[Title 36 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2013 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          Title 36

Parks, Forests, and Public Property


________________________

Parts 200 to 299

                         Revised as of July 1, 2013

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2013
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



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

  Title 36:
          Chapter II--Forest Service, Department of 
          Agriculture                                                3
  Finding Aids:
      Table of CFR Titles and Chapters........................     517
      Alphabetical List of Agencies Appearing in the CFR......     537
      List of CFR Sections Affected...........................     547

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

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

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

[[Page v]]



                               EXPLANATION

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

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

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
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    To determine whether a Code volume has been amended since its 
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EFFECTIVE AND EXPIRATION DATES

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OMB CONTROL NUMBERS

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

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
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PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
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``[RESERVED]'' TERMINOLOGY

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INCORPORATION BY REFERENCE

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    (a) The incorporation will substantially reduce the volume of 
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    (b) The matter incorporated is in fact available to the extent 
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    (c) The incorporating document is drafted and submitted for 
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this volume.

[[Page vii]]

    An index to the text of ``Title 3--The President'' is carried within 
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    Charles A. Barth,
    Director,
    Office of the Federal Register.
    July 1, 2013.







[[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--199, parts 200--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, 2013.

    For this volume, Bonnie Fritts was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of Michael L. 
White, assisted by Ann Worley.

[[Page 1]]



              TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY




                  (This book contains parts 200 to 299)

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

chapter ii--Forest Service, Department of Agriculture.......         200


Abbreviations Used in This Chapter:
    A.O. = Administrative order. P.L.O. = Public Land order.

[[Page 3]]



          CHAPTER II--FOREST SERVICE, DEPARTMENT OF AGRICULTURE




  --------------------------------------------------------------------
Part                                                                Page
200             Organization, functions, and procedures.....           5
211             Administration..............................          13
212             Travel management...........................          14
213             Administration of lands under Title III of 
                    the Bankhead-Jones Farm Tenant Act by 
                    the Forest Service......................          27
214             Postdecisional administrative review process 
                    for occupancy or use of National Forest 
                    System lands and resources..............          29
215             Notice, comment, and appeal procedures for 
                    National Forest System projects and 
                    activities..............................          38
216             Involving the public in the formulation of 
                    Forest Service directives...............          49
218             Project-level predecisional administrative 
                    review process..........................          52
219             Planning....................................          63
220             National Environmental Policy Act (NEPA) 
                    compliance..............................          92
221             Timber management planning..................         102
222             Range management............................         103
223             Sale and disposal of National Forest System 
                    timber, special forest products, and 
                    forest botanical products...............         122
228             Minerals....................................         192
230             State and private forestry assistance.......         226
241             Fish and wildlife...........................         243
242             Subsistence management regulations for 
                    public lands in Alaska..................         246
251             Land uses...................................         360
254             Landownership adjustments...................         400
261             Prohibitions................................         418
262             Law enforcement support activities..........         432
264             Property management.........................         436
271             Use of ``Smokey Bear'' symbol...............         438
272             Use of ``Woodsy Owl'' symbol................         439

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290             Cave resources management...................         440
292             National recreation areas...................         443
293             Wilderness--primitive areas.................         469
294             Special areas...............................         474
296             Protection of archaeological resources: 
                    Uniform regulations.....................         499
297             Wild and scenic rivers......................         512
298-299

[Reserved]

[[Page 5]]



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



                         Subpart A_Organization

Sec.
200.1 Central organization
200.2 Field organization.

                   Subpart B_Functions and Procedures

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

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



                         Subpart A_Organization



Sec. 200.1  Central organization.

    (a) Central office. The national office of the Forest Service, U.S. 
Department of Agriculture, is located in the Auditors Building, 14th and 
Independence Avenue, SW. Washington, DC. It consists of the Office of 
the Chief and Associate Chief, and a Deputy Chief for each of the 
following five activities: Programs and Legislation, National Forest 
System, Research, State and Private Forestry, and Administration. All 
communications should be addressed to the Forest Service, Department of 
Agriculture, P.O. Box 96090, Washington, DC 20090-6090.
    (b) Chief of the Forest Service. The Chief of the Forest Service, 
under the direction of the 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 1109.12, Directive System Handbook. 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, as amended at 74 FR 19143, Apr. 28, 2009]



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 Sec. Sec. 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 Sec. Sec. 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 Sec. Sec. 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 
Sec. Sec. 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

[[Page 12]]

CFR Part 1, Subpart A, Appendix A. These fees do not apply to 
information that is generally and routinely made available to the public 
upon request, such as recreational brochures, pamphlets, maps, and 
technical guides as well as agency directive issuances. Separate charges 
for such general information are established in the agency's Directive 
System (Sec. 200.4). For example, some pamphlets and small segments of 
the Forest Service Manual and Handbook may be provided at no cost, but 
maps of the National Forest System and larger sections of the Manual and 
Handbook are available for a charge. Current charges are explained at 
the time the request is made.

[62 FR 13540, Mar. 21, 1997]



Sec. 200.7  Request for records.

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

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



Sec. 200.8  Appeals.

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

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



Sec. 200.12  Land status and title records.

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

[[Page 13]]

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

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



PART 211_ADMINISTRATION--Table of Contents



                          Subpart A_Cooperation

Sec.
211.1-211.2 [Reserved]
211.3 Cooperation with State officers.
211.4 Cooperation for fire prevention and control.
211.5 Emergency fire suppression assistance.
211.6 Cooperation in forest investigations or the protection, 
          management, and improvement of the National Forest System.

Subpart B [Reserved]

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



                          Subpart A_Cooperation



Sec. Sec. 211.1-211.2  [Reserved]



Sec. 211.3  Cooperation with State officers.

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

[1 FR 1261, Aug. 15, 1936]



Sec. 211.4  Cooperation for fire prevention and control.

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

[1 FR 1261, Aug. 15, 1936]



Sec. 211.5  Emergency fire suppression assistance.

    (a) Definitions. For the purpose of this subpart these definitions 
apply:
    (1) Prescribed fire means a fire burning under a set of specified 
conditions

[[Page 14]]

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

[48 FR 44537, Sept. 29, 1983]



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

    (a) Purpose and scope. Forest Service officers, when engaged in 
cooperative activities otherwise authorized, may receive monies from 
cooperators only for cooperative work in forest investigations or for 
the protection, management, and improvement of the National Forest 
System and only in accordance with written cooperative agreements. 
Management of the National Forest System may include such work as 
planning, analysis, and related studies, as well as resource activities.
    (b) Reimbursements. Agency expenditures for work undertaken in 
accordance with this section may be made from Forest Service 
appropriations available for such work, with subsequent reimbursement 
from the cooperator, in accordance with established written agreements. 
Forest Service officers shall issue written bills for collection for 
cooperator reimbursement payments within the same fiscal year as Forest 
Service expenditures.
    (c) Bonding. Each written agreement involving a non-Government 
cooperator's total contribution of $25,000 or more to the Forest Service 
on a reimbursable basis, must include a provision requiring a payment 
bond to guarantee the cooperator's reimbursement payment. Acceptable 
security for a payment bond includes Department of the Treasury approved 
corporate sureties, Federal Government obligations, and irrevocable 
letters of credit. For the purposes of this section, a non-Government 
cooperator is an entity that is not a member, division, or affiliate of 
a Federal, State, local government, a federally recognized Indian Tribe 
(as defined by the Federally Recognized Indian Tribe List Act of 1994 
[25 U.S.C. 479a]), or other organizations funding a Forest Service 
agreement with pass through funding from an entity that is a member, 
division, or affiliate of a Federal, State, local government, or 
federally recognized Indian Tribe.
    (d) Avoiding conflict of interest. Forest Service officers shall 
avoid acceptance of contributions from cooperators when such 
contributions would reflect unfavorably upon the ability of the Forest 
Service to carry out its responsibilities and duties. Forest Service 
officers shall be guided by the provisions of 18 U.S.C. parts 201-209, 5 
CFR part 2635, and applicable Department of Agriculture regulations, in 
determining if a conflict of interest or potential conflict of interest 
exists in a proposed cooperative effort. Forest Service ethics officials 
or the designated Department of Agriculture ethics official should be 
consulted on conflict of interest issues.

[64 FR 60678, Nov. 8, 1999, as amended at 73 FR 62443, Oct. 21, 2008]

Subpart B [Reserved]



PART 212_TRAVEL MANAGEMENT--Table of Contents



      Subpart A_Administration of the Forest Transportation System

Sec.
212.1 Definitions.

[[Page 15]]

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 National Forest System roads.
212.11-212.20 [Reserved]
212.21 Pacific Crest National Scenic Trail.

 Subpart B_Designation of Roads, Trails, and Areas for Motor Vehicle Use

212.50 Purpose, scope, and definitions.
212.51 Designation of roads, trails, and areas.
212.52 Public involvement.
212.53 Coordination with Federal, State, county, and other local 
          governmental entities and tribal governments.
212.54 Revision of designations.
212.55 Criteria for designation of roads, trails, and areas.
212.56 Identification of designated roads, trails, and areas.
212.57 Monitoring of effects of motor vehicle use on designated roads 
          and trails and in designated areas.

                   Subpart C_Use by Over-Snow Vehicles

212.80 Purpose, scope, and definitions.
212.81 Use by over-snow vehicles.



      Subpart A_Administration of the Forest Transportation System

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



Sec. 212.1  Definitions.

    For the purpose of this part the following terms, respectively, 
shall mean:
    Administrative unit. A National Forest, a National Grassland, a 
purchase unit, a land utilization project, Columbia River Gorge National 
Scenic Area, Land Between the Lakes, Lake Tahoe Basin Management Unit, 
Midewin National Tallgrass Prairie, or other comparable unit of the 
National Forest System.
    Area. A discrete, specifically delineated space that is smaller, and 
in most cases much smaller, than a Ranger District.
    Chief. The Chief, Forest Service, Department of Agriculture.
    Construction engineering. All work and expense of setting out, 
controlling, inspecting, and measuring the construction or 
reconstruction of a forest transportation facility including:
    (1) Construction surveys to establish line and grade for the work, 
to control the work, and to measure quantities;
    (2) Redesigning, adjusting, and changing the plans, specifications, 
and materials to meet conditions;
    (3) Inspecting, directing, and controlling operations for compliance 
with plans and specifications;
    (4) Inspecting, testing, and accepting materials and equipment to be 
installed in the work; and
    (5) Inspecting, measuring, and accepting completed work.
    Designated road, trail, or area. A National Forest System road, a 
National Forest System trail, or an area on National Forest System lands 
that is designated for motor vehicle use pursuant to Sec. 212.51 on a 
motor vehicle use map.
    Federal airport funds. Discretionary funds available for airfields 
in National Forests under section 6(b)(3) of the Act of May 13, 1946 (60 
Stat. 173), as amended; 49 U.S.C. 1105(b)(3).
    Forest road and trail funds. Funds authorized or appropriated for 
the purpose of carrying out the provisions of section 205 of the Act of 
August 27, 1958 (72 Stat. 907), as amended; 23 U.S.C. 205.
    Forest road or trail. A road or trail wholly or partly within or 
adjacent to and serving the National Forest System that the Forest 
Service determines is necessary for the protection, administration, and 
utilization of the National Forest System and the use and development of 
its resources.
    Forest transportation atlas. A display of the system of roads, 
trails, and airfields of an administrative unit.
    Forest transportation facility. A forest road or trail or an 
airfield that is displayed in a forest transportation atlas, including 
bridges, culverts, parking lots, marine access facilities, safety 
devices, and other improvements appurtenant to the forest transportation 
system.
    Forest transportation system. The system of National Forest System 
roads, National Forest System trails, and airfields on National Forest 
System lands.

[[Page 16]]

    Maintenance. The upkeep of the entire forest transportation facility 
including surface and shoulders, parking and side areas, structures, and 
such traffic-control devices as are necessary for its safe and efficient 
utilization.
    Motor vehicle. Any vehicle which is self-propelled, other than:
    (1) A vehicle operated on rails; and
    (2) Any wheelchair or mobility device, including one that is 
battery-powered, that is designed solely for use by a mobility-impaired 
person for locomotion, and that is suitable for use in an indoor 
pedestrian area.
    Motor vehicle use map. A map reflecting designated roads, trails, 
and areas on an administrative unit or a Ranger District of the National 
Forest System.
    National Forest System. As defined in the Forest Rangeland Renewable 
Resources Planning Act, the ``National Forest System'' includes all 
National Forest lands reserved or withdrawn from the public domain of 
the United States, all National Forest lands acquired through purchase, 
exchange, donation, or other means, the National Grasslands and land 
utilization projects administered under title III of the Bankhead-Jones 
Farm Tennant Act (50 Stat. 525, 7 U.S.C. 1010-1012), and other lands, 
waters or interests therein which are administered by the Forest Service 
or are designated for administration through the Forest Service as a 
part of the system.
    National Forest System road. A forest road other than a road which 
has been authorized by a legally documented right-of-way held by a 
State, county, or other local public road authority.
    National Forest System trail. A forest trail other than a trail 
which has been authorized by a legally documented right-of-way held by a 
State, county, or other local public road authority.
    Off-highway vehicle. Any motor vehicle designed for or capable of 
cross-country travel on or immediately over land, water, sand, snow, 
ice, marsh, swampland, or other natural terrain.
    Over-snow vehicle. A motor vehicle that is designed for use over 
snow and that runs on a track or tracks and/or a ski or skis, while in 
use over snow.
    Preconstruction engineering. All work and expense of preparing for 
construction or reconstruction of a forest transportation facility 
including:
    (1) Engineering and economic investigations, studies, and reports;
    (2) Reconnaissance surveys;
    (3) Preliminary surveys;
    (4) Preliminary location surveys;
    (5) Soils, foundations, and materials investigations, surveys, and 
tests;
    (6) Preliminary and final designs;
    (7) Preliminary and final plans, drawings, specifications, and 
estimates of quantities and cost;
    (8) Final location surveys staked on the ground; and
    (9) Rights-of-way surveys, plans, and descriptions.
    Regional forester. A regional forester of the Forest Service.
    Road. A motor vehicle route over 50 inches wide, unless identified 
and managed as a trail.
    Road and trail 10 percent funds. Funds available from the permanent 
appropriation ``Roads and Trails for States'' under the Act of March 4, 
1913 (37 Stat. 843), as amended; 16 U.S.C. 501.
    Road construction or reconstruction. Supervising, inspecting, actual 
building, and incurrence of all costs incidental to the construction or 
reconstruction of a road.
    Road Decommissioning. Activities that result in the stabilization 
and restoration of unneeded roads to a more natural state.
    Temporary road or trail. A road or trail necessary for emergency 
operations or authorized by contract, permit, lease, or other written 
authorization that is not a forest road or trail and that is not 
included in a forest transportation atlas.
    Trail. A route 50 inches or less in width or a route over 50 inches 
wide that is identified and managed as a trail.
    Travel management atlas. An atlas that consists of a forest 
transportation atlas and a motor vehicle use map or maps.
    Unauthorized road or trail. A road or trail that is not a forest 
road or trail or a temporary road or trail and that is

[[Page 17]]

not included in a forest transportation atlas.

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

[30 FR 5476, Apr. 16, 1965, as amended at 66 FR 3216, 3217, Jan. 12, 
2001; 70 FR 68287, Nov. 9, 2005]



Sec. 212.2  Forest transportation program.

    (a) Travel management atlas. For each administrative unit of the 
National Forest System, the responsible official must develop and 
maintain a travel management atlas, which is to be available to the 
public at the headquarters of that administrative unit.
    (b) Forest transportation atlas. A forest transportation atlas may 
be updated to reflect new information on the existence and condition of 
roads, trails, and airfields of the administrative unit. A forest 
transportation atlas does not contain inventories of temporary roads, 
which are tracked by the project or activity authorizing the temporary 
road. The content and maintenance requirements for a forest 
transportation atlas are identified in the Forest Service directives 
system.
    (c) Program of work for the forest transportation system. A program 
of work for the forest transportation system shall be developed each 
fiscal year in accordance with procedures prescribed by the Chief.

[62 FR 58654, Oct. 30, 1997, as amended at 66 FR 3216, 3217, Jan. 12, 
2001; 70 FR 68288, Nov. 9, 2005; 73 FR 74613, Dec. 9, 2008]



Sec. 212.3  Cooperative work.

    (a) Cooperative agreements for all projects which involve financial 
contributions from cooperators shall be negotiated, approved, and 
executed in accordance with procedures prescribed by the Chief.
    (b) Cooperative funds contributed in advance shall be deposited in 
the United States Treasury to the credit of the Forest Service 
Cooperative Fund authorized by the Act of June 30, 1914 (38 Stat. 430), 
as amended; 16 U.S.C. 498, or the Act of March 3, 1925 (43 Stat. 1132), 
as amended; 16 U.S.C. 572, which deposits will be made available for 
expenditure from the appropriation ``Cooperative Work, Forest Service.'' 
If a State, county or other governmental agency is unable to contribute 
funds under the Act of March 3, 1925, as amended, in advance but is able 
to pay its share subsequent to performance of the work, the subsequent 
payment of such funds will be deposited to the credit of the Forest 
Service appropriation from which the expenditures were made or to 
appropriations for similar purposes currently available at the time of 
deposit.

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



Sec. 212.4  Construction and maintenance.

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

[24 FR 10256, Dec. 18, 1959, as amended at 25 FR 6360, July 7, 1960. 
Redesignated at 62 FR 58654, Oct. 30, 1997; 66 FR 3216, Jan. 12, 2001]



Sec. 212.5  Road system management.

    (a) Traffic rules. Rules set forth under 36 CFR part 261 and this 
section shall apply to all National Forest System

[[Page 18]]

roads under the jurisdiction of the Forest Service except when in 
conflict with written agreement.
    (1) General. Traffic on roads is subject to State traffic laws where 
applicable except when in conflict with designations established under 
subpart B of this part or with the rules at 36 CFR part 261.
    (2) Specific. The following specific traffic rules shall apply 
unless different rules are established in 36 CFR part 261.
    (i) The load, weight, length, height, and width limitations of 
vehicles shall be in accordance with the laws of the States wherein the 
road is located. Greater or lesser limits may be imposed and these 
greater or lesser limits shall be established as provided in 36 CFR part 
261.
    (ii) Roads, or segments thereof, may be restricted to use by certain 
classes of vehicles or types of traffic as provided in 36 CFR part 261. 
Classes of vehicles may include but are not limited to distinguishable 
groupings such as passenger cars, buses, trucks, motorcycles, all-
terrain vehicles, 4-wheel drive vehicles, off-highway vehicles, and 
trailers. Types of traffic may include but are not limited to groupings 
such as commercial hauling, recreation, and administrative.
    (iii) Roads, or segments thereof, may be closed to all vehicle use 
as provided in 36 CFR part 261.
    (iv) Additional rules may be imposed as provided in 36 CFR part 261.
    (b) Road system--(1) Identification of road system. For each 
national forest, national grassland, experimental forest, and any other 
units of the National Forest System (Sec. 212.1), the responsible 
official must identify the minimum road system needed for safe and 
efficient travel and for administration, utilization, and protection of 
National Forest System lands. In determining the minimum road system, 
the responsible official must incorporate a science-based roads analysis 
at the appropriate scale and, to the degree practicable, involve a broad 
spectrum of interested and affected citizens, other state and federal 
agencies, and tribal governments. The minimum system is the road system 
determined to be needed to meet resource and other management objectives 
adopted in the relevant land and resource management plan (36 CFR part 
219), to meet applicable statutory and regulatory requirements, to 
reflect long-term funding expectations, to ensure that the identified 
system minimizes adverse environmental impacts associated with road 
construction, reconstruction, decommissioning, and maintenance.
    (2) Identification of unneeded roads. Responsible officials must 
review the road system on each National Forest and Grassland and 
identify the roads on lands under Forest Service jurisdiction that are 
no longer needed to meet forest resource management objectives and that, 
therefore, should be decommissioned or considered for other uses, such 
as for trails. Decommissioning roads involves restoring roads to a more 
natural state. Activities used to decommission a road include, but are 
not limited to, the following: reestablishing former drainage patterns, 
stabilizing slopes, restoring vegetation, blocking the entrance to the 
road, installing water bars, removing culverts, reestablishing drainage-
ways, removing unstable fills, pulling back road shoulders, scattering 
slash on the roadbed, completely eliminating the roadbed by restoring 
natural contours and slopes, or other methods designed to meet the 
specific conditions associated with the unneeded road. Forest officials 
should give priority to decommissioning those unneeded roads that pose 
the greatest risk to public safety or to environmental degradation.
    (c) Cost recovery on National Forest System roads. The Chief may 
determine that a share of the cost of acquisition, construction, 
reconstruction, improvement, or maintenance of a road, or segment 
thereof, used or to be used for commercial hauling of non-Federal 
forests products and other non-Federal products, commodities and 
materials, should be borne by the owners or haulers thereof. The Chief 
may condition the permission to use a road, or segment thereof, upon 
payment to the United States of the proportionate share of the cost and 
bearing proportionate maintenance as determined to be attributable to 
the owner's or hauler's use in accordance with Sec. 212.9. This

[[Page 19]]

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

[39 FR 27649, July 31, 1974, as amended at 42 FR 2957, Jan. 14, 1977; 43 
FR 20007, May 10, 1978; 62 FR 58654, Oct. 30, 1997. Redesignated and 
amended at 62 FR 58654, Oct. 30, 1997; 66 FR 3217, Jan. 12, 2001; 70 FR 
68288, Nov. 9, 2005]



Sec. 212.6  Ingress and egress.

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

[[Page 20]]

governing the lands and the roads or trails to be used.

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

[40 FR 52611, Nov. 11, 1975, as amended at 42 FR 2957, Jan. 14, 1977. 
Redesignated at 62 FR 58654, Oct. 30, 1997; 66 FR 3217, Jan. 12, 2001]



Sec. 212.7  Access procurement by the United States.

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

[[Page 21]]

road, trail, or easement where necessary.

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

[30 FR 5476, Apr. 16, 1965, as amended at 39 FR 27650, July 31, 1974; 62 
FR 58654, Oct. 30, 1997. Redesignated and amended at 62 FR 58654, Oct. 
30, 1997; 66 FR 3217, Jan. 12, 2001; 70 FR 68288, Nov. 9, 2005]



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

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

[[Page 22]]

    (2) Notwithstanding paragraph (d)(1) of this section, the Chief may 
grant to the applicant a permanent or temporary easement for specified 
periods or otherwise upon such exchange of easements or share-cost 
arrangement or other reasonable consideration as he may deem 
appropriate.
    (3) The Chief may grant to a State or local subdivision thereof; 
easements for roads over lands or easements administered by the Forest 
Service and over roads thereon, when the roads thereon or roads to be 
constructed thereon will serve said lands and are, or will become a part 
of the road system maintained by such State or local subdivision for 
general public use: Provided, That easements shall not be granted under 
authority of this act (78 Stat. 1089), 16 U.S.C. 533 which may be 
granted under the Highway Act (72 Stat. 916, 23 U.S.C. 317), as amended. 
The easements shall contain such provisions, terms, and conditions as 
the Chief may determine are necessary to retain and protect the 
interests needed by the United States.
    (4) All instruments affecting permanent interests in land executed 
pursuant to this paragraph (d) of this section shall be recorded in each 
county where the lands are located. Copies of all instruments affecting 
interests in lands reserved from public domain shall be furnished by the 
Chief to the Secretary of the Interior.
    (5)(i) The Chief may revoke any easement granted under the 
provisions of the Act of October 13, 1964 (78 Stat. 1089, 16 U.S.C. 
534):
    (A) By consent of the owner of the easement;
    (B) By condemnation; or
    (C) Upon abandonment after a 5-year period of nonuse by the owner of 
the easement.
    (ii) Before any easement is revoked upon abandonment, the owner of 
the easement shall be given notice and, upon the owner's request made 
within 60 days after receipt of the notice, shall be given an appeal in 
accordance with the provisions of 36 CFR part 214.

(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; 78 FR 33717, June 5, 2013]



Sec. 212.9  Principles for sharing use of roads.

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

[[Page 23]]

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

[[Page 24]]

tend to direct or limit policies and procedures for management of lands 
administered by the Forest Service.

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

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



Sec. 212.10  Maximum economy National Forest System roads.

    The Chief may acquire, construct, reconstruct, improve, and maintain 
National Forest System roads within and near the National Forests and 
other lands administered by the Forest Service in locations and 
according to specifications which will permit maximum economy in 
harvesting timber from such lands tributary to such roads and at the 
same time meet the requirements for protection, development, and 
management thereof and for utilization of the other resources thereof. 
Financing of such roads may be accomplished--
    (a) By the Chief utilizing appropriated funds,
    (b) By requirements on purchasers of National Forest timber and 
other products, including provisions for amortization of road costs in 
contracts,
    (c) By cooperative financing with other public agencies and with 
private agencies or persons, or
    (d) By a combination of these methods, provided that where roads are 
to be constructed at a higher standard than the standard--consistent 
with applicable environmental laws and regulations--that is sufficient 
for harvesting and removal of National Forest timber and other products 
covered by a particular sale, the purchaser of the timber and other 
products shall not be required to bear the part of the cost necessary to 
meet the higher standard, and the Chief may make such arrangements to 
achieve this end as may be appropriate.

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

[30 FR 5479, Apr. 16, 1965. Redesignated at 62 FR 58654, Oct. 30, 1997; 
66 FR 3217, Jan. 12, 2001; 70 FR 68288, Nov. 9, 2005]



Sec. Sec. 212.11-212.20  [Reserved]



Sec. 212.21  Pacific Crest National Scenic Trail.

    The Pacific Crest National Scenic Trail as defined by the National 
Trails Systems Act, 82 Stat. 919, shall be administered primarily as a 
footpath and horseback riding trail by the Forest Service in 
consultation with the 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]



 Subpart B_Designation of Roads, Trails, and Areas for Motor Vehicle Use

    Authority: 7 U.S.C. 1011(f), 16 U.S.C. 551, E.O. 11644, 11989 (42 FR 
26959).

    Source: 70 FR 68288, Nov. 9, 2005, unless otherwise noted.



Sec. 212.50  Purpose, scope, and definitions.

    (a) Purpose. This subpart provides for a system of National Forest 
System roads, National Forest System trails, and areas on National 
Forest System lands that are designated for motor vehicle use. After 
these roads, trails, and areas are designated, motor vehicle use, 
including the class of vehicle and time of year, not in accordance with 
these designations is prohibited by 36

[[Page 25]]

CFR 261.13. Motor vehicle use off designated roads and trails and 
outside designated areas is prohibited by 36 CFR 261.13.
    (b) Scope. The responsible official may incorporate previous 
administrative decisions regarding travel management made under other 
authorities, including designations and prohibitions of motor vehicle 
use, in designating National Forest System roads, National Forest System 
trails, and areas on National Forest System lands for motor vehicle use 
under this subpart.
    (c) For definitions of terms used in this subpart, refer to Sec. 
212.1 in subpart A of this part.



Sec. 212.51  Designation of roads, trails, and areas.

    (a) General. Motor vehicle use on National Forest System roads, on 
National Forest System trails, and in areas on National Forest System 
lands shall be designated by vehicle class and, if appropriate, by time 
of year by the responsible official on administrative units or Ranger 
Districts of the National Forest System, provided that the following 
vehicles and uses are exempted from these designations:
    (1) Aircraft;
    (2) Watercraft;
    (3) Over-snow vehicles (see Sec. 212.81);
    (4) Limited administrative use by the Forest Service;
    (5) Use of any fire, military, emergency, or law enforcement vehicle 
for emergency purposes;
    (6) Authorized use of any combat or combat support vehicle for 
national defense purposes;
    (7) Law enforcement response to violations of law, including 
pursuit; and
    (8) Motor vehicle use that is specifically authorized under a 
written authorization issued under Federal law or regulations.
    (b) Motor vehicle use for dispersed camping or big game retrieval. 
In designating routes, the responsible official may include in the 
designation the limited use of motor vehicles within a specified 
distance of certain forest roads or trails where motor vehicle use is 
allowed, and if appropriate within specified time periods, solely for 
the purposes of dispersed camping or retrieval of a downed big game 
animal by an individual who has legally taken that animal.

[70 FR 68288, Nov. 9, 2005, as amended at 73 FR 74613, Dec. 9, 2008]



Sec. 212.52  Public involvement.

    (a) General. The public shall be allowed to participate in the 
designation of National Forest System roads, National Forest System 
trails, and areas on National Forest System lands and revising those 
designations pursuant to this subpart. Advance notice shall be given to 
allow for public comment, consistent with agency procedures under the 
National Environmental Policy Act, on proposed designations and 
revisions. Public notice with no further public involvement is 
sufficient if a National Forest or Ranger District has made previous 
administrative decisions, under other authorities and including public 
involvement, which restrict motor vehicle use over the entire National 
Forest or Ranger District to designated routes and areas, and no change 
is proposed to these previous decisions and designations.
    (b) Absence of public involvement in temporary, emergency closures--
(1) General. Nothing in this section shall alter or limit the authority 
to implement temporary, emergency closures pursuant to 36 CFR part 261, 
subpart B, without advance public notice to provide short-term resource 
protection or to protect public health and safety.
    (2) Temporary, emergency closures based on a determination of 
considerable adverse effects. If the responsible official determines 
that motor vehicle use on a National Forest System road or National 
Forest System trail or in an area on National Forest System lands is 
directly causing or will directly cause considerable adverse effects on 
public safety or soil, vegetation, wildlife, wildlife habitat, or 
cultural resources associated with that road, trail, or area, the 
responsible official shall immediately close that road, trail, or area 
to motor vehicle use until the official determines that such adverse 
effects have been mitigated or eliminated and that measures have been 
implemented to prevent future recurrence. The responsible official shall 
provide public notice of the closure pursuant to 36 CFR 261.51, 
including

[[Page 26]]

reasons for the closure and the estimated duration of the closure, as 
soon as practicable following the closure.



Sec. 212.53  Coordination with Federal, State, county, and other local
governmental entities and tribal governments.

    The responsible official shall coordinate with appropriate Federal, 
State, county, and other local governmental entities and tribal 
governments when designating National Forest System roads, National 
Forest System trails, and areas on National Forest System lands pursuant 
to this subpart.



Sec. 212.54  Revision of designations.

    Designations of National Forest System roads, National Forest System 
trails, and areas on National Forest System lands pursuant to Sec. 
212.51 may be revised as needed to meet changing conditions. Revisions 
of designations shall be made in accordance with the requirements for 
public involvement in Sec. 212.52, the requirements for coordination 
with governmental entities in Sec. 212.53, and the criteria in Sec. 
212.55, and shall be reflected on a motor vehicle use map pursuant to 
Sec. 212.56.



Sec. 212.55  Criteria for designation of roads, trails, and areas.

    (a) General criteria for designation of National Forest System 
roads, National Forest System trails, and areas on National Forest 
System lands. In designating National Forest System roads, National 
Forest System trails, and areas on National Forest System lands for 
motor vehicle use, the responsible official shall consider effects on 
National Forest System natural and cultural resources, public safety, 
provision of recreational opportunities, access needs, conflicts among 
uses of National Forest System lands, the need for maintenance and 
administration of roads, trails, and areas that would arise if the uses 
under consideration are designated; and the availability of resources 
for that maintenance and administration.
    (b) Specific criteria for designation of trails and areas. In 
addition to the criteria in paragraph (a) of this section, in 
designating National Forest System trails and areas on National Forest 
System lands, the responsible official shall consider effects on the 
following, with the objective of minimizing:
    (1) Damage to soil, watershed, vegetation, and other forest 
resources;
    (2) Harassment of wildlife and significant disruption of wildlife 
habitats;
    (3) Conflicts between motor vehicle use and existing or proposed 
recreational uses of National Forest System lands or neighboring Federal 
lands; and
    (4) Conflicts among different classes of motor vehicle uses of 
National Forest System lands or neighboring Federal lands.
    In addition, the responsible official shall consider:
    (5) Compatibility of motor vehicle use with existing conditions in 
populated areas, taking into account sound, emissions, and other 
factors.
    (c) Specific criteria for designation of roads. In addition to the 
criteria in paragraph (a) of this section, in designating National 
Forest System roads, the responsible official shall consider:
    (1) Speed, volume, composition, and distribution of traffic on 
roads; and
    (2) Compatibility of vehicle class with road geometry and road 
surfacing.
    (d) Rights of access. In making designations pursuant to this 
subpart, the responsible official shall recognize:
    (1) Valid existing rights; and
    (2) The rights of use of National Forest System roads and National 
Forest System trails under Sec. 212.6(b).
    (e) Wilderness areas and primitive areas. National Forest System 
roads, National Forest System trails, and areas on National Forest 
System lands in wilderness areas or primitive areas shall not be 
designated for motor vehicle use pursuant to this section, unless, in 
the case of wilderness areas, motor vehicle use is authorized by the 
applicable enabling legislation for those areas.



Sec. 212.56  Identification of designated roads, trails, and areas.

    Designated roads, trails, and areas shall be identified on a motor 
vehicle use map. Motor vehicle use maps shall be made available to the 
public at the headquarters of corresponding administrative units and 
Ranger Districts of the National Forest System and, as

[[Page 27]]

soon as practicable, on the website of corresponding administrative 
units and Ranger Districts. The motor vehicle use maps shall specify the 
classes of vehicles and, if appropriate, the times of year for which use 
is designated.



Sec. 212.57  Monitoring of effects of motor vehicle use on designated 
roads and trails and in designated areas.

    For each administrative unit of the National Forest System, the 
responsible official shall monitor the effects of motor vehicle use on 
designated roads and trails and in designated areas under the 
jurisdiction of that responsible official, consistent with the 
applicable land management plan, as appropriate and feasible.



                   Subpart C_Use by Over-Snow Vehicles

    Authority: 7 U.S.C. 1011(f), 16 U.S.C. 551, E.O. 11644, 11989 (42 FR 
26959).

    Source: 70 FR 68290, Nov. 9, 2005, unless otherwise noted.



Sec. 212.80  Purpose, scope, and definitions.

    The purpose of this subpart is to provide for regulation of use by 
over-snow vehicles on National Forest System roads and National Forest 
System trails and in areas on National Forest System lands. For 
definitions of terms used in this subpart, refer to Sec. 212.1 in 
subpart A of this part.



Sec. 212.81  Use by over-snow vehicles.

    (a) General. Use by over-snow vehicles on National Forest System 
roads and National Forest System trails and in areas on National Forest 
System lands may be allowed, restricted, or prohibited.
    (b) Exemptions from restrictions and prohibitions. The following 
uses are exempted from restrictions and prohibitions on use by over-snow 
vehicles:
    (1) Limited administrative use by the Forest Service;
    (2) Use of any fire, military, emergency, or law enforcement vehicle 
for emergency purposes;
    (3) Authorized use of any combat or combat support vehicle for 
national defense purposes;
    (4) Law enforcement response to violations of law, including 
pursuit; and
    (5) Use by over-snow vehicles that is specifically authorized under 
a written authorization issued under Federal law or regulations.
    (c) Establishment of restrictions and prohibitions. If the 
responsible official proposes restrictions or prohibitions on use by 
over-snow vehicles under this subpart, the requirements governing 
designation of National Forest System roads, National Forest System 
trails, and areas on National Forest System lands in Sec. Sec. 212.52, 
212.53, 212.54, 212.55, 212.56, and 212.57 shall apply to establishment 
of those restrictions or prohibitions. In establishing restrictions or 
prohibitions on use by over-snow vehicles, the responsible official 
shall recognize the provisions concerning rights of access in sections 
811(b) and 1110(a) of the Alaska National Interest Lands Conservation 
Act (16 U.S.C. 3121(b) and 3170(a), respectively).



PART 213_ADMINISTRATION OF LANDS UNDER TITLE III OF THE BANKHEAD-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.

[[Page 28]]

    (c) The National Grasslands shall be administered under sound and 
progressive principles of land conservation and multiple use, and to 
promote development of grassland agriculture and sustained-yield 
management of the forage, fish and wildlife, timber, water and 
recreational resources in the areas of which the National Grasslands are 
a part.
    (d) In the administration of the National Grasslands the resources 
shall be managed so as to maintain and improve soil and vegetative 
cover, and to demonstrate sound and practical principles of land use for 
the areas in which they are located. The Chief of the Forest Service 
shall, to the extent such action is feasible provide that policies for 
management of the Federally-owned lands exert a favorable influence for 
securing sound land conservation practices on associated private lands.
    (e) National Grasslands in the following States and counties are 
hereby grouped and designated as indicated:

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


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



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

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

[33 FR 12370, Sept. 4, 1968]



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

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

[27 FR 9217, Sept. 18, 1962]



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 29]]

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 214_POSTDECISIONAL ADMINISTRATIVE REVIEW PROCESS FOR OCCUPANCY 
OR USE OF NATIONAL FOREST SYSTEM LANDS AND RESOURCES--Table of 

Contents



Sec.
214.1 Purpose and scope.
214.2 Definitions.
214.3 Parties to an appeal.
214.4 Decisions that are appealable.
214.5 Decisions that are not appealable.
214.6 Notice of an appealable decision.
214.7 Levels of review.
214.8 Appeal content.
214.9 Filing of an appeal.
214.10 Dismissal of an appeal.
214.11 Intervention.
214.12 Responsive statement and reply.
214.13 Stays.
214.14 Conduct of an appeal.
214.15 Resolution of issues prior to an appeal decision.
214.16 Oral presentation.
214.17 Appeal record.
214.18 Appeal decision.
214.19 Procedures for discretionary review.
214.20 Exhaustion of administrative remedies.
214.21 Information collection requirements.
214.22 Applicability and effective date.

    Authority: 7 U.S.C. 1011(f); 16 U.S.C. 472, 551.

    Source: 78 FR 33717, June 5, 2013, unless otherwise noted.



Sec. 214.1  Purpose and scope.

    (a) Purpose. This part provides a fair and deliberate process by 
which holders, operators, and solicited applicants may appeal certain 
written decisions issued by Responsible Officials involving written 
instruments authorizing the occupancy or use of National Forest System 
lands and resources.
    (b) Scope. This part specifies who may appeal, decisions that are 
appealable and not appealable, the responsibilities of parties to an 
appeal, and the time periods and procedures that govern the conduct of 
appeals under this part.



Sec. 214.2  Definitions.

    Appeal. A document filed with an Appeal Deciding Officer in which an 
individual or entity seeks review of a Forest Service decision under 
this part.
    Appeal Deciding Officer. The Forest Service line officer who is one 
organizational level above the Responsible Official or the respective 
Deputy Forest Supervisor, Deputy Regional Forester, or Associate Deputy 
Chief with the delegation of authority relevant to the provisions of 
this part.
    Appeal decision. The final written decision issued by an Appeal 
Deciding Officer on an appeal filed under this part which affirms or 
reverses a Responsible Official's appealable decision in whole or in 
part, explains the basis for the decision, and provides additional 
instructions to the parties as necessary.
    Appeal record. Documentation and other information filed with the 
Appeal Deciding Officer within the relevant time period by parties to 
the appeal and upon which review of an appeal is conducted.
    Appellant. An individual or entity that has filed an appeal under 
this part.
    Cancellation. The invalidation, in whole or in part, of a term 
grazing permit or an instrument for the disposal of mineral materials.
    Discretionary Reviewing Officer. The U.S. Department of Agriculture 
(USDA) or Forest Service official authorized to review an appeal 
decision by an Appeal Deciding Officer or a decision by the Chief under 
this part.
    Holder. An individual or entity that holds a valid written 
authorization.
    Intervenor. An individual or entity whose request to intervene has 
been granted by the Appeal Deciding Officer.
    Modification. A Responsible Official's written revision of the terms 
and conditions of a written authorization.
    Operator. An individual or entity conducting or proposing to conduct 
mineral operations.
    Oral presentation. An informal meeting conducted by the Appeal 
Deciding Officer during which parties to an appeal may present 
information in support of their position.
    Prospectus. An announcement published by the Forest Service 
soliciting

[[Page 30]]

competitive applications for a written authorization.
    Responsible Official. The Forest Service line officer who has the 
delegated authority to make and implement a decision that may be 
appealed under this part.
    Responsive statement. The document filed by the Responsible Official 
with the Appeal Deciding Officer that addresses the issues raised and 
relief requested in an appeal.
    Revocation. The cessation, in whole or in part, of a written 
authorization, other than a grazing permit or an instrument for the 
disposal of mineral materials, by action of Responsible Official before 
the end of the specified period of occupancy or use.
    Solicited applicant. An individual or entity that has submitted a 
competitive application in response to a prospectus.
    Suspension. A temporary revocation or cancellation of a written 
authorization.
    Termination. The cessation of a written authorization by operation 
of law or by operation of a fixed or agreed-upon condition, event, or 
time as specified in the authorization, which does not require a 
decision by a Responsible Official to take effect.
    Written authorization. A term grazing permit, plan of operations, 
special use authorization, mineral material contract or permit, or other 
type of written instrument issued by the Forest Service or a lease or 
permit for leasable minerals issued by the U.S. Department of the 
Interior that authorizes the occupancy or use of National Forest System 
lands or resources and specifies the terms and conditions under which 
the occupancy or use may occur.



Sec. 214.3  Parties to an appeal.

    Parties to an appeal under this part are limited to the holder, 
operator, or solicited applicants who are directly affected by an 
appealable decision, intervenors, and the Responsible Official.



Sec. 214.4  Decisions that are appealable.

    To be appealable under this part, a decision must be issued by a 
Responsible Official in writing and must fall into one of the following 
categories:
    (a) Livestock grazing. (1) Modification of a term grazing permit 
issued under 36 CFR part 222, subpart A. Issuance of annual operating 
instructions does not constitute a permit modification and is not an 
appealable decision;
    (2) Suspension or cancellation, other than cancellation resulting 
from the permittee's waiver to the United States, of a term grazing 
permit issued under 36 CFR part 222, subpart A;
    (3) Denial of reauthorization of livestock grazing under a term 
grazing permit if the holder files an application for a new permit 
before the existing permit expires; or
    (4) Denial of a term grazing permit to a solicited applicant under 
36 CFR part 222, subpart C.
    (b) Minerals. (1) Approval or denial of an initial, modified, or 
supplemental plan of operations or operating plan; requirement of an 
increase in bond coverage; requirement of measures to avoid irreparable 
injury, loss, or damage to surface resources pending modification of a 
plan of operations or operating plan; or issuance of a notice of 
noncompliance pursuant to 36 CFR part 228, subpart A or D, or part 292, 
subpart D, F, or G;
    (2) Approval or denial of an operating plan, issuance of a notice of 
noncompliance, or extension, suspension, or cancellation, other than 
cancellation by mutual agreement, for or of contracts, permits, or 
prospecting permits for mineral materials issued under 36 CFR part 228, 
subpart C;
    (3) Approval or denial of a surface use plan of operations, request 
to supplement a surface use plan of operations, suspension of oil and 
gas operations, or issuance of a notice of noncompliance pursuant to 36 
CFR part 228, subpart E;
    (4) Consent or denial of consent to the U.S. Department of the 
Interior's administration of previously issued leases or permits for 
leasable minerals other than oil and gas resources;
    (5) Suspension or revocation of an operating plan for Federal lands 
within the Sawtooth National Recreation Area pursuant to 36 CFR part 
292, subpart D;
    (6) Suspension of locatable mineral operations on National Forest 
System lands within the Hells Canyon National

[[Page 31]]

Recreation Area pursuant to 36 CFR part 292, subpart F;
    (7) Suspension of locatable mineral operations on National Forest 
System lands within the Smith River National Recreation Area or approval 
of an initial or amended operating plan for exercise of outstanding 
mineral rights on National Forest System lands within the Smith River 
National Recreation Area pursuant to 36 CFR part 292, subpart G;
    (8) Except as provided in paragraph (7), determinations of the 
acceptability of an initial or amended operating plan for exercise of 
outstanding mineral rights on National Forest System lands; or
    (9) Determinations of the acceptability of an initial or amended 
operating plan for exercise of reserved mineral rights located on 
National Forest System lands.
    (c) Special uses. (1) Modification, suspension, or revocation of a 
special use authorization, other than acceptance of an operating plan, 
including:
    (i) A special use authorization issued under 36 CFR part 251, 
subpart B or D, other than modification, suspension or revocation of a 
noncommercial group use permit, suspension or revocation of an easement 
issued pursuant to 36 CFR 251.53(e) or 251.53(l), or revocation with the 
consent of the holder;
    (ii) A special use authorization issued under 36 CFR part 212, 
subpart A, for ingress and egress to private lands that are intermingled 
with or adjacent to National Forest System lands;
    (iii) A special use authorization issued under 36 CFR part 251, 
subpart A, that authorizes the exercise of rights reserved in 
conveyances to the United States;
    (iv) A permit and occupancy agreement issued under 36 CFR 213.3 for 
national grasslands and other lands administered under Title III of the 
Bankhead-Jones Farm Tenant Act;
    (v) A permit issued under 36 CFR 293.13 for access to valid 
occupancies entirely within a wilderness in the National Forest System.
    (vi) A permit issued under the Archaeological Resources Protection 
Act of 1979 and 36 CFR part 296 for excavation or removal of 
archaeological resources; and
    (vii) A special use authorization governing surface use associated 
with the exercise of outstanding mineral rights;
    (2) Denial of a special use authorization to a solicited applicant 
based on the process used to select a successful applicant;
    (3) Implementation of new land use fees for a special use 
authorization, other than:
    (i) Revision or replacement of a land use fee system or schedule 
that is implemented through public notice and comment; and
    (ii) Annual land use fee adjustments based on an inflation factor 
that are calculated under an established fee system or schedule in 
accordance with the terms and conditions of a written authorization;
    (4) Assignment of a performance rating that affects reissuance or 
extension of a special use authorization; or
    (5) Denial of renewal of a special use authorization if it 
specifically provides for renewal and if the holder requests renewal of 
the authorization before it expires.
    (d) Other land uses. Denial or revocation of a certification of 
compliance issued under 36 CFR part 292, subpart C, related to the use, 
subdivision, and development of privately owned property within the 
boundaries of the Sawtooth National Recreation Area.



Sec. 214.5  Decisions that are not appealable.

    Holders, operators, and solicited applicants may not appeal under 
this part any decisions issued by a Responsible Official that are not 
expressly set forth in Sec. 214.4.



Sec. 214.6  Notice of an appealable decision.

    (a) The Responsible Official shall promptly give written notice of 
decisions subject to appeal under this part to the affected holder, 
operator, or solicited applicants and to any holder of a similar written 
authorization who has made a written request to be notified of a 
specific decision.
    (b) If the decision is appealable, the notice must specify the 
contents of an appeal, the name and mailing address of the Appeal 
Deciding Officer, and the filing deadline. The notice shall also

[[Page 32]]

include a statement indicating the Responsible Official's willingness to 
meet with the affected holder, operator, or solicited applicants to 
discuss any issues related to the decision and, where applicable, 
informing term grazing permit holders of the opportunity to request 
mediation in accordance with 36 CFR 222.20 through 222.26.
    (c) If the decision is not appealable, the Responsible Official must 
include a statement in the written decision informing the affected 
holder, operator, or solicited applicants that further administrative 
review of the decision is not available.



Sec. 214.7  Levels of review.

    (a) Appeal. (1) One level of appeal is available for appealable 
decisions made by District Rangers, Forest or Grassland Supervisors, and 
Regional Foresters. If a District Ranger is the Responsible Official, 
the appeal is filed with the Forest or Grassland Supervisor. If a Forest 
or Grassland Supervisor is the Responsible Official, the appeal is filed 
with the Regional Forester. If a Regional Forester is the Responsible 
Official, the appeal is filed with the Chief of the Forest Service.
    (2) No appeal is available for decisions made by the Chief.
    (b) Discretionary review. (1) Appeal decisions issued by Forest or 
Grassland Supervisors, Regional Foresters, or the Chief are eligible for 
discretionary review. If a Forest or Grassland Supervisor is the Appeal 
Deciding Officer, discretionary review is conducted by the Regional 
Forester. If a Regional Forester is the Appeal Deciding Officer, 
discretionary review is conducted by the Chief. If the Chief is the 
Appeal Deciding Officer, discretionary review is conducted by the Under 
Secretary for Natural Resources and Environment.
    (2) Decisions made by the Chief that fall into one of the categories 
enumerated in 36 CFR 214.4 are eligible for discretionary review by the 
Under Secretary for Natural Resources and Environment.



Sec. 214.8  Appeal content.

    (a) General requirements for the contents of an appeal. All appeals 
must include:
    (1) The appellant's name, mailing address, daytime telephone number, 
and email address, if any;
    (2) A brief description of the decision being appealed, including 
the name and title of the Responsible Official and the date of the 
decision;
    (3) The title or type and, if applicable, identification number for 
the written authorization and the date of application for or issuance of 
the written authorization, if applicable;
    (4) A statement of how the appellant is adversely affected by the 
decision being appealed;
    (5) A statement of the relevant facts underlying the decision being 
appealed;
    (6) A discussion of issues raised by the decision being appealed, 
including identification of any laws, regulations, or policies that were 
allegedly violated in reaching the decision being appealed;
    (7) A statement as to whether and how the appellant has attempted to 
resolve the issues under appeal with the Responsible Official and the 
date and outcome of those efforts;
    (8) A statement of the relief sought;
    (9) Any documents and other information upon which the appellant 
relies; and
    (10) The appellant's signature and the date.
    (b) Specific requirements for the contents of an appeal. In addition 
to the general requirements in Sec. 214.8(a), the following specific 
requirements must be included in an appeal, where applicable:
    (1) A request for an oral presentation under Sec. 214.16;
    (2) A request for a stay under Sec. 214.13; and
    (3) A request to participate in a state mediation program regarding 
certain term grazing permit disputes under 36 CFR part 222, subpart B.



Sec. 214.9  Filing of an appeal.

    (a) Timeframe for filing an appeal. An appeal must be filed with the 
Appeal Deciding Officer within 45 days of the date of the decision.
    (b) Method of filing. Appeal documents may be filed in person or by 
courier, by mail or private delivery service, by facsimile, or by 
electronic mail. Parties to an appeal are responsible for

[[Page 33]]

ensuring timely filing of appeal documents.



Sec. 214.10  Dismissal of an appeal.

    (a) The Appeal Deciding Officer shall dismiss an appeal without 
review when one or more of the following applies:
    (1) The appeal is not filed within the required time period.
    (2) The person or entity that filed the appeal is not a holder, an 
operator, or a solicited applicant of a written authorization that is 
the subject of the appealable decision.
    (3) The decision is not appealable under this part.
    (4) The appeal does not meet the content requirements specified in 
Sec. 214.8(a), provided that an appeal may not be dismissed for failure 
to include an appraisal report which has not been completed by the 
filing deadline.
    (5) The appellant withdraws the appeal.
    (6) The Responsible Official withdraws the written decision that was 
appealed.
    (7) An informal resolution of the dispute is reached pursuant to 
Sec. 214.15 or a mediated agreement of a term grazing dispute is 
achieved pursuant to 36 CFR part 222, subpart B.
    (8) The requested relief cannot be granted under applicable facts, 
laws, regulations, or policies.
    (b) The Appeal Deciding Officer shall give written notice of the 
dismissal of an appeal and shall set forth the reasons for dismissal.



Sec. 214.11  Intervention.

    (a) Eligibility to intervene. To participate as an intervenor in 
appeals under this part, a party must:
    (1) Be a holder, an operator, or a solicited applicant who claims an 
interest relating to the subject matter of the decision being appealed 
and is so situated that disposition of the appeal may impair that 
interest; and
    (2) File a written request to intervene with the Appeal Deciding 
Officer within 15 days after an appeal has been filed.
    (b) Request to intervene. A request to intervene must include:
    (1) The requester's name, mailing address, daytime telephone number, 
and email address, if any;
    (2) A brief description of the decision being appealed, including 
the name and title of the Responsible Official and the date of the 
decision;
    (3) The title or type and, if applicable, identification number for 
the written authorization and the date of application for or issuance of 
the written authorization, if applicable;
    (4) A description of the requester's interest in the appeal and how 
disposition of the appeal may impair that interest;
    (5) A discussion of the factual and legal allegations in the appeal 
with which the requester agrees or disagrees;
    (6) A description of additional facts and issues that are not raised 
in the appeal that the requester believes are relevant and should be 
considered;
    (7) A description of the relief sought, particularly as it differs 
from the relief sought by the appellant;
    (8) Where applicable, a response to the appellant's request for a 
stay of the decision being appealed;
    (9) Where applicable, a response to the appellant's request for an 
oral presentation;
    (10) Where applicable, a response to the appellant's request for 
mediation of a term grazing permit dispute under 36 CFR part 222, 
subpart B; and
    (11) The requester's signature and the date.
    (c) Response to a request to intervene. The appellant and 
Responsible Official shall have 5 days from receipt of a request to 
intervene to file a written response with the Appeal Deciding Officer.
    (d) Intervention decision. The Appeal Deciding Officer shall have 5 
days after the date a response to a request to intervene is due to issue 
a decision granting or denying the request. The Appeal Deciding 
Officer's decision shall be in writing and shall briefly explain the 
basis for granting or denying the request. The Appeal Deciding Officer 
shall deny a request to intervene or shall withdraw a decision granting 
intervenor status as moot if the corresponding appeal is dismissed under 
Sec. 214.10.

[[Page 34]]



Sec. 214.12  Responsive statement and reply.

    (a) Responsive statement. The Responsible Official shall prepare a 
responsive statement addressing the factual and legal allegations in the 
appeal. The responsive statement and any supporting documentation shall 
be filed with the Appeal Deciding Officer within 20 days of receipt of 
the appeal or the unsuccessful conclusion of mediation conducted 
pursuant to 36 CFR part 222, subpart B, whichever is later.
    (b) Reply. Within 10 days of receipt of the responsive statement, 
the appellant and intervenors, if any, may file a reply with the Appeal 
Deciding Officer addressing the contentions in the responsive statement.



Sec. 214.13  Stays.

    (a) Implementation. An appealable decision shall be implemented 
unless an authorized stay is granted under Sec. 214.13(b) or an 
automatic stay goes into effect under Sec. 214.13(c).
    (b) Authorized stays. Except where a stay automatically goes into 
effect under Sec. 214.13(c), the Appeal Deciding Officer may grant a 
written request to stay the decision that is the subject of an appeal 
under this part.
    (1) Stay request. To obtain a stay, an appellant must include a 
request for a stay in the appeal pursuant to Sec. 214.8(b)(2) and a 
statement explaining the need for a stay. The statement must include, at 
a minimum:
    (i) A description of the adverse impact on the appellant if a stay 
is not granted;
    (ii) A description of the adverse impact on National Forest System 
lands and resources if a stay is not granted; or
    (iii) An explanation as to how a meaningful decision on the merits 
of the appeal could not be achieved if a stay is not granted.
    (2) Stay response. The Responsible Official may support, oppose, or 
take no position in the responsive statement regarding the appellant's 
stay request. Intervenors may support, oppose, or take no position in 
the intervention request regarding the appellant's stay request.
    (3) Stay decision. The Appeal Deciding Officer shall issue a 
decision granting or denying a stay request within 10 days after a 
responsive statement or an intervention request is filed, whichever is 
later. The stay decision shall be in writing and shall briefly explain 
the basis for granting or denying the stay request.
    (c) Automatic stays. The following decisions are automatically 
stayed once an appeal is filed by a holder, operator, or solicited 
applicant:
    (1) Decisions to issue a written authorization pursuant to a 
prospectus;
    (2) Decisions to recalculate revenue-based land use fees for a 
special use authorization pursuant to an audit issued after June 5, 
2013; and
    (3) Decisions to cancel or suspend a term grazing permit subject to 
mediation under 36 CFR 222.20 and for which mediation is requested in 
accordance with that provision.
    (d) Stay duration. Authorized stays and automatic stays under Sec. 
214.13(c)(1) and (c)(2) shall remain in effect until a final 
administrative decision is issued in the appeal, unless they are 
modified or lifted in accordance with Sec. 214.13(e). Automatic stays 
under Sec. 214.13(c)(3) shall remain in effect for the duration of the 
mediation period as provided in 36 CFR 222.22.
    (e) Modification or lifting of a stay. The Appeal Deciding Officer 
or a Discretionary Reviewing Officer may modify or lift an authorized 
stay based upon a written request by a party to the appeal who 
demonstrates that the circumstances have changed since the stay was 
granted and that it is unduly burdensome or unfair to maintain the stay.



Sec. 214.14  Conduct of an appeal.

    (a) Evidence of timely filing. The Appeal Deciding Officer shall 
determine the timeliness of an appeal by the following indicators:
    (1) The date of the U.S. Postal Service postmark for an appeal 
received before the close of the fifth business day after the appeal 
filing date;
    (2) The electronically generated posted date and time for email and 
facsimiles;
    (3) The shipping date for delivery by private carrier for an appeal 
received before the close of the fifth business day after the appeal 
filing date; or

[[Page 35]]

    (4) The official agency date stamp showing receipt of hand delivery.
    (b) Computation of time. (1) A time period in this part begins on 
the first day following the event or action triggering the time period.
    (2) All time periods shall be computed using calendar days, 
including Saturdays, Sundays, and Federal holidays. However, if a time 
period ends on a Saturday, Sunday, or Federal holiday, the time period 
is extended to the end of the next Federal business day.
    (c) Extensions of time--(1) In general. Parties to an appeal, Appeal 
Deciding Officers, and Discretionary Reviewing Officers shall meet the 
time periods specified in this part, unless an extension of time has 
been granted under paragraph (c)(3) of this section. Extension requests 
from parties to an appeal shall be made in writing, shall explain the 
need for the extension, and shall be transmitted to the Appeal Deciding 
Officer.
    (2) Time periods that may not be extended. The following time 
periods may not be extended:
    (i) The time period for filing an appeal;
    (ii) The time period to decide whether to conduct discretionary 
review of an appeal decision or a Chief's decision; and
    (iii) The time period to issue a discretionary review decision.
    (3) Time periods that may be extended. Except as provided in 
paragraph (c)(2) of this section, all time periods in this part may be 
extended upon written request by a party to an appeal and a finding of 
good cause for the extension by the Appeal Deciding Officer. Written 
requests for extensions of time will be automatically granted by the 
Appeal Deciding Officer where the parties to an appeal represent that 
they are working in good faith to resolve the dispute and that 
additional time would facilitate negotiation of a mutually agreeable 
resolution.
    (4) Decision. The Appeal Deciding Officer shall have 10 days to 
issue a decision granting or denying the extension request. The decision 
shall be in writing and shall briefly explain the basis for granting or 
denying the request.
    (5) Duration. Ordinarily, extensions that add more than 60 days to 
the appeal period should not be granted.
    (d) Procedural orders. The Appeal Deciding Officer may issue 
procedural orders as necessary for the orderly, expeditious, and fair 
conduct of an appeal under this part.
    (e) Consolidation of appeals. (1) The Appeal Deciding Officer may 
consolidate multiple appeals of the same decision or of similar 
decisions involving common issues of fact and law and issue one appeal 
decision.
    (2) The Responsible Official may prepare one responsive statement 
for consolidated appeals.
    (f) Requests for additional information. The Appeal Deciding Officer 
may ask parties to an appeal for additional information to clarify 
appeal issues. If necessary, the Appeal Deciding Officer may extend 
appeal time periods per paragraph (c)(3) of this section to allow for 
submission of the additional information and to give the other parties 
an opportunity to review and comment on it.
    (g) Service of documents. (1) Parties to an appeal shall send a copy 
of all documents filed in the appeal to all other parties, including the 
appellant's sending a copy of the appeal to the Responsible Official, at 
the same time the original is filed with the Appeal Deciding Officer. 
All filings in an appeal must be accompanied by a signed and dated 
certificate of service attesting that all other parties have been 
served. Prospective intervenors shall send a copy of their request to 
intervene to all parties to the appeal at the same time the original is 
filed with the Appeal Deciding Officer. Each party and prospective 
intervenor is responsible for identifying the parties to the appeal and 
may contact the Appeal Deciding Officer for assistance regarding their 
names and addresses. Filings in an appeal shall not be considered by the 
Appeal Deciding Officer unless they are accompanied by a certificate of 
service.
    (2) All decisions and orders issued by the Appeal Deciding Officer 
and the Discretionary Reviewing Officer related to the appeal shall be 
in writing and shall be sent to all parties to the appeal.

[[Page 36]]

    (h) Posting of final decisions. Once a final appeal decision or 
discretionary review decision has been issued, its availability shall be 
posted on the Web site of the national forest or national grassland or 
region that issued the appealable decision or on the Web site of the 
Washington Office for Chief's decisions.
    (i) Expenses. Each party to an appeal shall bear its own expenses, 
including costs associated with preparing the appeal, participating in 
an oral presentation, obtaining information regarding the appeal, and 
retaining professional consultants or counsel.



Sec. 214.15  Resolution of issues prior to an appeal decision.

    (a) The Responsible Official may discuss an appeal with a party or 
parties to narrow issues, agree on facts, and explore opportunities to 
resolve one or more of the issues in dispute by means other than 
issuance of an appeal decision.
    (b) The Responsible Official who issued a decision under appeal may 
withdraw the decision, in whole or in part, during an appeal to resolve 
one or more issues in dispute. The Responsible Official shall notify the 
parties to the appeal and the Appeal Deciding Officer of the withdrawal. 
If the withdrawal of the decision eliminates all the issues in dispute 
in the appeal, the Appeal Deciding Officer shall dismiss the appeal 
under Sec. 214.10.



Sec. 214.16  Oral presentation.

    (a) Purpose. The purpose of an oral presentation is to provide 
parties to an appeal with an opportunity to discuss their concerns 
regarding the appealable decision with the Appeal Deciding Officer.
    (b) Procedure. Oral presentations are not evidentiary proceedings 
involving examination and cross-examination of witnesses and are not 
subject to formal rules of procedure.
    (c) Scope. Oral presentations shall be conducted in an informal 
manner and shall be limited to clarifying or elaborating upon 
information that has already been filed with the Appeal Deciding 
Officer. New information may be presented only if it could not have been 
raised earlier in the appeal and if it would be unfair and prejudicial 
to exclude it.
    (d) Requests. A request for an oral presentation included in an 
appeal shall be granted by the Appeal Deciding Officer unless the appeal 
has been dismissed under Sec. 214.10.
    (e) Availability. Oral presentations may be conducted during appeal 
of a decision, but not during discretionary review.
    (f) Scheduling and rules. The Appeal Deciding Officer shall conduct 
the oral presentation within 10 days of the date a reply to the 
responsive statement is due. The Appeal Deciding Officer shall notify 
the parties of the date, time, and location of the oral presentation and 
the procedures to be followed.
    (g) Participation. All parties to an appeal are eligible to 
participate in the oral presentation. At the discretion of the Appeal 
Deciding Officer, non-parties may observe the oral presentation, but are 
not eligible to participate.
    (h) Summaries and transcripts. A summary of an oral presentation may 
be included in the appeal record only if it is submitted to the Appeal 
Deciding Officer by a party to the appeal at the end of the oral 
presentation. A transcript of an oral presentation prepared by a 
certified court reporter may be included in the appeal record if the 
transcript is filed with the Appeal Deciding Officer within 10 days of 
the date of the oral presentation and if the transcript is paid for by 
those who requested it.



Sec. 214.17  Appeal record.

    (a) Location. The Appeal Deciding Officer shall maintain the appeal 
record in one location.
    (b) Contents. The appeal record shall consist of information filed 
with the Appeal Deciding Officer, including the appealable decision, 
appeal, intervention request, responsive statement, reply, oral 
presentation summary or transcript, procedural orders and other rulings, 
and any correspondence or other documentation related to the appeal as 
determined by the Appeal Deciding Officer.
    (c) Closing of the record. (1) The Appeal Deciding Officer shall 
close the appeal record on:

[[Page 37]]

    (i) The day after the date the reply to the responsive statement is 
due if no oral presentation is conducted;
    (ii) The day after the oral presentation is conducted if no 
transcript of the oral presentation is being prepared; or
    (iii) The day after the date a transcript of the oral presentation 
is due if one is being prepared.
    (2) The Appeal Deciding Officer shall notify all parties to the 
appeal of closing of the record.
    (d) Inspection by the public. The appeal record is open for public 
inspection in accordance with the Freedom of Information Act, the 
Privacy Act, and 7 CFR part 1.



Sec. 214.18  Appeal decision.

