), activity(ies), or
action(s) to be stopped.
(ii) Specific reasons why the stay should be granted in sufficient
detail to permit the Reviewing Officer to evaluate and rule upon the
stay request, including at a minimum:
(A) The specific adverse effect(s) upon the requester;
(B) Harmful site-specific impacts or effects on resources in the
area affected by the activity(ies) to be stopped; and
(C) How the cited effects and impacts would prevent a meaningful
decision on the merits.
[[Page 48]]
(e) The Reviewing Officer shall rule on stay requests within 10 days
of receipt of a request.
(f) In deciding a stay request, a Reviewing Officer shall consider:
(1) Information provided by the requester pursuant to paragraph (c)
of this section;
(2) The effect that granting a stay would have on preserving a
meaningful appeal on the merits;
(3) Any information provided by the Deciding Officer or other party
to the appeal in response to the stay request; and
(4) Any other factors the Reviewing Officer considers relevant to
the decision.
(g) A Reviewing Officer must issue a written decision on a stay
request.
(1) If a stay is granted, the stay shall specify the specific
activities to be stopped, duration of the stay, and reasons for granting
the stay.
(2) If a stay is denied in whole or in part, the decision shall
specify the reasons for the denial.
(3) A copy of a decision on a stay request shall be sent to the
appellant(s), intervenor(s), and the Deciding Officer.
(h) A decision may be implemented during a review unless the
Reviewing Officer has granted a stay.
(i) A Reviewing Officer's decision on a request to stay
implementation of a project or activity included in a Land and Resource
Management Plan or significant amendment or revision to the plan is not
subject to discretionary review at the next administrative level.
[54 FR 3357, Jan. 23, 1989, as amended at 55 FR 7896, Mar. 6, 1990; 56
FR 4918, Feb. 6, 1991; 58 FR 58916, Nov. 4, 1993]
Sec. 217.11 Dismissal without review.
(a) A Reviewing Officer shall dismiss an appeal and close the appeal
record without decision on the merits when:
(1) The notice is not filed within the time specified in Sec. 217.8
of this part;
(2) The requested relief or change cannot be granted under law,
fact, or regulation existing when the decision was made.
(3) The notice of appeal fails to meet the minimum requirements of
Sec. 217.9 of this part to such an extent that the Reviewing Officer
lacks adequate information on which to base a decision;
(4) The decision at issue is being appealed under another
administrative proceeding;
(5) The decision is excluded from appeal pursuant to Sec. 217.4 of
this part;
(6) The appellant(s) withdraws the appeal;
(7) The Deciding Officer withdraws the appealed decision; or
(8) The Chief has invoked the provisions of Sec. 217.18 of this
part.
(b) The Reviewing Officer shall give written notice of a dismissal
to all participants that includes an explanation of why the appeal is
dismissed.
(c) A Reviewing Officer's dismissal decision is subject to
discretionary review at the next administrative level as provided for in
Sec. 217.7(d) of this part, except when a dismissal decision results
from withdrawal of an appeal by an appellant or withdrawal of the
initial decision by the Deciding Officer.
[54 FR 3357, Jan. 23, 1989, as amended at 55 FR 7896, Mar. 6, 1990; 56
FR 4918, Feb. 6, 1991]
Sec. 217.12 Resolution of issues.
(a) When a decision is appealed, appellants or intervenors may
request meetings with the Deciding Officer to discuss the appeal, either
together or separately, to narrow issues, agree on facts, and explore
opportunities to resolve the issues by means other than review and
decision on the appeal. Reviewing Officers may, on their own initiative,
request the Deciding Officer to meet with participants to discuss the
appeal and explore opportunities to resolve the issues. However,
Reviewing Officers may not participate in such discussions. At the
request of the Deciding Officer, or on their own initiative, Reviewing
Officers may extend the time periods for review to allow for conduct of
meaningful negotiations. Such extensions may occur only after the time
period for intervention and for the Deciding Officer to transmit the
decision documentation has elapsed. In granting an extension, the
Reviewing Officer must establish a specific time period for the conduct
of negotiations.
(b) The Deciding Officer has the authority to withdraw a decision,
in whole or in part, during the appeal. Where a Deciding Officer decides
to withdraw a decision, all participants to the appeal will be notified
that the
[[Page 49]]
case is dismissed. A Deciding Officer's subsequent decision to reissue
or modify the withdrawn decision constitutes a new decision and is
subject to appeal under this part.
[54 FR 3357, Jan. 23, 1989, as amended at 56 FR 46550, Sept. 13, 1991]
Sec. 217.13 Reviewing officer authority.
(a) Discretion to establish procedures. A Reviewing Officer may
issue such determinations and procedural instructions as appropriate to
ensure orderly and expeditious conduct of the appeal process as long as
they are in accordance with all the applicable rules and procedures of
this part.
(1) In appeals involving intervenors, the Reviewing Officer may
prescribe special procedures to conduct the appeal.
(2) In case of multiple appeals of a decision, the Reviewing Officer
may prescribe special procedures as necessary to conduct the review.
(3) All participants shall receive notice of any procedural
instructions or decisions governing conduct of an appeal.
(4) Procedural instructions and decisions are not subject to review
by higher level officers.
(b) Consolidation of multiple appeals. (1) The Reviewing Officer
shall determine whether to issue one appeal decision or separate
decisions in cases involving multiple notices of appeal under this part,
or if the same decision is also under appeal pursuant to 36 CFR part
251. In the event of a consolidated decision, the Reviewing Officer
shall give advance notice to all who have appealed the decision.
(2) Decisions to consolidate an appeal decision are not subject to
review by higher level officers.
(c) Requests for information. At any time during the appeal process,
the Reviewing Officer at the levels specified in Sec. 217.7 (a), (b), or
(c)(1) of this part may extend the time periods for review to request
additional information from an appellant, intervenor, or the Deciding
Officer. Such requests shall be limited to obtaining and evaluating
information needed to clarify issues raised. The Reviewing Officer shall
notify all participants of such requests and provide them opportunity to
comment on the information obtained.
[54 FR 3357, Jan. 23, 1989, as amended at 54 FR 34509, Aug. 21, 1989]
Sec. 217.14 Intervention.
(a) For a period not to exceed 20 days following the filing of a
notice of appeal, the Reviewing Officer shall accept requests to
intervene in the appeal from any interested or potentially affected
person or organization. Requests to intervene in an appeal during the
discretionary review (Sec. 217.7(d)) shall not be accepted.
(b) Upon receiving such a request, the Reviewing Officer shall
promptly acknowledge the request, in writing, and mail the Notice of
Appeal to the intervenor.
(c) The Reviewing Officer shall accept into the appeal record
written comments about the appeal from an intervenor for a period not to
exceed 30 days following acknowledgement of the intervention request
(Sec. 217.14(b)).
(d) Intervenors must concurrently furnish copies of all submissions
to the appellant. Failure to provide copies may result in removal of a
submission from the appeal record.
(e) An intervenor cannot continue an appeal if the appeal is
dismissed (Sec. 217.11).
[54 FR 3357, Jan. 23, 1989, as amended at 58 FR 58916, Nov. 4, 1993]
Sec. 217.15 Appeal record.
(a) Upon receipt of a copy of the notice of appeal, the Deciding
Officer shall assemble the relevant decision documentation (Sec. 217.2)
and pertinent records, and transmit them to the Reviewing Officer within
30 days in appeal of non-significant amendments to land and resource
management plans or within 60 days for appeals of land and resource
management plan approvals, significant amendments, or revisions, and for
other programmatic decisions. The time period for forwarding the
decision documentation is not extendable.
(b) In transmitting the decision documentation to the Reviewing
Officer, the Deciding Officer shall indicate where the documentation
addresses the issues raised in the notice of appeal.
[[Page 50]]
The Deciding Officer shall provide a copy of the transmittal letter to
the appellant(s) and intervenor(s).
(c) The review of decisions appealed under this part focuses on the
documentation developed by the Deciding Officer in reaching decisions.
The records on which the Reviewing Officer shall conduct the review
consists of the notice of appeal, any written comments submitted by
intervenors, the official documentation prepared by the Deciding Officer
in the decisionmaking process, the Deciding Officer's letter
transmitting those documents to the Reviewing Officer, and any appeal
related correspondence, including additional information requested by
the Reviewing Officer pursuant to Sec. 217.13 of this part.
(d) It is the responsibility of the Reviewing Officer to maintain in
one location a file of documents related to the decision and appeal.
(e) Closing the record. (1) In appeals with intervenors, the appeal
record shall close upon receipt of comments on the appeal by the
intervenor, but not later than the end of the 30-day period provided for
intervenors to submit comments (Sec. 217.14(c)).
(2) In appeals without intervenors, the appeal record shall close
upon receipt of the decision documentation from the Deciding Officer,
unless time has been extended as provided for in Secs. 217.12 and
217.13.
(f) The appeal record is open to public inspection at any time
during the review.
(g) In appeals involving initial decisions of the Chief (217.7(a)),
the establishment of an administrative record as defined in paragraph
(a) of this section shall not begin unless the Secretary elects to
review the appeal. Except for the initial notice of appeal, any filings
made previous to the Secretary's election to review will not be
accepted.
[54 FR 3357, Jan. 23, 1989, as amended at 54 FR 34509, Aug. 21, 1989; 55
FR 7896, Mar. 6, 1990; 56 FR 4918, Feb. 6, 1991; 58 FR 58916, Nov. 4,
1993]
Sec. 217.16 Decision.
(a) The Reviewing Officer shall not issue a decision prior to the
record closing (Sec. 217.15(e)).
(b) The Reviewing Officer's decision shall, in whole or in part,
affirm or reverse the original decision. The Reviewing Officer's
decision may include instructions for further action by the Deciding
Officer.
(c) An appeal decision must be consistent with applicable law,
regulations, and orders.
(d) The Reviewing Officer shall send a copy of the decision to all
participants and to others upon request.
(e) Unless a higher level officer exercises the discretion to review
a Receiving Officer's decision as provided at Sec. 217.7(d), the
Reviewing Officer's decision is the final administrative decision of the
Department of Agriculture and the decision is not subject to further
review under this part.
[54 FR 3357, Jan. 23, 1989, as amended at 58 FR 58916, Nov. 4, 1993]
Sec. 217.17 Discretionary review.
(a) Petitions or requests for discretionary review shall not, in and
of themselves, give rise to a decision to exercise discretionary review.
In electing to exercise discretion, a Reviewing Officer should consider,
but is not limited to, such factors as controversy surrounding the
decision, the potential for litigation, whether the decision is
precedential in nature, or whether the decision modifies existing or
establishes new policy.
(b) As provided for a Secs. 217.7 (c) and (d), 217.10(h), and
217.11, certain dismissal decisions rendered by Forest Service line
officers, and appeal decisions rendered by Regional Foresters and the
Chief (Sec. 217.16) are subject to discretionary review at the next
highest administrative level. Within one day following the date of any
decision subject to such discretionary review, the Reviewing Officer
shall forward a copy of the decision and the decision documents
(Sec. 217.2) upon which the appeal was predicated to the next higher
officer.
(c) When a stay of implementation is in effect, it shall remain in
effect until the end of the 15-day period in which a higher level
officer must decide whether or not to review a Reviewing Officer's
decision (Sec. 217.17(d)). If the higher level officer decides to review
the Reviewing Officer's decision, the stay will
[[Page 51]]
remain in effect until a decision is issued (Sec. 217.17(f)), or until
the end of the 30-day review period provided in Sec. 217.17(g) whichever
is less.
(d) The higher level officer shall have 15 days from date of receipt
to decide whether or not to review a lower level appeal decision, and
may request and use the appeal record in deciding whether or not to
review the decision, including decisions to dismiss. If the record is
requested, the 15-day period is suspended at that point. The lower level
Reviewing Officer shall forward it within 5 days of the request. Upon
receipt, the higher level officer shall have 15 days to decide whether
or not to review the lower level decision. If that officer takes no
action by the expiration of the 15-day period or the additional 15-day
period following receipt of the record, the decision of the Reviewing
Officer stands as the final administrative decision of the Department of
Agriculture. All participants shall be notified by the discretionary
level whether or not the decision will be reviewed.
(e) Where an official exercises the discretion in Sec. 217.7 (d) or
(e) of this subpart to review a dismissal or appeal decision, the
discretionary review shall be made on the existing appeal record and the
lower level Reviewing Officer's appeal decision. The record shall not be
reopened to accept additional submissions from any source including the
Reviewing Officer whose appeal decision is being reviewed.
(f) The discretionary level Reviewing Officer shall conclude the
review within 30 days of the date of the notice issued to participants
that the lower decision will be reviewed, and shall send a copy of the
review decision to all participants.
(g) If a discretionary review decision is not issued by the end of
the 30-day review period, appellants and intervenors shall be deemed to
have exhausted their administrative remedies for purposes of judicial
review. In such case, the participants shall be notified by the
discretionary level.
[54 FR 3357, Jan. 23, 1989; 54 FR 13807, Apr. 5, 1989, as amended at 54
FR 34510, Aug. 21, 1989; 55 FR 7896, Mar. 6, 1990; 58 FR 58916, Nov. 4,
1993]
Sec. 217.18 Policy in event of judicial proceedings.
It is the position of the Department of Agriculture that any filing
for Federal judicial review of a decision subject to review under this
part is premature and inappropriate unless the plaintiff has first
sought to invoke and exhaust the procedures available under this part.
This position may be waived upon a written finding by the Chief.
Sec. 217.19 Applicability and effective date.
(a) The appeal procedures established in this part apply to all
appealable decision documents published on or after February 6, 1991.
(b) Notices of appeal filed under 36 CFR 211.16, 36 CFR 211.18, 36
CFR 228.14, and 36 CFR 292.15 prior to February 22, 1989 remain subject
to those procedures.
[54 FR 3357, Jan. 23, 1989, as amended at 56 FR 46550, Sept. 13, 1991]
PART 219--PLANNING--Table of Contents
Subpart A--National Forest System Land and Resource Management Planning
Sec.
219.1 Purpose and principles.
219.2 Scope and applicability.
219.3 Definitions and terminology.
219.4 Planning levels.
219.5 Interdisciplinary approach.
219.6 Public participation.
219.7 Coordination with other public planning efforts.
219.8 Regional planning procedure.
219.9 Regional guide content.
219.10 Forest planning--general procedure.
219.11 Forest plan content.
219.12 Forest planning--process.
219.13 Forest planning--resource integration requirements.
219.14 Timber resource land suitability.
219.15 Vegetation management practices.
219.16 Timber resource sale schedule.
219.17 Evaluation of roadless areas.
219.18 Wilderness management.
219.19 Fish and wildlife resource.
219.20 Grazing resource.
219.21 Recreation resource.
219.22 Mineral resource.
219.23 Water and soil resource.
219.24 Cultural and historic resource.
219.25 Research natural areas.
219.26 Diversity.
219.27 Management requirements.
219.28 Research.
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219.29 Transition period.
Subpart B--[Reserved]
Subpart A--National Forest System Land and Resource Management Planning
Authority. Secs. 6 and 15, 90 Stat. 2949, 2952, 2958 (16 U.S.C.
1604, 1613); and 5 U.S.C. 301.
Source: 47 FR 43037, Sept. 30, 1982, unless otherwise noted.
Sec. 219.1 Purpose and principles.
(a) The regulations in this subpart set forth a process for
developing, adopting, and revising land and resource management plans
for the National Forest System as required by the Forest and Rangeland
Renewable Resources Planning Act of 1974, as amended (hereafter, RPA).
These regulations prescribe how land and resource management planning is
to be conducted on National Forest System lands. The resulting plans
shall provide for multiple use and sustained yield of goods and services
from the National Forest System in a way that maximizes long term net
public benefits in an environmentally sound manner.
(b) Plans guide all natural resource management activities and
establish management standards and guidelines for the National Forest
System. They determine resource management practices, levels of resource
production and management, and the availability and suitability of lands
for resource management. Regional and forest planning will be based on
the following principles:
(1) Establishment of goals and objectives for multiple-use and
sustained-yield management of renewable resources without impairment of
the productivity of the land;
(2) Consideration of the relative values of all renewable resources,
including the relationship of nonrenewable resources, such as minerals,
to renewable resources;
(3) Recognition that the National Forests are ecosystems and their
management for goods and services requires an awareness and
consideration of the interrelationships among plants, animals, soil,
water, air, and other environmental factors within such ecosystems;
(4) Protection and, where appropriate, improvement of the quality of
renewable resources;
(5) Preservation of important historic, cultural, and natural
aspects of our national heritage;
(6) Protection and preservation of the inherent right of freedom of
American Indians to believe, express, and exercise their traditional
religions;
(7) Provision for the safe use and enjoyment of the forest resources
by the public;
(8) Protection, through ecologically compatible means, of all forest
and rangeland resources from depredations by forest and rangeland pests;
(9) Coordination with the land and resource planning efforts of
other Federal agencies, State and local governments, and Indian tribes;
(10) Use of a systematic, interdisciplinary approach to ensure
coordination and integration of planning activities for multiple-use
management;
(11) Early and frequent public participation;
(12) Establishment of quantitative and qualitative standards and
guidelines for land and resource planning and management;
(13) Management of National Forest System lands in a manner that is
sensitive to economic efficiency; and
(14) Responsiveness to changing conditions of land and other
resources and to changing social and economic demands of the American
people.
Sec. 219.2 Scope and applicability.
The regulations in this subpart apply to the National Forest System,
which includes special areas, such as wilderness, wild and scenic
rivers, national recreation areas, and national trails. Whenever the
special area authorities require additional planning, the planning
process under this subpart shall be subject to those authorities.
(a) Unless inconsistent with special area authorities, requirements
for additional planning for special areas shall be met through plans
required under this subpart.
(b) If, in a particular case, special area authorities require the
preparation of a separate special area plan, the
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direction in any such plan may be incorporated without modification in
plans prepared under this subpart.
Sec. 219.3 Definitions and terminology.
For purposes of this subpart the following terms, respectively,
shall mean:
Allowable sale quantity: The quantity of timber that may be sold
from the area of suitable land covered by the forest plan for a time
period specified by the plan. This quantity is usually expressed on an
annual basis as the ``average annual allowable sale quantity.''
Base sale schedule: A timber sale schedule formulated on the basis
that the quantity of timber planned for sale and harvest for any future
decade is equal to or greater than the planned sale and harvest for the
preceding decade, and this planned sale and harvest for any decade is
not greater than the long-term sustained yield capacity.
Biological growth potential: The average net growth attainable in a
fully stocked natural forest stand.
Capability: The potential of an area of land to produce resources,
supply goods and services, and allow resource uses under an assumed set
of management practices and at a given level of management intensity.
Capability depends upon current conditions and site conditions such as
climate, slope, landform, soils, and geology, as well as the application
of management practices, such as silviculture or protection from fire,
insects, and disease.
Corridor: A linear strip of land identified for the present or
future location of transportation or utility rights-of-way within its
boundaries.
Cost efficiency: The usefulness of specified inputs (costs) to
produce specified outputs (benefits). In measuring cost efficiency, some
outputs, including environmental, economic, or social impacts, are not
assigned monetary values but are achieved at specified levels in the
least cost manner. Cost efficiency is usually measured using present net
value, although use of benefit-cost ratios and rates-of-return may be
appropriate.
Diversity: The distribution and abundance of different plant and
animal communities and species within the area covered by a land and
resource management plan.
Even-aged management: The application of a combination of actions
that results in the creation of stands in which trees of essentially the
same age grow together. Managed even-aged forests are characterized by a
distribution of stands of varying ages (and, therefore, tree sizes)
throughout the forest area. The difference in age between trees forming
the main canopy level of a stand usually does not exceed 20 percent of
the age of the stand at harvest rotation age. Regeneration in a
particular stand is obtained during a short period at or near the time
that a stand has reached the desired age or size for regeneration and is
harvested. Clearcut, shelterwood, or seed tree cutting methods produce
even-aged stands.
Forest land: Land at least 10 percent occupied by forest trees of
any size or formerly having had such tree cover and not currently
developed for non-forest use. Lands developed for non-forest use include
areas for crops, improved pasture, residential, or administrative areas,
improved roads of any width, and adjoining road clearing and powerline
clearing of any width.
Goal: A concise statement that describes a desired condition to be
achieved sometime in the future. It is normally expressed in broad,
general terms and is timeless in that it has no specific date by which
it is to be completed. Goal statements form the principal basis from
which objectives are developed.
Goods and services: The various outputs, including on-site uses,
produced from forest and rangeland resources.
Integrated pest management: A process for selecting strategies to
regulate forest pests in which all aspects of a pest-host system are
studied and weighed. The information considered in selecting appropriate
strategies includes the impact of the unregulated pest population on
various resources values, alternative regulatory tactics and strategies,
and benefit/cost estimates for these alternative strategies. Regulatory
strategies are based on sound silvicultural practices and ecology of the
pest-host system and consist of a combination of tactics such as timber
[[Page 54]]
stand improvement plus selective use of pesticides. A basic principle in
the choice of strategy is that it be ecologically compatible or
acceptable.
Long-term sustained-yield timber capacity: The highest uniform wood
yield from lands being managed for timber production that may be
sustained under a specified management intensity consistent with
multiple-use objectives.
Management concern: An issue, problem, or a condition which
constrains the range of management practices identified by the Forest
Service in the planning process.
Management direction: A statement of multiple-use and other goals
and objectives, the associated management prescriptions, and standards
and guidelines for attaining them.
Management intensity: A management practice or combination of
management practices and associated costs designed to obtain different
levels of goods and services.
Management practice: A specific activity, measure, course of action,
or treatment.
Management prescription: Management practices and intensity selected
and scheduled for application on a specific area to attain multiple-use
and other goals and objectives.
Multiple use: The management of all the various renewable surface
resources of the National Forest System so that they are utilized in the
combination that will best meet the needs of the American people; making
the most judicious use of the land for some or all of these resources or
related services over areas large enough to provide sufficient latitude
for periodic adjustments in use to conform to changing needs and
conditions; that some lands will be used for less than all of the
resources; and harmonious and coordinated management of the various
resources, each with the other, without impairment of the productivity
of the land, with consideration being given to the relative values of
the various resources, and not necessarily the combination of uses that
will give the greatest dollar return or the greatest unit output.
Net public benefits: An expression used to signify the overall long-
term value to the nation of all outputs and positive effects (benefits)
less all associated inputs and negative effects (costs) whether they can
be quantitatively valued or not. Net public benefits are measured by
both quantitative and qualitative criteria rather than a single measure
or index. The maximization of net public benefits to be derived from
management of units of the National Forest System is consistent with the
principles of multiple use and sustained yield.
Objective: A concise, time-specific statement of measurable planned
results that respond to pre-established goals. An objective forms the
basis for further planning to define the precise steps to be taken and
the resources to be used in achieving identified goals.
Planning area: The area of the National Forest System covered by a
regional guide or forest plan.
Planning period: One decade. The time interval within the planning
horizon that is used to show incremental changes in yields, costs,
effects, and benefits.
Planning horizon: The overall time period considered in the planning
process that spans all activities covered in the analysis or plan and
all future conditions and effects of proposed actions which would
influence the planning decisions.
Present net value: The difference between the discounted value
(benefits) of all outputs to which monetary values or established market
prices are assigned and the total discounted costs of managing the
planning area.
Public issue: A subject or question of widespread public interest
relating to management of the National Forest System.
Real dollar value: A monetary value which compensates for the
effects of inflation.
Receipt shares: The portion of receipts derived from Forest Service
resource management that is distributed to State and county governments,
such as the Forest Service 25 percent fund payments.
Responsible line officer: The Forest Service employee who has the
authority to select and/or carry out a specific planning action.
[[Page 55]]
Sale schedule: The quantity of timber planned for sale by time
period from an area of suitable land covered by a forest plan. The first
period, usually a decade, of the selected sale schedule provides the
allowable sale quantity. Future periods are shown to establish that
long-term sustained yield will be achieved and maintained.
Silvicultural system: A management process whereby forests are
tended, harvested, and replaced, resulting in a forest of distinctive
form. Systems are classified according to the method of carrying out the
fellings that remove the mature crop and provide for regeneration and
according to the type of forest thereby produced.
Suitability: The appropriateness of applying certain resource
management practices to a particular area of land, as determined by an
analysis of the economic and environmental consequences and the
alternative uses foregone. A unit of land may be suitable for a variety
of individual or combined management practices.
Sustained-yield of products and services: The achievement and
maintenance in perpetuity of a high-level annual or regular periodic
output of the various renewable resources of the National Forest System
without impairment of the productivity of the land.
Timber production: The purposeful growing, tending, harvesting, and
regeneration of regulated crops of trees to be cut into logs, bolts, or
other round sections for industrial or consumer use. For purposes of
this subpart, the term timber production does not include production of
fuelwood.
Uneven-aged management: The application of a combination of actions
needed to simultaneously maintain continuous high-forest cover,
recurring regeneration of desirable species, and the orderly growth and
development of trees through a range of diameter or age classes to
provide a sustained yield of forest products. Cutting is usually
regulated by specifying the number or proportion of trees of particular
sizes to retain within each area, thereby maintaining a planned
distribution of size classes. Cutting methods that develop and maintain
uneven-aged stands are single-tree selection and group selection.
Sec. 219.4 Planning levels.
(a) General guideline. Planning requires a continuous flow of
information and management direction among the three Forest Service
administrative levels: national, regional, and forest. Management
direction shall:
(1) Include requirements for analysis to determine programs that
maximize net public benefits, consistent with locally derived
information about production capabilities;
(2) Reflect production capabilities, conditions and circumstances
observed at all levels; and
(3) Become increasingly specific as planning progresses from the
national to the forest level. In this structure, regional planning is a
principal process for conveying management direction from the national
level to the forest level and for conveying information from forest
level to the national level. The planning process is essentially
iterative in that the information from the forest level flows up to the
national level where in turn information in the RPA Program flows back
to the forest level.
(b) Planning levels and relationships--(1) National. The Chief of
the Forest Service shall develop the Renewable Resources Assessment and
Program (hereafter, ``RPA Assessment and RPA Program'') according to
sections 3 and 4 of the RPA.