    (a) Appeal decisions made by the Appeal Deciding Officer shall be 
issued within 30 days of the date the appeal record is closed.
    (b) The appeal decision shall be based solely on the appeal record 
and oral presentation, if one is conducted.
    (c) The appeal decision shall conform to all applicable laws, 
regulations, policies, and procedures.
    (d) The appeal decision may affirm or reverse the appealable 
decision, in whole or in part. The appeal decision must specify the 
basis for affirmation or reversal and may include instructions for 
further action by the Responsible Official.
    (e) Except where a decision to conduct discretionary review has been 
made and a discretionary review decision has been issued, the appeal 
decision shall constitute USDA's final administrative decision.



Sec. 214.19  Procedures for discretionary review.

    (a) Initiation. (1) One day after issuance of an appeal decision, 
the Appeal Deciding Officer shall send a copy of the appeal decision, 
appeal, and appealable decision to the Discretionary Reviewing Officer 
to determine whether discretionary review of the appeal decision should 
be conducted.
    (2) One day after issuance of a Chief's decision that is eligible 
for discretionary review under Sec. 214.7(b)(2), the Chief shall send 
the decision to the Discretionary Reviewing Officer to determine whether 
discretionary review should be conducted.
    (b) Criteria for determining whether to conduct discretionary 
review. In deciding whether to conduct discretionary review, the 
Discretionary Reviewing Officer should, at a minimum, consider the 
degree of controversy surrounding the decision, the potential for 
litigation, and the extent to which the decision establishes precedent 
or new policy.
    (c) Time period. Upon receipt of the appeal decision, appeal, and 
appealable decision or Chief's decision, the Discretionary Reviewing 
Officer shall have 30 days to determine whether to conduct discretionary 
review and may request the appeal record or the record related to the 
Chief's decision during that time to assist in making that 
determination. If a request for the record is made, it must be 
transmitted to the Discretionary Reviewing Officer within 5 days.
    (d) Notification. The Discretionary Reviewing Officer shall notify 
the parties and the Appeal Deciding Officer in writing of a decision to 
conduct discretionary review. The Discretionary Reviewing Officer may 
notify the parties and the Appeal Deciding Officer of a decision not to 
conduct discretionary review within 30 days. If the Discretionary 
Reviewing Officer takes no action within 30 days of receipt of the 
appeal decision, appeal, and appealable decision or Chief's decision, 
the appeal decision or Chief's decision shall constitute USDA's final 
administrative decision.
    (e) Scope of discretionary review and issuance of a discretionary 
review decision. Discretionary review shall be limited to the record. No 
additional information shall be considered by the Discretionary 
Reviewing Officer. The Discretionary Reviewing Officer shall have 30 
days to issue a discretionary review decision after notification of the 
parties and Appeal Deciding Officer has occurred pursuant to Sec. 
214.19(d). The Discretionary Reviewing Officer's decision shall 
constitute USDA's final administrative decision. If a discretionary 
review decision is not issued within 30 days following the notification 
of the decision to conduct discretionary review, the appeal decision or

[[Page 38]]

Chief's decision shall constitute USDA's final administrative decision.



Sec. 214.20  Exhaustion of administrative remedies.

    Per 7 U.S.C. 6912(e), judicial review of a decision that is 
appealable under this part is premature unless the plaintiff has 
exhausted the administrative remedies under this part.



Sec. 214.21  Information collection requirements.

    The rules of this part governing appeal of decisions relating to 
occupancy or use of National Forest System lands and resources specify 
the information that an appellant must provide in an appeal. Therefore, 
these rules contain information collection requirements as defined in 5 
CFR part 1320. These information collection requirements are assigned 
Office of Management and Budget Control Number 0596-0231.



Sec. 214.22  Applicability and effective date.

    This part prescribes the procedure for administrative review of 
appealable decisions and Chief's decisions set forth in Sec. 214.4 
issued on or after June 5, 2013.



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



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

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

    Source: 68 FR 33595, June 4, 2003, unless otherwise noted.



Sec. 215.1  Purpose and scope.

    (a) Purpose. The rules of this part have two purposes. First, this 
part establishes a process by which the public receives notice and is 
provided an opportunity to comment on proposed actions for projects and 
activities implementing a land and resource management plan prior to a 
decision by the Responsible Official. Second, this part establishes an 
appeal process and identifies the decisions that may be appealed, who 
may appeal those decisions, the responsibilities of the participants in 
an appeal, and the procedures that apply for the prompt disposition of 
the appeal.
    (b) Scope. Notice of proposed actions and opportunity to comment 
provide an opportunity for the public to provide meaningful input prior 
to the decision on projects and activities implementing land management 
plans. The rules of this part complement other opportunities to 
participate in the Forest Service's project and activity planning, such 
as those provided by the National Environmental Policy Act of 1969 
(NEPA) and its implementing regulations at 40 CFR parts 1500-1508 and 36 
CFR part 220; the National Forest Management Act (NFMA) and its 
implementing regulations at 36 CFR part 219; and the regulations at 36 
CFR part 216 governing public notice and comment for certain Forest 
Service directives.

[68 FR 33595, June 4, 2003, as amended at 78 FR 33723, June 5, 2013]



Sec. 215.2  Definitions.

    Address--An individual's or organization's current physical mailing 
address. An e-mail address is insufficient for identification.
    Appeal--A document filed with an Appeal Deciding Officer in which an 
individual or entity seeks review of a Forest Service decision under 
this part.

[[Page 39]]

    Appeal Deciding Officer--The U.S. Department of Agriculture (USDA) 
official or Forest Service line officer who is one organizational level 
above the Responsible Official or the respective Deputy Forest 
Supervisor, Deputy Regional Forester, or Associate Deputy Chief with the 
delegation of authority relevant to the provisions of this part.
    Appeal disposition--Either a written appeal decision or written 
notification in cases where the original decision is the final agency 
action and no appeal decision is issued.
    Appeal period--The 45-calendar-day period following publication of 
the legal notice in the newspaper of record of a decision during which 
an appeal may be filed with the Appeal Deciding Officer.
    Appeal record-Documentation and other information filed with the 
Appeal Deciding Officer within the relevant time period by parties to an 
appeal and upon which review of an appeal is conducted.
    Appeal Reviewing Officer--A Forest Service line officer or USDA 
official who reviews an appeal and makes a written recommendation to the 
Appeal Deciding Officer on disposition of the appeal.
    Appellant--An individual or entity that has filed an appeal of a 
decision under this part.
    Categorically excluded (CE)--Proposed actions, which do not 
individually or cumulatively have a significant effect on the human 
environment and for which neither an environmental impact statement 
(EIS) nor an environmental assessment (EA) is required (40 CFR 1508.4; 
FSH 1909.15, Chapter 30).
    Comment period--The 30-calendar-day period following publication of 
the legal notice in the newspaper of record of a proposed action, during 
which the public has the opportunity to provide comments to a 
Responsible Official on a proposed action subject to this part, except 
for projects requiring an EIS which follow CEQ procedures for notice and 
comment (40 CFR parts 1503 and 1506.10; FSH 1909.15, Chapter 20). The 
time period is computed using calendar days, including Saturdays, 
Sundays, and Federal holidays. However, when the time period expires on 
a Saturday, Sunday, or Federal holiday, comments shall be accepted until 
the end of the next Federal working day.
    Decision documentation--The Decision Notice (DN) or Record of 
Decision (ROD) and all relevant environmental and other analysis 
documentation and records, including all comment letters received, on 
which the Responsible Official bases a decision under appeal.
    Decision Notice (DN)--A concise written record of a Responsible 
Official's decision based on an environmental assessment and a Finding 
of No Significant Impact (FONSI) (40 CFR 1508.13; FSH 1909.15, Chapter 
40).
    Emergency situation--A situation on National Forest System (NFS) 
lands for which immediate implementation of all or part of a decision is 
necessary for relief from hazards threatening human health and safety or 
natural resources on those NFS or adjacent lands; or that would result 
in substantial loss of economic value to the Federal Government if 
implementation of the decision were delayed.
    Environmental Assessment (EA)--A concise public document that 
provides sufficient evidence and analysis for determining whether to 
prepare an environmental impact statement (EIS) or a finding of no 
significant impact, aids an agency's compliance with the National 
Environmental Policy Act (NEPA) when no EIS is necessary, and 
facilitates preparation of a statement when one is necessary (40 CFR 
1508.9; FSH 1909.15, Chapter 40).
    Environmental Impact Statement (EIS)--A detailed written statement 
as required by section 102(2)(C) of the National Environmental Policy 
Act of 1969 (40 CFR 1508.11; FSH 1909.15, Chapter 20).
    Finding of No Significant Impact (FONSI)--A document prepared by a 
Federal agency presenting the reasons why an action, not otherwise 
excluded, will not have a significant effect on the human environment 
and for which an environmental impact statement, therefore, will not be 
prepared. It includes the environmental assessment or a summary of it 
and shall note any other environmental documents related to it (40 
CFR1508.13; FSH 1909.15, Chapter 40).
    Forest Service line officer--A Forest Service official who serves in 
a direct

[[Page 40]]

line of command from the Chief and who has the delegated authority to 
make and execute decisions subject to this part.
    Lead appellant--For appeals submitted with multiple names, or having 
multiple organizations listed, the appellant identified to represent all 
other appellants for the purposes of communication, written or 
otherwise, regarding the appeal. The use of the generic term 
``appellant'' applies to lead appellant also.
    Name--The first and last name of an individual or the name of an 
organization. An electronic username is insufficient for identification 
of an individual or organization.
    National Forest System land--All lands, waters or interests therein 
administered by the Forest Service (Sec. 251.51).
    Newspaper(s) of record--Those principal newspapers of general 
circulation annually identified in a list and published in the Federal 
Register by each Regional Forester to be used for publishing notices of 
projects and activities implementing land and resource management plans.
    Projects and activities implementing a land and resource management 
plan--Site-specific projects and activities, including those for 
research, on National Forest System lands that are approved in a 
Decision Notice (DN) or Record of Decision (ROD) by a Forest Service 
official.
    Proposed action--A proposal made by the Forest Service that is a 
project or activity implementing a land and resource management plan on 
National Forest System lands and is subject to the notice and comment 
provisions of this part.
    Record of Decision (ROD)--A document signed by a Responsible 
Official recording a decision that was preceded by preparation of an 
environmental impact statement (40 CFR 1505.2; FSH 1909.15, Chapter 20).
    Responsible Official--The Forest Service line officer who has the 
delegated authority to make and implement a decision that may be 
appealed under this part.
    Substantive comments--Comments that are within the scope of the 
proposed action, are specific to the proposed action, have a direct 
relationship to the proposed action and include supporting reasons for 
the Responsible Official to consider.
    Transmittal letter--The Responsible Official's letter transmitting 
the decision documentation. The letter shall include only an index of 
the transmitted documents and identification of those portions of the 
record that relate to the issues raised.

[68 FR 33595, June 4, 2003, as amended at 78 FR 33723, June 5, 2013]



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

    The legal notice (Sec. 215.5) and opportunity to comment procedures 
(Sec. 215.6) apply only to:
    (a) Proposed projects and activities implementing land management 
plans (Sec. 215.2) for which an environmental assessment (EA) is 
prepared, except hazardous fuel reduction projects conducted under 
provisions of the Healthy Forests Restoration Act (HFRA), as set out at 
part 218, subpart A, of this title.
    (b) Proposed projects and activities described in a draft 
environmental impact statement (DEIS) for which notice and comment 
procedures are governed by 40 CFR parts 1500 through 1508, except 
hazardous fuel reduction projects conducted under provisions of the 
HFRA, as set out at part 218, subpart A, of this title.
    (c) Proposed non-significant amendments to a land and resource 
management plan (pursuant to the 1982 planning regulations) that are 
included as part of a decision on a proposed action for which an EA is 
prepared;
    (d) A proposed action resulting in a revision of an EA based on 
consideration of new information or changed circumstances (FSH 1909.15, 
Chapter 10, section 18) as provided for in Sec. 215.18(b)(1); and
    (e) Proposed research activities to be conducted on National Forest 
System lands.

[68 FR 33595, June 4, 2003, as amended at 69 FR 1533, Jan. 9, 2004; 73 
FR 53712, Sept. 17, 2008]

[[Page 41]]



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

    The procedures for legal notice (Sec. 215.5) and opportunity to 
comment (Sec. 215.6) do not apply to:
    (a) Projects and activities which are categorically excluded from 
documentation in an environmental impact statement (EIS) or 
environmental assessment (EA) pursuant to FSH 1909.15, Chapter 30, 
section 31;
    (b) Proposed amendments to, revision of, or adoption of land and 
resource management plans that are made separately from any proposed 
actions, and which are therefore subject to either the objection process 
of Sec. 219.32 or the administrative appeal and review procedures of 
part 217 in effect prior to November 9, 2000 (see 36 CFR parts 200 to 
299, Revised as of July 1, 2000);
    (c) Projects and activities not subject to the provisions of the 
National Environmental Policy Act and the implementing regulations at 40 
CFR parts 1500-1508 and the National Forest Management Act and the 
implementing regulations at 36 CFR part 219;
    (d) Determinations by the Responsible Official, after consideration 
of new information or changed circumstances, that a revision of the EA 
is not required (1909.15, Chapter 10, section 18); and
    (e) Rules promulgated in accordance with the Administrative 
Procedure Act (5 U.S.C. 551 et seq.) or policies and procedures issued 
in the Forest Service Manual and Handbooks (part 216).
    (f) Hazardous fuel reduction projects conducted under the provisions 
of section 105 of the HFRA, except as provided in part 218, subpart A, 
of this title.

[68 FR 33595, June 4, 2003, as amended at 69 FR 1533, Jan. 9, 2004]



Sec. 215.5  Legal notice of proposed actions.

    (a) Responsible Official. The Responsible Official shall:
    (1) Provide notice of the opportunity to comment on a proposed 
action implementing the land and resource management plan.
    (2) Determine the most effective timing for publishing the legal 
notice of the proposed action and opportunity to comment.
    (3) Promptly mail notice about the proposed action to any individual 
or organization who has requested it and to those who have participated 
in project planning.
    (4) Publish a legal notice of the opportunity to comment on a 
proposed action as provided for in paragraph (b)(2).
    (5) Accept all written and oral comments on the proposed action as 
provided for in Sec. 215.6(a)(4).
    (6) Identify all substantive comments.
    (b) Legal notice of proposed action--(1) Content of legal notice. 
All legal notices shall include the following:
    (i) The title and brief description of the proposed action.
    (ii) A general description of the proposed action's location with 
sufficient information to allow the interested public to identify the 
location.
    (iii) A statement that the Responsible Official is requesting an 
emergency situation determination or it has been determined that an 
emergency situation exists for the project or activity as provided for 
in Sec. 215.10, when applicable.
    (iv) For a proposed action to be analyzed and documented in an 
environmental assessment (EA), a statement that the opportunity to 
comment ends 30 days following the date of publication of the legal 
notice in the newspaper of record (Sec. 215.6(a)(2)); legal notices 
shall not contain the specific date since newspaper publication dates 
may vary.
    (v) For a proposed action that is analyzed and documented in a draft 
environmental impact statement (EIS), a statement that the opportunity 
to comment ends 45 days following the date of publication of the notice 
of availability (NOA) in the Federal Register (Sec. 215.6(a)(2)). The 
legal notice must be published after the NOA and contain the NOA 
publication date.
    (vi) A statement that only those who submit timely and substantive 
comments will be accepted as appellants.
    (vii) The Responsible Official's name, title, telephone number, and 
addresses (street, postal, facsimile, and e-mail) to whom comments are 
to be submitted and the Responsible Official's office business hours for 
those submitting

[[Page 42]]

hand-delivered comments (Sec. 215.6(a)(4)(ii)).
    (viii) A statement indicating that for appeal eligibility each 
individual or representative from each organization submitting 
substantive comments must either sign the comments or verify identity 
upon request.
    (ix) The acceptable format(s) for electronic comments.
    (x) Instructions on how to obtain additional information on the 
proposed action.
    (2) Publication. (i) Through notice published annually in the 
Federal Register, each Regional Forester shall advise the public of the 
newspaper(s) of record utilized for publishing legal notices required by 
this part.
    (ii) Legal notice of the opportunity to comment on a proposed action 
shall be published in the applicable newspaper of record identified in 
paragraph (b)(2)(i) for each National Forest System unit. When the Chief 
is the Responsible Official, notice shall also be published in the 
Federal Register. The publication date of the legal notice in the 
newspaper of record is the exclusive means for calculating the time to 
submit comments on a proposed action to be analyzed and documented in an 
EA. The publication date of the NOA in the Federal Register is the 
exclusive means for calculating the time to submit comments on a 
proposed action that is analyzed and documented in a draft EIS.



Sec. 215.6  Comments on proposed actions.

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

[[Page 43]]

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



Sec. 215.7  Legal notice of decision.

    (a) The Responsible Official shall promptly mail the Record of 
Decision (ROD) or the Decision Notice (DN) and Finding of No Significant 
Impact (FONSI) to those who requested the decision document and those 
who submitted substantive comments during the comment period (Sec. 
215.6).
    (b) The Responsible Official shall publish a legal notice of any 
decision documented in a ROD or DN in the applicable newspaper of record 
(Sec. 215.5(b)(2)). The legal notice shall:
    (1) Include the title of the project or activity and a concise 
description of the action(s) to be taken, the name and title of the 
Responsible Official, and instructions for obtaining a copy of the DN 
and FONSI or ROD.
    (2) State that the decision is subject to appeal pursuant to 36 CFR 
part 215 and include the following:
    (i) Name and address of the Appeal Deciding Officer with whom an 
appeal is to be filed. The notice shall specify a street, postal, fax, 
and e-mail address, the acceptable format(s) for appeals electronically 
filed, and the Appeal Deciding Official's office business hours for 
those filing hand-delivered appeals.
    (ii) A statement that the publication date of the legal notice in 
the newspaper of record is the exclusive means for calculating the time 
to file an appeal (Sec. 215.15 (a)) and that those wishing to appeal 
should not rely upon dates or timeframe information provided by any 
other source. An actual date shall not be included in the legal notice.
    (iii) A statement that an appeal, including attachments, must be 
filed (regular mail, fax, e-mail, hand-delivery, express delivery, or 
messenger service) with the appropriate Appeal Deciding Officer (Sec. 
215.8) within 45 days following the date of publication of the legal 
notice.
    (iv) A statement indicating that individuals or organizations who 
submitted substantive comments during the comment period (Sec. 215.6) 
may appeal.

[[Page 44]]

    (v) A statement specifying, when applicable, that the Chief of the 
Forest Service, or a designee, has determined that an emergency 
situation exists (Sec. 215.10), and which portion of the project is 
covered by that determination as provided for in Sec. 215.10.
    (vi) A statement indicating how many days following publication of 
the decision that implementation may begin (Sec. 215.9), including 
those portions covered by an emergency situation determination, if 
applicable (Sec. 215.10).
    (3) When no substantive comments expressing concerns or only 
supportive comments are received, include a statement indicating that 
the decision is not subject to appeal pursuant to Sec. 215.12.



Sec. 215.8  Appeal Deciding Officer.

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

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

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



Sec. 215.9  Decision implementation.

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



Sec. 215.10  Emergency situations.

    (a) Authority. The Chief and the Associate Chief of the Forest 
Service are authorized to make the determination that an emergency 
situation (Sec. 215.2) exists, and they may delegate this authority 
only to the Deputy Chief for National Forest System and to the Regional 
Foresters. Persons acting in these positions may exercise this authority 
only when they are filling vacant positions and they have been formally 
delegated full acting authority for the positions. Persons acting in 
positions during temporary absences of the incumbents shall not be 
delegated this authority to make emergency situation determinations.
    (b) Determination. The determination that an emergency situation 
exists shall be based on an examination of the relevant information. 
During the review, additional information may be requested.

[[Page 45]]

    (c) Implementation. When it is determined that an emergency 
situation exists with respect to all or part of the decision, 
implementation may proceed as follows:
    (1) Immediately after publication (Sec. 215.7(b)) of a decision 
documented in a Decision Notice, for that portion of the decision 
determined to be an emergency.
    (2) Immediately when documented in a Record of Decision, after 
complying with the timeframes and publication requirements described in 
40 CFR 1506.10(b)(2), for that portion of the decision determined to be 
an emergency.
    (d) Notification. The Responsible Official shall notify the public 
in the legal notice of the decision (Sec. 215.7) that the Forest 
Service made a determination that all or part of a project decision is 
an emergency situation.



Sec. 215.11  Decisions subject to appeal.

    The following decisions are subject to appeal under this part:
    (a) Decisions for projects and activities implementing land and 
resource management plans (Sec. 215.2) documented in a Record of 
Decision (ROD) or Decision Notice (DN), including those which contain a 
non-significant amendment to a land and resource management plan as a 
part of the decision;
    (b) A new DN after revision of an environmental assessment (EA), or 
a new ROD after supplementation or revision of an environmental impact 
statement (EIS), pursuant to FSH 1909.15, Chapter 10, section 18. 
However, only that portion of the decision that is changed is subject to 
appeal.
    (c) Decisions made in conjunction with other Federal agencies and 
meeting the requirements of preceding paragraph (a). However, only that 
portion of the decision made by the Forest Service affecting National 
Forest System lands (Sec. 215.2) is subject to appeal under this part.

[68 FR 33595, June 4, 2003, as amended at 78 FR 33723, June 5, 2013]



Sec. 215.12  Decisions and actions not subject to appeal.

    The following decisions and actions are not subject to appeal under 
this part, except as noted:
    (a) The amendment, revision, or adoption of a land and resource 
management plan that includes a project decision, except that the 
project portion of the decision is subject to this part. The amendment, 
revision, or adoption portion of a decision is subject to either the 
objection process of Sec. 219.32 or the administrative appeal and 
review procedures of part 217 in effect prior to November 9, 2000 (see 
36 CFR parts 200 to 299, Revised as of July 1, 2000);
    (b) Determination, with documentation, that a new decision is not 
needed following supplementation of an environmental impact statement 
(EIS) or revision of an environmental assessment (EA) pursuant to FSH 
1909.15, Chapter 10, section 18.
    (c) Preliminary findings made during planning and/or analysis 
processes on a project or activity. Such findings are appealable only 
upon issuance of a decision document.
    (d) Subsequent implementing actions that result from the initial 
project decision that was subject to appeal.
    (e) Projects or activities for which notice of the proposed action 
and opportunity to comment is published (Sec. 215.5) and
    (1) No substantive comments expressing concerns or only supportive 
comments are received during the comment period for a proposed action 
analyzed and documented in an EA (Sec. 215.6); or
    (2) No substantive comments expressing concerns or only supportive 
comments are received during the comment period for a draft EIS (40 CFR 
1502.19), and the Responsible Official's decision does not modify the 
preferred alternative identified in the draft EIS.
    (f) Decisions for actions that have been categorically excluded from 
documentation in an EA or EIS pursuant to FSH 1909.15, Chapter 30, 
section 31.
    (g) An amendment, revision, or adoption of a land and resource 
management plan that is made independent of a project or activity 
(subject to either the objection process of Sec. 219.32 or the 
administrative appeal and review procedures of part 217 in effect prior 
to November 9, 2000 (see 36 CFR parts 200 to 299, Revised as of July 1, 
2000)).

[[Page 46]]

    (h) Concurrences and recommendations to other Federal agencies.
    (i) Hazardous fuel reduction projects conducted under provisions of 
the HFRA, as set out at part 218, subpart A, of this title.

[68 FR 33595, June 4, 2003, as amended at 69 FR 1533, Jan. 9, 2004]



Sec. 215.13  Who may appeal.

    (a) Individuals and organizations who submit substantive written or 
oral comments during the 30-day comment period for an environmental 
assessment, or 45-day comment period for a draft environmental impact 
statement (Sec. 215.6, 40 CFR 1506.10; FSH 1909.15, Chapter 20), except 
as provided for in paragraph (c) of this section, may file an appeal. 
Comments received from an authorized representative(s) of an 
organization are considered those of the organization only; individual 
members of that organization do not meet appeal eligibility solely on 
the basis of membership in an organization; the member(s) must submit 
substantive comments as an individual in order to meet appeal 
eligibility.
    (b) When an appeal lists multiple individuals or organizations, each 
shall meet the requirements of paragraph (a) of this section. 
Individuals or organizations that do not meet the requirements of 
paragraph (a) shall not be accepted as appellants.
    (c) Federal agencies may not appeal.
    (d) Federal employees, who otherwise meet the requirements of this 
part for filing appeals in a non-official capacity, shall comply with 
Federal conflict of interest statutes at 18 U.S.C. 202-209 and with 
employee ethics requirements at 5 CFR part 2635. Specifically, employees 
shall not be on official duty nor use government property or equipment 
in the preparation or filing of an appeal. Further, employees shall not 
incorporate information unavailable to the public, i.e. Federal agency 
documents that are exempt from disclosure under the Freedom of 
Information Act (5 U.S.C. 552 (b)).



Sec. 215.14  Appeal content.

    (a) It is the appellant's responsibility to provide sufficient 
project- or activity-specific evidence and rationale, focusing on the 
decision, to show why the Responsible Official's decision should be 
reversed (paragraph (b)(6-9)).
    (b) The appeal must be filed with the Appeal Deciding Officer Sec. 
215.8 in writing. At a minimum, an appeal must include the following:
    (1) Appellant's name and address (Sec. 215.2), with a telephone 
number, if available;
    (2) Signature or other verification of authorship upon request (a 
scanned signature for electronic mail may be filed with the appeal);
    (3) When multiple names are listed on an appeal, identification of 
the lead appellant (Sec. 215.2) and verification of the identity of the 
lead appellant upon request;
    (4) The name of the project or activity for which the decision was 
made, the name and title of the Responsible Official, and the date of 
the decision;
    (5) Any specific change(s) in the decision that the appellant seeks 
and rationale for those changes;
    (6) Any portion(s) of the decision with which the appellant 
disagrees, and explanation for the disagreement;
    (7) Why the appellant believes the Responsible Official's decision 
failed to consider the substantive comments; and
    (8) How the appellant believes the decision specifically violates 
law, regulation, or policy.
    (c) The Appeal Deciding Officer shall not process an appeal when one 
or more of the following applies:
    (1) An appellant's identity is not provided or cannot be determined 
from the signature (written or electronically scanned) and a reasonable 
means of contact is not provided.
    (2) The appellant has not provided a reasonable means of contact.
    (3) The decision cannot be identified.
    (4) The appeal is illegible for any reason, including those 
submitted electronically in a format different from that specified in 
the legal notice.

[68 FR 33595, June 4, 2003, as amended at 78 FR 33723, June 5, 2013]



Sec. 215.15  Appeal time periods and process.

    (a) Time to file an appeal. Written appeals, including any 
attachments, must

[[Page 47]]

be filed with the Appeal Deciding Officer within 45 days following the 
publication date of the legal notice of the decision in the newspaper of 
record (Sec. 215.7). It is the responsibility of appellants to ensure 
that their appeal is received in a timely manner.
    (b) Computation of time periods. (1) All time periods are computed 
using calendar days, including Saturdays, Sundays, and Federal holidays. 
However, when the time period expires on a Saturday, Sunday, or Federal 
holiday, the time is extended to the end of the next Federal working day 
(11:59 p.m.).
    (2) The day after the publication of the legal notice of the 
decision in the newspaper of record (Sec. 215.7) is the first day of 
the appeal-filing period.
    (3) The publication date of the legal notice of the decision in the 
newspaper of record is the exclusive means for calculating the time to 
file an appeal. Appellants should not rely on dates or timeframe 
information provided by any other source.
    (c) Evidence of timely filing. Parties to an appeal are responsible 
for ensuring timely filing of appeal documents. Questions regarding 
whether an appeal document has been timely filed shall be resolved by 
the Appeal Deciding Officer based on the following indicators:
    (1) The date of the U.S. Postal Service postmark for an appeal 
received before the close of the fifth business day after the appeal 
filing date;
    (2) The electronically generated posted date and time for email and 
facsimiles;
    (3) The shipping date for delivery by private carrier for an appeal 
received before the close of the fifth business day after the appeal 
filing date; or
    (4) The official agency date stamp showing receipt of hand delivery.
    (d) Extensions. Time extensions, except as noted in paragraph (b) of 
this section, are not permitted.
    (e) Other timeframes. Unless an appeal is resolved through the 
informal disposition process (Sec. 215.17), the following timeframes 
and processes shall apply:
    (1) Transmittal of decision documentation. Within 15 days of the 
close of the appeal-filing period, the Responsible Official shall 
transmit the decision documentation to the Appeal Reviewing Officer 
including a list of those individuals or organizations who submitted 
substantive comments.
    (2) Appeal disposition. Within 45 days following the end of the 
appeal-filing period, the Appeal Deciding Officer should render a 
written decision to the appellant(s) concerning their appeal. When an 
appeal decision is not rendered by day 45, the Appeal Deciding Officer 
shall notify the appellant(s) in writing that an appeal decision will 
not be issued (Sec. 215.18(b).
    (3) When an appeal decision is not issued within 45 days, the 
Responsible Official's decision is deemed the final agency action.

[68 FR 33595, June 4, 2003, as amended at 78 FR 33723, June 5, 2013]



Sec. 215.16  Dismissal of appeal without review.

    (a) The Appeal Deciding Officer shall dismiss an appeal without 
review when one or more of the following applies:
    (1) The postmark on an appeal mailed or otherwise filed (for 
example, express mail service) or the evidence of the date sent on an e-
mailed or faxed appeal is not within the 45-day appeal-filing period 
(Sec. 215.15).
    (2) The time and date imprint at the correct Appeal Deciding 
Officer's office on a hand-delivered appeal is not within the 45-day 
appeal-filing period (Sec. 215.15).
    (3) The requested relief or change cannot be granted under law or 
regulation.
    (4) The appellant has appealed the same decision under part 251 
(Sec. 215.11(d)).
    (5) The decision is not subject to appeal (Sec. 215.12).
    (6) The individual or organization did not submit substantive 
comments during the comment period (Sec. 215.6).
    (7) The Responsible Official withdraws the decision.
    (8) The appeal does not provide sufficient information in response 
to Sec. 215.14(b)(6) through (b)(9) for the Appeal Deciding Officer to 
render a decision.
    (9) The appellant withdraws the appeal.
    (b) Any additional information or attachment to an appeal that is 
not filed within the 45-day appeal-filing period shall not be considered 
with the appeal.

[[Page 48]]

    (c) The Appeal Deciding Officer shall give written notice to the 
appellant and the Responsible Official when an appeal is dismissed and 
shall give the reasons for dismissal.



Sec. 215.17  Informal disposition.

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



Sec. 215.18  Formal review and disposition procedures.

    (a) Scope of review. The Appeal Deciding Officer shall complete a 
review based on the appeal record (Sec. 215.2) and the Appeal Reviewing 
Officer's recommendation (Sec. 215.19(b)).
    (b) Disposition. The Appeal Deciding Officer shall either:
    (1) Issue a written appeal decision within 45 days following the end 
of the appeal-filing period, which affirms or reverses the Responsible 
Official's decision, either in whole or in part, and which may include 
instructions for further action. When an appeal decision involves 
instructions concerning new information or changed circumstances, the 
Responsible Official must follow the correction, supplementation, or 
revision of environmental documentation and reconsideration of decisions 
to take action guidance in FSH 1909.15, Chapter 10, section 18 and 
Sec. Sec. 215.3, 215.4, 215.11, and 215.12. The Appeal Deciding Officer 
shall send a copy of the appeal decision to the appellant(s), the Appeal 
Reviewing Officer, and the Responsible Official within 5 days; or
    (2) Not issue an appeal decision and so notify the appellant(s) in 
writing that an appeal decision will not be issued and that the 
Responsible Official's decision constitutes the final

[[Page 49]]

agency action of the Department of Agriculture (Sec. 215.15(e)(2)). 
Notification shall be sent no sooner than 46 days nor later than 50 days 
following the end of the appeal-filing period.
    (c) Final administrative determination. The Appeal Deciding 
Officer's appeal disposition constitutes the final administrative 
determination of the Department of Agriculture.



Sec. 215.19  Appeal Reviewing Officer.

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



Sec. 215.20  Secretary's authority.

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



Sec. 215.21  Judicial proceedings.

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



Sec. 215.22  Applicability and effective date.

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



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



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

    Authority: Sec. 14, Forest and Rangeland Renewable Resources 
Planning Act of 1974, 88 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

[[Page 50]]

governments and the public have adequate notice and opportunity to 
comment upon the formulation of standards, criteria, and guidelines 
applicable to Forest Service programs.



Sec. 216.2  Definitions.

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



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

    (a) The requirements described in this part do not apply to--
    (1) Rules or regulations promulgated according to the requirements 
of the Administrative Procedure Act, 5 U.S.C. 553;
    (2) Instructions, procedures, and other material issued in Forest 
Service Handbooks; and
    (3) Proposed Manual directives which provide guidance and procedures 
on administrative support activities such as personnel matters, 
procurement, service contracting, and other routine business operations 
of the agency.
    (b) This part does not supersede or replace the requirements of the 
National Environmental Policy Act as set forth in 40 CFR part 1500 and 
chapter 1950 of the Forest Service Manual. The requirements described in 
this part do not apply where equivalent public notice and opportunity 
for comment on the contents of a proposed Manual directive are provided 
during compliance with NEPA procedures.
    (c) The direction for management of many Forest Service programs is 
developed with public participation during land and resource management 
planning part 219, and other activities. The relevant results of such 
public participation shall be used in formulation of Forest Service 
Manual directives to avoid duplicating public participation efforts.
    (d) In addition to the opportunity for formal public review and 
comment offered in this part, the public may informally review and 
comment on Manual material at other times.
    (e) These regulations do not prevent informal consultation with 
selected Federal, State, and local governments and the public when such 
consultation is deemed appropriate in formulating Manual material.



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

    (a) Agency officials responsible for formulating Manual directives 
containing applicable standards, criteria, and guidelines shall 
determine whether substantial public interest or controversy concerning 
a proposed Manual directive can be expected.
    (b) The following shall be considered in making this determination:
    (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;

[[Page 51]]

    (3) The amount of change the proposal represents from current 
direction;
    (4) The extent of recent news media coverage on subjects related to 
the proposal; and
    (5) The amount of interest or controversy expressed on previous 
proposals on the same or similar subjects.



Sec. 216.5  Documentation.

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



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

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



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

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



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

    As a minimum, review copies of proposed Manual directives determined 
to be of substantial public interest or expected controversy shall be 
available in the Forest Supervisor's Office and 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

[[Page 52]]

Manual directives involve Forest Service Research or State and Private 
Forestry programs, review copies shall be available at comparable 
administrative offices.



PART 218_PROJECT-LEVEL PREDECISIONAL ADMINISTRATIVE REVIEW 
PROCESS--Table of Contents



                      Subpart A_General Provisions

Sec.
218.1 Purpose and scope.
218.2 Definitions.
218.3 Reviewing officer.
218.4 Proposed projects and activities not subject to objection.
218.5 Who may file an objection.
218.6 Computation of time periods.
218.7 Giving notice of objection process for proposed projects and 
          activities subject to objection.
218.8 Filing an objection.
218.9 Evidence of timely filing.
218.10 Objections set aside from review.
218.11 Resolution of objections.
218.12 Timing of project decision.
218.13 Secretary's authority.
218.14 Judicial proceedings.
218.15 Information collection requirements.
218.16 Effective dates.

Subpart B_Provisions Specific to Project-Level Proposals Not Authorized 
                Under the Healthy Forests Restoration Act

218.20 Applicability and scope.
218.21 Emergency situations.
218.22 Proposed projects and activities subject to legal notice and 
          opportunity to comment.
218.23 Proposed projects and activities not subject to legal notice and 
          opportunity to comment.
218.24 Notification of opportunity to comment on proposed projects and 
          activities.
218.25 Comments on proposed projects and activities.
218.26 Objection time periods.

Subpart C_Provisions Specific to Proposed Projects Authorized Under the 
                     Healthy Forests Restoration Act

218.30 Applicability and scope.
218.31 Authorized hazardous fuel reduction projects subject to 
          objection.
218.32 Objection time periods.

    Authority: Pub. L. 108-148, 117 Stat 1887 (16 U.S.C. 6515 note); 
Sec. 428, Pub. L. 112-74 125 Stat 1046.

    Source: 78 FR 18497, Mar. 27, 2013, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 218.1  Purpose and scope.

    This subpart establishes a predecisional administrative review 
(hereinafter referred to as ``objection'') process for proposed actions 
of the Forest Service concerning projects and activities implementing 
land and resource management plans documented with a Record of Decision 
or Decision Notice, including proposed authorized hazardous fuel 
reduction projects as defined in the Healthy Forests Restoration Act of 
2003 (HFRA). The objection process is the sole means by which 
administrative review of qualifying projects.
    (a) This subpart A provides the general provisions of the objection 
process, including who may file objections to proposed projects and 
activities, the responsibilities of the participants in an objection, 
and the procedures that apply for review of the objection.
    (b) Subpart B of this part includes provisions that are specific to 
proposed projects and activities implementing land and resource 
management plans documented with a Record of Decision or Decision 
Notice, except those authorized under the HFRA.
    (c) Subpart C of this part includes provisions that are specific to 
proposed hazardous fuel reduction projects authorized under the HFRA.



Sec. 218.2  Definitions.

    The following definitions apply to this part:
    Address. An individual's or organization's current physical mailing 
address. An email address alone is not sufficient.
    Authorized hazardous fuel reduction project. A hazardous fuel 
reduction project authorized by the Healthy Forests Restoration Act of 
2003 (HFRA).
    Decision notice (DN). A concise written record of a responsible 
official's decision when an environmental assessment and a finding of no 
significant impact (FONSI) have been prepared (36 CFR 220.3). The draft 
decision notice made available pursuant to Sec. 218.7(b) will include a 
draft FONSI unless an environmental impact statement is expected to be 
prepared.

[[Page 53]]

    Entity. For purposes of eligibility to file an objection (Sec. 
218.5), an entity includes non-governmental organizations, businesses, 
partnerships, state and local governments, Alaska Native Corporations, 
and Indian Tribes.
    Environmental assessment (EA). A concise public document for which a 
Federal agency is responsible that provides sufficient evidence and 
analysis for determining whether to prepare an environmental impact 
statement (EIS) or a finding of no significant impact (FONSI), aids an 
agency's compliance with the National Environmental Policy Act (NEPA) 
when no EIS is necessary, and facilitates preparation of a statement 
when one is necessary (40 CFR 1508.9(a)).
    Environmental impact statement (EIS). A detailed written statement 
as required by Section 102(2)(C) of the National Environmental Policy 
Act (NEPA) of 1969 (40 CFR 1508.11).
    Forest Service line officer. The Chief of the Forest Service or a 
Forest Service official who serves in the direct line of command from 
the Chief.
    Lead objector. For an objection submitted with multiple individuals 
and/or entities listed, the individual or entity identified to represent 
all other objectors for the purposes of communication, written or 
otherwise, regarding the objection.
    Name. The first and last name of an individual or the complete name 
of an entity. An electronic username is insufficient for identification 
of an individual or entity.
    National Forest System land. All lands, waters, or interests therein 
administered by the Forest Service (36 CFR 251.51).
    Newspaper(s) of record. Those principal newspapers of general 
circulation annually identified in a list and published in the Federal 
Register by each regional forester to be used for publishing notices of 
projects and activities implementing land management plans.
    Objection. The written document filed with a reviewing officer by an 
individual or entity seeking predecisional administrative review of a 
proposed project or activity implementing a land management plan, 
including proposed HFRA-authorized hazardous fuel reduction projects, 
and documented with an environmental assessment or environmental impact 
statement.
    Objection filing period. The period following publication of the 
legal notice in the newspaper of record of an environmental assessment 
and draft Decision Notice, or final environmental impact statement and 
draft Record of Decision, for a proposed project or activity during 
which an objection may be filed with the reviewing officer (Sec. 
218.7(c)(2)(iii) and Sec. 218.6(a) and (b)). When the Chief is the 
responsible official the objection period begins following publication 
of a notice in the Federal Register (Sec. 218.7(c)(2)(iii)). The 
objection filing period closes at 11:59 p.m. in the time zone of the 
receiving office on the last day of the filing period (Sec. 218.6(a)).
    Objection process. The procedures established in this subpart for 
predecisional administrative review of proposed projects or activities 
implementing land management plans, including proposed HFRA-authorized 
hazardous fuel reduction projects.
    Objector. An individual or entity filing an objection who submitted 
written comments specific to the proposed project or activity during 
scoping or other opportunity for public comment. The use of the term 
``objector'' applies to all persons or entities who meet eligibility 
requirements associated with the filed objection (Sec. 218.5).
    Record of decision (ROD). A document signed by a responsible 
official recording a decision that was preceded by preparation of an 
environmental impact statement (EIS) (see 40 CFR 1505.2).
    Responsible official. The Agency employee who has the authority to 
make and implement a decision on a proposed action subject to this part.
    Specific written comments. Written comments are those submitted to 
the responsible official or designee during a designated opportunity for 
public participation (Sec. 218.5(a)) provided for a proposed project. 
Written comments can include submission of transcriptions or other notes 
from oral statements or presentation. For the purposes of this rule, 
specific written comments should be within the scope of the proposed 
action, have a direct

[[Page 54]]

relationship to the proposed action, and must include supporting reasons 
for the responsible official to consider.



Sec. 218.3  Reviewing officer.

    (a) The reviewing officer is the U.S. Department of Agriculture 
(USDA) or Forest Service official having the delegated authority and 
responsibility to review an objection filed under this part. For project 
or activity proposals made below the level of the Chief, the reviewing 
officer is the Forest Service line officer at the next higher 
administrative level above the responsible official, or the respective 
Associate Deputy Chief, Deputy Regional Forester, or Deputy Forest 
Supervisor with the delegation of authority relevant to the provisions 
of this part. When a project or activity proposal is made by the Chief, 
the Secretary of Agriculture or Under Secretary, Natural Resources and 
Environment is the reviewing officer.
    (b) The reviewing officer determines procedures to be used for 
processing objections when the procedures are not specifically described 
in this part, including, to the extent practicable, such procedures as 
needed to be compatible with the administrative review processes of 
other Federal agencies, when projects are proposed jointly. Such 
determinations are not subject to further administrative review.



Sec. 218.4  Proposed projects and activities not subject to objection.

    Proposed projects and activities are not subject to objection when 
no timely, specific written comments regarding the proposed project or 
activity (see Sec. 218.2) are received during any designated 
opportunity for public comment (see Sec. 218.5(a)). The responsible 
official must issue a statement in the Record of Decision or Decision 
Notice that the project or activity was not subject to objection.



Sec. 218.5  Who may file an objection.

    (a) Individuals and entities as defined in Sec. 218.2 who have 
submitted timely, specific written comments regarding a proposed project 
or activity that is subject to these regulations during any designated 
opportunity for public comment may file an objection. Opportunity for 
public comment on a draft EIS includes request for comments during 
scoping, the 40 CFR 1506.10 comment period, or other public involvement 
opportunity where written comments are requested by the responsible 
official. Opportunity for public comment on an EA includes during 
scoping or any other instance where the responsible official seeks 
written comments.
    (b) Federally-recognized Indian Tribes and Alaska Native 
Corporations are also eligible to file an objection when specific 
written comments as defined in Sec. 218.2 are provided during Federal-
Tribal consultations.
    (c) Comments received from an authorized representative(s) of an 
entity are considered those of the entity only. Individual members of 
that entity do not meet objection eligibility requirements solely on the 
basis of membership in an entity. A member or an individual must submit 
timely, specific written comments independently in order to be eligible 
to file an objection in an individual capacity.
    (d) When an objection lists multiple individuals or entities, each 
individual or entity must meet the requirements of paragraph (a) of this 
section. If the objection does not identify a lead objector as required 
at Sec. 218.8(d)(3), the reviewing officer will delegate the first 
eligible objector on the list as the lead objector. Individuals or 
entities listed on an objection that do not meet eligibility 
requirements will not be considered objectors. Objections from 
individuals or entities that do not meet the requirements of paragraph 
(a) of this section will not be accepted and will be documented as such 
in the objection record.
    (e) Federal agencies may not file objections.
    (f) Federal employees who otherwise meet the requirements of this 
subpart for filing objections in a non-official capacity must 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 
must not be on official duty nor use Government property or equipment in 
the preparation

[[Page 55]]

or filing of an objection. Further, employees must not use or otherwise 
incorporate information unavailable to the public, such as Federal 
agency documents that are exempt from disclosure under the Freedom of 
Information Act (5 U.S.C. 552(b)).



Sec. 218.6  Computation of time periods.

    (a) Computation. All time periods are computed using calendar days, 
including Saturdays, Sundays, and Federal holidays. However, when the 
time period expires on a Saturday, Sunday, or Federal holiday, the time 
is extended to the end of the next Federal working day as stated in the 
legal notice (11:59 p.m. in the time zone of the receiving office for 
objections filed by electronic means such as email or facsimile).
    (b) Starting date. The day after publication of the legal notice 
required by Sec. 218.7(c) is the first day of the objection-filing 
period.
    (c) Publication date. The publication date of the legal notice of 
the EA or final EIS in the newspaper of record or, when the Chief is the 
responsible official, the Federal Register, is the exclusive means for 
calculating the time to file an objection. Objectors may not rely on 
dates or timeframe information provided by any other source.
    (d) Extensions. Time extensions are not permitted except as provided 
at paragraph (a) of this section, and Sec. 218.26(b).



Sec. 218.7  Giving notice of objection process for proposed projects 
and activities subject to objection.

    (a) In addition to the notification required in paragraph (c) of 
this section, the responsible official must disclose during scoping and 
in the EA or EIS that the proposed project or activity is:
    (1) A hazardous fuel reduction project as defined by the HFRA, 
section 101(2), that is subject to subparts A and C of this part, or
    (2) A project or activity implementing a land management plan and 
not authorized under the HFRA, that is subject to subparts A and B of 
this part.
    (b) The responsible official must promptly make available the final 
EIS or the EA, and a draft Record of Decision (ROD) or draft Decision 
Notice (DN) and Finding of No Significant Impact (FONSI), to those who 
have requested the documents or are eligible to file an objection in 
accordance with Sec. 218.5(a).
    (c) Upon distribution, legal notice of the opportunity to object to 
a proposed project or activity must be published in the applicable 
newspaper of record identified as defined in Sec. 218.2 for the 
National Forest System unit. When the Chief is the responsible official, 
notice must be published in the Federal Register. The legal notice or 
Federal Register notice must:
    (1) Include the name of the proposed project or activity, a concise 
description of the draft decision and any proposed land management plan 
amendments, name and title of the responsible official, name of the 
forest and/or district on which the proposed project or activity will 
occur, instructions for obtaining a copy of the final EIS or EA and 
draft ROD or DN as defined in Sec. 218.2, and instructions on how to 
obtain additional information on the proposed project or activity.
    (2) State that the proposed project or activity is subject to the 
objection process pursuant to 36 CFR part 218; identify whether the 
special procedures of subpart B or subpart C of this part are 
applicable; and include the following:
    (i) Name and address of the reviewing officer with whom an objection 
is to be filed. The notice must specify a street, postal, fax, and email 
address, the acceptable format(s) for objections filed electronically, 
and the reviewing officer's business hours for those filing hand-
delivered objections.
    (ii) A statement that objections will be accepted only from those 
who have previously submitted specific written comments regarding the 
proposed project during scoping or other designated opportunity for 
public comment in accordance with Sec. 218.5(a). The statement must 
also specify that issues raised in objections must be based on 
previously submitted timely, specific written comments regarding the 
proposed project unless based on new information arising after 
designated opportunities.

[[Page 56]]

    (iii) A statement that the publication date of the legal notice in 
the newspaper of record or Federal Register notice is the exclusive 
means for calculating the time to file an objection (see Sec. Sec. 
218.26(a) and 218.32(a)), and that those wishing to object should not 
rely upon dates or timeframe information provided by any other source. A 
specific date must not be included in the notice.
    (iv) A statement that an objection, including attachments, must be 
filed (regular mail, fax, email, hand-delivery, express delivery, or 
messenger service) with the appropriate reviewing officer (see 
Sec. Sec. 218.3 and 218.8) within 30 days of the date of publication of 
the legal notice for the objection process if the proposal is an 
authorized hazardous fuel reduction project, or within 45 days if the 
proposal is otherwise a project or activity implementing a land 
management plan. The statement must also describe the evidence of timely 
filing in Sec. 218.9.
    (v) A statement describing the minimum content requirements of an 
objection (see Sec. 218.8(d)) and identify that incorporation of 
documents by reference is permitted only as provided for at Sec. 
218.8(b).
    (d) Within 4 calendar days of the date of publication of the legal 
notice in the newspaper of record or, when applicable, the Federal 
Register, a digital image of the legal notice or Federal Register 
publication, or the exact text of the notice, must be made available on 
the Web. Such postings must clearly indicate the date the notice was 
published in the newspaper of record or Federal Register, and the name 
of the publication.
    (e) Through notice published annually in the Federal Register, each 
regional forester must advise the public of the newspaper(s) of record 
utilized for publishing legal notice required by this part.



Sec. 218.8  Filing an objection.

    (a) Objections must be filed with the reviewing officer in writing. 
All objections are available for public inspection during and after the 
objection process.
    (b) Incorporation of documents by reference is not allowed, except 
for the following list of items that may be referenced by including 
date, page, and section of the cited document, along with a description 
of its content and applicability to the objection. All other documents 
must be included with the objection.
    (1) All or any part of a Federal law or regulation.
    (2) Forest Service directives and land management plans.
    (3) Documents referenced by the Forest Service in the proposed 
project EA or EIS that is subject to objection.
    (4) Comments previously provided to the Forest Service by the 
objector during public involvement opportunities for the proposed 
project where written comments were requested by the responsible 
official.
    (c) Issues raised in objections must be based on previously 
submitted specific written comments regarding the proposed project or 
activity and attributed to the objector, unless the issue is based on 
new information that arose after the opportunities for comment. The 
burden is on the objector to demonstrate compliance with this 
requirement for objection issues (see paragraph (d)(6) of this section).
    (d) At a minimum, an objection must include the following:
    (1) Objector's name and address as defined in Sec. 218.2, with a 
telephone number, if available;
    (2) Signature or other verification of authorship upon request (a 
scanned signature for electronic mail may be filed with the objection);
    (3) When multiple names are listed on an objection, identification 
of the lead objector as defined in Sec. 218.2. Verification of the 
identity of the lead objector must be provided upon request or the 
reviewing officer will designate a lead objector as provided in Sec. 
218.5(d);
    (4) The name of the proposed project, the name and title of the 
responsible official, and the name(s) of the national forest(s) and/or 
ranger district(s) on which the proposed project will be implemented;
    (5) A description of those aspects of the proposed project addressed 
by the objection, including specific issues related to the proposed 
project; if applicable, how the objector believes the environmental 
analysis or draft decision

[[Page 57]]

specifically violates law, regulation, or policy; suggested remedies 
that would resolve the objection; supporting reasons for the reviewing 
officer to consider; and
    (6) A statement that demonstrates the connection between prior 
specific written comments on the particular proposed project or activity 
and the content of the objection, unless the objection concerns an issue 
that arose after the designated opportunity(ies) for comment (see 
paragraph (c) of this section).



Sec. 218.9  Evidence of timely filing.

    (a) It is the objector's responsibility to ensure timely filing of a 
written objection with the reviewing officer. Timeliness must be 
determined by the following indicators:
    (1) The date of the U.S. Postal Service postmark for an objection 
received before the close of the fifth business day after the objection 
filing period;
    (2) The agency's electronically generated posted date and time for 
email and facsimiles;
    (3) The shipping date for delivery by private carrier for an 
objection received before the close of the fifth business day after the 
objection filing period; or
    (4) The official agency date stamp showing receipt of hand delivery.
    (b) For emailed objections, the sender should receive an automated 
electronic acknowledgement from the agency as confirmation of receipt. 
If the sender does not receive an automated acknowledgment of receipt of 
the objection, it is the sender's responsibility to ensure timely filing 
by other means.



Sec. 218.10  Objections set aside from review.

    (a) The reviewing officer must set aside and not review an objection 
when one or more of the following applies:
    (1) Objections are not filed in a timely manner (see Sec. Sec. 
218.7(c)(2)(v) and 218.9).
    (2) The proposed project is not subject to the objection procedures 
in Sec. Sec. 218.1, 218.4, 218.20, and 218.31.
    (3) The individual or entity did not submit timely and specific 
written comments regarding the proposed project or activity during 
scoping or another designated opportunity for public comment (see Sec. 
218.5(a)).
    (4) Except for issues that arose after the opportunities for 
comment, none of the issues included in the objection are based on 
previously submitted specific written comments and the objector has not 
provided a statement demonstrating a connection between the comments and 
objection issues (see Sec. Sec. 218.8(c) and 218.8(d)(6)).
    (5) The objection does not provide sufficient information as 
required by Sec. 218.8(d)(5) and (6) for the reviewing officer to 
review.
    (6) The objector withdraws the objection.
    (7) An objector's identity is not provided or cannot be determined 
from the signature (written or electronically scanned) and a reasonable 
means of contact is not provided (see Sec. 218.8(d)(1) and (2)).
    (8) The objection is illegible for any reason, including submissions 
in an electronic format different from that specified in the legal 
notice.
    (9) The responsible official cancels the objection process underway 
to reinitiate the objection procedures at a later date or withdraw the 
proposed project or activity.
    (b) The reviewing officer must give prompt written notice to the 
objector and the responsible official when an objection is set aside 
from review and must state the reasons for not reviewing the objection. 
If the objection is set aside from review for reasons of illegibility or 
lack of a means of contact, the reasons must be documented and a copy 
placed in the objection record.



Sec. 218.11  Resolution of objections.

    (a) Meetings. Prior to the issuance of the reviewing officer's 
written response, either the reviewing officer or the objector may 
request to meet to discuss issues raised in the objection and potential 
resolution. The reviewing officer has the discretion to determine 
whether adequate time remains in the review period to make a meeting 
with the objector practical, the appropriate date, duration, agenda, and 
location for any meeting, and how the meeting will be conducted to 
facilitate the most beneficial dialogue; e.g., face-to-face

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office meeting, project site visit, teleconference, video conference, 
etc. The responsible official should be a participant along with the 
reviewing officer in any objection resolution meeting. Meetings are not 
required to be noticed but are open to attendance by the public, and the 
reviewing officer will determine whether those other than objectors may 
participate.
    (b) Reviewing officer's response to objections. (1) A written 
response must set forth the reasons for the response, but need not be a 
point-by-point response and may contain instructions to the responsible 
official, if necessary. In cases involving more than one objection to a 
proposed project or activity, the reviewing officer may consolidate 
objections and issue one or more responses.
    (2) No further review from any other Forest Service or USDA official 
of the reviewing officer's written response to an objection is 
available.



Sec. 218.12  Timing of project decision.

    (a) The responsible official may not sign a ROD or DN subject to the 
provisions of this part until the reviewing officer has responded in 
writing to all pending objections (see Sec. 218.11(b)(1)).
    (b) The responsible official may not sign a ROD or DN subject to the 
provisions of this part until all concerns and instructions identified 
by the reviewing officer in the objection response have been addressed.
    (c) When no objection is filed within the objection filing period 
(see Sec. Sec. 218.26 and 218.32):
    (1) The reviewing officer must notify the responsible official.
    (2) Approval of the proposed project or activity documented in a ROD 
in accordance with 40 CFR 1506.10, or in a DN may occur on, but not 
before, the fifth business day following the end of the objection filing 
period.
    (d) When a proposed project or activity is not subject to objection 
because no timely, specific written comments regarding the proposal were 
received during a designated opportunity for public comment (see Sec. 
218.4), the approval of a proposed project or activity documented in a 
ROD must be in accordance with 40 CFR 1506.10 and 36 CFR 220.5(g), and 
the approval of a proposed project or activity documented in a DN must 
be made in accordance with 36 CFR 220.7(c) and (d).



Sec. 218.13  Secretary's authority.

    (a) Nothing in this section shall restrict the Secretary of 
Agriculture from exercising any statutory authority regarding the 
protection, management, or administration of National Forest System 
lands.
    (b) Projects and activities proposed by the Secretary of Agriculture 
or the Under Secretary, Natural Resources and Environment, are not 
subject to the procedures set forth in this part. Approval of projects 
and activities by the Secretary or Under Secretary constitutes the final 
administrative determination of the U.S. Department of Agriculture.



Sec. 218.14  Judicial proceedings.

    (a) The objection process set forth in this subpart fully implements 
Congress' design for a predecisional administrative review process. 
These procedures present a full and fair opportunity for concerns to be 
raised and considered on a project-by-project basis. Individuals and 
groups must structure their participation so as to alert the local 
agency officials making particular land management decisions of their 
positions and contentions.
    (b) Any filing for Federal judicial review of a decisions covered by 
this subpart is premature and inappropriate unless the plaintiff has 
exhausted the administrative review process set forth in this part (see 
7 U.S.C. 6912(e) and 16 U.S.C. 6515(c)).



Sec. 218.15  Information collection requirements.

    The rules of this part specify the information that objectors must 
provide in an objection to a proposed project (see Sec. 218.8). As 
such, these rules contain information collection requirements as defined 
in 5 CFR part 1320. These information requirements are assigned OMB 
Control Number 0596-0172.



Sec. 218.16  Effective dates.

    (a) Effective dates for HFRA-authorized projects. (1) Provisions of 
this part that are applicable to hazardous fuel reduction projects 
authorized under the HFRA are in effect as of March 27, 2013

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for projects where scoping begins on or after this date.
    (2) Hazardous fuel reduction project proposals under the HFRA for 
which public scoping began prior to March 27, 2013 may use the 
predecisional objection procedures posted at http://www.fs.fed.us/
objections.
    (3) Hazardous fuel reduction project proposals that are re-scoped 
with the public or re-issued for notice and comment after March 27, 2013 
are subject to this part.
    (b) Effective dates for non-HFRA-authorized projects. (1) Project 
proposals with public scoping completed, but that have not had legal 
notice published. The applicable provisions of this part are in effect 
as of March 27, 2013 where public scoping was previously initiated for 
project proposals, but legal notice of the opportunity to comment has 
not yet been published; unless scoping or other public notification of 
the project (e.g. Schedule of Proposed Actions) has clearly indicated 
the project to be under the former 36 CFR part 215 appeal process.
    (2) Project proposals which have legal notice published, but a 
Decision Notice or Record of Decision has not been signed. If a Decision 
Notice or Record of Decision is signed within 6 months of March 27, 
2013, it will be subject to the 36 CFR part 215 appeal process. If the 
Decision Notice or Record of Decision is to be signed more than 6 months 
beyond March 27, 2013, the project proposal will be subject to the 
requirements of this part. In this case, the responsible official will 
notify all interested and affected parties who participated during 
scoping or provided specific written comment regarding the proposed 
project or activity during the comment period initiated with a legal 
notice that the project proposal will be subject to the predecisional 
objection regulations at 36 CFR part 218. All interested and affected 
parties who provided written comment as defined in Sec. 218.2 during 
scoping or the comment period will be eligible to participate in the 
objection process.
    (3) Project proposals are subject to the requirements of this part 
when initial public scoping, re-scoping with the public, or re-issuance 
of notice and comment begins on or after March 27, 2013.



Subpart B_Provisions Specific to Project-Level Proposals Not Authorized 
                  Under Healthy Forests Restoration Act



Sec. 218.20  Applicability and scope.

    This subpart includes provisions that are specific to proposed 
projects and activities implementing land and resource management plans 
and documented with a Record of Decision or Decision Notice, except 
those authorized under the Healthy Forests Restoration Act (HFRA). The 
sections of this subpart must be considered in combination with the 
general provisions of subpart A of this part for the full complement of 
regulatory direction pertaining to predecisional administrative review 
of the applicable projects and activities.



Sec. 218.21  Emergency situations.

    (a) Authority. The Chief and the Associate Chief of the Forest 
Service are authorized to make the determination that an emergency 
situation exists as defined in this section.
    (b) Emergency situation definition. A situation on National Forest 
System (NFS) lands for which immediate implementation of a decision is 
necessary to achieve one or more of the following: Relief from hazards 
threatening human health and safety; mitigation of threats to natural 
resources on NFS or adjacent lands; avoiding a loss of commodity value 
sufficient to jeopardize the agency's ability to accomplish project 
objectives directly related to resource protection or restoration.
    (c) Determination. The determination that an emergency situation 
exists shall be based on an examination of the relevant information. 
During the consideration by the Chief or Associate Chief, additional 
information may be requested from the responsible official. The 
determination that an emergency situation does or does not exist is not 
subject to administrative review under this part.
    (d) Implementation. When it is determined that an emergency 
situation exists with respect to all or part of the

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proposed project or activity, the proposed action shall not be subject 
to the predecisional objection process and implementation may proceed as 
follows:
    (1) Immediately after notification (see 36 CFR 220.7(d)) when the 
decision is documented in a Decision Notice (DN).
    (2) Immediately after complying with the timeframes and publication 
requirements described in 40 CFR 1506.10(b)(2) when the decision is 
documented in a Record of Decision (ROD).
    (e) Notification. The responsible official shall identify any 
emergency situation determination made for a project or activity in the 
notification of the decision (see 36 CFR 220.5(g) and 220.7(d)).



Sec. 218.22  Proposed projects and activities subject to legal notice
and opportunity to comment.

    The legal notice and opportunity to comment procedures of this 
subpart apply only to:
    (a) Proposed projects and activities implementing land management 
plans for which an environmental assessment (EA) is prepared;
    (b) Proposed projects and activities implementing land management 
plans for which a draft or supplemental environmental impact statement 
(EIS) is prepared and notice and comment procedures are governed by 40 
CFR parts 1500 through 1508;
    (c) Proposed amendments to a land management plan that are included 
as part of a proposed project or activity covered in paragraphs (a) or 
(b) of this section which are applicable only to that proposed project 
or activity;
    (d) A proposed project or activity for which a supplemental or 
revised EA or EIS is prepared based on consideration of new information 
or changed circumstances; and
    (e) Proposed research activities to be conducted on National Forest 
System land for which an EA or EIS is prepared.



Sec. 218.23  Proposed projects and activities not subject to legal 
notice and opportunity to comment.

    The legal notice and opportunity to comment procedures of this 
subpart do not apply to:
    (a) [Reserved];
    (b) Proposed land management plans, plan revisions, and plan 
amendments that are subject to the objection process set out in 36 CFR 
part 219, subpart B;
    (c) Proposed plan amendments associated with a project or activity 
where the amendment applies not just to the particular project or 
activity but to all future projects and activities (see 36 CFR 
219.59(b));
    (d) Proposed projects and activities not subject to the provisions 
of the National Environmental Policy Act and the implementing 
regulations at 40 CFR parts 1500 through 1508 and 36 CFR part 220;
    (e) Determinations by the responsible official, after consideration 
of new information or changed circumstances, that a correction, 
supplement, or revision of the EA or EIS is not required;
    (f) Rules promulgated in accordance with the Administrative 
Procedure Act (5 U.S.C. 551 et seq.) or policies and procedures issued 
in the Forest Service Manual and Handbooks (36 CFR part 216); and
    (g) Proposed hazardous fuel reduction projects authorized under the 
Healthy Forests Restoration Act.



Sec. 218.24  Notification of opportunity to comment on proposed 
projects and activities.

    (a) Responsible official. The responsible official shall:
    (1) Provide legal notice of the opportunity to comment on a proposed 
project or activity implementing a land management plan.
    (2) Determine the most effective timing and then publish the legal 
notice of the opportunity to comment as provided for in paragraph (c)(2) 
of this section.
    (3) Promptly provide notice about the proposed project or activity 
to any individual or entity who has requested it and to those who have 
participated in planning for that project.
    (4) Accept all written comments on the proposed project or activity 
as provided for in Sec. 218.25(a)(4).
    (b) Content of legal notice. All legal notices shall include the 
following:
    (1) The title and brief description of the proposed project or 
activity.