(i) RPA Assessment. The RPA Assessment shall include analysis of
present and anticipated uses, demand for, and supply of the renewable
resources of forest, range, and other associated lands with
consideration of, and an emphasis on, pertinent supply, demand, and
price relationship trends; an inventory of present and potential
renewable resources and an evaluation of opportunities for improving
their yield of tangible and intangible goods and services, together with
estimates of investment costs and direct and indirect returns to the
Federal Government; a description of Forest Service programs and
responsibilities in research, cooperative programs, and management of
the National Forest System; and analysis of important policy issues and
consideration of laws, regulations, and other factors expected to
influence and affect significantly the use, ownership, and
[[Page 56]]
management of forest, range, and other associated lands. The RPA
Assessment shall be based on the future capabilities of forest and
rangelands and shall include information generated during the regional,
forest, and other planning processes.
(ii) RPA Program. The RPA Program shall consider the costs of supply
and the relative values of both market and nonmarket outputs. The
alternatives considered shall include national renewable resource goals
and quantified objectives for resource outputs and other benefits and
shall be designed to represent a range of expenditure levels sufficient
to demonstrate full opportunities for management. A portion of each
national objective developed in the RPA Program shall be distributed to
each region and be incorporated into each regional guide. Resource
objectives shall be tentatively selected for each forest planning area.
In formulating the objectives for each region and forest planning area,
local supply capabilities and market conditions will be considered.
(2) Regional. Each Regional Forester shall develop a regional guide.
Regional guides shall establish regional standards and guidelines as
required by Sec. 219.9(a). Consistent with resource capabilities,
regional guides shall reflect goals and objectives of the RPA Program.
For planning purposes, the regional guides shall display tentative
resource objectives for each Forest from the RPA Program. Regional
guides shall also provide for general coordination of National Forest
System, State and Private Forestry (S&PF), and Research programs. The
Chief shall approve the regional guide. The Regional Forester may
request adjustment of assigned regional objectives. Any adjustment shall
require the approval of the Chief, Forest Service.
(3) Forest. Each Forest Supervisor shall develop a forest plan for
administrative units of the National Forest System. One forest plan may
be prepared for all lands for which a Forest Supervisor has
responsibility; or separate forest plans may be prepared for each
National Forest, or combination of National Forests, within the
jurisdiction of a single Forest Supervisor. A single forest plan may be
prepared for the entire Tongass National Forest. These forest plans
shall constitute the land and resource management plans as required
under sections 6 and 13 of the RPA. A range of resource objectives shall
be formulated as alternatives and evaluated, including at least one
alternative which responds to and incorporates the tentative RPA Program
resource objectives displayed in the regional guide. Based on this
evaluation, the Forest Supervisor shall recommend objectives for
incorporation into the forest plan to the Regional Forester. The
Regional Forester shall approve the forest plan. This approval may
incorporate adjustment of the tentative RPA Program resource objectives
displayed in the regional guide.
Sec. 219.5 Interdisciplinary approach.
(a) A team representing several disciplines shall be used for
regional and forest planning to insure coordinated planning of the
various resources. Through interactions among its members, the team
shall integrate knowledge of the physical, biological, economic and
social sciences, and the environmental design arts in the planning
process. The team shall consider problems collectively, rather than
separating them along disciplinary lines. Team functions include, but
are not limited to--
(1) Assessing the problems and resource use and development
opportunities associated with providing goods and services;
(2) Obtaining the public's views about possible decisions;
(3) Implementing the planning coordination activities within the
Forest Service and with local, State and other Federal agencies;
(4) Developing a broad range of alternatives which identify the
benefits and costs of land and resource management according to the
planning process described in this subpart.
(5) Developing the land and resource management plan and associated
environmental impact statement required pursuant to the planning
process;
(6) Presenting to the responsible line officer an integrated
perspective on land and resource management planning; and
[[Page 57]]
(7) Establishing the standards and requirements by which planning
and management activities will be monitored and evaluated.
(b) In appointing team members, the responsible line officer shall
determine and consider the qualifications of each team member on the
basis of the complexity of the issues and concerns to be addressed
through the plan. The team shall collectively represent diverse
specialized areas of professional and technical knowledge applicable to
the planning area, and the team members shall have recognized relevant
expertise and experience in professional, investigative, scientific, or
other responsible work in specialty areas which they collectively
represent. The team may consist of whatever combination of Forest
Service staff and other Federal government personnel is necessary to
achieve an interdisciplinary approach. The team is encouraged to consult
other persons when required specialized knowledge does not exist within
the team itself. In addition to technical knowledge in one or more
resource specialties, members should possess other attributes which
enhance the interdisciplinary process. As a minimum, these attributes
should include--
(1) An ability to solve complex problems;
(2) Skills in communication and group interaction;
(3) Basic understanding of land and natural resource planning
concepts, processes, and analysis techniques; and
(4) The ability to conceptualize planning problems and feasible
solutions.
Sec. 219.6 Public participation.
(a) Because the land and resource management planning process
determines how the lands of the National Forest System are to be
managed, the public is encouraged to participate throughout the planning
process. The intent of public participation is to--
(1) Broaden the information base upon which land and resource
management planning decisions are made;
(2) Ensure that the Forest Service understands the needs, concerns,
and values of the public;
(3) Inform the public of Forest Service land and resource planning
activities; and
(4) Provide the public with an understanding of Forest Service
programs and proposed actions.
(b) Public participation in the preparation of environmental impact
statements for planning begins with the publication of a notice of
intent in the Federal Register. Public involvement in the preparation of
draft and final environmental impact statements shall conform to the
requirements of the National Environmental Policy Act and associated
implementing regulations and Forest Service Manual and Handbook guidance
(hereafter, ``NEPA procedures''). Public comments shall be analyzed
according to NEPA procedures.
(c) Public participation activities, as deemed appropriate by the
responsible line officer, shall be used early and often throughout the
development of plans. Formal public participation activities will begin
with a notice to the news media and other sources which includes, as
appropriate, the following information:
(1) A description of the proposed planning action;
(2) A description and map of the geographic area affected;
(3) The issues expected to be discussed;
(4) The kind, extent, and method(s) of public participation to be
used;
(5) The times, dates, and locations scheduled or anticipated, for
public meetings;
(6) The name, title, address, and telephone number of the Forest
Service official who may be contacted for further information; and
(7) The location and availability of documents relevant to planning
process.
(d) Public participation activities should be appropriate to the
area and people involved. Means of notification should be appropriate to
the level of planning. Public participation activities may include, but
are not limited to, requests for written comments, meetings,
conferences, seminars, workshops, tours, and similar events designed to
foster public review and comment. The Forest Service shall state the
objectives of each participation activity to assure that the public
understands what type of information is
[[Page 58]]
needed and how this information relates to the planning process.
(e) Public comments shall be considered individually and by type of
group and organization to determine common areas of concern and
geographic distribution. The result of this analysis should be evaluated
to determine the variety and intensity of viewpoints about ongoing and
proposed planning and management standards and guidelines.
(f) All scheduled public participation activities shall be
documented by a summary of the principal issues discussed, comments
made, and a register of participants.
(g) At least 30 days' public notice shall be given for public
participation activities associated with the development of regional
guides and forest plans. Any notice requesting written comments on
regional planning shall allow at least 60 calendar days for response. A
similar request on forest planning shall allow at least 30 calendar days
for response. Draft regional guides and forest plans and environmental
impact statements shall be available for public comment for a least 3
months. See also Secs. 219.8(c) and 219.10(b).
(h) The responsible line officer shall attend, or provide for
adequate representation at, public participation activities.
(i) Copies of approved guides and plans shall be available for
public review as follows:
(1) The RPA Assessment and the RPA Program shall be available at
national headquarters, The Northeastern Area State and Private Forestry
Office, and all Regional offices, Research Stations, Forest Supervisors'
offices, and District Rangers' offices;
(2) The regional guides shall be available at national headquarters,
the issuing regional office and regional offices of contiguous regions,
each Forest Supervisor's office of forests within and contiguous to the
issuing region, and each District Ranger's office in the region;
(3) The forest plan shall be available at the regional office for
the forest, the Forest Supervisor's office, Forest Supervisors' offices
contiguous to the forest, District Rangers' offices within the forest,
and at least one additional location, to be determined by the Forest
Supervisor, which shall offer convenient access to the public.
These documents may be made available at other locations convenient to
the public.
(j) Documents considered in the development of plans shall be
available at the office where the plans were developed.
(k) Forest planning activities should be coordinated to the extent
practicable with owners of lands that are intermingled with, or
dependent for access upon, National Forest System lands. The results of
this coordination shall be included in the environmental impact
statement for the plan as part of the review required in Sec. 219.7(c).
The responsible line officer may individually notify these owners of
forest planning activities where it is determined that notice provided
for the general public is not likely to reach the affected landowners.
(l) Fees for reproducing requested documents shall be charged
according to the Secretary of Agriculture's Fee Schedule (7 CFR part 1,
subpart A, appendix A).
Sec. 219.7 Coordination with other public planning efforts.
(a) The responsible line officer shall coordinate regional and
forest planning with the equivalent and related planning efforts of
other Federal agencies, State and local governments, and Indian tribes.
(b) The responsible line officer shall give notice of the
preparation of a land and resource management plan, along with a general
schedule of anticipated planning actions, to the official or agency so
designated by the affected State (including the Commonwealth of Puerto
Rico). The same notice shall be mailed to all Tribal or Alaska Native
leaders whose tribal lands or treaty rights are expected to be impacted
and to the heads of units of government for the counties involved. These
notices shall be issued simultaneously with the publication of the
notice of intent to prepare an environmental impact statement required
by NEPA procedures (40 CFR 1501.7).
[[Page 59]]
(c) The responsible line officer shall review the planning and land
use policies of other Federal agencies, State and local governments, and
Indian tribes. The results of this review shall be displayed in the
environmental impact statement for the plan (40 CFR 1502.16(c), 1506.2).
The review shall include--
(1) Consideration of the objectives of other Federal, State and
local governments, and Indians tribes, as expressed in their plans and
policies;
(2) An assessment of the interrelated impacts of these plans and
policies;
(3) A determination of how each Forest Service plan should deal with
the impacts identified; and,
(4) Where conflicts with Forest Service planning are identified,
consideration of alternatives for their resolution.
(d) In developing land and resource management plans, the
responsible line officer shall meet with the designated State official
(or designee) and representatives of other Federal agencies, local
governments, and Indian tribal governments at the beginning of the
planning process to develop procedures for coordination. As a minimum,
such conferences shall also be held after public issues and management
concerns have been identified and prior to recommending the preferred
alternative. Such conferences may be held in conjunction with other
public participation activities, if the opportunity for government
officials to participate in the planning process is not thereby reduced.
(e) In developing the forest plan, the responsible line officer
shall seek input from other Federal, State and local governments, and
universities to help resolve management concerns in the planning process
and to identify areas where additional research is needed. This input
should be included in the discussion of the research needs of the
designated forest planning area.
(f) A program of monitoring and evaluation shall be conducted that
includes consideration of the effects of National Forest management on
land, resources, and communities adjacent to or near the National Forest
being planned and the effects upon National Forest management of
activities on nearby lands managed by other Federal or other government
agencies or under the jurisdiction of local governments.
[47 FR 43037, Sept. 30, 1982, as amended at 48 FR 29122, June 24, 1983]
Sec. 219.8 Regional planning procedure.
(a) Regional guide. A regional guide shall be developed for each
administratively designated Forest Service region. Regional guides shall
reflect general coordination of National Forest System, State and
Private Forestry, and Research programs. Regional guides shall provide
standards and guidelines for addressing major issues and management
concerns which need to be considered at the regional level to facilitate
forest planning. Public participation and coordination, the current RPA
Program and Assessment, and the existing forest and resource plans shall
be used as sources of information in meeting this requirement. Data and
information requirements established nationally will be followed in
structuring and maintaining required data.
(b) Responsibilities--(1) Chief, Forest Service. The Chief shall
establish agency-wide policy for regional planning and approve all
regional guides.
(2) Regional forester. The Regional Forester has overall
responsibility for preparing and implementing the regional guide and for
preparing the environmental impact statement for proposed standards and
guidelines in the regional guide. The Regional Forester appoints and
supervises the interdisciplinary team.
(3) Interdisciplinary team. The team, under the direction of the
Regional Forester, implements the public participation and coordination
activities required by Sec. 219.6 and Sec. 219.7. The team shall
continue to function even though membership may change and shall monitor
and evaluate planning results and recommend amendments. The team shall
develop a regional guide in compliance with NEPA procedures.
(c) Public review. A draft and final environmental impact statement
shall be prepared for the proposed standards and guidelines in the
regional guide according to NEPA procedures. To the extent feasible, a
single process shall
[[Page 60]]
be used to meet planning and NEPA requirements. The draft statement
shall identify a preferred alternative. Beginning on the date of
publication of the notice of availability of the draft environmental
impact statement in the Federal Register, the statement and the proposed
guide shall be available for public comment for at least 3 months at
convenient locations in the vicinity of the lands covered by the guide.
During this period, and in accordance with the provisions in Sec. 219.6,
the Regional Forester or his designee shall publicize and hold public
participation activities as deemed necessary for adequate public input.
(d) Guide approval. The Chief shall review the proposed guide and
the final environmental impact statement and either approve or
disapprove the guide.
(1) Approval. The Chief shall prepare a concise public record of
decision which documents approval and accompanies the regional guide and
the final environmental impact statement. The record or decision shall
be prepared according to NEPA procedures (40 CFR 1505.2). The approved
regional guide shall not become effective until at least 30 days after
publication of the notice of availability of the final environmental
impact statement in the Federal Register.
(2) Disapproval. The Chief shall return the regional guide and final
environmental impact statement to the Regional Forester with a written
statement of the reasons for disapproval. The Chief may also specify a
course of action to be undertaken by the Regional Forester in order to
remedy deficiencies, errors, or omissions in the regional guide or
environmental impact statement.
(e) Public appeal of approval decisions. The provisions of 36 CFR
part 211, subpart B apply to any administrative appeal of the Chief's
decision to approve a regional guide. Decisions to disapprove a guide
and other decisions made during the regional planning process prior to
issuance of a record of decision approving the guide are not subject to
administrative appeal.
(f) Amendment. The Regional Forester may amend the regional guide.
The Regional Forester shall determine whether the proposed amendment
would result in a significant change in the guide. If the change
resulting from the proposed amendment is determined to be significant,
the Regional Forester shall follow the same procedure for amendment as
that required for development and approval of a regional guide. If the
change resulting from the amendment is determined not to be significant
for the purposes of the planning process, the Regional Forester may
implement the amendment following appropriate public notification and
satisfactory completion of NEPA procedures.
(g) Planning records. The Regional Forester shall develop and
maintain planning records that document decisions and activities that
result from the process of developing a regional guide and the
accomplishment of legal and administrative planning requirements. These
records include at least the draft environmental impact statement, final
environmental impact statement, regional guide, record of decision, a
work plan to guide and manage planning, the procedures used in
completing each action, and the results of these actions.
Sec. 219.9 Regional guide content.
(a) The regional guide shall contain--
(1) A summary of the analysis of the regional management situation,
including a brief description of the existing management situation and
the major issues and management concerns which need to be addressed at
the regional level to facilitate forest planning;
(2) A description of management direction including programs, goals,
and objectives;
(3) A display of tentative resource objectives for each forest
planning area from the current RPA Program;
(4) New or significantly changed regional management standards and
guidelines necessary to address major regional issues and management
concerns identified in paragraph (a)(1) of this section;
(5) Specific standards and guidelines for the following--
(i) Prescribing appropriate harvest cutting methods to be used
within the region according to geographic areas,
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forest types, or other suitable classifications;
(ii) Establishing the maximum size, dispersal, and size variation of
tree openings created by even-aged management, and the state of
vegetation that will be reached before a cut-over area is no longer
considered an opening, using factors enumerated in Sec. 219.27(d);
(iii) Defining the management intensities and utilization standards
to be used in determining harvest levels for the region;
(iv) Designating transportation corridors and associated direction
for forest planning, such as management requirements for corridors,
transmission lines, pipelines, and water canals. (The designation of
corridors is not to preclude the granting of separate rights-of-way
over, upon, under, or through the Federal lands where the authorized
line officer determines that confinement to a corridor is not
appropriate.) (43 U.S.C. 1763, 36 CFR 251.56); and
(v) Identifying in forest plans significant current and potential
air pollution emissions from management activities and from other
sources in and around the forest planning area and identifying measures
needed to coordinate air quality control with appropriate air quality
regulation agencies.
(6) A description of the monitoring and evaluation necessary to
determine and report achievements and effects of the guide.
(7) A description of measures to achieve coordination of National
Forest System, State and Private Forestry, and Research programs.
(b) Existing regional standards and guidelines that are part of the
Forest Service directives system, and that are not altered or superseded
in the course of complying with Sec. 219.9(a)(4), shall remain in
effect.
Sec. 219.10 Forest planning--general procedure.
(a) Responsibilities--(1) Regional Forester. The Regional Forester
shall establish regional policy for forest planning and approve all
forest plans in the region.
(2) Forest Supervisor. The Forest Supervisor has overall
responsibility for the preparation and implementation of the forest plan
and preparation of the environmental impact statement for the forest
plan. The Forest Supervisor appoints and supervises the
interdisciplinary team.
(3) Interdisciplinary team. The team, under the direction of the
Forest Supervisor, implements the public participation and coordination
activities required by Sec. 219.6 and Sec. 219.7. The team shall
continue to function even though membership may change and shall monitor
and evaluate planning results and recommend revisions and amendments.
The interdisciplinary team shall develop a forest plan and environmental
impact statement using the process established in Sec. 219.12 and
paragraph (b) below.
(b) Public review of plan and environmental impact statement. A
draft and final environmental impact statement shall be prepared for the
proposed plan according to NEPA procedures. The draft environmental
impact statement shall identify a preferred alternative. To comply with
16 U.S.C. 1604(d), the draft environmental impact statement and proposed
plan shall be available for public comment for at least 3 months, at
convenient locations in the vicinity of the lands covered by the plan,
beginning on the date of the publication of the notice of availability
in the Federal Register. During this period, and in accordance with the
provisions in Sec. 219.6, the Forest Supervisor shall publicize and hold
public participation activities as deemed necessary to obtain adequate
public input.
(c) Plan approval. The Regional Forester shall review the proposed
plan and the final environmental impact statement and either approve or
disapprove the plan.
(1) Approval. The Regional Forester shall prepare a concise public
record of decision which documents approval and accompanies the plan and
final environmental impact statement. The record of decision shall be
prepared according to NEPA procedures (40 CFR 1505.2). The approved plan
shall not become effective until at least 30 days after publication of
the notice of availability of the final environmental impact statement
in the Federal Register, to comply with 16 U.S.C. 1604(d) and 1604(j).
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(2) Disapproval. The Regional Forester shall return the plan and
final environmental impact statement to the Forest Supervisor with a
written statement of the reasons for disapproval. The Regional Forester
may also specify a course of action to be undertaken by the Forest
Supervisor in order to remedy deficiencies, errors, or omissions in the
plan or environmental impact statement.
(d) Public appeal of approval decision. The provisions of 36 CFR
part 211, subpart B apply to any administrative appeal of the Regional
Forester's decision to approve a forest plan. Decisions to disapprove a
plan and other decisions made during the forest planning process prior
to the issuance of a record of decision approving the plan are not
subject to administrative appeal.
(e) Plan implementation. As soon as practicable after approval of
the plan, the Forest Supervisor shall ensure that, subject to valid
existing rights, all outstanding and future permits, contracts,
cooperative agreements, and other instruments for occupancy and use of
affected lands are consistent with the plan. Subsequent administrative
activities affecting such lands, including budget proposals, shall be
based on the plan. The Forest Supervisor may change proposed
implementation schedules to reflect differences between proposed annual
budgets and appropriated funds. Such scheduled changes shall be
considered an amendment to the forest plan, but shall not be considered
a significant amendment, or require the preparation of an environmental
impact statement, unless the changes significantly alter the long-term
relationship between levels of multiple-use goods and services projected
under planned budget proposals as compared to those projected under
actual appropriations.
(f) Amendment. The Forest Supervisor may amend the forest plan.
Based on an analysis of the objectives, guidelines, and other contents
of the forest plan, the Forest Supervisor shall determine whether a
proposed amendment would result in a significant change in the plan. If
the change resulting from the proposed amendment is determined to be
significant, the Forest Supervisor shall follow the same procedure as
that required for development and approval of a forest plan. If the
change resulting from the amendment is determined not to be significant
for the purposes of the planning process, the Forest Supervisor may
implement the amendment following appropriate public notification and
satisfactory completion of NEPA procedures.
(g) Revision. A forest plan shall ordinarily be revised on a 10-year
cycle or at least every 15 years. It also may be revised whenever the
Forest Supervisor determines that conditions or demands in the area
covered by the plan have changed significantly or when changes in RPA
policies, goals, or objectives would have a significant effect on forest
level programs. In the monitoring and evaluation process, the
interdisciplinary team may recommend a revision of the forest plan at
any time. Revisions are not effective until considered and approved in
accordance with the requirements for the development and approval of a
forest plan. The Forest Supervisor shall review the conditions on the
land covered by the plan at least every 5 years to determine whether
conditions or demands of the public have change significantly.
(h) Planning records. The Forest Supervisor and interdisciplinary
team shall develop and maintain planning records that document the
decisions and activities that result from the process of developing a
forest plan. Records that support analytical conclusions made and
alternatives considered by the team and approved by the Forest
Supervisor throughout the planning process shall be maintained. Such
supporting records provide the basis for the development of the forest
plan and associated documents required by NEPA procedures.
Sec. 219.11 Forest plan content.
The forest plan shall contain the following:
(a) A brief summary of the analysis of the management situation,
including demand and supply conditions for resource commodities and
services, production potentials, and use and development opportunities;
(b) Forest multiple-use goals and objectives that include a
description of
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the desired future condition of the forest or grassland and an
identification of the quantities of goods and services that are expected
to be produced or provided during the RPA planning periods;
(c) Multiple-use prescriptions and associated standards and
guidelines for each management area including proposed and probable
management practices such as the planned timber sale program; and
(d) Monitoring and evaluation requirements that will provide a basis
for a periodic determination and evaluation of the effects of management
practices.
Sec. 219.12 Forest planning--process.
(a) General requirements. The preparation, revision, or significant
amendment of a forest plan shall comply with the requirements
established in this section. The planning process includes at least
those actions set forth in paragraphs (b) through (k) of the section.
Some actions may occur simultaneously, and it may be necessary to repeat
an action as additional information becomes available. The environmental
impact statement for each forest plan shall be prepared according to
NEPA procedures. To the extent feasible, a single process shall be used
to meet planning and NEPA requirements.
(b) Identification of purpose and need. The interdisciplinary team
shall identify and evaluate public issues, management concerns, and
resource use and development opportunities, including those identified
throughout the planning process during public participation activities
and coordination with other Federal agencies, State and local
governments, and Indian tribes. The Forest Supervisor shall determine
the major public issues, management concerns, and resource use and
development opportunities to be addressed in the planning process.
(c) Planning criteria. Criteria shall be prepared to guide the
planning process. Criteria apply to collection and use of inventory data
and information, analysis of the management situation, and the design,
formulation, and evaluation of alternatives. Criteria designed to
achieve the objective of maximizing net public benefits shall be
included. Specific criteria may be derived from--
(1) Laws, Executive Orders, regulations, and agency policy as set
forth in the Forest Service Manual;
(2) Goals and objectives in the RPA Program and regional guides;
(3) Recommendations and assumptions developed from public issues,
management concerns, and resource use and development opportunities;
(4) The plans and programs of other Federal agencies, State and
local governments, and Indian tribes;
(5) Ecological, technical, and economic factors; and
(6) The resource integration and management requirements in
Secs. 219.13 through 219.27.
(d) Inventory data and information collection. Each Forest
Supervisor shall obtain and keep current inventory data appropriate for
planning and managing the resources under his or her administrative
jurisdiction. The Supervisor will assure that the interdisciplinary team
has access to the best available data. This may require that special
inventories or studies be prepared. The interdisciplinary team shall
collect, assemble, and use data, maps, graphic material, and explanatory
aids, of a kind, character, and quality, and to the detail appropriate
for the management decisions to be made. Data and information needs may
vary as planning problems develop from identification of public issues,
management concerns, and resource use and development opportunities.
Data shall be stored for ready retrieval and comparison and periodically
shall be evaluated for accuracy and effectiveness. The interdisciplinary
team will use common data definitions and standards established by the
Chief of the Forest Service to assure uniformity of information between
all planning levels. As information is recorded, it shall be applied in
any subsequent planning process. Information developed according to
common data definitions and standards shall be used in the preparation
of the 1990, and subsequent RPA Assessments and RPA Programs.
(e) Analysis of the management situation. The analysis of the
management situation is a determination of the ability of the planning
area covered by
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the forest plan to supply goods and services in response to society's
demands. The primary purpose of this analysis is to provide a basis for
formulating a broad range of reasonable alternatives. The analysis may
examine the capability of the unit to supply outputs both with and
without legal and other requirements. As a minimum, the analysis of the
management situation shall include the following:
(1) Benchmark analyses to define the range within which alternatives
can be constructed. Budgets shall not be a constraint. The following
benchmark analyses shall be consistent with the minimum applicable
management requirements of Sec. 219.27 and shall define at least--
(i) The minimum level of management which would be needed to
maintain and protect the unit as part of the National Forest System
together with associated costs and benefits;
(ii) The maximum physical and biological production potentials of
significant individual goods and services together with associated costs
and benefits;
(iii) Monetary benchmarks which estimate the maximum present net
value of those resources having an established market value or an
assigned value;
(A) For forest planning areas with major resource outputs that have
an established market price, monetary benchmarks shall include an
estimate of the mix of resource uses, combined with a schedule of
outputs and costs, which will maximize the present net value of those
major outputs that have an established market price;
(B) For all forest planning areas, monetary benchmarks shall include
an estimate of the mix of resource uses, combined with a schedule of
outputs and costs, which will maximize the present net value of those
major outputs that have an established market price or are assigned a
monetary value;
(C) For forest planning areas with a significant timber resource,
estimates for paragraphs (e)(1)(iii) (A) and (B) of this section shall
be developed both with and without meeting the requirements for
compliance with a base sale schedule of timber harvest, as described in
Sec. 219.16(a)(1), and with and without scheduling the harvest of even-
aged stands generally at or beyond culmination of mean annual increment
of growth, as described in Sec. 219.16(a)(2)(iii).