[[Page 61]]

    (2) A general description of the proposed project or activity's 
location with sufficient information to allow the interested public to 
identify the location.
    (3) When applicable, a statement that the responsible official is 
requesting an emergency situation determination or it has been 
determined that an emergency situation exists for the proposed project 
or activity as provided for in Sec. 218.21.
    (4) For a proposed project or activity to be analyzed and documented 
in an environmental assessment (EA), a statement that the opportunity to 
comment ends 30 days following the date of publication of the legal 
notice in the newspaper of record (see Sec. 218.25(a)(2)); as newspaper 
publication dates may vary, legal notices shall not contain the specific 
date.
    (5) For a proposed project or activity that is analyzed and 
documented in a draft environmental impact statement (EIS), a statement 
that the opportunity to comment ends 45 days following the date of 
publication of the notice of availability (NOA) in the Federal Register 
(see Sec. 218.25(a)(2)). The legal notice must be published after the 
NOA and contain the NOA publication date.
    (6) A statement that only those who submit timely and specific 
written comments regarding the proposed project or activity during a 
public comment period established by the responsible official are 
eligible to file an objection.
    (7) The responsible official's name, title, telephone number, and 
addresses (street, postal, facsimile, and email) to whom comments are to 
be submitted and the responsible official's office business hours for 
those submitting hand-delivered comments (see Sec. 218.25(a)(4)(ii)).
    (8) A statement indicating that for objection eligibility each 
individual or representative from each entity submitting timely and 
specific written comments regarding the proposed project or activity 
must either sign the comments or verify identity upon request.
    (9) The acceptable format(s) for electronic comments.
    (10) Instructions on how to obtain additional information on the 
proposed project or activity.
    (c) Publication. (1) Through notice published annually in the 
Federal Register, each Regional Forester shall advise the public of the 
newspaper(s) of record used for publishing legal notices required by 
this part.
    (2) Legal notice of the opportunity to comment on a proposed project 
or activity shall be published in the applicable newspaper of record 
identified in paragraph (c)(1) of this section for each National Forest 
System unit. When the Chief is the responsible official, notice shall 
also be published in the Federal Register. The publication date of the 
legal notice in the newspaper of record is the exclusive means for 
calculating the time to submit written comments on a proposed project or 
activity to be analyzed and documented in an EA. The publication date of 
the NOA in the Federal Register is the exclusive means for calculating 
the time to submit written comments on a proposed project or activity 
that is analyzed and documented in a draft EIS.
    (3) Within 4 calendar days of the date of publication of the legal 
notice in the newspaper of record or, when applicable, the Federal 
Register, a digital image of the legal notice or Federal Register 
publication, or the exact text of the notice, must be made available on 
the Web. Such postings must clearly indicate the date the notice was 
published in the newspaper of record or Federal Register, and the name 
of the publication.



Sec. 218.25  Comments on proposed projects and activities.

    (a) Opportunity to comment. (1) Time period for submission of 
comments--
    (i) Comments on a proposed project or activity to be documented in 
an environmental assessment shall be accepted for 30 days beginning on 
the first day after the date of publication of the legal notice.
    (ii) Comments on a proposed project or activity to be documented in 
an environmental impact statement shall be accepted for a minimum of 45 
days beginning on the first day after the date

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of publication in the Federal Register of the notice of availability of 
the draft EIS.
    (iii) Comments. It is the responsibility of all individuals and 
organizations to ensure that their comments are received in a timely 
manner as provided for in paragraph (a)(4) of this section.
    (iv) Extension. The time period for the opportunity to comment on a 
proposed project or activity to be documented with an environmental 
assessment shall not be extended.
    (2) Computation of the comment period. The time period is computed 
using calendar days, including Saturdays, Sundays, and Federal holidays. 
However, when the time period expires on a Saturday, Sunday, or Federal 
holiday, comments shall be accepted until the end of the next Federal 
working day (11:59 p.m. in the time zone of the receiving office for 
comments filed by electronic means such as email or facsimile).
    (3) Requirements. To be eligible to submit an objection, individuals 
and entities must have provided the following during the comment period:
    (i) Name and postal address. Email address in addition is 
recommended but not required.
    (ii) Title of the proposed project or activity.
    (iii) Specific written comments as defined in Sec. 218.2 regarding 
the proposed project or activity, along with supporting reasons.
    (iv) Signature or other verification of identity upon request and 
identification of the individual or entity who authored the comment(s). 
For comments listing multiple entities or multiple individuals, a 
signature or other means of verification must be provided for the 
individual authorized to represent each entity and for each individual 
in the case of multiple names. A scanned signature or other means of 
verifying the identity of the individual or entity representative may be 
used for electronically submitted comments.
    (v) Individual members of an entity must submit their own comments 
to establish personal eligibility; comments received on behalf of an 
entity are considered as those of the entity only.
    (4) Evidence of timely submission. When there is a question about 
timely submission of comments, timeliness shall be determined as 
follows:
    (i) Written comments must be postmarked by the Postal Service, 
emailed, faxed, or otherwise submitted (for example, express delivery 
service) by 11:59 p.m. in the time zone of the receiving office on the 
30th calendar day following publication of the legal notice for proposed 
projects or activities to be analyzed and documented in an EA or the 
45th calendar day following publication of the NOA in the Federal 
Register for a draft EIS.
    (ii) Hand-delivered comments must be time and date imprinted at the 
correct responsible official's office by the close of business on the 
30th calendar day following publication of the legal notice for proposed 
projects or activities to be analyzed and documented in an EA or the 
45th calendar day following publication of the NOA in the Federal 
Register for a draft EIS.
    (iii) For emailed comments, the sender should normally receive an 
automated electronic acknowledgment from the agency as confirmation of 
receipt. If the sender does not receive an automated acknowledgment of 
the receipt of the comments, it is the sender's responsibility to ensure 
timely receipt by other means.
    (b) Consideration of comments. (1) The responsible official shall 
consider all written comments submitted in compliance with paragraph (a) 
of this section.
    (2) All written comments received by the responsible official shall 
be placed in the project file and shall become a matter of public 
record.



Sec. 218.26  Objection time periods.

    (a) Time to file an objection. Written objections, including any 
attachments, must be filed with the reviewing officer within 45 days 
following the publication date of the legal notice of the EA or final 
EIS in the newspaper of record or the publication date of the notice in 
the Federal Register when the Chief is the responsible official (see 
Sec. 218.7(c)). It is the responsibility of objectors to ensure that 
their objection is received in a timely manner.

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    (b) Time for responding to an objection. The reviewing officer must 
issue a written response to the objector(s) concerning their 
objection(s) within 45 days following the end of the objection filing 
period. The reviewing officer has the discretion to extend the time for 
up to 30 days when he or she determines that additional time is 
necessary to provide adequate response to objections or to participate 
in resolution discussions with the objector(s).



Subpart C_Provisions Specific to Proposed Projects Authorized Under the 
                     Healthy Forests Restoration Act



Sec. 218.30  Applicability and scope.

    This subpart includes provisions that are specific to proposed 
hazardous fuel reduction projects documented with a Record of Decision 
or Decision Notice, and authorized under the Healthy Forests Restoration 
Act (HFRA). The sections of this subpart must be considered in 
combination with the general provisions of subpart A of this part for 
the full complement of regulatory direction pertaining to predecisional 
administrative review of the applicable projects and activities.



Sec. 218.31  Authorized hazardous fuel reduction projects subject to 
objection.

    (a) Only authorized hazardous fuel reduction projects as defined by 
the HFRA, section 101(2), occurring on National Forest System land that 
have been analyzed in an EA or EIS are subject to this subpart. 
Authorized hazardous fuel reduction projects processed under the 
provisions of the HFRA are not subject to the requirements in subpart B 
of this part.
    (b) When authorized hazardous fuel reduction projects are approved 
contemporaneously with a plan amendment that applies only to that 
project, the objection process of this subpart applies to both the plan 
amendment and the project.



Sec. 218.32  Objection time periods.

    (a) Time to file an objection. Written objections, including any 
attachments, must be filed with the reviewing officer within 30 days 
following the publication date of the legal notice of the EA or final 
EIS in the newspaper of record or the publication date of the notice in 
the Federal Register when the Chief is the responsible official (see 
Sec. 218.6(c)). It is the responsibility of objectors to ensure that 
their objection is received in a timely manner.
    (b) Time for responding to an objection. The reviewing officer must 
issue a written response to the objector(s) concerning their 
objection(s) within 30 days following the end of the objection filing 
period.



PART 219_PLANNING--Table of Contents



        Subpart A_National Forest System Land Management Planning

Sec.
219.1 Purpose and applicability.
219.2 Levels of planning and responsible officials.
219.3 Role of science in planning.
219.4 Requirements for public participation.
219.5 Planning framework.
219.6 Assessment.
219.7 New plan development or plan revision.
219.8 Sustainability.
219.9 Diversity of plant and animal communities.
219.10 Multiple use.
219.11 Timber requirements based on the NFMA.
219.12 Monitoring.
219.13 Plan amendment and administrative changes.
219.14 Decision document and planning records.
219.15 Project and activity consistency with the plan.
219.16 Public notifications.
219.17 Effective dates and transition.
219.18 Severability.
219.19 Definitions.

         Subpart B_Pre-Decisional Administrative Review Process

219.50 Purpose and scope.
219.51 Plans, plan amendments, or plan revisions not subject to 
          objection.
219.52 Giving notice of a plan, plan amendment, or plan revision subject 
          to objection before approval.
219.53 Who may file an objection.
219.54 Filing an objection.
219.55 Objections set aside from review.
219.56 Objection time periods and process.
219.57 Resolution of objections.
219.58 Timing of a plan, plan amendment, or plan revision decision.

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219.59 Use of other administrative review processes.
219.60 Secretary's authority.
219.61 Information collection requirements.
219.62 Definitions.

    Authority: 5 U.S.C. 301; 16 U.S.C. 1604, 1613.

    Source: 77 FR 21260, Apr. 9, 2012, unless otherwise noted.



        Subpart A_National Forest System Land Management Planning



Sec. 219.1  Purpose and applicability.

    (a) This subpart sets out the planning requirements for developing, 
amending, and revising land management plans (also referred to as plans) 
for units of the National Forest System (NFS), as required by the Forest 
and Rangeland Renewable Resources Planning Act of 1974, as amended by 
the National Forest Management Act of 1976 (16 U.S.C. 1600 et seq.) 
(NFMA). This subpart also sets out the requirements for plan components 
and other content in land management plans. This part is applicable to 
all units of the NFS as defined by 16 U.S.C. 1609 or subsequent statute.
    (b) Consistent with the Multiple-Use Sustained-Yield Act of 1960 (16 
U.S.C. 528-531) (MUSYA), the Forest Service manages the NFS to sustain 
the multiple use of its renewable resources in perpetuity while 
maintaining the long-term health and productivity of the land. Resources 
are managed through a combination of approaches and concepts for the 
benefit of human communities and natural resources. Land management 
plans guide sustainable, integrated resource management of the resources 
within the plan area in the context of the broader landscape, giving due 
consideration to the relative values of the various resources in 
particular areas.
    (c) The purpose of this part is to guide the collaborative and 
science-based development, amendment, and revision of land management 
plans that promote the ecological integrity of national forests and 
grasslands and other administrative units of the NFS. Plans will guide 
management of NFS lands so that they are ecologically sustainable and 
contribute to social and economic sustainability; consist of ecosystems 
and watersheds with ecological integrity and diverse plant and animal 
communities; and have the capacity to provide people and communities 
with ecosystem services and multiple uses that provide a range of 
social, economic, and ecological benefits for the present and into the 
future. These benefits include clean air and water; habitat for fish, 
wildlife, and plant communities; and opportunities for recreational, 
spiritual, educational, and cultural benefits.
    (d) This part does not affect treaty rights or valid existing rights 
established by statute or legal instruments.
    (e) During the planning process, the responsible official shall 
comply with Section 8106 of the Food, Conservation, and Energy Act of 
2008 (25 U.S.C. 3056), Executive Order 13007 of May 24, 1996, Executive 
Order 13175 of November 6, 2000, laws, and other requirements with 
respect to disclosing or withholding under the Freedom of Information 
Act (5 U.S.C. 552) certain information regarding reburial sites or other 
information that is culturally sensitive to an Indian Tribe or Tribes.
    (f) Plans must comply with all applicable laws and regulations, 
including NFMA, MUSYA, the Clean Air Act, the Clean Water Act, the 
Wilderness Act, and the Endangered Species Act.
    (g) The responsible official shall ensure that the planning process, 
plan components, and other plan content are within Forest Service 
authority, the inherent capability of the plan area, and the fiscal 
capability of the unit.



Sec. 219.2  Levels of planning and responsible officials.

    Forest Service planning occurs at different organizational levels 
and geographic scales. Planning occurs at three levels--national 
strategic planning, NFS unit planning, and project or activity planning.
    (a) National strategic planning. The Chief of the Forest Service is 
responsible for national planning, such as preparation of the Forest 
Service strategic plan required under the Government Performance and 
Results Modernization Act of 2010 (5 U.S.C. 306; 31 U.S.C. 1115-1125; 31 
U.S.C. 9703-9704),

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which is integrated with the requirements of the Forest and Rangeland 
Renewable Resources Planning Act of 1974, as amended by the NFMA. The 
strategic plan establishes goals, objectives, performance measures, and 
strategies for management of the NFS, as well as the other Forest 
Service mission areas: Research and Development, State and Private 
Forestry, and International Programs.
    (b) National Forest System unit planning. (1) NFS unit planning 
results in the development, amendment, or revision of a land management 
plan. A land management plan provides a framework for integrated 
resource management and for guiding project and activity decisionmaking 
on a national forest, grassland, prairie, or other administrative unit. 
A plan reflects the unit's expected distinctive roles and contributions 
to the local area, region, and Nation, and the roles for which the plan 
area is best suited, considering the Agency's mission, the unit's unique 
capabilities, and the resources and management of other lands in the 
vicinity. Through the adaptive planning cycle set forth in this subpart, 
a plan can be changed to reflect new information and changing 
conditions.
    (2) A plan does not authorize projects or activities or commit the 
Forest Service to take action. A plan may constrain the Agency from 
authorizing or carrying out projects and activities, or the manner in 
which they may occur. Projects and activities must be consistent with 
the plan (Sec. 219.15). A plan does not regulate uses by the public, 
but a project or activity decision that regulates a use by the public 
under 36 CFR Part 261, Subpart B, may be made contemporaneously with the 
approval of a plan, plan amendment, or plan revision. Plans should not 
repeat laws, regulations, or program management policies, practices, and 
procedures that are in the Forest Service Directive System.
    (3) The supervisor of the national forest, grassland, prairie, or 
other comparable administrative unit is the responsible official for 
development and approval of a plan, plan amendment, or plan revision for 
lands under the responsibility of the supervisor, unless a regional 
forester; the Chief; the Under Secretary, Natural Resources and 
Environment; or the Secretary acts as the responsible official. Two or 
more responsible officials may undertake joint planning over lands under 
their respective jurisdictions.
    (4) A plan for a unit that contains an experimental area may not be 
approved without the concurrence of the appropriate research station 
director with respect to the direction applicable to that area, and a 
plan amendment applicable to an experimental area may not be approved 
without the concurrence of the appropriate research station director.
    (5) The Chief is responsible for leadership and direction for 
carrying out the NFS land management planning program under this part. 
The Chief shall:
    (i) Establish planning procedures for this part in the Forest 
Service Directive System in Forest Service Manual 1920--Land Management 
Planning and in Forest Service Handbook 1909.12--Land Management 
Planning Handbook.
    (ii) Establish and administer a national oversight process for 
accountability and consistency of NFS land management planning under 
this part.
    (iii) Establish procedures in the Forest Service Directive System 
for obtaining inventory data on the various renewable resources, and 
soil and water.
    (c) Project and activity planning. The supervisor or district ranger 
is the responsible official for project and activity decisions, unless a 
higher-level official acts as the responsible official. Requirements for 
project or activity planning are established in the Forest Service 
Directive System. Except as provided in the plan consistency 
requirements in Sec. 219.15, none of the requirements of this part 
apply to projects or activities.



Sec. 219.3  Role of science in planning.

    The responsible official shall use the best available scientific 
information to inform the planning process required by this subpart. In 
doing so, the responsible official shall determine what information is 
the most accurate, reliable, and relevant to the issues being 
considered. The responsible official shall document how the best 
available

[[Page 66]]

scientific information was used to inform the assessment, the plan 
decision, and the monitoring program as required in Sec. Sec. 
219.6(a)(3) and 219.14(a)(4). Such documentation must: Identify what 
information was determined to be the best available scientific 
information, explain the basis for that determination, and explain how 
the information was applied to the issues considered.



Sec. 219.4  Requirements for public participation.

    (a) Providing opportunities for participation. The responsible 
official shall provide opportunities to the public for participating in 
the assessment process; developing a plan proposal, including the 
monitoring program; commenting on the proposal and the disclosure of its 
environmental impacts in accompanying National Environmental Policy Act 
(NEPA) documents; and reviewing the results of monitoring information. 
When developing opportunities for public participation, the responsible 
official shall take into account the discrete and diverse roles, 
jurisdictions, responsibilities, and skills of interested and affected 
parties; the accessibility of the process, opportunities, and 
information; and the cost, time, and available staffing. The responsible 
official should be proactive and use contemporary tools, such as the 
Internet, to engage the public, and should share information in an open 
way with interested parties. Subject to the notification requirements in 
Sec. 219.16, the responsible official has the discretion to determine 
the scope, methods, forum, and timing of those opportunities. The Forest 
Service retains decisionmaking authority and responsibility for all 
decisions throughout the process.
    (1) Outreach. The responsible official shall engage the public--
including Tribes and Alaska Native Corporations, other Federal agencies, 
State and local governments, individuals, and public and private 
organizations or entities--early and throughout the planning process as 
required by this part, using collaborative processes where feasible and 
appropriate. In providing opportunities for engagement, the responsible 
official shall encourage participation by:
    (i) Interested individuals and entities, including those interested 
at the local, regional, and national levels.
    (ii) Youth, low-income populations, and minority populations.
    (iii) Private landowners whose lands are in, adjacent to, or 
otherwise affected by, or whose actions may impact, future management 
actions in the plan area.
    (iv) Federal agencies, States, counties, and local governments, 
including State fish and wildlife agencies, State foresters and other 
relevant State agencies. Where appropriate, the responsible official 
shall encourage States, counties, and other local governments to seek 
cooperating agency status in the NEPA process for development, 
amendment, or revision of a plan. The responsible official may 
participate in planning efforts of States, counties, local governments, 
and other Federal agencies, where practicable and appropriate.
    (v) Interested or affected federally recognized Indian Tribes or 
Alaska Native Corporations. Where appropriate, the responsible official 
shall encourage federally recognized Tribes to seek cooperating agency 
status in the NEPA process for development, amendment, or revision of a 
plan. The responsible official may participate in planning efforts of 
federally recognized Indian Tribes and Alaska Native Corporations, where 
practicable and appropriate.
    (2) Consultation with federally recognized Indian Tribes and Alaska 
Native Corporations. The Department recognizes the Federal Government 
has certain trust responsibilities and a unique legal relationship with 
federally recognized Indian Tribes. The responsible official shall honor 
the government-to-government relationship between federally recognized 
Indian Tribes and the Federal Government. The responsible official shall 
provide to federally recognized Indian Tribes and Alaska Native 
Corporations the opportunity to undertake consultation consistent with 
Executive Order 13175 of November 6, 2000, and 25 U.S.C. 450 note.
    (3) Native knowledge, indigenous ecological knowledge, and land 
ethics. As

[[Page 67]]

part of tribal participation and consultation as set forth in paragraphs 
(a)(1)(v) and (a)(2) of this section, the responsible official shall 
request information about native knowledge, land ethics, cultural 
issues, and sacred and culturally significant sites.
    (b) Coordination with other public planning efforts. (1) The 
responsible official shall coordinate land management planning with the 
equivalent and related planning efforts of federally recognized Indian 
Tribes, Alaska Native Corporations, other Federal agencies, and State 
and local governments.
    (2) For plan development or revision, the responsible official shall 
review the planning and land use policies of federally recognized Indian 
Tribes (43 U.S.C. 1712(b)), Alaska Native Corporations, other Federal 
agencies, and State and local governments, where relevant to the plan 
area. The results of this review shall be displayed in the environmental 
impact statement (EIS) for the plan (40 CFR 1502.16(c), 1506.2). The 
review shall include consideration of:
    (i) The objectives of federally recognized Indian Tribes, Alaska 
Native Corporations, other Federal agencies, and State and local 
governments, as expressed in their plans and policies;
    (ii) The compatibility and interrelated impacts of these plans and 
policies;
    (iii) Opportunities for the plan to address the impacts identified 
or to contribute to joint objectives; and
    (iv) Opportunities to resolve or reduce conflicts, within the 
context of developing the plan's desired conditions or objectives.
    (3) Nothing in this section should be read to indicate that the 
responsible official will seek to direct or control management of lands 
outside of the plan area, nor will the responsible official conform 
management to meet non-Forest Service objectives or policies.

[77 FR 21260, Apr. 9, 2012, as amended at 77 FR 44144, July 27, 2012]



Sec. 219.5  Planning framework.

    (a) Planning for a national forest, grassland, prairie, or other 
comparable administrative unit of the NFS is an iterative process that 
includes assessment (Sec. 219.6); developing, amending, or revising a 
plan (Sec. Sec. 219.7 and 219.13); and monitoring (Sec. 219.12). These 
three phases of the framework are complementary and may overlap. The 
intent of this framework is to create a responsive planning process that 
informs integrated resource management and allows the Forest Service to 
adapt to changing conditions, including climate change, and improve 
management based on new information and monitoring.
    (1) Assessment. Assessments rapidly evaluate existing information 
about relevant ecological, economic, and social conditions, trends, and 
sustainability and their relationship to the land management plan within 
the context of the broader landscape. The responsible official shall 
consider and evaluate existing and possible future conditions and trends 
of the plan area, and assess the sustainability of social, economic, and 
ecological systems within the plan area, in the context of the broader 
landscape (Sec. 219.6).
    (2) Plan development, plan amendment, or plan revision.
    (i) The process for developing or revising a plan includes: 
Assessment, preliminary identification of the need to change the plan 
based on the assessment, development of a proposed plan, consideration 
of the environmental effects of the proposal, providing an opportunity 
to comment on the proposed plan, providing an opportunity to object 
before the proposal is approved, and, finally, approval of the plan or 
plan revision. A new plan or plan revision requires preparation of an 
environmental impact statement.
    (ii) The process for amending a plan includes: Preliminary 
identification of the need to change the plan, development of a proposed 
amendment, consideration of the environmental effects of the proposal, 
providing an opportunity to comment on the proposed amendment, providing 
an opportunity to object before the proposal is approved, and, finally, 
approval of the plan amendment. The appropriate NEPA documentation for 
an amendment may be an environmental impact statement, an environmental 
assessment, or a categorical exclusion, depending upon the scope and 
scale of the amendment and its likely effects.

[[Page 68]]

    (3) Monitoring. Monitoring is continuous and provides feedback for 
the planning cycle by testing relevant assumptions, tracking relevant 
conditions over time, and measuring management effectiveness (Sec. 
219.12). The monitoring program includes plan-level and broader-scale 
monitoring. The plan-level monitoring program is informed by the 
assessment phase; developed during plan development, plan amendment, or 
plan revision; and implemented after plan decision. The regional 
forester develops broader-scale monitoring strategies. Biennial 
monitoring evaluation reports document whether a change to the plan or 
change to the monitoring program is warranted based on new information, 
whether a new assessment may be needed, or whether there is no need for 
change at that time.
    (b) Interdisciplinary team(s). The responsible official shall 
establish an interdisciplinary team or teams to prepare assessments; new 
plans, plan amendments, and plan revisions; and plan monitoring 
programs.



Sec. 219.6  Assessment.

    The responsible official has the discretion to determine the scope, 
scale, and timing of an assessment described in Sec. 219.5(a)(1), 
subject to the requirements of this section.
    (a) Process for plan development or revision assessments. An 
assessment must be completed for the development of a new plan or for a 
plan revision. The responsible official shall:
    (1) Identify and consider relevant existing information in 
governmental or non-governmental assessments, plans, monitoring reports, 
studies, and other sources of relevant information. Such sources of 
information may include State forest assessments and strategies, the 
Resources Planning Act assessment, ecoregional assessments, non-
governmental reports, State comprehensive outdoor recreation plans, 
community wildfire protection plans, public transportation plans, State 
wildlife data and action plans, and relevant Agency or interagency 
reports, resource plans or assessments. Relevant private information, 
including relevant land management plans and local knowledge, will be 
considered if publicly available or voluntarily provided.
    (2) Coordinate with or provide opportunities for the regional 
forester, agency staff from State and Private Forestry and Research and 
Development, federally recognized Indian Tribes and Alaska Native 
Corporations, other governmental and non-governmental parties, and the 
public to provide existing information for the assessment.
    (3) Document the assessment in a report available to the public. The 
report should document information needs relevant to the topics of 
paragraph (b) of this section. Document in the report how the best 
available scientific information was used to inform the assessment 
(Sec. 219.3). Include the report in the planning record (Sec. 219.14).
    (b) Content of the assessment for plan development or revision. In 
the assessment for plan development or revision, the responsible 
official shall identify and evaluate existing information relevant to 
the plan area for the following:
    (1) Terrestrial ecosystems, aquatic ecosystems, and watersheds;
    (2) Air, soil, and water resources and quality;
    (3) System drivers, including dominant ecological processes, 
disturbance regimes, and stressors, such as natural succession, wildland 
fire, invasive species, and climate change; and the ability of 
terrestrial and aquatic ecosystems on the plan area to adapt to change;
    (4) Baseline assessment of carbon stocks;
    (5) Threatened, endangered, proposed and candidate species, and 
potential species of conservation concern present in the plan area;
    (6) Social, cultural, and economic conditions;
    (7) Benefits people obtain from the NFS planning area (ecosystem 
services);
    (8) Multiple uses and their contributions to local, regional, and 
national economies;
    (9) Recreation settings, opportunities and access, and scenic 
character;
    (10) Renewable and nonrenewable energy and mineral resources;

[[Page 69]]

    (11) Infrastructure, such as recreational facilities and 
transportation and utility corridors;
    (12) Areas of tribal importance;
    (13) Cultural and historic resources and uses;
    (14) Land status and ownership, use, and access patterns; and
    (15) Existing designated areas located in the plan area including 
wilderness and wild and scenic rivers and potential need and opportunity 
for additional designated areas.
    (c) Plan amendment assessments. Where the responsible official 
determines that a new assessment is needed to inform an amendment, the 
responsible official has the discretion to determine the scope, scale, 
process, and content for the assessment depending on the topic or topics 
to be addressed.

[77 FR 21260, Apr. 9, 2012, as amended at 77 FR 44145, July 27, 2012]



Sec. 219.7  New plan development or plan revision.

    (a) Plan revisions. A plan revision creates a new plan for the 
entire plan area, whether the plan revision differs from the prior plan 
to a small or large extent. A plan must be revised at least every 15 
years. But, the responsible official has the discretion to determine at 
any time that conditions on a plan area have changed significantly such 
that a plan must be revised (16 U.S.C. 1604(f)(5)).
    (b) New plan development. New plan development is required for new 
NFS units. The process for developing a new plan is the same as the 
process for plan revision.
    (c) Process for plan development or revision. (1) The process for 
developing or revising a plan includes: Public notification and 
participation (Sec. Sec. 219.4 and 219.16), assessment (Sec. Sec. 
219.5 and 219.6), developing a proposed plan, considering the 
environmental effects of the proposal, providing an opportunity to 
comment on the proposed plan, providing an opportunity to object before 
the proposal is approved (subpart B), and, finally, approving the plan 
or plan revision. A new plan or plan revision requires preparation of an 
environmental impact statement.
    (2) In developing a proposed new plan or proposed plan revision, the 
responsible official shall:
    (i) Review relevant information from the assessment and monitoring 
to identify a preliminary need to change the existing plan and to inform 
the development of plan components and other plan content.
    (ii) Consider the goals and objectives of the Forest Service 
strategic plan (Sec. 219.2(a)).
    (iii) Identify the presence and consider the importance of various 
physical, biological, social, cultural, and historic resources on the 
plan area (Sec. 219.6), with respect to the requirements for plan 
components of Sec. Sec. 219.8 through 219.11.
    (iv) Consider conditions, trends, and stressors (Sec. 219.6), with 
respect to the requirements for plan components of Sec. Sec. 219.8 
through 219.11.
    (v) Identify and evaluate lands that may be suitable for inclusion 
in the National Wilderness Preservation System and determine whether to 
recommend any such lands for wilderness designation.
    (vi) Identify the eligibility of rivers for inclusion in the 
National Wild and Scenic Rivers System, unless a systematic inventory 
has been previously completed and documented and there are no changed 
circumstances that warrant additional review.
    (vii) Identify existing designated areas other than the areas 
identified in paragraphs (c)(2)(v) and (c)(2)(vi) of this section, and 
determine whether to recommend any additional areas for designation. If 
the responsible official has the delegated authority to designate a new 
area or modify an existing area, then the responsible official may 
designate such area when approving the plan, plan amendment, or plan 
revision.
    (viii) Identify the suitability of areas for the appropriate 
integration of resource management and uses, with respect to the 
requirements for plan components of Sec. Sec. 219.8 through 219.11, 
including identifying lands that are not suitable for timber production 
(Sec. 219.11).
    (ix) Identify the maximum quantity of timber that may be removed 
from the plan area (Sec. 219.11(d)(6)).

[[Page 70]]

    (x) Identify questions and indicators for the plan monitoring 
program (Sec. 219.12).
    (xi) Identify potential other content in the plan (paragraph (f) of 
this section).
    (3) The regional forester shall identify the species of conservation 
concern for the plan area in coordination with the responsible official.
    (d) Management areas or geographic areas. Every plan must have 
management areas or geographic areas or both. The plan may identify 
designated or recommended designated areas as management areas or 
geographic areas.
    (e) Plan components. Plan components guide future project and 
activity decisionmaking. The plan must indicate whether specific plan 
components apply to the entire plan area, to specific management areas 
or geographic areas, or to other areas as identified in the plan.
    (1) Required plan components. Every plan must include the following 
plan components:
    (i) Desired conditions. A desired condition is a description of 
specific social, economic, and/or ecological characteristics of the plan 
area, or a portion of the plan area, toward which management of the land 
and resources should be directed. Desired conditions must be described 
in terms that are specific enough to allow progress toward their 
achievement to be determined, but do not include completion dates.
    (ii) Objectives. An objective is a concise, measurable, and time-
specific statement of a desired rate of progress toward a desired 
condition or conditions. Objectives should be based on reasonably 
foreseeable budgets.
    (iii) Standards. A standard is a mandatory constraint on project and 
activity decisionmaking, established to help achieve or maintain the 
desired condition or conditions, to avoid or mitigate undesirable 
effects, or to meet applicable legal requirements.
    (iv) Guidelines. A guideline is a constraint on project and activity 
decisionmaking that allows for departure from its terms, so long as the 
purpose of the guideline is met. (Sec. 219.15(d)(3)). Guidelines are 
established to help achieve or maintain a desired condition or 
conditions, to avoid or mitigate undesirable effects, or to meet 
applicable legal requirements.
    (v) Suitability of lands. Specific lands within a plan area will be 
identified as suitable for various multiple uses or activities based on 
the desired conditions applicable to those lands. The plan will also 
identify lands within the plan area as not suitable for uses that are 
not compatible with desired conditions for those lands. The suitability 
of lands need not be identified for every use or activity. Suitability 
identifications may be made after consideration of historic uses and of 
issues that have arisen in the planning process. Every plan must 
identify those lands that are not suitable for timber production (Sec. 
219.11).
    (2) Optional plan component: goals. A plan may include goals as plan 
components. Goals are broad statements of intent, other than desired 
conditions, usually related to process or interaction with the public. 
Goals are expressed in broad, general terms, but do not include 
completion dates.
    (3) Requirements for the set of plan components. The set of plan 
components must meet the requirements set forth in this part for 
sustainability (Sec. 219.8), plant and animal diversity (Sec. 219.9), 
multiple use (Sec. 219.10), and timber (Sec. 219.11).
    (f) Other content in the plan. (1) Other required content in the 
plan. Every plan must:
    (i) Identify watershed(s) that are a priority for maintenance or 
restoration;
    (ii) Describe the plan area's distinctive roles and contributions 
within the broader landscape;
    (iii) Include the monitoring program required by Sec. 219.12; and
    (iv) Contain information reflecting proposed and possible actions 
that may occur on the plan area during the life of the plan, including: 
the planned timber sale program; timber harvesting levels; and the 
proportion of probable methods of forest vegetation management practices 
expected to be used (16 U.S.C. 1604(e)(2) and (f)(2)). Such information 
is not a commitment to take any action and is not a ``proposal'' as

[[Page 71]]

defined by the Council on Environmental Quality regulations for 
implementing NEPA (40 CFR 1508.23, 42 U.S.C. 4322(2)(C)).
    (2) Optional content in the plan. A plan may include additional 
content, such as potential management approaches or strategies and 
partnership opportunities or coordination activities.

[77 FR 21260, Apr. 9, 2012, as amended at 77 FR 44145, July 27, 2012]



Sec. 219.8  Sustainability.

    The plan must provide for social, economic, and ecological 
sustainability within Forest Service authority and consistent with the 
inherent capability of the plan area, as follows:
    (a) Ecological sustainability. (1) Ecosystem Integrity. The plan 
must include plan components, including standards or guidelines, to 
maintain or restore the ecological integrity of terrestrial and aquatic 
ecosystems and watersheds in the plan area, including plan components to 
maintain or restore structure, function, composition, and connectivity, 
taking into account:
    (i) Interdependence of terrestrial and aquatic ecosystems in the 
plan area.
    (ii) Contributions of the plan area to ecological conditions within 
the broader landscape influenced by the plan area.
    (iii) Conditions in the broader landscape that may influence the 
sustainability of resources and ecosystems within the plan area.
    (iv) System drivers, including dominant ecological processes, 
disturbance regimes, and stressors, such as natural succession, wildland 
fire, invasive species, and climate change; and the ability of 
terrestrial and aquatic ecosystems on the plan area to adapt to change.
    (v) Wildland fire and opportunities to restore fire adapted 
ecosystems.
    (vi) Opportunities for landscape scale restoration.
    (2) Air, soil, and water. The plan must include plan components, 
including standards or guidelines, to maintain or restore:
    (i) Air quality.
    (ii) Soils and soil productivity, including guidance to reduce soil 
erosion and sedimentation.
    (iii) Water quality.
    (iv) Water resources in the plan area, including lakes, streams, and 
wetlands; ground water; public water supplies; sole source aquifers; 
source water protection areas; and other sources of drinking water 
(including guidance to prevent or mitigate detrimental changes in 
quantity, quality, and availability).
    (3) Riparian areas. (i) The plan must include plan components, 
including standards or guidelines, to maintain or restore the ecological 
integrity of riparian areas in the plan area, including plan components 
to maintain or restore structure, function, composition, and 
connectivity, taking into account:
    (A) Water temperature and chemical composition;
    (B) Blockages (uncharacteristic and characteristic) of water 
courses;
    (C) Deposits of sediment;
    (D) Aquatic and terrestrial habitats;
    (E) Ecological connectivity;
    (F) Restoration needs; and
    (G) Floodplain values and risk of flood loss.
    (ii) Plans must establish width(s) for riparian management zones 
around all lakes, perennial and intermittent streams, and open water 
wetlands, within which the plan components required by paragraph 
(a)(3)(i) of this section will apply, giving special attention to land 
and vegetation for approximately 100 feet from the edges of all 
perennial streams and lakes.
    (A) Riparian management zone width(s) may vary based on ecological 
or geomorphic factors or type of water body; and will apply unless 
replaced by a site-specific delineation of the riparian area.
    (B) Plan components must ensure that no management practices causing 
detrimental changes in water temperature or chemical composition, 
blockages of water courses, or deposits of sediment that seriously and 
adversely affect water conditions or fish habitat shall be permitted 
within the riparian management zones or the site-specific delineated 
riparian areas.
    (4) Best management practices for water quality. The Chief shall 
establish requirements for national best management practices for water 
quality in the Forest Service Directive System. Plan

[[Page 72]]

components must ensure implementation of these practices.
    (b) Social and economic sustainability. The plan must include plan 
components, including standards or guidelines, to guide the plan area's 
contribution to social and economic sustainability, taking into account:
    (1) Social, cultural, and economic conditions relevant to the area 
influenced by the plan;
    (2) Sustainable recreation; including recreation settings, 
opportunities, and access; and scenic character;
    (3) Multiple uses that contribute to local, regional, and national 
economies in a sustainable manner;
    (4) Ecosystem services;
    (5) Cultural and historic resources and uses; and
    (6) Opportunities to connect people with nature.



Sec. 219.9  Diversity of plant and animal communities.

    This section adopts a complementary ecosystem and species-specific 
approach to maintaining the diversity of plant and animal communities 
and the persistence of native species in the plan area. Compliance with 
the ecosystem requirements of paragraph (a) is intended to provide the 
ecological conditions to both maintain the diversity of plant and animal 
communities and support the persistence of most native species in the 
plan area. Compliance with the requirements of paragraph (b) is intended 
to provide for additional ecological conditions not otherwise provided 
by compliance with paragraph (a) for individual species as set forth in 
paragraph (b). The plan must provide for the diversity of plant and 
animal communities, within Forest Service authority and consistent with 
the inherent capability of the plan area, as follows:
    (a) Ecosystem plan components. (1) Ecosystem integrity. As required 
by Sec. 219.8(a), the plan must include plan components, including 
standards or guidelines, to maintain or restore the ecological integrity 
of terrestrial and aquatic ecosystems and watersheds in the plan area, 
including plan components to maintain or restore their structure, 
function, composition, and connectivity.
    (2) Ecosystem diversity. The plan must include plan components, 
including standards or guidelines, to maintain or restore the diversity 
of ecosystems and habitat types throughout the plan area. In doing so, 
the plan must include plan components to maintain or restore:
    (i) Key characteristics associated with terrestrial and aquatic 
ecosystem types;
    (ii) Rare aquatic and terrestrial plant and animal communities; and
    (iii) The diversity of native tree species similar to that existing 
in the plan area.
    (b) Additional, species-specific plan components. (1) The 
responsible official shall determine whether or not the plan components 
required by paragraph (a) of this section provide the ecological 
conditions necessary to: contribute to the recovery of federally listed 
threatened and endangered species, conserve proposed and candidate 
species, and maintain a viable population of each species of 
conservation concern within the plan area. If the responsible official 
determines that the plan components required in paragraph (a) are 
insufficient to provide such ecological conditions, then additional, 
species-specific plan components, including standards or guidelines, 
must be included in the plan to provide such ecological conditions in 
the plan area.
    (2) If the responsible official determines that it is beyond the 
authority of the Forest Service or not within the inherent capability of 
the plan area to maintain or restore the ecological conditions to 
maintain a viable population of a species of conservation concern in the 
plan area, then the responsible official shall:
    (i) Document the basis for that determination (Sec. 219.14(a)); and
    (ii) Include plan components, including standards or guidelines, to 
maintain or restore ecological conditions within the plan area to 
contribute to maintaining a viable population of the species within its 
range. In providing such plan components, the responsible official shall 
coordinate to the extent practicable with other Federal, State, Tribal, 
and private land managers having management authority over lands 
relevant to that population.

[[Page 73]]

    (c) Species of conservation concern. For purposes of this subpart, a 
species of conservation concern is a species, other than federally 
recognized threatened, endangered, proposed, or candidate species, that 
is known to occur in the plan area and for which the regional forester 
has determined that the best available scientific information indicates 
substantial concern about the species' capability to persist over the 
long-term in the plan area.



Sec. 219.10  Multiple use.

    While meeting the requirements of Sec. Sec. 219.8 and 219.9, the 
plan must provide for ecosystem services and multiple uses, including 
outdoor recreation, range, timber, watershed, wildlife, and fish, within 
Forest Service authority and the inherent capability of the plan area as 
follows:
    (a) Integrated resource management for multiple use. The plan must 
include plan components, including standards or guidelines, for 
integrated resource management to provide for ecosystem services and 
multiple uses in the plan area. When developing plan components for 
integrated resource management, to the extent relevant to the plan area 
and the public participation process and the requirements of Sec. Sec. 
219.7, 219.8, 219.9, and 219.11, the responsible official shall 
consider:
    (1) Aesthetic values, air quality, cultural and heritage resources, 
ecosystem services, fish and wildlife species, forage, geologic 
features, grazing and rangelands, habitat and habitat connectivity, 
recreation settings and opportunities, riparian areas, scenery, soil, 
surface and subsurface water quality, timber, trails, vegetation, 
viewsheds, wilderness, and other relevant resources and uses.
    (2) Renewable and nonrenewable energy and mineral resources.
    (3) Appropriate placement and sustainable management of 
infrastructure, such as recreational facilities and transportation and 
utility corridors.
    (4) Opportunities to coordinate with neighboring landowners to link 
open spaces and take into account joint management objectives where 
feasible and appropriate.
    (5) Habitat conditions, subject to the requirements of Sec. 219.9, 
for wildlife, fish, and plants commonly enjoyed and used by the public; 
for hunting, fishing, trapping, gathering, observing, subsistence, and 
other activities (in collaboration with federally recognized Tribes, 
Alaska Native Corporations, other Federal agencies, and State and local 
governments).
    (6) Land status and ownership, use, and access patterns relevant to 
the plan area.
    (7) Reasonably foreseeable risks to ecological, social, and economic 
sustainability.
    (8) System drivers, including dominant ecological processes, 
disturbance regimes, and stressors, such as natural succession, wildland 
fire, invasive species, and climate change; and the ability of the 
terrestrial and aquatic ecosystems on the plan area to adapt to change 
(Sec. 219.8);
    (9) Public water supplies and associated water quality.
    (10) Opportunities to connect people with nature.
    (b) Requirements for plan components for a new plan or plan 
revision. (1) The plan must include plan components, including standards 
or guidelines, to provide for:
    (i) Sustainable recreation; including recreation settings, 
opportunities, and access; and scenic character. Recreation 
opportunities may include non-motorized, motorized, developed, and 
dispersed recreation on land, water, and in the air.
    (ii) Protection of cultural and historic resources.
    (iii) Management of areas of tribal importance.
    (iv) Protection of congressionally designated wilderness areas as 
well as management of areas recommended for wilderness designation to 
protect and maintain the ecological and social characteristics that 
provide the basis for their suitability for wilderness designation.
    (v) Protection of designated wild and scenic rivers as well as 
management of rivers found eligible or determined suitable for the 
National Wild and Scenic River system to protect the values that provide 
the basis for their suitability for inclusion in the system.

[[Page 74]]

    (vi) Appropriate management of other designated areas or recommended 
designated areas in the plan area, including research natural areas.
    (2) Other plan components for integrated resource management to 
provide for multiple use as necessary.



Sec. 219.11  Timber requirements based on the NFMA.

    While meeting the requirements of Sec. Sec. 219.8 through 219.10, 
the plan must include plan components, including standards or 
guidelines, and other plan content regarding timber management within 
Forest Service authority and the inherent capability of the plan area, 
as follows:
    (a) Lands not suited for timber production. (1) The responsible 
official shall identify lands within the plan area as not suited for 
timber production if any one of the following factors applies:
    (i) Statute, Executive order, or regulation prohibits timber 
production on the land;
    (ii) The Secretary of Agriculture or the Chief has withdrawn the 
land from timber production;
    (iii) Timber production would not be compatible with the achievement 
of desired conditions and objectives established by the plan for those 
lands;
    (iv) The technology is not currently available for conducting timber 
harvest without causing irreversible damage to soil, slope, or other 
watershed conditions;
    (v) There is no reasonable assurance that such lands can be 
adequately restocked within 5 years after final regeneration harvest; or
    (vi) The land is not forest land.
    (2) The responsible official shall review lands identified in the 
plan as not suited for timber production at least once every 10 years, 
or as otherwise prescribed by law, to determine whether conditions have 
changed so that they have become suitable for timber production. As a 
result of this 10-year review, the plan may be amended to identify any 
such lands as suitable for timber production, if warranted by changed 
conditions.
    (b) Timber harvest for purposes of timber production. A plan that 
identifies lands as suitable for timber production must include plan 
components, including standards or guidelines, to guide timber harvest 
for timber production or for other multiple use purposes on such lands.
    (c) Timber harvest for purposes other than timber production. Except 
as provided in paragraph (d) of this section, the plan may include plan 
components to allow for timber harvest for purposes other than timber 
production throughout the plan area, or portions of the plan area, as a 
tool to assist in achieving or maintaining one or more applicable 
desired conditions or objectives of the plan in order to protect other 
multiple-use values, and for salvage, sanitation, or public health or 
safety. Examples of using timber harvest to protect other multiple use 
values may include improving wildlife or fish habitat, thinning to 
reduce fire risk, or restoring meadow or savanna ecosystems where trees 
have invaded.
    (d) Limitations on timber harvest. Whether timber harvest would be 
for the purposes of timber production or other purposes, plan 
components, including standards or guidelines, must ensure the 
following:
    (1) No timber harvest for the purposes of timber production may 
occur on lands not suited for timber production.
    (2) Timber harvest would occur only where soil, slope, or other 
watershed conditions would not be irreversibly damaged;
    (3) Timber harvest would be carried out in a manner consistent with 
the protection of soil, watershed, fish, wildlife, recreation, and 
aesthetic resources.
    (4) Where plan components will allow clearcutting, seed tree 
cutting, shelterwood cutting, or other cuts designed to regenerate an 
even-aged stand of timber, the plan must include standards limiting the 
maximum size for openings that may be cut in one harvest operation, 
according to geographic areas, forest types, or other suitable 
classifications.
    (i) Plan standards may allow for openings larger than those 
specified in paragraph (d)(4) of this section to be cut in one harvest 
operation where the responsible official determines that larger harvest 
openings are necessary

[[Page 75]]

to help achieve desired ecological conditions in the plan area. If so, 
standards for exceptions shall include the particular conditions under 
which the larger size is permitted and must set a maximum size permitted 
under those conditions.
    (ii) Plan components may allow for size limits exceeding those 
established in paragraphs (d)(4) introductory text and (d)(4)(i) of this 
section on an individual timber sale basis after ``60-days'' public 
notice and review by the regional forester.
    (iii) The plan maximum size for openings to be cut in one harvest 
operation shall not apply to the size of openings harvested as a result 
of natural catastrophic conditions such as fire, insect and disease 
attack, or windstorm (16 U.S.C. 1604(g)(3)(F)(iv)).
    (5) Timber will be harvested from NFS lands only where such harvest 
would comply with the resource protections set out in sections 
6(g)(3)(E) and (F) of the NFMA (16 U.S.C. 1604(g)(3)(E) and (F)). Some 
of these requirements are listed in paragraphs (d)(2) to (d)(4) of this 
section.
    (6) The quantity of timber that may be sold from the national forest 
is limited to an amount equal to or less than that which can be removed 
from such forest annually in perpetuity on a sustained yield basis. This 
limit may be measured on a decadal basis.
    (i) The plan may provide for departures from this limit as provided 
by the NFMA when departure would be consistent with the plan's desired 
conditions and objectives. Exceptions for departure from this limit on 
the quantity sold may be made only after a public review and comment 
period of at least 90 days.
    (ii) This limit may be based upon increases in harvest levels based 
on intensified management practices, such as reforestation, thinning, 
and tree improvement if such practices justify increasing the harvests 
in accordance with the Multiple-Use Sustained-Yield Act of 1960. The 
plan must require that such harvest levels be decreased at the end of 
each planning period if such practices cannot be successfully 
implemented or funds are not received to permit such practices to 
continue substantially as planned.
    (iii) The Chief must include in the Forest Service Directive System 
procedures for estimating the quantity of timber that can be removed 
annually in perpetuity on a sustained-yield basis, and exceptions, 
consistent with 16 U.S.C. 1611.
    (7) The regeneration harvest of even-aged stands of trees is limited 
to stands that generally have reached the culmination of mean annual 
increment of growth. This requirement would apply only to regeneration 
harvest of even-aged stands on lands identified as suitable for timber 
production and where timber production is the primary purpose for the 
harvest. Plan components may allow for exceptions, set out in 16 U.S.C. 
1604(m), only if such harvest is consistent with the other plan 
components of the land management plan.

[77 FR 21260, Apr. 9, 2012, as amended at 77 FR 44145, July 27, 2012; 78 
FR 23492, Apr. 19, 2013]



Sec. 219.12  Monitoring.

    (a) Plan monitoring program. (1) The responsible official shall 
develop a monitoring program for the plan area and include it in the 
plan. Monitoring information should enable the responsible official to 
determine if a change in plan components or other plan content that 
guide management of resources on the plan area may be needed. The 
development of the plan monitoring program must be coordinated with the 
regional forester and Forest Service State and Private Forestry and 
Research and Development. Responsible officials for two or more 
administrative units may jointly develop their plan monitoring programs.
    (2) The plan monitoring program sets out the plan monitoring 
questions and associated indicators. Monitoring questions and associated 
indicators must be designed to inform the management of resources on the 
plan area, including by testing relevant assumptions, tracking relevant 
changes, and measuring management effectiveness and progress toward 
achieving or maintaining the plan's desired conditions or objectives. 
Questions and indicators should be based on one or more desired 
conditions, objectives, or other plan components in the plan, but not 
every plan

[[Page 76]]

component needs to have a corresponding monitoring question.
    (3) The plan monitoring program should be coordinated and integrated 
with relevant broader-scale monitoring strategies (paragraph (b) of this 
section) to ensure that monitoring is complementary and efficient, and 
that information is gathered at scales appropriate to the monitoring 
questions.
    (4) Subject to the requirements of paragraph (a)(5) of this section, 
the responsible official has the discretion to set the scope and scale 
of the plan monitoring program, after considering:
    (i) Information needs identified through the planning process as 
most critical for informed management of resources on the plan area; and
    (ii) The financial and technical capabilities of the Agency.
    (5) Each plan monitoring program must contain one or more monitoring 
questions and associated indicators addressing each of the following:
    (i) The status of select watershed conditions.
    (ii) The status of select ecological conditions including key 
characteristics of terrestrial and aquatic ecosystems.
    (iii) The status of focal species to assess the ecological 
conditions required under Sec. 219.9.
    (iv) The status of a select set of the ecological conditions 
required under Sec. 219.9 to contribute to the recovery of federally 
listed threatened and endangered species, conserve proposed and 
candidate species, and maintain a viable population of each species of 
conservation concern.
    (v) The status of visitor use, visitor satisfaction, and progress 
toward meeting recreation objectives.
    (vi) Measurable changes on the plan area related to climate change 
and other stressors that may be affecting the plan area.
    (vii) Progress toward meeting the desired conditions and objectives 
in the plan, including for providing multiple use opportunities.
    (viii) The effects of each management system to determine that they 
do not substantially and permanently impair the productivity of the land 
(16 U.S.C. 1604(g)(3)(C)).
    (6) A range of monitoring techniques may be used to carry out the 
monitoring requirements in paragraph (a)(5) of this section.
    (7) This section does not apply to projects or activities. Project 
and activity monitoring may be used to gather information for the plan 
monitoring program, and information gathered through plan monitoring may 
be used to inform development of projects or activities. But, the 
monitoring requirements of this section are not a prerequisite for 
making a decision to carry out a project or activity.
    (b) Broader-scale monitoring strategies. (1) The regional forester 
shall develop a broader-scale monitoring strategy for plan monitoring 
questions that can best be answered at a geographic scale broader than 
one plan area.
    (2) When developing a monitoring strategy, the regional forester 
shall coordinate with the relevant responsible officials, Forest Service 
State and Private Forestry and Research and Development, partners, and 
the public. Two or more regional foresters may jointly develop broader-
scale monitoring strategies.
    (3) Each regional forester shall ensure that the broader-scale 
monitoring strategy is within the financial and technical capabilities 
of the region and complements other ongoing monitoring efforts.
    (4) Projects and activities may be carried out under plans 
developed, amended, or revised under this part before the regional 
forester has developed a broader-scale monitoring strategy.
    (c) Timing and process for developing the plan monitoring program 
and broader-scale strategies. (1) The responsible official shall develop 
the plan monitoring program as part of the planning process for a new 
plan development or plan revision. Where a plan's monitoring program has 
been developed under the provisions of a prior planning regulation and 
the unit has not initiated plan revision under this part, the 
responsible official shall modify the plan monitoring program within 4 
years of the effective date of this part, or as soon as practicable, to 
meet the requirements of this section.

[[Page 77]]

    (2) The regional forester shall develop a broader-scale monitoring 
strategy as soon as practicable.
    (3) To the extent practicable, appropriate, and relevant to the 
monitoring questions in the plan monitoring program, plan monitoring 
programs and broader-scale strategies must be designed to take into 
account:
    (i) Existing national and regional inventory, monitoring, and 
research programs of the Agency, including from the NFS, State and 
Private Forestry, and Research and Development, and of other 
governmental and non-governmental entities;
    (ii) Opportunities to design and carry out multi-party monitoring 
with other Forest Service units, Federal, State or local government 
agencies, scientists, partners, and members of the public; and
    (iii) Opportunities to design and carry out monitoring with 
federally recognized Indian Tribes and Alaska Native Corporations.
    (d) Biennial evaluation of the monitoring information. (1) The 
responsible official shall conduct a biennial evaluation of new 
information gathered through the plan monitoring program and relevant 
information from the broader-scale strategy, and shall issue a written 
report of the evaluation and make it available to the public.
    (i) The first monitoring evaluation for a plan or plan revision 
developed in accordance with this subpart must be completed no later 
than 2 years from the effective date of plan decision.
    (ii) Where the monitoring program developed under the provisions of 
a prior planning regulation has been modified to meet the requirements 
of paragraph (c)(1) of this section, the first monitoring evaluation 
must be completed no later than 2 years from the date the change takes 
effect.
    (iii) The monitoring evaluation report may be postponed for 1 year 
in case of exigencies, but notice of the postponement must be provided 
to the public prior to the date the report is due for that year (Sec. 
219.16(c)(6)).
    (2) The monitoring evaluation report must indicate whether or not a 
change to the plan, management activities, or the monitoring program, or 
a new assessment, may be warranted based on the new information. The 
monitoring evaluation report must be used to inform adaptive management 
of the plan area.
    (3) The monitoring evaluation report may be incorporated into other 
planning documents if the responsible official has initiated a plan 
revision or relevant amendment.
    (4) The monitoring evaluation report is not a decision document 
representing final Agency action, and is not subject to the objection 
provisions of subpart B.



Sec. 219.13  Plan amendment and administrative changes.

    (a) Plan amendment. A plan may be amended at any time. Plan 
amendments may be broad or narrow, depending on the need for change, and 
should be used to keep plans current and help units adapt to new 
information or changing conditions. The responsible official has the 
discretion to determine whether and how to amend the plan. Except as 
provided by paragraph (c) of this section, a plan amendment is required 
to add, modify, or remove one or more plan components, or to change how 
or where one or more plan components apply to all or part of the plan 
area (including management areas or geographic areas).
    (b) Amendment process. The responsible official shall:
    (1) Base an amendment on a preliminary identification of the need to 
change the plan. The preliminary identification of the need to change 
the plan may be based on a new assessment; a monitoring report; or other 
documentation of new information, changed conditions, or changed 
circumstances. When a plan amendment is made together with, and only 
applies to, a project or activity decision, the analysis prepared for 
the project or activity may serve as the documentation for the 
preliminary identification of the need to change the plan;
    (2) Provide opportunities for public participation as required in 
Sec. 219.4 and public notification as required in Sec. 219.16. The 
responsible official may combine processes and associated public 
notifications where appropriate, considering the scope and scale of the 
need to change the plan; and

[[Page 78]]

    (3) Amend the plan consistent with Forest Service NEPA procedures. 
The appropriate NEPA documentation for an amendment may be an 
environmental impact statement, an environmental assessment, or a 
categorical exclusion, depending upon the scope and scale of the 
amendment and its likely effects. A proposed amendment that may create a 
significant environmental effect and thus require preparation of an 
environmental impact statement is considered a significant change in the 
plan for the purposes of the NFMA.
    (c) Administrative changes. An administrative change is any change 
to a plan that is not a plan amendment or plan revision. Administrative 
changes include corrections of clerical errors to any part of the plan, 
conformance of the plan to new statutory or regulatory requirements, or 
changes to other content in the plan (Sec. 219.7(f)).
    (1) A substantive change to the monitoring program made outside of 
the process for plan revision or amendment may be made only after notice 
to the public of the intended change and consideration of public comment 
(Sec. 219.16(c)(6)).
    (2) All other administrative changes may be made following public 
notice (Sec. 219.16(c)(6)).



Sec. 219.14  Decision document and planning records.

    (a) Decision document. The responsible official shall record 
approval of a new plan, plan amendment, or revision in a decision 
document prepared according to Forest Service NEPA procedures (36 CFR 
220). The decision document must include:
    (1) The rationale for approval;
    (2) An explanation of how the plan components meet the 
sustainability requirements of Sec. 219.8, the diversity requirements 
of Sec. 219.9, the multiple use requirements of Sec. 219.10, and the 
timber requirements of Sec. 219.11;
    (3) A statement of how the plan, plan amendment, or plan revision 
applies to approved projects and activities (Sec. 219.15);
    (4) The documentation of how the best available scientific 
information was used to inform planning, the plan components, and other 
plan content, including the plan monitoring program (Sec. 219.3);
    (5) The concurrence by the appropriate research station director 
with any part of the plan applicable to any experimental forests or 
experimental ranges (Sec. 219.2(b)(4)); and
    (6) The effective date of the plan, amendment, or revision.
    (b) Planning records. (1) The responsible official shall keep the 
following documents readily accessible to the public by posting them 
online and through other means: assessment reports (Sec. 219.6); the 
plan, including the monitoring program; the proposed plan, plan 
amendment, or plan revision; public notices and environmental documents 
associated with a plan; plan decision documents; and monitoring 
evaluation reports (Sec. 219.12).
    (2) The planning record includes documents that support analytical 
conclusions made and alternatives considered throughout the planning 
process. The responsible official shall make the planning record 
available at the office where the plan, plan amendment, or plan revision 
was developed.



Sec. 219.15  Project and activity consistency with the plan.

    (a) Application to existing authorizations and approved projects or 
activities. Every decision document approving a plan, plan amendment, or 
plan revision must state whether authorizations of occupancy and use 
made before the decision document may proceed unchanged. If a plan 
decision document does not expressly allow such occupancy and use, the 
permit, contract, and other authorizing instrument for the use and 
occupancy must be made consistent with the plan, plan amendment, or plan 
revision as soon as practicable, as provided in paragraph (d) of this 
section, subject to valid existing rights.
    (b) Application to projects or activities authorized after plan 
decision. Projects and activities authorized after approval of a plan, 
plan amendment, or plan revision must be consistent with the plan as 
provided in paragraph (d) of this section.
    (c) Resolving inconsistency. When a proposed project or activity 
would not be consistent with the applicable plan

[[Page 79]]

components, the responsible official shall take one of the following 
steps, subject to valid existing rights:
    (1) Modify the proposed project or activity to make it consistent 
with the applicable plan components;
    (2) Reject the proposal or terminate the project or activity;
    (3) Amend the plan so that the project or activity will be 
consistent with the plan as amended; or
    (4) Amend the plan contemporaneously with the approval of the 
project or activity so that the project or activity will be consistent 
with the plan as amended. This amendment may be limited to apply only to 
the project or activity.
    (d) Determining consistency. Every project and activity must be 
consistent with the applicable plan components. A project or activity 
approval document must describe how the project or activity is 
consistent with applicable plan components developed or revised in 
conformance with this part by meeting the following criteria:
    (1) Goals, desired conditions, and objectives. The project or 
activity contributes to the maintenance or attainment of one or more 
goals, desired conditions, or objectives, or does not foreclose the 
opportunity to maintain or achieve any goals, desired conditions, or 
objectives, over the long term.
    (2) Standards. The project or activity complies with applicable 
standards.
    (3) Guidelines. The project or activity:
    (i) Complies with applicable guidelines as set out in the plan; or
    (ii) Is designed in a way that is as effective in achieving the 
purpose of the applicable guidelines (Sec. 219.7(e)(1)(iv)).
    (4) Suitability. A project or activity would occur in an area:
    (i) That the plan identifies as suitable for that type of project or 
activity; or
    (ii) For which the plan is silent with respect to its suitability 
for that type of project or activity.
    (e) Consistency of resource plans within the planning area with the 
land management plan. Any resource plans (for example, travel management 
plans) developed by the Forest Service that apply to the resources or 
land areas within the planning area must be consistent with the plan 
components. Resource plans developed prior to plan decision must be 
evaluated for consistency with the plan and amended if necessary.



Sec. 219.16  Public notifications.

    The following public notification requirements apply to plan 
development, amendment, or revision. Notifications may be combined where 
appropriate.
    (a) When formal public notification is required. Public notification 
must be provided as follows:
    (1) To initiate the development of a proposed plan, plan amendment, 
or plan revision;
    (2) To invite comments on a proposed plan, plan amendment, or plan 
revision, and associated environmental analysis. For a new plan, plan 
amendment, or a plan revision for which a draft environmental impact 
statement (EIS) is prepared, the comment period is at least 90 days. For 
an amendment for which a draft EIS is not prepared, the comment period 
is at least 30 days;
    (3) To begin the objection period for a plan, plan amendment, or 
plan revision before approval (Sec. 219.52);
    (4) To approve a final plan, plan amendment, or plan revision; or
    (5) To announce whenever a plan, plan amendment, or plan revision 
process initiated under the provisions of a previous planning regulation 
will be conformed to meet the provisions of this part (Sec. 
219.17(b)(3)).
    (b) Project or activity plan amendments. When a plan amendment is 
approved in a decision document approving a project or activity and the 
amendment applies only to the project or activity, the notification 
requirements of 36 CFR part 215 or part 218, subpart A, applies instead 
of this section.
    (c) How public notice is provided. The responsible official should 
use contemporary tools to provide notice to the public. At a minimum, 
all public notifications required by this part must be posted online, 
and:
    (1) When the Chief, the Under Secretary, or the Secretary is the 
responsible official, notice must be published in the Federal Register.
    (2) For a new plan or plan revision, when an official other than the 
Chief, the Under Secretary, or the Secretary is the responsible 
official, notice must

[[Page 80]]

be published in the Federal Register and the applicable newspaper(s) of 
record.
    (3) When the notice is for the purpose of inviting comments on a 
proposed plan, plan amendment, or plan revision for which a draft EIS is 
prepared, the Environmental Protection Agency (EPA) Federal Register 
notice of availability of a draft EIS shall serve as the required 
Federal Register notice.
    (4) For a plan amendment when an official other than the Chief, the 
Under Secretary, or the Secretary is the responsible official, and for 
which a draft EIS is not prepared, notices must be published in the 
newspaper(s) of record.
    (5) If a plan, plan amendment, or plan revision applies to two or 
more units, notices must be published in the Federal Register and the 
newspaper(s) of record for the applicable units.
    (6) Additional public notice of administrative changes, changes to 
the monitoring program, opportunities to provide information for 
assessments, assessment reports, monitoring evaluation reports, or other 
notices not listed in paragraph (a) of this section may be made in any 
way the responsible official deems appropriate.
    (d) Content of public notices. Public notices required by this 
section except for notices applicable to paragraph (c)(3) of this 
section, must clearly describe the action subject to notice and the 
nature and scope of the decisions to be made; identify the responsible 
official; describe when, where, and how the responsible official will 
provide opportunities for the public to participate in the planning 
process; and explain how to obtain additional information.



Sec. 219.17  Effective dates and transition.