(D) Estimates for paragraphs (e)(1)(iii) (A) and (B) of this section
shall be developed both with and without other constraints when needed
to address major public issues, management concerns, or resource
opportunities identified during the planning process.
(2) The current level of goods and services provided by the unit and
the most likely amount of goods and services expected to be provided in
the future if current management direction continues; this will be the
same analysis as that required by Sec. 219.12(f)(5).
(3) Projections of demand using best available techniques, with both
price and nonprice information. To the extent practical, demand will be
assessed as price-quantity relationships.
(4) A determination of the potential to resolve public issues and
management concerns.
(5) Based on consideration of data and findings developed in
paragraphs (e)(1)-(4), a determination of the need to establish or
change management direction.
(f) Formulation of alternatives. The interdisciplinary team shall
formulate a broad range of reasonable alternatives according to NEPA
procedures. The primary goal in formulating alternatives, besides
complying with NEPA procedures, is to provide an adequate basis for
identifying the alternative that comes nearest to maximizing net public
benefits, consistent with the resource integration and management
requirements of Secs. 219.13 through 219.27.
(1) Alternatives shall be distributed between the minimum resource
potential and the maximum resource potential to reflect to the extent
practicable the full range of major commodity and environmental resource
uses and values that could be produced from the forest. Alternatives
shall reflect a range of resource outputs and expenditure levels.
(2) Alternatives shall be formulated to facilitate analysis of
opportunity costs and of resource use and environmental trade-offs among
alternatives
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and between benchmarks and alternatives.
(3) Alternatives shall be formulated to facilitate evaluation of the
effects on present net value, benefits, and costs of achieving various
outputs and values that are not assigned monetary values, but that are
provided at specified levels.
(4) Alternatives shall provide different ways to address and respond
to the major public issues, management concerns, and resource
opportunities identified during the planning process.
(5) Reasonable alternatives which may require a change in existing
law or policy to implement shall be formulated if necessary to address a
major public issue, management concern, or resource opportunity
identified during the planning process (40 CFR 1501.7, 1502.14(c)).
(6) At least one alternative shall be developed which responds to
and incorporates the RPA Program tentative resource objectives for each
forest displayed in the regional guide.
(7) At least one alternative shall reflect the current level of
goods and services provided by the unit and the most likely amount of
goods and services expected to be provided in the future if current
management direction continues. Pursuant to NEPA procedures, this
alternative shall be deemed the ``no action'' alternative.
(8) Each alternative shall represent to the extent practicable the
most cost efficient combination of management prescriptions examined
that can meet the objectives established in the alternative.
(9) Each alternative shall state at least--
(i) The condition and uses that will result from long-term
application of the alternative;
(ii) The goods and services to be produced, the timing and flow of
these resource outputs together with associated costs and benefits;
(iii) Resource management standards and guidelines; and
(iv) The purposes of the management direction proposed.
(g) Estimated effects of alternatives. The physical, biological,
economic, and social effects of implementing each alternative considered
in detail shall be estimated and compared according to NEPA procedures.
These effects include those described in NEPA procedures (40 CFR 1502.14
and 1502.16) and at least the following:
(1) The expected outputs for the planning periods, including
appropriate marketable goods and services, as well as nonmarket items,
such as recreation and wilderness use, wildlife and fish, protection and
enhancement of soil, water, and air, and preservation of aesthetic and
cultural resource values;
(2) The relationship of expected outputs to the RPA Program
tentative resource objectives for the forest displayed in the current
regional guide;
(3) Direct and indirect benefits and costs, analyzed in sufficient
detail to estimate--
(i) the expected real-dollar costs (discounted when appropriate),
including investment, administrative, and operating costs of the agency
and all other public and private costs required to manage the forest up
to the point where the outputs are valued and the environmental
consequences are realized;
(ii) the expected real-dollar value (discounted when appropriate) of
all outputs attributable to each alternative to the extent that monetary
values can be assigned to nonmarket goods and services, using
quantitative and qualitative criteria when monetary values may not
reasonably be assigned;
(iii) the economic effects of alternatives, including impacts on
present net value, total receipts to the Federal Government, direct
benefits to users that are not measured in receipts to the Federal
Government, receipt shares to State and local governments, income, and
employment in affected areas; and
(iv) the monetary opportunity costs (changes in present net value)
associated with those management standards and resource outputs in each
alternative that were not assigned monetary values but were provided at
specified levels, compared with the maximum present net value benchmarks
developed in Sec. 219.12(e)(1)(iii).
(4) The significant resource tradeoffs and opportunity costs
associated with achieving alternative resource objectives.
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(h) Evaluation of alternatives: Using planning criteria, the
interdisciplinary team shall evaluate the significant physical,
biological, economic, and social effects of each management alternative
that is considered in detail. The evaluation shall include a comparative
analysis of the aggregate effects of the management alternatives and
shall compare present net value, social and economic impacts, outputs of
goods and services, and overall protection and enhancement of
environmental resources.
(i) Preferred alternative recommendation. The Forest Supervisor
shall review the interdisciplinary team's evaluation and shall recommend
to the Regional Forester a preferred alternative to be identified in the
draft environmental impact statement and displayed as the proposed plan.
(j) Plan approval. The Regional Forester shall review the proposed
plan and final environmental impact statement and either approve or
disapprove the plan in accordance with Sec. 219.10(c). The record of
decision for approval of a plan shall include, in addition to the
requirements of NEPA procedures (40 CFR 1505.2), a summarized comparison
of the selected alternative with:
(1) Any other alternative considered which is environmentally
preferable to the selected alternative; and
(2) Any other alternative considered which comes nearer to
maximizing present net value.
(k) Monitoring and evaluation. At intervals established in the plan,
implementation shall be evaluated on a sample basis to determine how
well objectives have been met and how closely management standards and
guidelines have been applied. Based upon this evaluation, the
interdisciplinary team shall recommend to the Forest Supervisor such
changes in management direction, revisions, or amendments to the forest
plan as are deemed necessary. Monitoring requirements identified in the
forest plan shall provide for--
(1) A quantitative estimate of performance comparing outputs and
services with those projected by the forest plan;
(2) Documentation of the measured prescriptions and effects,
including significant changes in productivity of the land; and
(3) Documentation of costs associated with carrying out the planned
management prescriptions as compared with costs estimated in the forest
plan.
(4) A description of the following monitoring activities:
(i) The actions, effects, or resources to be measured, and the
frequency of measurements;
(ii) Expected precision and reliability of the monitoring process;
and
(iii) The time when evaluation will be reported.
(5) A determination of compliance with the following standards:
(i) Lands are adequately restocked as specified in the forest plan;
(ii) Lands identified as not suited for timber production are
examined at least every 10 years to determine if they have become
suited; and that, if determined suited, such lands are returned to
timber production;
(iii) Maximum size limits for harvest areas are evaluated to
determine whether such size limits should be continued; and
(iv) Destructive insects and disease organisms do not increase to
potentially damaging levels following management activities.
Sec. 219.13 Forest planning--resource integration requirements.
The minimum requirements for integrating individual forest resource
planning into the forest plan are established in Secs. 219.14 through
219.26 of this subpart. For the purposes of meeting the requirements of
Sec. 219.12(c), additional planning criteria may be found in the
guidelines for managing specific resources set forth in the Forest
Service Manual and Handbooks.
Sec. 219.14 Timber resource land suitability.
During the forest planning process, lands which are not suited for
timber production shall be identified in accordance with the criteria in
paragraphs (a) through (d) of this section.
(a) During the analysis of the management situation, data on all
National Forest System lands within the planning area shall be reviewed,
and
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those lands within any one of the categories described in paragraphs (a)
(1) through (4) of this section shall be identified as not suited for
timber production--
(1) The land is not forest land as defined in Sec. 219.3.
(2) Technology is not available to ensure timber production from the
land without irreversible resource damage to soils productivity, or
watershed conditions.
(3) There is not reasonable assurance that such lands can be
adequately restocked as provided in Sec. 219.27(c)(3).
(4) The land has been withdrawn from timber production by an Act of
Congress, the Secretary of Agriculture or the Chief of the Forest
Service.
(b) Forest lands other than those that have been identified as not
suited for timber production in paragraph (a) of this section shall be
further reviewed and assessed prior to formulation of alternatives to
determine the costs and benefits for a range of management intensities
for timber production. For the purpose of analysis, the planning area
shall be stratified into categories of land with similar management
costs and returns. The stratification should consider appropriate
factors that influence the costs and returns such as physical and
biological conditions of the site and transportation requirements. This
analysis shall identify the management intensity for timber production
for each category of land which results in the largest excess of
discounted benefits less discounted costs and shall compare the direct
costs of growing and harvesting trees, including capital expenditures
required for timber production, to the anticipated receipts to the
government, in accordance with Sec. 219.12 and paragraphs (b)(1) through
(b)(3) of this section.
(1) Direct benefits are expressed as expected gross receipts to the
government. Such receipts shall be based upon expected stumpage prices
and payments-in-kind from timber harvest considering future supply and
demand situation for timber and upon timber production goals of the
regional guide.
(2) Direct costs include the anticipated investments, maintenance,
operating, management, and planning costs attributable to timber
production activities, including mitigation measures necessitated by the
impacts of timber production.
(3) In addition to long-term yield, the financial analysis must
consider costs and returns of managing the existing timber inventory.
(c) During formulation and evaluation of each alternative as
required in Sec. 219.12 (f) and (g), combinations of resource management
prescriptions shall be defined to meet management objectives for the
various multiple uses including outdoor recreation, timber, watershed,
range, wildlife and fish, and wilderness. The formulation and evaluation
of each alternative shall consider the costs and benefits of alternative
management intensities for timber production as identified pursuant to
paragraph (b) of this section in accordance with Sec. 219.12(f). Lands
shall be tentatively identified as not appropriate for timber production
to meet objectives of the alternative being considered if--
(1) Based upon a consideration of multiple-use objectives for the
alternative, the land is proposed for resource uses that preclude timber
production, such as wilderness;
(2) Other management objectives for the alternative limit timber
production activities to the point where management requirements set
forth in Sec. 219.27 cannot be met; or
(3) The lands are not cost-efficient, over the planning horizon, in
meeting forest objectives, which include timber production.
(d) Lands identified as not suited for timber production in
paragraph (a) of this section and lands tentatively identified as not
appropriate for timber production in paragraph (c) of this section shall
be designated as not suited for timber production in the preferred
alternative. Designation in the plan of lands not suited for timber
production shall be reviewed at least every 10 years. Such lands may be
reviewed and redesignated as suited for timber production due to changed
conditions at any time, according to the criteria in paragraphs (a) and
(c) of this section, and according to the procedures for amendment or
revision of the forest plan in Sec. 219.10 (f) and (g).
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Sec. 219.15 Vegetation management practices.
When vegetation is altered by management, the methods, timing, and
intensity of the practices determine the level of benefits that can be
obtained from the affected resources. The vegetation management
practices chosen for each vegetation type and circumstance shall be
defined in the forest plan with applicable standards and guidelines and
the reasons for the choices. Where more than one vegetation management
practice will be used in a vegetation type, the conditions under which
each will be used shall be based upon thorough reviews of technical and
scientific literature and practical experience, with appropriate
evaluation of this knowledge for relevance to the specific vegetation
and site conditions. On National Forest System land, the vegetation
management practice chosen shall comply with the management requirements
in Sec. 219.27(b).
Sec. 219.16 Timber resource sale schedule.
In a forest plan, the selected forest management alternative
includes a sale schedule which provides the allowable sale quantity. The
sale schedule of each alternative, including those which depart from
base sale schedules, shall be formulated in compliance with
Sec. 219.12(f) and paragraphs (a) and (b) of this section.
(a) Alternatives shall be formulated that include determinations of
the quantity of the timber that may be sold during each decade. These
quantity determinations shall be based on the principle of sustained
yield and shall meet the management requirements in Sec. 219.27. For
each alternative, the determination shall include a calculation of the
long-term sustained-yield capacity and the base sale schedule and, when
appropriate, a calculation of timber sale alternatives that may depart
from the base sale schedule as provided in paragraphs (a)(1) through
(a)(3) of this section.
(1) For the base sale schedules, the planned sale for any future
decade shall be equal to, or greater than, the planned sale for the
preceding decade, provided that the planned sale is not greater than the
long-term sustained-yield capacity consistent with the management
objectives of the alternative.
(2) The determinations of the appropriate long-term sustained-yield
capacities, base sale schedules, and departure alternatives to the base
sale schedules shall be made on the basis of the guidelines which
follow:
(i) For the long-term sustained-yield capacities and the base sale
schedules, assume intensities of management and degree of timber
utilization consistent with the goals, assumptions, and requirements
contained in, or used in, the preparation of the current RPA Program and
regional guide. For the base sale schedule, the management and
utilization assumptions shall reflect the projected changes in practices
for the four decades contained in, or used in, the preparation of the
current RPA Program and regional guide. Beyond the fourth decade, the
assumptions shall reflect those projected for the fourth decade of the
current RPA Program, unless there is a basis for a different assumption;
(ii) For alternatives with sale schedules which depart from the
corresponding base sale schedule, assume an appropriate management
intensity;
(iii) In accordance with the established standards, assure that all
even-aged stands scheduled to be harvested during the planning period
will generally have reached the culmination of mean annual increment of
growth. Mean annual increment shall be based on expected growth,
according to management intensities and utilization standards assumed in
paragraphs (a)(2) (i) and (ii) of this section and on forest type and
site quality. Mean annual increment shall be expressed in cubic measure.
Alternatives which incorporate exceptions to these standards shall be
evaluated if it is reasonable to expect that overall multiple use
objectives would be better attained. Alternatives which incorporate
exceptions to these standards are permitted for the use of sound
silvicultural practices, such as thinning or other stand improvement
measures; for salvage or sanitation harvesting of timber stands which
are substantially damaged by fire, windthrow, or other catastrophe, or
which are in imminent danger from
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insect or disease attack; for cutting for experimental and research
purposes; or for removing particular species of trees, after
consideration has been given to the multiple uses of the area being
planned and after completion of the public participation process
applicable to the preparation of a forest plan; and
(iv) Each sale schedule shall provide for a forest structure that
will enable perpetual timber harvest which meets the principle of
sustained-yield and multiple-use objectives of the alternative.
(3) Alternatives with sale schedules which depart from the
principles of paragraph (a)(1) of this section and which will lead to
better attaining the overall objectives of multiple-use management shall
be evaluated when any of the following conditions are indicated:
(i) None of the other alternatives considered provides a sale
schedule that achieves the assigned goals of the RPA Program as provided
in Sec. 219.4(b);
(ii) High mortality losses from any cause can be significantly
reduced or prevented or forest age-class distribution can be improved,
thereby facilitating future sustained-yield management; or
(iii) Implementation of the corresponding base sale schedule would
cause a substantial adverse impact upon a community in the economic area
in which the forest is located.
(iv) It is reasonable to expect that overall multiple-use objectives
would otherwise be better attained.
(b) The sale schedule of the management alternative selected in
accordance with Sec. 219.12 provides the allowable sale quantity for the
first plan period.
Sec. 219.17 Evaluation of roadless areas.
(a) Unless otherwise provided by law, roadless areas within the
National Forest System shall be evaluated and considered for
recommendation as potential wilderness areas during the forest planning
process, as provided in paragraphs (a) (1) and (2) of this section.
(1) During analysis of the management situation, the following areas
shall be subject to evaluation:
(i) Roadless areas including those previously inventoried in the
second roadless area review and evaluation (RARE II), in a unit plan, or
in a forest plan, which remain essentially roadless and undeveloped, and
which have not yet been designated as wilderness or for nowilderness
uses by law. In addition, other essentially roadless areas may be
subject to evaluation at the discretion of the Forest Supervisor.
(ii) Areas contiguous to existing wilderness, primitive areas, or
administratively proposed wildernesses, regardless of which agency has
jurisdiction for the wilderness or proposed wilderness;
(iii) Areas that are contiguous to roadless and undeveloped areas in
other Federal ownership that have identified wilderness potential; and
(iv) Areas designated by Congress for wilderness study,
administrative proposals pending before Congress, and other legislative
proposals pending which have been endorsed by the President.
(2) For each area subject to evaluation under paragraph (a)(1) of
this section, the determination of the significant resource issues,
which in turn affect the detail and scope of evaluation required by the
Forest Service, shall be developed with public participation. As a
minimum, the evaluation shall include consideration of:
(i) The values of the area as wilderness;
(ii) The values foregone and effects on management of adjacent lands
as a consequence of wilderness designation;
(iii) Feasibility of management as wilderness, in respect to size,
nonconforming use, land ownership patterns, and existing contractual
agreements or statutory rights;
(iv) Proximity to other designated wilderness and relative
contribution to the National Wilderness Preservation System; and
(v) The anticipated long-term changes in plant and animal species
diversity, including the diversity of natural plant and animal
communities of the forest planning area and the effects of such changes
on the values for which wilderness areas were created.
[47 FR 43037, Sept. 30, 1982, as amended at 48 FR 40383, Sept. 7, 1983]
[[Page 70]]
Sec. 219.18 Wilderness management.
Forest planning shall provide direction for the management of
designated wilderness and primitive areas in accordance with the
provisions of 36 CFR part 293. In particular, plans shall--
(a) Provide for limiting and distributing visitor use of specific
areas in accord with periodic estimates of the maximum levels of use
that allow natural processes to operate freely and that do not impair
the values for which wilderness areas were created; and
(b) Evaluate the extent to which wildfire, insect, and disease
control measures may be desirable for protection of either the
wilderness or adjacent areas and provide for such measures when
appropriate.
Sec. 219.19 Fish and wildlife resource.
Fish and wildlife habitat shall be managed to maintain viable
populations of existing native and desired non-native vertebrate species
in the planning area. For planning purposes, a viable population shall
be regarded as one which has the estimated numbers and distribution of
reproductive individuals to insure its continued existence is well
distributed in the planning area. In order to insure that viable
populations will be maintained, habitat must be provided to support, at
least, a minimum number of reproductive individuals and that habitat
must be well distributed so that those individuals can interact with
others in the planning area.
(a) Each alternative shall establish objectives for the maintenance
and improvement of habitat for management indicator species selected
under paragraph (g)(1) of this section, to the degree consistent with
overall multiple use objectives of the alternative. To meet this goal,
management planning for the fish and wildlife resource shall meet the
requirements set forth in paragraphs (a)(1) through (a)(7) of this
section.
(1) In order to estimate the effects of each alternative on fish and
wildlife populations, certain vertebrate and/or invertebrate species
present in the area shall be identified and selected as management
indicator species and the reasons for their selection will be stated.
These species shall be selected because their population changes are
believed to indicate the effects of management activities. In the
selection of management indicator species, the following categories
shall be represented where appropriate: Endangered and threatened plant
and animal species identified on State and Federal lists for the
planning area; species with special habitat needs that may be influenced
significantly by planned management programs; species commonly hunted,
fished, or trapped; non-game species of special interest; and additional
plant or animal species selected because their population changes are
believed to indicate the effects of management activities on other
species of selected major biological communities or on water quality. On
the basis of available scientific information, the interdisciplinary
team shall estimate the effects of changes in vegetation type, timber
age classes, community composition, rotation age, and year-long
suitability of habitat related to mobility of management indicator
species. Where appropriate, measures to mitigate adverse effects shall
be prescribed.
(2) Planning alternatives shall be stated and evaluated in terms of
both amount and quality of habitat and of animal population trends of
the management indicator species.
(3) Biologists from State fish and wildlife agencies and other
Federal agencies shall be consulted in order to coordinate planning for
fish and wildlife, including opportunities for the reintroduction of
extirpated species.
(4) Access and dispersal problems of hunting, fishing, and other
visitor uses shall be considered.
(5) The effects of pest and fire management on fish and wildlife
populations shall be considered.
(6) Population trends of the management indicator species will be
monitored and relationships to habitat changes determined. This
monitoring will be done in cooperation with State fish and wildlife
agencies, to the extent practicable.
(7) Habitat determined to be critical for threatened and endangered
species shall be identified, and measures shall be prescribed to prevent
the destruction or adverse modification of such habitat. Objectives
shall be determined
[[Page 71]]
for threatened and endangered species that shall provide for, where
possible, their removal from listing as threatened and endangered
species through appropriate conservation measures, including the
designation of special areas to meet the protection and management needs
of such species.
Sec. 219.20 Grazing resource.
In forest planning, the suitability and potential capability of
National Forest System lands for producing forage for grazing animals
and for providing habitat for management indicator species shall be
determined as provided in paragraphs (a) and (b) of this section. Lands
so identified shall be managed in accordance with direction established
in forest plans.
(a) Lands suitable for grazing and browsing shall be identified and
their condition and trend shall be determined. The present and potential
supply of forage for livestock, wild and free-roaming horses and burros,
and the capability of these lands to produce suitable food and cover for
selected wildlife species shall be estimated. The use of forage by
grazing and browsing animals will be estimated. Lands in less than
satisfactory condition shall be identified and appropriate action
planned for their restoration.
(b) Alternative range management prescriptions shall consider
grazing systems and the facilities necessary to implement them; land
treatment and vegetation manipulation practices; and evaluation of pest
problems; possible conflict or beneficial interactions among livestock,
wild free-roaming horses and burros and wild animal populations, and
methods of regulating these; direction for rehabilitation of ranges in
unsatisfactory condition; and comparative cost efficiency of the
prescriptions.
Sec. 219.21 Recreation resource.
To the degree consistent with needs and demands for all major
resources, a broad spectrum of forest and rangeland related outdoor
recreation opportunities shall be provided for in each alternative.
Planning activities to achieve this shall be in accordance with national
and regional direction and procedural requirements of paragraphs (a)
through (g) of this section.
(a) Forest planning shall identify--
(1) The physical and biological characteristics that make land
suitable for recreation opportunities;
(2) The recreational preferences of user groups and the settings
needed to provide quality recreation opportunities; and
(3) Recreation opportunities on the National Forest System lands.
(b) The supply of developed recreational facilities in the area of
National Forest influence shall be appraised for adequacy to meet
present and future demands.
(c) Planning alternatives shall include consideration of
establishment of physical facilities, regulation of use, and recreation
opportunities responsive to current and anticipated user demands.
(d) In formulation and analysis of alternatives as specified in
Sec. 219.12 (f) and (g), interactions among recreation opportunities and
other multiple uses shall be examined. This examination shall consider
the impacts of the proposed recreation activities on other uses and
values and the impacts of other uses and activities associated with them
on recreation opportunities, activities, and quality of experience.
(e) Formulation and evaluation of alternatives under paragraphs (c)
and (d) of this section shall be coordinated to the extent feasible with
present and proposed recreation activities of local and State land use
or outdoor recreation plans, particularly the State Comprehensive
Outdoor Recreation Plan, and recreation opportunities already present
and available on other public and private lands, with the aim of
reducing duplication in meeting recreation demands.
(f) The visual resource shall be inventoried and evaluated as an
integrated part of evaluating alternatives in the forest planning
process, addressing both the landscape's visual attractiveness and the
public's visual expectation. Management prescriptions for definitive
land areas of the forest shall include visual quality objectives.
(g) Off-road vehicle use shall be planned and implemented to protect
[[Page 72]]
land and other resources, promote public safety, and minimize conflicts
with other uses of the National Forest System lands. Forest planning
shall evaluate the potential effects of vehicle use off roads and, on
the basis of the requirements of 36 CFR part 295 of this chapter,
classify areas and trails of National Forest System lands as to whether
or not off-road vehicle use may be permitted.
Sec. 219.22 Mineral resource.
Mineral exploration and development in the planning area shall be
considered in the management of renewable resources. The following shall
be recognized to the extent practicable in forest planning:
(a) Active mines within the area of land covered by the forest plan;
(b) Outstanding or reserved mineral rights;
(c) The probable occurrence of various minerals, including
locatable, leasable, and common variety;
(d) The potential for future mineral development and potential need
for withdrawal of areas from development;
(e) Access requirements for mineral exploration and development; and
(f) The probable effect of renewable resource prescriptions and
management direction on mineral resources and activities, including
exploration and development.
Sec. 219.23 Water and soil resource.
Forest planning shall provide for--
(a) General estimates of current water uses, both consumptive and
non-consumptive, including instream flow requirements within the area of
land covered by the forest plan;
(b) Identification of significant existing impoundments,
transmission facilities, wells, and other man-made developments on the
area of land covered by the forest plan;
(c) Estimation of the probable occurrence of various levels of water
volumes, including extreme events which would have a major impact on the
planning area;
(d) Compliance with requirements of the Clean Water Act, the Safe
Drinking Water Act, and all substantive and procedural requirements of
Federal, State, and local governmental bodies with respect to the
provision of public water systems and the disposal of waste water;
(e) Evaluation of existing or potential watershed conditions that
will influence soil productivity, water yield, water pollution, or
hazardous events; and
(f) Adoption of measures, as directed in applicable Executive
orders, to minimize risk of flood loss, to restore and preserve
floodplain values, and to protect wetlands.
Sec. 219.24 Cultural and historic resources.
Forest planning shall provide for the identification, protection,
interpretation, and management of significant cultural resources on
National Forest System lands. Planning of the resource shall be governed
by the requirements of Federal laws pertaining to historic preservation,
and guided by paragraphs (a)(1) through (a)(3) of this section.
(a) Forest planning shall--
(1) Provide an overview of known data relevant to history,
ethnography, and prehistory of the area under consideration, including
known cultural resource sites;
(2) Identify areas requiring more intensive inventory;
(3) Provide for evaluation and identification of appropriate sites
for the National Register of Historic Places;
(4) Provide for establishing measures for the protection of
significant cultural resources from vandalism and other human
depredation, and natural destruction;
(5) Identify the need for maintenance of historic sites on, or
eligible for inclusion in, the National Register of Historic Places; and
(6) Identify opportunities for interpretation of cultural resources
for the education and enjoyment of the American public.
(b) In the formulation and analysis of alternatives, interactions
among cultural resources and other multiple uses shall be examined. This
examination shall consider impacts of the management of cultural
resources on other uses and activities and impacts of other uses and
activities on cultural resource management.
[[Page 73]]
(c) Formulation and evaluation of alternatives shall be coordinated
to the extent feasible with the State cultural resource plan and
planning activities of the State Historic Preservation Office and State
Archaeologist and with other State and Federal agencies.
Sec. 219.25 Research natural areas.
Forest planning shall provide for the establishment of Research
Natural Areas (RNA's). Planning shall make provision for the
identification of examples of important forest, shrubland, grassland,
alpine, aquatic, and geologic types that have special or unique
characteristics of scientific interest and importance and that are
needed to complete the national network of RNA's. Biotic, aquatic, and
geologic types needed for the network shall be identified using a list
provided by the Chief of the Forest Service. Authority to establish
RNA's is delegated to the Chief at 7 CFR 2.60(a) and 36 CFR 251.23.
Recommendations for establishment of areas shall be made to the Chief
through the planning process.
Sec. 219.26 Diversity.
Forest planning shall provide for diversity of plant and animal
communities and tree species consistent with the overall multiple-use
objectives of the planning area. Such diversity shall be considered
throughout the planning process. Inventories shall include quantitative
data making possible the evaluation of diversity in terms of its prior
and present condition. For each planning alternative, the
interdisciplinary team shall consider how diversity will be affected by
various mixes of resource outputs and uses, including proposed
management practices. (Refer to Sec. 219.27(g).)
Sec. 219.27 Management requirements.
The minimum specific management requirements to be met in
accomplishing goals and objectives for the National Forest System are
set forth in this section. These requirements guide the development,
analysis, approval, implementation, monitoring and evaluation of forest
plans.
(a) Resource protection. All management prescriptions shall--
(1) Conserve soil and water resources and not allow significant or
permanent impairment of the productivity of the land;
(2) Consistent with the relative resource values involved, minimize
serious or long-lasting hazards from flood, wind, wildfire, erosion, or
other natural physical forces unless these are specifically excepted, as
in wilderness;
(3) Consistent with the relative resource values involved, prevent
or reduce serious, long lasting hazards and damage from pest organisms,
utilizing principles of integrated pest management. Under this approach
all aspects of a pest-host system should be weighed to determine
situation-specific prescriptions which may utilize a combination of
techniques including, as appropriate, natural controls, harvesting, use
of resistant species, maintenance of diversity, removal of damaged
trees, and judicious use of pesticides. The basic principle in the
choice of strategy is that, in the long term, it be ecologically
acceptable and compatible with the forest ecosystem and the multiple use
objectives of the plan;
(4) Protect streams, streambanks, shorelines, lakes, wetlands, and
other bodies of water as provided under paragraphs (d) and (e) of this
section;
(5) Provide for and maintain diversity of plant and animal
communities to meet overall multiple-use objectives, as provided in
paragraph (g) of this section;
(6) Provide for adequate fish and wildlife habitat to maintain
viable populations of existing native vertebrate species and provide
that habitat for species chosen under Sec. 219.19 is maintained and
improved to the degree consistent with multiple-use objectives
established in the plan;
(7) Be assessed prior to project implementation for potential
physical, biological, aesthetic, cultural, engineering, and economic
impacts and for consistency with multiple uses planned for the general
area;
(8) Include measures for preventing the destruction or adverse
modification of critical habitat for threatened and endangered species;
(9) Provide that existing significant transportation and utility
corridors and other significant right-of-ways
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that are capable and likely to be needed to accommodate the facility or
use from an additional compatible right-of-way be designated as a right-
of-way corridor. Subsequent right-of-way grants will, to the extent
practicable, and as determined by the responsible line officer, use
designated corridors;
(10) Ensure that any roads constructed through contracts, permits,
or leases are designed according to standards appropriate to the planned
uses, considering safety, cost of transportation, and effects upon lands
and resources;
(11) Provide that all roads are planned and designed to re-establish
vegetative cover on the disturbed area within a reasonable period of
time, not to exceed 10 years after the termination of a contract, lease
or permit, unless the road is determined necessary as a permanent
addition to the National Forest Transportation System; and
(12) Be consistent with maintaining air quality at a level that is
adequate for the protection and use of National Forest System resources
and that meets or exceeds applicable Federal, State and/or local
standards or regulations.
(b) Vegetative manipulation. Management prescriptions that involve
vegetative manipulation of tree cover for any purpose shall--
(1) Be best suited to the multiple-use goals established for the
area with potential environmental, biological, cultural resource,
aesthetic, engineering, and economic impacts, as stated in the regional
guides and forest plans, being considered in this determination;
(2) Assure that lands can be adequately restocked as provided in
paragraph (c)(3) of this section, except where permanent openings are
created for wildlife habitat improvement, vistas, recreation uses and
similar practices;
(3) Not be chosen primarily because they will give the greatest
dollar return or the greatest output of timber, although these factors
shall be considered;
(4) Be chosen after considering potential effects on residual trees
and adjacent stands;
(5) Avoid permanent impairment of site productivity and ensure
conservation of soil and water resources;
(6) Provide the desired effects on water quantity and quality,
wildlife and fish habitat, regeneration of desired tree species, forage
production, recreation uses, aesthetic values, and other resource
yields; and
(7) Be practical in terms of transportation and harvesting
requirements, and total costs of preparation, logging, and
administration.
(c) Silvicultural practices. The following management requirements
apply to timber harvest and cultural treatments:
(1) No timber harvesting shall occur on lands classified as not
suited for timber production pursuant to Sec. 219.14 except for salvage
sales, sales necessary to protect other multiple-use values or
activities that meet other objectives on such lands if the forest plan
establishes that such actions are appropriate. These lands shall
continue to be treated for reforestation purposes if necessary to
achieve the multiple-use objectives of the plan.
(2) The selected sale schedule provides the allowable sale quantity
for the first planning period. Within the planning period, the volume of
timber to be sold in any one year may exceed the average annual
allowable sale quantity so long as the total amount sold for the
planning period does not exceed the allowable sale quantity. Nothing in
this paragraph prohibits salvage or sanitation harvesting of timber
stands which are substantially damaged by fire, windthrow, or other
catastrophe, or which are in imminent danger of insect or disease attack
and where such harvests are consistent with silvicultural and
environmental standards. Such timber may either substitute for timber
that would otherwise be sold under the plan or, if not feasible, be sold
over and above the planned volume.
(3) When trees are cut to achieve timber production objectives, the
cuttings shall be made in such a way as to assure that the technology
and knowledge exists to adequately restock the lands within 5 years
after final harvest. Research and experience shall be the
[[Page 75]]
basis for determining whether the harvest and regeneration practices
planned can be expected to result in adequate restocking. Adequate
restocking means that the cut area will contain the minimum number,
size, distribution, and species composition of regeneration as specified
in regional silvicultural guides for each forest type. Five years after
final harvest means 5 years after clearcutting, 5 years after final
overstory removal in shelterwood cutting, 5 years after the seed tree
removal cut in seed tree cutting, or 5 years after selection cutting.
(4) Cultural treatments such as thinning, weeding, and other partial
cutting may be included in the forest plan where they are intended to
increase the rate of growth of remaining trees, favor commercially
valuable tree species, favor species or age classes which are most
valuable for wildlife, or achieve other multiple-use objectives.
(5) Harvest levels based on intensified management practices shall
be decreased no later than the end of each planning period if such
practices cannot be completed substantially as planned.
(6) Timber harvest cuts designed to regenerate an even-aged stand of
timber shall be carried out in a manner consistent with the protection
of soil, watershed, fish and wildlife, recreation, and aesthetic
resources, and the regeneration of the timber resource.
(7) Timber harvest and other silvicultural treatments shall be used
to prevent potentially damaging population increases of forest pest
organisms. Silvicultural treatments shall not be applied where such
treatments would make stands susceptible to pest-caused damage levels
inconsistent with management objectives.
(d) Even-aged management. When openings are created in the forest by
the application of even-aged silviculture, the following management
requirements apply:
(1) Openings shall be located to achieve the desired combination of
multiple-use objectives. The blocks or strips cut shall be shaped and
blended with the natural terrain, to the extent practicable, to achieve
aesthetic, wildlife habitat, or other objectives established in the
plan. Regional guides shall provide guidance on dispersion of openings
in relation to topography, climate, geography, local land use patterns,
forest types or other factors. As a minimum, openings in forest stands
are no longer considered openings once a new forest is established.
Forest plans may set forth variations to this minimum based on site-
specific requirements for achieving multiple-use objectives. Regional
guides shall provide guidance for determining variations to this minimum
in the forest plan, based on requirements for watershed, wildlife
habitat, scenery or other resource protection needs, or other factors.
(2) Individual cut blocks, patches, or strips shall conform to the
maximum size limits for areas to be cut in one harvest operation
established by the regional guide according to geographic areas and
forest types. This limit may be less than, but will not exceed, 60 acres
for the Douglas-fir forest type of California, Oregon, and Washington;
80 acres for the southern yellow pine types of Alabama, Arkansas,
Georgia, Florida, Louisiana, Mississippi, North Carolina, South
Carolina, Oklahoma, and Texas; 100 acres for the hemlock-sitka spruce
forest type of coastal Alaska; and 40 acres for all other forest types
except as provided in paragraphs (d)(2)(i) through (iii) of this
section:
(i) Cut openings larger than those specified may be permitted where
larger units will produce a more desirable combination of net public
benefits. Such exceptions shall be provided for in regional guides. The
following factors shall be considered in evaluating harvest cuts of
various sizes and shapes to determine size limits by geographic areas
and forest types: Topography; relationship of units to other natural or
artificial openings and proximity of units; coordination and consistency
with adjacent forests and regions; effect on water quality and quantity;
visual absorption capability; effect on wildlife and fish habitat;
regeneration requirements for desirable tree species based upon the
latest research findings; transportation and harvesting system
requirements; environmental and forest pest hazards to regeneration,
residual trees, and surrounding stands; and the relative total costs of
preparation
[[Page 76]]
and administration, transportation requirements, harvesting, site
preparation, planting, stocking control, and future stand tending of
harvest cuts of various sizes and shapes. Specification for exceptions
shall include the particular conditions under which the larger size is
permitted and shall set a new maximum size permitted under those
conditions.
(ii) Size limits exceeding those established in paragraphs (d)(2)
and (d)(2)(i) of this section are permitted on an individual timber sale
basis after 60 days' public notice and review by the Regional Forester.
(iii) The established limit shall not apply to the size of areas
harvested as a result of natural catastrophic condition such as fire,
insect and disease attack, or windstorm.
(e) Riparian areas. Special attention shall be given to land and
vegetation for approximately 100 feet from the edges of all perennial
streams, lakes, and other bodies of water. This area shall correspond to
at least the recognizable area dominated by the riparian vegetation. No
management practices causing detrimental changes in water temperature or
chemical composition, blockages of water courses, or deposits of
sediment shall be permitted within these areas which seriously and
adversely affect water conditions or fish habitat. Topography,
vegetation type, soil, climatic conditions, management objectives, and
other factors shall be considered in determining what management
practices may be performed within these areas or the constraints to be
placed upon their performance.
(f) Soil and water. Conservation of soil and water resources
involves the analysis, protection, enhancement, treatment, and
evaluation of soil and water resources and their responses under
management and shall be guided by instructions in official technical
handbooks. These handbooks must show specific ways to avoid or mitigate
damage, and maintain or enhance productivity on specific sites. These
handbooks may be regional in scope or, where feasible, specific to
physiographic or climatic provinces.
(g) Diversity. Management prescriptions, where appropriate and to
the extent practicable, shall preserve and enhance the diversity of
plant and animal communities, including endemic and desirable
naturalized plant and animal species, so that it is at least as great as
that which would be expected in a natural forest and the diversity of
tree species similar to that existing in the planning area. Reductions
in diversity of plant and animal communities and tree species from that
which would be expected in a natural forest, or from that similar to the
existing diversity in the planning area, may be prescribed only where
needed to meet overall multiple-use objectives. Planned type conversion
shall be justified by an analysis showing biological, economic, social,
and environmental design consequences, and the relation of such
conversions to the process of natural change.
Sec. 219.28 Research.
(a) Research needs for management of the National Forest System
shall be identified during planning and periodically reviewed during
evaluation of implemented plans. Particular attention should be given to
research needs identified during the monitoring and evaluation described
in Sec. 219.12(k). These identified needs shall be included in
formulating overall research programs and plans which involve private as
well as public forest and rangelands.
(b) Research needed to support or improve management of the National
Forest System shall be established and budgeted at the research station
and national levels. Priorities for this portion of the Forest Service
Research Program shall be based upon the information gathered at all
planning levels of the National Forest System.
(c) An annual report shall be prepared at the national level with
assistance from Regions and Stations which shall include, but not be
limited to, a description of the status of major research programs which
address National Forest System needs for Research, significant findings,
and how this information is to be or has recently been applied.
Sec. 219.29 Transition period.
(a) Until a forest planning area of the National Forest System is
managed
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under a forest plan developed pursuant to this subpart and approved by
the Regional Forester, the land may continue to be managed under
existing land use and resource plans. As soon as practicable, existing
plans shall be amended or revised to incorporate standards and
guidelines in this subpart. Pending approval of a forest plan, existing
plans may be amended or revised to include management requirements not
inconsistent with the provisions of the RPA and these regulations.
(b) Requirements of amendments to this subpart shall be incorporated
in forest plans and regional guides through the ongoing planning
process. Planning process steps already completed need not be repeated.
(1) If, prior to the effective date of an amendment to this subpart,
a forest plan either has been approved in final form or released in
draft form for public review, the plan need not be modified to
incorporate requirements of such amendment, until the next scheduled
revision of the forest plan;
(2) If, prior to the effective date of an amendment to this subpart,
a regional guide either has been approved in final form or released in
draft form for public review, the guide need not be modified to
incorporate the requirements of such amendment, until a significant
amendment to the guide is made for reasons other than incorporating
requirements of amendments to this subpart.
(c) A forest plan may become effective prior to the development and
approval of its related regional guide, provided that the forest plan is
reviewed upon regional guide approval, and if necessary, amended to
comply with regional management direction. If such an amendment is
significant, it shall be accomplished pursuant to the requirements for
the development of a forest plan as set forth in this subpart.
(d) As a result of the eruption of Mount St. Helens, a land
management plan for the Mount St. Helens area shall be prepared
substantially in accordance with the following procedures:
(1) Notwithstanding any other provisions in this subpart, the area
included in the Mount St. Helens land management plan will not be
subject to planning activities for the first generation Gifford Pinchot
National Forest Plan unless the Regional Forester for the Pacific
Northwest Region determines that additional planning activities are
desirable.
(2) Lands which were inventoried as roadless and designated for
nonwilderness uses in the Roadless Area Review and Evaluation (RARE II)
shall be managed for uses other than wilderness. Except for a small part
of the Mount Margaret roadless area (B 6071), the Mount St. Helens land
management plan shall not consider wilderness designation for these
lands.
(3) Lands which were inventoried as roadless and designated as
further planning in the Roadless Area Review and Evaluation (RARE II)
shall be evaluated in the Mount St. Helens land management plan and
shall be managed in accordance with that plan.
Subpart B--[Reserved]
PART 221--TIMBER MANAGEMENT PLANNING--Table of Contents
Authority: 30 Stat. 34, 44 Stat. 242; 16 U.S.C. 475, 616.
Sec. 221.3 Disposal of national forest timber according to management plans.
(a) Management plans for national forest timber resources shall be
prepared and revised, as needed, for working circles or other
practicable units of national forest. Such plans shall:
(1) Be designed to aid in providing a continuous supply of national
forest timber for the use and necessities of the citizens of the United
States.
(2) Be based on the principle of sustained yield, with due
consideration to the condition of the area and the timber stands covered
by the plan.
(3) Provide, so far as feasible, an even flow of national forest
timber in order to facilitate the stabilization of communities and of
opportunities for employment.
(4) Provide for coordination of timber production and harvesting
with other uses of national forest land in accordance with the
principles of multiple use management.
[[Page 78]]
(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.
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
[[Page 79]]
(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.
(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.
[[Page 80]]
(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 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
[[Page 81]]
this paragraph may be in the form of private land or on-and-off grazing
permits where the person is qualified to hold such permits under
provisions the Chief may require. Permits issued under this paragraph
are subject to the following:
(i) Except as provided for by the Chief, Forest Service, paid term
permits will be issued to persons who own livestock to be grazed and
such base property as may be required, provided the land is determined
to be available for grazing purposes by the Chief, Forest Service, and
the capacity exists to graze specified numbers of animals.
(ii) A term permit holder has first priority for receipt of a new
permit at the end of the term period provided he has fully complied with
the terms and conditions of the expiring permit.
(iii) In order to update terms and conditions, term permits may be
cancelled at the end of the calendar year of the midyear of the decade
(1985, 1995, etc.), provided they are reissued to the existing permit
holder for a new term of 10 years.
(iv) New term permits may be issued to the purchaser of a
permittee's permitted livestock and/or base property, provided the
permittee waives his term permit to the United States and provided the
purchaser is otherwise eligible and qualified.
(v) If the permittee chooses to dispose of all or part of his base
property or permitted livestock (not under approved nonuse) but does not
choose to waive his term permit, the Forest Supervisor will give written
notice that he no longer is qualified to hold a permit, provided he is
given up to one year to reestablish his qualifications before
cancellation action is final.
(vi) The Chief, Forest Service, shall prescribe provisions and
requirements under which term permits will be issued, renewed, and
administered, including:
(A) The amount and character of base property and livestock the
permit holder shall be required to own.
(B) Specifying the period of the year the base property shall be
capable of supporting permitted livestock.
(C) Acquisition of base property and/or permitted livestock.
(D) Conditions for the approval of nonuse of permit for specified
periods.
(E) Upper and special limits governing the total number of livestock
for which a person is entitled to hold a permit.
(F) Conditions whereby waiver of grazing privileges may be confirmed
and new applicants recognized.
(2) Permits with no priority for reissuance, subject to terms and
conditions as the Chief, Forest Service, may prescribe, are authorized
as follows:
(i) Temporary grazing permits for periods not to exceed one year,
and on a charge basis, may be issued:
(A) To allow for use of range while a term grazing permit is held in
suspension.
(B) To use forage created by unusually favorable climatic
conditions.
(C) To use the forage available when the permit of the normal user's
livestock is in nonuse status for reasons of personal convenience.
(D) To allow a person to continue to graze livestock for the
remainder of the grazing season where base property has been sold, the
permit waived, and a new term permit issued.
(E) To allow grazing use in the event of drought or other emergency
of National or Regional scope where such use would not result in
permanent resource damage.
(ii) Livestock use permits for not to exceed one year may be issued
under terms and conditions prescribed by the Chief, Forest Service, as
follows:
(A) Paid permits for transportation livestock to persons engaged in
commercial packing, dude ranching, or other commercial enterprises which
involve transportation livestock including mining, ranching, and
logging, activities.
(B) Paid or free permits for research purposes and administrative
studies.
(C) Paid or free permits to trail livestock across National Forest
System lands.
(D) Free permits to persons who reside on ranch or agricultural
lands within or contiguous to National Forest System lands for not to
exceed 10 head of livestock owned or kept and whose products are
consumed or whose services are used directly by the family of the
resident, and who distinctly need
[[Page 82]]
such National Forest System lands to support such animals.
(E) Free permits to campers and travelers for the livestock actually
used during the period of occupancy. This may be authorized without
written permit.
(F) Paid or free permits for horses, mules, or burros to persons who
clearly need National Forest System land to support the management of
permitted livestock.
(G) Free permits for horses, mules, or burros to cooperators who
clearly need National Forest System land to support research,
adminstration or other work being conducted. This may be authorized
without written permit.
(H) Paid permits to holders of grazing permits for breeding animals
used to service livestock permitted to graze on lands administered by
the Forest Service.
(I) Paid permits or cooperative agreements entered into as a
management tool to manipulate revegation on a given parcel of land.
[42 FR 56732, Oct. 28, 1977, as amended at 43 FR 27532, June 26, 1978;
44 FR 61345, Oct. 25, 1979; 46 FR 42449, Aug. 21, 1981]
Sec. 222.4 Changes in grazing permits.
(a) The Chief, Forest Service, is authorized to cancel, modify, or
suspend grazing and livestock use permits in whole or in part as
follows:
(1) Cancel permits where lands grazed under the permit are to be
devoted to another public purpose including disposal. In these cases,
except in an emergency, no permit shall be cancelled without two years'
prior notification.
(2) Cancel the permit in the event the permittee:
(i) Refuses to accept modification of the terms and conditions of an
existing permit.
(ii) Refuses or fails to comply with eligibility or qualification
requirements.
(iii) Waives his permit back to the United States.
(iv) Fails to restock the allotted range after full extent of
approved personal convenience non-use has been exhausted.
(v) Fails to pay grazing fees within established time limits.
(3) Cancel or suspend the permit if the permittee fails to pay
grazing fees within established time limit.
(4) Cancel or suspend the permit if the permittee does not comply
with provisions and requirements in the grazing permit or the
regulations of the Secretary of Agriculture on which the permit is
based.
(5) Cancel or suspend the permit if the permittee knowingly and
willfully makes a false statement or representation in the grazing
application or amendments thereto.
(6) Cancel or suspend the permit if the permit holder is convicted
for failing to comply with Federal laws or regulations or State laws
relating to protection of air, water, soil and vegetation, fish and
wildlife, and other environmental values when exercising the grazing use
authorized by the permit.
(7) Modify the terms and conditions of a permit to conform to
current situations brought about by changes in law, regulation,
executive order, development or revision of an allotment management
plan, or other management needs.
(8) Modify the seasons of use, numbers, kind, and class of livestock
allowed or the allotment to be used under the permit, because of
resource condition, or permittee request. One year's notice will be
given of such modification, except in cases of emergency.
(b) Association permits or grazing agreements may be canceled for
noncompliance with title VI of the Civil Rights Act of 1964 and
Department of Agriculture regulation promulgated thereunder.
[42 FR 56732, Oct. 28, 1977, as amended at 46 FR 42449, Aug. 21, 1981]
Sec. 222.6 Compensation for permittees' interest in authorized permanent improvements.
(a) Whenever a term permit for grazing livestock on National Forest
land in the 16 contiguous western States is canceled in whole or in part
to devote the lands covered by the permit to another public purpose,
including disposal, the permittee shall receive from the United States a
reasonable compensation for the adjusted value of his
[[Page 83]]
interest in authorized permanent improvements placed or constructed by
him on the lands covered by the canceled permit. The adjusted value is
to be determined by the Chief, Forest Service. Compensation received
shall not exceed the fair market value of the terminated portion of the
permittee's interest therein.
(b) In the event a permittee waives his grazing permit in connection
with sale of his base property or permitted livestock, he is not
entitled to compensation.
(Sec. 1, 30 Stat. 35, as amended (16 U.S.C. 551); sec. 1, 33 Stat. 628
(16 U.S.C. 472); sec. 32, 50 Stat. 525, as amended (7 U.S.C. 1011); sec.
19, 64 Stat. 88 (16 U.S.C. 5801); Title IV, Pub. L. 94, 90 Stat. 2771
(43 U.S.C. 1751, et seq.); 92 Stat. 1803 (43 U.S.C. 1901))
[42 FR 56732, Oct. 28, 1977, as amended at 44 FR 61345, Oct. 25, 1979]
Sec. 222.7 Cooperation in management.
(a) Cooperation with local livestock associations--(1) Authority.
The Chief, Forest Service, is authorized to recognize, cooperate with,
and assist local livestock associations in the management of the
livestock and range resources on a single range allotment, associated
groups of allotments, or other association-controlled lands on which the
members' livestock are permitted to graze.
(2) Purposes. These associations will provide the means for the
members to:
(i) Manage their permitted livestock and the range resources.
(ii) Meet jointly with Forest officers to discuss and formulate
programs for management of their livestock and the range resources.
(iii) Express their wishes through their designated officers or
committees.
(iv) Share costs for handling of livestock, construction and
maintenance of range improvements or other accepted programs deemed
needed for proper management of the permitted livestock and range
resources.
(v) Formulate association special rules needed to ensure proper
resource management.
(3) Requirements for recognition. The requirements for receiving
recognition by the Forest Supervisor are:
(i) The members of the association must constitute a majority of the
grazing permittees on the range allotment or allotments involved.
(ii) The officers of the association must be elected by a majority
of the association members or of a quorum as specified by the
association's constitution and bylaws.
(iii) The officers other than the Secretary and Treasurer must be
grazing permittees on the range allotment or allotments involved.
(iv) The association's activities must be governed by a constitution
and bylaws acceptable to the Forest Supervisor and approved by him.
(4) Withdrawing recognition. The Forest Supervisor may withdraw his
recognition of the association whenever:
(i) The majority of the grazing permittees request that the
association be dissolved.
(ii) The association becomes inactive, and does not meet in annual
or special meetings during a consecutive 2-year period.
(b) Cooperation with national, State, and county livestock
organizations. The policies and programs of national, State, and county
livestock organizations give direction to, and reflect in, the practices
of their members. Good working relationships with these groups is
conducive to the betterment of range management on both public and
private lands. The Chief, Forest Service, will endeavor to establish and
maintain close working relationships with National livestock
organizations who have an interest in the administration of National
Forest System lands, and direct Forest officers to work cooperatively
with State and county livestock organizations having similar interests.
(c) Interagency cooperation. The Chief, Forest Service, will
cooperate with other Federal agencies which have interest in improving
range management on public and private lands.
(d) Cooperation with others. The Chief, Forest Service, will
cooperate with other agencies, institutions, organizations, and
individuals who have interest in improvement of range management on
public and private lands.
[[Page 84]]
Sec. 222.8 Cooperation in control of estray or unbranded livestock, animal diseases, noxious farm weeds, and use of pesticides.
(a) Insofar as it involves National Forest System lands and other
lands under Forest Service control or the livestock which graze
thereupon, the Chief, Forest Service, will cooperate with:
(1) State, county, and Federal agencies in the application and
enforcement of all laws and regulations relating to livestock diseases,
sanitation and noxious farm weeds.