    (a) Effective dates. (1) A plan or plan revision is effective 30 
days after publication of notice of its approval.
    (2) Except as provided in paragraph (a)(3) of this section, a plan 
amendment for which an environmental impact statement (EIS) has been 
prepared is effective 30 days after publication of notice of its 
approval; a plan amendment for which an EIS has not been prepared is 
effective immediately.
    (3) A plan amendment that applies to only one specific project or 
activity is effective on the date the project may be implemented in 
accordance with administrative review regulations at 36 CFR parts 215 
and 218.
    (b) Plan amendment and plan revision transition. For the purposes of 
this section, initiation means that the Agency has issued a notice of 
intent or other notice announcing the beginning of the process to 
develop a proposed plan, plan amendment, or plan revision.
    (1) Initiating plan development and plan revisions. Plan development 
and plan revisions initiated after May 9, 2012 must conform to the 
requirements of this part.
    (2) Initiating plan amendments. All plan amendments initiated after 
May 9, 2012, are subject to the objection process in subpart B of this 
part. With respect to plans approved or revised under a prior planning 
regulation, including the transition provisions of the reinstated 2000 
rule (36 CFR part 219, published at 36 CFR parts 200 to 299, revised as 
of July 1, 2010), plan amendments may be initiated under the provisions 
of the prior planning regulation for 3 years after May 9, 2012, and may 
be completed and approved under those provisions (except for the 
optional appeal procedures of the prior planning regulation); or may be 
initiated, completed, and approved under the requirements of this part. 
After the 3-year transition period, all plan amendments must be 
initiated, completed, and approved under the requirements of this part.
    (3) Plan development, plan amendments, or plan revisions initiated 
before this part. For plan development, plan amendments, or plan 
revisions that were initiated before May 9, 2012, the responsible 
official may complete and approve the plan, plan amendment, or plan 
revision in conformance with the provisions of the prior planning 
regulation, including its transition provisions (36 CFR part 219, 
published at 36 CFR parts 200 to 299, revised as of July 1, 2010), or 
may conform the plan, plan amendment, or plan revision to the 
requirements of this part. If the responsible official chooses to 
complete an ongoing planning process under the

[[Page 81]]

provisions of the prior planning regulation, but chooses to allow for an 
objection rather than an administrative appeal, the objection process in 
subpart B of this part shall apply. When the responsible official 
chooses to conform an ongoing planning process to this part, public 
notice must be made (Sec. 219.16(a)(5)). An objection process may be 
chosen only if the public is provided the opportunity to comment on a 
proposed plan, plan amendment, or plan revision, and associated 
environmental analysis.
    (c) Plans developed, amended, or revised under a prior planning 
regulation. This part supersedes any prior planning regulation. No 
obligations remain from any prior planning regulation, except those that 
are specifically included in a unit's existing plan. Existing plans will 
remain in effect until revised. This part does not compel a change to 
any existing plan, except as required in Sec. 219.12(c)(1). None of the 
requirements of this part apply to projects or activities on units with 
plans developed or revised under a prior planning rule until the plan is 
revised under this part, except that projects or activities on such 
units must comply with the consistency requirement of Sec. 219.15 with 
respect to any amendments that are developed and approved pursuant to 
this part.

[77 FR 21260, Apr. 9, 2012, as amended at 77 FR 44145, July 27, 2012]



Sec. 219.18  Severability.

    In the event that any specific provision of this part is deemed by a 
court to be invalid, the remaining provisions shall remain in effect.



Sec. 219.19  Definitions.

    Definitions of the special terms used in this subpart are set out as 
follows.
    Alaska Native Corporation. One of the regional, urban, and village 
native corporations formed under the Alaska Native Claims Settlement Act 
of 1971.
    Assessment. For the purposes of this subpart, an assessment is the 
identification and evaluation of existing information to support land 
management planning. Assessments are not decisionmaking documents, but 
provide current information on select topics relevant to the plan area, 
in the context of the broader landscape.
    Best management practices for water quality (BMPs). Methods, 
measures, or practices selected by an agency to meet its nonpoint source 
control needs. BMPs include but are not limited to structural and 
nonstructural controls and operation and maintenance procedures. BMPs 
can be applied before, during, and after pollution-producing activities 
to reduce or eliminate the introduction of pollutants into receiving 
waters.
    Candidate species. (1) For U.S. Fish and Wildlife Service candidate 
species, a species for which the U.S. Fish and Wildlife Service 
possesses sufficient information on vulnerability and threats to support 
a proposal to list as endangered or threatened, but for which no 
proposed rule has yet been published by the U.S. Fish and Wildlife 
Service.
    (2) For National Marine Fisheries Service candidate species, a 
species that is:
    (i) The subject of a petition to list and for which the National 
Marine Fisheries Service has determined that listing may be warranted, 
pursuant to section 4(b)(3)(A) of the Endangered Species Act (16 U.S.C. 
1533(b)(3)(A)), or
    (ii) Not the subject of a petition but for which the National Marine 
Fisheries Service has announced in the Federal Register the initiation 
of a status review.
    Collaboration or collaborative process. A structured manner in which 
a collection of people with diverse interests share knowledge, ideas, 
and resources while working together in an inclusive and cooperative 
manner toward a common purpose. Collaboration, in the context of this 
part, falls within the full spectrum of public engagement described in 
the Council on Environmental Quality's publication of October 2007: 
Collaboration in NEPA--A Handbook for NEPA Practitioners.
    Connectivity. Ecological conditions that exist at several spatial 
and temporal scales that provide landscape linkages that permit the 
exchange of flow, sediments, and nutrients; the daily and seasonal 
movements of animals within home ranges; the dispersal and genetic 
interchange between populations; and the long-distance range

[[Page 82]]

shifts of species, such as in response to climate change.
    Conservation. The protection, preservation, management, or 
restoration of natural environments, ecological communities, and 
species.
    Conserve. For purposes of Sec. 219.9, to protect, preserve, manage, 
or restore natural environments and ecological communities to 
potentially avoid federally listing of proposed and candidate species.
    Culmination of mean annual increment of growth. See mean annual 
increment of growth.
    Designated area. An area or feature identified and managed to 
maintain its unique special character or purpose. Some categories of 
designated areas may be designated only by statute and some categories 
may be established administratively in the land management planning 
process or by other administrative processes of the Federal executive 
branch. Examples of statutorily designated areas are national heritage 
areas, national recreational areas, national scenic trails, wild and 
scenic rivers, wilderness areas, and wilderness study areas. Examples of 
administratively designated areas are experimental forests, research 
natural areas, scenic byways, botanical areas, and significant caves.
    Disturbance. Any relatively discrete event in time that disrupts 
ecosystem, watershed, community, or species population structure and/or 
function and changes resources, substrate availability, or the physical 
environment.
    Disturbance regime. A description of the characteristic types of 
disturbance on a given landscape; the frequency, severity, and size 
distribution of these characteristic disturbance types; and their 
interactions.
    Ecological conditions. The biological and physical environment that 
can affect the diversity of plant and animal communities, the 
persistence of native species, and the productive capacity of ecological 
systems. Ecological conditions include habitat and other influences on 
species and the environment. Examples of ecological conditions include 
the abundance and distribution of aquatic and terrestrial habitats, 
connectivity, roads and other structural developments, human uses, and 
invasive species.
    Ecological integrity. The quality or condition of an ecosystem when 
its dominant ecological characteristics (for example, composition, 
structure, function, connectivity, and species composition and 
diversity) occur within the natural range of variation and can withstand 
and recover from most perturbations imposed by natural environmental 
dynamics or human influence.
    Ecological sustainability. See sustainability.
    Ecological system. See ecosystem.
    Economic sustainability. See sustainability.
    Ecosystem. A spatially explicit, relatively homogeneous unit of the 
Earth that includes all interacting organisms and elements of the 
abiotic environment within its boundaries. An ecosystem is commonly 
described in terms of its:
    (1) Composition. The biological elements within the different levels 
of biological organization, from genes and species to communities and 
ecosystems.
    (2) Structure. The organization and physical arrangement of 
biological elements such as, snags and down woody debris, vertical and 
horizontal distribution of vegetation, stream habitat complexity, 
landscape pattern, and connectivity.
    (3) Function. Ecological processes that sustain composition and 
structure, such as energy flow, nutrient cycling and retention, soil 
development and retention, predation and herbivory, and natural 
disturbances such as wind, fire, and floods.
    (4) Connectivity. (see connectivity above).
    Ecosystem diversity. The variety and relative extent of ecosystems.
    Ecosystem services. Benefits people obtain from ecosystems, 
including:
    (1) Provisioning services, such as clean air and fresh water, 
energy, fuel, forage, fiber, and minerals;
    (2) Regulating services, such as long term storage of carbon; 
climate regulation; water filtration, purification, and storage; soil 
stabilization; flood control; and disease regulation;

[[Page 83]]

    (3) Supporting services, such as pollination, seed dispersal, soil 
formation, and nutrient cycling; and
    (4) Cultural services, such as educational, aesthetic, spiritual and 
cultural heritage values, recreational experiences, and tourism 
opportunities.
    Environmental assessment (EA). See definition in Sec. 219.62.
    Environmental document. For the purposes of this part: an 
environmental assessment, environmental impact statement, finding of no 
significant impact, categorical exclusion, and notice of intent to 
prepare an environmental impact statement.
    Environmental impact statement (EIS). See definition in Sec. 
219.62.
    Even-aged stand. A stand of trees composed of a single age class.
    Federally recognized Indian Tribe. An Indian or Alaska Native Tribe, 
band, nation, pueblo, village, or community that the Secretary of the 
Interior acknowledges to exist as an Indian Tribe under the Federally 
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
    Focal species. A small subset of species whose status permits 
inference to the integrity of the larger ecological system to which it 
belongs and provides meaningful information regarding the effectiveness 
of the plan in maintaining or restoring the ecological conditions to 
maintain the diversity of plant and animal communities in the plan area. 
Focal species would be commonly selected on the basis of their 
functional role in ecosystems.
    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 uses. Lands developed for non-forest use 
include areas for crops, improved pasture, residential or administrative 
areas, improved roads of any width and adjoining road clearing, and 
power line clearings of any width.
    Geographic area. A spatially contiguous land area identified within 
the planning area. A geographic area may overlap with a management area.
    Inherent capability of the plan area. The ecological capacity or 
ecological potential of an area characterized by the interrelationship 
of its physical elements, its climatic regime, and natural disturbances.
    Integrated resource management. Multiple use management that 
recognizes the interdependence of ecological resources and is based on 
the need for integrated consideration of ecological, social, and 
economic factors.
    Landscape. A defined area irrespective of ownership or other 
artificial boundaries, such as a spatial mosaic of terrestrial and 
aquatic ecosystems, landforms, and plant communities, repeated in 
similar form throughout such a defined area.
    Maintain. In reference to an ecological condition: To keep in 
existence or continuance of the desired ecological condition in terms of 
its desired composition, structure, and processes. Depending upon the 
circumstance, ecological conditions may be maintained by active or 
passive management or both.
    Management area. A land area identified within the planning area 
that has the same set of applicable plan components. A management area 
does not have to be spatially contiguous.
    Management system. For purposes of this subpart, a timber management 
system including even-aged management and uneven-aged management.
    Mean annual increment of growth and culmination of mean annual 
increment of growth. Mean annual increment of growth is the total 
increment of increase of volume of a stand (standing crop plus 
thinnings) up to a given age divided by that age. Culmination of mean 
annual increment of growth is the age in the growth cycle of an even-
aged stand at which the average annual rate of increase of volume is at 
a maximum. In land management plans, mean annual increment is expressed 
in cubic measure and is based on the expected growth of stands, 
according to intensities and utilization guidelines in the plan.
    Monitoring. A systematic process of collecting information to 
evaluate effects of actions or changes in conditions or relationships.
    Multiple use. The management of all the various renewable surface 
resources of the NFS so that they are utilized in the combination that 
will best meet the needs of the American people; making the most 
judicious use

[[Page 84]]

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 land 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, consistent with 
the Multiple-Use Sustained-Yield Act of 1960 (16 U.S.C. 528-531).
    National Forest System. See definition in Sec. 219.62.
    Native knowledge. A way of knowing or understanding the world, 
including traditional ecological and social knowledge of the environment 
derived from multiple generations of indigenous peoples' interactions, 
observations, and experiences with their ecological systems. Native 
knowledge is place-based and culture-based knowledge in which people 
learn to live in and adapt to their own environment through 
interactions, observations, and experiences with their ecological 
system. This knowledge is generally not solely gained, developed by, or 
retained by individuals, but is rather accumulated over successive 
generations and is expressed through oral traditions, ceremonies, 
stories, dances, songs, art, and other means within a cultural context.
    Native species. An organism that was historically or is present in a 
particular ecosystem as a result of natural migratory or evolutionary 
processes; and not as a result of an accidental or deliberate 
introduction into that ecosystem. An organism's presence and evolution 
(adaptation) in an area are determined by climate, soil, and other 
biotic and abiotic factors.
    Newspaper(s) of record. See definition in Sec. 219.62.
    Objection. See definition in Sec. 219.62.
    Online. See definition in Sec. 219.62.
    Participation. Activities that include a wide range of public 
involvement tools and processes, such as collaboration, public meetings, 
open houses, workshops, and comment periods.
    Persistence. Continued existence.
    Plan area. The NFS lands covered by a plan.
    Plan or land management plan. A document or set of documents that 
provide management direction for an administrative unit of the NFS 
developed under the requirements of this part or a prior planning rule.
    Plant and animal community. A naturally occurring assemblage of 
plant and animal species living within a defined area or habitat.
    Productivity. The capacity of NFS lands and their ecological systems 
to provide the various renewable resources in certain amounts in 
perpetuity. For the purposes of this subpart, productivity is an 
ecological term, not an economic term.
    Project. An organized effort to achieve an outcome on NFS lands 
identified by location, tasks, outputs, effects, times, and 
responsibilities for execution.
    Proposed Species. Any species of fish, wildlife, or plant that is 
proposed by the U.S. Fish and Wildlife Service or the National Marine 
Fisheries Service in the Federal Register to be listed under Section 4 
of the Endangered Species Act.
    Recovery. For the purposes of this subpart, and with respect to 
threatened or endangered species: The improvement in the status of a 
listed species to the point at which listing as federally endangered or 
threatened is no longer appropriate.
    Recreation. See Sustainable recreation.
    Recreation opportunity. An opportunity to participate in a specific 
recreation activity in a particular recreation setting to enjoy desired 
recreation experiences and other benefits that accrue. Recreation 
opportunities include non-motorized, motorized, developed, and dispersed 
recreation on land, water, and in the air.
    Recreation setting. The social, managerial, and physical attributes 
of a place that, when combined, provide a distinct set of recreation 
opportunities. The Forest Service uses the recreation opportunity 
spectrum to define recreation settings and categorize them into

[[Page 85]]

six distinct classes: primitive, semi-primitive non-motorized, semi-
primitive motorized, roaded natural, rural, and urban.
    Responsible official. See definition in Sec. 219.62.
    Restoration. The process of assisting the recovery of an ecosystem 
that has been degraded, damaged, or destroyed. Ecological restoration 
focuses on reestablishing the composition, structure, pattern, and 
ecological processes necessary to facilitate terrestrial and aquatic 
ecosystems sustainability, resilience, and health under current and 
future conditions.
    Restore. To renew by the process of restoration (see restoration).
    Riparian Areas. Three-dimensional ecotones of interaction that 
include terrestrial and aquatic ecosystems that extend down into the 
groundwater, up above the canopy, outward across the floodplain, up the 
near-slopes that drain to the water, laterally into the terrestrial 
ecosystem, and along the water course at variable widths.
    Riparian management zone. Portions of a watershed where riparian-
dependent resources receive primary emphasis, and for which plans 
include plan components to maintain or restore riparian functions and 
ecological functions.
    Risk. A combination of the likelihood that a negative outcome will 
occur and the severity of the subsequent negative consequences.
    Scenic character. A combination of the physical, biological, and 
cultural images that gives an area its scenic identity and contributes 
to its sense of place. Scenic character provides a frame of reference 
from which to determine scenic attractiveness and to measure scenic 
integrity.
    Social sustainability. See sustainability.
    Sole source aquifer. Underground water supply designated by the 
Environmental Protection Agency (EPA) as the ``sole or principle'' 
source of drinking water for an area as established under section 
1424(e) of the Safe Drinking Water Act (42 U.S.C. 300h-3(e)).
    Source water protection areas. The area delineated by a State or 
Tribe for a public water system (PWS) or including numerous PWSs, 
whether the source is ground water or surface water or both, as part of 
a State or tribal source water assessment and protection program (SWAP) 
approved by the Environmental Protection Agency under section 1453 of 
the Safe Drinking Water Act (42 U.S.C. 300h-3(e)).
    Stressors. For the purposes of this subpart: Factors that may 
directly or indirectly degrade or impair ecosystem composition, 
structure or ecological process in a manner that may impair its 
ecological integrity, such as an invasive species, loss of connectivity, 
or the disruption of a natural disturbance regime.
    Sustainability. The capability to meet the needs of the present 
generation without compromising the ability of future generations to 
meet their needs. For purposes of this part, ``ecological 
sustainability'' refers to the capability of ecosystems to maintain 
ecological integrity; ``economic sustainability'' refers to the 
capability of society to produce and consume or otherwise benefit from 
goods and services including contributions to jobs and market and 
nonmarket benefits; and ``social sustainability'' refers to the 
capability of society to support the network of relationships, 
traditions, culture, and activities that connect people to the land and 
to one another, and support vibrant communities.
    Sustainable recreation. The set of recreation settings and 
opportunities on the National Forest System that is ecologically, 
economically, and socially sustainable for present and future 
generations.
    Timber harvest. The removal of trees for wood fiber use and other 
multiple-use purposes.
    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.
    Viable population. A population of a species that continues to 
persist over the long term with sufficient distribution to be resilient 
and adaptable to stressors and likely future environments.
    Watershed. A region or land area drained by a single stream, river, 
or drainage network; a drainage basin.

[[Page 86]]

    Watershed condition. The state of a watershed based on physical and 
biogeochemical characteristics and processes.
    Wild and scenic river. A river designated by Congress as part of the 
National Wild and Scenic Rivers System that was established in the Wild 
and Scenic Rivers Act of 1968 (16 U.S.C. 1271 (note), 1271-1287).
    Wilderness. Any area of land designated by Congress as part of the 
National Wilderness Preservation System that was established in the 
Wilderness Act of 1964 (16 U.S.C. 1131-1136).

[77 FR 21260, Apr. 9, 2012, as amended at 77 FR 44145, July 27, 2012]



         Subpart B_Pre-Decisional Administrative Review Process



Sec. 219.50  Purpose and scope.

    This subpart establishes a pre-decisional administrative review 
(hereinafter referred to as objection) process for plans, plan 
amendments, or plan revisions. This process gives an individual or 
entity an opportunity for an independent Forest Service review and 
resolution of issues before the approval of a plan, plan amendment, or 
plan revision. This subpart identifies who may file objections to a 
plan, plan amendment, or plan revision; the responsibilities of the 
participants in an objection; and the procedures that apply to the 
review of the objection.



Sec. 219.51  Plans, plan amendments, or plan revisions not subject
to objection.

    (a) A plan, plan amendment, or plan revision is not subject to 
objection when the responsible official receives no substantive formal 
comments (Sec. 219.62) on that proposal during the opportunities for 
public comment (Sec. 219.53(a)).
    (b) Plans, plan amendments, or plan revisions proposed by the 
Secretary of Agriculture or the Under Secretary for Natural Resources 
and Environment are not subject to the procedures set forth in this 
section. A decision by the Secretary or Under Secretary constitutes the 
final administrative determination of the U.S. Department of 
Agriculture.
    (c) A plan, plan amendment, or plan revision is not subject to 
objection under this subpart if another administrative review process is 
used consistent with Sec. 219.59.
    (d) When a plan, plan amendment, or plan revision is not subject to 
objection under this subpart, the responsible official shall include an 
explanation with the signed decision document.



Sec. 219.52  Giving notice of a plan, plan amendment, or plan revision
subject to objection before approval.

    (a) The responsible official shall disclose during the NEPA scoping 
process and in the appropriate NEPA documents that the proposed plan, 
plan amendment, or plan revision is subject to the objection procedures 
in this subpart. This disclosure is in addition to the public notice 
that begins the objection filing period, as required at Sec. 219.16. 
When a responsible official chooses to use the objection process of this 
subpart for a plan, plan amendment, or plan revision process initiated 
before the effective date of this rule, notice that the objection 
process will be used must be given prior to an opportunity to provide 
substantive formal comment on a proposed plan, plan amendment, or 
revision and associated environmental analysis.
    (b) The responsible official shall make available the public notice 
for the beginning of the objection period for a plan, plan amendment, or 
plan revision (Sec. 219.16(a)(3)) to those who have requested the 
environmental documents or are eligible to file an objection consistent 
with Sec. 219.53.
    (c) The content of the public notice for the beginning of the 
objection period for a plan, plan amendment, or plan revision before 
approval (Sec. 219.16(a)(3)) must:
    (1) Inform the public of the availability of the plan, plan 
amendment, or plan revision, the appropriate final environmental 
documents, the draft plan decision document, and any relevant assessment 
or monitoring evaluation report; the commencement of the objection 
filing period under 36 CFR part 219 Subpart B; and the process for 
objecting. The documents in this paragraph will be made available online 
at the time of public notice.

[[Page 87]]

    (2) Include the name of the plan, plan amendment, or plan revision, 
the name and title of the responsible official, and instructions on how 
to obtain a copy of the appropriate final environmental documents; the 
draft plan decision document; and the plan, plan amendment, or plan 
revision.
    (3) Include the name and address of the reviewing officer with whom 
an objection is to be filed. The notice must specify a street, postal, 
fax, and email address; the acceptable format(s) for objections filed 
electronically; and the reviewing officer's office business hours for 
those filing hand-delivered objections.
    (4) Include a statement that objections will be accepted only from 
those who have previously submitted substantive formal comments specific 
to the proposed plan, plan amendment, or plan revision during any 
opportunity for public comment as provided in subpart A.
    (5) Include a statement that the publication date of the public 
notice in the applicable newspaper of record (or the Federal Register, 
if the responsible official is the Chief) is the exclusive means for 
calculating the time to file an objection (Sec. 219.56).
    (6) Include a statement that an objection, including attachments, 
must be filed with the appropriate reviewing officer (Sec. 219.62) 
within 60 days, if an environmental impact statement has been prepared, 
otherwise within 45 days of the date of publication of the public notice 
for the objection process.
    (7) Include a statement describing the minimum content requirements 
of an objection (Sec. 219.54(c)).



Sec. 219.53  Who may file an objection.

    (a) Individuals and entities who have submitted substantive formal 
comments related to a plan, plan amendment, or plan revision during the 
opportunities for public comment as provided in subpart A during the 
planning process for that decision may file an objection. Objections 
must be based on previously submitted substantive formal comments 
attributed to the objector unless the objection concerns an issue that 
arose after the opportunities for formal comment. The burden is on the 
objector to demonstrate compliance with requirements for objection. 
Objections that do not meet the requirements of this paragraph may not 
be accepted; however, objections not accepted must be documented in the 
planning record.
    (b) Formal comments received from an authorized representative(s) of 
an entity are considered those of the entity only. Individual members of 
that entity do not meet objection eligibility requirements solely based 
on membership in an entity. A member or an individual must submit 
substantive formal comments independently to be eligible to file an 
objection in an individual capacity.
    (c) When an objection lists multiple individuals or entities, each 
individual or entity must meet the requirements of paragraph (a) of this 
section. Individuals or entities listed on an objection that do not meet 
eligibility requirements may not be considered objectors, although an 
objection must be accepted (if not otherwise set aside for review under 
Sec. 219.55) if at least one listed individual or entity meets the 
eligibility requirements.
    (d) Federal agencies may not file objections.
    (e) Federal employees who otherwise meet the requirements of this 
subpart for filing objections in a non-official capacity must 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 
may not be on official duty nor use government property or equipment in 
the preparation or filing of an objection. Further, employees may not 
include information unavailable to the public, such as Federal agency 
documents that are exempt from disclosure under the Freedom of 
Information Act (5 U.S.C. 552(b)).



Sec. 219.54  Filing an objection.

    (a) All objections must be filed, in writing, with the reviewing 
officer for the plan. All objections must be open to public inspection 
during the objection process.
    (b) Including documents by reference is not allowed, except for the 
following list of items that may be referenced by including the name, 
date, page number

[[Page 88]]

(where applicable), and relevant section of the cited document. All 
other documents or Web links to those documents, or both must be 
included with the objection, if referenced in the objection.
    (1) All or any part of a Federal law or regulation.
    (2) Forest Service Directive System documents and land management 
plans or other published Forest Service documents.
    (3) Documents referenced by the Forest Service in the planning 
documentation related to the proposal subject to objection.
    (4) Formal comments previously provided to the Forest Service by the 
objector during the proposed plan, plan amendment, or plan revision 
comment period.
    (c) At a minimum, an objection must include the following:
    (1) The objector's name and address (Sec. 219.62), along with a 
telephone number or email address if available;
    (2) Signature or other verification of authorship upon request (a 
scanned signature for electronic mail may be filed with the objection);
    (3) Identification of the lead objector, when multiple names are 
listed on an objection (Sec. 219.62). Verification of the identity of 
the lead objector if requested;
    (4) The name of the plan, plan amendment, or plan revision being 
objected to, and the name and title of the responsible official;
    (5) A statement of the issues and/or the parts of the plan, plan 
amendment, or plan revision to which the objection applies;
    (6) A concise statement explaining the objection and suggesting how 
the proposed plan decision may be improved. If applicable, the objector 
should identify how the objector believes that the plan, plan amendment, 
or plan revision is inconsistent with law, regulation, or policy; and
    (7) A statement that demonstrates the link between prior substantive 
formal comments attributed to the objector and the content of the 
objection, unless the objection concerns an issue that arose after the 
opportunities for formal comment (Sec. 219.53(a)).



Sec. 219.55  Objections set aside from review.

    (a) The reviewing officer shall set aside and not review an 
objection when one or more of the following applies:
    (1) Objections are not filed in a timely manner (Sec. 219.56);
    (2) The proposed plan, plan amendment, or plan revision is not 
subject to the objection procedures of this subpart pursuant to 
Sec. Sec. 219.51 and 219.59;
    (3) The individual or entity did not submit substantive formal 
comments (Sec. 219.53) during opportunities for public comment on the 
proposed decision (Sec. 219.16(a)(1) and (a)(2));
    (4) None of the issues included in the objection is based on 
previously submitted substantive formal comments unless one or more of 
those issues arose after the opportunities for formal comment;
    (5) The objection does not provide sufficient information as 
required by Sec. 219.54(c);
    (6) The objector withdraws the objection in writing;
    (7) The objector's identity is not provided or cannot be determined 
from the signature (written or electronically scanned), and a reasonable 
means of contact is not provided (Sec. 219.54(c)); or
    (8) The objection is illegible for any reason and a legible copy 
cannot easily be obtained.
    (b) When an objection includes an issue that is not based on 
previously submitted substantive formal comments and did not arise after 
the opportunities for formal comment, that issue will be set aside and 
not reviewed. Other issues raised in the objection that meet the 
requirements of this subpart will be reviewed.
    (c) The reviewing officer shall give written notice to the objector 
and the responsible official when an objection or part of an objection 
is set aside from review and shall state the reasons for not reviewing 
the objection in whole or part. If the objection is set aside from 
review for reasons of illegibility or lack of a means of contact, the 
reasons must be documented in the planning record.

[[Page 89]]



Sec. 219.56  Objection time periods and process.

    (a) Time to file an objection. For a new plan, plan amendment, or 
plan revision for which an environmental impact statement (EIS) is 
prepared, written objections, including any attachments, must be filed 
within 60 days following the publication date of the public notice for a 
plan, plan amendment, or plan revision before approval (Sec. Sec. 
219.16 and 219.52). For an amendment for which an EIS is not prepared, 
the time to file an objection is within 45 days. It is the 
responsibility of the objector to ensure that the reviewing officer 
receives the objection in a timely manner.
    (b) Computation of time periods. (1) All time periods are computed 
using calendar days, including Saturdays, Sundays, and Federal holidays 
in the time zone of the reviewing officer. However, when the time period 
expires on a Saturday, Sunday, or Federal holiday, the time is extended 
to the end of the next Federal working day (11:59 p.m. for objections 
filed by electronic means such as email or facsimile machine).
    (2) The day after publication of the public notice for a plan, plan 
amendment, or plan revision before approval (Sec. Sec. 219.16 and 
219.52), is the first day of the objection filing period.
    (3) The publication date of the public notice for a plan, plan 
amendment, or plan revision before approval (Sec. Sec. 219.16 and 
219.52), is the exclusive means for calculating the time to file an 
objection. Objectors may not rely on dates or timeframe information 
provided by any other source.
    (c) Evidence of timely filing. The objector is responsible for 
filing the objection in a timely manner. Timeliness must be determined 
by one of the following indicators:
    (1) The date of the U.S. Postal Service postmark for an objection 
received before the close of the fifth business day after the objection 
filing date;
    (2) The electronically generated posted date and time for email and 
facsimiles;
    (3) The shipping date for delivery by private carrier for an 
objection received before the close of the fifth business day after the 
objection filing date; or
    (4) The official agency date stamp showing receipt of hand delivery.
    (d) Extensions. Time extensions for filing are not permitted except 
as provided at paragraph (b)(1) of this section.
    (e) Reviewing officer role and responsibilities. The reviewing 
officer is the U.S. Department of Agriculture (USDA) or Forest Service 
official having the delegated authority and responsibility to review an 
objection filed under this subpart. The reviewing officer is a line 
officer at the next higher administrative level above the responsible 
official; except that:
    (1) For a plan amendment, that next higher-level line officer may 
delegate the reviewing officer authority and responsibility to a line 
officer at the same administrative level as the responsible official. 
Any plan amendment delegation of reviewing officer responsibilities must 
be made prior to the public notification of an objection filing period 
(Sec. 219.52).
    (2) For an objection or part of an objection specific to the 
identification of species of conservation concern, the regional forester 
who identified the species of conservation concern for the plan area may 
not be the reviewing officer. The Chief may choose to act as the 
reviewing officer or may delegate the reviewing officer authority to a 
line officer at the same administrative level as the regional forester. 
The reviewing officer for the plan will convey any such objections or 
parts thereof to the appropriate line officer.
    (f) Notice of objections filed. Within 10 days after the close of 
the objection period, the responsible official shall publish a notice of 
all objections in the applicable newspaper of record and post the notice 
online.
    (g) Response to objections. The reviewing officer must issue a 
written response to the objector(s) concerning their objection(s) within 
90 days of the end of the objection-filing period. The reviewing officer 
has the discretion to extend the time when it is determined to be 
necessary to provide adequate response to objections or to participate 
in discussions with the parties. The reviewing officer must notify all 
parties (lead objectors and interested persons) in writing of any 
extensions.

[[Page 90]]



Sec. 219.57  Resolution of objections.

    (a) Meetings. Prior to the issuance of the reviewing officer's 
written response, either the reviewing officer or the objector may 
request to meet to discuss issues raised in the objection and potential 
resolution. The reviewing officer must allow other interested persons to 
participate in such meetings. An interested person must file a request 
to participate in an objection within 10 days after publication of the 
notice of objection by the responsible official (Sec. 219.56(f)). The 
responsible official shall be a participant in all meetings involving 
the reviewing officer, objectors, and interested persons. During 
meetings with objectors and interested persons, the reviewing officer 
may choose to use alternative dispute resolution methods to resolve 
objections. All meetings are open to observation by the public.
    (b) Response to objections. (1) The reviewing officer must render a 
written response to the objection(s) within 90 days of the close of the 
objection-filing period, unless the allowable time is extended as 
provided at Sec. 219.56(g). A written response must set forth the 
reasons for the response but need not be a point-by-point response, and 
may contain instructions to the responsible official. In cases involving 
more than one objection to a plan, plan amendment, or plan revision, the 
reviewing officer may consolidate objections and issue one or more 
responses. The response must be sent to the objecting party(ies) by 
certified mail, return receipt requested, and posted online.
    (2) The reviewing officer's review of and response to the 
objection(s) is limited to only those issues and concerns submitted in 
the objection(s).
    (3) The response of the reviewing officer will be the final decision 
of the U.S. Department of Agriculture on the objection.



Sec. 219.58  Timing of a plan, plan amendment, or plan revision decision.

    (a) The responsible official may not issue a decision document 
concerning a plan, plan amendment, or plan revision subject to the 
provisions of this subpart until the reviewing officer has responded in 
writing to all objections.
    (b) A decision by the responsible official approving a plan, plan 
amendment, or plan revision must be consistent with the reviewing 
officer's response to objections.
    (c) When no objection is filed within the allotted filing period, 
the reviewing officer must notify the responsible official. The 
responsible official's approval of the plan, plan amendment, or plan 
revision in a plan decision document consistent with Sec. 219.14, may 
occur on, but not before, the fifth business day following the end of 
the objection-filing period.



Sec. 219.59  Use of other administrative review processes.

    (a) Where the Forest Service is a participant in a multi-federal 
agency effort that would otherwise be subject to objection under this 
subpart, the responsible official may waive the objection procedures of 
this subpart and instead adopt the administrative review procedure of 
another participating Federal agency. As a condition of such a waiver, 
the responsible official for the Forest Service must have agreement with 
the responsible official of the other agency or agencies that a joint 
agency response will be provided to those who file for administrative 
review of the multi-agency effort. When such an agreement is reached, 
the responsible official for the Forest Service shall ensure public 
notice required in Sec. 219.52 sets forth which administrative review 
procedure is to be used.
    (b) When a plan amendment is approved in a decision document 
approving a project or activity and the amendment applies only to the 
project or activity, the administrative review process of 36 CFR part 
215 or part 218, subpart A, applies instead of the objection process 
established in this subpart. When a plan amendment applies to all future 
projects or activities, the objection process established in this 
subpart applies only to the plan amendment decision; the review process 
of 36 CFR part 215 or part 218 would apply to the project or activity 
part of the decision.

[[Page 91]]



Sec. 219.60  Secretary's authority.

    Nothing in this subpart restricts the Secretary of Agriculture from 
exercising any statutory authority regarding the protection, management, 
or administration of NFS lands.



Sec. 219.61  Information collection requirements.

    This subpart specifies the information that objectors must give in 
an objection to a plan, plan amendment, or plan revision (Sec. 
219.54(c)). As such, this subpart contains information collection 
requirements as defined in 5 CFR part 1320 and have been approved by the 
Office of Management and Budget and assigned control number 0596-0158.



Sec. 219.62  Definitions.

    Definitions of the special terms used in this subpart are set out as 
follows.
    Address. An individual's or entity's current mailing address used 
for postal service or other delivery services. An email address is not 
sufficient.
    Decision memo. A concise written record of the responsible 
official's decision to implement an action that is categorically 
excluded from further analysis and documentation in an environmental 
impact statement (EIS) or environmental assessment (EA), where the 
action is one of a category of actions which do not individually or 
cumulatively have a significant effect on the human environment, and 
does not give rise to extraordinary circumstances in which a normally 
excluded action may have a significant environmental effect.
    Environmental assessment (EA). A public document that provides 
sufficient evidence and analysis for determining whether to prepare an 
EIS or a finding of no significant impact, aids an agency's compliance 
with the National Environmental Policy Act (NEPA) when no EIS is 
necessary, and facilitates preparation of a statement when one is 
necessary (40 CFR 1508.9; FSH 1909.15, Chapter 40).
    Environmental impact statement (EIS). A detailed written statement 
as required by section 102(2)(C) of the National Environmental Policy 
Act (NEPA) of 1969 (40 CFR 1508.11; 36 CFR 220).
    Formal comments. See substantive formal comments.
    Lead objector. For an objection submitted with multiple individuals, 
multiple entities, or combination of individuals and entities listed, 
the individual or entity identified to represent all other objectors for 
the purposes of communication, written or otherwise, regarding the 
objection.
    Line officer. A Forest Service official who serves in a direct line 
of command from the Chief.
    Name. The first and last name of an individual or the name of an 
entity. An electronic username is insufficient for identification of an 
individual or entity.
    National Forest System. The National Forest System includes national 
forests, national grasslands, and the National Tallgrass Prairie.
    Newspaper(s) of record. The newspaper(s) of record is (are) the 
principal newspaper(s) of general circulation annually identified and 
published in the Federal Register by each regional forester to be used 
for publishing notices as required by 36 CFR 215.5. The newspaper(s) of 
record for projects in a plan area is (are) the newspaper(s) of record 
for notices related to planning.
    Objection. The written document filed with a reviewing officer by an 
individual or entity seeking pre-decisional administrative review of a 
plan, plan amendment, or plan revision.
    Objection period. The allotted filing period following publication 
of a public notice in the applicable newspaper of record (or the Federal 
Register, if the responsible official is the Chief) of the availability 
of the appropriate environmental documents and draft decision document, 
including a plan, plan amendment, or plan revision during which an 
objection may be filed with the reviewing officer.
    Objection process. Those procedures established for pre-decisional 
administrative review of a plan, plan amendment, or plan revision.
    Objector. An individual or entity who meets the requirements of 
Sec. 219.53, and files an objection that meets the requirements of 
Sec. Sec. 219.54 and 219.56.
    Online. Refers to the appropriate Forest Service Web site or future 
electronic equivalent.

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    Responsible official. The official with the authority and 
responsibility to oversee the planning process and to approve a plan, 
plan amendment, and plan revision.
    Reviewing officer. The USDA or Forest Service official having the 
delegated authority and responsibility to review an objection filed 
under this subpart.
    Substantive formal comments. Written comments submitted to, or oral 
comments recorded by, the responsible official or his designee during an 
opportunity for public participation provided during the planning 
process (Sec. Sec. 219.4 and 219.16), and attributed to the individual 
or entity providing them. Comments are considered substantive when they 
are within the scope of the proposal, are specific to the proposal, have 
a direct relationship to the proposal, and include supporting reasons 
for the responsible official to consider.



PART 220_NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) COMPLIANCE--Table of
Contents



Sec.
220.1 Purpose and scope.
220.2 Applicability.
220.3 Definitions.
220.4 General requirements.
220.5 Environmental impact statement and record of decision.
220.6 Categorical exclusions.
220.7 Environmental assessment and decision notice.

    Authority: 42 U.S.C. 4321 et seq.; E. O. 11514; 40 CFR parts 1500-
1508; 7 CFR part 1b.

    Source: 73 FR 43093, July 24, 2008, unless otherwise noted.



Sec. 220.1  Purpose and scope.

    (a) Purpose. This part establishes Forest Service, U.S. Department 
of Agriculture (USDA) procedures for compliance with the National 
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and the 
Council on Environmental Quality (CEQ) regulations for implementing the 
procedural provisions of NEPA (40 CFR parts 1500 through 1508).
    (b) Scope. This part supplements and does not lessen the 
applicability of the CEQ regulations, and is to be used in conjunction 
with the CEQ regulations and USDA regulations at 7 CFR part 1b.



Sec. 220.2  Applicability.

    This part applies to all organizational elements of the Forest 
Service. Consistent with 40 CFR 1500.3, no trivial violation of this 
part shall give rise to any independent cause of action.



Sec. 220.3  Definitions.

    The following definitions supplement, by adding to, the terms 
defined at 40 CFR parts 1500-1508.
    Adaptive management. A system of management practices based on 
clearly identified intended outcomes and monitoring to determine if 
management actions are meeting those outcomes; and, if not, to 
facilitate management changes that will best ensure that those outcomes 
are met or re-evaluated. Adaptive management stems from the recognition 
that knowledge about natural resource systems is sometimes uncertain.
    Decision document. A record of decision, decision notice or decision 
memo.
    Decision memo. A concise written record of the responsible 
official's decision to implement an action categorically excluded from 
further analysis and documentation in an environmental impact statement 
(EIS) or environmental assessment (EA).
    Decision notice. A concise written record of the responsible 
official's decision when an EA and finding of no significant impact 
(FONSI) have been prepared.
    Environmentally preferable alternative. The environmentally 
preferable alternative is the alternative that will best promote the 
national environmental policy as expressed in NEPA's section 101 (42 
U.S.C. 4321). Ordinarily, the environmentally preferable alternative is 
that which causes the least harm to the biological and physical 
environment; it also is the alternative which best protects and 
preserves historic, cultural, and natural resources. In some situations, 
there may be more than one environmentally preferable alternative.
    Reasonably foreseeable future actions. Those Federal or non-Federal 
activities not yet undertaken, for which there are existing decisions, 
funding, or

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identified proposals. Identified proposals for Forest Service actions 
are described in Sec. 220.4(a)(1).
    Responsible official. The Agency employee who has the authority to 
make and implement a decision on a proposed action.
    Schedule of proposed actions (SOPA). A Forest Service document that 
informs the public about those proposed and ongoing Forest Service 
actions for which a record of decision, decision notice or decision memo 
would be or has been prepared. The SOPA also identifies a contact for 
additional information on any proposed actions.



Sec. 220.4  General requirements.

    (a) Proposed actions subject to the NEPA requirements. As required 
by 42 U.S.C. 4321 et seq., a Forest Service proposal is subject to the 
NEPA requirements when all of the following apply:
    (1) The Forest Service has a goal and is actively preparing to make 
a decision on one or more alternative means of accomplishing that goal 
and the effects can be meaningfully evaluated (see 40 CFR 1508.23);
    (2) The proposed action is subject to Forest Service control and 
responsibility (see 40 CFR 1508.18);
    (3) The proposed action would cause effects on the natural and 
physical environment and the relationship of people with that 
environment (see 40 CFR 1508.14); and
    (4) The proposed action is not statutorily exempt from the 
requirements of section 102(2)(C) of the NEPA (42 U.S.C. 4332(2)(C)).
    (b) Emergency responses. When the responsible official determines 
that an emergency exists that makes it necessary to take urgently needed 
actions before preparing a NEPA analysis and any required documentation 
in accordance with the provisions in Sec. Sec. 220.5, 220.6, and 220.7 
of this part, then the following provisions apply.
    (1) The responsible official may take actions necessary to control 
the immediate impacts of the emergency and are urgently needed to 
mitigate harm to life, property, or important natural or cultural 
resources. When taking such actions, the responsible official shall take 
into account the probable environmental consequences of the emergency 
action and mitigate foreseeable adverse environmental effects to the 
extent practical.
    (2) If the responsible official proposes emergency actions other 
than those actions described in paragraph (b)(1) of this section, and 
such actions are not likely to have significant environmental impacts, 
the responsible official shall document that determination in an EA and 
FONSI prepared in accord with these regulations. If the responsible 
official finds that the nature and scope of proposed emergency actions 
are such that they must be undertaken prior to preparing any NEPA 
analysis and documentation associated with a CE or an EA and FONSI, the 
responsible official shall consult with the Washington Office about 
alternative arrangements for NEPA compliance. The Chief or Associate 
Chief of the Forest Service may grant emergency alternative arrangements 
under NEPA for environmental assessments, findings of no significant 
impact and categorical exclusions (FSM 1950.41a). Consultation with the 
Washington Office shall be coordinated through the appropriate regional 
office.
    (3) If the responsible official proposes emergency actions other 
than those actions described in paragraph (b)(1) of this section and 
such actions are likely to have significant environmental impacts, then 
the responsible official shall consult with CEQ, through the appropriate 
regional office and the Washington Office, about alternative 
arrangements in accordance with CEQ regulations at 40 CFR 1506.11 as 
soon as possible.
    (c) Agency decisionmaking. For each Forest Service proposal (Sec. 
220.4(a)), the responsible official shall coordinate and integrate NEPA 
review and relevant environmental documents with agency decisionmaking 
by:
    (1) Completing the environmental document review before making a 
decision on the proposal;
    (2) Considering environmental documents, public and agency comments 
(if any) on those documents, and agency responses to those comments;
    (3) Including environmental documents, comments, and responses in 
the administrative record;

[[Page 94]]

    (4) Considering the alternatives analyzed in environmental 
document(s) before rendering a decision on the proposal; and
    (5) Making a decision encompassed within the range of alternatives 
analyzed in the environmental documents.
    (d) Schedule of proposed actions (SOPA). The responsible official 
shall ensure the SOPA is updated and notify the public of the 
availability of the SOPA.
    (e) Scoping (40 CFR 1501.7). (1) Scoping is required for all Forest 
Service proposed actions, including those that would appear to be 
categorically excluded from further analysis and documentation in an EA 
or an EIS (Sec. 220.6).
    (2) Scoping shall be carried out in accordance with the requirements 
of 40 CFR 1501.7. Because the nature and complexity of a proposed action 
determine the scope and intensity of analysis, no single scoping 
technique is required or prescribed.
    (3) The SOPA shall not to be used as the sole scoping mechanism for 
a proposed action.
    (f) Cumulative effects considerations of past actions. Cumulative 
effects analysis shall be carried out in accordance with 40 CFR 1508.7 
and in accordance with ``The Council on Environmental Quality Guidance 
Memorandum on Consideration of Past Actions in Cumulative Effects 
Analysis'' dated June 24, 2005. The analysis of cumulative effects 
begins with consideration of the direct and indirect effects on the 
environment that are expected or likely to result from the alternative 
proposals for agency action. Agencies then look for present effects of 
past actions that are, in the judgment of the agency, relevant and 
useful because they have a significant cause-and-effect relationship 
with the direct and indirect effects of the proposal for agency action 
and its alternatives. CEQ regulations do not require the consideration 
of the individual effects of all past actions to determine the present 
effects of past actions. Once the agency has identified those present 
effects of past actions that warrant consideration, the agency assesses 
the extent that the effects of the proposal for agency action or its 
alternatives will add to, modify, or mitigate those effects. The final 
analysis documents an agency assessment of the cumulative effects of the 
actions considered (including past, present, and reasonable foreseeable 
future actions) on the affected environment. With respect to past 
actions, during the scoping process and subsequent preparation of the 
analysis, the agency must determine what information regarding past 
actions is useful and relevant to the required analysis of cumulative 
effects. Cataloging past actions and specific information about the 
direct and indirect effects of their design and implementation could in 
some contexts be useful to predict the cumulative effects of the 
proposal. The CEQ regulations, however, do not require agencies to 
catalogue or exhaustively list and analyze all individual past actions. 
Simply because information about past actions may be available or 
obtained with reasonable effort does not mean that it is relevant and 
necessary to inform decisionmaking. (40 CFR 1508.7)
    (g) Classified information. To the extent practicable, the 
responsible official shall segregate any information that has been 
classified pursuant to Executive order or statute. The responsible 
official shall maintain the confidentiality of such information in a 
manner required for the information involved. Such information may not 
be included in any publicly disclosed documents. If such material cannot 
be reasonably segregated, or if segregation would leave essentially 
meaningless material, the responsible official must withhold the entire 
analysis document from the public; however, the responsible official 
shall otherwise prepare the analysis documentation in accord with 
applicable regulations. (40 CFR 1507.3(c))
    (h) Incorporation by reference. Material may be incorporated by 
reference into any environmental or decision document. This material 
must be reasonably available to the public and its contents briefly 
described in the environmental or decision document. (40 CFR 1502.21)
    (i) Applicants. The responsible official shall make policies or 
staff available to advise potential applicants of studies

[[Page 95]]

or other information foreseeably required for acceptance of their 
applications. Upon acceptance of an application as provided by 36 CFR 
251.54(g) the responsible official shall initiate the NEPA process.



Sec. 220.5  Environmental impact statement and record of decision.

    (a) Classes of actions normally requiring environmental impact 
statements--(1) Class 1: Proposals to carry out or to approve aerial 
application of chemical pesticides on an operational basis. Examples 
include but are not limited to:
    (i) Applying chemical insecticides by helicopter on an area infested 
with spruce budworm to prevent serious resource loss.
    (ii) Authorizing the application of herbicides by helicopter on a 
major utility corridor to control unwanted vegetation.
    (iii) Applying herbicides by fixed-wing aircraft on an area to 
release trees from competing vegetation.
    (2) Class 2: Proposals that would substantially alter the 
undeveloped character of an inventoried roadless area or a potential 
wilderness area. Examples include but are not limited to:
    (i) Constructing roads and harvesting timber in an inventoried 
roadless area where the proposed road and harvest units impact a 
substantial part of the inventoried roadless area.
    (ii) Constructing or reconstructing water reservoir facilities in a 
potential wilderness area where flow regimens may be substantially 
altered.
    (iii) Approving a plan of operations for a mine that would cause 
considerable surface disturbance in a potential wilderness area.
    (b) Notice of intent. Normally, a notice of intent to prepare an EIS 
shall be published in the Federal Register as soon as practicable after 
deciding that an EIS will be prepared. Where there is a lengthy period 
between the agency's decision to prepare an environmental impact 
statement and the time of actual preparation, the notice of intent may 
be published at a reasonable time in advance of preparation of the draft 
statement. A notice must meet the requirements of 40 CFR 1508.22, and in 
addition, include the following:
    (1) Title of the responsible official(s);
    (2) Any permits or licenses required to implement the proposed 
action and the issuing authority;
    (3) Lead, joint lead, or cooperating agencies if identified; and
    (4) Address(es) to which comments may be sent.
    (c) Withdrawal notice. A withdrawal notice must be published in the 
Federal Register if, after publication of the notice of intent or notice 
of availability, an EIS is no longer necessary. A withdrawal notice must 
refer to the date and Federal Register page number of the previously 
published notice(s).
    (d) Environmental impact statement format and content. The 
responsible official may use any EIS format and design as long as the 
statement is in accord with 40 CFR 1502.10.
    (e) Alternative(s). The EIS shall document the examination of 
reasonable alternatives to the proposed action. An alternative should 
meet the purpose and need and address one or more significant issues 
related to the proposed action. Since an alternative may be developed to 
address more than one significant issue, no specific number of 
alternatives is required or prescribed. The following procedures are 
available to the responsible official to develop and analyze 
alternatives:
    (1) The responsible official may modify the proposed action and 
alternative(s) under consideration prior to issuing a draft EIS. In such 
cases, the responsible official may consider the incremental changes as 
alternatives considered. The documentation of these incremental changes 
to a proposed action or alternatives shall be included or incorporated 
by reference in accord with 40 CFR 1502.21.
    (2) The proposed action and one or more alternatives to the proposed 
action may include adaptive management. An adaptive management proposal 
or alternative must clearly identify the adjustment(s) that may be made 
when monitoring during project implementation indicates that the action 
is not having its intended effect, or is causing unintended and 
undesirable effects. The EIS must disclose not only the effect of the 
proposed action or alternative but also the effect of the

[[Page 96]]

adjustment. Such proposal or alternative must also describe the 
monitoring that would take place to inform the responsible official 
during implementation whether the action is having its intended effect.
    (f) Circulating and filing draft and final environmental impact 
statements. (1) The draft and final EISs shall be filed with the 
Environmental Protection Agency's Office of Federal Activities in 
Washington, DC (see 40 CFR 1506.9).
    (2) Requirements at 40 CFR 1506.9 ``Filing requirements,'' 40 CFR 
1506.10 ``Timing of agency action,'' and 40 CFR 1502.19 ``Circulation of 
the environmental impact statement'' shall only apply to the last draft 
and final EIS and not apply to material produced prior to the draft EIS 
or between the draft and final EIS which are filed with EPA.
    (3) When the responsible official determines that an extension of 
the review period on a draft EIS is appropriate, notice shall be given 
in the same manner used for inviting comments on the draft.
    (g) Distribution of the record of decision. The responsible official 
shall notify interested or affected parties of the availability of the 
record of decision as soon as practical after signing.



Sec. 220.6  Categorical exclusions.

    (a) General. A proposed action may be categorically excluded from 
further analysis and documentation in an EIS or EA only if there are no 
extraordinary circumstances related to the proposed action and if:
    (1) The proposed action is within one of the categories established 
by the Secretary at 7 CFR part 1b.3; or
    (2) The proposed action is within a category listed in Sec. 
220.6(d) and (e).
    (b) Resource conditions. (1) Resource conditions that should be 
considered in determining whether extraordinary circumstances related to 
a proposed action warrant further analysis and documentation in an EA or 
an EIS are:
    (i) Federally listed threatened or endangered species or designated 
critical habitat, species proposed for Federal listing or proposed 
critical habitat, or Forest Service sensitive species;
    (ii) Flood plains, wetlands, or municipal watersheds;
    (iii) Congressionally designated areas, such as wilderness, 
wilderness study areas, or national recreation areas;
    (iv) Inventoried roadless area or potential wilderness area;
    (v) Research natural areas;
    (vi) American Indians and Alaska Native religious or cultural sites; 
and
    (vii) Archaeological sites, or historic properties or areas.
    (2) The mere presence of one or more of these resource conditions 
does not preclude use of a categorical exclusion (CE). It is the 
existence of a cause-effect relationship between a proposed action and 
the potential effect on these resource conditions, and if such a 
relationship exists, the degree of the potential effect of a proposed 
action on these resource conditions that determines whether 
extraordinary circumstances exist.
    (c) Scoping. If the responsible official determines, based on 
scoping, that it is uncertain whether the proposed action may have a 
significant effect on the environment, prepare an EA. If the responsible 
official determines, based on scoping, that the proposed action may have 
a significant environmental effect, prepare an EIS.
    (d) Categories of actions for which a project or case file and 
decision memo are not required. A supporting record and a decision memo 
are not required, but at the discretion of the responsible official, may 
be prepared for the following categories:
    (1) Orders issued pursuant to 36 CFR part 261--Prohibitions to 
provide short-term resource protection or to protect public health and 
safety. Examples include but are not limited to:
    (i) Closing a road to protect bighorn sheep during lambing season, 
and
    (ii) Closing an area during a period of extreme fire danger.
    (2) Rules, regulations, or policies to establish servicewide 
administrative procedures, program processes, or instructions. Examples 
include but are not limited to:
    (i) Adjusting special use or recreation fees using an existing 
formula;
    (ii) Proposing a technical or scientific method or procedure for 
screening effects of emissions on air quality related values in Class I 
wildernesses;

[[Page 97]]

    (iii) Proposing a policy to defer payments on certain permits or 
contracts to reduce the risk of default;
    (iv) Proposing changes in contract terms and conditions or terms and 
conditions of special use authorizations;
    (v) Establishing a servicewide process for responding to offers to 
exchange land and for agreeing on land values; and
    (vi) Establishing procedures for amending or revising forest land 
and resource management plans.
    (3) Repair and maintenance of administrative sites. Examples include 
but are not limited to:
    (i) Mowing lawns at a district office;
    (ii) Replacing a roof or storage shed;
    (iii) Painting a building; and
    (iv) Applying registered pesticides for rodent or vegetation 
control.
    (4) Repair and maintenance of roads, trails, and landline 
boundaries. Examples include but are not limited to:
    (i) Authorizing a user to grade, resurface, and clean the culverts 
of an established NFS road;
    (ii) Grading a road and clearing the roadside of brush without the 
use of herbicides;
    (iii) Resurfacing a road to its original condition;
    (iv) Pruning vegetation and cleaning culverts along a trail and 
grooming the surface of the trail; and
    (v) Surveying, painting, and posting landline boundaries.
    (5) Repair and maintenance of recreation sites and facilities. 
Examples include but are not limited to:
    (i) Applying registered herbicides to control poison ivy on infested 
sites in a campground;
    (ii) Applying registered insecticides by compressed air sprayer to 
control insects at a recreation site complex;
    (iii) Repaving a parking lot; and
    (iv) Applying registered pesticides for rodent or vegetation 
control.
    (6) Acquisition of land or interest in land. Examples include but 
are not limited to:
    (i) Accepting the donation of lands or interests in land to the NFS, 
and
    (ii) Purchasing fee, conservation easement, reserved interest deed, 
or other interests in lands.
    (7) Sale or exchange of land or interest in land and resources where 
resulting land uses remain essentially the same. Examples include but 
are not limited to:
    (i) Selling or exchanging land pursuant to the Small Tracts Act;
    (ii) Exchanging NFS lands or interests with a State agency, local 
government, or other non-Federal party (individual or organization) with 
similar resource management objectives and practices;
    (iii) Authorizing the Bureau of Land Management to issue leases on 
producing wells when mineral rights revert to the United States from 
private ownership and there is no change in activity; and
    (iv) Exchange of administrative sites involving other than NFS 
lands.
    (8) Approval, modification, or continuation of minor, short-term (1 
year or less) special uses of NFS lands. Examples include, but are not 
limited to:
    (i) Approving, on an annual basis, the intermittent use and 
occupancy by a State-licensed outfitter or guide;
    (ii) Approving the use of NFS land for apiaries; and
    (iii) Approving the gathering of forest products for personal use.
    (9) Issuance of a new permit for up to the maximum tenure allowable 
under the National Forest Ski Area Permit Act of 1986 (16 U.S.C. 497b) 
for an existing ski area when such issuance is a purely ministerial 
action to account for administrative changes, such as a change in 
ownership of ski area improvements, expiration of the current permit, or 
a change in the statutory authority applicable to the current permit. 
Examples include, but are not limited to:
    (i) Issuing a permit to a new owner of ski area improvements within 
an existing ski area with no changes to the master development plan, 
including no changes to the facilities or activities for that ski area;
    (ii) Upon expiration of a ski area permit, issuing a new permit to 
the holder of the previous permit where the holder is not requesting any 
changes to the master development plan, including changes to the 
facilities or activities; and
    (iii) Issuing a new permit under the National Forest Ski Area Permit 
Act of 1986 to the holder of a permit issued

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under the Term Permit and Organic Acts, where there are no changes in 
the type or scope of activities authorized and no other changes in the 
master development plan.
    (10) Amendment to or replacement of an existing special use 
authorization that involves only administrative changes and does not 
involve changes in the authorized facilities or increase in the scope or 
intensity of authorized activities, or extensions to the term of 
authorization, when the applicant or holder is in full compliance with 
the terms and conditions of the special use authorization. Examples 
include, but are not limited to:
    (i) Amending a special use authorization to reflect administrative 
changes such as adjustment to the land use fees, inclusion of non-
discretionary environmental standards or updating a special use 
authorization to bring it into conformance with current laws or 
regulations (for example, new monitoring required by water quality 
standards), and
    (ii) Issuance of a new special use authorization to reflect 
administrative changes such as, a change of ownership or control of 
previously authorized facilities or activities, or conversion of the 
existing special use authorization to a new type of special use 
authorization (for example, converting a permit to a lease or easement).
    (e) Categories of actions for which a project or case file and 
decision memo are required. A supporting record is required and the 
decision to proceed must be documented in a decision memo for the 
categories of action in paragraphs (e)(1) through (17) of this section. 
As a minimum, the project or case file should include any records 
prepared, such as: The names of interested and affected people, groups, 
and agencies contacted; the determination that no extraordinary 
circumstances exist; a copy of the decision memo; and a list of the 
people notified of the decision. If the proposed action is approval of a 
land management plan, plan amendment, or plan revision, the plan 
approval document required by 36 CFR part 219 satisfies the decision 
memo requirements of this section.
    (1) Construction and reconstruction of trails. Examples include, but 
are not limited to:
    (i) Constructing or reconstructing a trail to a scenic overlook, and
    (ii) Reconstructing an existing trail to allow use by handicapped 
individuals.
    (2) Additional construction or reconstruction of existing telephone 
or utility lines in a designated corridor. Examples include, but are not 
limited to:
    (i) Replacing an underground cable trunk and adding additional phone 
lines, and
    (ii) Reconstructing a power line by replacing poles and wires.
    (3) Approval, modification, or continuation of minor special uses of 
NFS lands that require less than five contiguous acres of land. Examples 
include, but are not limited to:
    (i) Approving the construction of a meteorological sampling site;
    (ii) Approving the use of land for a one-time group event;
    (iii) Approving the construction of temporary facilities for filming 
of staged or natural events or studies of natural or cultural history;
    (iv) Approving the use of land for a 40-foot utility corridor that 
crosses one mile of a national forest;
    (v) Approving the installation of a driveway, mailbox, or other 
facilities incidental to use of a residence;
    (vi) Approving an additional telecommunication use at a site already 
used for such purposes;
    (vii) Approving the removal of mineral materials from an existing 
community pit or common-use area; and
    (viii) Approving the continued use of land where such use has not 
changed since authorized and no change in the physical environment or 
facilities are proposed.
    (4) [Reserved]
    (5) Regeneration of an area to native tree species, including site 
preparation that does not involve the use of herbicides or result in 
vegetation type conversion. Examples include, but are not limited to:
    (i) Planting seedlings of superior trees in a progeny test site to 
evaluate genetic worth, and

[[Page 99]]

    (ii) Planting trees or mechanical seed dispersal of native tree 
species following a fire, flood, or landslide.
    (6) Timber stand and/or wildlife habitat improvement activities that 
do not include the use of herbicides or do not require more than 1 mile 
of low standard road construction. Examples include, but are not limited 
to:
    (i) Girdling trees to create snags;
    (ii) Thinning or brush control to improve growth or to reduce fire 
hazard including the opening of an existing road to a dense timber 
stand;
    (iii) Prescribed burning to control understory hardwoods in stands 
of southern pine; and
    (iv) Prescribed burning to reduce natural fuel build-up and improve 
plant vigor.
    (7) Modification or maintenance of stream or lake aquatic habitat 
improvement structures using native materials or normal practices. 
Examples include, but are not limited to:
    (i) Reconstructing a gabion with stone from a nearby source;
    (ii) Adding brush to lake fish beds; and
    (iii) Cleaning and resurfacing a fish ladder at a hydroelectric dam.
    (8) Short-term (1 year or less) mineral, energy, or geophysical 
investigations and their incidental support activities that may require 
cross-country travel by vehicles and equipment, construction of less 
than 1 mile of low standard road, or use and minor repair of existing 
roads. Examples include, but are not limited to:
    (i) Authorizing geophysical investigations which use existing roads 
that may require incidental repair to reach sites for drilling core 
holes, temperature gradient holes, or seismic shot holes;
    (ii) Gathering geophysical data using shot hole, vibroseis, or 
surface charge methods;
    (iii) Trenching to obtain evidence of mineralization;
    (iv) Clearing vegetation for sight paths or from areas used for 
investigation or support facilities;
    (v) Redesigning or rearranging surface facilities within an approved 
site;
    (vi) Approving interim and final site restoration measures; and
    (vii) Approving a plan for exploration which authorizes repair of an 
existing road and the construction of \1/3\ mile of temporary road; 
clearing vegetation from an acre of land for trenches, drill pads, or 
support facilities.
    (9) Implementation or modification of minor management practices to 
improve allotment condition or animal distribution when an allotment 
management plan is not yet in place. Examples include, but are not 
limited to:
    (i) Rebuilding a fence to improve animal distribution;
    (ii) Adding a stock watering facility to an existing water line; and
    (iii) Spot seeding native species of grass or applying lime to 
maintain forage condition.
    (10) Hazardous fuels reduction activities using prescribed fire, not 
to exceed 4,500 acres; and mechanical methods for crushing, piling, 
thinning, pruning, cutting, chipping, mulching, and mowing, not to 
exceed 1,000 acres. Such activities:
    (i) Shall be limited to areas:
    (A) In the wildland-urban interface; or
    (B) Condition Classes 2 or 3 in Fire Regime Groups I, II, or III, 
outside the wildland-urban interface.
    (ii) Shall be identified through a collaborative framework as 
described in ``A Collaborative Approach for Reducing Wildland Fire Risks 
to Communities and Environment 10-Year Comprehensive Strategy 
Implementation Plan'';
    (iii) Shall be conducted consistent with Agency and Departmental 
procedures and applicable land and resource management plans;
    (iv) Shall not be conducted in wilderness areas or impair the 
suitability of wilderness study areas for preservation as wilderness; 
and
    (v) Shall not include the use of herbicides or pesticides or the 
construction of new permanent roads or other new permanent 
infrastructure; and may include the sale of vegetative material if the 
primary purpose of the activity is hazardous fuels reduction.
    (11) Post-fire rehabilitation activities, not to exceed 4,200 acres 
(such as

[[Page 100]]

tree planting, fence replacement, habitat restoration, heritage site 
restoration, repair of roads and trails, and repair of damage to minor 
facilities such as campgrounds), to repair or improve lands unlikely to 
recover to a management approved condition from wildland fire damage, or 
to repair or replace minor facilities damaged by fire. Such activities:
    (i) Shall be conducted consistent with Agency and Departmental 
procedures and applicable land and resource management plans;
    (ii) Shall not include the use of herbicides or pesticides or the 
construction of new permanent roads or other new permanent 
infrastructure; and
    (iii) Shall be completed within 3 years following a wildland fire.
    (12) Harvest of live trees not to exceed 70 acres, requiring no more 
than \1/2\ mile of temporary road construction. Do not use this category 
for even-aged regeneration harvest or vegetation type conversion. The 
proposed action may include incidental removal of trees for landings, 
skid trails, and road clearing. Examples include, but are not limited 
to:
    (i) Removal of individual trees for sawlogs, specialty products, or 
fuelwood, and
    (ii) Commercial thinning of overstocked stands to achieve the 
desired stocking level to increase health and vigor.
    (13) Salvage of dead and/or dying trees not to exceed 250 acres, 
requiring no more than \1/2\ mile of temporary road construction. The 
proposed action may include incidental removal of live or dead trees for 
landings, skid trails, and road clearing. Examples include, but are not 
limited to:
    (i) Harvest of a portion of a stand damaged by a wind or ice event 
and construction of a short temporary road to access the damaged trees, 
and
    (ii) Harvest of fire-damaged trees.
    (14) Commercial and non-commercial sanitation harvest of trees to 
control insects or disease not to exceed 250 acres, requiring no more 
than \1/2\ mile of temporary road construction, including removal of 
infested/infected trees and adjacent live uninfested/uninfected trees as 
determined necessary to control the spread of insects or disease. The 
proposed action may include incidental removal of live or dead trees for 
landings, skid trails, and road clearing. Examples include, but are not 
limited to:
    (i) Felling and harvest of trees infested with southern pine beetles 
and immediately adjacent uninfested trees to control expanding spot 
infestations, and
    (ii) Removal and/or destruction of infested trees affected by a new 
exotic insect or disease, such as emerald ash borer, Asian long horned 
beetle, and sudden oak death pathogen.
    (15) Issuance of a new special use authorization for a new term to 
replace an existing or expired special use authorization when the only 
changes are administrative, there are not changes to the authorized 
facilities or increases in the scope or intensity of authorized 
activities, and the applicant or holder is in full compliance with the 
terms and conditions of the special use authorization.
    (16) Land management plans, plan amendments, and plan revisions 
developed in accordance with 36 CFR part 219 et seq. that provide broad 
guidance and information for project and activity decisionmaking in a 
NFS unit. Proposals for actions that approve projects and activities, or 
that command anyone to refrain from undertaking projects and activities, 
or that grant, withhold or modify contracts, permits or other formal 
legal instruments, are outside the scope of this category and shall be 
considered separately under Forest Service NEPA procedures.
    (17) Approval of a Surface Use Plan of Operations for oil and 
natural gas exploration and initial development activities, associated 
with or adjacent to a new oil and/or gas field or area, so long as the 
approval will not authorize activities in excess of any of the 
following:
    (i) One mile of new road construction;
    (ii) One mile of road reconstruction;
    (iii) Three miles of individual or co-located pipelines and/or 
utilities disturbance; or
    (iv) Four drill sites.
    (f) Decision memos. The responsible official shall notify interested 
or affected

[[Page 101]]

parties of the availability of the decision memo as soon as practical 
after signing. While sections may be combined or rearranged in the 
interest of clarity and brevity, decision memos must include the 
following content:
    (1) A heading, which must identify:
    (i) Title of document: Decision Memo;
    (ii) Agency and administrative unit;
    (iii) Title of the proposed action; and
    (iv) Location of the proposed action, including administrative unit, 
county, and State.
    (2) Decision to be implemented and the reasons for categorically 
excluding the proposed action including:
    (i) The category of the proposed action;
    (ii) The rationale for using the category and, if more than one 
category could have been used, why the specific category was chosen;
    (iii) A finding that no extraordinary circumstances exist;
    (3) Any interested and affected agencies, organizations, and persons 
contacted;
    (4) Findings required by other laws such as, but not limited to 
findings of consistency with the forest land and resource management 
plan as required by the National Forest Management Act; or a public 
interest determination (36 CFR 254.3(c));
    (5) The date when the responsible official intends to implement the 
decision and any conditions related to implementation;
    (6) Whether the decision is subject to review or appeal, the 
applicable regulations, and when and where to file a request for review 
or appeal;
    (7) Name, address, and phone number of a contact person who can 
supply further information about the decision; and
    (8) The responsible official's signature and date when the decision 
is made.