(2) The Animal and Plant Health Inspection Service and other Federal
or State agencies and institutions in surveillance of pesticides spray
programs; and
(3) State cattle and sheep sanitary or brand boards in control of
estray and unbranded livestock to the extent it does not conflict with
the Wild Free-Roaming Horse and Burro Act of December 15, 1971.
(b) The Chief, Forest Service, will cooperate with county or other
local weed control districts in analyzing noxious farm weed problems and
developing control programs in areas of which the National Forests and
National Grasslands are a part.
(85 Stat. 649 (16 U.S.C. 1331-1340))
Sec. 222.9 Range improvements.
(a) The Chief, Forest Service, is authorized to install and maintain
structural and nonstructural range improvements needed to manage the
range resource on National Forest System lands and other lands
controlled by the Forest Service.
(b) Such improvements may be constructed or installed and
maintained, or work performed by individuals, organizations or agencies
other than the Forest Service subject to the following:
(1) All improvements must be authorized by cooperative agreement or
memorandum of understanding, the provisions of which become a part of
the grazing permit(s).
(2) Title to permanent structural range improvements shall rest in
the United States.
(3) Title to temporary structural range improvements may be retained
by the Cooperator where no part of the cost for the improvement is borne
by the United States.
(4) Title to nonstructural range improvements shall vest in the
United States.
(5) Range improvement work performed by a cooperator or permittee on
National Forest System lands shall not confer the exclusive right to use
the improvement or the land influenced.
(c) A user of the range resource on National Forest System lands and
other lands under Forest Service control may be required by the Chief,
Forest Service, to maintain improvements to specified standards.
(d) Grazing fees or the number of animal months charged shall not be
adjusted to compensate permittees for range improvement work performed
on National Forest System lands: Provided, That, in accordance with
section 32(c), title III, Bankhead-Jones Farm Tenant Act, the cost to
grazing users in complying with requirements of a grazing permit or
agreement may be considered in determining the annual grazing fee on
National Grasslands or land utilization projects if it has not been used
in establishing the grazing base value.
Sec. 222.10 Range betterment fund.
In addition to range development which is accomplished through funds
from the rangeland management budget line item and the Granger-Thye Act,
and deposited and nondeposited cooperative funds, range development may
also be accomplished through use of the range betterment fund as
follows:
(a) On National Forest land within the 16 contiguous western States,
the Chief, Forest Service, shall implement range improvement programs
where necessary to arrest range deterioration and improve forage
conditions with resulting benefits to wildlife, watershed protection,
and livestock production. One-half of the available funds will be
expended on the National Forest where derived. The remaining one-half of
the fund will be allocated for range rehabilitation, protection and
improvements on National Forest lands within the Forest Service Regions
where they were derived. During the planning process there will be
consultation with
[[Page 85]]
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 Secretary shall establish and maintain at least
one grazing advisory board.
(2) The Chief, Forest Service, shall determine the number of such
boards, the area to be covered, and the number of advisers on each
board.
(3) Processing Petitions. Upon receiving a proper petition from the
grazing permittees, the Forest Supervisor will request the Chief, Forest
Service, through the Regional Forester, to initiate action to establish
grazing advisory boards in accordance with regulations of the Secretary
of Agriculture. Grazing advisory boards will comply with the provisions
of the Federal Advisory Committee Act.
(b) Membership. Grazing advisory boards established under this
authority shall consist of members who are National Forest System term
permittees under the jurisdiction of a National Forest headquarters
office in the 16 contiguous western States, provided board members shall
be elected by term grazing permittees in the area covered by the board.
(c) Elections. The Forest Supervisor of the headquarters office
shall prescribe and oversee the manner in which permittees are nominated
and board members are elected. Nominations will be made by petition with
all term grazing permittees under the jurisdiction of such headquarters
office being eligible for membership on the board. All members of the
board will be elected by secret ballot with each term grazing permittee
in the area covered by the board being qualified to vote. No person
shall be denied the opportunity to serve as a grazing advisory board
member because of race, color, sex, religion, or national origin. No
board member shall concurrently serve on another USDA advisory
committee. The Forest Supervisor shall determine and announce the
results of the election of the members of the board and shall recognize
the duly elected board as representing National Forest System term
grazing permittees in the areas for which it is established. Board
members will be elected to terms not to exceed 2 years.
(d) Charter and bylaws. (1) The Forest Supervisor will prepare a
charter to be filed with the Department and the Congress as required by
Section 9(c) of the Federal Advisory Committee Act.
(2) A duly recognized grazing advisory board may, with the
concurrence of a majority of its members and the Forest Supervisor,
adopt bylaws to govern its proceedings.
(e) Function. The function of grazing advisory boards will be to
offer advice and make recommendations concerning the development of
allotment management plans and the utilization of range betterment
funds.
(f) Meetings. The Forest Supervisor shall call at least one meeting
of each board annually, and call additional meetings as needed to meet
the needs of the permittees and the Forest Service. Each meeting shall
be conducted in accordance with an agenda approved by the Forest
Supervisor and in the presence of a Forest officer.
[[Page 86]]
(g) Termination. (1) Grazing advisory boards established under the
Federal Land Policy and Management Act of 1976 shall continue until
December 31, 1985, unless terminated earlier.
(2) The Forest Supervisor may withdraw recognition of any board
whenever:
(i) A majority of the term grazing permittees for the area which the
board represents requests that the board be dissolved.
(ii) The board becomes inactive and does not meet at least once each
calendar year.
(86 Stat. 770 (5 U.S.C., App. 1); sec. 1, 30 Stat. 35, as amended (16
U.S.C. 551); sec. 1, 33 Stat. 628 (16 U.S.C. 472); sec. 32, 50 Stat.
525, as amended (7 U.S.C. 1011); sec. 19, 64 Stat. 88 (16 U.S.C. 5801);
Title IV, Pub. L. 94, 90 Stat. 2771 (43 U.S.C. 1751, et seq.); 92 Stat.
1803 (43 U.S.C. 1901))
[42 FR 56732, Oct. 28, 1977, as amended at 43 FR 27532, June 26, 1978;
44 FR 61345, Oct. 25, 1979]
Subpart B--Management of Wild Free-Roaming Horses and Burros
Authority: 85 Stat. 649, as amended (16 U.S.C. 1331-1340); sec. 1,
30 Stat. 35, as amended (16 U.S.C. 551); sec. 32, 50 Stat. 522, as
amended (7 U.S.C. 1011); 92 Stat. 1803 (43 U.S.C. 1901 note).
Source: 45 FR 24135, Apr. 9, 1980, unless otherwise noted.
Sec. 222.20 Authority and definitions.
(a) Authority. The Chief, Forest Service, shall protect, manage, and
control wild free-roaming horses and burros on lands of the National
Forest System and shall maintain vigilance for the welfare of wild free-
roaming horses and burros that wander or migrate from the National
Forest System. If these animals also use lands administered by the
Bureau of Land Management as a part of their habitat, the Chief, Forest
Service, shall cooperate to the fullest extent with the Department of
the Interior through the Bureau of Land Management in administering the
animals.
(b) Definitions.
(1) Act means the Act of December 15, 1971 (85 Stat. 649, as
amended, 16 U.S.C. 1331-1340).
(2) Captured animal means a wild free-roaming horse or burro taken
and held in the custody of an authorized officer, his delegate, or
agent. This term does not apply to an animal after it is placed in
private custody through a Private Maintenance and Care agreement.
(3) Excess animals means wild free-roaming horses and burros which
have been removed by authorized personnel pursuant to applicable law or
which must be removed from an area in order to preserve and maintain a
thriving natural ecological balance in coordination with other resources
and activities.
(4) Herd means one or more stallions and their mares, or jacks and
their jennies.
(5) Humane treatment means kind and merciful treatment, without
causing unnecessary stress or suffering to the animal.
(6) Inhumane treatment means causing physical stress to an animal
through any harmful action or omission that is not compatible with
standard animal husbandry practices; causing or allowing an animal to
suffer from a lack of necessary food, water, or shelter; using any
equipment, apparatus, or technique during transportation, domestication,
or handling that causes undue injury to an animal; or failing to treat
or care for a sick or injured animal.
(7) Lame means a wild free-roaming horse or burro with
malfunctioning muscles, ligaments or limbs that impair freedom of
movement.
(8) Malicious harassment means any intentional act demonstrating
deliberate disregard for the well-being of wild free-roaming horses and
burros and which creates a likelihood of injury or is detrimental to
normal behavior pattern of wild free-roaming horses or burros including
feeding, watering, resting, and breeding. Such acts include, but are not
limited to, unauthorized chasing, pursuing, herding, roping, or
attempting to gather wild free-roaming horses or burros. It does not
apply to activities conducted by or on behalf of the Forest Service or
the Bureau of Land Management in implementation or performance of duties
and responsibilities under the Act.
[[Page 87]]
(9) National Advisory Board means the Advisory Board as established
jointly by the Secretary of Agriculture and the Secretary of the
Interior under the provisions of the Act.
(10) National Forest System includes the National Forests, National
Grasslands, and other Federal lands for which the Forest Service has
administrative jurisdiction.
(11) Old means a wild free-roaming horse or burro characterized by
inability to fend for itself because of age, physical deterioration,
suffering or closeness to death.
(12) Sick means a wild free-roaming horse or burro with failing
health, infirmness, or disease from which there is little chance of
recovery.
(13) Wild free-roaming horses and burros mean all unbranded and
unclaimed horses and burros and their progeny that have used lands of
the National Forest System on or after December 15, 1971, or do
hereafter use these lands as all or part of their habitat, but does not
include any horse or burro introduced onto the National Forest System on
or after December 15, 1971, by accident, negligence, or willful
disregard of private ownership. Unbranded, claimed horses and burros for
which the claim is found to be erroneous, are also considered as wild
and free-roaming if they meet the criteria above.
(14) Wild-horse and burro range means an area of National Forest
System specifically so designated by the Chief, Forest Service, from
wild horse and burro territory, for the purpose of sustaining an
existing herd or herds of wild free-roaming horses and burros, provided
the range does not exceed known territorial limits and is devoted
principally, but not necessarily exclusively, to the welfare of the wild
horses and burros, in keeping with the multiple-use management concept
for the National Forest System.
(15) Wild horse and burro territory means lands of the National
Forest System which are identified by the Chief, Forest Service, as
lands which were territorial habitat of wild free-roaming horses and/or
burros at the time of the passage of the Act.
Sec. 222.21 Administration of wild free-roaming horses and burros and their environment.
(a) The Chief, Forest Service, shall:
(1) Administer wild free-roaming horses and burros and their progeny
on the National Forest System in the areas where they now occur (wild
horse and burro territory) to maintain a thriving ecological balance
considering them an integral component of the multiple use resources,
and regulating their population and accompanying need for forage and
habitat in correlation with uses recognized under the Multiple-Use
Sustained Yield Act of 1960 (70 Stat. 215; 16 U.S.C. 528-531);
(2) Provide direct administration for the welfare of wild free-
roaming horses and burros that are located on the National Forest System
by use of the Forest Service organization rather than by the granting of
leases and permits for maintenance of these animals to individuals and
organizations;
(3) Establish wild horse and burro territories in accordance with
the Act and continue recognition of such territories where it is
determined that horses and/or burros will be recognized as part of the
natural system, and designate areas within these territories as a
specific wild horse and burro range in those situations where he
determines such designation as especially fitting to meet the purposes
of the Act and the Multiple Use Sustained-Yield Act, after consultation
with the appropriate State agencies where such range is proposed and
with the National Advisory Board;
(4) Analyze each wild horse or burro territory and, based on the
analysis, develop and implement a management plan, which analysis and
plans will be updated, whenever needed, as determined by conditions on
each territory;
(5) Maintain a current inventory of wild free-roaming horses and
burros on each territory to determine whether and where excess animals
exists;
(6) Based on paragraphs (a) (4) and (5) of this section, determine
appropriate management levels, whether action should be taken to remove
excess animals and what actions are appropriate to achieve the removal
or destruction of excess animals; and
[[Page 88]]
(7) In making determinations cited in this section, the authorized
officer shall consult with the U.S. Fish and Wildlife Service, wildlife
agencies in the State, individuals and organizations independent of
Federal or State Government recommended by the National Academy of
Sciences, and any other individual or organizations determined to have
scientific expertise or special knowledge of wild horse and burro
protection, wildlife management and animal husbandry as related to range
management.
Sec. 222.22 Ownership claims.
(a) Any person claiming ownership under State branding and estray
laws of branded or unbranded horses or burros within a wild horse or
burro territory or range on the National Forest System where such
animals are not authorized must present evidence of ownership to justify
a roundup before permission will be granted to gather such animals.
Claims of ownership with supporting evidence were required to be filed
during a claiming period which expired November 15, 1973. Unauthorized
privately owned horses or burros entering the National Forest System
after November 15, 1973, which become intermingled with wild horses or
burros, may be claimed by filing an application with the District
Ranger. All authorizations to gather claimed animals shall be in writing
in accordance with instructions as the Chief, Forest Service, may
prescribe. After such public notice as an authorized officer deems
appropriate to inform interested parties, gathering operations may be
authorized. The authorization shall provide that the gathering or
roundup be consistent with regulations, and will (1) establish a
specific reasonable period of time to allow the gathering of claimed
animals and (2) stipulate other conditions, including visual observation
by Forest Service personnel deemed necessary to ensure humane treatment
of associated wild free-roaming horses and burros and to protect other
resources involved.
(b) Prior to removal of claimed animals which have been captured
from the National Forest System, claimants shall substantiate their
claim of ownership in accordance with whatever criteria are
cooperatively agreed to between the Forest Service and the State agency
administering the State estray laws. In the absence of an agreement,
ownership claims shall be substantiated in accordance with State law and
subject to approval of the Forest Service.
Sec. 222.23 Removal of other horses and burros.
Horses and burros not within the definition in Sec. 222.20(b)(13)
which are introduced onto Wild Horse and Burro Territories or ranges
after December 15, 1971, by accident, negligence, or willful disregard
of private ownership, and which do not become intermingled with wild
free-roaming horses or burros shall be considered as unauthorized
livestock and treated in accordance with provisions in 36 CFR 261.7 and
262.10.
[61 FR 35959, July 9, 1996]
Sec. 222.24 Use of helicopters, fixed-wing aircraft and motor vehicles.
The Chief, Forest Service, is authorized to use helicopters, fixed-
wing aircraft, and motor vehicles in a manner that will ensure humane
treatment of wild free-roaming horses and burros as provided by the
following paragraphs:
(a) Prior to using helicopters in capture operations and/or using
motor vehicles for the purpose of transporting captured animals, a
public meeting will be held in the proximity of the territory where the
capture operation is proposed.
(b) Helicopters may be used in all phases of the administration of
the Act including, but not limited to, inventory, observation,
surveillance, and capture operations. In capture operations, helicopters
may be used to locate the animals involved to assist ground crews in
moving the animals and for related purposes, such as, to transport
personnel and equipment. The condition of the animals shall be
continuously observed by the authorized officer and, should signs of
harmful stress be noted, the source of stress shall be removed so as to
allow recovery. Helicopters may be used in round- ups or other capture
operations subject to the following procedures.
[[Page 89]]
(1) Helicopters shall be used in such a manner that bands or herds
will tend to remain together.
(2) Horses or burros will not be moved at a rate which exceeds
limitations set by the authorized officer who shall consider terrain,
weather, distance to be traveled, and condition of the animals.
(3) Helicopters shall be used to observe the presence of dangerous
areas and may be used to move animals away from hazards during capture
operations.
(4) During capture operations, animals shall be moved in such a way
as to prevent harmful stress or injury.
(5) The authorized officer shall supervise all helicopter uses as
follows:
(i) Have means to communicate with the pilot and be able to direct
the use of the helicopter; and
(ii) Be able to observe effects of the use of the helicopters on the
well-being of the animals.
(c) Fixed-wing aircraft may be used for inventory, observation, and
surveillance purposes necessary in administering the Act. Such use shall
be consistent with the Act of September 8, 1959, as amended (18 U.S.C.
41 et seq.). Fixed-wing aircraft shall not be used in connection with
capture operations except as support vehicles.
(d) Motor vehicles may be used in the administration of the Act
except that such vehicles shall not be used for driving or chasing wild
horses or burros in capture operations. Motor vehicles may also be used
for the purpose of transporting captured animals subject to the
following humane procedures.
(1) Such transportation shall comply with appropriate State and
Federal laws and regulations applicable to humane transportation of
horses and burros.
(2) Vehicles shall be inspected by an authorized officer prior to
use to ensure vehicles are in good repair and of adequate rate capacity.
(3) Vehicles shall be carefully operated to ensure that captured
animals are transported without undue risk or injury.
(4) Where necessary and practical, animals shall be sorted as to
age, temperament, sex, size, and condition so as to limit, to the extent
possible, injury due to fighting and trampling.
(5) The authorizing officer shall consider the condition of the
animals, weather conditions, type of vehicle, and distance to be
traveled when planning for transportation of captured animals.
(6) Unless otherwise approved by the authorized officer, the
transportation of wild free-roaming horses and burros shall be limited
in sequence, to a maximum of 24 hours in transit followed by a minimum
of 5 hours of on-the-ground rest with adequate feed and water.
Sec. 222.25 Protection of wild free-roaming horses and burros when they are upon other than the National Forest System or public lands.
Individual animals and herds of wild free-roaming horses and burros
will be under the protection of the Chief, Forest Service, even though
they may thereafter move to lands of other ownership or jurisdiction as
a part of their annual territorial habitat pattern or for other reasons.
The Chief will exercise surveillance of these animals through the use of
cooperative agreements and as otherwise authorized by law and act
immediately through appropriate administrative or criminal and civil
judicial procedures to provide them the protective measures of the Act
at any time he has cause to believe its provisions are being violated.
Sec. 222.26 Removal of wild free-roaming horses and burros from private lands.
Owners of land upon which wild free-roaming horses and burros have
strayed from the National Forest System may request their removal by
calling the nearest office of either the Forest Service or Federal
Marshall.
Sec. 222.27 Maintenance of wild free-roaming horses and burros on privately-owned lands.
Owners of land who wish to maintain wild free-roaming horses and
burros which have strayed onto their lands from the National Forest
System may do so by notifying the nearest office of the Forest Service
in a timely fashion and providing such information on a continuing basis
as the Chief, Forest Service, may require. Such owners
[[Page 90]]
shall protect the wild free-roaming horses and burros on their lands.
They may not, in so maintaining these animals, impede their return to
National Forest System lands unless authorized by agreement with the
Forest Service.
Sec. 222.28 Agreements.
The Chief, Forest Service, may enter into agreements as he deems
necessary to further the protection, management, and control of wild
free-roaming horses and burros.
Sec. 222.29 Relocation and disposal of animals.
(a) The Chief, Forest Service, shall, when he determines over-
population of wild horses and burros exists and removal is required,
take immediate necessary action to remove excess animals from that
particular territory. Such action shall be taken until all excess
animals have been removed so as to restore a thriving natural ecological
balance to the range, and protect the range from deterioration
associated with over-population.
(b) No person except an authorized Forest Service officer or his
agent shall destroy, remove, or relocate any wild free-roaming horse or
burro located on the National Forest System.
(c) Wild horses and burros shall be relocated or removed in the
following order of priority:
(1) In the most humane manner possible, sick, lame, or old animals
shall be destroyed;
(2) Relocate animals to other National Forest System lands which
were identified as 1971 wild horse or burro territory, providing
suitable habitat exists and relocation of animals will not jeopardize
vegetation condition;
(3) Relocate animals to other federally-owned lands which were
identified as 1971 wild horse or burro occupied lands, providing
suitable habitat exists and relocation of animals will not jeopardize
vegetation condition and animals are requested by the appropriate land
manager having jurisdiction;
(4) Place animals under private maintenance and care agreements
where there is an adoption demand by qualified individuals, groups, or
Government agency, and for which there is assurance of humane treatment
and care, provided not more than four animals are placed under private
maintenance and care agreements per year to any individual,
organization, or government agency unless there is a determination
expressed otherwise in writing, by an authorized Forest Service Officer;
and
(5) Excess animals, for which an adoption demand by qualified
applicants does not exist, shall be destroyed in the most humane manner
possible, and if several methods are equally humane, select the most
cost efficient.
(d) Where excess animals have been placed under private maintenance
and care agreements after December 15, 1971, as provided for in
paragraph (c)(4) of this section, and animals have been provided humane
conditions, treatment, and care, for a period of one year, the Chief,
Forest Service, may grant title to not more than four animals per year
to each individual, organization, or government agency.
(e) The applicants must make written application for title and/or
adoption, must be of legal age in the State in which they reside, and
must pay fees for adoption and transportation as follows:
(1) The application must be accompanied by a nonrefundable advance
payment of $25 by guaranteed remittance. If custody of a wild, free-
roaming horse or burro is granted by the authorized Forest Service
officer, the advance payment shall be applied against the adoption fee
required to be paid at the time the maintenance and care agreement
Sec. 222.29(c)(4) is executed.
(2) The Forest Service shall charge an adoption fee of $125 for each
horse and $75 for each burro, except that there shall be no adoption fee
for an unweaned offspring under 6 months of age accompanying its mother.
(3) Any transportation costs incurred for the transportation of the
animal(s) to the point of pickup must be paid before an approved
individual, group, or government agency takes custody of the animal(s).
(f) Humane conditions, treatment, and care must have been provided
for no less that one year preceding the filing of the application for
title. The conveyance of title shall include a
[[Page 91]]
written statement by an authorized officer attesting that the animal is
in good condition.
[45 FR 24135, Apr. 9, 1980, as amended at 46 FR 42450, Aug. 21, 1981; 48
FR 25188, June 6, 1983]
Sec. 222.30 Disposal of carcasses.
Carcasses of animals that have lost their status as wild free-
roaming horses or burros may be disposed of in any customary manner
acceptable under applicable State sanitary statutes including disposal
through a rendering plant.
Sec. 222.31 Loss of status.
Wild free-roaming horses and burros or their remains shall lose
their status under the 1971 Wild Horses and Burros Act.
(a) Upon passage of title pursuant to Sec. 222.29 (d) and (e).
(b) Upon transfer to private maintenance and care pursuant to
Sec. 222.29(c)(4) and die of natural causes before passage of title;
(c) Upon destruction by an authorized Forest officer pursuant to
Sec. 222.29(c)(5).
(d) Upon death by natural causes or accident on the National Forest
System or on private lands where maintained thereon pursuant to
Sec. 222.27 and disposal is authorized by a Forest officer; and
(e) Upon destruction or death for purposes of or incident to the
program authorized in Sec. 222.20(a).
Sec. 222.32 Use of non-Forest Service personnel.
The Chief, Forest Service, may authorize the use of non-Forest
Service personnel to assist in specific situations of short duration.
Sec. 222.33 Management coordination.
All management activities by the Chief, Forest Service, shall be
carried out in consultation with the appropriate agencies of the State
involved. The expert advice of qualified scientists in the fields of
biology and ecology shall also be sought in administering wild free-
roaming horses and burros. The advice and suggestions of agencies,
qualified scientists, and other qualified interest groups shall be made
available to the National Advisory Board for their use and
consideration. Actions taken in connection with private ownership claims
shall be coordinated to the fullest extent possible with the State
agency responsible for livestock estray law administration.
Sec. 222.34 National Advisory Board.
The Chief, Forest Service, shall appoint a representative to attend
meetings of the National Advisory Board for Wild Free-Roaming Horses and
Burros and to function as prescribed by the Memorandum of Agreement
between the Department of the Interior and the Department of Agriculture
and the Joint Charter issued by the Secretary of the Interior and the
Secretary of Agriculture. Policies and guidelines relative to proposals
for the establishment of ranges, adjustments in number, relocation and
disposal of animals, and other matters relating generally to the
protection, management, and control of wild free-roaming horses and
burros shall be presented to the National Advisory Board for
recommendations.
Sec. 222.35 Studies.
The Chief, Forest Service, is authorized and directed to undertake
those studies of the habits and habitat of wild free-roaming horses and
burros that he may deem necessary. In doing so, he shall consult with
the appropriate agencies of the State(s) involved and the National
Academy of Sciences.
Sec. 222.36 Arrest.
Any employee designated by the Chief, Forest Service, shall have the
power to arrest without warrant, any person committing in the presence
of the employee a violation of the Act and to take such person
immediately for examination or trial before an officer or court of
competent jurisdiction. Any employee so designated shall have power to
execute any warrant or other process issued by an officer or court of
competent jurisdiction to enforce the provisions of the Act.
[[Page 92]]
Subpart C--Grazing Fees
Authority: 16 U.S.C. 551; 31 U.S.C. 483A; 43 U.S.C. 1901; E.O.
12548, 51 FR 1986 Comp., p. 188.
Sec. 222.50 General procedures.
(a) Fees shall be charged for all livestock grazing or livestock use
of National Forest system lands, or other lands under Forest Service
control. An exception is livestock authorized free of charge under
provisions of Sec. 222.3(c)(2)(ii) (B) through (G).
(b) Guiding establishment of fees are the law and general
governmental policy as established by Bureau of the Budget (now, Office
of Management and Budget) Circular A-25 of September 23, 1959, which
directs that a fair market value be obtained for all services and
resources provided the public through establishment of a system of
reasonable fee charges, and that the users be afford equitable
treatment. This policy precludes a monetary consideration in the fee
structure for any permit value that may be capitalized into the permit
holder's private ranching operation.
(c) A grazing fee shall be charged for each head month of livestock
grazing or use. A head month is a month's use and occupancy of range by
one animal, except for sheep or goats. A full head month's fee is
charged for a month of grazing by adult animals; if the grazing animal
is weaned or 6 months of age or older at the time of entering National
Forest System lands; or will become 12 months of age during the
permitted period of use. For fee purposes 5 sheep or goats, weaned or
adult, are equivalent to one cow, bull, steer, heifer, horse, or mule.
(d) No additional charge will be made for the privilege of lambing
upon National Forest System lands, or other lands under Forest Service
control.