Sec. 220.7  Environmental assessment and decision notice.

    (a) Environmental assessment. An environmental assessment (EA) shall 
be prepared for proposals as described in Sec. 220.4(a) that are not 
categorically excluded from documentation (Sec. 220.6) and for which 
the need of an EIS has not been determined (Sec. 220.5). An EA may be 
prepared in any format useful to facilitate planning, decisionmaking, 
and public disclosure as long as the requirements of paragraph (b) of 
this section are met. The EA may incorporate by reference information 
that is reasonably available to the public.
    (b) An EA must include the following:
    (1) Need for the proposal. The EA must briefly describe the need for 
the project.
    (2) Proposed action and alternative(s). The EA shall briefly 
describe the proposed action and alternative(s) that meet the need for 
action. No specific number of alternatives is required or prescribed.
    (i) When there are no unresolved conflicts concerning alternative 
uses of available resources (NEPA, section 102(2)(E)), the EA need only 
analyze the proposed action and proceed without consideration of 
additional alternatives.
    (ii) The EA may document consideration of a no-action alternative 
through the effects analysis by contrasting the impacts of the proposed 
action and any alternative(s) with the current condition and expected 
future condition if the proposed action were not implemented.
    (iii) The description of the proposal and alternative(s) may include 
a brief description of modifications and incremental design features 
developed through the analysis process to develop the alternatives 
considered. The documentation of these incremental changes to a proposed 
action or alternatives may be incorporated by reference in accord with 
40 CFR 1502.21.
    (iv) The proposed action and one or more alternatives to the 
proposed action may include adaptive management. An adaptive management 
proposal or alternative must clearly identify the adjustment(s) that may 
be made when monitoring during project implementation indicates that the 
action is not having its intended effect, or is causing unintended and 
undesirable effects. The EA must disclose not only the effect of the 
proposed action or alternative but also the effect of the adjustment. 
Such proposal or alternative must also describe the monitoring that 
would take place to inform

[[Page 102]]

the responsible official whether the action is having its intended 
effect.
    (3) Environmental Impacts of the Proposed Action and Alternative(s). 
The EA:
    (i) Shall briefly provide sufficient evidence and analysis, 
including the environmental impacts of the proposed action and 
alternative(s), to determine whether to prepare either an EIS or a FONSI 
(40 CFR 1508.9);
    (ii) Shall disclose the environmental effects of any adaptive 
management adjustments;
    (iii) Shall describe the impacts of the proposed action and any 
alternatives in terms of context and intensity as described in the 
definition of ``significantly'' at 40 CFR 1508.27;
    (iv) May discuss the direct, indirect, and cumulative impact(s) of 
the proposed action and any alternatives together in a comparative 
description or describe the impacts of each alternative separately; and
    (v) May incorporate by reference data, inventories, other 
information and analyses.
    (4) Agencies and Persons Consulted.
    (c) Decision notice. If an EA and FONSI have been prepared, the 
responsible official must document a decision to proceed with an action 
in a decision notice unless law or regulation requires another form of 
decision documentation (40 CFR 1508.13). A decision notice must document 
the conclusions drawn and the decision(s) made based on the supporting 
record, including the EA and FONSI. A decision notice must include:
    (1) A heading, which identifies the:
    (i) Title of document;
    (ii) Agency and administrative unit;
    (iii) Title of the project; and
    (iv) Location of the action, including county and State.
    (2) Decision and rationale;
    (3) Brief summary of public involvement;
    (4) A statement incorporating by reference the EA and FONSI if not 
combined with the decision notice;
    (5) Findings required by other laws and regulations applicable to 
the decision at the time of decision;
    (6) Expected implementation date;
    (7) Administrative review or appeal opportunities and, when such 
opportunities exist, a citation to the applicable regulations and 
directions on when and where to file a request for review or an appeal;
    (8) Contact information, including the name, address, and phone 
number of a contact person who can supply additional information; and
    (9) Responsible Official's signature, and the date the notice is 
signed.
    (d) Notification. The responsible official shall notify interested 
and affected parties of the availability of the EA, FONSI and decision 
notice, as soon as practicable after the decision notice is signed.



PART 221_TIMBER MANAGEMENT PLANNING--Table of Contents



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



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

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

[[Page 103]]

    (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_Mediation of Term Grazing Permit Disputes

222.20 Decisions subject to mediation.
222.21 Parties.
222.22 Stay of appeal.
222.23 Confidentiality.
222.24 Records.
222.25 Costs.
222.26 Ex parte communications.

                         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.

       Subpart D_Management of Wild Free-Roaming Horses and Burros

222.60 Authority and definitions.
222.61 Administration of wild free-roaming horses and burros and their 
          environment.
222.62 Ownership claims.
222.63 Removal of other horses and burros.
222.64 Use of helicopters, fixed-wing aircraft and motor vehicles.
222.65 Protection of wild free-roaming horses and burros when they are 
          upon other than the National Forest System or public lands.
222.66 Removal of wild free-roaming horses and burros from private 
          lands.
222.67 Maintenance of wild free-roaming horses and burros on privately-
          owned lands.
222.68 Agreements.
222.69 Relocation and disposal of animals.
222.70 Disposal of carcasses.
222.71 Loss of status.
222.72 Use of non-Forest Service personnel.
222.73 Management coordination.
222.74 National Advisory Board.
222.75 Studies.
222.76 Arrest.

    Authority: 7 U.S.C. 1010-1012, 5101-5106; 16 U.S.C. 551, 572, 5801; 
31 U.S.C. 9701; 43 U.S.C. 1751, 1752, 1901; E.O. 12548 (51 FR 5985).



    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,

[[Page 104]]

and other needs and objectives as determined for the lands, involved; 
and
    (ii) Describes the type, location, ownership, and general 
specifications for the range improvements in place or to be installed 
and maintained on the lands to meet the livestock grazing and other 
objectives of land management; and
    (iii) Contains such other provisions relating to livestock grazing 
and other objectives as may be prescribed by the Chief, Forest Service, 
consistent with applicable law.
    (3) Base property is land and improvements owned and used by the 
permittee for a farm or ranch operation and specifically designated by 
him to qualify for a term grazing permit.
    (4) Cancel means action taken to permanently invalidate a term 
grazing permit in whole or in part.
    (5) A grazing permit is any document authorizing livestock to use 
National Forest System or other lands under Forest Service control for 
the purpose of livestock production including:
    (i) Temporary grazing permits for grazing livestock temporarily and 
without priority for reissuance.
    (ii) Term permits for up to 10 years with priority for renewal at 
the end of the term.
    (6) Land subject to commercial livestock grazing means National 
Forest System lands within established allotments.
    (7) Lands within National Forest in the 16 contiguous western States 
means lands designated as National Forest within the boundaries of 
Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, 
New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, 
Washington, and Wyoming (National Grasslands are excluded).
    (8) Livestock means animals of any kind kept or raised for use or 
pleasure.
    (9) Livestock use permit means a permit issued for not to exceed one 
year where the primary use is for other than grazing livestock.
    (10) Modify means to revise the terms and conditions of an issued 
permit.
    (11) National Forest System lands, are the National Forests, 
National Grasslands, Land Utilization Projects, and other Federal lands 
for which the Forest Service has administrative jurisdiction.
    (12) On-and-off grazing permits are permits with specific provisions 
on range only part of which is National Forest System lands or other 
lands under Forest Service control.
    (13) On-the-ground expenditure means payment of direct project costs 
of implementing an improvement or development, such as survey and 
design, equipment, labor and material (or contract) costs, and on-the-
ground supervision.
    (14) Other lands under Forest Service control are non-Federal public 
and private lands over which the Forest Service has been given control 
through lease, agreement, waiver, or otherwise.
    (15) Private land grazing permits are permits issued to persons who 
control grazing lands adjacent to National Forest System lands and who 
waive exclusive grazing use of these lands to the United States for the 
full period the permit is to be issued.
    (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

[[Page 105]]

range not involving construction of improvements.
    (ii) Structural which are improvements requiring construction or 
installation undertaken to improve the range or to facilitate management 
or to control distribution and movement of livestock.
    (A) Permanent which are range improvements installed or constructed 
and become a part of the land such as: dams, ponds, pipelines, wells, 
fences, trails, seeding, etc.
    (B) Temporary which are short-lived or portable improvements that 
can be removed such as: troughs, pumps and electric fences, including 
improvements at authorized places of habitation such as line camps.
    (22) Suspend means temporary withholding of a term grazing permit 
privilege, in whole or in part.
    (23) Term period means the period for which term permits are issued, 
the maximum of which is 10 years.
    (24) Transportation livestock is livestock used as pack and saddle 
stock for travel on the National Forest System.

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

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



Sec. 222.2  Management of the range environment.

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

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

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



Sec. 222.3  Issuance of grazing and livestock use permits.

    (a) Unless otherwise specified by the Chief, Forest Service, all 
grazing and livestock use on National Forest System lands and on other 
lands under 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

[[Page 106]]

grazing agreement and Forest Service policies. Term permits authorized 
in this paragraph may be in the form of private land or on-and-off 
grazing permits where the person is qualified to hold such permits under 
provisions the Chief may require. Permits issued under this paragraph 
are subject to the following:
    (i) Except as provided for by the Chief, Forest Service, paid term 
permits will be issued to persons who own livestock to be grazed and 
such base property as may be required, provided the land is determined 
to be available for grazing purposes by the Chief, Forest Service, and 
the capacity exists to graze specified numbers of animals.
    (ii) A term permit holder has first priority for receipt of a new 
permit at the end of the term period provided he has fully complied with 
the terms and conditions of the expiring permit.
    (iii) In order to update terms and conditions, term permits may be 
cancelled at the end of the calendar year of the midyear of the decade 
(1985, 1995, etc.), provided they are reissued to the existing permit 
holder for a new term of 10 years.
    (iv) New term permits may be issued to the purchaser of a 
permittee's permitted livestock and/or base property, provided the 
permittee waives his term permit to the United States and provided the 
purchaser is otherwise eligible and qualified.
    (v) If the permittee chooses to dispose of all or part of his base 
property or permitted livestock (not under approved nonuse) but does not 
choose to waive his term permit, the Forest Supervisor will give written 
notice that he no longer is qualified to hold a permit, provided he is 
given up to one year to reestablish his qualifications before 
cancellation action is final.
    (vi) The Chief, Forest Service, shall prescribe provisions and 
requirements under which term permits will be issued, renewed, and 
administered, including:
    (A) The amount and character of base property and livestock the 
permit holder shall be required to own.
    (B) Specifying the period of the year the base property shall be 
capable of supporting permitted livestock.
    (C) Acquisition of base property and/or permitted livestock.
    (D) Conditions for the approval of nonuse of permit for specified 
periods.
    (E) Upper and special limits governing the total number of livestock 
for which a person is entitled to hold a permit.
    (F) Conditions whereby waiver of grazing privileges may be confirmed 
and new applicants recognized.
    (2) Permits with no priority for reissuance, subject to terms and 
conditions as the Chief, Forest Service, may prescribe, are authorized 
as follows:
    (i) Temporary grazing permits for periods not to exceed one year, 
and on a charge basis, may be issued:
    (A) To allow for use of range while a term grazing permit is held in 
suspension.
    (B) To use forage created by unusually favorable climatic 
conditions.
    (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

[[Page 107]]

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

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



Sec. 222.4  Changes in grazing permits.

    (a) The Chief, Forest Service, is authorized to cancel, modify, or 
suspend grazing and livestock use permits in whole or in part as 
follows:
    (1) Cancel permits where lands grazed under the permit are to be 
devoted to another public purpose including disposal. In these cases, 
except in an emergency, no permit shall be cancelled without two years' 
prior notification.
    (2) Cancel the permit in the event the permittee:
    (i) Refuses to accept modification of the terms and conditions of an 
existing permit.
    (ii) Refuses or fails to comply with eligibility or qualification 
requirements.
    (iii) Waives his permit back to the United States.
    (iv) Fails to restock the allotted range after full extent of 
approved personal convenience non-use has been exhausted.
    (v) Fails to pay grazing fees within established time limits.
    (3) Cancel or suspend the permit if the permittee fails to pay 
grazing fees within established time limit.
    (4) Cancel or suspend the permit if the permittee does not comply 
with provisions and requirements in the grazing permit or the 
regulations of the 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

[[Page 108]]

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

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

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



Sec. 222.7  Cooperation in management.

    (a) Cooperation with local livestock associations--(1) Authority. 
The Chief, Forest Service, is authorized to recognize, cooperate with, 
and assist local livestock associations in the management of the 
livestock and range resources on a single range allotment, associated 
groups of allotments, or other association-controlled lands on which the 
members' livestock are permitted to graze.
    (2) Purposes. These associations will provide the means for the 
members to:
    (i) Manage their permitted livestock and the range resources.
    (ii) Meet jointly with Forest officers to discuss and formulate 
programs for management of their livestock and the range resources.
    (iii) Express their wishes through their designated officers or 
committees.
    (iv) Share costs for handling of livestock, construction and 
maintenance of range improvements or other accepted programs deemed 
needed for proper management of the permitted livestock and range 
resources.
    (v) Formulate association special rules needed to ensure proper 
resource management.
    (3) Requirements for recognition. The requirements for receiving 
recognition by the Forest Supervisor are:
    (i) The members of the association must constitute a majority of the 
grazing permittees on the range allotment or allotments involved.
    (ii) The officers of the association must be elected by a majority 
of the association members or of a quorum as specified by the 
association's constitution and bylaws.
    (iii) The officers other than the 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

[[Page 109]]

other agencies, institutions, organizations, and individuals who have 
interest in improvement of range management on public and private lands.



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

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

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



Sec. 222.9  Range improvements.

    (a) The Chief, Forest Service, is authorized to install and maintain 
structural and nonstructural range improvements needed to manage the 
range resource on National Forest System lands and other lands 
controlled by the Forest Service.
    (b) Such improvements may be constructed or installed and 
maintained, or work performed by individuals, organizations or agencies 
other than the Forest Service subject to the following:
    (1) All improvements must be authorized by cooperative agreement or 
memorandum of understanding, the provisions of which become a part of 
the grazing permit(s).
    (2) Title to permanent structural range improvements shall rest in 
the United States.
    (3) Title to temporary structural range improvements may be retained 
by the Cooperator where no part of the cost for the improvement is borne 
by the United States.
    (4) Title to nonstructural range improvements shall vest in the 
United States.
    (5) Range improvement work performed by a cooperator or permittee on 
National Forest System lands shall not confer the exclusive right to use 
the improvement or the land influenced.
    (c) A user of the range resource on National Forest System lands and 
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

[[Page 110]]

fund will be allocated for range rehabilitation, protection and 
improvements on National Forest lands within the Forest Service Regions 
where they were derived. During the planning process there will be 
consultation with grazing permittees who will be affected by the range 
rehabilitation, protection and improvements, and other interested 
persons or organizations.
    (b) Range betterment funds shall be utilized only for on-the-ground 
expenditure for range land betterment, including, but not limited to, 
seeding and reseeding, fence construction, water development, weed and 
other plant control, and fish and wildlife habitat enhancement within 
allotments.

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

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



Sec. 222.11  Grazing advisory boards.

    (a) Establishment. Persons holding term permits to graze livestock 
on National Forest System lands with headquarters, office in the 16 
contiguous western States having jurisdiction over more than 500,000 
acres of land subject to commercial livestock grazing may petition the 
Forest Supervisor for establishment of a statutory grazing advisory 
board in accordance with provisions of the Federal Land Policy and 
Management Act of 1976.
    (1) Upon being properly petitioned by a simple majority (more than 
50 percent) of term grazing permittees under the jurisdiction of such 
headquarters office, the 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

[[Page 111]]

meetings as needed to meet the needs of the permittees and the Forest 
Service. Each meeting shall be conducted in accordance with an agenda 
approved by the Forest Supervisor and in the presence of a Forest 
officer.
    (g) Termination. (1) Grazing advisory boards established under the 
Federal Land Policy and Management Act of 1976 shall continue until 
December 31, 1985, unless terminated earlier.
    (2) The Forest Supervisor may withdraw recognition of any board 
whenever:
    (i) A majority of the term grazing permittees for the area which the 
board represents requests that the board be dissolved.
    (ii) The board becomes inactive and does not meet at least once each 
calendar year.

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

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



           Subpart B_Mediation of Term Grazing Permit Disputes

    Authority: 7 U.S.C. 5101-5106; 16 U.S.C. 472, 551.

    Source: 78 FR 33723, June 5, 2013, unless otherwise noted.



Sec. 222.20  Decisions subject to mediation.

    The holder of a term grazing permit issued in a State with a 
mediation program certified by the U.S. Department of Agriculture may 
request mediation of a dispute relating to a decision to suspend or 
cancel the permit as authorized by 36 CFR 222.4(a)(2)(i), (ii), (iv), 
and (v) and (a)(3) through (6). Any request for mediation must be 
included in an appeal of the decision to suspend or cancel the permit 
filed in accordance with 36 CFR part 214.



Sec. 222.21  Parties.

    Only the following may be parties to mediation of a term grazing 
permit dispute:
    (a) A mediator authorized to mediate under a State mediation program 
certified by the U.S. Department of Agriculture;
    (b) The Chief, Forest Service, or other Forest Service employee who 
made the decision being mediated or his or her designee;
    (c) The holder whose term grazing permit is the subject of the 
decision and who has requested mediation in an appeal filed in 
accordance with the procedures at 36 CFR part 214;
    (d) That holder's creditors, if applicable; and
    (e) Legal counsel, if retained. The Forest Service will have legal 
representation in the mediation only if the holder has legal 
representation in the mediation.



Sec. 222.22  Stay of appeal.

    If an appellant requests mediation of a decision subject to 
mediation under Sec. 222.20 in an appeal filed under 36 CFR part 214, 
the Appeal Deciding Officer shall immediately notify all parties to the 
appeal that all appeal deadlines are automatically stayed for 45 days to 
allow for mediation. If a mediated agreement is not reached in 45 days, 
the Appeal Deciding Officer may extend the automatic stay for another 15 
days if there is a reasonable possibility that a mediated agreement can 
be achieved within that timeframe. If an agreement is not achieved at 
the end of the 45- or 60-day mediation process, the Appeal Deciding 
Officer shall immediately notify all parties to the appeal that 
mediation was unsuccessful, that the stay has expired, and that the time 
periods and procedures applicable to an appeal under 36 CFR part 214 are 
reinstated.



Sec. 222.23  Confidentiality.

    Mediation sessions and dispute resolution communications as defined 
in 5 U.S.C. 571(5) shall be confidential. Any mediation agreement signed 
by a Forest Service official and the holder of a term grazing permit is 
subject to public disclosure.



Sec. 222.24  Records.

    Notes taken or factual material shared during mediation sessions 
shall not be included in the appeal record

[[Page 112]]

prepared in accordance with the procedures at 36 CFR part 214.



Sec. 222.25  Costs.

    The Forest Service shall cover only those costs incurred by its own 
employees in mediation sessions.



Sec. 222.26  Ex parte communications.

    The Chief of the Forest Service or other Forest Service employee who 
made the decision being mediated, or his or her designee, shall not 
discuss mediation with the Appeal Deciding Officer, except to request an 
extension of time or to communicate the results of mediation.



                         Subpart C_Grazing Fees

    Authority: 16 U.S.C. 551; 31 U.S.C. 9701; 43 U.S.C. 1751, 1752, 
1901; E.O. 12548 (51 FR 5985).



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

[[Page 113]]

through the following October and apply to the following fee year.

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



Sec. 222.51  National Forests in 16 Western States.

    (a) Grazing fees are established on lands designated National 
Forests and Land Utilization Projects in the 16 contiguous Western 
States of Arizona, California, Colorado, Idaho, Kansas, Montana, 
Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South 
Dakota, Utah, Washington, and Wyoming. (National Grasslands are 
excluded, see Sec. 222.52.)
    (b) Notwithstanding the provisions of Sec. 222.50, paragraph (b), 
the calculated grazing fee for 1988 and subsequent grazing fee years 
represents the economic value of the use of the land to the user and is 
the product of multiplying the base fair market value of $1.23 by the 
result of the annual Forage Value Index, added to the sum of the Beef 
Cattle Price Index minus the Prices Paid Index and divided by 100; 
provided, that the annual increase or decrease in such fee for any given 
year shall be limited to not more than plus or minus 25 percent of the 
previous year's fee, and provided further, that the fee shall not be 
less than $1.35 per head per month. The indexes used in this formula are 
as follows:
    (1) Forage Value Index means the weighted average estimate of the 
annual rental charge per head per month for pasturing cattle on private 
rangelands in the 11 Western States (Arizona, California, Colorado, 
Idaho, Montana, New Mexico, Nevada, Oregon, Utah, Washington, and 
Wyoming) (computed by the National Agricultural Statistics Service) from 
the June Enumerative Survey) divided by $3.65 per head month and 
multiplied by 100;
    (2) Beef Cattle Price Index means the weighted average annual 
selling price for beef cattle (excluding calves) in the 11 Western 
States (Arizona, California, Colorado, Idaho, Montana, New Mexico, 
Nevada, Oregon, Utah, Washington, and Wyoming) (computed by the National 
Agricultural Statistics Service) for November through October (computed 
by the National Agricultural Statistics Service) divided by $22.04 per 
hundred weight and multiplied by 100; and
    (3) Prices Paid Index means the following selected components from 
the National Agricultural Statistics Service ``Annual National Index of 
Prices Paid by Farmers for Goods and Services'' adjusted by the weights 
indicated in parentheses to reflect livestock production costs in the 
Western States:

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

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



Sec. 222.52  National Grasslands.

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

[44 FR 24843, Apr. 27, 1979]



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

[[Page 114]]

bidding which were not bid on (Sec. 222.54(h)). Noncompetitive permits 
vacated or terminated by an existing permittee and any new allotments 
created after the effective date of this rule shall be offered on a 
competitive bid basis as specified in Sec. 222.54 of this subpart. As 
provided in subpart A of this part, holders of term permits have first 
priority for receipt of a new permit.
    (c) Fee System. The grazing fee charged under this section shall be 
based on fair market value, as determined by: Using comparable private 
grazing lease rates, adjusted for the difference in the costs of grazing 
comparable private leased lands and National Forest System lands, or by 
reference to prevailing prices in competitive markets for other Federal 
or State leased grazing lands that are the same or substantially similar 
to grazing lands offered or administered by the Forest Service in the 
East with comparability adjustments as appropriate. Comparable grazing 
lease rates shall be adjusted for the difference between the total costs 
of operating on leased grazing lands and the total costs (other than 
grazing fee costs) of operating on National Forest System lands.
    (1) Establishing Base Grazing Value. (i) The Chief of the Forest 
Service, or an authorized officer to whom such authority has been 
delegated, shall determine an estimated base market value of grazing use 
and occupancy on National Forest System lands in the Eastern States for 
the following designated subregions:
    (A) Corn Belt (Illinois, Indiana, Missouri, and Ohio);
    (B) Lake States (Michigan, Minnesota, and Wisconsin);
    (C) Northeast (Maine, New Hampshire, New York, Pennsylvania, and 
Vermont);
    (D) Appalachia (Kentucky, North Carolina, Tennessee, Virginia, and 
West Virginia);
    (E) Southeast/Delta (Alabama, Arkansas, Georgia, Louisiana, 
Mississippi, South Carolina, and Texas); and
    (F) Florida.
    (ii) The Chief or authorized officer shall revise or update 
estimated market values of grazing use and occupancy, as necessary to 
respond to significant changes in the agricultural economy in the East, 
and to ensure that fees represent fair market value.
    (iii) The Chief, or an authorized officer to whom authority has been 
delegated, where sufficient market data exist, may establish the base 
grazing value for grazing allotments using comparable, local lease rates 
for private grazing lands.
    (2) Annual Adjustment of Base Grazing Value. To maintain currency 
with the private grazing lease market, the respective base grazing 
value(s) established for grazing permits under this section shall be 
annually adjusted through a hay price index, by respective subregion. 
The hay price index means the weighted average selling price of ``other 
baled hay,'' computed by the National Agricultural Statistics Service of 
the U.S. Department of Agriculture, by designated State and subregion. 
This index shall be based on 3-year average hay prices and annually 
reflect the percentage change in the cost of alternative livestock feed.
    (3) Computation of Annual Grazing Fee--(i) Annual Fee Basis. The 
annual 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

[[Page 115]]

and fishery habitat, or outdoor recreation values. Maintenance of range 
improvements specified in allotment management planning documents or the 
grazing permit, and other costs incurred by the permittee in the 
ordinary course of permitted livestock grazing, do not qualify for 
grazing fee credits.
    (4) Implementation. The grazing fee formula provided by this section 
shall be used to calculate fees for the 1990 grazing fee year. Where 
implementation would raise fees, the increase shall be phased in over a 
5-year period. Full fair market value will be reached in 5 years, 
beginning in 1990.

[55 FR 2650, Jan. 26, 1990]



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

    (a) General Procedures--(1) Applicability. The rules of this section 
apply to grazing fees for any allotment established or vacated on 
National Forest System lands in the Eastern or Southern Regions, as of 
February 26, 1990 as well as to grazing fees for existing allotments for 
such lands that have already been established under competitive 
procedures as of the date of this rule. Permits offered for competitive 
bidding in the East are subject to the rules governing grazing permit 
administration in subpart A of this part. The rules of this section do 
not apply to negotiated livestock use permits or permits with on-and-off 
grazing provisions as authorized in subpart A of this part. Holders of 
term permits have first priority for receipt of a new term grazing 
permit in accordance with subpart A of this part. These rules also do 
not apply to grazing fees on National Forest System lands in Oklahoma or 
National Grasslands in Texas.
    (2) Allowable Bidders. Bids for grazing permits shall be accepted 
from individuals, partnerships, grazing associations (formed after 
February 26, 1990), joint ventures, corporations, and organizations.
    (b) Establishment of Minimum Bid Price. Authorized officers shall 
establish a minimum bid price for each available allotment as described 
in Sec. 222.53 of this subpart.
    (c) Prospectus. (1) At such time as allotments are vacated, as new 
allotments are established, or as existing competitively bid permits 
expire, the authorized officer shall prepare and advertise a prospectus 
for those allotments on which grazing will be permitted.
    (2) The prospectus shall include the terms and conditions of 
occupancy and use under the grazing permit to be issued, as well as 
document existing improvements and their condition. The prospectus shall 
also disclose the following:
    (i) Estimated market value of the forage per head month of grazing 
use;
    (ii) The minimum bid price the agency will accept;
    (iii) Any required range improvements; and
    (iv) The minimum qualifications that applicants must meet to be 
eligible for a permit.
    (3) Copies of the applicable grazing permit, allotment management 
planning documents and allotment maintenance requirements, and the 
latest annual permittee instructions shall be made available to all 
prospective bidders upon request.
    (d) Submission of bid. Each applicant shall submit an application 
for the grazing permit, along with a sealed bid 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

[[Page 116]]

allotment under bid, who has a satisfactory record of performance under 
that permit, and who is not the higher bidder for the future grazing 
privileges in the specified allotment shall be offered the opportunity 
to match the high bid and thereby retain the permit. Should there be 
more than one existing permittee in the allotment under bid, each shall 
be offered the option of meeting the high bid; if only one current 
permittee opts to meet the high bid, the remaining allowable grazing 
use, if any, shall be awarded to the initial high bidder.
    (2) Identical Bids. In cases of identical bids, the selection of the 
successful applicant shall be made through a drawing.
    (g) Computation of Successful Bidder's Annual Fee--(1) Annual Fee 
Basis. The highest bid received shall establish the base grazing value 
in the initial year of the grazing permit for each allotment offered. 
The annual grazing fee shall equal the base grazing value, adjusted by 
the current period's hay price index for the relevant subregion as 
described in Sec. 222.53(c)(1), and (c)(3), less the value of any 
agency required range improvements. This hay price index shall be based 
on 3-year average hay prices and annually reflect the percent change in 
the cost of alternative livestock feed.
    (2) Grazing Fee Credits for Range Improvements. Any requirements for 
permittee construction or development of range improvements shall be 
identified through an agreement and incorporated into the grazing 
permit, with credits for such improvements to be allowed toward the 
annual grazing fee. Fee credits shall be allowed only for range 
improvements which the Forest Service requires an individual permittee 
to construct or develop on a specific allotment to meet the management 
direction and prescriptions in the relevant forest land and resource 
management plan and allotment management plan. These improvements must 
involve costs which the permittee would not ordinarily incur under the 
grazing permit, must be of tangible public benefit, and must enhance 
management of vegetation for resource protection, soil productivity, 
riparian, watershed, and wetland values, wildlife and fishery habitat, 
or outdoor recreation values. Maintenance of range improvements 
specified in allotment management planning documents or the grazing 
permit, and other costs incurred by the permittee in the ordinary course 
of permitted livestock grazing, do not qualify for grazing fee credits.
    (h) No Bids Received. If qualified sealed bids are not received, the 
authorized officer reserves the right to conduct an oral auction using 
the minimum bid price established under paragraph (b) of this section or 
to establish grazing fees through noncompetitive grazing fee procedures 
specified in Sec. 222.53 of this subpart.

[55 FR 2651, Jan. 26, 1990]



       Subpart D_Management of Wild Free-Roaming Horses and Burros

    Authority: 7 U.S.C. 1011; 16 U.S.C. 551, 1331-1340; 43 U.S.C. 1901 
note.

    Source: 45 FR 24135, Apr. 9, 1980, redesignated at 78 FR 33723, June 
5, 2013, unless otherwise noted.



Sec. 222.60  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

[[Page 117]]

been removed by authorized personnel pursuant to applicable law or which 
must be removed from an area in order to preserve and maintain a 
thriving natural ecological balance in coordination with other resources 
and activities.
    (4) Herd means one or more stallions and their mares, or jacks and 
their jennies.
    (5) Humane treatment means kind and merciful treatment, without 
causing unnecessary stress or suffering to the animal.
    (6) Inhumane treatment means causing physical stress to an animal 
through any harmful action or omission that is not compatible with 
standard animal husbandry practices; causing or allowing an animal to 
suffer from a lack of necessary food, water, or shelter; using any 
equipment, apparatus, or technique during transportation, domestication, 
or handling that causes undue injury to an animal; or failing to treat 
or care for a sick or injured animal.
    (7) Lame means a wild free-roaming horse or burro with 
malfunctioning muscles, ligaments or limbs that impair freedom of 
movement.
    (8) Malicious harassment means any intentional act demonstrating 
deliberate disregard for the well-being of wild free-roaming horses and 
burros and which creates a likelihood of injury or is detrimental to 
normal behavior pattern of wild free-roaming horses or burros including 
feeding, watering, resting, and breeding. Such acts include, but are not 
limited to, unauthorized chasing, pursuing, herding, roping, or 
attempting to gather wild free-roaming horses or burros. It does not 
apply to activities conducted by or on behalf of the Forest Service or 
the Bureau of Land Management in implementation or performance of duties 
and responsibilities under the Act.
    (9) National Advisory Board means the Advisory Board as established 
jointly by the Secretary of Agriculture and the Secretary of the 
Interior under the provisions of the Act.
    (10) National Forest System includes the National Forests, National 
Grasslands, and other Federal lands for which the Forest Service has 
administrative jurisdiction.
    (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. 222.61  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

[[Page 118]]

their population and accompanying need for forage and habitat in 
correlation with uses recognized under the Multiple-Use Sustained Yield 
Act of 1960 (70 Stat. 215; 16 U.S.C. 528-531);
    (2) Provide direct administration for the welfare of wild free-
roaming horses and burros that are located on the National Forest System 
by use of the Forest Service organization rather than by the granting of 
leases and permits for maintenance of these animals to individuals and 
organizations;
    (3) Establish wild horse and burro territories in accordance with 
the Act and continue recognition of such territories where it is 
determined that horses and/or burros will be recognized as part of the 
natural system, and designate areas within these territories as a 
specific wild horse and burro range in those situations where he 
determines such designation as especially fitting to meet the purposes 
of the Act and the Multiple Use Sustained-Yield Act, after consultation 
with the appropriate State agencies where such range is proposed and 
with the National Advisory Board;
    (4) Analyze each wild horse or burro territory and, based on the 
analysis, develop and implement a management plan, which analysis and 
plans will be updated, whenever needed, as determined by conditions on 
each territory;
    (5) Maintain a current inventory of wild free-roaming horses and 
burros on each territory to determine whether and where excess animals 
exists;
    (6) Based on paragraphs (a) (4) and (5) of this section, determine 
appropriate management levels, whether action should be taken to remove 
excess animals and what actions are appropriate to achieve the removal 
or destruction of excess animals; and
    (7) In making determinations cited in this section, the authorized 
officer shall consult with the U.S. Fish and Wildlife Service, wildlife 
agencies in the State, individuals and organizations independent of 
Federal or State Government recommended by the National Academy of 
Sciences, and any other individual or organizations determined to have 
scientific expertise or special knowledge of wild horse and burro 
protection, wildlife management and animal husbandry as related to range 
management.



Sec. 222.62  Ownership claims.

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

[[Page 119]]



Sec. 222.63  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. 222.64  Use of helicopters, fixed-wing aircraft and motor vehicles.

    The Chief, Forest Service, is authorized to use helicopters, fixed-
wing aircraft, and motor vehicles in a manner that will ensure humane 
treatment of wild free-roaming horses and burros as provided by the 
following paragraphs:
    (a) Prior to using helicopters in capture operations and/or using 
motor vehicles for the purpose of transporting captured animals, a 
public meeting will be held in the proximity of the territory where the 
capture operation is proposed.
    (b) Helicopters may be used in all phases of the administration of 
the Act including, but not limited to, inventory, observation, 
surveillance, and capture operations. In capture operations, helicopters 
may be used to locate the animals involved to assist ground crews in 
moving the animals and for related purposes, such as, to transport 
personnel and equipment. The condition of the animals shall be 
continuously observed by the authorized officer and, should signs of 
harmful stress be noted, the source of stress shall be removed so as to 
allow recovery. Helicopters may be used in round-ups or other capture 
operations subject to the following procedures.
    (1) Helicopters shall be used in such a manner that bands or herds 
will tend to remain together.
    (2) Horses or burros will not be moved at a rate which exceeds 
limitations set by the authorized officer who shall consider terrain, 
weather, distance to be traveled, and condition of the animals.
    (3) Helicopters shall be used to observe the presence of dangerous 
areas and may be used to move animals away from hazards during capture 
operations.
    (4) During capture operations, animals shall be moved in such a way 
as to prevent harmful stress or injury.
    (5) The authorized officer shall supervise all helicopter uses as 
follows:
    (i) Have means to communicate with the pilot and be able to direct 
the use of the helicopter; and
    (ii) Be able to observe effects of the use of the helicopters on the 
well-being of the animals.
    (c) Fixed-wing aircraft may be used for inventory, observation, and 
surveillance purposes necessary in administering the Act. Such use shall 
be consistent with the Act of September 8, 1959, as amended (18 U.S.C. 
41 et seq.). Fixed-wing aircraft shall not be used in connection with 
capture operations except as support vehicles.
    (d) Motor vehicles may be used in the administration of the Act 
except that such vehicles shall not be used for driving or chasing wild 
horses or burros in capture operations. Motor vehicles may also be used 
for the purpose of transporting captured animals subject to the 
following humane procedures.
    (1) Such transportation shall comply with appropriate State and 
Federal laws and regulations applicable to humane transportation of 
horses and burros.
    (2) Vehicles shall be inspected by an authorized officer prior to 
use to ensure vehicles are in good repair and of adequate rate capacity.
    (3) Vehicles shall be carefully operated to ensure that captured 
animals are transported without undue risk or injury.
    (4) Where necessary and practical, animals shall be sorted as to 
age, temperament, sex, size, and condition so as to limit, to the extent 
possible, injury due to fighting and trampling.
    (5) The authorizing officer shall consider the condition of the 
animals, weather conditions, type of vehicle, and distance to be 
traveled when planning for transportation of captured animals.
    (6) Unless otherwise approved by the authorized officer, the 
transportation

[[Page 120]]

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. 222.65  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. 222.66  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. 222.67  Maintenance of wild free-roaming horses and burros on 
privately-owned lands.

    Owners of land who wish to maintain wild free-roaming horses and 
burros which have strayed onto their lands from the National Forest 
System may do so by notifying the nearest office of the Forest Service 
in a timely fashion and providing such information on a continuing basis 
as the Chief, Forest Service, may require. Such owners shall protect the 
wild free-roaming horses and burros on their lands. They may not, in so 
maintaining these animals, impede their return to National Forest System 
lands unless authorized by agreement with the Forest Service.



Sec. 222.68  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. 222.69  Relocation and disposal of animals.

    (a) The Chief, Forest Service, shall, when he determines over-
population of wild horses and burros exists and removal is required, 
take immediate necessary action to remove excess animals from that 
particular territory. Such action shall be taken until all excess 
animals have been removed so as to restore a thriving natural ecological 
balance to the range, and protect the range from deterioration 
associated with over-population.
    (b) No person except an authorized Forest Service officer or his 
agent shall destroy, remove, or relocate any wild free-roaming horse or 
burro located on the National Forest System.
    (c) Wild horses and burros shall be relocated or removed in the 
following order of priority:
    (1) In the most humane manner possible, sick, lame, or old animals 
shall be destroyed;
    (2) Relocate animals to other National Forest System lands which 
were identified as 1971 wild horse or burro territory, providing 
suitable habitat exists and relocation of animals will not jeopardize 
vegetation condition;
    (3) Relocate animals to other federally-owned lands which were 
identified as 1971 wild horse or burro occupied lands, providing 
suitable habitat exists and relocation of animals will not jeopardize 
vegetation condition and animals are requested by the appropriate land 
manager having jurisdiction;
    (4) Place animals under private maintenance and care agreements 
where there is an adoption demand by qualified individuals, groups, or 
Government agency, and for which there is assurance of humane treatment 
and care, provided not more than four animals are placed under private 
maintenance and care agreements per year to any individual, 
organization, or government agency unless there is a determination 
expressed otherwise in writing, by an authorized Forest Service Officer; 
and

[[Page 121]]

    (5) Excess animals, for which an adoption demand by qualified 
applicants does not exist, shall be destroyed in the most humane manner 
possible, and if several methods are equally humane, select the most 
cost efficient.
    (d) Where excess animals have been placed under private maintenance 
and care agreements after December 15, 1971, as provided for in 
paragraph (c)(4) of this section, and animals have been provided humane 
conditions, treatment, and care, for a period of one year, the Chief, 
Forest Service, may grant title to not more than four animals per year 
to each individual, organization, or government agency.
    (e) The applicants must make written application for title and/or 
adoption, must be of legal age in the State in which they reside, and 
must pay fees for adoption and transportation as follows:
    (1) The application must be accompanied by a nonrefundable advance 
payment of $25 by guaranteed remittance. If custody of a wild, free-
roaming horse or burro is granted by the authorized Forest Service 
officer, the advance payment shall be applied against the adoption fee 
required to be paid at the time the maintenance and care agreement Sec. 
222.29(c)(4) is executed.
    (2) The Forest Service shall charge an adoption fee of $125 for each 
horse and $75 for each burro, except that there shall be no adoption fee 
for an unweaned offspring under 6 months of age accompanying its mother.
    (3) Any transportation costs incurred for the transportation of the 
animal(s) to the point of pickup must be paid before an approved 
individual, group, or government agency takes custody of the animal(s).
    (f) Humane conditions, treatment, and care must have been provided 
for no less that one year preceding the filing of the application for 
title. The conveyance of title shall include a written statement by an 
authorized officer attesting that the animal is in good condition.

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



Sec. 222.70  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. 222.71  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. 222.72  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. 222.73  Management coordination.

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

[[Page 122]]



Sec. 222.74  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. 222.75  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. 222.76  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.



PART 223_SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER, SPECIAL 
FOREST PRODUCTS, AND FOREST BOTANICAL PRODUCTS--Table of Contents



                      Subpart A_General Provisions

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

                     Subpart B_Timber Sale Contracts

                   Contract Conditions and Provisions

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

                          Appraisal and Pricing

223.60 Determining fair market value.
223.61 Establishing minimum stumpage rates.

[[Page 123]]

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

                         Advertisement and Bids

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

                           Award of Contracts

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

                         Contract Administration

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

         Subpart C_Suspension and Debarment of Timber Purchasers

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

          Subpart D_Timber Export and Substitution Restrictions

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

Subpart E [Reserved]

 Subpart F_The Forest Resources Conservation and Shortage Relief Act of 
                              1990 Program

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

                    Subpart G_Special Forest Products

223.215 Applicability.
223.216 Special Forest Products definitions.
223.217 Authority to dispose of special forest products.
223.218 Consistency with plans, environmental standards, and other 
          management requirements.

[[Page 124]]

223.219 Sustainable harvest of special forest products.
223.220 Quantity determination.

                          Appraisal and Pricing

223.221 Establishing minimum rates.
223.222 Appraisal.

              Contract and Permit Conditions and Provisions

223.223 Advance payment.
223.224 Performance bonds and security.
223.225 Term.
223.226 Term adjustment for force majeure delay.

                         Advertisement and Bids

223.227 Sale advertisement.
223.228 Contents of advertisement.
223.229 Contents of prospectus.
223.230 Bid restriction on resale of incomplete contracts, permits, or 
          other instruments.
223.231 Bidding methods.
223.232 Disclosure of relation to other bidders.

      Award of Contracts, Permits, or Other Authorizing Instruments

223.233 Award to highest bidder.
223.234 Determination of responsibility.
223.235 Unilateral delay, suspension, or modification of contracts, 
          permits, or other instruments authorizing the sale of special 
          forest products.
223.236 Unilateral termination.
223.237 Request for delay, suspension, modification, or termination.
223.238 Free use authorization to U.S. Army and Navy.
223.239 Free use by individuals.
223.240 Tribes and treaty and other reserved rights.
223.241 Disposal of seized special forest products.
223.242 Supplemental guidance, memorandums of agreement, and memorandums 
          of understanding.

                   Subpart H_Forest Botanical Products

223.275 Establishment of a pilot program.
223.276 Applicability.
223.277 Forest botanical products definition.
223.278 Sale of forest botanical products and collection of fees.
223.279 Personal use.
223.280 Waiver of fees and/or fair market value.
223.281 Monitoring and revising sustainable harvest levels.
223.282 Deposit and expenditure of collected fees.

    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.

    Effective Date Note: At 73 FR 79386, Dec. 29, 2008, the authority 
citation to part 223 was revised, effective Jan. 28, 2009. At 74 FR 
5107, Jan. 29, 2009, the amendment was delayed until Mar. 30, 2009. At 
74 FR 14049, Mar. 30, 2009, the amendment was further delayed until May 
29, 2009. At 74 FR 26091, June 1, 2009, the amendment was delayed 
indefinitely. For the convenience of the user, the revised text is set 
forth as follows:
    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, 113 Stat. 1501a, 16 U.S.C. 
528 note; unless otherwise noted.

    Source: 42 FR 28252, June 2, 1977, unless otherwise noted. 
Redesignated at 49 FR 2760, 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.

[[Page 125]]

    (e) For disposal when removal is desirable to protect or enhance 
multiple-use values in a particular area.



Sec. 223.3  Sale of seized material.

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



Sec. 223.4  Exchange of trees or portions of trees.

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

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



Sec. 223.5  Scope of free use granted to individuals.

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


(Sec. 1, 30 Stat. 35, as amended; 16 U.S.C. 477, 551)

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



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

    Supervisors may designate portions or all of a National Forest as 
free-use areas where such action is compatible with land management 
plans and shall give public notice of their action. Within such free-use 
areas, any dead timber or any green timber previously marked or 
designated by forest officers may be cut and removed for personal use 
for domestic purposes. Cutting and removal of timber in free-use areas 
shall be in accordance with such rules as may be prescribed by the 
district ranger to prevent fires, minimize damage to uncut trees and 
other resources, and to avoid confusion among users.

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



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

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



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

    (a) Forest officers whom the supervisor may designate are authorized 
to grant free use of timber to individuals up to $200 in value in any 
one fiscal year. Supervisors may grant permits for material not 
exceeding $5,000 in value. Regional Foresters may approve permits for 
larger amounts, and in times of emergency may delegate authority to 
supervisors for not over $10,000 in value. Prior review by the Chief of 
the Forest Service will be given if the amount involved exceeds $10,000 
in value.
    (b) Regional Foresters may authorize supervisors to permit the 
removal of

[[Page 126]]

specific classes of material without scaling or measurement.

[42 FR 28252, June 2, 1977. Redesignated at 49 FR 2760, Jan. 23, 1984, 
as amended at 71 FR 525, Jan. 4, 2006]



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

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

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



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

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

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



Sec. 223.11  Free use to other Federal agencies.

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

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



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

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

[[Page 127]]

    (c) For timber which will be cut by the permittee which the Forest 
Service retains for sale in log or other product form.

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



Sec. 223.13  Compliance.

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

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



Sec. 223.14  Where timber may be cut.

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



                     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

[[Page 128]]

other National Forest resources, uses and improvements.



Sec. 223.31  Duration of contracts.

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



Sec. 223.32  Timber sale operating plan.

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



Sec. 223.33  Redetermination of stumpage rates and deposits.

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



Sec. 223.34  Advance payment.

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

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



Sec. 223.35  Performance bond.

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



Sec. 223.36  Volume determination.

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

[[Page 129]]

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 costs of $50,000 or more shall include 
a provision to ensure that if the purchaser elects government road 
construction, the purchaser shall pay, in addition to the price paid for 
the timber or other forest products, an amount equal to the estimated 
cost of the roads.

[71 FR 11510, Mar. 8, 2006]



Sec. 223.42  Transfer of effective purchaser credits.

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

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

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



Sec. 223.43  Limitation on amounts of transferred purchaser credit.

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

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

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

[[Page 130]]



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

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

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



Sec. 223.46  Adjustment of contract termination date.

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



Sec. 223.47  Date of completion of permanent road construction.

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



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

    (a) Contracts for the sale of unprocessed timber from National 
Forest System lands located west of the 100th meridian in the contiguous 
48 States and Alaska, awarded before August 20, 1990, shall include 
provisions implementing the 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:

[[Page 131]]

    (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  Downpayments.

    (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) Bid premium is the amount in excess of the advertised value that 
a purchaser bids for timber offered.
    (3) 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.
    (4) Affiliate. Concerns or individuals are affiliates if directly or 
indirectly, either one controls or has the power to control the other, 
or a third party controls or has the power to control both. In 
determining whether or not affiliation exists, the Forest Service shall 
consider all appropriate factors, including, but not limited to, common 
ownership, common management, and contractual relationships.
    (b) Timber sale contracts shall include provisions that require 
purchasers to make a downpayment in cash at the time a timber sale 
contract is executed, except that a downpayment is not required for 
stewardship contracts unless the contracting officer determines that a 
downpayment is needed to ensure the government's financial security.
    (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. The amount of the downpayment 
shall be redetermined when contract rates for timber are redetermined 
under the terms of the contract for environmental modification; 
catastrophic damage; market change; or an emergency rate 
redetermination. For the purpose of recalculating the minimum 
downpayment, total advertised value shall be replaced with total 
redetermined value.
    (d) A purchaser cannot apply the amount deposited as a downpayment 
to cover other obligations due on that sale until:
    (1) On scaled sales, stumpage value representing 25 percent of the 
total bid value of the sale has been charged and paid for, or the 
estimated value of unscaled timber is equal to or less than the amount 
of the downpayment; or
    (2) On tree measurement sales, 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, or the 
estimated value of timber remaining to be cut, removed and paid for as 
shown on the timber sale statement of account is equal to or less than 
the amount of the downpayment. On lump sum sales, the downpayment amount 
may be applied to payment for release of the single payment unit.

[[Page 132]]

    (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 and is notified 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) of this 
section and the limitations of paragraph (h) of this section 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. The amount of the downpayment shall be 
redetermined in accordance with this paragraph when contract rates for 
timber are redetermined under the terms of the contract for 
environmental modification; catastrophic damage; market change; or an 
emergency rate redetermination. For the purpose of redetermining the 
downpayment, total advertised value shall be replaced with total 
redetermined value.
    (h) A purchaser subject to the additional downpayment requirements 
of paragraph (g) of this section cannot apply the amount deposited as a 
downpayment to other uses until:
    (1) On scaled sales, the estimated value of the unscaled timber is 
equal to or less than the amount of the downpayment; or
    (2) On tree measurement sales, the estimated value remaining to be 
cut and removed as shown on the timber sale statement of account is 
equal to or less than the amount of the downpayment.
    (i) For the purpose of releasing funds deposited as downpayment by a 
purchaser subject to paragraph (f) of this section, the Forest Service 
shall compute the estimated value of timber as follows:
    (1) On scaled sales, the estimated value of the unscaled timber is 
the sum of the products obtained by multiplying the current contract 
rate for each species by the difference between the advertised volume 
and the volume that has been scaled of that species.
    (2) On tree measurement sales, the estimated value of the timber 
outstanding (i.e., 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 the 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 and/or preclude 
temporary reduction of the downpayment under paragraphs (k)(2) and 
(k)(3) of this section for future contracts subject to such criteria as 
the Chief may adopt after giving the public notice and opportunity to 
comment.

[[Page 133]]

    (k) The Forest Service may temporarily reduce the downpayment when a 
purchaser's scheduled operations are delayed, interrupted, or extended 
for 30 or more consecutive days for any of the following reasons:
    (1) Forest Service requests or orders purchaser to delay or 
interrupt operations for reasons other than breach;
    (2) A contract term addition pursuant to purchaser shifting 
operations to a sale designated by the Forest Service as in urgent need 
of harvesting; or
    (3) An extension of the contract term authorized upon a 
determination of substantial overriding public interest, including a 
market-related contract term addition, or an urgent removal contract 
term extension under 36 CFR 223.53.
    (l) When purchaser is not cutting or removing timber under contract 
during a qualifying period of delay, interruption, or extension listed 
in paragraph (k) of this section, the downpayment may be reduced to 
$1000 or 2 percent of the downpayment amount stated in the contract, 
whichever is greater. The purchaser must restore the downpayment to the 
full amount stated in the contract within 15 days from receipt of the 
bill for collection and written notice from the contracting officer that 
the basis for temporarily reducing the downpayment no longer exists. 
Purchaser shall not cut or remove timber on a contract where the 
downpayment has been temporarily reduced until the downpayment amount 
stated in the contract is fully restored.

[74 FR 40743, Aug. 13, 2009]



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.
    (3) Notwithstanding this paragraph (b), periodic payments are not 
required

[[Page 134]]

for stewardship contracts unless the contracting officer determines that 
periodic payments are needed to ensure the Government's financial 
security.
    (c) Each timber sale contract shall require the initial periodic 
payment to equal 35 percent of the total contract value or 50 percent of 
the bid premium, whichever is greater. The amount of this periodic 
payment will be reduced if the payment would result in the purchaser's 
credit balance for timber charges exceeding the current contract value.
    (d) Where an additional periodic payment is required by the timber 
sale contract, this payment will equal 75 percent of the total contract 
value. The amount of this periodic payment will be reduced if the 
payment would result in the purchaser's credit balance for timber 
charges exceeding the current contract value.
    (e) Dates for determining future periodic payments shall be adjusted 
as follows:
    (1) When contract term adjustments are granted under Sec. 223.46,
    (2) When market-related contract term additions are granted under 
Sec. 223.52,
    (3) When urgent removal extensions are granted under Sec. 223.53, 
or
    (4) When extensions in the substantial overriding public interest 
are granted under Sec. 223.115(b). Periodic payment determination dates 
shall not be adjusted when a contract term extension is granted under 
the general authority of Sec. 223.115(a).
    (f) The amount of any periodic payment(s) not yet reached shall be 
revised when rates are redetermined under the contract. The revised 
periodic payment amounts shall be based on a recalculated total contract 
value using the same procedures described in (c) and (d) of this 
section. The recalculated total contract value is the current contract 
value following the rate redetermination plus:
    (1) The total value of timber scaled prior to establishing 
redetermined rates in a scaled sale; or
    (2) The total value of timber shown on the timber sale statement of 
account as having been cut, removed and paid for.

[56 FR 36104, July 31, 1991, as amended at 56 FR 55822, Oct. 30, 1991; 
67 FR 70169, Nov. 21, 2002; 74 FR 40744, Aug. 13, 2009]



Sec. 223.51  Bid monitoring.

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

[50 FR 41500, Oct. 11, 1985]



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. 
If none of the indices in paragraph (b) of this section represent more 
than one-half of the advertised volume, the index specified shall 
represent the species product combination representing the highest 
percentage of volume for which there is an index. When the Forest 
Supervisor determines that the species and potential product 
characteristics are such that

[[Page 135]]

more than one index could be used, the prospectus will state that the 
Contracting Officer may, upon the purchaser's written request, select an 
alternative index from paragraph (b) of this section, and may modify the 
contract by mutual agreement, at time of contract execution, to include 
an alternative index that the Contracting Officer has determined 
represents the highest percentage of products the purchaser intends to 
produce or have produced from the sale. Purchasers seeking a change of 
index at time of award must substantiate the need for an alternative 
index by providing the Contracting Officer with a written request that 
includes a list of products by volume the purchaser intends to produce 
or expects will be produced from the timber on that sale. In the event a 
mutual agreement to modify a contract to include an alternative index is 
not reached at time of contract execution, the index specified in the 
sample contract shall apply.
    (3) A market-related contract term addition provision shall not be 
included in contracts where the primary management objective requires 
prompt removal of the timber, such as, timber is subject to rapid 
deterioration, timber is in a wildland-urban interface area, or hazard 
trees adjacent to developed sites.
    (b) Determination of drastic wood product price reductions. (1) The 
Forest Service shall monitor and use Producer Price Indices, as prepared 
by the Department of Labor, Bureau of Labor Statistics (BLS), adjusted 
to a constant dollar base, to determine if market-related contract term 
additions are warranted.
    (i) The Forest Service shall monitor and use only the following 
indices:

------------------------------------------------------------------------
      BLS producer price index            Index  series       Index code
------------------------------------------------------------------------
Hardwood Lumber.....................  Commodity............         0812
Softwood Lumber.....................  Commodity............         0811
Wood Chips..........................  Industry.............      3211135
------------------------------------------------------------------------

    (ii) Preliminary index values will be revised when final index 
values become available, however, determination of a qualifying quarter 
will not be revised when final index values become available.
    (2) For PPI index codes 0811 and 0812, the Chief of the Forest 
Service shall determine that a drastic reduction in wood prices has 
occurred when, for any 2 or more consecutive qualifying quarters, the 
applicable adjusted price index is less than 88.5 percent of the average 
of such index for the 4 highest of the 8 calendar quarters immediately 
prior to the qualifying quarter. A qualifying quarter is a quarter, 
following the contract award date, where the applicable adjusted index 
is more than 11.5 percent below the average of such index for the 4 
highest of the previous 8 calendar quarters. For PPI index code 3211135, 
the Chief of the Forest Service shall determine that a drastic reduction 
in wood prices has occurred when, for any 2 or more consecutive 
qualifying quarters, the adjusted price index is less than 85 percent of 
the average of such index for the 4 highest of the 8 calendar quarters 
immediately prior to the qualifying quarter. A qualifying quarter is a 
quarter, following the contract award date, where the adjusted index is 
more than 15 percent below the average of such index for the 4 highest 
of the previous eight calendar quarters. Qualifying quarter 
determinations will be made using the Producer Price Indices for the 
months of March, June, September, and December.
    (3) A determination, made pursuant to paragraph (b)(2) of this 
section, that a drastic reduction in wood product prices has occurred, 
shall constitute a finding that the substantial overriding public 
interest justifies the contract term addition.
    (c) Granting market-related contract term additions. When the Chief 
of the Forest Service determines, pursuant to this section, that a 
drastic reduction in wood product prices has occurred, the Forest 
Service is to notify affected timber sale purchasers. For any contract 
which has been awarded and has not been terminated, the Forest Service, 
upon a purchaser's written request, will add 1 year to the contract's 
terms, except as provided in paragraphs (c)(1) through (4) of this 
section. This 1-year addition includes time outside of the normal 
operating season.

[[Page 136]]

    (1) Additional contract time may not be granted for those portions 
of the contract:
    (i) With a required completion date;
    (ii) Where the Forest Service determines that the timber is in need 
of urgent removal;
    (iii) Where timber deterioration or resource damage may result from 
delay; or
    (iv) Where included timber is designated by diameter and delay may 
change the treatment as a result of trees growing into or out of the 
specified diameter range(s).
    (2) For each additional consecutive quarter in which a contract 
qualifies for 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, except that no 
single 3-month addition shall extend the term of a contract by more than 
1 year.
    (3) No more than 3 years shall be added to a contract's term by 
market-related contract term addition unless the following conditions 
are met:
    (i) The sale was awarded after December 31, 2006;
    (ii) A drastic reduction in wood product prices occurred in at least 
ten of twelve consecutive quarters during the contract term, but not 
including the quarter in which the contract was awarded; and
    (4) For each qualifying quarter meeting the criteria in paragraph 
(c)(3)(ii) of this section, the Forest Service will, upon the 
purchaser's written request, add an additional 3 months during the 
normal operating season to the contract, except no single 3-month 
addition shall extend the term of a contract by more than 1 year.
    (5) In no event shall a revised contract term exceed 10 years as a 
result of market-related contract term addition.
    (d) Recalculation of periodic payments. Where a contract is 
lengthened as a result of market conditions, any subsequent periodic 
payment dates shall be delayed 1 month for each month added to the 
contract's term.

[63 FR 24114, May 1, 1998, as amended at 70 FR 37269, June 29, 2005; 71 
FR 3411, Jan. 23, 2006; 73 FR 65551, Nov. 4, 2008]



Sec. 223.53  Urgent removal contract extensions.

    (a) Finding. There is substantial, overriding public interest in 
extending National Forest System timber sale contracts for undamaged 
(green) timber not requiring expeditious removal in order to facilitate 
the rapid harvest of catastrophically damaged timber requiring 
expeditious removal on private or other non-National Forest System 
lands. Such an extension may be granted when a specific catastrophic 
event beyond the control of the landowner occurs on non-National Forest 
System lands that poses a threat to general forest health, public 
safety, and property. Catastrophic events include, but are not limited 
to, severe wildfire, wind, floods, insects and disease infestation, and 
drought.
    (b) Regional Forester determination. If the Regional Forester 
determines that adequate cause for urgent removal extensions exists, 
Contracting Officers may extend National Forest System timber sale 
contracts, up to a maximum of 1 year, for the estimated amount of time 
required to harvest and process the damaged timber on non-National 
Forest System lands. Contracting Officers may grant urgent removal 
extensions only when the Regional Forester verifies in writing that:
    (1) A specific catastrophe occurred for which urgent removal 
extensions should be granted;
    (2) The manufacturing facilities or logging equipment capacity 
available to purchasers are insufficient to provide for both the rapid 
harvest of damaged non-National Forest System timber in need of 
expeditious removal and the continued harvest of undamaged (green) 
timber under contract with the Forest Service; and
    (3) Failure to harvest the damaged non-National Forest System timber 
promptly could result in the following:
    (i) Pose a threat to public safety,
    (ii) Create a threat of an insect or disease epidemic to National 
Forest System or other lands or resources, or
    (iii) Significant private or other public resource loss.
    (c) Purchaser request. To obtain an urgent removal extension on a 
National Forest System timber sale contract, a purchaser must make a 
written request

[[Page 137]]

to the Contracting Officer, which includes the following:
    (1) An explanation of why the harvest of undamaged (green) National 
Forest System timber within the term of the existing National Forest 
System contract(s) will prevent or otherwise impede the removal of 
damaged non-National Forest System timber in need of expeditious 
removal; and
    (2) Documentation that the manufacturing facilities or logging 
equipment capacity available to a purchaser would be insufficient to 
provide for both the rapid salvage of damaged non-National Forest System 
timber in need of expeditious removal and continued harvest of undamaged 
(green) National Forest System timber under contract with the Forest 
Service.
    (d) Contracting Officer determination. To grant an urgent removal 
extension, the timber sale Contracting Officer must verify the 
following:
    (1) That it is likely that the undamaged (green) timber from 
National Forest System land would be delivered to the same manufacturing 
facilities as are needed to process the damaged non-National Forest 
System timber or the National Forest System timber sale contract would 
require the use of the same logging equipment as is needed to remove the 
damaged non-National Forest System timber from the area affected by the 
catastrophe;
    (2) That extension of the National Forest System contract will not 
be injurious to the United States and will protect, to the extent 
possible, the health of the National Forest System lands, including:
    (i) That urgent removal extension does not adversely affect other 
resource management objectives to be implemented by the National Forest 
System timber sale being extended; and
    (ii) That the National Forest System timber sale contract to be 
extended is not a sale containing damaged, dead, or dying timber subject 
to rapid deterioration.
    (3) That the purchaser has not been granted a previous urgent 
removal extension on the same National Forest System timber sale 
contract based on the current catastrophic event. Subsequent urgent 
removal extensions may be granted if there are subsequent Regional 
Forester determinations on other catastrophic events.
    (4) That the revised National Forest System timber sale contract 
term will not exceed 10 years from the date the National Forest System 
contract was awarded; and
    (5) That the purchaser is not in breach of the National Forest 
System contract, and all work items, payments, and deposits are current.
    (e) Execution of contract extension. An urgent removal extension of 
a National Forest System timber sale contract is executed through a 
mutual agreement contract modification pursuant to Sec. 223.112, which 
must include specific contract provisions. An agreement to modify a 
contract must identify the specific provision(s) of the contract being 
modified and must include the requirement that purchasers make cash 
payment to cover the costs of remarking timber on the sale area or 
reestablishing cutting unit boundaries if the Contracting Officer 
determines such work is necessary.
    (f) Information collection. The information required of a purchaser 
to request an extension of an National Forest System timber sale 
contract, as outlined in paragraph (c) of this section, to facilitate 
expeditious removal of timber from non-National Forest System lands 
constitutes an information collection requirement as defined in 5 CFR 
Part 1320 and has been assigned Office of Management and Budget control 
number 0596-0167.

[67 FR 70169, Nov. 21, 2002, as amended at 69 FR 33, Jan. 2, 2004]

                          Appraisal and Pricing



Sec. 223.60  Determining fair market value.

    The objective of Forest Service timber appraisals is to determine 
fair market value. Fair market value is estimated by such methods as are 
authorized by the Chief, Forest Service, through issuance of agency 
directives (36 CFR 200.4). Valid methods to determine fair market value 
include, but are not limited to, transaction evidence appraisals, 
analytical appraisals, comparison appraisals, and independent estimates 
based on average investments.

[[Page 138]]

Pertinent factors affecting market value also considered include, but 
are not limited to, prices paid and valuations established for 
comparable timber, selling value of products produced, estimated 
operating costs, operating difficulties, and quality of timber. 
Considerations and valuations may recognize and adjust for factors which 
are not normal market influences.

[61 FR 5685, Feb. 14, 1996]



Sec. 223.61  Establishing minimum stumpage rates.

    The Chief, Forest Service, shall establish minimum stumpage rates, 
i.e., ``base rates,'' for species and products on individual National 
Forests, or groups of National Forests. Timber shall be sold for 
appraised value or minimum stumpage rates, whichever is higher. No 
timber may be sold or cut under timber sale contracts for less than 
minimum stumpage rates except to provide for the removal of insect-
infested, diseased, dead or distressed timber or in accordance with 
contract provisions specifically providing for catastrophically-affected 
timber and incidental amounts of material not meeting utilization 
standards of the timber sale contract. For any timber sale offering 
where deposits are to be required for reforestation under the Act of 
June 9, 1930, as amended (46 Stat. 527; 16 U.S.C. 576-576b) which exceed 
the value of the established minimum stumpage rates, the minimum rates 
may be increased by the approving officer as necessary to the amount of 
such required reforestation deposits and a minimum deposit to the 
Treasury. Minimum rates in timber sale contracts will not be set higher 
than established minimum rates for purposes other than assuring adequate 
funds for reforestation.



Sec. 223.62  Timber purchaser road construction credit.

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



Sec. 223.63  Advertised rates.

    Timber shall be advertised for sale at its appraised value. The road 
construction cost used to develop appraised value means the total 
estimated cost of constructing all permanent roads specified in the 
timber sale contract, estimated as if construction is to be accomplished 
by the timber purchaser. The advertised rates shall be not less than 
minimum stumpage rates, except that sales of insect-infested, diseased, 
dead, or distressed timber may be sold at less than minimum rates when 
harvest of such timber is necessary to protect or improve the forest or 
prevent waste of usable wood fiber.

[71 FR 11510, Mar. 8, 2006]



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

    Timber may be appraised and sold at a lump-sum value or at a rate 
per unit of measure which rate may be adjusted during the period of the 
contract and as therein specified in accordance with formulas or other 
equivalent specifications for the following reasons:
    (a) Variations in lumber or other product value indices between the 
price index base specified in the contract and the price index actually 
experienced during the cutting of the timber;
    (b) Variance between advertised rates and rates redetermined by 
appraisal at dates specified in the contract;

[[Page 139]]

    (c) Variance between redetermined rates and rates appropriate for 
changes in costs or selling values subsequent to the rate 
redetermination which reduce conversion value to less than such 
redetermined rates; and
    (d) Substantial loss of value due to physical deterioration of green 
timber or other physical damage to the sale area or access to the 
timber.



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

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

[61 FR 48625, Sept. 16, 1996]



Sec. 223.66  [Reserved]

                         Advertisement and Bids



Sec. 223.80  When advertisement is required.

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



Sec. 223.81  Shorter advertising periods in emergencies.

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

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



Sec. 223.82  Contents of advertisement.

    (a) A timber sale advertisement shall include the following 
information:
    (1) The location and estimated quantities of timber or other forest 
products offered for sale.
    (2) The time and place at which sealed bids will be opened in public 
or at which sealed bids will be opened in public followed by an oral 
auction.
    (3) A provision asserting the agency's right to reject any and all 
bids.
    (4) The place where complete information on the offering may be 
obtained.
    (5) Notice that a prospectus is available to the public and to 
interested potential bidders.
    (b) For each timber sale which includes specified road construction 
with total estimated construction costs of $50,000 or more, the 
advertisement shall also include:
    (1) The total estimated construction cost of the permanent roads.
    (2) A statement extending to small business concerns qualified for 
preferential bidding on timber sales, under the Small Business Act, as 
amended, and the regulations issued thereunder, the option to elect, 
when submitting a bid, to have all permanent roads constructed by the 
Forest Service.
    (3) Notice that the prospectus referred to in paragraph (a)(5) of 
this section contains additional information concerning the options to 
have all permanent roads constructed by the Forest Service.
    (c) When timber or other forest products are offered for 
preferential bidding in accordance with the Small Business Act, as 
amended, the advertisement shall state that the offering is set-aside 
for competitive bidding by small business concerns.

[50 FR 32696, Aug. 14, 1985, as amended at 71 FR 523, Jan. 4, 2006; 71 
FR 11510, Mar. 8, 2006]



Sec. 223.83  Contents of prospectus.

    (a) A timber sale prospectus shall specify, as a minimum:

[[Page 140]]

    (1) The minimum acceptable stumpage or other unit prices and the 
amount or rate of any additional required deposits.
    (2) The amount of bid guarantee which must accompany each bid.
    (3) The amount of cash deposit or down payment to be made promptly 
by the successful bidder.
    (4) The location and area of the sale, including harvest acreage.
    (5) The estimated volumes, quality, size or age class of timber.
    (6) A description of special logging requirements for the sale.
    (7) The status of marking at time of advertisement.
    (8) The method of bidding which will be used.
    (9) The contract form to be used.
    (10) The estimated deposits for reforestation and stand improvement 
work.
    (11) The contract termination date and normal operating period.
    (12) The date and amount of periodic payments which are to be made.
    (13) The discount of payment rates for early harvest, if 
appropriate.
    (14) The amount of performance bond required.
    (15) The road standards for specified roads to be constructed.
    (16) The estimated road construction cost and the estimated public 
works construction cost.
    (17) For deficit sales:
    (i) An estimate of the difference between fair market value and 
advertised value, that is, the amount by which the advertised value 
exceeds the appraised value.
    (ii) The amount of Forest Service funds or materials to be used to 
offset the deficit.
    (18) Status of financial assistance available to small business 
purchasers.
    (19) Notification of preferential award to small business firms and 
certification requirements for set-aside sales.
    (20) Notification of log export and substitution restrictions.
    (21) Notification of Equal Employment Opportunity compliance review 
requirements.
    (22) General or special information concerning the sale which are 
deemed appropriate to furnish sufficient information to prospective 
purchasers to warrant further investigation.
    (b) For each advertisement which extends to small concerns the 
option to have all permanent roads constructed by the Forest Service, 
the prospectus shall also include:
    (1) The road standards applicable to construction of permanent roads 
or a reference to the source of such information.
    (2) The date of final completion for all permanent roads.
    (3) A statement explaining how the Forest Service intends to perform 
road construction by force account or contract, if the high bidder 
elects Forest Service construction.
    (4) The maximum period for which timber sale contract award will be 
delayed while the Forest Service seeks a satisfactory construction bid. 
The period stated shall not exceed 120 days unless the Regional Forester 
approves a longer period.

[50 FR 32696, Aug. 14, 1985, as amended at 71 FR 523, Jan. 4, 2006; 71 
FR 11510, Mar. 8, 2006]



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

    For each sale described in Sec. 223.82(b), the bid form must 
include provision for a small business concern:
    (a) To elect road construction by the Forest Service and where such 
election is made;
    (b) To certify as to small business status, and
    (c) To indicate knowledge--
    (1) Of the road construction completion date,
    (2) That the Forest Service expects to contract for road 
construction with a third party,
    (3) That the timber sale contract will not be awarded unless a 
satisfactory road construction bid is received or, if the Forest Service 
fails to receive such a bid within a maximum period stated in the 
advertisement, the bidder agrees to perform road construction,
    (4) That the Forest Service may extend the maximum award delay time 
by the amount of time needed to confirm the bidder's size status or by 
any time in excess of 40 days from timber sale bid opening needed to 
begin solicitation of construction bids, and

[[Page 141]]

    (5) That if the Forest Service extends the maximum award delay 
period because solicitation of the road contract is delayed, the bidder 
may withdraw his bid without penalty.

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



Sec. 223.85  Noncompetitive sale of timber.

    (a) Forest officers may sell, within their authorization, without 
further advertisement, at not less than appraised value, any timber 
previously advertised for competitive bids but not sold because of lack 
of bids and any timber on uncut areas included in a contract which has 
been terminated by abandonment, cancellation, contract period 
expiration, or otherwise if such timber would have been cut under the 
contract. This authority shall not be utilized if there is evidence of 
competitive interest in the product.
    (b) Extraordinary conditions, as provided for in 16 U.S.C. 472a(d), 
are defined to include the potential harm to natural resources, 
including fish and wildlife, and related circumstances arising as a 
result of the award or release of timber sale contracts pursuant to 
section 2001(k) of Public Law 104-19 (109 Stat. 246). Notwithstanding 
the provisions of paragraph (a) of this section or any other regulation 
in this part, for timber sale contracts that have been or will be 
awarded or released pursuant to section 2001(k) of Public Law 104-19 
(109 Stat. 246), the 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.
    (c) Extraordinary conditions, as provided for in 16 U.S.C. 472a(d), 
includes those conditions under which contracts for the sale or exchange 
of timber or other forest products must be suspended, modified, or 
terminated under the terms of such contracts to prevent environmental 
degradation or resource damage, or as the result of administrative 
appeals, litigation, or court orders. Notwithstanding the provisions of 
paragraph (a) of this section or any other regulation in this part, when 
such extraordinary conditions exist on sales not addressed in paragraph 
(b) of this section, the Secretary of Agriculture may allow forest 
officers to, without advertisement, modify those contracts by 
substituting timber or other forest products from outside the contract 
area specified in the contract for timber or forest products within the 
area specified in the contract. When such extraordinary conditions 
exist, the Forest Service and the purchaser shall make good faith 
efforts to identify replacement timber or forest products of similar 
volume, quality, value, access, and topography. When replacement timber 
or forest products agreeable to both parties is identified, the contract 
will be modified to reflect the changes associated with the 
substitution, including a rate redetermination. Concurrently, both 
parties will sign an agreement waiving any future claims for damages 
associated with the deleted timber or forest products, except those 
specifically provided for under the contract up to the time of the 
modification. If the Forest Service and the purchaser cannot reach 
agreement on satisfactory replacement timber or forest products, or the 
proper value of such material, either party may opt to end the search. 
Replacement timber or forest products must come from the same National 
Forest as the original contract. The term National Forest in this 
paragraph refers to an administrative unit headed by a single Forest 
Supervisor. Only timber or forest products for which a decision 
authorizing its harvest has been made and for which any applicable 
appeals or objection process has been completed may be considered for 
replacement pursuant to this paragraph. The value of replacement timber 
or forest products may not exceed the value of the material it is 
replacing by more than $10,000, as determined by standard Forest Service 
appraisal methods.

[61 FR 14621, Apr. 3, 1996, as amended at 71 FR 34826, June 16, 2006; 72 
FR 59190, Oct. 19, 2007]



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

[[Page 142]]

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,
    (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

[[Page 143]]

determines that less than normal competitive bidding is occurring.
    (d) Sealed bids shall be used for sales within Federal Sustained 
Yield Units, except where the policy statement for the Unit restricts 
purchasers of timber within the Unit from buying National Forest timber 
outside the Unit and the Chief determines that oral bidding will protect 
individual communities within the Unit.
    (e) The Chief, Forest Service, may authorize departures from the 
requirements of paragraphs (c) and (d) of this section when he 
determines that departures are necessary to protect the public interest.
    (f) The Chief, Forest Service, may authorize the testing and 
evaluation of alternative bidding methods for National Forest timber.

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



Sec. 223.89  Relation to other bidders.

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

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

                           Award of Contracts



Sec. 223.100  Award to highest bidder.

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

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



Sec. 223.101  Determination of purchaser responsibility.

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

[[Page 144]]

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 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

[[Page 145]]

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.

    (a) Timber sale contracts may be modified only when the modification 
will apply to unexecuted portions of the contract and will not be 
injurious to the United States. Modifications may be made by the officer 
approving the sale, by his successor, or by his superior, except as 
provided in Sec. 223.110.
    (b) Timber sale contracts awarded after October 1, 1995, that have 
been suspended for more than 90 days, during the normal operating 
season, at no fault of the purchaser, because of administrative appeals 
or litigation, that did not include contract provisions for rate 
redeterminations may be modified at the request of the timber sale 
purchaser to include a rate redetermination for the remaining 
unharvested volume to reflect significant decreases in market value 
during the period of delay. Rates in effect at the time of the 
suspension will be redetermined in accordance with the standard Forest 
Service methods in effect 45 days prior to the rate redetermination.

[42 FR 28252, June 2, 1977. Redesignated at 49 FR 2760-2761, Jan. 23, 
1984, as amended at 69 FR 18814, Apr. 9, 2004]



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

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

[61 FR 64816, Dec. 9, 1996]



Sec. 223.114  Acquisition by third party.

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

[[Page 146]]

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 by such means as may be 
deemed effective in informing the public of the proposed action, 
including in any event,

[[Page 147]]

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

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



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

    (a) Decisions subject to appeal. The rules of this section govern 
appeal of recomputation decisions related to structural, special, or 
market changes or the scheduled 5-year recomputations of the small 
business share of National

[[Page 148]]

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

[[Page 149]]

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

[[Page 150]]

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

[64 FR 411, Jan. 5, 1999]



         Subpart C_Suspension and Debarment of Timber Purchasers

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



Sec. 223.130  Scope.

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

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



Sec. 223.131  Applicability.

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

[60 FR 46921, Sept. 8, 1995]



Sec. 223.132  Policy.

    (a) The Forest Service shall solicit and consider timber sale bids 
from and award contracts only to responsible business concerns and 
individuals. Debarment and suspension by the Forest Service are 
discretionary actions that, taken in accordance with these regulations, 
are appropriate means to effectuate this policy.
    (b) Debarment and suspension shall be imposed only for the causes 
and in

[[Page 151]]

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



Sec. 223.133  Definitions.

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

[[Page 152]]

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

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



Sec. 223.134  List of debarred and suspended purchasers.

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



Sec. 223.135  Effect of listing.

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

[60 FR 46921, Sept. 8, 1995]



Sec. 223.136  Debarment.

    (a) General. In accordance with the procedures in Sec. 223.138, the 
debarring official may in the public interest, debar a purchaser for any 
of the causes listed in Sec. 223.137. However, the existence of a cause 
for debarment does not necessarily require that the purchaser be

[[Page 153]]

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

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



Sec. 223.137  Causes for debarment.

    The debarring official may debar a purchaser for any of the 
following causes:
    (a) Conviction of or civil judgment for:
    (1) Theft, forgery, bribery, embezzlement, falsification or 
destruction of records, making false statements, or receiving stolen 
property;
    (2) Fraud, a criminal offense, or violation of Federal or State 
antitrust laws, any of which occurred in connection with obtaining, 
attempting to obtain, or performing a public contract or subcontract.
    (3) Any other offense indicating a lack of business integrity or 
honesty that seriously and directly affects the present responsibility 
of the purchaser.
    (b) A purchaser's debarment from the purchase of timber by another 
Federal agency which sells timber.
    (c) Cutting and/or removal of more than incidental volumes of timber 
not designated for the purchaser's cutting from a national forest.
    (d) Substantial violation of the terms of one or more Forest Service 
timber sale contracts so serious as to justify debarment, such as:
    (1) Willful failure to perform in accordance with contract; or
    (2) A history of failure to perform contract terms; or of 
unsatisfactory performance of contract terms.
    (e) Among actions the Forest Service regards as so serious as to 
justify debarment under paragraph (d) of this section are willful 
violation or repeated failure to perform National Forest System timber 
sale contract provisions relating to the following:
    (1) Fire suppression, fire prevention, and the disposal of slash;
    (2) Protection of soil, water, wildlife, range, cultural, and timber 
resources and protection of improvements when such failure causes 
significant environmental, resource, or improvements damage;
    (3) Removal of designated timber when such failure causes 
substantial product deterioration or conditions favorable to insect 
epidemics;
    (4) Observance of restrictions on exportation of timber;
    (5) Observance of restrictions on the disposal of timber from small 
business set-aside sales;
    (6) Providing access to the Forest Service upon its request to 
purchaser's books and accounts;
    (7) Payment of monies due under terms of a Forest Service timber 
sale contract, including payment of damages relating to failure to cut 
designated timber by the contract termination date;
    (8) Performance of contract by the contract termination date.
    (f) Any other cause so serious or compelling that if affects the 
present responsibility of a purchaser of Government timber.
    (g) Violation of the Forest Resources Conservation and Shortage 
Relief Act of 1990 (16 U.S.C. 620, et seq.) (Act) or any regulation or 
contract issued under the Act.

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

[[Page 154]]



Sec. 223.138  Procedures for debarment.

    (a) Investigation and referral. Information which may be sufficient 
cause for debarment of a timber sale purchaser and affiliates shall be 
reported to the Forest Service Debarring Official. Generally, such 
information should be referred through the Forest Supervisor and the 
Regional Forester. The referral shall be accompanied by a complete 
statement of the facts supported by appropriate exhibits and a 
recommendation for action. Where the statement of facts indicates a 
possible criminal offense, except possible antitrust violations, the 
debarring official shall notify the Office of Inspector General, USDA. 
Where the statement of facts indicates a possible antitrust violation, 
the debarring official shall notify the Antitrust Division, Department 
of Justice.
    (b) Decisionmaking process--(1) Notice of proposal to debar. The 
debarring official shall initiate debarment by advising the purchaser 
and any specifically named affiliate, by certified mail, return receipt 
requested. The notice document shall include the following information:
    (i) That debarment is being considered.
    (ii) The reasons for the proposed debarment in terms sufficient to 
put the recipient on notice of the conduct or transaction(s) upon which 
it is based.
    (iii) The cause(s) relied upon under Sec. 223.137 for proposing 
debarment.
    (iv) The specific procedures governing debarment decisionmaking in 
Sec. 223.138 (b)(1) through (b)(8).
    (v) The effect of the issuance of the notice of proposed debarment 
pending a final debarment decision (see Sec. 223.136(b)).
    (vi) The potential effect of a debarment.
    (2) Submission in opposition. Within 30 calendar days after receipt 
of the notice of proposed debarment, the respondent my submit, in 
person, in writing, or through a representative, information and 
argument in opposition to and/or in mitigation of the proposed 
debarment, including any additional specific information that raises a 
genuine dispute over the material facts.
    (3) Informal hearing. Pursuant to paragraph (b)(2) of this section, 
a respondent may request an informal hearing with the debarring 
official. The informal hearing shall be held within 20 calendar days 
from the date the request is received. The debarring official may 
postpone the date of the hearing if the respondent requests a 
postponement in writing. At the hearing, the respondent, appearing 
personally or through an attorney or other authorized representative, 
may informally present and explain evidence that causes for debarment do 
not exist, evidence of any mitigating factors, and arguments concerning 
the imposition, scope, duration or effects of proposed debarment or 
debarment. A transcript of the informal hearing shall not be required.
    (4) Additional proceedings as to disputed material facts. In actions 
not based upon a conviction or civil judgment, if the debarring official 
finds that and gives notice that the submission in opposition raises a 
genuine dispute over facts material to the proposed debarment, 
respondent(s) may request a fact-finding conference on those disputed 
material facts. Such a conference shall be held within 20 calendar days 
from the date the request is received unless mutually agreed otherwise. 
The fact-finding conference shall conform with the following 
requirements:
    (i) At least 10 days before the fact-finding conference, the 
debarring official shall send the respondent a copy of all documents in 
the administrative record as of the date of transmittal and not objected 
to by the Department of Justice.
    (ii) At the conference, the respondent shall have the opportunity to 
appear with counsel, submit documentary evidence, present witnesses, and 
confront any person the Forest Service presents.
    (iii) A transcribed record of any additional proceedings shall be 
made available at cost to the respondent upon request, unless the 
respondent and the Forest Service, by mutual agreement, waive the 
requirement for a transcript.
    (5) Debarring official's decision--(i) No additional proceedings 
necessary. In actions based upon a conviction or civil judgement or in 
which there is no genuine dispute over material facts, the debarring 
official shall make a decision

[[Page 155]]

on the basis of all the information in the administrative record, 
including any submission made by the purchaser or any specifically named 
affiliate. The decision shall be made within 30 working days after 
receipt of any information and argument submitted, unless the debarring 
official extends this period for good cause.
    (ii) Additional proceedings necessary. (A) In actions in which 
additional proceedings are necessary to determine disputed material 
facts, the debarring official shall promptly prepare written findings of 
fact. The debarring official shall base the decision on the facts as 
found, together with any information and argument submitted by the 
purchaser or any specifically named affiliate and any other information 
in the administrative record.
    (B) The debarring official may refer matters involving disputed 
material facts to another official for findings of fact. The debarring 
official may reject any such findings, in whole or in part, only after 
specifically determining them to be arbitrary and capricious or clearly 
erroneous.
    (C) The debarring official's decision shall be made after the 
conclusion of the proceedings with respect to disputed facts.
    (6) Standard of evidence. In any action in which the proposed 
debarment is not based upon a conviction or civil judgment, the cause 
for debarment must be established by a preponderance of the evidence. In 
any action in which the proposed debarment is based upon a conviction or 
civil judgment, the standard shall be deemed to have been met.
    (7) Notice of debarring official's decision. (i) The purchaser and 
any affiliates involved shall be given prompt notice of the debarring 
official's decision by certified mail, return receipt requested. If the 
debarring official decides to impose debarment, the notice shall:
    (A) Refer to the notice of proposed debarment:
    (B) Specify the reasons for debarment;
    (C) State the period of debarment, including effective dates (see 
Sec. 223.139); and
    (D) Specify any limitations on the terms of the debarment.
    (ii) The debarring official shall also promptly notify Regional 
Foresters and Forest Supervisors of the decision.

[52 FR 43329, Nov. 12, 1987, as amended at 72 FR 31438, June 7, 2007]



Sec. 223.139  Period of debarment.

    (a) Debarment shall be for a period commensurate with the 
seriousness of the cause(s):
    (1) The debarring official shall consider any suspension period or 
period since issuance of the notice of proposed debarment in determining 
the debarment period.
    (2) Generally, a debarment for those causes listed at Sec. 223.137 
(a)-(f) of this subpart should not exceed three (3) years, except as 
otherwise provided by law.
    (3) A debarment for the causes listed at Sec. 223.137(g) shall not 
exceed five (5) years.
    (b) The debarring official may extend the debarment for those causes 
listed at Sec. 223.137 (a)-(f) of this subpart for an additional period 
if that official determines that an extension is necessary to protect 
the Government's interest. However:
    (1) A debarment may not be extended solely on the basis of the facts 
and circumstances upon which the initial debarment action was based;
    (2) If debarment for an additional period is necessary, the 
debarring official shall initiate and follow the procedures in Sec. 
223.138 to extend the debarment.
    (c) The debarring official may consider terminating the debarment or 
reducing the period or extent of debarment, upon the purchaser's 
request, supported by documentation, for reasons such as:
    (1) Newly discovered material evidence;
    (2) Reversal of the conviction or judgment upon which the debarment 
was based;
    (3) Bona fide change in ownership or management;
    (4) Elimination of other causes for which the debarment was imposed; 
or
    (5) Other reasons the debarring official deems appropriate.
    (d) The debarring official shall make final disposition of a 
reconsideration

[[Page 156]]

request under paragraph (c) of this section in writing within 30 working 
days of receipt of the reconsideration request and supporting 
documentation, unless the debarring official extends this period for 
good cause. The notice of the decision shall set forth the reasons for 
granting or denying the request.

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



Sec. 223.140  Scope of debarment.

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



Sec. 223.141  Suspension.

    (a) The suspending official may, in the public interest, suspend a 
purchaser on the basis of adequate evidence for any of the causes in 
Sec. 223.142, using the procedures in Sec. 223.143. However, the 
existence of a cause for suspension does not necessarily require that 
the purchaser be suspended. In making any suspension decision, the 
suspending official shall consider the seriousness of the purchaser's 
acts or omissions and any mitigating factors.
    (b) Suspension is a serious action to be imposed, pending the 
completion of investigation or legal proceedings, when it has been 
determined that immediate action is necessary to protect the 
Government's interest. In assessing the adequacy of the evidence, 
consideration shall be given to how much information is available, how 
credible it is given the circumstances, whether or not important 
allegations are corroborated and what inferences can reasonably be drawn 
as a result. This assessment shall include an examination of basic 
documents such as contracts, bids, awards, inspection reports, and 
correspondence, as appropriate.



Sec. 223.142  Causes for suspension.

    (a) The suspending official may suspend a purchaser suspected, upon 
adequate evidence, of the following:
    (1) Commission of:
    (i) Theft, forgery, bribery, embezzlement, falsification or 
destruction of records, making false statements, or receiving stolen 
property;
    (ii) Fraud, a criminal offense, or violation of Federal or State 
antitrust laws, any of which occurred in connection with obtaining, 
attempting to obtain; or performing a public contract or subcontract; or
    (iii) Any other offense indicating a lack of business integrity or 
business honesty that seriously and directly affects the present 
responsibility of a purchase of Government timber.

[[Page 157]]

    (2) Indictment for any of the causes listed in paragraph (a) of this 
section constitutes adequate evidence for suspension.
    (3) A purchaser's suspension from the purchaser of timber by another 
Federal agency which sells timber.
    (b) The suspending official may, upon adequate evidence, also 
suspend a purchaser for any other cause so serious or compelling that it 
affects the present responsibility or a purchaser of Government timber.



Sec. 223.143  Procedures for suspension.

    (a) Investigation and referral. Information which may be sufficient 
cause for suspension under Sec. 223.142 shall be reported to the Forest 
Service Suspending Official. Generally, such information should be 
referred through the Forest Supervisor and the Regional Forester. The 
referral shall be accompanied by a complete statement of the facts 
supported by appropriate exhibits and a recommendation for action. Where 
the statement of facts indicates a possible criminal offense, except 
possible antitrust violations, the suspending official shall notify the 
Office of Inspector General, USDA. Where the statement of facts 
indicates a possible antitrust violation, the suspending official shall 
notify the Antitrust Division, Department of Justice.
    (b) Decisionmaking process--(1) Notice of suspension. When a 
purchaser and any specifically named affiliates are suspended, the 
suspending official shall so advise the purchaser and any specifically 
named affiliate immediately by certified mail, return receipt requested. 
Such notice shall specify:
    (i) That they have been suspended as of the date of the notice;
    (ii) That the suspension is based on an indictment or other adequate 
evidence that the purchaser has committed irregularities,
    (A) Of a serious nature in business dealings with the Government, or
    (B) Seriously reflecting on the propriety of further Government 
dealings with the recipient;
    (iii) Any such irregularities shall be described in terms sufficient 
to place the recipient on notice without disclosing the Government's 
evidence;
    (iv) That the suspension is for a temporary period of time pending 
the completion of an investigation and such legal proceedings as may 
ensue;
    (v) The cause(s) relied upon under Sec. 223.142 for imposing 
suspension;
    (vi) The effect of the suspension (see Sec. 223.135);
    (vii) The specific procedures governing suspension decisionmaking in 
Sec. 223.143 (b)(1) through (b)(6).
    (2) Submission in opposition. Within 30 calendar days after receipt 
of the notice of suspension, the purchaser or any specifically named 
affiliate may submit, in person, in writing, or through a 
representative, information and argument in opposition to the 
suspension, including any additional specific information that raises a 
genuine dispute over material facts.
    (3) Informal hearing. Pursuant to paragraph (b)(2) of this section, 
respondent may request an informal hearing with the suspending official. 
The informal hearing shall be held within 20 calendar days from the date 
the request is received. The suspending official may postpone the date 
of the hearing if the respondent requests a postponement in writing. At 
the hearing, the respondent, appearing personally or through an attorney 
or other authorized representative, may informally present and explain 
evidence that causes for suspension do not exist, evidence of any 
mitigating factors, and arguments concerning the imposition, scope, 
duration or effects of suspension. A transcript of the informal hearing 
shall not be required.
    (4) Additional proceedings as to disputed material facts. (i) If the 
suspending official finds that there exists a genuine dispute over facts 
material to the suspension, respondent(s) shall be afforded an 
opportunity to appear with counsel, submit documentary evidence, present 
witnesses, and confront any person the Forest Service presents, unless--
    (A) The action is based on an indictment; or
    (B) A determination is made, on the basis of Department of Justice 
advice, that the substantial interests of the Government in pending or 
contemplated legal proceedings based on

[[Page 158]]

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



Sec. 223.144  Period of suspension.

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



Sec. 223.145  Scope of suspension.

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

[[Page 159]]



          Subpart D_Timber Export and Substitution Restrictions



Sec. 223.159  Scope and applicability.

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

[60 FR 46922, Sept. 8, 1995]



Sec. 223.160  Definitions.

    The following definitions apply to the provisions of this section:
    (a) Export means either direct or indirect export to a foreign 
country and occurs on the date that a person enters into a contract or 
other binding transaction for the export of unprocessed timber or, if 
that date cannot be established, when unprocessed timber is found in an 
export yard or pond, bundled or otherwise prepared for shipment, or 
aboard an ocean-going vessel. An export yard or pond is an area where 
sorting and/or bundling of logs for shipment outside the United States 
is accomplished. Unprocessed timber, whether from National Forest System 
or private lands, is exported directly when exported by the National 
Forest timber purchaser. Timber is exported indirectly when export 
occurs as a result of a sale to another person or as a consequence of 
any subsequent transaction.
    (b) Historic level means the average annual volume of unprocessed 
timber purchased or exported in calendar years 1971, 1972, and 1973.
    (c) Private lands mean lands held or owned by a private person. 
Nonprivate lands include, but are not limited to, lands held or owned by 
the United States, a State or political subdivision thereof, or any 
other public agency, or lands held in trust by the United States for 
Indians.
    (d) Substitution means the purchase of unprocessed timber from 
National Forest System lands to be used as replacement for unprocessed 
timber from private lands which is exported by the purchaser. 
Substitution occurs when (1) a person increases purchases of National 
Forest timber in any Calendar year more than 10 percent above their 
historic level and in the same calendar year exports unprocessed timber 
from private land in the tributary area; or (2) a person increases 
exports of unprocessed timber from private land in any tributary area 
more than 10 percent above their historic level in any calendar year 
while they have National Forest timber under contract.
    (e) Tributary area means the geographic area from which unprocessed 
timber is delivered to a specific processing facility or complex. A 
tributary area is expanded when timber outside an established tributary 
area is hauled to the processing facility or complex.
    (f) Unprocessed timber, except western red cedar in the contiguous 
48 States, means trees or portions of trees having a net scale content 
not less than 33\1/3\ percent of the gross volume, or the minimum piece 
specification set forth in the timber sale contract, in material meeting 
the peeler and sawmill log grade requirements published in the January 
1, 1980--Official Log Scaling and Grading Rules used by Log Scaling and 
Grading Bureaus on the West Coast; cants to be subsequently 
remanufactured exceeding 8\3/4\ inches in thickness; cants of any 
thickness reassembled into logs; and split or round bolts, except for 
aspen, or other roundwood not processed to standards and specifications 
suitable for end-product use. Unprocessed timber shall not mean pulp 
(utility) grade logs and Douglas-fir special cull logs or timber 
processed into the following:
    (1) Lumber and construction timbers, regardless of size, sawn on 
four sides;
    (2) Chips, pulp, and pulp products;
    (3) Green veneer and plywood;
    (4) Poles, posts, or piling cut or treated for use as such;
    (5) Cants cut for remanufacture, 8\3/4\ inches in thickness or less;
    (6) Aspen bolts, not exceeding 4 feet in length.

[[Page 160]]

    (g) Unprocessed western red cedar timber in the contiguous 48 States 
means trees or portions of trees of that species which have not been 
processed into--
    (1) Lumber of American Lumber Standards Grades of Number 3 dimension 
or better, or Pacific Lumber Inspection Bureau Export R-List Grades of 
Number 3 Common or better;
    (2) Chips, pulp, and pulp products;
    (3) Veneer and plywood;
    (4) Poles, posts, or piling cut or treated with preservatives for 
use as such and not intended to be further processed; or
    (5) Shakes and shingles; provided that lumber from private lands 
manufactured to the standards established in the lumber grading rules of 
the American Lumber Standards Association or the Pacific Lumber 
Inspection Bureau and manufactured lumber authorized to be exported 
under license by the Department of Commerce shall be considered 
processed.
    (h) Person means an individual, partnership, corporation, 
association, or other legal entity and includes any subsidiary, 
subcontractor, parent company, or other affiliate. Business entities are 
considered affiliates for the entire calendar year when one controls or 
has the power to control the other or when both are controlled directly 
or indirectly by a third person during any part of the calendar year.
    (i) Purchase occurs when a person is awarded a contract to cut 
National Forest timber or through the approval of a third party 
agreement by the Forest Service.
    (j) Purchaser means a person that has purchased a National Forest 
timber sale.

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

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



Sec. 223.161  [Reserved]



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

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

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

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



Sec. 223.163  [Reserved]



Sec. 223.164  Penalty for falsification.

    For false certification of documents relating to export or 
substitution and/or other violations of export and substitution 
requirements by the purchaser of timber from National Forest System 
lands, the Forest Service may cancel the subject contract, debar the

[[Page 161]]

involved person or persons from bidding on National Forest timber, or 
initiate other action as may be provided by law or regulation.

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

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

Subpart E [Reserved]



 Subpart F_The Forest Resources Conservation and Shortage Relief Act of 
                              1990 Program

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



Sec. 223.185  Scope and applicability.

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



Sec. 223.186  Definitions.

    The following definitions apply to the provisions of this subpart:
    Acquire means to come into possession of, whether directly or 
indirectly, through a sale, trade, exchange, or other transaction. The 
term ``acquisition'' means the act of acquiring. The terms ``acquire'' 
and ``purchase'' are synonymous and are used interchangeably.
    Act means the Forest Resources Conservation and Shortage Relief Act 
of 1990 (Pub. L. No. 101-382, 104 Stat. 714-726; 16 U.S.C. 620-620j).
    Area of operations refers to the geographic area within which logs 
from any origin have neither been exported nor transported to an area 
where export occurs. The area of operations will be determined for 
individual Forest Service Administrative Units or groups of 
Administrative Units by the Regional Foresters of Regions 1, 2, 3, and 4 
on an as-needed basis, and used as part of the criteria for evaluating 
requests to waive the identifying and marking requirements for 
unprocessed Federal logs.
    Cants or Flitches are synonymous, and mean trees or portions of 
trees, sawn on one or more sides, intended for remanufacture into other 
products elsewhere.
    Civil penalties:
    Willful disregard means a person knew or showed reckless disregard 
for the matter of whether the person's conduct is prohibited by the 
Forest Resources Conservation and Shortage Relief Act of 1990, 16 U.S.C. 
620, et seq. with regard to the prohibition against exporting 
unprocessed Federal timber (including causing unprocessed timber to be 
exported).
    Willfully means a person knew or showed reckless disregard for the 
matter of whether the person's conduct is prohibited by the Forest 
Resources Conservation and Shortage Relief Act of 1990, 16 U.S.C. et 
seq., or regulations issued under the Act, even though such violation 
may not have caused the export of unprocessed Federal timber in 
violation of the Act.
    Disregard means to ignore, overlook, or fail to observe any 
provision of the Act or a regulation issued under this Act, even though 
such violation may

[[Page 162]]

not have caused the export of unprocessed Federal timber in violation of 
the Act.
    Should have known means committing an act that a reasonable person 
in the timber industry would have known violates a provision of the Act 
or regulations issued under the Act, even though the violation may not 
have caused the export of unprocessed Federal timber in violation of the 
Act.
    Each violation refers to any violation under the Act or its 
implementing regulations with regard to a single act, which includes but 
is not limited to a single marking (or lack thereof) on a single log, 
the export of a single log, or a single entry on a document.
    Export means transporting, or causing to be transported, either 
directly or through another party, unprocessed timber to a foreign 
country. Export occurs:
    (1) On the date that a person enters into an agreement to sell, 
trade, exchange or otherwise convey such timber to a person for delivery 
to a foreign country;
    (2) When unprocessed timber is placed in an export facility in 
preparation (sorting, bundling, container loading etc.) for shipment 
outside the United States; or,
    (3) When unprocessed timber is placed on board an ocean-going 
vessel, rail car, or other conveyance destined for a foreign country.
    Federal lands means lands that are owned by the United States west 
of the 100th meridian in the contiguous 48 States, but do not include 
any land the title to which is;
    (1) Held in trust by the United States for the benefit of any Indian 
tribe or individual;
    (2) Held by any Indian tribe or individual subject to a restriction 
by the United States against alienation; or
    (3) Held by any Native Corporation as defined in section 3 of the 
Alaska Native Claims Settlement Act (43 U.S.C. 1602).
    Finished products means products from trees, portions of trees or 
other roundwood products processed to standards and specifications 
intended for end product use.
    Fiscal year means the Federal fiscal year beginning October 1, and 
ending the following September 30.
    Gross value means the total value a person received from the 
transfer of unprocessed Federal timber involved in a violation, before 
production, delivery, agent fees, overhead, or other costs are removed.
    Hammer brand refers to an identifying mark or brand composed of 
numbers, letters, characters, or a combination of numbers, letters, or 
characters permanently attached to a hammer, or other similar striking 
tool. The hammer brand must make a legible imprint of the brand in the 
end of a log when struck.
    Highway yellow paint refers to an oil base or equivalent yellow 
paint of lasting quality comparable to the yellow paint used to mark 
highways.
    Log refers to an unprocessed portion of a tree that is transported 
to a manufacturing facility or other location for processing, 
transferring to another person, or exporting. ``Logs'' is synonymous 
with ``timber''.
    Manufacturing facility means a permanently located processing plant 
used to convert unprocessed timber into products.
    Non-manufacturer means a person who does not own or operate a 
manufacturing facility.
    Person means any individual, partnership, corporation, association, 
or other legal entity and includes any subsidiary, subcontractor, parent 
company, and business affiliates. Persons are affiliates of each other 
when either directly or indirectly, one person controls or has the power 
to control the other or a third party or parties control or have the 
power to control both. In determining whether or not affiliation exists, 
consideration shall be given to all appropriate factors, including but 
not limited to common ownership, common management, common facilities, 
and contractual relationships.
    Private lands means lands, located west of the 100th meridian in the 
contiguous 48 States held or owned by a person. Such term does not 
include Federal lands or public lands, or any land the title to which 
is;

[[Page 163]]

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



Sec. 223.187  Determinations of unprocessed timber.

    (a) All species except western red cedar. Unprocessed timber, as 
defined in Sec. 223.186 of this Subpart, does not include timber 
processed into any one of the following:
    (1) Lumber or construction timbers, except western red cedar, 
meeting current American Lumber Standards Grades or Pacific Lumber 
Inspection Bureau Export R or N list grades, sawn on 4 sides, not 
intended for remanufacture. To determine whether such lumber or 
construction timbers meet this grade and intended use standard, the 
shipper of record must have in its possession for each shipment or 
order, and

[[Page 164]]

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

[[Page 165]]

other products. I make this certification with full knowledge and 
understanding of the export and substitution restrictions of the Forest 
Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, 
et seq.) (Act) and its implementing regulations. I fully understand that 
exporting unprocessed timber originating from Federal lands or 
unprocessed timber from private lands which is required to be processed 
domestically is a violation of this Act, its implementing regulations, 
and the False Statements Act (18 U.S.C. 1001), and may subject me to the 
penalties and remedies provided for such violations.''
    (4) Signatory procedures. Certificates shall be on company 
letterhead, and signed by the person manufacturing the shipment. In the 
case of a corporation, the certificates must be signed by a person 
authorized, in writing, by the Chief Executive Officer pursuant to 36 
CFR 223.187(b)(4), to sign the certificates in 36 CFR 223.187(b) on 
behalf of the corporation.
    (5) Chief Executive Officer Authorization. The authorization by the 
Chief Executive Officer shall be on company letterhead, shall be 
notarized, and shall read as follows:

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

    (6) Exporters of other timber products originating from Federal 
lands not specifically listed in Sec. 223.187 which may develop export 
markets in the future may also require similar certification statements. 
Such statements will be provided by the Forest Service.
    (c) Western red cedar. Unprocessed western red cedar timber does not 
include manufactured lumber authorized for export under license by the 
Department of Commerce, and lumber from private lands processed to 
standards established in the lumber grading rules of the American Lumber 
Standards Association or the Pacific Lumber Inspection Bureau, or timber 
processed into any of the following products:
    (1) Lumber of American Lumber Standards Grades of Number 3 dimension 
or better, or Pacific Lumber Inspection Bureau Export R-List Grades of 
Number 3 common or better, with a maximum cross section of 2,000 square 
centimeters (310 square inches) for any individual piece of processed 
western red cedar, regardless of grade. To determine whether such lumber 
meets these established standards, grades and size restrictions, the 
shipper of record must have in its possession for each shipment, and 
available for inspection upon the request of the Forest Service, a 
legible copy of a lumber inspection certificate certified by a lumber 
inspection/grading organization generally recognized by the industry as 
setting a selling standard. Export restrictions governing western red 
cedar timber harvested from Federal, State or other public lands are 
found in 7(i) of the Export Administration Act of 1979 as amended (50 
U.S.C. appendix 2406(i)), and implementing regulations at 15 CFR 777.7.
    (2) Chips, pulp, and pulp products;
    (3) Veneer and plywood;
    (4) Poles, posts, pilings cut or treated with preservatives for use 
as such and not intended to be further processed; and
    (5) Shakes and shingles.
    (d) Finished Products. Shippers of record of products manufactured 
from unprocessed western red cedar originating from Federal lands, 
acquired by the manufacturer under the exemption from the prohibition 
against indirect substitution at Sec. 223.189(e)(1), must have in their 
possession for each shipment a certificate from the manufacturer that 
such products are finished products as defined in Sec. 223.186 of this 
subpart. The certification statement shall read as follows:
    (1) ``I certify that the products in the shipment identified by my 
shipping order number ------, dated ------, are manufactured in 
accordance with the attached order from ---- (buyer) ---- of

[[Page 166]]

------ (address) ------, numbered ---- and dated ------, are intended 
for end product use. I understand that only western red cedar products 
that are finished products are exempt from the prohibition against 
indirect substitution in the Forest Resources Conservation and Shortage 
Relief Act of 1990 (16 U.S.C. 620b(b)(1)) and its implementing 
regulations. I make this certification with full knowledge and 
understanding of the export and substitution restrictions of the Forest 
Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, 
et seq.) (Act) and its implementing regulations. I fully acknowledge and 
understand that to acquire western red cedar under the indirect 
substitution exemption in 16 U.S.C. 620b(b)(1) for purposes other than 
domestic processing into finished products will be a violation of this 
Act, its implementing regulations, and the False Statements Act (18 
U.S.C. 1001) and may subject me to the penalties and remedies provided 
for such violation.''
    (2) Signatory procedures. Certificates shall be on company 
letterhead, and signed by the person manufacturing the shipment. In the 
case of a corporation, the certificate must be signed by a person 
authorized, in writing, by the Chief Executive Officer, pursuant to 36 
CFR 223.187(d)(3), to sign the certificate in 36 CFR 223.187(d)(1) on 
behalf of the corporation.
    (3) Chief Executive Officer Authorization. The authorization by the 
Chief Executive Officer shall be on company letterhead, shall be 
notarized, and shall read as follows:

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



Sec. 223.188  Prohibitions against exporting unprocessed Federal timber.

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



Sec. 223.189  Prohibitions against substitution.

    (a) Direct substitution prohibition. Except as otherwise provided by 
this section:
    (1) No person may purchase directly from any department or agency of 
the United States unprocessed timber originating from Federal lands west 
of the 100th meridian in the contiguous 48 States if:
    (i) Such person acquires unprocessed timber originating from Federal 
lands west of the 100th meridian in the contiguous 48 States and engages 
in exporting or selling for export, unprocessed timber originating from 
private lands within the same geographic and economic area; or
    (ii) Such person has, during the preceding 24-month period, exported 
unprocessed timber originating from private lands.
    (2) No person may export or sell for export, unprocessed timber 
originating from private lands within the same geographic and economic 
area in the same calendar year that the person has unprocessed timber 
originating from Federal lands in the person's possession or under 
contract.
    (3) No person may purchase unprocessed timber originating from 
Federal lands if such person sells or otherwise transfers unprocessed 
timber that originates from private lands west of the 100th meridian in 
the contiguous 48 States and that requires domestic processing, to a 
third party if that third party or successive parties export that 
unprocessed private timber. A third party or successive parties who 
acquire

[[Page 167]]

such unprocessed timber that originates from private lands west of the 
100th meridian in the contiguous 48 States and that requires domestic 
processing may not export such timber.
    (4) The prohibitions in paragraphs (a) (1)-(3) of this section shall 
not apply to specific quantities of grades and species of unprocessed 
timber which the Secretary of Agriculture has determined to be surplus 
to domestic manufacturing needs.
    (b) Exemptions. (1) Pursuant to section 490(c) of the Act (16 U.S.C. 
620b), all persons who applied for a sourcing area by December 20, 1990, 
in accordance with Sec. 223.190 of this subpart, were exempt from the 
prohibitions against substitution, in accordance with Sec. 
223.189(a)(1) of this subpart, until such time that the approving 
official approved or disapproved the application.
    (2) Pursuant to Section 490(a) of the Act (16 U.S.C. 620b), an 
exemption to the prohibition in Sec. 223.189(a)(1)(B) of this subpart 
is provided to:
    (i) A person with a historic export quota who submitted a 
certification in accordance with Sec. 223.189 (c) and (d) of this 
subpart; and
    (ii) A non-manufacturer who submitted a certification in accordance 
with Sec. 223.192 of this subpart.
    (3) Pursuant to Sec. 490(c) of the Act (16 U.S.C. 620b), the 
prohibitions against direct substitution in Sec. 223.189(a) (1) and (2) 
of this subpart do not apply to a person who acquires unprocessed timber 
originating from Federal lands within an approved sourcing area, does 
not export unprocessed timber originating from private lands within the 
approved sourcing area while the approval is in effect, and, if 
applicable, received a waiver of the prohibition against exporting 
unprocessed timber originating from private lands within the sourcing 
area during the preceding 24 months, in accordance with Sec. 223.189 
(f) and (g) of this subpart.
    (c) Historic export quota exemption. The prohibition against the 
purchase of Federal timber for a person who has exported unprocessed 
timber originating from private lands, within the preceding 24-month 
period, shall not apply to a person with a historic export quota 
approved by the Secretary and who has been exporting unprocessed private 
timber in accordance with the log export and substitution regulations of 
the Secretary of Agriculture at 36 CFR part 223, subpart D, in effect 
before August 20, 1990, if:
    (1) That person certified in writing to the Regional Forester of the 
Region administering the historic export quota, on or before November 
20, 1990, that the person would cease exporting unprocessed timber 
originating from private lands on or before February 20, 1991, and
    (2) The exporting ceased in accordance with such certification.
    (d) Application for historic export quota exemption. To obtain an 
exemption from the prohibition against export within the preceding 24-
month period for purchasing Federal timber based on an approved historic 
export quota described in paragraph (c) of this section, a person must 
have applied in writing to the applicable Regional Forester on or before 
November 20, 1990. The certificate must have been notarized. The 
application was required to be on company letterhead and must have 
included:
    (1) An agreement to retain records of all transactions involving 
acquisition and disposition of unprocessed timber from both private and 
Federal lands within the area(s) involved in the certification, for a 
period of three (3) years beginning November 20, 1990, and to make such 
records available for inspection upon the request of the Regional 
Forester, or other official to whom such authority has been delegated.
    (2) A signed certification which reads as follows:

    ``I have purchased, under an historic export quota approved by the 
Secretary of Agriculture, unprocessed timber originating from Federal 
lands located west of the 100th meridian in the contiguous 48 States 
during the preceding 24 months in direct substitution for exported 
unprocessed timber originating from private lands. I desire to purchase 
directly from a Department or agency of the United States, unprocessed 
timber originating from Federal lands located in such area of the United 
States. I make this certification for the exemption from the prohibition 
against export within the preceding 24-month period for purchasing 
Federal timber required by the Forest Resources Conservation and 
Shortage Relief Act of 1990, (Pub. L. No. 101-382, August 20, 1990, 16 
U.S.C.

[[Page 168]]

620, et seq.) (Act). I hereby certify that I will cease all exporting of 
such unprocessed private timber from lands west of the 100th meridian in 
the 48 contiguous States of the United States by February 20, 1991. I 
make this certification with full knowledge and understanding of the 
requirements of this Act and do fully understand that failure to cease 
such exporting as certified will be a violation of this Act (16 U.S.C. 
620d) and the False Statements Act (18 U.S.C. 1001), and may subject me 
to the penalties and remedies provided from such violation.''

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

[[Page 169]]

The request shall be on company letterhead with its corporate seal 
affixed and must include:
    (1) An agreement to retain records of all transactions involving 
acquisition and disposition of unprocessed timber from both private and 
Federal lands within the area(s) involved in the waiver request, for a 
period of three (3) years beginning November 20, 1990, and to make such 
records available for inspection upon the request of the Regional 
Forester, or other official to whom such authority has been delegated.
    (2) A signed certification statement which reads as follows:

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



Sec. 223.190  Sourcing area application procedures.

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

[[Page 170]]

area where the person has, within the 24 months immediately preceding 
the date of the application, acquired unprocessed timber originating 
from private land which was exported, sold, traded, exchanged, or 
otherwise conveyed to another person for the purpose of exporting such 
timber;
    (2) A list of other persons with timber manufacturing facilities 
located within the same general vicinity as the applicant's facilities;
    (3) Any other information the applicant may believe is appropriate 
to support approval of the requested sourcing area; and
    (4) A statement signed by the person certifying under the penalties 
provided in Section 492 of this Act (16 U.S.C. 620d) and the False 
Statements Act (18 U.S.C. 1001) that the information provided in support 
of the application is true, complete, and accurate to the best of the 
applicant's knowledge. The statement shall read as follows:

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

    (d) Confidential information. Applications are not considered 
confidential. However, if a person does submit confidential information 
as part of an application, the information should be marked 
confidential. Information so marked will be afforded the rights and 
protection provided under the Freedom of Information Act.
    (e) Where to submit the application. A sourcing area applicant shall 
send the application to the Office of Administrative Law Judges and 
shall, simultaneously, send a copy of the sourcing area application to 
the Forest Service Regional Forester of the region in which the 
manufacturing facility being sourced is located. Where the sourcing area 
application will cover purchases from more than one agency, application 
is to be made to the agency from which the applicant expects to purchase 
the preponderance of its Federal timber. The sourcing area applicant 
must also send a complete copy of the application to each agency 
concerned. The lead agency shall make the decision in consultation with, 
and upon co-signature of, the other agencies concerned.
    (f) Signatory procedures. Sourcing area applications must be signed 
by the person making the request, or in the case of a corporation, by 
its Chief Executive Officer, and must be notarized. The application 
shall be on company letterhead.
    (g) The sourcing area application and review process will be 
conducted pursuant to the Rules of Practice Governing the Adjudication 
of Sourcing Area Applications and Formal Review of Sourcing Areas 
Pursuant to the Forest Resources Conservation and Shortage Relief Act of 
1990 (16 U.S.C. 620, et seq.), found at 7 CFR part 1, subpart M.
    (h) A final decision on a sourcing area application or a formal 
sourcing area review will be issued within four (4) months of the 
receipt of the application or initiation of the review.
    (i) The following criteria must be met for sourcing area approval:
    (1) The Administrative Law Judge, or, on appeal, the Judicial 
Officer must find that the proposed sourcing area is geographically and 
economically separate from any area that the applicant harvests or 
expects to harvest for export any unprocessed timber originating from 
private lands. In making such a finding, the Administrative Law Judge, 
or, on appeal, the Judicial Officer shall consider the timber purchasing 
patterns of the applicant on private and Federal lands equally with

[[Page 171]]

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

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

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



Sec. 223.191  Sourcing area disapproval and review procedures.

    (a) Notwithstanding any other provision of law, an applicant whose

[[Page 172]]

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

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


or,

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

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

    (ii) Each certification statement set forth in paragraph (a)(2)(i) 
of this section must have been signed by the person making such 
certification or, in the case of a corporation, by its Chief Executive 
Officer; must have been on company letterhead; must have been notarized; 
and must have had a corporate seal attached.
    (iii) The person signing such certification set forth in paragraph 
(a)(2)(i)(A) of this section must have provided to the Regional Forester 
the annual volume of timber exported by

[[Page 173]]

that person during the five (5) full fiscal years immediately preceding 
submission of the application, originating from private lands in the 
geographic area for which the application would have been approved.
    (iv) When the applicant submitted the certificate, the area the 
Secretary would have approved, as shown on the sourcing area map 
provided by the Secretary, became an approved sourcing area. If the 
certificate was not submitted, the sourcing area that would have been 
approved did not become an approved sourcing area.
    (3) The phase-out of Federal timber purchasing and the phase-out of 
private timber exporting procedures provided by paragraphs (a)(1) and 
(a)(2) of this section do not apply to persons submitting sourcing area 
applications after December 20, 1990, or to persons requesting review of 
disapproved sourcing areas.
    (b) Limits on purchases and exports. (1) During the 15-month period 
following disapproval of a sourcing area, a person who elects to phase-
out of private timber exporting as described in paragraph (a)(2) of this 
section, may not:
    (i) Purchase more than 125 percent of the person's annual average 
purchases of unprocessed timber originating from Federal lands within 
the person's disapproved sourcing area during the five (5) full fiscal 
years immediately prior to submission of the application; and,
    (ii) Export unprocessed timber originating from private lands in the 
geographic area determined by the approving official for which the 
application would have been approved, in amounts that exceed 125 percent 
of the annual average of that person's exports of unprocessed timber 
from such private land during the five (5) full years immediately prior 
to submission of the application.
    (2) At the conclusion of the 15-month export phase-out period, the 
prohibition against exporting private timber originating from within the 
area shall be in full force and effect as long as the sourcing area 
remains approved, pursuant to this subpart F of this part 223.
    (c) Presentation of map to applicant whose sourcing area is 
disapproved. The area determined by the deciding official that would 
have been approved shall be drawn on a map and presented to the 
applicant by the deciding official with the notice of disapproval of the 
application.
    (d) Effect of prior certification to cease exporting. An applicant's 
previous certification to cease exporting beginning February 20, 1991, 
for a period of three (3) years from within the disapproved sourcing 
area pursuant to paragraphs (f) and (g) in Sec. 223.189 of this subpart 
shall remain in full force and effect for persons with approved and 
disapproved sourcing areas.
    (e) Review process and frequency. (1) Approved sourcing areas shall 
be reviewed not less often than every five (5) years. A tentative date 
for a review shall be included in the Administrative Law Judge's, or, on 
appeal, the Judicial Officer's determination or stated in writing by the 
Regional Forester following the determination. At least 60 days prior to 
the tentative review date, the Regional Forester or other such reviewing 
official shall notify the person holding the sourcing area of the 
pending review, publish notice of such review in newspapers of general 
circulation within the sourcing area, and invite comments, to be 
received no later than 30 days from the date of the notice, from all 
interested persons, including the person holding the sourcing area. For 
10 working days following the comment period, any person submitting a 
written comment and the person with the sourcing area may review the 
comments. If there is disagreement among the persons who submitted 
written comments regarding the proper sourcing area, the reviewing 
official shall convene an informal meeting convenient to the persons 
that all interested persons may attend. If an agreement cannot be 
reached among the persons, formal administrative adjudication shall 
occur. The Administrative Law Judge, or, on appeal, the Judicial Officer 
shall, on the record and after opportunity for a hearing, approve or 
disapprove the sourcing area being reviewed, pursuant to the Rules of 
Practice Governing the Adjudication of Sourcing Area Applications and 
Formal Review of Sourcing Areas Pursuant to the Forest Resources 
Conservation and Shortage Relief Act of 1990 (16

[[Page 174]]

U.S.C. 620, et seq.), found at 7 CFR part 1, subpart M.
    (2) Disapproved sourcing areas shall be reviewed using the process 
described in paragraph (e)(1) of this section upon resubmission of an 
application, provided the applicant has accepted the area the Secretary 
would have approved as a sourcing area pursuant to paragraph (a)(2) of 
this section.
    (3) The Department reserves the right to schedule a review, at the 
request of the Forest Service or the person holding the sourcing area, 
at any time prior to the scheduled tentative review date, with 60 days 
notice.
    (4) Sourcing areas being reviewed shall continue in full force and 
effect pending the final review determination.
    (f) Reporting and record keeping procedures. The reporting and 
record keeping procedures in this section constitute information 
collection requirements as defined in 5 CFR part 1320. These 
requirements have been approved by the Office of Management and Budget 
and assigned clearance number 0596-0115.



Sec. 223.192  Procedures for a non-manufacturer.

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

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

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



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

    (a) Annual report. Each person who directly or indirectly acquires 
or possesses unprocessed timber originating from National Forest System 
lands located west of the 100th meridian in the

[[Page 175]]

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

[[Page 176]]

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



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

    (a) Notice of domestic processing requirement. Each person who 
acquires unprocessed timber originating from Federal lands located west 
of the 100th meridian in the 48 contiguous States,

[[Page 177]]

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

[[Page 178]]

and record keeping requirements contained in this section shall be 
relieved from further liability for such timber with regard to the 
export and substitution restrictions pursuant to the Act.



Sec. 223.195  Procedures for identifying and marking unprocessed timber.

    (a) Highway yellow paint. The use of highway yellow paint on 
unprocessed logs west of the 100th meridian in the contiguous 48 States 
shall be reserved for identifying logs requiring domestic manufacturing.
    (b) Preserving identification. All identifying marks placed on an 
unprocessed log to identify the National Forest System origin of that 
log and/or to identify the log as requiring domestic processing shall be 
retained on the log until the log is domestically processed. If the 
identifying marks are lost, removed, or become unreadable, they shall be 
replaced. If the log is cut into two or more segments, each segment 
shall be identified in the same manner as the original log.
    (1) A generic log hammer brand, known as a ``catch brand'', used to 
identify ownership, may be used to replace lost, removed, unreadable or 
otherwise missing brands where such use is authorized by the Regional 
Forester and approved by the Contracting Officer. Use of such a catch 
brand on a log or log segment will signify Federal origin.
    (2) The requirement to preserve identification of log pieces shall 
not apply to logs cut into two or more segments as a part of the mill 
in-feed process immediately before processing. Log segments that are 
returned to or placed in storage must be marked on both ends with yellow 
paint.
    (c) National Forest System logs. Except as otherwise provided in 
this subsection, all unprocessed logs originating from National Forest 
System timber sales west of the 100th meridian in the contiguous 48 
States shall, before being removed from the timber sale area, be marked 
on each end as follows:
    (1) Painted on each end with a spot of highway yellow paint not less 
than three square inches in size; and,
    (2) Branded on each end with a hammer brand approved for use by the 
Forest Supervisor of the National Forest from which the logs originate. 
The brand pattern may not be used to mark logs from any other source for 
a period of 24 months after all logs have been removed from the sale 
area and until such brand pattern is released in writing by the Forest 
Supervisor.
    (d) Private logs. All unprocessed logs originating from private 
lands west of the 100th meridian in the contiguous 48 States that 
require domestic manufacturing pursuant to Sec. 223.194 of this 
subpart, shall be painted on each end with a spot of highway yellow 
paint not less than three (3) square inches in size before removal from 
the harvest area. If private logs are acquired by a person who may not 
export such logs, the logs must be marked by the person acquiring the 
logs at the time of the acquisition.
    (e) Waiver of painting requirements. The log painting requirements 
pursuant to paragraphs (c)(1) and (d) of this section may be waived if 
the Chief of the Forest Service determines that alternate methods for 
identifying logs required to be domestically processed are equal to or 
better than the procedures required herein.
    (f) Waiver of branding requirements. Regional Foresters may waive 
the branding requirements pursuant to paragraph (c)(2) of this section 
as follows:
    (1) Regions 1, 2, 3, and 4. On an individual timber sale basis, all 
or a portion of the branding requirements pursuant to paragraph (c)(2) 
of this section may be waived, if:
    (i) Unprocessed logs from any origin are not known to have been 
exported by any person from the person's area of operations within the 
previous 5; years.
    (ii) The person certifies as follows:

    ``I hereby request waiver of the requirements to brand each end of 
individual logs originating from the -------- timber sale, Forest 
Service contract number -------- pursuant to 36 CFR 223.195. I certify 
that I have not exported or sold for export unprocessed timber from 
private lands within my area of operations in five years. I certify that 
I understand, that if granted, the waiver applies only to unprocessed 
logs being processed within my area of operations. I certify that any 
unprocessed logs to which this waiver applies that are transferred, or 
sold for transfer, outside my area of operations will

[[Page 179]]

be branded on both ends in full compliance with 36 CFR 223.195. I make 
this certification with full knowledge and understanding of the 
requirement of the Forest Resources Conservation and Shortage Relief Act 
of 1990 (16 U.S.C. 620, et seq.) (Act) and its implementing regulations 
at 36 CFR part 223. I fully understand that failure to abide by the 
terms of the waiver will be a violation of this Act (16 U.S.C. 620, et 
seq.) and the False Statements Act (18 U.S.C. 1001) and may subject me 
to the penalties and remedies provided for such violation.'';


and,

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

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


and,

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



Sec. 223.196  Civil penalties for violation.

    (a) Exporting Federal timber. If the Secretary of Agriculture finds, 
on the record and after providing an opportunity for a hearing, that a 
person, with willful disregard for the prohibition in the Act exporting 
unprocessed Federal timber, exported or caused to be exported 
unprocessed timber originating from Federal lands in violation of the 
Act, the Secretary may assess against such person a civil penalty of not 
more than $500,000 for each violation, or 3 times the gross value of the 
unprocessed timber involved in the violation, whichever amount is 
greater.
    (b) Other violations. If the Secretary of Agriculture finds, on the 
record and after providing an opportunity for a hearing, that a person 
has violated any provision of the Act, or any regulation issued under 
the Act relating to National Forest System lands, even though that the 
violation may not have caused the export of unprocessed Federal timber 
in violation of such Act, the Secretary may:
    (1) Assess against such person a civil penalty of not more than 
$500,000, if the Secretary determines that the person committed such 
violation willfully;
    (2) Assess against such person a civil penalty of not more than 
$75,000 for each violation, if the Secretary determines that the person 
committed such violation in disregard of such provision or regulation; 
or
    (3) Assess against such person a civil penalty of not more than 
$50,000 for each violation, if the Secretary determines that the person 
should have

[[Page 180]]

known that the action constituted a violation.
    (c) Penalties not exclusive and judicial review. A penalty assessed 
under paragraph (a) or (b) of this section shall not be exclusive of any 
other penalty provided by law, and shall be subject to review in an 
appropriate United States district court.



Sec. 223.197  Civil penalty assessment procedures.

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



Sec. 223.198  Administrative remedies.

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



Sec. 223.199  Procedures for cooperating with other agencies.

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



Sec. 223.200  Determinations of surplus species.

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



Sec. 223.201  Limitations on unprocessed timber harvested in Alaska.

    Unprocessed timber from National Forest System lands in Alaska may 
not be exported from the United States or shipped to other States 
without prior approval of the Regional Forester. This requirement is 
necessary to ensure the development and continued existence of adequate 
wood processing capacity in Alaska for the sustained utilization of 
timber from the National Forests which are geographically isolated from 
other processing facilities. In determining whether consent will be 
given for the export of timber, consideration will be given to, among 
other things, whether such export will:
    (a) Permit more complete utilization on areas being logged primarily 
for local manufacture,
    (b) Prevent loss or serious deterioration of logs unsalable locally 
because of an unforeseen loss of market,
    (c) Permit the salvage of timber damaged by wind, insects, fire or 
other catastrophe,
    (d) Bring into use a minor species of little importance to local 
industrial development, or
    (e) Provide material required to meet urgent and unusual needs of 
the Nation. (16 U.S.C. 472a; 16 U.S.C. 551; 16 U.S.C. 616)



Sec. 223.202  Information requirements.