(e) Transportation livestock may be charged for at a special rate,
and at a minimum established for such use. Fees for horses, mules, or
burros associated with management of permitted livestock on an
allotment, or for research purposes and administrative studies, and
authorized on a charge basis, are determined under provisions of
paragraph (b) of this section.
(f) The fees for trailing livestock across National Forest System
lands will conform with the rates established for other livestock. Where
practicable, fees for trailing permitted livestock will be covered in
the regular grazing fee and the crossing period covered in the regular
grazing period.
(g) All fees for livestock grazing or livestock use of National
Forest System lands or other lands under Forest Service control are
payable in advance of the opening date of the grazing period, entry, or
livestock use unless otherwise authorized by the Chief, Forest Service.
(h) Unauthorized grazing use rate will be determined by establishing
a base value without giving consideration for those contributions
normally made by the permittee under terms of the grazing permit. The
base will be adjusted annually by the same indexes used to adjust the
regular fee. This rate will also apply to excess number of livestock
grazing by permittees; to livestock grazed outside the permitted grazing
season; or to livestock grazed under an unvalidated permit.
(i) Refunds or credits may be allowed under justifiable conditions
and circumstances as the Chief, Forest Service, may specify.
(j) The fee year for the purpose of charging grazing fees will be
March 1 through the following February.
(k) The data year for the purpose of collecting beef cattle price
data for computing indexes will be November 1 through the following
October and apply to the following fee year.
[44 FR 24843, Apr. 27, 1979, as amended at 46 FR 42450, Aug. 21, 1981;
53 FR 2984, Feb. 2, 1988]
Sec. 222.51 National Forests in 16 Western States.
(a) Grazing fees are established on lands designated National
Forests and Land Utilization Projects in the 16 contiguous Western
States of Arizona, California, Colorado, Idaho, Kansas, Montana,
Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South
Dakota, Utah, Washington, and Wyoming. (National Grasslands are
excluded, see Sec. 222.52.)
(b) Notwithstanding the provisions of Sec. 222.50, paragraph (b),
the calculated
[[Page 93]]
grazing fee for 1988 and subsequent grazing fee years represents the
economic value of the use of the land to the user and is the product of
multiplying the base fair market value of $1.23 by the result of the
annual Forage Value Index, added to the sum of the Beef Cattle Price
Index minus the Prices Paid Index and divided by 100; provided, that the
annual increase or decrease in such fee for any given year shall be
limited to not more than plus or minus 25 percent of the previous year's
fee, and provided further, that the fee shall not be less than $1.35 per
head per month. The indexes used in this formula are as follows:
(1) Forage Value Index means the weighted average estimate of the
annual rental charge per head per month for pasturing cattle on private
rangelands in the 11 Western States (Arizona, California, Colorado,
Idaho, Montana, New Mexico, Nevada, Oregon, Utah, Washington, and
Wyoming) (computed by the National Agricultural Statistics Service) from
the June Enumerative Survey) divided by $3.65 per head month and
multiplied by 100;
(2) Beef Cattle Price Index means the weighted average annual
selling price for beef cattle (excluding calves) in the 11 Western
States (Arizona, California, Colorado, Idaho, Montana, New Mexico,
Nevada, Oregon, Utah, Washington, and Wyoming) (computed by the National
Agricultural Statistics Service) for November through October (computed
by the National Agricultural Statistics Service) divided by $22.04 per
hundred weight and multiplied by 100; and
(3) Prices Paid Index means the following selected components from
the National Agricultural Statistics Service ``Annual National Index of
Prices Paid by Farmers for Goods and Services'' adjusted by the weights
indicated in parentheses to reflect livestock production costs in the
Western States:
1. Fuels and Energy (14.5);
2. Farm and Motor Supplies (12.0);
3. Autos and Trucks (4.5);
4. Tractors and Self-Propelled Machinery (4.5);
5. Other Machinery (12.0);
6. Building and Fencing Materials (14.5);
7. Interest (6.0);
8. Farm Wage Rates (14.0);
9. Farm Services (18.0).
[44 FR 24843, Apr. 27, 1979, as amended at 53 FR 2984, Feb. 2, 1988]
Sec. 222.52 National Grasslands.
Grazing fees for National Grasslands will be established under
concepts and principles similar to those in Sec. 222.51(b).
[44 FR 24843, Apr. 27, 1979]
Sec. 222.53 Grazing fees in the East--noncompetitive procedures.
(a) Scope. Except as provided in Sec. 222.54 of this subpart, the
fee charged for commercial livestock grazing use and occupancy on
National Forest System (NFS) lands in the States of New York, Missouri,
Vermont, West Virginia, and in the Southern Region shall be determined
through noncompetitive, fair market value procedures. These rules do not
apply to grazing fees on National Forest System lands in Oklahoma or
National Grasslands in Texas. Grazing permits under the noncompetitive
fee method in the East are subject to the rules governing grazing permit
administration in Subpart A of this part.
(b) Applicability. The rules of this section apply to the
establishment of grazing fees for existing permittees in the Eastern and
Southern Regions on National Forest System lands, including grazing
associations in New York and Missouri as of March 1, 1990, to any
livestock on-and-off permits defined in Subpart A of this part; and to
any allotments advertised for competitive bidding which were not bid on
(Sec. 222.54(h)). Noncompetitive permits vacated or terminated by an
existing permittee and any new allotments created after the effective
date of this rule shall be offered on a competitive bid basis as
specified in Sec. 222.54 of this subpart. As provided in subpart A of
this part, holders of term permits have first priority for receipt of a
new permit.
(c) Fee System. The grazing fee charged under this section shall be
based on fair market value, as determined by: Using comparable private
grazing lease rates, adjusted for the difference in the costs of grazing
comparable private leased lands and National Forest System lands, or by
reference to prevailing prices in competitive markets for other Federal
or State
[[Page 94]]
leased grazing lands that are the same or substantially similar to
grazing lands offered or administered by the Forest Service in the East
with comparability adjustments as appropriate. Comparable grazing lease
rates shall be adjusted for the difference between the total costs of
operating on leased grazing lands and the total costs (other than
grazing fee costs) of operating on National Forest System lands.
(1) Establishing Base Grazing Value. (i) The Chief of the Forest
Service, or an authorized officer to whom such authority has been
delegated, shall determine an estimated base market value of grazing use
and occupancy on National Forest System lands in the Eastern States for
the following designated subregions:
(A) Corn Belt (Illinois, Indiana, Missouri, and Ohio);
(B) Lake States (Michigan, Minnesota, and Wisconsin);
(C) Northeast (Maine, New Hampshire, New York, Pennsylvania, and
Vermont);
(D) Appalachia (Kentucky, North Carolina, Tennessee, Virginia, and
West Virginia);
(E) Southeast/Delta (Alabama, Arkansas, Georgia, Louisiana,
Mississippi, South Carolina, and Texas); and
(F) Florida.
(ii) The Chief or authorized officer shall revise or update
estimated market values of grazing use and occupancy, as necessary to
respond to significant changes in the agricultural economy in the East,
and to ensure that fees represent fair market value.
(iii) The Chief, or an authorized officer to whom authority has been
delegated, where sufficient market data exist, may establish the base
grazing value for grazing allotments using comparable, local lease rates
for private grazing lands.
(2) Annual Adjustment of Base Grazing Value. To maintain currency
with the private grazing lease market, the respective base grazing
value(s) established for grazing permits under this section shall be
annually adjusted through a hay price index, by respective subregion.
The hay price index means the weighted average selling price of ``other
baled hay,'' computed by the National Agricultural Statistics Service of
the U.S. Department of Agriculture, by designated State and subregion.
This index shall be based on 3-year average hay prices and annually
reflect the percentage change in the cost of alternative livestock feed.
(3) Computation of Annual Grazing Fee--(i) Annual Fee Basis. The
annual grazing fee shall equal the base grazing value, adjusted by the
current period's hay price index, less the value of any agency required
range improvements.
(ii) Grazing Fee Credits for Range Improvements. Any requirements
for permittee construction or development of range improvements shall be
identified through an agreement and incorporated into the grazing
permit, with credits for such improvements to be allowed toward the
annual grazing fee. Fee credits shall be allowed only for range
improvements which the Forest Service requires an individual permittee
to construct or develop on a specific allotment to meet the management
direction and prescriptions in the relevant forest land and resource
management plan and allotment management plan. These improvements must
involve costs which the permittee would not ordinarily incur under the
grazing permit, must be of tangible public benefit, and must enhance
management of vegetation for resource protection, soil productivity,
riparian, watershed, and wetland values, wildlife and fishery habitat,
or outdoor recreation values. Maintenance of range improvements
specified in allotment management planning documents or the grazing
permit, and other costs incurred by the permittee in the ordinary course
of permitted livestock grazing, do not qualify for grazing fee credits.
(4) Implementation. The grazing fee formula provided by this section
shall be used to calculate fees for the 1990 grazing fee year. Where
implementation would raise fees, the increase shall be phased in over a
5-year period. Full fair market value will be reached in 5 years,
beginning in 1990.
[55 FR 2650, Jan. 26, 1990]
Sec. 222.54 Grazing fees in the East--competitive bidding.
(a) General Procedures--(1) Applicability. The rules of this section
apply to
[[Page 95]]
grazing fees for any allotment established or vacated on National Forest
System lands in the Eastern or Southern Regions, as of February 26, 1990
as well as to grazing fees for existing allotments for such lands that
have already been established under competitive procedures as of the
date of this rule. Permits offered for competitive bidding in the East
are subject to the rules governing grazing permit administration in
subpart A of this part. The rules of this section do not apply to
negotiated livestock use permits or permits with on-and-off grazing
provisions as authorized in subpart A of this part. Holders of term
permits have first priority for receipt of a new term grazing permit in
accordance with subpart A of this part. These rules also do not apply to
grazing fees on National Forest System lands in Oklahoma or National
Grasslands in Texas.
(2) Allowable Bidders. Bids for grazing permits shall be accepted
from individuals, partnerships, grazing associations (formed after
February 26, 1990), joint ventures, corporations, and organizations.
(b) Establishment of Minimum Bid Price. Authorized officers shall
establish a minimum bid price for each available allotment as described
in Sec. 222.53 of this subpart.
(c) Prospectus. (1) At such time as allotments are vacated, as new
allotments are established, or as existing competitively bid permits
expire, the authorized officer shall prepare and advertise a prospectus
for those allotments on which grazing will be permitted.
(2) The prospectus shall include the terms and conditions of
occupancy and use under the grazing permit to be issued, as well as
document existing improvements and their condition. The prospectus shall
also disclose the following:
(i) Estimated market value of the forage per head month of grazing
use;
(ii) The minimum bid price the agency will accept;
(iii) Any required range improvements; and
(iv) The minimum qualifications that applicants must meet to be
eligible for a permit.
(3) Copies of the applicable grazing permit, allotment management
planning documents and allotment maintenance requirements, and the
latest annual permittee instructions shall be made available to all
prospective bidders upon request.
(d) Submission of bid. Each applicant shall submit an application
for the grazing permit, along with a sealed bid for the grazing fee, and
a bid deposit of 10 percent of the total amount of the bid.
(e) Qualifications and Deposit Refunds. Upon opening applicants
bids, the authorized officer shall determine whether each bidder meets
the qualifications to hold a permit as set forth in Subpart A of this
part; and shall refund the deposit to any applicant who is not qualified
or who does not offer the high bid.
(f) Permit Issuance. The authorized officer shall issue the grazing
permit to the qualified high bidder, except as provided in paragraphs
(f)(1) and (2) of this section. The successful bidder receives the
privilege of obtaining or renewing a grazing permit and is billed for
the occupancy offered and forage sold.
(1) Priority for Reissuance. On allotments where a current permit is
expiring and competition has been held on a new grazing permit, the
current grazing permittee shall have priority for retaining the permit.
Accordingly, an applicant who holds the permit on the allotment under
bid, who has a satisfactory record of performance under that permit, and
who is not the higher bidder for the future grazing privileges in the
specified allotment shall be offered the opportunity to match the high
bid and thereby retain the permit. Should there be more than one
existing permittee in the allotment under bid, each shall be offered the
option of meeting the high bid; if only one current permittee opts to
meet the high bid, the remaining allowable grazing use, if any, shall be
awarded to the initial high bidder.
(2) Identical Bids. In cases of identical bids, the selection of the
successful applicant shall be made through a drawing.
(g) Computation of Successful Bidder's Annual Fee--(1) Annual Fee
Basis. The highest bid received shall establish the
[[Page 96]]
base grazing value in the initial year of the grazing permit for each
allotment offered. The annual grazing fee shall equal the base grazing
value, adjusted by the current period's hay price index for the relevant
subregion as described in Sec. 222.53(c)(1), and (c)(3), less the value
of any agency required range improvements. This hay price index shall be
based on 3-year average hay prices and annually reflect the percent
change in the cost of alternative livestock feed.
(2) Grazing Fee Credits for Range Improvements. Any requirements for
permittee construction or development of range improvements shall be
identified through an agreement and incorporated into the grazing
permit, with credits for such improvements to be allowed toward the
annual grazing fee. Fee credits shall be allowed only for range
improvements which the Forest Service requires an individual permittee
to construct or develop on a specific allotment to meet the management
direction and prescriptions in the relevant forest land and resource
management plan and allotment management plan. These improvements must
involve costs which the permittee would not ordinarily incur under the
grazing permit, must be of tangible public benefit, and must enhance
management of vegetation for resource protection, soil productivity,
riparian, watershed, and wetland values, wildlife and fishery habitat,
or outdoor recreation values. Maintenance of range improvements
specified in allotment management planning documents or the grazing
permit, and other costs incurred by the permittee in the ordinary course
of permitted livestock grazing, do not qualify for grazing fee credits.
(h) No Bids Received. If qualified sealed bids are not received, the
authorized officer reserves the right to conduct an oral auction using
the minimum bid price established under paragraph (b) of this section or
to establish grazing fees through noncompetitive grazing fee procedures
specified in Sec. 222.53 of this subpart.
[55 FR 2651, Jan. 26, 1990]
PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER--Table of Contents
Subpart A--General Provisions
Sec.
223.1 Authority to sell timber.
223.2 Disposal of timber for administrative use.
223.3 Sale of seized material.
223.4 Exchange of trees or portions of trees.
223.5 Scope of free use granted to individuals.
223.6 Cutting and removal of timber in free-use areas.
223.7 Permission for free use of timber outside free-use areas.
223.8 Delegations of authority to approve free use by individuals.
223.9 Free use to owners of certain mining claims.
223.10 Free use to Alaskan settlers, miners, residents, and
prospectors.
223.11 Free use to other Federal agencies.
223.12 Permission to cut, damage, or destroy trees without
advertisement.
223.13 Compliance.
223.14 Where timber may be cut.
Subpart B--Timber Sale Contracts
Contract Conditions and Provisions
223.30 Consistency with plans, environmental standards, and other
management requirements.
223.31 Duration of contracts.
223.32 Timber sale operating plan.
223.33 Redetermination of stumpage rates and deposits.
223.34 Advance payment.
223.35 Performance bond.
223.36 Volume determination.
223.37 Revegetation of temporary roads.
223.38 Standards for road design and construction.
223.39 [Reserved]
223.40 Cancellation for environmental protection or inconsistency with
plans.
223.41 Payment when purchaser elects government road construction.
223.42 Transfer of effective purchaser credits.
223.43 Limitation on amounts of transferred purchaser credit.
223.44 Collection rights on contracts involved in transfer of purchaser
credit.
223.45 Definitions applicable to transfer of purchaser credit.
223.46 Adjustment of contract termination date.
223.47 Date of completion of permanent road construction.
223.48 Restrictions on export and substitution of unprocessed timber.
[[Page 97]]
223.49 Downpayment.
223.50 Periodic payments.
223.51 Bid monitoring.
223.52 Market-related contract term additions.
Appraisal and Pricing
223.60 Determining fair market value.
223.61 Establishing minimum stumpage rates.
223.62 Timber purchaser road construction credit.
223.63 Advertised rates.
223.64 Appraisal on a lump-sum value or rate per unit of measure basis.
223.65 Appraisal of timber for land exchange; right-of-way, or other
authorized use.
223.66 [Reserved]
Advertisement and Bids
223.80 When advertisement is required.
223.81 Shorter advertising periods in emergencies.
223.82 Contents of advertisement.
223.83 Contents of prospectus.
223.84 Small business bid form provisions on sales with purchaser road
construction credit.
223.85 Noncompetitive sale of timber.
223.86 Bid restriction on resale of noncompleted contract.
223.87 Requirements of bidders concerning exports.
223.88 Bidding methods.
223.89 Relation to other bidders.
Award of Contracts
223.100 Award to highest bidder.
223.101 Determination of purchaser responsibility.
223.102 Procedures when sale is not awarded to highest bidder.
223.103 Award of small business set-aside sales.
Contract Administration
223.110 Delegation to regional forester.
223.111 Administration of contracts in designated disaster areas.
223.112 Modification of contracts.
223.113 Modification of contracts to prevent environmental damage or to
conform to forest plans.
223.114 Acquisition by third party.
223.115 Contract extensions.
223.116 Cancellation.
223.117 Administration of cooperative or Federal sustained yield units.
223.118 Appeal process for small business timber sale set-aside program
share recomputations.
Subpart C--Suspension and Debarment of Timber Purchasers
223.130 Scope.
223.131 Applicability.
223.132 Policy.
223.133 Definitions.
223.134 List of debarred and suspended purchasers.
223.135 Effect of listing.
223.136 Debarment.
223.137 Causes for debarment.
223.138 Procedures for debarment.
223.139 Period of debarment.
223.140 Scope of debarment.
223.141 Suspension.
223.142 Causes for suspension.
223.143 Procedures for suspension.
223.144 Period of suspension.
223.145 Scope of suspension.
Subpart D--Timber Export and Substitution Restrictions
223.159 Scope and applicability.
223.160 Definitions.
223.161 [Reserved]
223.162 Limitations on timber harvested from all other states.
223.163 [Reserved]
223.164 Penalty for falsification.
Subpart E [Reserved]
Subpart F--The Forest Resources Conservation and Shortage Relief Act of
1990 Program
223.185 Scope and applicability.
223.186 Definitions.
223.187 Determination of unprocessed timber.
223.188 Prohibitions against exporting unprocessed Federal timber.
223.189 Prohibitions against substitution.
223.190 Sourcing area application procedures.
223.191 Sourcing area disapproval and review procedures.
223.192 Procedures for a non-manufacturer.
223.193 Procedures for reporting acquisition and disposition of
unprocessed Federal timber.
223.194 Procedures for reporting the acquisition and disposition of
unprocessed private timber.
223.195 Procedures for identifying and marking unprocessed timber.
223.196 Civil penalties for violation.
223.197 Civil penalty assessment procedures.
223.198 Administrative remedies.
223.199 Procedures for cooperating with other agencies.
223.200 Determinations of surplus species.
223.201 Limitations on unprocessed timber harvested in Alaska.
223.202 Information requirements.
[[Page 98]]
223.203 Indirect substitution exception for National Forest System
timber from within Washington State.
Authority: 90 Stat. 2958, 16 U.S.C. 472a; 98 Stat. 2213, 16 U.S.C.
618, 104 Stat. 714-726, 16 U.S.C. 620-620j, unless otherwise noted.
Source: 42 FR 28252, June 2, 1977, unless otherwise noted.
Redesignated at 49 FR 2760-2761, Jan. 23, 1984.
Subpart A--General Provisions
Sec. 223.1 Authority to sell timber.
Trees, portions of trees, and other forest products on National
Forest System lands may be sold for the purpose of achieving the
policies set forth in the Multiple-Use Sustained-Yield Act of 1960, as
amended (74 Stat. 215; 16 U.S.C. 528-531), and the Forest and Rangeland
Renewable Resources Planning Act of 1974, as amended (88 Stat. 476; as
amended, 16 U.S.C. 1600-1614), and the Program thereunder.
Sec. 223.2 Disposal of timber for administrative use.
Trees, portions of trees, or other forest products in any amount on
National Forest System lands may be disposed of for administrative use,
by sale or without charge, as may be most advantageous to the United
States, subject to the maximum cut fixed in accordance with established
policies for management of the National Forests. Such administrative use
shall be limited to the following conditions and purposes:
(a) For construction, maintenance or repair of roads, bridges,
trails, telephone lines, fences, recreation areas or other improvements
of value for the protection or the administration of Federal lands.
(b) For fuel in Federal camps, buildings and recreation areas.
(c) For research and demonstration projects.
(d) For use in disaster relief work conducted by public agencies.
(e) For disposal when removal is desirable to protect or enhance
multiple-use values in a particular area.
Sec. 223.3 Sale of seized material.
Seized material (trees, portions of trees or other forest products
cut in trespass from National Forest System lands) may be sold to the
highest bidder under specific authorization from the Regional Forester.
If advertisement is impractical, sales of material with an appraised
value of less than $10,000 will be made on informal bids.
Sec. 223.4 Exchange of trees or portions of trees.
Trees or portions of trees may be exchanged for land under laws
authorizing the exchange of National Forest timber. Cutting of exchange
timber must comply with the purposes cited in Sec. 223.1.
(42 Stat. 465, 16 U.S.C 485; 43 Stat. 1215, 16 U.S.C. 516)
Sec. 223.5 Scope of free use granted to individuals.
(a) Free use may be granted to individuals for firewood for personal
use, except that such use may be limited to bona fide settlers, miners,
residents and prospectors living within or immediately adjacent to the
National Forest when the available supply is insufficient to meet the
total demand. Free use may be granted to such bona fide settlers,
miners, residents and prospectors for minerals, for fencing, building,
mining, prospecting and domestic purposes.
(Sec. 1, 30 Stat. 35, as amended; 16 U.S.C. 477, 551)
(b) Free use will be granted individuals primarily to aid in the
protection and silvicultural improvement of the forests. Except in
unusual cases, the material will be restricted to dead, insect-infested,
or diseased timber, logging debris, and thinnings. Other material may be
granted in unusual cases where its refusal would cause unwarranted
hardship. Where limited supply or other conditions justify such action,
the free use of green material may be refused.
Sec. 223.6 Cutting and removal of timber in free-use areas.
Supervisors may designate portions or all of a National Forest as
free-use areas where such action is compatible with land management
plans and shall give public notice of their action. Within such free-use
areas, any dead timber or any green timber previously
[[Page 99]]
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 $20 in value in any one
fiscal year. Supervisors may grant permits for material not exceeding
$100 in value. Regional Foresters may approve permits for larger
amounts, and in times of emergency may delegate authority to supervisors
for not over $500 in value. Prior review by the Chief of the Forest
Service will be given if the amount involved exceeds $5,000 in value.
(b) Regional Foresters may authorize supervisors to permit the
removal of specific classes of material without scaling or measurement.
Sec. 223.9 Free use to owners of certain mining claims.
Free use will be granted to an owner of a mining claim located
subsequent to July 23, 1955, or of a mining claim which is otherwise
subject to Section 4 of the Act of July 23, 1955 (69 Stat. 367), if at
any time said claim owner requires more timber for his mining
operations, in connection with that claim, than is available on that
claim because of Forest Service timber disposal therefrom subsequent to
location of that claim. He will be granted, free of charge, timber from
the nearest National Forest land which is ready for harvesting under the
applicable management plan, substantially equivalent in kind and
quantity to that estimated by the Forest Service to have been cut under
Forest Service authorization from the claim subsequent to its location,
Forest officers may be delegated authority to grant amounts of timber
not in excess of those which these officers are authorized to sell in
commercial sales.
(Sec. 4, 69 Stat. 368, 16 U.S.C. 612)
Sec. 223.10 Free use to Alaskan settlers, miners, residents, and prospectors.
Bona fide settlers, miners, residents, and prospectors for minerals
in Alaska may take free of charge green or dried timber from the
National Forests in Alaska for personal use but not for sale. Permits
will be required for green saw timber. Other material may be taken
without permit. The amount of material granted to any one person in 1
year shall not exceed 10,000 board feet of saw timber and 25 cords of
wood, or an equivalent volume in other forms. Persons obtaining
materials shall, on demand, forward to the supervisor a statement of the
quantity taken and the location from which it was removed.
(Sec. 1, 30 Stat. 35, 16 U.S.C. 477)
Sec. 223.11 Free use to other Federal agencies.
(a) National Forest timber will be granted free of charge to other
branches of the Federal Government when authorized by law. Permits may
be approved by forest officers for amounts not greater than they are
otherwise authorized to sell.
(b) Permits for timber issued hereunder shall be in accordance with
the conditions prescribed in Sec. 223.30. The permittee may be required
to report to the supervisor the amount of timber, by species, actually
cut or may be required to furnish scalers for work
[[Page 100]]
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 destory trees without advertisement.
Permission may be granted to cut, damage, or destroy trees, portions
of trees, or other forest products on National Forest System lands
without advertisement when necessary for the occupancy of a right-of-way
or other authorized use of National Forest System land. Payment for
timber of merchantable size and quality will be required at its
appraised value, but at not less than applicable minimum prices
established by Regional Foresters, and payment will be required for
young growth timber below merchantable size at its damage appraisal
value. Payment will not be required:
(a) For timber necessarily killed or cut in connection with land
uses which are of substantial benefit to the National Forests;
(b) For timber necessarily killed or cut and used by the permittee
which would have been granted free under other applicable regulations;
or
(c) For timber which will be cut by the permittee which the Forest
Service retains for sale in log or other product form.
(Sec. 1, 30 Stat. 35, as amended, 16 U.S.C. 551)
Sec. 223.13 Compliance.
Forest officers authorizing free use shall ensure that such use is
in compliance with applicable land management plans and is conducted in
a manner which protects National Forest System resource values.
(92 Stat. 1301, Pub. L. 95-465)
Sec. 223.14 Where timber may be cut.
(a) The cutting of trees, portions of trees or other forest products
may be authorized on any National Forest System lands, except for:
(1) Timber reserved by a grantor of land, during the life of such
reservation.
(2) Timber reserved from cutting under other regulations.
(3) Timber on unpatented mining claims located prior to July 23,
1955, unless the claimant has executed a waiver pursuant to section 6 of
the Act of July 23, 1955 (69 Stat. 367), or unless pursuant to a
proceeding under Section 5 of that Act, the claimant has failed to file
a verified statement or has failed to establish the validity and
effectiveness of his asserted rights.