    (a) The procedures in Sec. Sec. 223.189 and 223.192, and some of 
the procedures in Sec. 223.190 were approved by the Office of 
Management and Budget (OMB) and assigned Control Number 0596-0114 upon 
issuance of the interim rule. Control Number 0596-0114 has been 
reapproved by OMB for use through May 31, 1997. OMB approved the 
information collection requirements in Sec. Sec. 223.191 and 223.203 
for use through August 31, 1995, and assigned them Control Number

[[Page 181]]

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



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

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

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


and
    (3) The application listed under this section must have been signed 
by the person making such application or, in the case of a corporation, 
by its Chief Executive Officer. The application must have been on the 
company's letterhead and must have been notarized.
    (4) The application made under this section must have been mailed to 
the Regional Forester in Portland, Oregon, no later than January 8, 
1992. Applicants were notified of the approving official's decision by 
letter. If approved, the amount of the exception becomes effective upon 
publication in the Federal Register.
    (5) Prospective applicants could review Department records upon 
request

[[Page 182]]

prior to the deadline for submitting applications. An applicant could 
voluntarily submit information documenting the amount of purchases of 
unprocessed timber originating from National Forest System lands within 
Washington State. The Department then determined which amount is higher, 
verified by either the Department's records or the applicant's records. 
The Department then determined the applicant's portion of the 50 million 
board feet by determining the lesser of the amount verified by the 
records or 15 million board feet. Applicants could submit the 
information documenting the amount of purchases in the following manner:
    (i) Actual receipts for purchasing unprocessed timber from National 
Forest System lands within Washington State; or
    (ii) A statement by a certified public accountant of:
    (A) A summary by fiscal year for 1988, 1989 and 1990 of the 
applicant's acquisitions of timber originating from National Forest 
System lands in the State of Washington, listing total volume for each 
of the three fiscal years; and
    (B) The average volume for the three fiscal years. The volumes to be 
reported were the harvest volumes, except in the case of open sales. 
Advertised volumes had to be reported for open sales.
    (C) The certified public accountant must have certified to the 
following:

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

    (D) The certified public accountant's statement and certification 
must have been on the accountant's company letterhead, must have been 
notarized, and must have accompanied the applicant's application.
    (c) Selling and trading rights. The purchase limit right obtained 
under this rule may be sold, traded, or otherwise exchanged with any 
other person subject to the following conditions:
    (1) Such rights may not be sold, traded, or otherwise exchanged to 
persons already in possession of such rights:
    (2) Any person selling, trading, or exchanging any or all of the 
rights obtained under this rule shall advise the Regional Forester of 
the amount being traded and the name(s) of the person(s) acquiring such 
rights within 15 days of the transaction; and
    (3) No person may have or acquire more than 15 million board feet in 
one fiscal year.
    (d) Information collection. The application procedures in this 
section constitute information collection requirements as defined in 5 
CFR part 1320. These requirements have been approved by the Office of 
Management and Budget and assigned clearance number 0596-0114.
    (e) Persons with approved shares. The application period for shares 
of the indirect substitution exception for acquiring unprocessed timber 
originating from National Forest Systems lands within the State of 
Washington closed on January 8, 1992. Persons with approved shares are 
responsible for monitoring and controlling their acquisitions of 
National Forest System timber originating from within the State of 
Washington to assure approved share amounts are not exceeded in any 
Federal fiscal year. Unused portions of annual shares may not be 
``banked'' for use in future fiscal years. The acquisition of such 
National Forest System timber must be reported to the Forest Service in 
accordance with Sec. 223.193 of this subpart. The following shares are 
approved as of September 8, 1995:
    (1) Cavenham Forest Industries, Portland, OR, 1,048,000 board feet.
    (2) Weyerhauser, Tacoma, WA, 15,000,000 board feet.



                    Subpart G_Special Forest Products

    Source: 73 FR 79386, Dec. 29, 2008, unless otherwise noted.

    Effective Date Note: At 73 FR 79386, Dec. 29, 2008, subpart G was 
added, effective Jan. 28, 2009. At 74 FR 5107, Jan. 29, 2009, the 
amendment was delayed until Mar. 30, 2009. At 74 FR 14049, Mar. 30, 
2009, the amendment

[[Page 183]]

was further delayed until May 29, 2009. At 74 FR 26091, June 1, 2009, 
the amendment was delayed indefinitely.



Sec. 223.215  Applicability.

    The regulations contained in this subpart govern the disposal of 
special forest products from National Forest System lands through sale 
and free use. Pursuant to the Department of the Interior and Related 
Agencies Appropriations Act of 2000 (Pub. L. 106-113, Div. B, sec. 
1000(a)(3), 113 Stat. 135 (sec. 339 of Title III of H.R. 3423)), as 
amended in 2004 by Section 335 of Public Law 108-108, special forest 
products that are also forest botanical products shall be sold, or 
offered for free use, subject to the requirements of subpart H of this 
part, until termination of the forest botanical pilot program. A 
commercial sale of special forest products shall be governed by a 
contract, permit, or other authorizing instrument. Free use above the 
incidental-use harvest level shall be conducted under a permit, unless 
otherwise provided.



Sec. 223.216  Special Forest Products definitions.

    As used in this subpart:
    Person: Any individual, partnership, corporation, association, 
Tribe, or other legal entity.
    Special forest products: Products collected from National Forest 
System lands that include, but are not limited to, bark, berries, 
boughs, bryophytes, bulbs, burls, Christmas trees, cones, ferns, 
firewood, forbs, fungi (including mushrooms), grasses, mosses, nuts, 
pine straw, roots, sedges, seeds, transplants, tree sap, wildflowers, 
fence material, mine props, posts and poles, shingle and shake bolts, 
and rails. Special forest products do not include sawtimber, pulpwood, 
non-sawlog material removed in log form, cull logs, small roundwood, 
house logs, telephone poles, derrick poles, minerals, animals, animal 
parts, insects, worms, rocks, water, and soil.



Sec. 223.217  Authority to dispose of special forest products.

    The Forest Service has authority to dispose of special forest 
products located on National Forest System lands pursuant to the 
Multiple-Use Sustained-Yield Act of 1960, as amended (16 U.S.C. 528-
531); the National Forest Management Act of 1976, as amended (16 U.S.C. 
472a et seq.); and, the Forest and Rangeland Renewable Resources 
Planning Act of 1974, as amended (16 U.S.C. 1600-1614).



Sec. 223.218  Consistency with plans, environmental standards, and 
other management requirements.

    The disposal of special forest products from National Forest System 
lands shall be consistent with applicable land management plans. Each 
contract, permit, or other authorizing instrument shall include, as 
appropriate, provisions requiring the person or user to:
    (a) Provide fire protection and suppression;
    (b) Protect natural resources;
    (c) Regenerate harvested species after harvesting operations;
    (d) Minimize soil erosion;
    (e) Maintain favorable conditions of water flow and quality;
    (f) Minimize adverse effects on, protect, or enhance other national 
forest resources, uses, and improvements; and
    (g) Deposit voucher specimens with a curator of a nationally 
recognized herbarium in North America as identified in the Index 
Herbariorum when the permit, contract, or other authorizing instrument 
allows bioprospecting.



Sec. 223.219  Sustainable harvest of special forest products.

    (a) Sustainable harvest levels. Prior to offering a special forest 
product for sale or free use, the responsible forest officer must 
determine the product's sustainable harvest level. A special forest 
product's sustainable harvest level is the total quantity of the product 
that can be harvested annually in perpetuity on a sustained yield basis. 
Responsible forest officers shall not authorize harvest or free use of 
special forest products in an amount exceeding known sustainable harvest 
levels. In determining a sustainable harvest level, the responsible 
forest officer may consider harvest levels of the product for the 
previous three years, if such information is available. Responsible 
forest officers may consider factors such

[[Page 184]]

as year-to-year and site-to-site variability, climate, weather change, 
geographic scale, and scientific data available prior to making their 
sustainability determination and establishing monitoring time frames 
consistent with paragraph (c) of this section. Responsible forest 
officers will consult with Tribes, to the extent appropriate, to 
determine sustainable harvest levels based on historical information. In 
addition, responsible forest officers may consult with other appropriate 
parties to determine sustainable harvest levels based on historical 
information.
    (b) Harvest of protected species. The sale or free use of special 
forest products listed or proposed for listing as endangered or 
threatened under the Endangered Species Act is prohibited, except as 
authorized by the U.S. Fish and Wildlife Service. Moreover, regional 
guidelines will identify when the sale or free use of any special forest 
product listed on the Regional Forester's sensitive plant list, species 
of concern list, species of interest list, or protected under the 
Convention on International Trade in Endangered Species may be 
authorized.
    (c) Monitoring of established harvest levels. At least once every 
three fiscal years, or as otherwise established by the Regional 
Forester, the Forest Service shall monitor the effects of harvesting on 
the sustainability of special forest products. Such monitoring may 
include, but is not limited to, on-site examination of the product, 
including both harvested and non-harvested areas, and a review of past 
and projected harvest levels to the extent such information is 
available.
    (d) Revision of harvest levels. The sustainable harvest level for a 
special forest product may be increased or decreased, as appropriate, 
based on monitoring.



Sec. 223.220  Quantity determination.

    Sale contracts, permits, or other authorizing instruments may 
provide for determining the quantity of special forest products by 
scaling, measuring, weighing, counting, or other reliable means.

                          Appraisal and Pricing



Sec. 223.221  Establishing minimum rates.

    The Chief of the Forest Service shall establish minimum rates for 
the sale of special forest products or groups of special forest 
products. Products must be sold for appraised value or minimum rates, 
whichever is higher. No products may be sold or harvested for less than 
minimum rates except to provide for the removal of insect infested, 
diseased, dead or distressed products.



Sec. 223.222  Appraisal.

    The Chief of the Forest Service shall determine the appraised value 
of special forest products. Valid methods to determine appraised value 
include, but are not limited to, transaction evidence appraisals, 
analytical appraisals, comparison appraisals, and independent estimates 
based on average investments. Special forest products must be sold at 
minimum rates or appraised value, whichever is higher.

              Contract and Permit Conditions and Provisions



Sec. 223.223  Advance payment.

    Contracts, permits, or other authorizing instruments for the sale of 
special forest products shall require advance payment, unless the 
contract, permit, or instrument authorizes the person 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 person or their successor in interest, subject to the 
requirements of the Debt Collection Improvement Act.



Sec. 223.224  Performance bonds and security.

    A contract, permit, or other authorizing instrument for the sale of 
special forest products may require the person to furnish a performance 
bond or other security for satisfactory compliance with its terms.



Sec. 223.225  Term.

    The term of any contract, permit, or other authorizing instrument 
for the sale of special forest products shall not exceed 10 years, 
unless the Secretary of

[[Page 185]]

Agriculture finds that better utilization of the various forest 
resources consistent with the Multiple-Use Sustained-Yield Act of 1960, 
as amended (16 U.S.C. 528-531) will result. Any such finding by the 
Secretary of Agriculture shall be made in writing.



Sec. 223.226  Term adjustments for force majeure delay.

    Contracts or other authorizing instruments for the sale of special 
forest products, excluding permits, may contain a provision allowing the 
term to be extended if circumstances beyond the person's reasonable 
control delay performance. In determining whether such an extension is 
appropriate, responsible forest officers shall consider the value of the 
products or species, the length and type of authorizing instrument, the 
need for early/accelerated harvest, and any other appropriate factors. 
Circumstances beyond a person's reasonable control may include, but are 
not limited to, acts of God, acts of the public enemy, acts of the 
Government, labor disputes, fires, insurrections, and floods. The 
responsible forest officer may grant such an extension upon finding:
    (a) Circumstances beyond the person's reasonable control delayed 
performance; and
    (b) The person has diligently performed in accordance with the 
contract or other authorizing instrument.

                         Advertisement and Bids



Sec. 223.227  Sale advertisement.

    (a) The Forest Service shall advertise any special forest products 
sales with an appraised value equal to or greater than $10,000 for at 
least 30 days, except as provided in paragraph (c) of this section.
    (b) When the sale's appraised value is less than $10,000, the Forest 
Service may sell the products without advertisement; however, if there 
is competitive interest in a sale valued at less than $10,000, the 
Forest Service shall advertise the sale for no less than 7 days.
    (c) Notwithstanding paragraphs (a) and (b) of this section, the 
Forest Service may, at its discretion, sell any special forest products 
without advertisement, or advertise a special forest products sale for a 
period less than 30 days if:
    (1) Deterioration of a special forest product threatens its value; 
or
    (2) The products were previously advertised for competitive bidding 
and no satisfactory bids were received; or
    (3) The products are remaining from expired, cancelled, or abandoned 
contracts, permits, or other authorizing instruments.



Sec. 223.228  Contents of advertisement.

    The Forest Service shall include the following information in an 
advertisement for the sale of special forest products:
    (a) The location and estimated quantities of special forest products 
offered for sale;
    (b) The time and place at which sealed bids will be opened in 
public;
    (c) A provision asserting the Agency's right to reject any and all 
bids;
    (d) The place where complete information on the offering may be 
obtained; and
    (e) Notice that a prospectus is available to the public and to 
interested potential bidders.



Sec. 223.229  Contents of prospectus.

    The prospectus for the sale of special forest products shall include 
the following:
    (a) The minimum acceptable value or unit price for a product and the 
amount or rate of any deposits required in addition to the unit price of 
a product;
    (b) The amount of the bid guarantee that must accompany each bid;
    (c) The amount of the deposit or downpayment the successful bidder 
must make and the time-frame for making such deposit or downpayment;
    (d) The location and area of the sale, including acreage;
    (e) The estimated volumes, quality, size, or other appropriate 
measure for the special forest products;
    (f) A description of any special harvest and removal requirements 
for the sale;
    (g) The method of bidding that the Forest Service will employ; 
sealed bid or sealed bid followed by oral auction;

[[Page 186]]

    (h) The type of contract, permit, or other authorizing instrument to 
be used for the sale;
    (i) The termination date and normal operating season, if any, of the 
contract, permit, or other authorizing instrument;
    (j) The amount of performance bond required; and
    (k) Such additional information about the sale as the Forest Service 
deems appropriate in order to encourage bidders to perform on-site 
investigations.



Sec. 223.230  Bid restriction on resale of incomplete contracts,
permits, or other instruments.

    In any resale of special forest products remaining from a previous 
sale, the Forest Service shall not consider a bid submitted by a person 
who failed to complete or defaulted the original contract, permit, or 
other instrument authorizing the sale, or from any affiliate of such 
person, except when such consideration serves the public interest.



Sec. 223.231  Bidding methods.

    The Contracting Officer or designated forest officer shall offer 
advertised sales of special forest products through sealed bid or sealed 
bid followed by oral auction. The method selected shall:
    (a) Ensure open and fair competition;
    (b) Ensure that the Federal Government receives minimum rates or 
appraised value, whichever is higher;
    (c) Be consistent with the National Forest Management Act and other 
applicable federal laws;
    (d) Require, as a prerequisite to participation in an oral auction, 
that a bidder submit a written sealed bid at least equal to the minimum 
acceptable bid price(s) specified in the prospectus. The Forest Service 
shall not accept a bid at oral auction that is less than the bidder's 
initial sealed bid; and
    (e) Specify the use of sealed bids or a mix of bidding methods in 
the affected area where there is a reasonable belief that collusive and/
or abnormal bidding practices may be occurring.



Sec. 223.232  Disclosure of relation to other bidders.

    The Forest Service may require any prospective bidder for special 
forest products to disclose its relationship with other potential 
bidders or operators. Such disclosure may include a certified statement 
listing:
    (a) Stockholders or members of the bidder's firm;
    (c) Officers;
    (d) Members of the board of directors; or
    (e) Holders of bonds, notes, or other types of debt.

      Award of Contracts, Permits, or Other Authorizing Instruments



Sec. 223.233  Award to highest bidder.

    (a) The Forest Service shall award contracts, permits, or other 
authorizing instruments for advertised sales as follows:
    (1) The Forest Service will award a special forest products sale to 
the responsible bidder that submits the highest bid that conforms to the 
sale conditions in the prospectus.
    (2) If the highest bidder cannot meet the conditions for the sale, 
as specified in the prospectus, the Forest Service may:
    (i) Reject all bids and reoffer the sale, or
    (ii) Offer the award at the high bid level to the next highest 
qualified bidder until the award is accepted or refused by all of the 
conforming bidders.
    (iii) In the event of a tie between two or more responsible high 
bidders submitting conforming bids, the Forest Service shall award the 
sale by drawing of lots.
    (iv) If no bids meet the specified conditions in the sale's 
prospectus, or if there are other irregularities in the bidding process, 
the Forest Service may reject all bids, and, at its discretion, reoffer 
the sale.
    (b) [Reserved]



Sec. 223.234  Determination of responsibility.

    (a) A Contracting Officer shall not award a contract, permit, or 
other instrument authorizing the sale of special forest products to a 
declared high

[[Page 187]]

bidder unless that officer makes an affirmative determination that the 
person is responsible. In the absence of information clearly 
establishing that the declared high bidder is responsible, the 
Contracting Officer shall conclude that the declared high bidder is not 
responsible.
    (b) In order to make an affirmative determination of responsibility, 
the Contracting Officer must find that:
    (1) The declared high bidder has adequate financial resources to 
perform the contract, permit, or other authorizing instrument, or the 
ability to obtain such resources;
    (2) The declared high bidder is able to complete the contract, 
permit, or other authorizing instrument within the relevant term, taking 
into consideration the declared high bidder's other existing commercial 
and governmental obligations;
    (3) The declared high bidder has a satisfactory record of integrity 
and business ethics;
    (4) The declared high bidder has or is able to obtain equipment and 
supplies suitable for harvesting the special forest product(s) and for 
meeting applicable resource protection requirements;
    (5) The declared high bidder is otherwise qualified and eligible to 
receive an award of a contract, permit, or other authorizing instrument 
under all applicable laws and regulations;
    (6) The declared high bidder has a satisfactory performance record 
on contracts, permits, and other agreements with the U.S. Government. 
Failure to apply sufficient diligence and perseverance to perform a 
contract, permit, or other instrument is strong evidence that a declared 
high bidder is not responsible. A declared high bidder that is, or has 
been deficient in performance shall be deemed not responsible, unless 
the declared high bidder demonstrates that the deficiency arose from 
circumstances beyond their reasonable control.
    (c) Affiliated concerns, as defined in 36 CFR 223.49(a)(5), are 
normally considered separate entities in determining whether the 
declared high bidder that is to perform the contract meets the 
applicable standards for responsibility. However, the responsible Forest 
Officer shall consider an affiliate's past performance and integrity 
when they may adversely affect the responsibility of the declared high 
bidder.



Sec. 223.235  Unilateral delay, suspension, or modification of 
contracts, permits, or other instruments authorizing the sale of

special forest products.

    (a) Reasons for delay, suspension or modification. The Forest 
Service may unilaterally delay, suspend, or modify any contract, permit, 
or instrument authorizing the sale or free use of special forest 
products for any of the following reasons:
    (1) To prevent actual or potential harm to the environment, 
including without limitation, harm to land, water, air, habitat, plants, 
animals, cave resources, or cultural resources;
    (2) To ensure consistency with land management plans or other 
management documents;
    (3) To conduct environmental analyses, including, without 
limitation, consultation under the Endangered Species Act of 1973, 16 
U.S.C. 1531, et seq;
    (4) Existing or threatened litigation that might affect or involve a 
person's harvest of special forest products; or
    (5) For any reasons or other conditions set forth in the contract, 
permit, or other authorizing instrument governing the sale.
    (b) Compensation. (1) The Forest Service may compensate a person for 
the unilateral delay, suspension or modification of a contract, permit, 
or other authorizing instrument in accordance with the applicable 
provisions set forth in such document or, in the absence of such 
provisions, in accordance with applicable Forest Service methods and 
procedures in effect when a claim for compensation is submitted, giving 
due consideration to the cause, duration, and financial impact of the 
delay, suspension or modification.
    (2) A person submitting a claim must comply with claim provisions in 
the governing contract, permit, or other authorizing instrument, or, in 
the absence of such provisions, must submit a written claim for 
compensation accompanied by supporting documentation that fully 
substantiates the claim.

[[Page 188]]

    (c) Authority to unilaterally delay, suspend or modify. The 
Contracting Officer administering the sale or a responsible superior 
officer may delay, suspend, or modify the contract, permit, or other 
authorizing instrument by issuing instructions to a person to delay, 
suspend, or modify operations. Such instructions to delay, suspend or 
modify shall be issued to a person in writing, except when exigent 
circumstances warrant oral communication, in which case the officer 
shall promptly follow-up in writing.



Sec. 223.236  Unilateral termination.

    (a) Reasons for Unilateral Termination. The Forest Service may 
unilaterally terminate a contract, permit, or other instrument 
authorizing the sale or free use of special forest products for any of 
the following reasons:
    (1) Any of the reasons provided in Sec. 223.235(a);
    (2) Material breach or continued violation of the contract, permit 
or other authorizing instrument;
    (3) Violation of any Federal or State laws or regulations related 
to:
    (i) Obtaining, attempting to obtain, selling, trading, or processing 
special forest products;
    (ii) Obtaining, attempting to obtain, or performing a public 
contract or subcontract;
    (iii) Harming or damaging public lands or protected species; or
    (iv) Business integrity, honesty, or responsibility.
    (b) Compensation. (1) The Forest Service may compensate a person for 
the unilateral termination of a contract, permit, or other authorizing 
instrument in accordance with the applicable provisions set forth in 
such document or, in the absence of such provisions, in accordance with 
applicable Forest Service methods and procedures in effect when a claim 
for compensation is submitted, giving due consideration to the cause, 
duration, and financial impact of the termination.
    (2) A person submitting a claim must comply with claim provisions in 
the governing contract, permit, or other authorizing instrument, or, in 
the absence of such provisions, must submit a written claim for 
compensation accompanied by supporting documentation that fully 
substantiates the claim.
    (3) No compensation shall be provided if the unilateral termination 
is due in whole or in part to the reasons set forth at Sec. 
223.236(a)(2) or (3).
    (c) Authority to unilaterally terminate. The Chief, or the Chief's 
designee, has the authority to unilaterally terminate a contract, 
permit, or other instrument authorizing the sale or free use of special 
forest products. Any such termination shall be issued in writing, except 
when exigent circumstances warrant oral communication, in which case a 
written communication shall follow promptly.



Sec. 223.237  Request for delay, suspension, modification, or 
termination.

    (a) Request. A person authorized to harvest special forest products 
may request delay, suspension, modification, or termination of their 
contract, permit, or other authorizing instrument pursuant to the 
provisions set forth in the contract, permit, or instrument, if any, or 
for another reasonable cause, including without limitation, catastrophic 
damage to the product or substantially changed market conditions. Any 
such request must be submitted in writing and include a detailed 
explanation of all relevant circumstances supporting the request.
    (b) Response. The Forest Service shall respond to any request for 
delay, suspension, modification, or termination in accordance with 
applicable provisions in the contract, permit, or other authorizing 
instrument, or, in the absence of such provisions, respond in a manner 
that is reasonable in light of the request's circumstances. The Forest 
Service may deny any request, in whole or in part, in accordance with 
the provisions of the relevant contract, permit, or instrument, or, in 
the absence of such provisions, at the Agency's discretion.
    (c) Authority. The Contracting Officer administering a sale or a 
superior officer has the authority to deny or grant any request by a 
person authorized to harvest special forest products to delay, modify, 
suspend, or terminate a contract, permit, or other authorizing

[[Page 189]]

instrument. The Forest Service's response to a request for delay, 
modification, suspension, or termination shall be issued in writing, 
except when exigent circumstances warrant oral communication, in which 
case a written communication shall follow promptly.



Sec. 223.238  Free use authorization to U.S. Army and Navy.

    Subject to delegations of authority by the Chief, Regional Foresters 
may approve the harvest of special forest products by the U.S. Army and 
Navy for the purposes identified at 16 U.S.C. 492.



Sec. 223.239  Free use by individuals.

    (a) Free use. A person may harvest a special forest product from 
National Forest System lands free of charge for personal, non-commercial 
use up to the amount or quantity authorized by a designated Forest 
Service officer, a Forest Supervisor, or a Regional Forester, as 
delegated at 36 CFR 223.8.
    (b) Free use without a permit up to the incidental use harvest 
level. No permit is required for the free use of a special forest 
product at or below that product's incidental-use harvest level, which 
shall be determined at the discretion of the regional forester or a 
subordinate officer. The incidental use harvest level covers small 
amounts of special forest products, such as cones, mushrooms, berries, 
acorns, black walnuts, or medicinal roots. Any free use of a special 
forest product that does not have an incidental-use harvest level is 
subject to this section's permit requirements.
    (c) Free-use permit requirement. No person seeking free use of a 
special forest product, except one identified in Sec. 223.239(e), may 
harvest a special forest product above the product's incidental-use 
harvest level without submitting an application to a forest officer and 
obtaining a free-use permit, unless the permit requirement has been 
waived for a specific special forest product in a designated free-use 
area.
    (d) Contents of the permit. The permit shall indicate the type, 
amount, and/or value of the product to be harvested, the permit's 
duration, and shall contain other restrictions and requirements as 
appropriate.
    (e) Free use without a permit for members of Tribes with treaty or 
other reserved rights related to special forest products. A member of a 
Tribe with treaty or other reserved rights related to special forest 
products retains his/her ability to harvest such products in full 
accordance with existing rights, including free-use harvest without 
obtaining a free-use permit, as specified in treaty or other reserved 
rights.
    (f) Free use without a permit upon the request of the governing body 
of a Tribe. At the Agency's discretion, responsible forest officers may, 
upon the request of an authorized representative of the governing body 
of a Tribe, issue a permit that would not otherwise be required under 
paragraph (e) of this section to a Tribe with treaty or other reserved 
rights related to special forest products for the free use of a 
specified quantity of special forest products. That Tribe may then 
allocate specified quantities of the special forest product(s) to 
individual Tribal members, up to the maximum amount specified in the 
Tribal free-use permit. Any Tribe issued such a permit must provide the 
Forest Service with information related to the permitted harvest, upon 
request.
    (g) Free-use restrictions. A Forest Officer may set conditions on 
the free-use harvest of a special forest product or deny the free use of 
a special forest product. Reasons for denying free-use access or setting 
conditions on free use, except as specified in Sec. 223.240, may 
include, but are not limited to:
    (1) Ensuring public safety;
    (2) Preventing interference with Forest Service and/or commercial 
operations;
    (3) Ensuring the sustainability of a special forest product; or
    (4) Otherwise protecting National Forest System land.
    (h) Unilateral termination of a free-use permit. The responsible 
forest officer, or any superior officer, may terminate a free use permit 
without compensation at any time for reasons including, but not limited 
to, resource protection, weather factors, fire season, road access, 
conflicts with other users, or permit violations.

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    (i) Subsistence in Alaska. This section does not affect subsistence 
uses implemented under Title VIII of the Alaska National Interest Lands 
Conservation Act (16 U.S.C. 3101-3126).



Sec. 223.240  Tribes and treaty and other reserved rights.

    Tribes with treaty or other reserved rights related to special 
forest products retain their ability to harvest special forest products 
in full accordance with existing rights. However, consistent with all 
applicable rights, Regional Foresters may set conditions on Tribes with 
treaty or other reserved rights related to special forest products to 
protect the sustainability of special forest products or to otherwise 
protect National Forest System land. Regional Foresters may only 
prohibit Tribes with treaty or other reserved rights related to special 
forest products from harvesting a special forest product to protect 
public health and safety or to ensure sustainable harvest levels. 
Regional Foresters will provide a Tribe with treaty or other reserved 
rights related to special forest products that is prohibited from 
harvesting a special forest product with written documentation 
supporting the decision.



Sec. 223.241  Disposal of seized special forest products.

    The Forest Service may dispose of seized special forest products 
that have been illegally obtained from National Forest System lands by 
sale or free use. Any sale of such products shall be conducted in 
accordance with the requirements of this subpart; however, no seized 
special forest products shall be sold to the person who collected them 
illegally. The Forest Service shall not dispose of a seized product by 
sale or free use if that product is:
    (a) Listed or proposed for listing as threatened or endangered under 
the Endangered Species Act;
    (b) Identified as prohibited for sale or trade under the Convention 
on Internal Trade in Endangered Species; or
    (c) Listed on the Regional Forester's sensitive plant list, species 
of concern list, or species of interest list.



Sec. 223.242  Supplemental guidance, Memorandum of Agreements and 
Memorandums of Understanding.

    Consistent with subparts G and H of this part, regional foresters 
may issue supplemental guidance and approve Memorandums of Agreement and 
Memorandums of Understanding to promote local collaboration, issue 
resolution, and local implementation of these regulations. Existing 
Memorandums of Agreement and Memorandums of Understanding related to 
forest products must be made consistent with subparts G and H within 24 
months from December 29, 2008 or those agreements will terminate.



                   Subpart H_Forest Botanical Products

    Source: 73 FR 79386, Dec. 29, 2008, unless otherwise noted.

    Effective Date Note: At 73 FR 79386, Dec. 29, 2008, subpart H was 
added, effective Jan. 28, 2009. At 74 FR 5107, Jan. 29, 2009, the 
amendment was delayed until Mar. 30, 2009. At 74 FR 14049, Mar. 30, 
2009, the amendment was further delayed until May 29, 2009. At 74 FR 
26091, June 1, 2009, the amendment was delayed indefinitely.



Sec. 223.275  Establishment of a pilot program.

    This subpart governs the Forest Service's pilot program for the 
disposal of forest botanical products, as authorized by the Department 
of the Interior and Related Agencies Appropriations Act of 2000, (Pub. 
L. 106-113, Div. B, sec. 1000(a)(3), 113 Stat. 135 (enacting into law 
sec. 339 of Title III of H.R. 3423)), as amended in 2004 by Section 335 
of Public Law 108-108. The pilot program shall be in effect through 
September 30, 2009, unless extended or made permanent by Congress.



Sec. 223.276  Applicability.

    This subpart applies to the sale and free use of forest botanical 
products, as defined in Sec. 223.277, from National Forest System 
lands, until September 30, 2009, unless the pilot program is extended or 
made permanent by Congress. The Forest Service shall dispose of forest 
botanical products in accordance with the procedures set forth in 36

[[Page 191]]

CFR part 223 Subpart G, subject to the requirements of this subpart.



Sec. 223.277  Forest botanical products definition.

    As used in this subpart, the following term shall mean:
    Forest botanical products are: Naturally occurring special forest 
products, including, but not limited to, bark, berries, boughs, 
bryophytes, bulbs, burls, cones, ferns, fungi (including mushrooms), 
forbs, grasses, mosses, nuts, pine straw, roots, sedges, seeds, shrubs, 
transplants, tree sap, and wildflowers. Forest botanical products are 
not animals, animal parts, Christmas trees, fence material, firewood, 
insects, mine props, minerals, posts and poles, rails, rocks, shingle 
and shake bolts, water, worms, and soil.



Sec. 223.278  Sale of forest botanical products and collection of fees.

    The responsible Forest Officer shall ensure that the sale price of 
any forest botanical product includes a portion of the product's fair 
market value and a portion of the costs incurred by the Department of 
Agriculture associated with granting, modifying, or monitoring the 
authorization for harvest of forest botanical products, including the 
costs of any environmental or other analysis. The fair market value of 
forest botanical products shall be equal to the appraised value 
determined in accordance with Sec. 223.222. The sum of the portions of 
fair market value and costs making up the sale price must be greater 
than or equal to the forest botanical product's fair market value. All 
other aspects related to the sale of forest botanical products shall be 
governed under 36 CFR part 223 Subpart G.



Sec. 223.279  Personal use.

    (a) Personal use. A person may harvest forest botanical products 
from National Forest Systems lands free of charge for personal, non-
commercial use up to the personal-use harvest level.
    (b) Personal use harvest level. In conjunction with determining 
sustainable harvest levels under Sec. 223.219, the responsible Forest 
Officer shall determine personal-use harvest levels for specific forest 
botanical products, which shall be equal to the amount or quantity 
authorized for free use under Sec. 223.239(a).
    (c) Personal-use permit requirement. A person seeking personal use 
of a forest botanical product must comply with the free-use permitting 
requirements of Sec. 223.239.



Sec. 223.280  Waiver of fees and/or fair market value.

    The Forest Service waives the collection of fees otherwise required 
pursuant to Sec. 223.278 of this subpart as follows:
    (a) For all federally-recognized Tribes seeking to harvest forest 
botanical products for cultural, ceremonial, and/or traditional 
purposes. Such purposes must be non-commercial, and any such harvest may 
be conditioned or denied for reasons similar to those provided in Sec. 
223.240 of subpart G; and
    (b) For Tribes with treaty or other reserved rights seeking to 
harvest forest botanical products for cultural, ceremonial, and/or 
traditional purposes in accordance with such treaty or other reserved 
rights. Such purposes must be non-commercial, and any such harvest may 
be conditioned or denied for reasons similar to those provided in Sec. 
223.240 of subpart G; and
    (c) When a Regional Forester or Forest Supervisor, having proper 
authorization from the Chief, makes a written determination that:
    (1) The harvest of a specified forest botanical product will 
facilitate non-commercial scientific research such as species 
propagation or sustainability: or
    (2) A forest botanical product is salvage because other management 
activities will destroy or damage the product.



Sec. 223.281  Monitoring and revising sustainable harvest levels.

    The Forest Service shall monitor and revise sustainable harvest 
levels for forest botanical products in accordance with Sec. 223.219 of 
subpart G.

[[Page 192]]



Sec. 223.282  Deposit and expenditure of collected fees.

    (a) Funds collected under the pilot program for the harvest and sale 
of forest botanical products shall be deposited into a special account 
in the Treasury of the United States. These funds shall be available for 
expenditure at National Forests or National Grasslands where the funds 
were collected until September 30, 2010, unless the program is extended.
    (b) Funds deposited into the special account specified in paragraph 
(a) of this section shall be expended at a National Forest or National 
Grassland in an amount equal to the fees collected at that unit and 
shall be used to pay for the costs of:
    (1) Conducting inventories of forest botanical products;
    (2) Determining, monitoring, and revising sustainable harvest levels 
for forest botanical products;
    (3) Monitoring and assessing the impact of harvest levels and 
methods;
    (4) Conducting restoration activities, including vegetation 
restoration; and
    (5) Administering the pilot program, including environmental or 
other analyses.



PART 228_MINERALS--Table of Contents



                      Subpart A_Locatable Minerals

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

                       Subpart B_Leasable Minerals

228.20-228.39 [Reserved]

                 Subpart C_Disposal of Mineral Materials

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

                           General Provisions

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

                      Types and Methods of Disposal

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

               Subpart D_Miscellaneous Minerals Provisions

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

                     Subpart E_Oil and Gas Resources

228.100 Scope and applicability.
228.101 Definitions.

                                 Leasing

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

              Authorization of Occupancy Within a Leasehold

228.105 Issuance of onshore orders and notices to lessees.
228.106 Operator's submission of surface use plan of operations.
228.107 Review of surface use plan of operations.

[[Page 193]]

228.108 Surface use requirements.
228.109 Bonds.
228.110 Indemnification.

                      Administration of Operations

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

    Authority: 16 U.S.C. 478, 551; 30 U.S.C. 226, 352, 601, 611; 94 
Stat. 2400.

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



                      Subpart A_Locatable Minerals



Sec. 228.1  Purpose.

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



Sec. 228.2  Scope.

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



Sec. 228.3  Definitions.

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



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

    (a) Except as provided in paragraph (a)(1) of this section, a notice 
of intent to operate is required from any person proposing to conduct 
operations which might cause significant disturbance of surface 
resources. Such notice of intent to operate shall be submitted to the 
District Ranger having jurisdiction over the area in which the 
operations will be conducted. Each notice of intent to operate shall 
provide information sufficient to identify the area involved, the nature 
of the proposed operations, the route of access to the area of 
operations, and the method of transport.
    (1) A notice of intent to operate is not required for:
    (i) Operations which will be limited to the use of vehicles on 
existing public roads or roads used and maintained for National Forest 
System purposes;
    (ii) Prospecting and sampling which will not cause significant 
surface resource disturbance and will not involve removal of more than a 
reasonable amount of mineral deposit for analysis and study which 
generally might include searching for and occasionally removing small 
mineral samples or specimens, gold panning, metal detecting, non-
motorized hand sluicing, using

[[Page 194]]

battery operated dry washers, and collecting of mineral specimens using 
hand tools;
    (iii) Marking and monumenting a mining claim;
    (iv) Underground operations which will not cause significant surface 
resource disturbance;
    (v) Operations, which in their totality, will not cause surface 
resource disturbance which is substantially different than that caused 
by other users of the National Forest System who are not required to 
obtain a Forest Service special use authorization, contract, or other 
written authorization;
    (vi) Operations which will not involve the use of mechanized 
earthmoving equipment, such as bulldozers or backhoes, or the cutting of 
trees, unless those operations otherwise might cause a significant 
disturbance of surface resources; or
    (vii) Operations for which a proposed plan of operations is 
submitted for approval;
    (2) The District Ranger will, within 15 days of receipt of a notice 
of intent to operate, notify the operator if approval of a plan of 
operations is required before the operations may begin.
    (3) An operator shall submit a proposed plan of operations to the 
District Ranger having jurisdiction over the area in which operations 
will be conducted in lieu of a notice of intent to operate if the 
proposed operations will likely cause a significant disturbance of 
surface resources. An operator also shall submit a proposed plan of 
operations, or a proposed supplemental plan of operations consistent 
with Sec. 228.4(d), to the District Ranger having jurisdiction over the 
area in which operations are being conducted if those operations are 
causing a significant disturbance of surface resources but are not 
covered by a current approved plan of operations. The requirement to 
submit a plan of operations shall not apply to the operations listed in 
paragraphs (a)(1)(i) through (v). The requirement to submit a plan of 
operations also shall not apply to operations which will not involve the 
use of mechanized earthmoving equipment, such as bulldozers or backhoes, 
or the cutting of trees, unless those operations otherwise will likely 
cause a significant disturbance of surface resources.
    (4) If the District Ranger determines that any operation is causing 
or will likely cause significant disturbance of surface resources, the 
District Ranger shall notify the operator that the operator must submit 
a proposed plan of operations for approval and that the operations can 
not be conducted until a plan of operations is approved.
    (b) Any person conducting operations on the effective date of these 
regulations, who would have been required to submit a plan of operations 
under Sec. 228.4(a), may continue operations but shall within 120 days 
thereafter submit a plan of operations to the District Ranger having 
jurisdiction over the area within which operations are being conducted: 
Provided, however, That upon a showing of good cause the authorized 
officer will grant an extension of time for submission of a plan of 
operations, not to exceed an additional 6 months. Operations may 
continue according to the submitted plan during its review, unless the 
authorized officer determines that the operations are unnecessarily or 
unreasonably causing irreparable damage to surface resources and advises 
the operator of those measures needed to avoid such damage. Upon 
approval of a plan of operations, operations shall be conducted in 
accordance with the approved plan. The requirement to submit a plan of 
operations shall not apply: (1) To operations excepted in Sec. 228.4(a) 
or (2) to operations concluded prior to the effective date of the 
regulations in this part.
    (c) The plan of operations shall include:
    (1) The name and legal mailing address of the operators (and 
claimants if they are not the operators) and their lessees, assigns, or 
designees.
    (2) A map or sketch showing information sufficient to locate the 
proposed area of operations on the ground, existing and/or proposed 
roads or access routes to be used in connection with the operations as 
set forth in Sec. 228.12 and the approximate location and size of areas 
where surface resources will be disturbed.

[[Page 195]]

    (3) Information sufficient to describe or identify the type of 
operations proposed and how they would be conducted, the type and 
standard of existing and proposed roads or access routes, the means of 
transportation used or to be used as set forth in Sec. 228.12, the 
period during which the proposed activity will take place, and measures 
to be taken to meet the requirements for environmental protection in 
Sec. 228.8.
    (d) The plan of operations shall cover the requirements set forth in 
paragraph (c) of this section, as foreseen for the entire operation for 
the full estimated period of activity: Provided, however, That if the 
development of a plan for an entire operation is not possible at the 
time of preparation of a plan, the operator shall file an initial plan 
setting forth his proposed operation to the degree reasonably 
foreseeable at that time, and shall thereafter file a supplemental plan 
or plans whenever it is proposed to undertake any significant surface 
disturbance not covered by the initial plan.
    (e) At any time during operations under an approved plan of 
operations, the authorized officer may ask the operator to furnish a 
proposed modification of the plan detailing the means of minimizing 
unforeseen significant disturbance of surface resources. If the operator 
does not furnish a proposed modification within a time deemed reasonable 
by the authorized officer, the authorized officer may recommend to his 
immediate superior that the operator be required to submit a proposed 
modification of the plan. The recommendation of the authorized officer 
shall be accompanied by a statement setting forth in detail the 
supporting facts and reasons for his recommendations. In acting upon 
such recommendation, the immediate superior of the authorized officer 
shall determine:
    (1) Whether all reasonable measures were taken by the authorized 
officer to predict the environmental impacts of the proposed operations 
prior to approving the operating plan,
    (2) Whether the disturbance is or probably will become of such 
significance as to require modification of the operating plan in order 
to meet the requirements for environmental protection specified in Sec. 
228.8 and
    (3) Whether the disturbance can be minimized using reasonable means. 
Lacking such determination that unforeseen significant disturbance of 
surface resources is occurring or probable and that the disturbance can 
be minimized using reasonable means, no operator shall be required to 
submit a proposed modification of an approved plan of operations. 
Operations may continue in accordance with the approved plan until a 
modified plan is approved, unless the immediate superior of the 
authorized officer determines that the operations are unnecessarily or 
unreasonably causing irreparable injury, loss or damage to surface 
resources and advises the operator of those measures needed to avoid 
such damage.
    (f) Upon completion of an environmental analysis in connection with 
each proposed operating plan, the authorized officer will determine 
whether an environmental statement is required. Not every plan of 
operations, supplemental plan or modification will involve the 
preparation of an environmental statement. Environmental impacts will 
vary substantially depending on whether the nature of operations is 
prospecting, exploration, development, or processing, and on the scope 
of operations (such as size of operations, construction required, length 
of operations and equipment required), resulting in varying degrees of 
disturbance to vegetative resources, soil, water, air, or wildlife. The 
Forest Service will prepare any environmental statements that may be 
required.
    (g) The information required to be included in a notice of intent or 
a plan of operations, or supplement or modification thereto, has been 
assigned Office of Management and Budget Control 0596-0022. The 
public reporting burden for this collection of information is estimated 
to vary from a few minutes for an activity involving little or no 
surface disturbance to several months for activities involving heavy 
capital investments and significant surface disturbance, with an average 
of 2 hours per individual response. This includes time for reviewing 
instructions, searching existing data sources, gathering and maintaining 
the data needed,

[[Page 196]]

and completing and reviewing the collection of information. Send 
comments regarding the burden estimate or any other aspect of this 
collection of information, including suggestions for reducing this 
burden, to Chief (2800), Forest Service, USDA, P.O. Box 96090, 
Washington, DC 20090-6090 and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Washington, DC 
20503.

[39 FR 31317, Aug. 28, 1974. Redesignated at 46 FR 36142, July 14, 1981, 
and amended at 54 FR 6893, Feb. 15, 1989; 69 FR 41430, July 9, 2004; 70 
FR 32731, June 6, 2005]



Sec. 228.5  Plan of operations--approval.

    (a) Operations shall be conducted in accordance with an approved 
plan of operations, except as provided in paragraph (b) of this section 
and in Sec. 228.4 (a), (b), and (e). A proposed plan of operation shall 
be submitted to the District Ranger, who shall promptly acknowledge 
receipt thereof to the operator. The authorized officer shall, within 
thirty (30) days of such receipt, analyze the proposal, considering the 
economics of the operation along with the other factors in determining 
the reasonableness of the requirements for surface resource protection, 
and;
    (1) Notify the operator that he has approved the plan of operations; 
or
    (2) Notify the operator that the proposed operations are such as not 
to require an operating plan; or
    (3) Notify the operator of any changes in, or additions to, the plan 
of operations deemed necessary to meet the purpose of the regulations in 
this part; or
    (4) Notify the operator that the plan is being reviewed, but that 
more time, not to exceed an additional sixty (60) days, is necessary to 
complete such review, setting forth the reasons why additional time is 
needed: Provided, however, That days during which the area of operations 
is inaccessible for inspection shall not be included when computing the 
sixty (60) day period; or
    (5) Notify the operator that the plan cannot be approved until a 
final environmental statement has been prepared and filed with the 
Council on Environmental Quality as provided in Sec. 228.4(f).
    (b) Pending final approval of the plan of operations, the authorized 
officer will approve such operations as may be necessary for timely 
compliance with the requirements of Federal and State laws, so long as 
such operations are conducted so as to minimize environmental impacts as 
prescribed by the authorized officer in accordance with the standards 
contained in Sec. 228.8.
    (c) A supplemental plan or plans of operations provided for in Sec. 
228.4(d) and a modification of an approved operating plan as provided 
for in Sec. 228.4(e) shall be subject to approval by the authorized 
officer in the same manner as the initial plan of operations: Provided, 
however, That a modification of an approved plan of operations under 
Sec. 228.4(e) shall be subject to approval by the immediate superior of 
the authorized officer in cases where it has been determined that a 
modification is required.
    (d) In the provisions for review of operating plans, the Forest 
Service will arrange for consultation with appropriate agencies of the 
Department of the Interior with respect to significant technical 
questions concerning the character of unique geologic conditions and 
special exploration and development systems, techniques, and equipment, 
and with respect to mineral values, mineral resources, and mineral 
reserves. Further, the operator may request the Forest Service to 
arrange for similar consultations with appropriate agencies of the U.S. 
Department of the Interior for a review of operating plans.



Sec. 228.6  Availability of information to the public.

    Except as provided herein, all information and data submitted by an 
operator pursuant to the regulations in this part shall be available for 
examination by the public at the Office of the District Ranger in 
accordance with the provisions of 7 CFR 1.1-1.6 and 36 CFR 200.5-200.10. 
Specifically identified information and data submitted by the operator 
as confidential concerning trade secrets or privileged commercial or 
financial information will not be available for public examination. 
Information and data to be withheld from public examination may include, 
but is not limited to, known or estimated

[[Page 197]]

outline of the mineral deposits and their location, attitude, extent, 
outcrops, and content, and the known or planned location of exploration 
pits, drill holes, excavations pertaining to location and entry pursuant 
to the United States mining laws, and other commercial information which 
relates to competitive rights of the operator.



Sec. 228.7  Inspection, noncompliance.

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



Sec. 228.8  Requirements for environmental protection.

    All operations shall be conducted so as, where feasible, to minimize 
adverse environmental impacts on National Forest surface resources, 
including the following requirements:
    (a) Air Quality. Operator shall comply with applicable Federal and 
State air quality standards, including the requirements of the Clean Air 
Act, as amended (42 U.S.C. 1857 et seq.).
    (b) Water Quality. Operator shall comply with applicable Federal and 
State water quality standards, including regulations issued pursuant to 
the Federal Water Pollution Control Act, as amended (33 U.S.C. 1151 et 
seq.).
    (c) Solid Wastes. Operator shall comply with applicable Federal and 
State standards for the disposal and treatment of solid wastes. All 
garbage, refuse, or waste, shall either be removed from National Forest 
lands or disposed of or treated so as to minimize, so far as is 
practicable, its impact on the environment and the forest surface 
resources. All tailings, dumpage, deleterious materials, or substances 
and other waste produced by operations shall be deployed, arranged, 
disposed of or treated so as to minimize adverse impact upon the 
environment and forest surface resources.
    (d) Scenic Values. Operator shall, to the extent practicable, 
harmonize operations with scenic values through such measures as the 
design and location of operating facilities, including roads and other 
means of access, vegetative screening of operations, and construction of 
structures and improvements which blend with the landscape.
    (e) Fisheries and Wildlife Habitat. In addition to compliance with 
water quality and solid waste disposal standards required by this 
section, operator shall take all practicable measures to maintain and 
protect fisheries and wildlife habitat which may be affected by the 
operations.
    (f) Roads. Operator shall construct and maintain all roads so as to 
assure adequate drainage and to minimize or, where practicable, 
eliminate damage to soil, water, and other resource values. Unless 
otherwise approved by the authorized officer, roads no longer needed for 
operations:
    (1) Shall be closed to normal vehicular traffic,
    (2) Bridges and culverts shall be removed,
    (3) Cross drains, dips, or water bars shall be constructed, and
    (4) The road surface shall be shaped to as near a natural contour as 
practicable and be stabilized.
    (g) Reclamation. Upon exhaustion of the mineral deposit or at the 
earliest practicable time during operations, or within 1 year of the 
conclusion of operations, unless a longer time is allowed by the 
authorized officer, operator shall, where practicable, reclaim the 
surface disturbed in operations by taking such measures as will prevent 
or control onsite and off-site damage to the environment and forest 
surface resources including:
    (1) Control of erosion and landslides;
    (2) Control of water runoff;

[[Page 198]]

    (3) Isolation, removal or control of toxic materials;
    (4) Reshaping and revegetation of disturbed areas, where reasonably 
practicable; and
    (5) Rehabilitation of fisheries and wildlife habitat.
    (h) Certification or other approval issued by State agencies or 
other Federal agencies of compliance with laws and regulations relating 
to mining operations will be accepted as compliance with similar or 
parallel requirements of these regulations.



Sec. 228.9  Maintenance during operations, public safety.

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



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

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



Sec. 228.11  Prevention and control of fire.

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



Sec. 228.12  Access.

    An operator is entitled to access in connection with operations, but 
no road, trail, bridge, landing area for aircraft, or the like, shall be 
constructed or improved, nor shall any other means of access, including 
but not limited to off-road vehicles, be used until the operator has 
received approval of an operating plan in writing from the authorized 
officer when required by Sec. 228.4(a). Proposals for construction, 
improvement or use of such access as part of a plan of operations shall 
include a description of the type and standard of the proposed means of 
access, a map showing the proposed route of access, and a description of 
the means of transportation to be used. Approval of the means of such 
access as part of a plan of operations shall specify the location of the 
access route, design standards, means of transportation, and other 
conditions reasonably necessary to protect the environment and forest 
surface resources, including measures to protect scenic values and to 
insure against erosion and water or air pollution.



Sec. 228.13  Bonds.

    (a) Any operator required to file a plan of operations shall, when 
required by the authorized officer, furnish a bond conditioned upon 
compliance with Sec. 228.8(g), prior to approval of such plan of 
operations. In lieu of a bond, the operator may deposit into a Federal 
depository, as directed by the Forest Service, and maintain therein, 
cash in an amount equal to the required dollar amount of the bond or 
negotiable securities of the United States having market value at the 
time of deposit of not less than the required dollar amount of the bond. 
A blanket bond covering nationwide or statewide operations may be 
furnished if the terms and conditions thereof are sufficient to comply 
with the regulations in this part.
    (b) In determining the amount of the bond, consideration will be 
given to the estimated cost of stabilizing, rehabilitating, and 
reclaiming the area of operations.

[[Page 199]]

    (c) In the event that an approved plan of operations is modified in 
accordance with Sec. 228.4 (d) and (e), the authorized officer will 
review the initial bond for adequacy and, if necessary, will adjust the 
bond to conform to the operations plan as modified.
    (d) When reclamation has been completed in accordance with Sec. 
228.8(g), the authorized officer will notify the operator that 
performance under the bond has been completed: Provided, however, That 
when the Forest Service has accepted as completed any portion of the 
reclamation, the authorized officer shall notify the operator of such 
acceptance and reduce proportionally the amount of bond thereafter to be 
required with respect to the remaining reclamation.

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



Sec. 228.14  Appeals.

    Appeal of decisions of an authorized officer made pursuant to this 
subpart is governed by 36 CFR part 214 or 215.

[78 FR 33724, June 5, 2013]



Sec. 228.15  Operations within National Forest Wilderness.

    (a) The United States mining laws shall extend to each National 
Forest Wilderness for the period specified in the Wilderness Act and 
subsequent establishing legislation to the same extent they were 
applicable prior to the date the Wilderness was designated by Congress 
as a part of the National Wilderness Preservation System. Subject to 
valid existing rights, no person shall have any right or interest in or 
to any mineral deposits which may be discovered through prospecting or 
other information-gathering activity after the legal date on which the 
United States mining laws cease to apply to the specific Wilderness.
    (b) Holders of unpatented mining claims validly established on any 
National Forest Wilderness prior to inclusion of such unit in the 
National Wilderness Preservation System shall be accorded the rights 
provided by the United States mining laws as then applicable to the 
National Forest land involved. Persons locating mining claims in any 
National Forest Wilderness on or after the date on which said Wilderness 
was included in the National Wilderness Preservation System shall be 
accorded the rights provided by the United States mining laws as 
applicable to the National Forest land involved and subject to 
provisions specified in the establishing legislation. Persons conducting 
operations as defined in Sec. 228.3 in National Forest Wilderness shall 
comply with the regulations in this part. Operations shall be conducted 
so as to protect National Forest surface resources in accordance with 
the general purposes of maintaining the National Wilderness Preservation 
System unimpaired for future use and enjoyment as wilderness and to 
preserve its wilderness character, consistent with the use of the land 
for mineral location, exploration, development, drilling, and production 
and for transmission lines, water lines, telephone lines, and processing 
operations, including, where essential, the use of mechanized transport, 
aircraft or motorized equipment.
    (c) Persons with valid mining claims wholly within National Forest 
Wilderness shall be permitted access to such surrounded claims by means 
consistent with the preservation of National Forest Wilderness which 
have been or are being customarily used with respect to other such 
claims surrounded by National Forest Wilderness. No operator shall 
construct roads across National Forest Wilderness unless authorized in 
writing by the Forest Supervisor in accordance with Sec. 228.12.
    (d) On all mining claims validly established on lands within the 
National Wilderness Preservation System, the operator shall take all 
reasonable measures to remove any structures, equipment and other 
facilities no longer needed for mining purposes in accordance with the 
provisions in Sec. 228.10 and restore the surface in accordance with 
the requirements in Sec. 228.8(g).
    (e) The title to timber on patented claims validly established after 
the land was included within the National Wilderness Preservation System 
remains in the United States, subject to a right to cut and use timber 
for mining purposes. So much of the mature

[[Page 200]]

timber may be cut and used as is needed in the extraction, removal, and 
beneficiation of the mineral deposits, if needed timber is not otherwise 
reasonably available. The cutting shall comply with the requirements for 
sound principles of forest management as defined by the National Forest 
rules and regulations and set forth in stipulations to be included in 
the plan of operations, which as a minimum incorporate the following 
basic principles of forest management:
    (1) Harvesting operations shall be so conducted as to minimize soil 
movement and damage from water runoff; and
    (2) Slash shall be disposed of and other precautions shall be taken 
to minimize damage from forest insects, disease, and fire.
    (f) The Chief, Forest Service, shall allow any activity, including 
prospecting, for the purpose of gathering information about minerals in 
National Forest Wilderness except that any such activity for gathering 
information shall be carried on in a manner compatible with the 
preservation of the wilderness environment as specified in the plan of 
operations.



                       Subpart B_Leasable Minerals



Sec. Sec. 228.20-228.39  [Reserved]



                 Subpart C_Disposal of Mineral Materials

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



Sec. 228.40  Authority.

    Authority for the disposal of mineral materials is provided by the 
Materials Act of July 31, 1947 (30 U.S.C. 601 et seq.), as amended by 
the Acts of August 31, 1950 (30 U.S.C. 603-604), July 23, 1955 (30 
U.S.C. 601, 603), and September 25, 1962 (30 U.S.C. 602), and by the 
following: the Act of June 4, 1897 (16 U.S.C. 477); the Act of March 4, 
1917 (16 U.S.C. 520); the Bankhead-Jones Farm Tenant Act of July 22, 
1937 (7 U.S.C. 1010); the Act of September 1, 1949 (section 3) (30 
U.S.C. 192c); the Act of June 30, 1950 (16 U.S.C. 508b); the Act of June 
28, 1952 (section 3) (66 Stat. 285); the Act of September 2, 1958 (16 
U.S.C. 521a); the Act of June 11, 1960 (74 Stat. 205); the Federal 
Highway Act of August 27, 1958 (23 U.S.C. 101 et seq.); and the Alaska 
National Interest Lands Conservation Act of December 2, 1980 (section 
502) (16 U.S.C. 539a).



Sec. 228.41  Scope.

    (a) Lands to which this subpart applies. This subpart applies to all 
National Forest System lands reserved from the public domain of the 
United States, including public domain lands being administered under 
the Bankhead-Jones Farm Tenant Act of July 22, 1937 (7 U.S.C. 1010); to 
all National Forest System lands acquired pursuant to the Weeks Act of 
March 1, 1911 (36 Stat. 961); to all National Forest System lands with 
Weeks Act status as provided in the Act of September 2, 1958 (16 U.S.C. 
521a); and to public lands within the Copper River addition to the 
Chugach National Forest (16 U.S.C. 539a). For ease of reference and 
convenience to the reader, these lands are referred to, throughout this 
subpart, as National Forest lands.
    (b) Restrictions. Disposal of mineral materials from the following 
National Forest lands is subject to certain restrictions as described 
below:
    (1) Segregation or withdrawals in aid of other agencies. Disposal of 
mineral materials from lands segregated or withdrawn in aid of a 
function of another Federal agency, State, territory, county, 
municipality, water district, or other governmental subdivision or 
agency may be made only with the written consent of the governmental 
entity.
    (2) Segregated or withdrawn National Forest lands. Mineral materials 
may not be removed from segregated or withdrawn lands where removal is 
specifically prohibited by statute or by public land order. Where not 
specifically prohibited, removal of mineral materials may be allowed if 
the authorized officer determines that the removal is not detrimental to 
the values for which the segregation or withdrawal was made, except as 
provided in paragraph (b)(1) of this section. Where operations have been 
established prior to the effective date of this Subpart and where not 
prohibited by statute, they may be permitted to continue.

[[Page 201]]

Nothing in this subparagraph is intended to prohibit the exercise of 
valid existing rights.
    (3) Unpatented mining claims. Provided that claimants are given 
prior notice and it has been determined that removal will neither 
endanger nor materially interfere with prospecting, mining, or 
processing operations or uses reasonably incident thereto on the claims, 
disposal of mineral materials may be allowed from:
    (i) Unpatented mining claims located after July 23, 1955; and/or
    (ii) Unpatented mining claims located before July 23, 1955, and on 
which the United States has established the right to manage the 
vegetative and other surface resources in accordance with the Multiple 
Use Mining Act of July 23, 1955 (30 U.S.C. 601, 603, 611-615).
    (4) Acquired Bankhead-Jones lands. Mineral materials on lands which 
were acquired under the authority of the Bankhead-Jones Farm Tenant Act 
of July 22, 1937 (7 U.S.C. 1010-1012), and which lie outside the 
exterior boundaries of National Forests, or on acquired lands which are 
being administered under the Act and which also lie outside the exterior 
boundaries of National Forests, may be disposed of under these 
regulations only to public authorities and agencies, and only on 
condition that the mineral materials are used for public purposes (7 
U.S.C. 1011(c)).
    (c) Mineral materials to which this subpart applies. This subpart 
applies to mineral materials which consist of petrified wood and common 
varieties of sand, gravel, stone, pumice, pumicite, cinders, clay, and 
other similar materials. Such mineral materials include deposits which, 
although they have economic value, are used for agriculture, animal 
husbandry, building, abrasion, construction, landscaping, and similar 
uses. This subpart also applies to other materials which may not be 
minerals but are produced using mining methods, such as peat. The 
categories of these materials, including representative examples, are:
    (1) Agricultural supply and animal husbandry materials. This 
category includes, but is not limited to, minerals and vegetative 
materials used as or for: Soil conditioners or amendments applied to 
physically alter soil properties such as direct applications to the soil 
of carbonate rocks, soil containing ``trace elements'' and peat; animal 
feed supplements; and other animal care products.
    (2) Building materials. Except for minerals identified as Uncommon 
Varieties, this category includes, but is not limited to, minerals used 
as or for: Paint fillers or extenders; flagstone, ashlar, rubble, 
mortar, brick, tile, pipe, pottery, earthenware, stoneware, terrazzo, 
and other nonstructural components in floors, walls, roofs, fireplaces, 
and the like; and similar building uses.
    (3) Abrasive materials. This category includes, but is not limited 
to, minerals used for: Filing; scouring; polishing; sanding; and 
sandblasting.
    (4) Construction materials. This category includes, but is not 
limited to, minerals such as sand, gravel, clay, crushed rock and 
cinders used as or for fill; borrow; rip-rap; ballast (including all 
ballast for railroad use); road base; road surfacing; concrete 
aggregate; clay sealants; and similar construction uses.
    (5) Landscaping materials: This category includes, but is not 
limited to minerals and peat used as or for: Chips, granules, sand, 
pebbles, scoria, cinders, cobbles, boulders, slabs, and other components 
in retaining walls, walkways, patios, yards, gardens, and the like; and 
similar landscaping uses.
    (d) Minerals not covered by this subpart. Mineral materials do not 
include any mineral used in manufacturing, industrial processing, or 
chemical operations for which no other mineral can be substituted due to 
unique properties giving the particular mineral a distinct and special 
value; nor do they include block pumice which in nature occurs in pieces 
having one dimension of two inches or more which is valuable and used 
for some application that requires such dimensions. Disposal of minerals 
not covered by this subpart is subject to the terms of the United States 
Mining Laws, as amended (30 U.S.C. 22 et seq.), on those portions of the 
National Forest System where those laws apply. Such minerals may 
include:
    (1) Mineral suitable and used as soil amendment because of a 
constituent

[[Page 202]]

element other than calcium or magnesium carbonate that chemically alters 
the soil;
    (2) Limestone suitable and used, without substantial admixtures, for 
cement manufacture, metallurgy, production of quicklime, sugar refining, 
whiting, fillers, paper manufacture, and desulfurization of stack gases;
    (3) Silica suitable and used for glass manufacture, production of 
metallic silicon, flux, and rock wool;
    (4) Alumino-silicates or clays having exceptional qualities suitable 
and used for production of aluminum, ceramics, drilling mud, taconite 
binder, foundry castings, and other purposes for which common clays 
cannot be used;
    (5) Gypsum suitable and used for wallboard, plaster, or cement.
    (6) Block pumice which occurs in nature in pieces having one 
dimension of two inches or more and which is valuable and used for some 
application that requires such dimensions; and
    (7) Stone recognized through marketing factors for its special and 
distinct properties of strength and durability making it suitable for 
structural support and used for that purpose.
    (e) Limitations on applicability. (1) The provisions of paragraphs 
(c) and (d) of this section shall not apply to any mining claims for 
which a Mineral Entry Final Certificate was issued on or before January 
16, 1991. Nor shall these provisions apply to any mining claim located 
on or before July 23, 1955, which has satisfied the marketability test 
for locatable minerals from on or before July 23, 1955, until the 
present date.
    (2) A use which qualifies a mineral as an uncommon variety under 
paragraph (d) overrides classification of that mineral as a common 
variety under paragraph (c) of this section.

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



Sec. 228.42  Definitions.

    For the purposes of this subject, the following terms are defined:
    Acquired National Forest lands. National Forest System lands 
acquired under the Weeks Act of March 1, 1911 (36 Stat. 961), and 
National Forest System lands with Weeks Act status as provided in the 
Act of September 2, 1958 (16 U.S.C. 521a).
    Authorized officer. Any Forest Service officer to whom authority for 
disposal of mineral materials has been delegated.
    Common-use area. Generally, a broad geographic area from which 
nonexclusive disposals of mineral materials available on the surface may 
be made to low volume and/or noncommercial users.
    Community site. A site noted on appropriate Forest records and 
posted on the ground from which nonexclusive disposals of mineral 
materials may be made to low volume and/or noncommercial users.
    Contract. A signed legal agreement between the Forest Service and a 
purchaser of mineral materials, which specifies (among other things) the 
conditions of a competitive, negotiated, or preference right sale of 
mineral materials to the purchaser.
    Mineral materials. A collective term used throughout this subpart to 
describe petrified wood and common varieties of sand, gravel, stone, 
pumice, pumicite, cinders, clay, and other similar materials. Common 
varieties do not include deposits of those materials which are valuable 
because of some property giving them distinct and special value, nor do 
they include ``so-called `block pumice' '' which occurs in nature in 
pieces having one dimension of two inches or more and which is valuable 
and used for some application that requires such dimensions.
    Permit. A signed legal document between the Forest Service and one 
who is authorized to remove mineral materials free of charge, which 
specifies (among other things) the conditions of removal by the 
permittee.
    Preference right negotiated sale. A negotiated sale which may be 
awarded in response to the finding and demonstration of a suitable 
deposit of mineral material on acquired National Forest lands as the 
result of exploratory activity conducted under the authority of a 
prospecting permit.
    Prospecting permit. A written instrument issued by the Forest 
Service which authorizes prospecting for a mineral material deposit on 
acquired National Forest lands within specific

[[Page 203]]

areas, under stipulated conditions, and for a specified period of time.
    Single entry source. A source of mineral materials which is expected 
to be depleted under a single contract or permit or which is reserved 
for Forest Service use.
    Unpatented mining claim. A lode or placer mining claim or a millsite 
located under the General Mining Law of 1872, as amended (30 U.S.C. 21-
54), for which a patent under 30 U.S.C. 29 and regulations of the 
Department of the Interior has not been issued.
    Withdrawn National Forest lands. National Forest System lands 
segregated or otherwise withheld from settlement, sale, location, or 
entry under some or all of all of the general land laws (43 U.S.C. 
1714).