(4) Timber on lands identified in land management plans as not
suited for timber production, except that salvage sales or sales
necessitated to protect other multiple-use values may be made.
(b) The cutting of timber on mining claims shall be conducted in
such manner as not to endanger or materially interfere with prospecting,
mining or processing operations.
(c) Timber on an unpatented claim to which the United States does
not otherwise have disposal rights may be disposed of with the written
consent of the claimant, or, in emergencies without the consent of the
claimant.
(d) Timber on an unpatented claim may be cut by the claimant only
for the actual development of the claim or for uses consistent with the
purposes for which the claim was entered. Any severance or removal of
timber, other than severance or removal to provide clearance, shall be
in accordance with plan of operations required by Part 252 of this
chapter, and with sound principles of forest management.
(e) With prior approval by the Regional Forester, timber on lands
under option by the United States or on offered lands included in an
approved land exchange agreement may be sold. Before the sale is made, a
cooperative agreement must be made with the owner of the land
authorizing the Forest Service to conduct the sale and providing for
return of stumpage receipts
[[Page 101]]
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 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
[[Page 102]]
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 the harvesting of trees or other forest products, with terms
of longer than 2 years, shall provide for cancellation in order to
prevent serious environmental damage or when they are significantly
inconsistent with land management plans adopted or revised in accordance
with section 6 of the Forest and Rangeland Renewable Resources Planning
Act of 1974, as amended. Such provision shall provide for reasonable
compensation to the purchaser for unrecovered costs incurred under the
contract and for the difference between the current contract value and
the average value of comparable National Forest timber sold during the
preceding 6-month period.
Sec. 223.41 Payment when purchaser elects government road construction.
Each contract having a provision for construction of specified roads
with total estimated construction cost in excess of $20,000 will include
a provision to ensure that if the purchaser elects Government road
construction, he pays for the timber an amount no less than the sum of
estimated road construction cost and base rate value, as defined in
Sec. 223.61.
Sec. 223.42 Transfer of effective purchaser credits.
The Forest Service may permit transfer of unused effective purchaser
credit earned after December 16, 1975, from one timber sale account to
another timber sale account of the same purchaser within the same
National Forest, provided the sale contracts provide procedures for the
use of purchaser credit. Approval for transfer shall not be granted for
amounts needed to satisfy unfulfilled payment obligations or claims for
damages due the United States. Purchaser credit transferred under this
paragraph is subject
[[Page 103]]
to such additional restrictions as may be necessary for its orderly use.
(Pub. L. 94-154, 89 Stat. 823 (16 U.S.C. 535)
[42 FR 63777, Dec. 20, 1977. Redesignated at 49 FR 2761, Jan. 23, 1984]
Sec. 223.43 Limitation on amounts of transferred purchaser credit.
(a) The amount of purchaser credit which may be transferred into a
given sale shall be limited to the difference between remaining current
contract value and the total of:
(1) Remaining base rate value needs,
(2) Salvage sale fund needs plus sale area improvement needs in
excess of base rate value needs, and
(3) Total purchaser credit limit on the given sale.
(b) This calculation shall be made as of the date of sale award for
sales made on or after January 1, 1978. For sales made prior to January
1, 1978, the calculation shall be made as of December 31, 1977, except
that if the amount actually transferred in as of December 31, 1977,
exceeds the calculated limit, the actual transfers as of that date shall
be the established limit. Purchaser credit earned on a sale and
subsequently transferred out may be replaced without regard to the
transfer in limit. Sale area improvement needs shall be based on the
original sale area betterment plan or revisions thereto approved prior
to July 1, 1976. Salvage sale fund needs shall be based on the original
salvage sale fund plan.
(Pub. L. 94-154, 89 Stat. 823 (16 U.S.C. 535)
[42 FR 63777, Dec. 20, 1977. Redesignated at 49 FR 2761, Jan. 23, 1984]
Sec. 223.44 Collection rights on contracts involved in transfer of purchase credit.
To assure protection of the United States in connection with the
implementation of this regulation, contract provisions shall not prevent
the Forest Service from carrying out collection rights, authorized by
the Federal Claims Collection Act of 1966 (80 Stat. 309), between
contracts involved in the transfer of purchaser credit. Such claims
against the contract receiving the transferred purchaser credit shall be
limited to the amount transferred.
(Pub. L. 94-154, 89 Stat. 823 (16 U.S.C. 535)
[42 FR 63777, Dec. 20, 1977. Redesignated at 49 FR 2761, Jan. 23, 1984]
Sec. 223.45 Definitions applicable to transfer of purchaser credit.
As used in Secs. 223.42 and 223.43, the term Purchaser includes any
single individual, corporation, company, firm, partnership, joint
venture, or other business entity or the successor in interest of any of
the foregoing business entities having timber sale contracts on the same
National Forest. The term National Forest shall be considered as a unit
of the National Forest System, regardless of how it was established,
which maintains a separate identity with respect to the distribution of
receipts earned thereon to the States and counties. The term Effective
Purchaser Credit means unused purchaser credit which does not exceed
current contract value minus base rate value. The term base rate value
is the sum of the products of base rates and estimated remaining
unscaled (unreported on tree measurement contracts) volumes by species
of timber included in a timber sale contract.
(Pub. L. 94-154, 89 Stat. 823 (16 U.S.C. 535)
[42 FR 63777, Dec. 20, 1977. Redesignated at 49 FR 2761, Jan. 23, 1984]
Sec. 223.46 Adjustment of contract termination date.
Timber sale contracts may provide for adjustment of the termination
date to provide additional time to compensate for delays in road
construction and timber removal due to those causes beyond the
purchaser's control, which may include but are not limited to acts of
God, acts of the public enemy, acts of the Government, labor disputes,
fires, insurrections or floods.
Sec. 223.47 Date of completion of permanent road construction.
(a) The date of completion of permanent road construction
obligations as set forth in the Notice of Sale shall be incorporated
into the timber sale contract.
[[Page 104]]
(b) This date is applicable to construction by both the Forest
Service and the timber purchaser.
(c) The date is not applicable to roads not needed by the purchaser
for timber removal.
(d) The date for completion may be revised, if additional time is
needed, under guidelines provided by the Chief, Forest Service,
including but not limited to (1) default of contractors or (2) design
changes, physical changes, or catastrophic damages which necessitate
modification of specified road construction work.
(e) If Forest Service failure to perform results in delay in road
completion, the termination date shall be adjusted in accordance with
the contract term adjustment provisions of the timber sale contract. If
there is substantial delay in performance by the Forest Service, the
contract shall provide that rates of payment may be redetermined, at the
request of the purchaser, in accordance with guidelines established by
the Chief, Forest Service.
(f) If the purchaser retains responsibility for road construction,
the date of completion for permanent roads may be modified to conform to
the approved plan of operation.
Sec. 223.48 Restrictions on export and substitution of unprocessed timber.
(a) Contracts for the sale of unprocessed timber from National
Forest System lands located west of the 100th meridian in the contiguous
48 States and Alaska, awarded before August 20, 1990, shall include
provisions implementing the Secretary's timber export and substitution
regulations at subpart D of this part in effect prior to that data. Such
contracts shall also require purchasers to:
(1) Submit annually, until all unprocessed timber is accounted for,
a certified report on the disposition of any unprocessed timber
harvested from the sale including a description of unprocessed timber
which is sold, exchanged or otherwise disposed of to another person and
a description of the relationship with the other person;
(2) Submit annually, until all unprocessed timber from the sale is
accounted for, a certified report on the sale of any unprocessed timber
from private lands in the tributary area which is exported or sold for
export; and
(3) Maintain records of all such transactions involving unprocessed
timber and to make such records available for inspection and
verification by the Forest Service for up to three (3) years after the
sale is terminated.
(b) Contracts for the sale of unprocessed timber from National
Forest System lands located west of the 100th meridian in the contiguous
48 States, awarded on or after August 20, 1990, shall include provisions
implementing the requirements of the Forest Resources Conservation and
Shortage Relief Act of 1990 (16 U.S.C. 620 et seq.).
(c) The reporting and recordkeeping procedures in this section
constitute information collection requirements as defined in 5 CFR part
1320. These requirements have been approved by the Office of Management
and Budget and assigned clearance number 0596-0021.
[56 FR 65842, Dec. 19, 1991]
Sec. 223.49 Downpayment.
(a) For the purposes of this section, the terms listed in this
paragraph shall have the following meaning:
(1) Total bid value is the sum of the products obtained by
multiplying the rate the purchaser bid for each species by the estimated
volume listed in the contract.
(2) Ineffective purchaser credit is that portion of the credit
earned, pursuant to a specific Forest Service timber sale contract for
construction of specified roads, or for other purposes in such contract,
that exceeds the current contract value, minus base rate value as
defined in that contract and, thus, is an amount that cannot be applied
toward stumpage charges.
(3) Bid premium is the amount in excess of the advertised value that
a purchaser bids for timber offered.
(4) Lump sum timber sales are premeasured sales where the entire
value of the sale is paid in one payment at time of release for cutting.
(5) Affiliate. Concerns or individuals are affiliates if directly or
indirectly, either one controls or has the power to control the other,
or a third party controls or has the power to control both. In
determining whether or not affiliation exists, the Forest Service shall
[[Page 105]]
consider all appropriate factors, including, but not limited to, common
ownership, common management, and contractual relationships.
(b) Timber sale contracts shall include provisions that require
purchasers to make a downpayment in cash or by application of earned
effective purchaser credit at the time a timber sale contract is
executed.
(c) The minimum downpayment shall be equivalent to 10 percent of the
total advertised value of each sale, plus 20 percent of the bid premium,
except in those geographic areas where the Chief of the Forest Service
determines that it is necessary to increase the amount of the
downpayment in order to deter speculation. To determine the amount of
the downpayment due on a sale where the timber is measured in units
other than board feet, the Forest Service shall convert the measure to
board feet, using appropriate conversion factors with any necessary
adjustment.
(d) On scaled sales, a purchaser cannot apply the amount deposited
as a downpayment to cover other obligations due on that sale until
stumpage value representing 25 percent of the total bid value of the
sale has been charged and paid for. On tree measurement sales, a
purchaser cannot apply the amount deposited as a downpayment to cover
other obligations due on that sale until stumpage value representing 25
percent of the total bid value of the sale is shown on the timber sale
statement of account to have been cut, removed, and paid for. For lump
sum sales, the downpayment amount may be applied to payment for release
of the single payment unit.
(e) A purchaser or any affiliate of that purchaser, awarded a Forest
Service timber sale contract must meet the additional downpayment
requirements of paragraph (g) of this section under the following
circumstances:
(1) The purchaser or its affiliate after September 29, 1988 has
failed to perform in accordance with the terms of a Forest Service or
Bureau of Land Management timber sale contract which results in
notification by a Contracting Officer that a contract has expired
uncompleted or is terminated for cause; and
(2) The estimated value of the unscaled timber on scaled sales, or
the estimated value of the timber outstanding on tree measurement sales,
included in those terminated or expired contracts exceeds $100,000, and
(3) Unpaid damages claimed by the Government remain outstanding
prior to award of the new sale at issue and corrective action has not
been taken to avoid future deficient performance.
(f) A subsequent final determination by the Contracting Officer or
by a court of competent jurisdiction that a contract was improperly
classified under the criteria in paragraph (e) of this section will
result in the refund or credit of any unobligated portion of the amount
of downpayment exceeding that required by paragraphs (c) and (d) and the
limitations of paragraph (h) on application of downpayment shall no
longer apply.
(g) Notwithstanding the provisions of paragraphs (c) and (d) of this
section, a purchaser meeting the criteria of paragraph (e) of this
section must make a minimum downpayment equal to 20 percent of the total
advertised value of that sale, plus 40 percent of the total bid premium.
This higher downpayment requirement applies throughout the National
Forest System, except in those areas where the Chief of the Forest
Service determines, before advertisement of the sale, that another
downpayment rate is necessary to achieve the management objectives of
the National Forest System.
(1) In calculating bid premiums for the downpayment requirement, the
Forest Service shall not include the portion of the bid premium that
offsets ineffective purchaser credit.
(2) To determine the amount of the downpayment due on a sale where
the timber is measured in units other than board feet, the Forest
Service shall convert the measure to board feet, using appropriate
conversion factors with any necessary adjustments.
(h) A purchaser subject to the additional downpayment requirements
of paragraph (g) of this section cannot apply the amount deposited as a
downpayment to other uses until:
(1) On scaled sales, the estimated value of the unscaled timber is
equal to
[[Page 106]]
or less than the amount of the downpayment; or
(2) On tree measurement sales, the estimated value remaining to be
cut and removed as shown on the timber sale statement of account is
equal to or less than the amount of the downpayment.
(i) For the purpose of releasing funds deposited as downpayment by a
purchaser subject to paragraph (f) of this section, the Forest Service
shall compute the estimated value of timber as follows:
(1) On scaled sales, the estimated value of the unscaled timber is
the sum of the products obtained by multiplying the current contract
rate for each species by the difference between the advertised volume
and the volume that has been scaled of that species.
(2) On tree measurement sales, the estimated value of the timber
outstanding (that not shown on the timber sale statement of account as
cut and removed) is the sum of the products obtained by multiplying the
current contract rate for each species by the difference between the
advertised volume and the volume that has been shown on the timber sale
statement to have been cut and removed of the species. The current
contract rate for each species is that specified in each Forest Service
timber sale contract.
(j) In order to deter speculation, the Chief of the Forest Service
may increase the period for retention of the downpayment for future
contracts subject to such criteria as the Chief may adopt after giving
the public notice and opportunity to comment.
[50 FR 41500, Oct. 11, 1985, as amended at 53 FR 33131, Aug. 30, 1988;
56 FR 36103, July 31, 1991]
Sec. 223.50 Periodic payments.
(a) For the purposes of this section, the following terms have the
meaning given:
(1) Total contract value is the product of the estimated volume of
the sale multiplied by the rates bid by the purchaser. Total contract
value excludes required deposits and is determined at bid date.
(2) Current contract value is the sum of the products of the current
contract rates and, in a scaled sale, estimated remaining unscaled
volume or, in a tree measurement sale, the estimated remaining
quantities by species of included timber meeting utilization standards.
(3) Normal operating season is the period so specified in a timber
sale contract.
(4) Periodic payment(s) is/are amount(s) specified in a timber sale
contract that a purchaser must pay by the periodic payment determination
date(s) unless reduced by amounts paid as stumpage for volume removed.
(5) A periodic payment determination date is a date specified in a
timber sale contract upon which the Forest Service will compare the
payments made by the timber sale purchaser for timber charges
(stumpage), exclusive of required deposits, with the periodic payment
amount required as of that date in the contract.
(b) Except for lump sum sales, each timber sale contract of more
than one full normal operating season shall provide for periodic
payments. The number of periodic payments required will be dependent
upon the number of normal operating seasons within the contract, but
shall not exceed two such payments during the course of the contract.
Periodic payments must be made by the periodic payment determination
date, except that the amount of the periodic payment shall be reduced to
the extent that timber has been removed and paid for by the periodic
payment determination date. Should the payment fall due on a date other
than normal billing dates, the contract shall provide that the payment
date will be extended to coincide with the next timber sale statement of
account billing date.
(1) At a minimum, each such contract shall require an initial
periodic payment at the midpoint between the specified road completion
date and the termination date. If there is no road construction
requirement, payment shall be due at the midpoint between award date and
the termination date.
(2) Contracts exceeding 2 full operating seasons shall require an
additional periodic payment to be due no later than the midpoint of the
last normal operating season or 12 months from the initial periodic
payment whichever date is first.
[[Page 107]]
(c) Each timber sale contract shall require the initial periodic
payment to equal 35 percent of the total contract value or 50 percent of
the bid premium, whichever is greater. The amount of this periodic
payment will be reduced if the payment would result in the purchaser's
credit balance for timber charges exceeding the current contract value.
(d) Where an additional periodic payment is required by the timber
sale contract, this payment will equal 75 percent of the total contract
value. The amount of this periodic payment will be reduced if the
payment would result in the purchaser's credit balance for timber
charges exceeding the current contract value.
(e) Periodic payment determination dates that have not been reached
shall be adjusted when contract term adjustments are granted under 36
CFR 223.46 or market-related contract term additions are granted under
36 CFR 223.52. Periodic payment determination dates shall not be
adjusted when contract term extension is granted under the general
authority of 36 CFR 223.115.
(f) In accordance with 36 CFR 223.52(a), no contract executed before
July 31, 1991, shall be modified to allow for market-related contract
term additions unless the purchaser makes a written request to the
Contracting Officer by December 1, 1991, for a simultaneous modification
implementing the periodic payment requirements of this section. The
midpoint payment clause in contracts executed before July 31, 1991, is
not the ``periodic payment requirement'' mandated by 36 CFR 223.52(a).
[56 FR 36104, July 31, 1991, as amended at 56 FR 55822, Oct. 30, 1991]
Sec. 223.51 Bid monitoring.
Each Regional Forester shall monitor bidding patterns on timber
sales to determine if speculative bidding is occurring or if Purchasers
are bidding in such a way that they would be unable to perform their
obligations under the timber sale contract. A Regional Forester shall
propose to the Chief changes in servicewide timber sale procedures, as
they appear necessary, to discourage speculative bidding.
[50 FR 41500, Oct. 11, 1985]
Sec. 223.52 Market-related contract term additions.
(a) Contract provision. (1) Except as provided in paragraph (a)(3)
of this section, each timber sale contract exceeding 1 year in length
shall contain a provision for the addition of time to the contract term,
under the following conditions:
(i) The Chief of the Forest Service has determined that adverse wood
products market conditions have resulted in a drastic reduction in wood
product prices applicable to the sale; and
(ii) The purchaser makes a written request for additional time to
perform the contract.
(2) The contract term addition provision of the contract must
specify the index to be applied to each sale. The Forest Supervisor
shall determine, and select from paragraph (b) of this section, the
index to be used for each sale based on the species and product
characteristics, by volume, being harvested on the sale. The index
specified shall represent more than one-half of the advertised volume.
(3) A market-related contract term addition provision shall not be
included in contracts where the sale has a primary objective of
harvesting timber subject to rapid deterioration.
(b) Determination of drastic wood product price reductions. (1) The
Forest Service shall monitor and use Producer Price Indices, as prepared
by the Department of Labor, Bureau of Labor Statistics (BLS), adjusted
to a constant dollar base, to determine if market-related contract term
additions are warranted.
(i) The Forest Service shall monitor and use only the following
indices:
------------------------------------------------------------------------
Industry
BLS producer price index code
------------------------------------------------------------------------
Hardwood Lumber............................................ 2421# 1
Eastern Softwood Lumber.................................... 2421# 3
Western Softwood Lumber.................................... 2421# 4
Wood Chips................................................. 2421# 5
------------------------------------------------------------------------
(ii) Preliminary index values will be revised when final index
values become available, however, determination of a
[[Page 108]]
qualifying quarter will not be revised when final index values become
available.
(2) The Chief of the Forest Service shall determine that a drastic
reduction in wood product prices has occurred when, for 2 or more
consecutive quarters, the applicable adjusted price index is less than
85 percent of the average of such adjusted index for the 4 highest of
the 8 calendar quarters immediately prior to the qualifying quarter. A
qualifying quarter is a quarter where the applicable adjusted index is
more than 15 percent below the average of such index for the 4 highest
of the previous 8 calendar quarters. Qualifying quarter determinations
will be made using the Producer Price Indices for the months of March,
June, September, and December.
(3) A determination, made pursuant to paragraph (b)(2) of this
section, that a drastic reduction in wood product prices has occurred,
shall constitute a finding that the substantial overriding public
interest justifies the contract term addition.
(c) Granting market-related contract term additions. When the Chief
of the Forest Service determines, pursuant to this section, that a
drastic reduction in wood product prices has occurred, the Forest
Service is to notify affected timber sale purchasers. For any contract
which has been awarded and has not been terminated, the Forest Service,
upon a purchaser's written request, will add 1 year to the contract's
terms, except as provided in paragraphs (c)(1) through (4) of this
section. This 1-year addition includes time outside of the normal
operating season.
(1) Additional contract time may not be granted for those portions
of the contract which have a required completion date or for those
portions of the contract where the Forest Service determines that the
timber is in need of urgent removal or that timber deterioration or
resource damage will result from delay.
(2) For each additional consecutive quarter, in which a contract
qualifies for a market-related contract term addition, the Forest
Service will, upon the purchaser's written request, add an additional 3
months during the normal operating season to the contract.
(3) No more than twice the original contract length or 3 years,
whichever is less, shall be added to a contract's term by market-related
contract term addition.
(4) In no event shall a revised contract term exceed 10 years as a
result of market-related contract term additions.
(d) Recalculation of periodic payments. Where a contract is
lengthened as a result of market conditions, any subsequent periodic
payment dates shall be delayed 1 month for each month added to the
contract's term.
[63 FR 24114, May 1, 1998]
Appraisal and Pricing
Sec. 223.60 Determining fair market value.
The objective of Forest Service timber appraisals is to determine
fair market value. Fair market value is estimated by such methods as are
authorized by the Chief, Forest Service, through issuance of agency
directives (36 CFR 200.4). Valid methods to determine fair market value
include, but are not limited to, transaction evidence appraisals,
analytical appraisals, comparison appraisals, and independent estimates
based on average investments. Pertinent factors affecting market value
also considered include, but are not limited to, prices paid and
valuations established for comparable timber, selling value of products
produced, estimated operating costs, operating difficulties, and quality
of timber. Considerations and valuations may recognize and adjust for
factors which are not normal market influences.
[61 FR 5685, Feb. 14, 1996]
Sec. 223.61 Establishing minimum stumpage rates.
The Chief, Forest Service, shall establish minimum stumpage rates,
i.e., ``base rates,'' for species and products on individual National
Forests, or groups of National Forests. Timber shall be sold for
appraised value or minimum stumpage rates, whichever is higher. No
timber may be sold or cut under timber sale contracts for less than
minimum stumpage rates except
[[Page 109]]
to provide for the removal of insect-infested, diseased, dead or
distressed timber or in accordance with contract provisions specifically
providing for catastrophically-affected timber and incidental amounts of
material not meeting utilization standards of the timber sale contract.
For any timber sale offering where deposits are to be required for
reforestation under the Act of June 9, 1930, as amended (46 Stat. 527;
16 U.S.C. 576-576b) which exceed the value of the established minimum
stumpage rates, the minimum rates may be increased by the approving
officer as necessary to the amount of such required reforestation
deposits and a minimum deposit to the Treasury. Minimum rates in timber
sale contracts will not be set higher than established minimum rates for
purposes other than assuring adequate funds for reforestation.
Sec. 223.62 Timber purchaser road construction credit.
Appraisal may also establish stumpage value as if unconstructed
roads or other developments needed by the purchaser for removal of the
timber were in place. When timber is appraised and sold on such basis,
purchaser credit for road construction, not to exceed the estimated
construction cost of such roads or other developments specified in the
timber sale contract, shall, when such construction is accomplished by
purchaser, be deducted from stumpage payments made by or due from
purchaser under the timber sale contract for other than minimum stumpage
rates and required deposits for slash disposal and road maintenance. As
used in this section estimated construction costs means the total cost
of constructing all permanent roads specified in the timber sale
contract, estimated as if construction is to be accomplished by an
independent contractor who is not the timber purchaser. In determining
the purchaser credit amount applicable against timber payments, the
estimated construction cost may be reduced for the effect of differences
in applicable wage rates.
Sec. 223.63 Advertised rates.
Timber shall be advertised for sale at its appraised value, or its
appraised value plus specified road costs. In either event, the
advertised rates shall be not less than minimum stumpage rates, except
that sales of insect-infested, diseased, dead, or distressed timber may
be sold at less than minimum rates when harvest of such timber is
necessary to protect or improve the forest or prevent waste of useable
wood fiber.
Sec. 223.64 Appraisal on a lump-sum value or rate per unit of measure basis.
Timber may be appraised and sold at a lump-sum value or at a rate
per unit of measure which rate may be adjusted during the period of the
contract and as therein specified in accordance with formulas or other
equivalent specifications for the following reasons:
(a) Variations in lumber or other product value indices between the
price index base specified in the contract and the price index actually
experienced during the cutting of the timber;
(b) Variance between advertised rates and rates redetermined by
appraisal at dates specified in the contract;
(c) Variance between redetermined rates and rates appropriate for
changes in costs or selling values subsequent to the rate
redetermination which reduce conversion value to less than such
redetermined rates; and
(d) Substantial loss of value due to physical deterioration of green
timber or other physical damage to the sale area or access to the
timber.
Sec. 223.65 Appraisal of timber for land exchange; right-of-way, or other authorized use.
The value of timber in land exchange or the value of timber required
to be cut for occupancy of a right-of-way or other authorized use of
National Forest System land for which payment will be made is to be
determined by the appraisal methods in Sec. 223.60 of this part.
[61 FR 48625, Sept. 16, 1996]
[[Page 110]]
Sec. 223.66 [Reserved]
Advertisement and Bids
Sec. 223.80 When advertisement is required.
Except as otherwise provided in this part each sale in which the
appraised value of the timber or other forest products exceeds $10,000
will be made only after advertisement for a period of 30 days or, if in
the opinion of the officer authorizing the sale, the quantity, value or
other conditions justify, a longer period; and any sale of smaller
appraised value will be advertised or informal bids solicited from
potential purchasers if, in the judgment of the officer authorizing the
sale, such action is deemed advisable.
Sec. 223.81 Shorter advertising periods in emergencies.
In emergency situations where prompt removal of timber included in a
sale is essential to avoid deterioration or to minimize the likelihood
of the spread of insects, the approving officer may authorize shortening
the formal advertising period to not less than 7 days. In other
emergency situations, or for timber sold under 36 CFR 223.2 the Regional
Forester or Chief may authorize shortening the formal advertising period
to not less than 7 days.
[44 FR 73029, Dec. 17, 1979. Redesignated at 49 FR 2761, Jan. 23, 1984]
Sec. 223.82 Contents of advertisement.
(a) A timber sale advertisement shall include the following
information:
(1) The location and estimated quantities of timber or other forest
products offered for sale.
(2) The time and place at which sealed bids will be opened in public
or at which sealed bids will be opened in public followed by an oral
auction.
(3) A provision asserting the agency's right to reject any and all
bids.
(4) The place where complete information on the offering may be
obtained.
(5) Notice that a prospectus is available to the public and to
interested potential bidders.
(b) For each sale outside of the State of Alaska which includes a
provision for purchaser credit for construction of permanent roads with
a total estimated construction cost exceeding $20,000, a timber sale
advertisement shall also include:
(1) The total estimated construction cost of the permanent roads.
(2) A statement extending to small business concerns qualified for
preferential bidding on timber sales, under the Small Business Act, as
amended, and the regulations issued thereunder, the option to elect,
when submitting a bid, to have all permanent roads constructed by the
Forest Service.
(3) Notice that the prospectus referred to in paragraph (a)(5) of
this section contains additional information concerning the options to
have all permanent roads constructed by the Forest Service.
(c) When timber or other forest products are offered for
preferential bidding in accordance with the Small Business Act, as
amended, the advertisement shall state that the offering is set-aside
for competitive bidding by small business concerns.
[50 FR 32696, Aug. 14, 1985]
Sec. 223.83 Contents of prospectus.
(a) A timber sale prospectus shall specify, as a minimum:
(1) The minimum acceptable stumpage or other unit prices and the
amount or rate of any additional required deposits.
(2) The amount of bid guarantee which must accompany each bid.
(3) The amount of cash deposit or down payment to be made promptly
by the successful bidder.
(4) The location and area of the sale, including harvest acreage.
(5) The estimated volumes, quality, size or age class of timber.
(6) A description of special logging requirements for the sale.
(7) The status of marking at time of advertisement.
(8) The method of bidding which will be used.
(9) The contract form to be used.
(10) The estimated deposits for reforestation and stand improvement
work.
(11) The contract termination date and normal operating period.
(12) The date and amount of periodic payments which are to be made.
[[Page 111]]
(13) The discount of payment rates for early harvest, if
appropriate.
(14) The amount of performance bond required.
(15) The road standards for specified roads to be constructed.
(16) The estimated road construction cost and purchaser credit
limit.
(17) For deficit sales,
(i) An estimate of insufficient value at advertised rates to permit
the purchaser to apply the full amount of purchaser credit.
(ii) The amount of Forest Service funds or materials to be used to
offset the deficit.
(18) Status of financial assistance available to small business
purchasers.
(19) Notification of preferential award to small business firms and
certification requirements for set-aside sales.
(20) Notification of log export and substitution restrictions.
(21) Notification of Equal Employment Opportunity compliance review
requirements.
(22) General or special information concerning the sale which are
deemed appropriate to furnish sufficient information to prospective
purchasers to warrant further investigation.
(b) For each advertisement which extends to small concerns the
option to have all permanent roads constructed by the Forest Service,
the prospectus shall also include:
(1) The road standards applicable to construction of permanent roads
or a reference to the source of such information.
(2) The date of final completion for all permanent roads.
(3) A statement explaining how the Forest Service intends to perform
road construction by force account or contract, if the high bidder
elects Forest Service construction.
(4) The maximum period for which timber sale contract award will be
delayed while the Forest Service seeks a satisfactory construction bid.
The period stated shall not exceed 120 days unless the Regional Forester
approves a longer period.
[50 FR 32696, Aug. 14, 1985]
Sec. 223.84 Small business bid form provisions on sales with purchaser road construction credits.
For each sale described in Sec. 223.82(b), the bid form must include
provision for a small business concern:
(a) To elect road construction by the Forest Service and where such
election is made;
(b) To certify as to small business status, and
(c) To indicate knowledge--
(1) Of the road construction completion date,
(2) That the Forest Service expects to contract for road
construction with a third party,
(3) That the timber sale contract will not be awarded unless a
satisfactory road construction bid is received or, if the Forest Service
fails to receive such a bid within a maximum period stated in the
advertisement, the bidder agrees to perform road construction,
(4) That the Forest Service may extend the maximum award delay time
by the amount of time needed to confirm the bidder's size status or by
any time in excess of 40 days from timber sale bid opening needed to
begin solicitation of construction bids, and
(5) That if the Forest Service extends the maximum award delay
period because solicitation of the road contract is delayed, the bidder
may withdraw his bid without penalty.
[42 FR 28252, June 2, 1977. Redesignated at 49 FR 2761, Jan. 23, 1984.
Redesignated and amended at 50 FR 32696, Aug. 14, 1985]
Sec. 223.85 Noncompetitive sale of timber.
(a) Forest officers may sell, within their authorization, without
further advertisement, at not less than appraised value, any timber
previously advertised for competitive bids but not sold because of lack
of bids and any timber on uncut areas included in a contract which has
been terminated by abandonment, cancellation, contract period
expiration, or otherwise if such timber would have been cut under the
contract. This authority shall not be utilized if there is evidence of
competitive interest in the product.
(b) Extraordinary conditions, as provided for in 16 U.S.C. 472(d),
are defined
[[Page 112]]
to include the potential harm to natural resources, including fish and
wildlife, and related circumstances arising as a result of the award or
release of timber sale contracts pursuant to section 2001(k) of Public
Law 104-19 (109 Stat. 246). Notwithstanding the provisions of paragraph
(a) or any other regulation in this part, for timber sale contracts that
have been or will be awarded or released pursuant to section 2001(k) of
Public Law 104-19 (109 Stat. 246), the Secretary of Agriculture may
allow forest officers to, without advertisement, modify those timber
sale contracts by substituting timber from outside the sale area
specified in the contract for timber within the timber sale contract
area.
[61 FR 14621, Apr. 3, 1996]
Sec. 223.86 Bid restriction on resale of noncompleted contract.
(a) Except as otherwise provided in this section, no bid will be
considered in the resale of timber remaining from any uncompleted timber
sale contract from any person, or from an affiliate of such person, who
failed to complete the original contract:
(1) Because of termination for purchaser's branch or; or
(2) Through failure to cut designated timber on portions of the sale
area by the termination date, unless acceptance of such bid is
determined to be in the public interest.
(b) The no bid restriction in the preceding paragraph:
(1) Shall only apply when 50 percent or more of the timber included
in the resale is timber remaining from the uncompleted contract and the
resale is advertised within 3 years of the date the uncompleted contract
terminated;
(2) When imposed because of failure to cut designated timber on
portions of the sale area by the termination date, shall not apply to
resales of timber for which the original contract was awarded prior to
April 30, 1972, unless the contract is extended thereafter; and
(3) Shall not apply to:
(i) Resales of timber within a sustained yield unit unless
competition may be invited under the policy statement for the unit,
(ii) Resales of timber on contract which would ordinarily have been
awarded prior to April 30, 1972, if award was delayed through no fault
of the purchaser, and
(iii) Resales of timber on contracts not extended because of
environmental considerations.
(c) Where a third-party agreement has been approved in accordance
with Sec. 223.114; the original purchaser shall not be affected by this
section unless such purchaser is an affiliate of the third party.
(d) As used in this section, person includes any individual,
corporation, company, association, firm, partnership, society, joint
stock company, or other business entity or the successor in interest of
any of the foregoing business entities. A person is an affiliate when
either directly or indirectly:
(1) A person controls or has the power to control the other, or
(2) A third person or persons control or has the power to control
both.
[42 FR 28252, June 2, 1977. Redesignated at 49 FR 2761, Jan. 23, 1984
and 50 FR 32696, Aug. 14, 1985]
Sec. 223.87 Requirements of bidders concerning exports.
In order to have a bid considered responsive for a sale of timber
from National Forest System lands, each bidder must certify that the
bidder is eligible to purchase timber from National Forest System lands
consistent with the Forest Resources Conservation and Shortage Relief
Act of 1990 (16 U.S.C. 620, et seq.) and its implementing regulations at
36 CFR part 223, and that the bidder's timber purchase and export
activities are in compliance with the timber export and substitution
provisions of the Forest Resources Conservation and Shortage Relief Act
of 1990 (16 U.S.C. 620, et seq.) and its implementing regulations at 36
CFR part 223.
[60 FR 46920, Sept. 8, 1995]
Sec. 223.88 Bidding methods.
(a) Competitive sales of National Forest timber shall be offered
through either sealed or oral auction bidding. The method chosen for
each sale will:
(1) Insure open and fair competition,
(2) Insure that the Federal Government receives not less than fair
market value for the public resource,
[[Page 113]]
(3) Consider the economic stability of communities whose economies
are dependent upon National Forest timber, and
(4) Be consistent with the objectives of the National Forest
Management Act of 1976, as amended, and other Federal Statutes.
(b) As a prerequisite to participation in an oral auction, bidders
shall submit a written sealed bid at least equal to the minimum
acceptable bid prices specified in the prospectus. No price subsequently
bid at oral auction shall be accepted if it is less than the written
sealed bid.
(c) The Chief, Forest Service, shall specify the use of sealed bids
or a mix of bidding methods in areas where he has reasonable belief that
collusive bidding may be occurring or where he determines that less than
normal competitive bidding is occurring.
(d) Sealed bids shall be used for sales within Federal Sustained
Yield Units, except where the policy statement for the Unit restricts
purchasers of timber within the Unit from buying National Forest timber
outside the Unit and the Chief determines that oral bidding will protect
individual communities within the Unit.
(e) The Chief, Forest Service, may authorize departures from the
requirements of paragraphs (c) and (d) of this section when he
determines that departures are necessary to protect the public interest.
(f) The Chief, Forest Service, may authorize the testing and
evaluation of alternative bidding methods for National Forest timber.
[43 FR 21882, May 22, 1978. Redesignated at 49 FR 2761, Jan. 23, 1984.
Further redesignated and amended at 50 FR 32696, Aug. 14, 1985]
Sec. 223.89 Relation to other bidders.
Any bidder or applicant for a sale may be required to furnish a
statement of his relation to other bidders or operators, including, if
desired by the supervisor or Regional Forester, a certified statement of
stockholders or members of the firm, and the holders of bonds, notes or
other evidences of indebtedness, so far as known, so that the statement
will show the extent of the interest of each in the bidder or applicant.
[44 FR 73029, Dec. 17, 1979. Redesignated at 49 FR 2761, Jan. 23, 1984
and 50 FR 32696, Aug. 14, 1985]
Award of Contracts
Sec. 223.100 Award to highest bidder.
The sale of advertised timber shall be awarded to the responsible
bidder submitting the highest bid that conforms to the conditions of the
sale as stated in the prospectus unless:
(a) Determination is made to reject all bids.
(b) Two or more bidders, all of whom meet the requirements, submit
equal bids which are the highest bids, in which case award may be by the
drawing of lots. Equal bids from parties having direct or indirect
common control or association in logging, processing or marketing may be
consolidated to the extent deemed necessary by the awarding officer in
order to give to any others who have bid the same amount an equitable
opportunity in the drawing of lots.
(c) The highest bidder is notoriously or habitually careless with
fire.
(d) Monopoly, injurious to the public welfare, would result from the
control of large amounts of public or of public and private timber.
(e) The high bidder has elected Forest Service road construction in
response to an advertisement extending such an option, the Forest
Service cannot perform the construction and in response to solicitation
has not received a satisfactory bid for such construction within the
period stated in the prospectus and the high timber sale bidder is
unwilling to perform the construction.
[44 FR 73029, Dec. 17, 1979. Redesignated at 49 FR 2761, Jan. 23, 1984,
and amended at 50 FR 32696, Aug. 14, 1985; 53 FR 33132, Aug. 30, 1988]
Sec. 223.101 Determination of purchaser responsibility.
(a) A Contracting Officer shall not award a timber sale contract
unless that officer makes an affirmative determination of purchaser
responsibility. In the absence of information clearly indicating that
the prospective
[[Page 114]]
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.
(d) Affiliated concerns, as defined in Sec. 223.49(a)(5) of this
subpart are normally considered separate entities in determining whether
the concern that is to perform the contract meets the applicable
standards for responsibility. However, the Contracting Officer shall
consider an affiliate's past performance and integrity when they may
adversely affect the prospective purchaser's responsibility.
[53 FR 33132, Aug. 30, 1988]
Sec. 223.102 Procedures when sale is not awarded to highest bidder.
If the highest bid is not accepted and the sale is still deemed
desirable, all bids may be rejected and the timber readvertised; or, if
the highest bidder cannot meet the requirements under which the timber
was advertised or the withholding of award to him is based on one or
more of paragraphs (c), (d), and (e) of Sec. 223.100, award at the
highest price bid may be offered to the next highest qualified bidder or
to the other qualified bidders in order of their bids until the award is
accepted by one or refused by all of the qualified bidders.
(92 Stat. 1301, Pub. L. 95-465)
[44 FR 73029, Dec. 17, 1979. Redesignated at 49 FR 2761, Jan. 23, 1984,
and 53 FR 33132, Aug. 30, 1988]
Sec. 223.103 Award of small business set-aside sales.
If timber is advertised as set aside for competitive bidding by
small business concerns, award will be made to the highest bidder who
qualifies as a small business concern and who has not been determined by
the Small Business Administration to be ineligible for preferential
award of set-aside sales. If there are no qualified small business
bidders any readvertisement shall be without restriction on the size of
bidders.
(92 Stat. 1301, Pub. L. 95-465)
[44 FR 73029, Dec. 17, 1979. Redesignated at 49 FR 2761, Jan. 23, 1984,
and 53 FR 33132, Aug. 30, 1988]
Contract Administration
Sec. 223.110 Delegation to regional forester.
The Chief, Forest Service, after approval of conditions of sale, may
authorize Regional Foresters formally to
[[Page 115]]
execute timber sale contracts and related papers in sales exceeding the
volume which the Regional Forester has been authorized to sell.
Sec. 223.111 Administration of contracts in designated disaster areas.
This section is to implement the provisions of section 242 (a), (b),
and (c) of the Disaster Relief Act of 1970 (84 Stat. 1956) which relate
to contracts for the sale of National Forest timber in connection with
areas damaged by major disaster as designated by the President pursuant
to the Act.
(a) Where an existing contract for the sale of National Forest
timber does not provide relief from major physical change not due to
purchaser's negligence prior to approval of construction of any section
of specified road or other specified development facility and, as a
result of a major disaster in a designated area a major physical change
results in additional construction work by the purchaser in connection
with such a road or facility, the United States shall bear such
increased construction cost if, as determined by the Chief, Forest
Service, the estimated cost is--
(1) More than $1,000 for sales under 1 million board feet, or
(2) More than $1 per thousand board feet for sales of 1 to 3 million
board feet, or
(3) More than $3,000 for sales over 3 million board feet.
(b) Where the Chief, Forest Service, determines that damages are so
great that restoration, reconstruction, or construction is not practical
under the cost-sharing arrangement in paragraph (a) of this section, he
may allow cancellation of the contract notwithstanding provisions
therein or in Sec. 223.116.
(c) The Chief, Forest Service, is authorized to reduce to 7 days the
minimum time to advertise the sale of National Forest timber whenever he
determines that--
(1) The sale of such timber will assist in the construction of any
area of a State damaged by a major disaster,
(2) The sale of such timber will assist in sustaining the economy of
such area, or
(3) The sale of such timber is necessary to salvage the value of
timber damaged in such major disaster or to protect undamaged timber.
(d) Any request for relief under paragraph (a) or (b) of this
section shall be made in writing to the Forest Supervisor having
administrative responsibility for the land involved.
(Sec. 242 (a), (b), and (c), 84 Stat. 1756, 42 U.S.C. 4461)
Sec. 223.112 Modification of contracts.
Timber sale contracts may be modified only when the modification
will apply to unexecuted portions of the contract and will not be
injurious to the United States. Modifications may be made by the officer
approving the sale, by his successor, or by his superior, except as
provided in Sec. 223.110.
Sec. 223.113 Modification of contracts to prevent environmental damage or to conform to forest plans.
Timber sale contract, permits, and other such instruments may be
modified to prevent environmental damage or to make them consistent with
amendments or revisions of land and resource management plans adopted
subsequent to award or issuance of a timber sale contract, permit, or
other such instrument. Compensation to the purchaser, if any, for
modifications to a contract shall be made in accordance with provisions
set forth in the timber sale contract. When determining compensation
under a contract, timber payment rates shall be redetermined in
accordance with appraisal methods in Sec. 223.60 of this subpart.
[61 FR 64816, Dec. 9, 1996]
Sec. 223.114 Acquisition by third party.
No agreement permitting a third party to acquire the rights of a
purchaser under a timber sale contract may be recognized and approved by
the Forest Service except in writing, signed by the officer approving
the sale, his successor, or superior officer. Such approval shall not
relieve the purchaser of his responsibilities or liabilities under the
timber sale contract and may be given only if--
(a) The third party is acceptable to the Forest Service as a
purchaser of timber under the conditions and requirements then in effect
for similar
[[Page 116]]
timber sales and assumes in writing all of the obligations to the Forest
Service under the terms of the timber sale contract as to the
uncompleted portion thereof, or
(b) The rights are acquired in trust as security and subject to such
conditions as may be necessary for the protection of the public
interests.
Sec. 223.115 Contract extensions.
The term of any contract or permit shall not be extended unless the
approving officer finds:
(a) That the purchaser has diligently performed in accordance with
contract provisions and an approved plan of operation; or
(b) That the substantial overriding public interest justifies the
extension.
Sec. 223.116 Cancellation.
(a) Timber sale contracts and permits may be canceled:
(1) For serious or continued violation of their terms.
(2) Upon application, or with the consent of the purchaser, when
such action is of advantage to the United States or not prejudicial to
its interests.
(3) Upon application of the purchaser if the value of the timber
remaining to be cut is diminished materially because of catastrophic
damage caused by forces beyond the control of the purchaser resulting in
(i) physical change in the sale area or access to it, or (ii) damage to
timber remaining to be cut.
(4) For conviction of violation of criminal statutes or, following
final agency or judicial determination, of violation of civil standards,
orders, permits, or others regulations for the protection of
environmental quality issued by a Federal agency, State agency, or
political subdivision thereof, in the conduct of operations thereunder,
on National Forest System land, unless compliance with such laws or
regulations would preclude performance of other contractual
requirements.
(5) Upon determination by the Chief, Forest Service, that operations
thereunder would result in serious environmental degradation or resource
damage and with reasonable compensation to the purchaser for unrecovered
costs incurred under the contract and the difference between the current
contract value and the average value of comparable National Forest
timber sold during the preceding 6-month period.
(b) Cancellation will be by the Chief, Forest Service. Authority to
cancel contracts under paragraph (a)(1) through (4) of this section may
be delegated to Regional Foresters for sales within their authorization.
All contract cancellations under paragraph (a)(5) of this section shall
be by the Chief, Forest Service, whose decision shall be the final
agency decision.
[42 FR 28252, June 2, 1977, as amended at 48 FR 23819, May 27, 1983.
Redesignated at 49 FR 2761, Jan. 23, 1984]
Sec. 223.117 Administration of cooperative or Federal sustained yield units.
With respect to sustained yield units established pursuant to the
provisions of the Act of March 29, 1944 (58 Stat. 132; 16 U.S.C. 583-
583l), the Chief, Forest Service, with authority to delegate to other
officers and employees of the Forest Service:
(a) Shall provide that National Forest timber in any sustained yield
unit shall be available in sufficient amounts to meet the needs of bona
fide farmers, settlers, miners, residents and prospectors for minerals
for personal and domestic use as provided by law and by regulation.
(b) May offer for sale to cooperators, without competition but at
not less than appraised value, timber on National Forest lands within an
approved cooperative sustained yield unit; or, if the approved sustained
yield unit consists entirely of federally owned or administered forest
land and if necessary for the maintenance of a stable community or
communities, may offer National Forest timber for sale to responsible
operators within such community or communities, at not less than
appraised value but without competition or with competition restricted
to responsible operators who will manufacture the timber to at least a
stated degree within the community or communities to be maintained. Each
such sale which involves more than $500 in stumpage value may be made
only after notice has been given in advance
[[Page 117]]
by such means as may be deemed effective in informing the public of the
proposed action, including in any event, publication, once weekly for
four consecutive weeks and with additional insertions if needed, in one
or more newspapers of general circulation in the vicinity of the place
where the timber is located, of a notice of the proposed sale stating at
least:
(1) The location, estimated quantity and appraised value of the
timber to be cut;
(2) The name and address of the proposed purchaser or those of the
operators among whom bidding is to be restricted;
(3) The time and place of a public advisory hearing on the proposed
sale, to be held not earlier than 30 days after the first publication of
said notice, if requested by the State or county where the timber is
located or by any other person deemed to have a reasonable interest in
the proposed sale or in its terms; and
(4) The title and address of the officer of the Forest Service to
whom any request for such hearing should be made.
Such requests need be considered only if received at the place
designated in the notice not later than 15 days after the first
publication of such notice. If a public advisory hearing is to be held,
notice of it shall be published in the same newspaper or newspapers as
the original notice, stating the place where it will be held and the
time, which shall not be earlier than 10 days after the first
publication of the said notice of hearing, and shall appear once each
week, but not for more than four successive weeks in any event, until
the date set for the hearing. Any such hearing shall be conducted by the
Chief or by any officer designated by him as his representative, except
that if the amount of the proposed sale is not in excess of that which
the Regional Forester has been authorized to sell without prior approval
of the Chief the hearing may be held by the Regional Forester concerned
or by his representative and decision may be by the Regional Forester.
At any such hearing, opportunity shall be given to those having a
reasonable interest to make oral statements or to file written
statements discussing the advantages and disadvantages of the proposed
sale; and the officer holding the hearing may, in his discretion, permit
the filing of such statements within a reasonable period after the close
of the hearing to become part of the record for consideration before a
decision is made.
(c) Shall keep available for public inspection,
(1) During the life of any sustained yield unit, the minutes or
other record of the hearing held on the establishment thereof, and the
determination of action taken following the hearing including any
modification of the proposals as submitted at the hearing; and
(2) During the life of any cooperative agreement for coordinated
management the similar record of the hearings and actions determined
upon; and
(3) During the life of any sustained yield unit the similar record
of any public hearing which may be held on a sale made without
competition or with restricted competition and the action determined
upon. Such records of any case may be kept in any office of the Forest
Service designated by the Chief as being suitable and convenient of
access for probably interested persons.
(d) Shall make provision, in any contract for the purchase of timber
without competition or with restricted competition, if that contract is
of more than 7 years' duration and in his discretion in any case of
shorter duration, for the redetermination of rates for stumpage and for
required deposits to be paid by the purchasers, such redetermination to
be effective at intervals or dates stated in the contract; but the sum
of such redetermined rates for stumpage and sale area betterment shall
not be less than the base rates in the published notice of the proposed
sale.
(e) May modify and revise existing cooperative agreements entered
into under said act after taking appropriate action.
Sec. 223.118 Appeal process for small business timber sale set-aside program share recomputations.
(a) Decisions subject to appeal. The rules of this section govern
appeal of decisions about structural, special, market change, or the
scheduled five-
[[Page 118]]
year recomputations of the small business share of timber sales. Only
those timber sale purchasers who have submitted written comments to the
Responsible Official on the draft recomputed share decision, or their
representatives, are eligible to appeal a decision.
(b) Manner of giving notice--(1) Predecisional notice and comment.
Qualifying timber sale purchasers that may be affected by recomputations
shall be given 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 review period, the
Responsible Official shall consider any comments reviewed. Within 15
days following the end of the comment period, the Responsible Official
shall make the decision on the small business shares and shall give
prompt written notice to all parties on the national forest timber sale
bidders list for the affected area. The notice shall identify the name
of the Appeal Deciding Officer to whom an appeal of the decision may be
filed, the address, the date by which an appeal must be filed, and where
the purchaser may obtain the appeal procedure and requirements.
(c) Who may appeal. Only timber sale purchasers affected by
recomputations of the small business share of timber sales, or their
representatives, who have submitted predecisional comments pursuant to
paragraph (b)(1) of this section may appeal recomputation decisions
under this section. Intervenors are not allowed in appeals under this
section.
(d) Level of appeal. Only one level of review is available for
appeal of decisions pertaining to recomputations under the Small
Business Timber 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 shall be specified in
the notice of decision given pursuant to paragraph (b)(2) of this
section.
(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 in the issue(s) raised by
the appeal;
(vi) Specific references to any law, regulation, or policy that the
appellant believes to have been violated and the basis for such as
allegation;
(vii) A statement as to whether and how the appellant has tried to
resolve with the Responsible Official the issue(s) being appealed,
including evidence of submission of written comments at the
predecisional stage as provided by paragraph (a) of this section, the
date of any discussion, and the outcome of that meeting or contact; and
(viii) A statement of the relief the appellant seeks.
(g) Time periods and timeliness. (1) All time periods applicable to
this section will begin on the first day following a decision or action
related to the appeal.
(2) Time periods applicable to this section are computed using
calendar days. Saturdays, Sundays, or Federal holidays are included in
computing the
[[Page 119]]
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) Time 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) Appellant's notice of appeal is not filed within the required
time period; or
(3) The appellant did not submit written comments on the proposed
decision of the new recomputed shares as required by paragraph (c) of
this section.
(i) Appeal record. The appeal record consists of the written
decision being appealed, any predecisional comments received, 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 within 7 days of the date the notice of
appeal is received. A copy of the appeal record will be simultaneously
submitted to the appellant.
(j) Appeal 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. 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 the
appeal decision. If the decision is not rendered within the required 30
days, the existing decision is automatically affirmed. The Appeal
Deciding Officer's decision or the failure of the Appeal Deciding
Officer to decide within the required 30 days constitutes the final
administrative decision of the Department of Agriculture.
(k) Implementation of decisions during pendency of appeal.
Recomputation of shares arising from a scheduled five-year recomputation
are effective on April 1 following the end of the five-year period being
considered. If an appeal that may affect the shares for the next five-
year period is not resolved by the April 1 date, the share decision
announced by the Responsible Official shall 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 shall be accomplished
during the remaining portion of the five-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.
[62 FR 13829, Mar. 24, 1997]
Effective Date Note: At 62 FR 13829, Mar. 24, 1997, Sec. 223.118 was
added. Paragraph (f) of this section contains information collection and
recordkeeping requirements and will not become effective until approval
has been given by the Office of Management and Budget.