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



Sec. 228.43  Policy governing disposal.

    (a) General. Forest Service policy is to make mineral materials on 
National Forest lands available to the public and to local, State, and 
Federal government agencies where reasonable protection of, or 
mitigation of effects on, other resources in assured, and where removal 
is not prohibited.
    (1) A contract or permit limits processing of the mineral material 
onsite to the first salable product.
    (2) Additional onsite processing may be authorized by a separate 
permit (36 CFR 251.50).
    (3) The authorized officer must ensure that an environmental 
analysis is conducted for all planned disposals of mineral materials.
    (4) Decisions to authorize the disposal of mineral materials must 
conform to approved land and resource management plans (36 CFR 219.22).
    (b) Price. Mineral materials may not be sold for less than the 
appraised value. The authorized officer may assess a fee to cover costs 
of issuing and administering a contract or permit.
    (c) Conservation. Adequate measures must be taken to protect, and 
minimize damage to the environment. Mineral materials may be disposed of 
only if the authorized officer determines that the disposal is not 
detrimental to the public interest.
    (d) Ownership. Title to the mineral materials vests in the purchaser 
or permittee immediately before excavation, subject to the provisions of 
Sec. Sec. 228.47 through 228.56 and other provisions of the contract or 
permit. Title to excavated material not removed within the time provided 
revests in the United States.
    (e) Decisions. All decisions as to whether or not to grant disposals 
proposed under this subpart shall be made in writing by the authorized 
officer. Such decisions must specify their factual and legal basis.
    (f) Option for mining claimants. All mining claimants holding mining 
claims which are located for a mineral classified in accordance with 
this subpart as a mineral material have the option of maintaining that 
the mineral is locatable and filing for patent. All mining claimants 
holding mining claims located in good faith on or before January 16, 
1991, for a mineral classified in accordance with this subpart as a 
mineral material may accept the classification and, if appropriate, 
receive a sale by negotiated contract for that mineral material under 36 
CFR 228.57(b)(2) of this subpart.

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



Sec. 228.44  Disposal on existing Federal leased areas.

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



Sec. 228.45  Qualifications of applicants.

    The authorized officer may require applicants for prospecting 
permits, negotiated contracts, or free-use permits or bidders for the 
sale of mineral materials to furnish information necessary

[[Page 204]]

to determine their ability to perform the obligations of the contract or 
permit.



Sec. 228.46  Application of other laws and regulations.

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

                           General Provisions



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

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



Sec. 228.48  Appraisal and measurement.

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



Sec. 228.49  Reappraisal.

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



Sec. 228.50  Production records.

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



Sec. 228.51  Bonding.

    (a) Bond requirements. Before operations may begin under any 
contract or permit, a bond must be furnished to the authorized officer 
to ensure performance of payment (as necessary), reclamation, and other 
conditions of the contract or permit, except as noted in paragraphs (a) 
(1) and (3) of this section, where the authorized officer may waive such 
bonding. If an extension of

[[Page 205]]

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



Sec. 228.52  Assignments.

    (a) Limitations. A purchaser or permittee may not assign the 
contract or permit, or any interest therein, without the written 
approval of the authorized officer.
    (b) Requirements of assignee. The authorized officer will not 
approve any proposed assignment involving contract or permit performance 
unless the assignee:
    (1) Submits information necessary to assure the authorized officer 
of the assignee's ability to meet the same requirements as the original 
purchaser or permittee (assignor); and
    (2) Furnishes a bond or obtains a commitment from the previous 
surety to be bound by the assignment when approved.
    (c) Rights and obligations. Once the authorized officer approves an 
assignment, the assignee is entitled to all the rights and is subject to 
all of the obligations under the contract or permit, and the original 
purchaser or permittee may be released from any further responsiblity 
under the contract or permit.



Sec. 228.53  Term.

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



Sec. 228.54  Single entry sales or permits.

    The purchaser or permittee is required to reclaim a single entry 
source in accordance with an approved operating plan which describes 
operating

[[Page 206]]

procedures and reclamation measures, unless the requirement is waived by 
the authorized officer.



Sec. 228.55  Cancellation or suspension.

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



Sec. 228.56  Operating plans.

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

                      Types and Methods of Disposal



Sec. 228.57  Types of disposal.

    Except as provided in Sec. 228.41(b), disposal of mineral materials 
may be made by:
    (a) Competitive sale to the highest qualified bidder after formal 
advertising and other appropriate public notice;
    (b) Sale by negotiated contract. (1) For removal of materials to be 
used in connection with a public works improvement program on behalf of 
a Federal, State, or local government agency if the public exigency will 
not permit delays incident to advertising, or
    (2) For the removal of mineral materials for which it is 
impracticable to obtain competition;
    (c) Preference right negotiated sale to the holder of a Forest 
Service-issued prospecting permit under which a suitable mineral 
material deposit has been demonstrated on acquired National Forest 
lands;
    (d) Free use when a permit is issued to any nonprofit association, 
corporation, individual, or others listed in Sec. 228.62(d), for other 
than commercial purposes, resale, or barter, or to any Federal, State, 
county, local unit, subdivision, municipality, or county road district 
for use in public projects; or
    (e) Forest Service force account or by contract where the material 
is to be used to carry out various Forest Service programs involving 
construction and maintenance of physical improvements.



Sec. 228.58  Competitive sales.

    (a) Invitation for bid. Sales must be conducted as described below 
after inviting competitive bids through publication and posting. The 
authorized officer may not offer a competitive sale unless there is a 
right-of-way or other access to the sale area which is available to 
anyone qualified to bid.
    (b) Advertising--(1) Sales over 25,000 cubic yards. Mineral material 
sales offered by competitive bidding and which exceed 25,000 cubic yards 
must be advertised on the same day once a week for two consecutive weeks 
in a newspaper of general circulation in the area where the material is 
located, and in a trade or industrial newspaper when considered 
appropriate. Notice of the sale must be posted in a conspicuous place in 
the office where bids are to be submitted. In addition, the authorized 
officer may send the advertisement directly to known interested persons. 
Bids may be received but not evaluated

[[Page 207]]

before the end of the advertising period, which may be extended at the 
discretion of the authorized officer.
    (2) Content of advertising. The advertisement of sale must specify 
the location by legal description of the tract or tracts or by any other 
means identify the location of the mineral material deposit being 
offered, the kind of material, estimated quantities, the unit of 
measurement, appraised price (which sets the minimum acceptable bid), 
time and place for receiving and opening of bids, minimum deposit 
required, major special constraints due to environmental considerations, 
available access, maintenance required over haul routes, traffic 
controls, required use permits, required qualifications of bidders, the 
method of bidding, bonding requirement, notice of the right to reject 
any or all bids, the office where a copy of the contract and additional 
information may be obtained, and additional information the authorized 
officer deems necessary.
    (3) Advertising smaller sales. Advertisement of mineral materials 
amounting to 25,000 cubic yards in volume (or weight equivalent) or less 
must be published and/or posted. The methods of advertisement are at the 
discretion of the authorized officer.
    (c) Conduct of sales. (1) Bidding at competitive sales may be 
conducted by the submission of written sealed bids, oral bids, or a 
combination of both as directed by the authorized officer. In the event 
of a tie in high sealed bids, the highest bidder will be determined by 
oral auction among those tied bidders; when no oral bid is higher that 
the sealed bids, the selected bidder will be determined by lot, the 
purchase price being the amount of the tied bid. For all oral auctions, 
including those used to break sealed-bid ties, the high bidder must 
confirm the bid in writing immediately upon being declared the high 
bidder. The authorized officer must mail notification of the bidding 
results to all bidders within 10 days.
    (2) The authorized officer may require bidders to furnish evidence 
of qualification at the time of award or, if such evidence has already 
been furnished and is still valid, make appropriate reference to the 
record containing it.
    (3) When it is in the interest of the United States to do so, the 
authorized officer may reject any or all bids.
    (d) Bid deposits and award of contract. Sealed bids must be 
accompanied by a deposit. For mineral materials offered at oral auction, 
bidders must make the deposit before opening of the bidding.
    (1) Bid deposits must be equal to 10 percent of the appraised value 
but not less than $100.00.
    (2) Bid deposits must be in the form of cash, money order, bank 
drafts, cashier's or certified checks made payable to the Forest 
Service, or bonds acceptable to the Forest Service (Sec. 228.51(b)).
    (3) Upon conclusion of the bidding, the authorized officer will 
return the deposits of all unsuccessful bidders. The successful bidder's 
deposit will be applied toward the purchase price. If the contract is 
not awarded to the high bidder due to an inability to perform the 
obligations of the contract, the deposit, less expenses and damages 
incurred by the United States, may be returned. The return of a deposit 
does not prejudice any other rights or remedies of the United States. 
The contract may be offered and awarded to the next successive qualified 
high bidder, or, at the discretion of the authorized officer, the sale 
may be either readvertised or negotiated if it is determined that a 
competitive sale is impracticable.
    (4) Within 30 days after receipt of the contract, the successful 
bidder must sign and return the contract, together with any required 
bond, unless the authorized officer has granted an extension for an 
additional 30 days. The bidder must apply for the extension in writing 
within the first 30-day period. If the successful bidder fails to return 
the contract within the first 30-day period or within an approved 
extension, the bid deposit, less the costs of readvertising and damages, 
may be returned without prejudice to any other rights or remedies of the 
United States.
    (5) All sales must be processed on Forest Service-approved contract 
forms. The authorized officer may add provisions to the contract to 
cover conditions peculiar to the sale area. Such additional provisions 
must be made

[[Page 208]]

available for inspection by prospective bidders during the advertising 
period.



Sec. 228.59  Negotiated or noncompetitive sales.

    (a) Volume limitations. When it is determined by the authorized 
officer to be in the public interest and when it is impracticable to 
obtain competition, mineral materials not exceeding 100,000 cubic yards 
in volume (or weight equivalent) may be sold in any one sale at not less 
than the appraised value, without advertising or calling for bids, 
except as provided in paragraphs (b) and (c) of this section. The 
authorized officer may not approve noncompetitive sales that exceed the 
total of 200,000 cubic yards (or weight equivalent) made in any one 
State for the benefit of any applicant in any period of 12 consecutive 
months.
    (b) Government programs. In connection with a public works 
improvement project on behalf of a Federal, State, or local governmental 
agency, the authorized officer may sell to an applicant, at not less 
than the appraised value, without advertising or calling for bids, a 
volume of mineral materials not to exceed 200,000 cubic yards (or weight 
equivalent) when the public exigency will not permit delays incident to 
advertising (30 U.S.C. 602).
    (c) Appropriation for highway purposes. For interstate and/or 
Federal aid highways, the Secretary of Transportation may appropriate 
any volume in accordance with 23 U.S.C. 107 and 317.
    (d) Use in development of Federal mineral leases. When it is 
determined to be impracticable to obtain competition and the mineral 
materials are to be used in connection with the development of mineral 
leases issued by the United States (Sec. 228.44), the authorized 
officer may sell to a leaseholder a volume of mineral material not to 
exceed 200,000 cubic yards (or weight equivalent) in one State in any 
period of 12 consecutive months. No charge will be made for materials 
which must be moved in the process of extracting the mineral under 
lease, as long as the materials remain stockpiled within the boundaries 
of the leased area.
    (e) Exceptions. (1) The Chief of the Forest Service may authorize 
the noncompetitive sale of mineral materials in excess of the volume 
limitations in paragraphs (a), (b), and (d) of this section when 
necessary to:
    (i) Respond to an emergency affecting public health, safety or 
property;
    (ii) Prevent the curtailment of operations conducted under the 
United States mining laws of May 10, 1872, as amended (30 U.S.C. 22 et 
seq.) which generate large volumes of mineral materials as a by-product; 
or
    (iii) Respond to a critical public need for the prompt development 
of a mineral lease issued by the United States or a mining claim located 
under the United States mining laws of May 10, 1872, as amended (30 
U.S.C. 22 et seq.).
    (2) Any noncompetitive sale of mineral materials in excess of the 
volume limitations in paragraphs (a), (b), and (d) shall be subject to 
such restrictions as the Chief of the Forest Service determines to be in 
the public interest.
    (3) Nothing in this paragraph shall otherwise alter the requirements 
of paragraphs (a) through (d) of this section.

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



Sec. 228.60  Prospecting permits.

    (a) Right conferred. On acquired National Forest lands, prospecting 
permits may be issued which grant the permittee the exclusive right to 
explore for and to demonstrate the existence of a suitable mineral 
material deposit when existing information is insufficient. After the 
demonstration of a suitable deposit and confirmation of this by the 
authorized officer, the permittee will have a preference right to apply 
for a negotiated sale.
    (b) Limitations. Mineral material may be removed from lands under a 
prospecting permit only to the extent necessary for testing and analysis 
or for the demonstration of the existence of a suitable deposit.
    (c) Environmental analysis. Prospecting permits will be issued only 
after submission by applicant and approval by the authorized officer of 
a detailed operating plan. The authorized officer may require a bond in 
accordance with Sec. 228.51. The authorized officer must ensure 
compliance with the

[[Page 209]]

National Environmental Policy Act (42 U.S.C. 4321 et seq.).
    (d) Acreage and permit limitations. A prospecting permit may not 
cover more than 640 acres. No individual or group may have an interest 
at any one time in more than three prospecting permits on Forest Service 
lands administered by one Forest Supervisor.
    (e) Duration and extension of permits. Prospecting permits may be 
issued for a period not to exceed 24 months, but they may be extended 
once for up to an additional 24 months if necessary to complete 
prospecting. Any application for extension must be submitted no later 
than 30 days before the expiration of the permit. The application for 
extension must provide evidence of diligence and state the reasons why 
additional time is considered necessary to complete prospecting work.
    (f) Refusal to extend permits. The authorized officer may reject 
applications for extension of prospecting permits for the following 
reasons:
    (1) Failure to perform. Failure of the permittee to perform 
prospecting or exploration work without adequate justification may 
result in the denial of an extension; or
    (2) Failure to apply. If an application for extension is not 
submitted within the specified period, the permit may expire without 
notice to the permittee.
    (3) Public interest. If the authorized officer determines that an 
extension may not be in the public interest, the application may be 
rejected.



Sec. 228.61  Preference right negotiated sales.

    (a) Qualification for sale. When applying for a preference right 
negotiated sale, the permittee must demonstrate to the satisfaction of 
the authorized officer that a suitable deposit of mineral material has 
been discovered within the area covered by the prospecting permit. 
Information concerning trade secrets and financial matters submitted by 
the permittee and identified as confidential will not be available for 
public examination except as otherwise agreed upon by the permittee.
    (b) Application for sale. The application must be submitted to the 
District Ranger's office on or before the expiration date of the 
prospecting permit or its extension. The authorized officer may grant 30 
additional days for submitting the application if requested in writing 
by the permittee before expiration of the prospecting permit or its 
extension.
    (c) Terms and conditions of contract. The terms and conditions will 
be evaluated on an individual case basis. Only those mineral materials 
specified in the contract may be removed by the purchaser. Before a 
preference right negotiated contract is awarded, the authorized officer 
must ensure that an environmental analysis is conducted. All contracts 
are subject to the conditions under Sec. Sec. 228.47 through 228.56.
    (d) Acreage limitations. The authorized officer will determine the 
amount of acreage in the preference right negotiated sale based on a 
presentation of the permittee's needs. The maximum acreage allowable to 
any individual or group must not exceed 320 acres on National Forest 
lands administered by one Forest Supervisor. The allowable acreage may 
be in one or more units which are not necessarily contiguous.
    (e) Volume limitations. Preference right negotiated sales are exempt 
from volume limitations.
    (f) Contract time allowable. A contract or a renewal must not exceed 
5 years; however, the purchaser may have renewal options at the end of 
each contract or renewal period. The authorized officer may renew a 
contract if it is determined that the renewal is not detrimental to the 
public interest and that the purchaser has demonstrated diligence in 
conducting operations. The authorized officer may cancel the contract, 
or the purchaser may forfeit the contract, if no substantial commercial 
production occurs during any continuous 2-year period after the award of 
the contract or if the contract terms and conditions are breached. 
However, if a delay is caused by conditions beyond the purchaser's 
control, the authorized officer may grant an extension equal to the lost 
time.
    (g) Contract renewal reappraisal. At the time of contract renewal, 
the authorized officer will reappraise the mineral material deposit in 
accordance with Sec. 228.49.

[[Page 210]]



Sec. 228.62  Free use.

    (a) Application. An application for a free-use permit must be made 
with the appropriate District Ranger's office.
    (b) Term. Permits may be issued for periods not to exceed 1 year and 
will terminate on the expiration date unless extended by the authorized 
officer as in Sec. 228.53(b). However, the authorized officer may issue 
permits to any local, State, Federal, or Territorial agency, unit or 
subdivision, including municipalities and county road districts, for 
periods up to 10 years.
    (c) Removal by agent. A free-use permittee may extract the mineral 
materials through a designated agent provided that the conditions of the 
permit are not violated. No part of the material may be used as payment 
for the services of an agent in obtaining or processing the material. A 
permit may be issued in the name of a designated agent for those 
entities listed in Sec. 228.62(d)(1), at the discretion of the 
authorized officer, provided there is binding agreement in which the 
entity retains responsibility for ensuring compliance with the 
conditions of the permit.
    (d) Conditions. Free-use permits may be issued for mineral materials 
to settlers, miners, residents, and prospectors for uses other than 
commercial purposes, resale, or barter (16 U.S.C. 477). Free-use permits 
may be issued to local, State, Federal, or Territorial agencies, units, 
or subdivisions, including municipalities, or any association or 
corporation not organized for profit, for other than commercial or 
industrial purposes or resale (30 U.S.C. 601). Free-use permits may not 
be issued when, in the judgment of the authorized officer, the applicant 
owns or controls an adequate supply of mineral material in the area of 
demand. The free-use permit, issued on a Forest Service-approved form, 
must include the basis for the free-use as well as the provisions 
governing the selection, removal, and use of the mineral materials. No 
mineral material may be removed until the permit is issued. The 
permittee must notify the authorized officer upon completion of mineral 
material removal. The permittee must complete the reclamation prescribed 
in the operating plan (Sec. 228.56).
    (1) A free-use permit may be issued to any local, State, Federal, or 
Territorial agency, unit, or subdivision, including municipalities and 
county road districts, without limitation on the number of permits or on 
the value of the mineral materials to be extracted or removed.
    (2) A free-use permit issued to a nonprofit association, 
corporation, or individual may not provide for the removal of mineral 
materials having a volume exceeding 5,000 cubic yards (or weight 
equivalent) during any period of 12 consecutive months.
    (e) Petrified wood. A free-use permit may be issued to amateur 
collectors and scientists to take limited quantities of petrified wood 
for personal use. The material taken may not be bartered or sold. Free-
use areas may be designated within which a permit may not be required. 
Removal of material from such areas must be in accord with rules issued 
by the authorized officer and posted on the area. Such rules must also 
be posted in the District Ranger's and Forest Supervisor's offices and 
be available upon request. The rules may vary by area depending on the 
quantity, quality, and accessibility of the material and the demand for 
it.



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

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

[[Page 211]]



Sec. 228.64  Community sites and common-use areas.

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



Sec. 228.65  Payment for sales.

    (a) Conditions. Mineral materials may not be removed from the sale 
area until all conditions of payment in the contract have been met.
    (b) Advance payment. (1) For negotiated and competitive sales the 
full amount may be paid before removal is begun under the contract or by 
installment at the discretion of the authorized officer. Installment 
payments must be based on the estimated removal rate specified in the 
operating plan and must be, as a minimum, the value of 1 month's 
removal. The first installment must be paid before removal operations 
are begun; remaining installments must be paid in advance of removal of 
the remaining materials as billed by the authorized officer. The total 
amount of the purchase price must be paid at least 60 days before the 
expiration date of the contract.
    (2) All advance payment contracts must provide for reappraisal of 
the mineral material at the time of contract renewal or extension.
    (3) Minimum annual production must be sufficient to return a payment 
to the United States equal to the first installment. In lieu of minimum 
production, there must be an annual payment in the amount of the first 
installment which will not be credited to future years' production. 
Payments for or in lieu of minimum annual production must be received by 
the authorized officer on or before the anniversary of the effective 
date of the contract.
    (4) If the purchaser fails to make payments when due, the contract 
will be considered breached, the authorized officer will cancel the 
contract, and all previous payments will be forfeited without prejudice 
to any other rights and remedies of the United States.
    (5) In order to determine payment amount, the purchaser must make a 
report of operations. The report must include the amount of mineral 
material removed, which must be verified by the authorized officer.
    (c) Deferred payments. The authorized officer may approve deferred 
payments for sales.
    (1) The purchaser may make payments monthly or quarterly which must 
be based on the in-place value (volume or weight equivalent) of material 
removed during the contract period. The units of measurement must 
correspond to the units used in the appraisal. The purchaser must make 
all payments before contract renewal.
    (2) The purchaser must deliver a bond which conforms to the 
provisions of Sec. 228.51(a)(2) to the authorized officer before 
operations are begun under the contract.

[49 FR 29784, July 24, 1984, as amended at 78 FR 33724, June 5, 2013]



Sec. 228.66  Refunds.

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

[49 FR 29784, July 24, 1984, as amended at 78 FR 33724, June 5, 2013]

[[Page 212]]



Sec. 228.67  Information collection requirements.

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

[55 FR 51706, Dec. 17, 1990]



               Subpart D_Miscellaneous Minerals Provisions



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

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

[[Page 213]]

    (2) Upon request by the operator to use alternative technology and 
equipment capable of achieving a level of environmental protection 
equivalent to that to be achieved under the existing plan of operations.

[51 FR 20827, June 9, 1986]



                     Subpart E_Oil and Gas Resources

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



Sec. 228.100  Scope and applicability.

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



Sec. 228.101  Definitions.

    For the purposes of this subpart, the terms listed in this section 
have the following meaning:
    Authorized Forest officer. The Forest Service employee delegated the 
authority to perform a duty described in these rules. Generally, a 
Regional Forester, Forest Supervisor, District Ranger, or Minerals Staff 
Officer, depending on the scope and level of the duty to be performed.
    Compliance Officer. The Deputy Chief, or the Associate Deputy 
Chiefs, National Forest System or the line officer designated to act in 
the absence of the Deputy Chief.
    Leasehold. The area described in a Federal oil and gas lease, 
communitized, or unitized area.
    Lessee. A person or entity holding record title in a lease issued by 
the United States.
    National Forest System. All National Forest lands reserved or 
withdrawn from the public domain of the United States, all National 
Forest lands acquired through purchase, exchange, donation, or other 
means, the National Grasslands and land utilization projects 
administered under title III of the Bankhead-Jones Farm Tenant Act (7 
U.S.C. 1010 et seq.), and other lands, waters, or interests therein 
which are administered by the Forest Service or are designated for 
administration through the Forest Service as a part of the system (16 
U.S.C. 1609).
    Notices to Lessees, Transferees, and Operators. A written notice 
issued by the authorized Forest officer. Notices to Lessees, 
Transferees, and Operators implement the regulations in this subpart and 
serve as instructions on specific item(s) of importance within a Forest 
Service Region, National Forest, or Ranger District.
    Onshore Oil and Gas Order. A formal numbered order issued by or 
signed by the Chief of the Forest Service that implements and 
supplements the regulations in this subpart.
    Operating right. The interest created out of a lease that authorizes 
the holder of that interest to enter upon the leased lands to conduct 
drilling and related operations, including production of oil and gas 
from such lands in accordance with the terms of the lease.
    Operating rights owner. A person holding operating rights in a lease 
issued by the United States. A leasee also may be an operating rights 
owner if the operating rights in a lease or portion thereof have not 
been conveyed to another person.
    Operations. Surface disturbing activities that are conducted on a 
leasehold

[[Page 214]]

on National Forest System lands pursuant to a current approved surface 
use plan of operations, including but not limited to, exploration, 
development, and production of oil and gas resources and reclamation of 
surface resources.
    Operator. Any person or entity, including, but not limited to, the 
lessee or operating rights owner, who has stated in writing to the 
authorized Forest officer that they are responsible under the terms and 
conditions of the lease for the operations conducted on the leased lands 
or a portion thereof.
    Person. An individual, partnership, corporation, association or 
other legal entity.
    Substantial modification. A change in lease terms or a modification, 
waiver, or exception of a lease stipulation that would require an 
environmental assessment or environmental impact statement be prepared 
pursuant to the National Environmental Policy Act of 1969.
    Surface use plan of operations. A plan for surface use, disturbance, 
and reclamation.
    Transfer. Any conveyance of an interest in a lease by assignment, 
sublease or otherwise. This definition includes the terms: Assignment 
which means a conveyance of all or a portion of the lessee's record 
title interest in a lease; and sublease which means a conveyance of a 
non-record interest in a lease, i.e., a conveyance of operating rights 
is normally a sublease and a sublease also is a subsidiary arrangement 
between the lessee (sublessor) and the sublessee, but a sublease does 
not include a transfer of a purely financial interest, such as 
overriding royalty interest or payment out of production, nor does it 
affect the relationship imposed by a lease between the lessee(s) and the 
United States.
    Transferee. A person to whom an interest in a lease issued by the 
United States has been transferred.

                                 Leasing



Sec. 228.102  Leasing analyses and decisions.

    (a) Compliance with the National Environmental Policy Act of 1969. 
In analyzing lands for leasing, the authorized Forest officer shall 
comply with the National Environmental Policy Act of 1969, implementing 
regulations at 43 CFR parts 1500-1508, and Forest Service implementing 
policies and procedures set forth in Forest Service Manual chapter 1950 
and Forest Service Handbook 1909.15.
    (b) Scheduling analysis of available lands. Within 6 months of April 
20, 1990, Forest Supervisors shall develop, in cooperation with the 
Bureau of Land Management and with public input, a schedule for 
analyzing lands under their jurisdiction that have not been already 
analyzed for leasing. The Forest Supervisors shall revise or make 
additions to the schedule at least annually. In scheduling lands for 
analysis, the authorized Forest officer shall identify and exclude from 
further review the following lands which are legally unavailable for 
leasing:
    (1) Lands withdrawn from mineral leasing by an act of Congress or by 
an order of the Secretary of the Interior;
    (2) Lands recommended for wilderness allocation by the Secretary of 
Agriculture;
    (3) Lands designated by statute as wilderness study areas, unless 
oil and gas leasing is specifically allowed by the statute designating 
the study area; and
    (4) Lands within areas allocated for wilderness or further planning 
in Executive Communication 1504, Ninety-Sixth Congress (House Document 
No. 96-119), unless such lands subsequently have been allocated to uses 
other than wilderness by an approved Forest land and resource management 
plan or have been released to uses other than wilderness by an act of 
Congress.
    (c) Leasing analyses. The leasing analysis shall be conducted by the 
authorized Forest officer in accordance with the requirements of 36 CFR 
part 219 (Forest land and resource management planning) and/or, as 
appropriate, through preparation of NEPA documents. As part of the 
analysis, the authorized Forest officer shall:
    (1) Identify on maps those areas that will be:
    (i) Open to development subject to the terms and conditions of the 
standard oil and gas lease form (including an explanation of the typical 
standards

[[Page 215]]

and objectives to be enforced under the standard lease terms);
    (ii) Open to development but subject to constraints that will 
require the use of lease stipulations such as those prohibiting surface 
use on areas larger than 40 acres or such other standards as may be 
developed in the plan for stipulation use (with discussion as to why the 
constraints are necessary and justifiable); and
    (iii) Closed to leasing, distinguishing between those areas that are 
being closed through exercise of management direction, and those closed 
by law, regulation, etc.
    (2) Identify alternatives to the areas listed in paragraph (c)(1) of 
this section, including that of not allowing leasing.
    (3) Project the type/amount of post-leasing activity that is 
reasonably foreseeable as a consequence of conducting a leasing program 
consistent with that described in the proposal and for each alternative.
    (4) Analyze the reasonable foreseeable impacts of post-leasing 
activity projected under paragraph (c)(3) of this section.
    (d) Area or Forest-wide leasing decisions (lands administratively 
available for leasing). Upon completion of the leasing analysis, the 
Regional Forest shall promptly notify the Bureau of Land Management as 
to the area or Forest-wide leasing decisions that have been made, that 
is, identify lands which have been found administratively available for 
leasing.
    (e) Leasing decisions for specific lands. At such time as specific 
lands are being considered for leasing, the Regional Forester shall 
review the area or Forest-wide leasing decision and shall authorize the 
Bureau of Land Management to offer specific lands for lease subject to:
    (1) Verifying that oil and gas leasing of the specific lands has 
been adequately addressed in a NEPA document, and is consistent with the 
Forest land and resource management plan. If NEPA has not been 
adequately addressed, or if there is significant new information or 
circumstances as defined by 40 CFR 1502.9 requiring further 
environmental analysis, additional environment analysis shall be done 
before a leasing decision for specific lands will be made. If there is 
inconsistency with the Forest land and resource management plan, no 
authorization for leasing shall be given unless the plan is amended or 
revised.
    (2) Ensuring that conditions of surface occupancy identified in 
Sec. 228.102(c)(1) are properly included as stipulations in resulting 
leases.
    (3) Determining that operations and development could be allowed 
somewhere on each proposed lease, except where stipulations will 
prohibit all surface occupancy.

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



Sec. 228.103  Notice of appeals of decisions.

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



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

    (a) General. An operator submitting a surface use plan of operations 
may request the authorized Forest officer to authorize the Bureau of 
Land Management to modify (permanently change), waive (permanently 
remove), or grant an exception (case-by-case exemption) to a stipulation 
included in a lease at the direction of the Forest Service. The person 
making the request is encouraged to submit any information which might 
assist the authorized Forest officer in making a decision.
    (b) Review. The authorized Forest officer shall review any 
information submitted in support of the request and any other pertinent 
information.
    (1) As part of the review, consistent with 30 U.S.C. 226 (f)-(g), 
the authorized Forest officer shall ensure compliance with the National 
Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.) and any other 
applicable laws, and shall ensure preparation of any appropriate 
environmental documents.

[[Page 216]]

    (2) The authorized Forest officer may authorize the Bureau of Land 
Management to modify, waive, or grant an exception to a stipulation if:
    (i) The action would be consistent with applicable Federal laws;
    (ii) The action would be consistent with the current forest land and 
resource management plan;
    (iii) The management objectives which led the Forest Service to 
require the inclusion of the stipulation in the lease can be met without 
restricting operations in the manner provided for by the stipulation 
given the change in the present condition of the surface resources 
involved, or given the nature, location, timing, or design of the 
proposed operations; and
    (iv) The action is acceptable to the authorized Forest officer based 
upon a review of the environmental consequences.
    (c) Other agency stipulations. If a stipulation was included in a 
lease by the Forest Service at the request of another agency, the 
authorized Forest officer shall consult with that agency prior to 
authorizing modification, waiver, or exception.
    (d) Notice of decision. (1) When the review of a stipulation 
modification, waiver, or exception request has been completed and the 
authorized Forest officer has reached a decision, the authorized Forest 
officer shall promptly notify the operator and the appropriate Bureau of 
Land Management office, in writing, of the decision to grant, or grant 
with additional conditions, or deny the request.
    (2) Any decision to modify, waive, or grant an exception to a lease 
stipulation shall be subject to administrative appeal only in 
conjunction with an appeal of a decision on a surface use plan of 
operation or supplemental surface use plan of operation.

              Authorization of Occupancy Within a Leasehold



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

    (a) Onshore oil and gas orders. The Chief of the Forest Service may 
issue, or cosign with the Director, Bureau of Land Management, Onshore 
Oil and Gas Orders necessary to implement and supplement the regulations 
of this subpart.
    (1) Surface Use Plans of Operations and Master Development Plans. 
Operators shall submit Surface Use Plans of Operations or Master 
Development Plans in accordance with Onshore Oil and Gas Order No. 1. 
Approval of a Master Development Plan constitutes a decision to approve 
Surface Use Plans of Operations submitted as a part of the Master 
Development Plan. Subsequently submitted Surface Use Plans of Operations 
shall be reviewed to verify that they are consistent with the approved 
Master Development Plan and whether additional NEPA documentation or 
consultation pursuant to the National Historic Preservation Act or the 
Endangered Species Act is required. If the review determines that 
additional documentation is required, the Forest Service will review the 
additional documentation or consult as appropriate and make an 
independent decision regarding the subsequently submitted Surface Use 
Plan of Operations, and notify the BLM and the operator whether the 
Surface Use Plan of Operations is approved.
    (2) Adoption of additional onshore oil and gas orders. Additional 
onshore oil and gas orders shall be published in the Federal Register 
for public comment and codified in the CFR.
    (3) Applicability of onshore oil and gas orders. Onshore Oil and Gas 
Orders issued pursuant to this section are binding on all operations 
conducted on National Forest System lands, unless otherwise provided 
therein.
    (b) Notices to lessees, transferees, and operators. The authorized 
Forest officer may issue, or cosign with the authorized officer of the 
Bureau of Land Management, Notices to Lessees, Transferees, and 
Operators necessary to implement the regulations of this subpart. 
Notices to Lessees, Transferees, and Operators are binding on all 
operations conducted on the administrative unit of the National Forest 
System (36 CFR 200.2) supervised by the authorized Forest officer who 
issued or cosigned such notice.

[55 FR 10444, Mar. 21, 1990, as amended at 72 FR 10328, Mar. 7, 2007]

[[Page 217]]



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

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



Sec. 228.107  Review of surface use plan of operations.

    (a) Review. The authorized Forest officer shall review a surface use 
plan of operations as promptly as practicable given the nature and scope 
of the proposed plan. As part of the review, the authorized Forest 
officer shall comply with the National Environmental Policy Act of 1969, 
implementing regulations at 40 CFR parts 1500-1508, and the Forest 
Service implementing policies and procedures set forth in Forest Service 
Manual Chapter 1950 and Forest Service Handbook 1909.15 and shall ensure 
that:
    (1) The surface use plan of operations is consistent with the lease, 
including the lease stipulations, and applicable Federal laws;
    (2) To the extent consistent with the rights conveyed by the lease, 
the surface use plan of operations is consistent with, or is modified to 
be consistent with, the applicable current approved forest land and 
resource management plan;
    (3) The surface use plan of operations meets or exceeds the surface 
use requirements of Sec. 228.108 of this subpart; and
    (4) The surface use plan of operations is acceptable, or is modified 
to be acceptable, to the authorized Forest officer based upon a review 
of the environmental consequences of the operations.
    (b) Decision. The authorized Forest officer shall make a decision on 
the approval of a surface use plan of operations as follows:
    (1) If the authorized Forest officer will not be able to make a 
decision on the proposed plan within 3 working days after the conclusion 
of the 30-day notice period provided for by 30 U.S.C. 226(f), the 
authorized Forest officer shall advise the appropriate Bureau of Land 
Management office and the operator as soon as such delay becomes 
apparent, either in writing or orally with

[[Page 218]]

subsequent written confirmation, that additional time will be needed to 
process the plan. The authorized Forest officer shall explain the reason 
why additional time is needed and project the date by which a decision 
on the plan will likely be made.
    (2) When the review of a surface use plan of operations has been 
completed, the authorized Forest officer shall promptly notify the 
operator and the appropriate Bureau of Land Management office, in 
writing, that:
    (i) The plan is approved as submitted:
    (ii) The plan is approved subject to specified conditions; or,
    (iii) The plan is disapproved for the reasons stated.
    (c) Notice of decision. The authorized Forest officer shall give 
public notice of the decision on a surface use plan of operations and 
include in the notice that the decision is subject to appeal under 36 
CFR part 214 or 215.
    (d) Transmittal of decision. The authorized Forest officer shall 
immediately forward a decision on a surface use plan of operations to 
the appropriate Bureau of Land Management office and the operator. This 
transmittal shall include the estimated cost of reclamation and 
restoration (Sec. 228.109(a)) if the authorized Forest officer believes 
that additional bonding is required.
    (e) Supplemental plans. A supplemental surface use plan of 
operations (Sec. 228.106(d)) shall be reviewed in the same manner as an 
initial surface use plan of operations.

[55 FR 10444, Mar. 21, 1990, as amended at 72 FR 10328, Mar. 7, 2007; 78 
FR 33724, June 5, 2013]



Sec. 228.108  Surface use requirements.

    (a) General. The operator shall conduct operations on a leasehold on 
National Forest System lands in a manner that minimizes effects on 
surface resources, prevents unnecessary or unreasonable surface resource 
disturbance, and that is in compliance with the other requirements of 
this section.
    (b) Notice of operations. The operator must notify the authorized 
Forest officer 48 hours prior to commencing operations or resuming 
operations following their temporary cessation (Sec. 228.111).
    (c) Access facilities. The operator shall construct and maintain 
access facilities to assure adequate drainage and to minimize or prevent 
damage to surface resources.
    (d) Cultural and historical resources. The operator shall report 
findings of cultural and historical resources to the authorized Forest 
officer immediately and, except as otherwise authorized in an approved 
surface use plan of operations, protect such resources.
    (e) Fire prevention and control. To the extent practicable, the 
operator shall take measures to prevent uncontrolled fires on the area 
of operation and to suppress uncontrolled fires resulting from the 
operations.
    (f) Fisheries, wildlife and plant habitat. The operator shall comply 
with the requirements of the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) and its implementing regulations (50 CFR chapter IV), and, 
except as otherwise provided in an approved surface use plan of 
operations, conduct operations in such a manner as to maintain and 
protect fisheries, wildlife, and plant habitat.
    (g) Reclamation. (1) Unless otherwise provided in an approved 
surface use plan of operations, the operator shall conduct reclamation 
concurrently with other operations.
    (2) Within 1 year of completion of operations on a portion of the 
area of operation, the operator must reclaim that portion, unless a 
different period of time is approved in writing by the authorized Forest 
officer.
    (3) The operator must:
    (i) Control soil erosion and landslides;
    (ii) Control water runoff;
    (iii) Remove, or control, solid wastes, toxic substances, and 
hazardous substances;
    (iv) Reshape and revegetate disturbed areas;
    (v) Remove structures, improvements, facilities and equipment, 
unless otherwise authorized; and
    (vi) Take such other reclamation measures as specified in the 
approved surface use plan of operations.
    (h) Safety measures. (1) The operator must maintain structures, 
facilities, improvements, and equipment located on the area of operation 
in a safe and

[[Page 219]]

neat manner and in accordance with an approved surface use plan of 
operations.
    (2) The operator must take appropriate measures in accordance with 
applicable Federal and State laws and regulations to protect the public 
from hazardous sites or conditions resulting from the operations. Such 
measures may include, but are not limited to, posting signs, building 
fences, or otherwise identifying the hazardous site or condition.
    (i) Wastes. The operator must either remove garbage, refuse, and 
sewage from National Forest System lands or treat and dispose of that 
material in such a manner as to minimize or prevent adverse impacts on 
surface resources. The operator shall treat or dispose of produced 
water, drilling fluid, and other waste generated by the operations in 
such a manner as to minimize or prevent adverse impacts on surface 
resources.
    (j) Watershed protection. (1) Except as otherwise provided in the 
approved surface use plan of operations, the operator shall not conduct 
operations in areas subject to mass soil movement, riparian areas and 
wetlands.
    (2) The operator shall take measures to minimize or prevent erosion 
and sediment production. Such measures include, but are not limited to, 
siting structures, facilities, and other improvements to avoid steep 
slopes and excessive clearing of land.



Sec. 228.109  Bonds.

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



Sec. 228.110  Indemnification.

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

                      Administration of Operations



Sec. 228.111  Temporary cessation of operations.

    (a) General. As soon as it becomes apparent that there will be a 
temporary cessation of operations for a period of 45 days or more, the 
operator must verbally notify and subsequently file a statement with the 
authorized Forest officer verifying the operator's intent to maintain 
structures, facilities, improvements, and equipment that will remain on 
the area of operation during

[[Page 220]]

the cessation of operations, and specifying the expected date by which 
operations will be resumed.
    (b) Seasonal shutdowns. The operator need not file the statement 
required by paragraph (a) of this section if the cessation of operations 
results from seasonally adverse weather conditions and the operator will 
resume operations promptly upon the conclusion of those adverse weather 
conditions.
    (c) Interim measures. The authorized Forest officer may require the 
operator to take reasonable interim reclamation or erosion control 
measures to protect surface resources during temporary cessations of 
operations, including during cessations of operations resulting from 
seasonally adverse weather conditions.



Sec. 228.112  Compliance and inspection.

    (a) General. Operations must be conducted in accordance with the 
lease, including stipulations made part of the lease at the direction of 
the Forest Service, an approved surface use plan of operations, the 
applicable Onshore Oil and Gas Order (Sec. 228.105(a)), an applicable 
Notice to lessees, transferees, and operators (Sec. 228.105(b)), and 
regulations of this subpart.
    (b) Completion of reclamation. The authorized Forest officer shall 
give prompt written notice to an operator whenever reclamation of a 
portion of the area affected by surface operations has been 
satisfactorily completed in accordance with the approved surface use 
plan of operations and Sec. 228.108 of this subpart. The notice shall 
describe the portion of the area on which the reclamation has been 
satisfactorily completed.
    (c) Compliance with other statutes and regulations. Nothing in this 
subpart shall be construed to relieve an operator from complying with 
applicable Federal and State laws or regulations, including, but not 
limited to:
    (1) Federal and State air quality standards, including the 
requirements of the Clean Air Act, as amended (42 U.S.C. 1857 et seq.);
    (2) Federal and State water quality standards, including the 
requirements of the Federal Water Pollution Control Act, as amended (33 
U.S.C. 1151 et seq.);
    (3) Federal and State standards for the use or generation of solid 
wastes, toxic substances and hazardous substances, including the 
requirements of the Comprehensive Environmental Response, Compensation 
and Liability Act, as amended, 42 U.S.C. 9601 et seq., and its 
implementing regulations, 40 CFR chapter I, subchapter J, and the 
Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq., and its 
implementing regulations, 40 CFR chapter I, subchapter I;
    (4) The Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., and 
its implementing regulations, 50 CFR chapter IV;
    (5) The Archeological Resources Protection Act of 1979, as amended 
(16 U.S.C. 470aa et seq.) and its implementing regulations 36 CFR part 
296;
    (6) The Mineral Leasing Act of 1920, 30 U.S.C. 1981 et seq., the 
Mineral Leasing Act of Acquired Lands of 1947, 30 U.S.C. 351 et seq., 
the Federal Oil and Gas Royalty Management Act of 1982, 30 U.S.C. 1701 
et seq., and their implementing regulations, 43 CFR chapter II, group 
3100; and
    (7) Applicable Onshore Oil and Gas Orders and Notices to Lessees and 
Operators (NTL's) issued by the United States Department of the 
Interior, Bureau of Land Management pursuant to 43 CFR chapter II, part 
3160, subpart 3164.
    (d) Penalties. If surface disturbing operations are being conducted 
that are not authorized by an approved surface use plan of operations or 
that violate a term or operating condition of an approved surface use 
plan of operations, the person conducting those operations is subject to 
the prohibitions and attendant penalties of 36 CFR part 261.
    (e) Inspection. Forest Service officers shall periodically inspect 
the area of operations to determine and document whether operations are 
being conducted in compliance with the regulations in this subpart, the 
stipulations included in the lease at the direction of the Forest 
Service, the approved surface use plan of operations, the applicable 
Onshore Oil and Gas Order, and applicable Notices to Lessees, 
Transferees, and Operators.

[[Page 221]]



Sec. 228.113  Notice of noncompliance.

    (a) Issuance. When an authorized Forest officer finds that the 
operator is not in compliance with a reclamation or other standard, a 
stipulation included in a lease at the direction of the Forest Service, 
an approved surface use plan of operation, the regulations in this 
subpart, the applicable onshore oil and gas order, or an applicable 
notice to lessees, transferees, and operators, the authorized Forest 
officer shall issue a notice of noncompliance.
    (1) Content. The notice of noncompliance shall include the 
following:
    (i) Identification of the reclamation requirements or other 
standard(s) with which the operator is not in compliance;
    (ii) Description of the measures which are required to correct the 
noncompliance;
    (iii) Specification of a reasonable period of time within which the 
noncompliance must be corrected;
    (iv) If the noncompliance appears to be material, identification of 
the possible consequences of continued noncompliance of the 
requirement(s) or standard(s) as described in 30 U.S.C. 226(g);
    (v) If the noncompliance appears to be in violation of the 
prohibitions set forth in 36 CFR part 261, identification of the 
possible consequences of continued noncompliance of the requirement(s) 
or standard(s) as described in 36 CFR 261.1b; and
    (vi) Notification that the authorized Forest officer remains willing 
and desirous of working cooperatively with the operator to resolve or 
remedy the noncompliance.
    (2) Extension of deadlines. The operator may request an extension of 
a deadline specified in a notice of noncompliance if the operator is 
unable to come into compliance with the applicable requirement(s) or 
standard(s) identified in the notice of noncompliance by the deadline 
because of conditions beyond the operator's control. The authorized 
Forest officer shall not extend a deadline specified in a notice of 
noncompliance unless the operator requested an extension and the 
authorized Forest officer finds that there was a condition beyond the 
operator's control, that such condition prevented the operator from 
complying with the notice of noncompliance by the specified deadline, 
and that the extension will not adversely affect the interests of the 
United States. Conditions which may be beyond the operator's control 
include, but are not limited to, closure of an area in accordance with 
36 CFR part 261, subparts B or C, or inaccessibility of an area of 
operations due to such conditions as fire, flooding, or snowpack.
    (3) Manner of service. The authorized Forest officer shall serve a 
notice of noncompliance or a decision on a request for extension of a 
deadline specified in a notice upon the operator in person, by certified 
mail or by telephone. However, if notice is initially provided in person 
or by telephone, the authorized Forest officer shall send the operator 
written confirmation of the notice or decision by certified mail.
    (b) Failure to come into compliance. If the operator fails to come 
into compliance with the applicable requirement(s) or standard(s) 
identified in a notice of noncompliance by the deadline specified in the 
notice, or an approved extension, the authorized Forest officer shall 
decide whether: The noncompliance appears to be material given the 
reclamation requirements and other standards applicable to the lease 
established by 30 U.S.C. 226(g), the regulations in this subpart, the 
stipulations included in a lease at the direction of the Forest Service, 
an approved surface use plan of operations, the applicable Onshore Oil 
and Gas Order, or an applicable Notice to lessees, transferees, and 
operators; the noncompliance is likely to result in danger to public 
health or safety or irreparable resource damage; and the noncompliance 
is resulting in an emergency.
    (1) Referral to compliance officer. When the operations appear to be 
in material noncompliance, the authorized Forest officer shall promptly 
refer the matter to the compliance officer. The referral shall be 
accompanied by a complete statement of the facts supported by 
appropriate exhibits. Apparent material noncompliance includes, but is 
not limited to, operating without an approved

[[Page 222]]

surface use plan of operations, conducting operations that have been 
suspended, failure to timely complete reclamation in accordance with an 
approved surface use plan of operations, failure to maintain an 
additional bond in the amount required by the authorized Forest officer 
during the period of operation, failure to timely reimburse the Forest 
Service for the cost of abating an emergency, and failing to comply with 
any term included in a lease, stipulation, or approved surface use plan 
of operations, the applicable onshore oil and gas order, or an 
applicable Notice to lessees, transferees, and operators, relating to 
the protection of a threatened or endangered species.
    (2) Suspension of operations. When the noncompliance is likely to 
result in danger to public health or safety or in irreparable resource 
damage, the authorized Forest officer shall suspend the operations, in 
whole or in part.
    (i) A suspension of operations shall remain in effect until the 
authorized Forest officer determines that the operations are in 
compliance with the applicable requirement(s) or standard(s) identified 
in the notice of noncompliance.
    (ii) The authorized Forest officer shall serve decisions suspending 
operations upon the operator in person, by certified mail, or by 
telephone. If notice is initially provided in person or by telephone, 
the authorized Forest officer shall send the operator written 
confirmation of the decision by certified mail.
    (iii) The authorized Forest officer shall immediately notify the 
appropriate Bureau of Land Management office when an operator has been 
given notice to suspend operations.
    (3) Abatement of emergencies. When the noncompliance is resulting in 
an emergency, the authorized Forest officer may take action as necessary 
to abate the emergency. The total cost to the Forest Service of taking 
actions to abate an emergency becomes an obligation of the operator.
    (i) Emergency situations include, but are not limited to, imminent 
dangers to public health or safety or irreparable resource damage.
    (ii) The authorized Forest officer shall promptly serve a bill for 
such costs upon the operator by certified mail.



Sec. 228.114  Material noncompliance proceedings.

    (a) Evaluation of referral. The compliance officer shall promptly 
evaluate a referral made by the authorized Forest officer pursuant to 
Sec. 228.113(b)(1) of this subpart.
    (b) Dismissal of referral. The compliance officer shall dismiss the 
referral if the compliance officer determines that there is not adequate 
evidence to support a reasonable belief that:
    (1) The operator was not in compliance with the applicable 
requirement(s) or standard(s) identified in a notice of noncompliance by 
the deadline specified in the notice, or an extension approved by the 
authorized Forest officer; or
    (2) The noncompliance with the applicable requirement(s) or 
standard(s) identified in the notice of noncompliance may be material.
    (c) Initiation of proceedings. The compliance officer shall initiate 
a material noncompliance proceeding if the compliance officer agrees 
that there is adequate evidence to support a reasonable belief that an 
operator has failed to come into compliance with the applicable 
requirement(s) or standard(s) identified in a notice of noncompliance by 
the deadline specified in the notice, or extension approved by the 
authorized Forest officer, and that the noncompliance may be material.
    (1) Notice of proceedings. The compliance officer shall inform the 
lessee and operator of the material noncompliance proceedings by 
certified mail, return receipt requested.
    (2) Content of notice. The notice of the material noncompliance 
proceeding shall include the following:
    (i) The specific reclamation requirement(s) or other standard(s) of 
which the operator may be in material noncompliance;
    (ii) A description of the measures that are required to correct the 
violation;
    (iii) A statement that if the compliance officer finds that the 
operator is

[[Page 223]]

in material noncompliance with a reclamation requirement or other 
standard applicable to the lease, the Secretary of the Interior will not 
be able to issue new leases or approve new transfers of leases to the 
operator, any subsidiary or affiliate of the operator, or any person 
controlled by or under common control with the operator until the 
compliance officer finds that the operator has come into compliance with 
such requirement or standard; and
    (iv) A recitation of the specific procedures governing the material 
noncompliance proceeding set forth in paragraphs (d) through (g) of this 
section.
    (d) Answer. Within 30 calendar days after receiving the notice of 
the proceeding, the operator may submit, in person, in writing, or 
through a representative, an answer containing information and argument 
in opposition to the proposed material noncompliance finding, including 
information that raises a genuine dispute over the material facts. In 
that submission, the operator also may:
    (1) Request an informal hearing with the compliance officer; and
    (2) Identify pending administrative or judicial appeal(s) which are 
relevant to the proposed material noncompliance finding and provide 
information which shows the relevance of such appeal(s).
    (e) Informal hearing. If the operator requests an informal hearing, 
it shall be held within 20 calendar days from the date that the 
compliance officer receives the operator's request.
    (1) The compliance officer may postpone the date of the informal 
hearing if the operator requests a postponement in writing.
    (2) At the hearing, the operator, appearing personally or through an 
attorney or another authorized representative, may informally present 
and explain evidence and argument in opposition to the proposed material 
noncompliance finding.
    (3) A transcript of the informal hearing shall not be required.
    (f) Additional procedures as to disputed facts. If the compliance 
officer finds that the answer raises a genuine dispute over facts 
essential to the proposed material noncompliance finding, the compliance 
officer shall so inform the operator by certified mail, return receipt 
requested. Within 10 days of receiving this notice, the operator may 
request a fact-finding conference on those disputed facts.
    (1) The fact-finding conference shall be scheduled within 20 
calendar days from the date the compliance officer receives the 
operator's request, unless the operator and compliance officer agree 
otherwise.
    (2) At the fact-finding conference, the operator shall have the 
opportunity to appear with counsel, submit documentary evidence, present 
witnesses, and confront the person(s) the Forest Service presents.
    (3) A transcribed record of the fact-finding conference shall be 
made, unless the operator and the compliance officer by mutual agreement 
waive the requirement for a transcript. The transcript will be made 
available to the operator at cost upon request.
    (4) The compliance officer may preside over the fact-finding 
conference or designate another authorized Forest officer to preside 
over the fact-finding conference.
    (5) Following the fact-finding conference, the authorized Forest 
officer who presided over the conference shall promptly prepare written 
findings of fact based upon the preponderance of the evidence. The 
compliance officer may reject findings of fact prepared by another 
authorized Forest officer, in whole or in part, if the compliance 
officer specifically determines that such findings are arbitrary and 
capricious or clearly erroneous.
    (g) Dismissal of proceedings. The compliance officer shall dismiss 
the material noncompliance proceeding if, before the compliance officer 
renders a decision pursuant to paragraph (h) of this section, the 
authorized Forest officer who made the referral finds that the operator 
has come into compliance with the applicable requirements or standards 
identified in the notice of proceeding.
    (h) Compliance officer's decision. The compliance officer shall base 
the decision on the entire record, which shall consist of the authorized 
Forest officer's referral and its accompanying

[[Page 224]]

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

[[Page 225]]

measures that are required to correct the violation(s).
    (ii) If the compliance officer finds that the operator has 
subsequently come into compliance with the requirement(s) or standard(s) 
identified in the compliance officer's decision finding that the 
operator was in material noncompliance, the compliance officer also 
shall immediately send a copy of the decision on the petition for 
withdrawal to the appropriate Bureau of Land Management office and 
notify the Secretary of the Interior that the operator has come into 
compliance.
    (j) List of operators found to be in material noncompliance. The 
Deputy Chief, National Forest System, shall compile and maintain a list 
of operators who have been found to be in material noncompliance with 
reclamation requirements and other standards as provided in 30 U.S.C. 
226(g), the regulations in this subpart, a stipulation included in a 
lease at the direction of the Forest Service, or an approved surface use 
plan of operations, the applicable onshore oil and gas order, or an 
applicable notice to lessees, transferees, and operators, for a lease on 
National Forest System lands to which such standards apply. This list 
shall be made available to Regional Foresters, Forest Supervisors, and 
upon request, members of the public.



Sec. 228.115  Additional notice of decisions.

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



Sec. 228.116  Information collection requirements.

    (a) Sections containing information requirements. The following 
sections of this subpart contain information requirements as defined in 
5 CFR part 1320 and have been approved for use by the Office of 
Management and Budget:
    (1) Section 228.104(a) Requests to Modify, Waive, or Grant 
Exceptions to Leasing Stipulations;
    (2) Section 228.106 (a), (c), and (d) Submission of Surface Use Plan 
of Operations;
    (3) Section 228.109(c) Request for Reduction in Reclamation 
Liability after Reclamation;
    (4) Section 228.111(a) Notice of Temporary Cessation of Operations;
    (5) Section 228.113(a)(2) Extension of Deadline in Notice of 
Noncompliance; and
    (6) Section 228.114 (c) through (i) Material Noncompliance 
Proceedings.
    (b) OMB control number. The information requirements listed in 
paragraph (a) of this section have been assigned OMB Control No. 0596-
0101.
    (c) Average estimated burden hours. (1) The average burden hours per 
response are estimated to be:
    (i) 5 minutes for the information requirements in Sec. 228.104(a) 
of this subpart;
    (ii) No additional burden hours required to meet the information 
requirements in Sec. 228.106 (a), (c), and (d) of this subpart;
    (iii) 10 minutes for the information requirements in Sec. 
228.109(c) of this subpart;
    (iv) 10 minutes for the information requirements in Sec. 228.111(a) 
of this subpart;
    (v) 5 minutes for the information requirements in Sec. 
228.113(a)(2) of this subpart; and

[[Page 226]]

    (vi) 2 hours for the information requirements in Sec. 228.114 (c) 
through (i) of this subpart.
    (2) Send comments regarding the burden estimate or any other aspect 
of this collection of information, including suggestions for reducing 
this burden, to Chief (2800), Forest Service, USDA, P.O. Box 96090, 
Washington, DC 20090-6090 and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Washington, DC 
20503.



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



     Subpart A_Community Forest and Open Space Conservation Program

Sec.
230.1 Purpose and scope.
230.2 Definitions.
230.3 Application process.
230.4 Application requirements.
230.5 Ranking criteria and proposal selection.
230.6 Project costs and cost share requirements.
230.7 Grant requirements.
230.8 Acquisition requirements.
230.9 Ownership and use requirements.
230.10 Technical assistance funds.

        Subpart B_Urban and Community Forestry Assistance Program

230.20 Scope and authority.
230.21 Implementation of the program.

                Subpart C_Forest Land Enhancement Program

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

    Authority: 16 U.S.C. 2103(d) & 2109(e).

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



     Subpart A_Community Forest and Open Space Conservation Program

    Source: 76 FR 65130, Oct. 20, 2011, unless otherwise noted.



Sec. 230.1  Purpose and scope.

    (a) The regulations of this subpart govern the rules and procedures 
for the Community Forest and Open Space Conservation Program (CFP), 
established under Section 7A of the Cooperative Forestry Assistance Act 
of 1978 (16 U.S.C. 2103d). Under the CFP, the Secretary of Agriculture, 
acting through the Chief of the Forest Service, awards grants to local 
governments, Indian tribes, and qualified nonprofit organizations to 
establish community forests for community benefits by acquiring and 
protecting private forestlands.
    (b) The CFP applies to eligible entities within any of the 50 
States, the District of Columbia, the Commonwealth of Puerto Rico, the 
Virgin Islands of the United States, the Commonwealth of the Northern 
Mariana Islands, the Federated States of Micronesia, the Republic of the 
Marshall Islands, the Republic of Palau, and the territories and 
possessions of the United States.



Sec. 230.2  Definitions.

    The terms used in this subpart are defined as follows:
    Borrowed funds. Funds used for the purpose of cost share which would 
encumber the subject property, in whole or in part, to another party.
    Community benefits. One or more of the following:
    (1) Economic benefits such as timber and non-timber products 
resulting from sustainable forest management and tourism;

[[Page 227]]

    (2) Environmental benefits, including clean air and water, 
stormwater management, and wildlife habitat;
    (3) Benefits from forest-based experiential learning, including K-12 
conservation education programs; vocational education programs in 
disciplines such as forestry and environmental biology; and 
environmental education through individual study or voluntary 
participation in programs offered by organizations such as 4-H, Boy or 
Girl Scouts, Master Gardeners, etc.;
    (4) Benefits from serving as replicable models of effective forest 
stewardship for private landowners; and,
    (5) Recreational benefits such as hiking, hunting and fishing 
secured with public access.
    Community forest. Forest land owned in fee-simple by an eligible 
entity that provides public access and is managed to provide community 
benefits pursuant to a community forest plan.
    Community forest plan. A tract-specific plan that guides the 
management and use of a community forest, was developed with community 
involvement, and includes the following components:
    (1) A description of the property, including acreage and county 
location, land use, forest type and vegetation cover;
    (2) Objectives for the community forest;
    (3) Community benefits to be achieved from the establishment of the 
community forest;
    (4) Mechanisms promoting community involvement in the development 
and implementation of the community forest plan;
    (5) Implementation strategies for achieving community forest plan 
objectives;
    (6) Plans for the utilization or demolition of existing structures 
and proposed needs for further improvements;
    (7) Planned public access, including proposed limitations to protect 
cultural or natural resources, or public health and safety. In addition, 
local governments and qualified nonprofits need to provide a rationale 
for any proposed limitations; and
    (8) A description for the long-term use and management of the 
property.
    Eligible entity. A local governmental entity, Indian tribe, or a 
qualified nonprofit organization that is qualified to acquire and manage 
land.
    Eligible lands. Private forest lands that:
    (1) Are threatened by conversion to nonforest uses;
    (2) Are not lands held in trust by the United States; and
    (3) If acquired by an eligible entity, can provide defined community 
benefits under the CFP and allow public access.
    Equivalent officials of Indian tribes. An individual designated and 
authorized by the Indian tribe.
    Federal appraisal standards. The current Uniform Appraisal Standards 
for Federal Land Acquisitions developed by the Interagency Land 
Acquisition Conference (also known as the yellow book).
    Fee-simple. Absolute interest in real property, versus a partial 
interest such as a conservation easement.
    Forest lands. Lands that are at least five acres in size, suitable 
to sustain natural vegetation, and at least 75 percent forested. Forests 
are determined both by the presence of trees and the absence of 
nonforest uses.
    Grant recipient: An eligible entity that receives a grant from the 
U.S. Forest Service through the CFP.
    Indian tribe. Defined by Section 4 of the Indian Self-Determination 
and Education Assistance Act (25 U.S.C. 450b); for purposes of this 
rule, Indian tribe includes federally recognized Indian tribes and 
Alaska Native Corporations.
    Landscape conservation initiative. A landscape conservation 
initiative, as defined in this final rule, is a landscape-level 
conservation or management plan or activity that identifies conservation 
needs and goals of a locality, state, or region. Examples of initiatives 
include community green infrastructure plans, a community or county land 
use plan, Indian tribe's area of interest/homelands plans, a Statewide 
Forest Resource Assessment and Strategy, etc. The conservation goals 
identified in the plan must correspond with the community and 
environmental benefits outlined for the CFP.

[[Page 228]]

    Local governmental entity. Any municipal government, county 
government, or other local government body with jurisdiction over local 
land use decisions as defined by Federal or State law.
    Nonforest uses. Activities that threaten forest cover and are 
inconsistent with the community forest plan, and include the following:
    (1) Subdivision;
    (2) Residential development, except for a caretaker building;
    (3) Mining and nonrenewable resource extraction, except for 
activities that would not require surface disturbance of the community 
forest such as directional drilling for oil and gas development or 
onsite use of gravel from existing gravel pits;
    (4) Industrial use, including the manufacturing of products;
    (5) Commercial use, except for sustainable timber or other renewable 
resources, and limited compatible commercial activities to support 
cultural, recreational and educational use of the community forest by 
the public; and
    (6) Structures and facilities, except for compatible recreational 
facilities, concession and educational kiosks, energy development for 
onsite use, facilities associated with appropriate forest management and 
parking areas; said structures, facilities and parking areas must have 
minimal impacts to forest and water resources.
    Qualified nonprofit organization. Defined by the CFP authorizing 
statute (Pub. L. 110-234; 122 Stat. at 1281), an organization that is 
described in Section 170(h)(3) of the Internal Revenue Code of 1986 (26 
U.S.C. 170(h)(3)) and operates in accordance with one or more of the 
conservation purposes specified in Section 170(h)(4)(A) of that Code (26 
U.S.C. 170(h)(4)(A)). For the purposes of the CFP, a qualified nonprofit 
organization must meet the following requirements:
    (1) Consistent with regulations of the Internal Revenue Service at 
26 CFR 1.170A-14(c)(1):
    (i) Have a commitment to protect in perpetuity the purposes for 
which the tract was acquired under the CFP; and
    (ii) Demonstrate that it has the resources to enforce the protection 
of the property as a community forest as a condition of acquiring a 
tract under the CFP.
    (2) Operate primarily or substantially in accordance with one or 
more of the conservation purposes specified in Section 170(h)(4)(A) of 
I.R.S. code (26 U.S.C. 170(h)(4)(A)). Conservation purposes include:
    (i) The preservation of land areas for outdoor recreation by, or for 
the education of, the general public,
    (ii) The protection of a relatively natural habitat of fish, 
wildlife, or plants, or similar ecosystem,
    (iii) The preservation of open space (including farmland and forest 
land) where such preservation is for the scenic enjoyment of the general 
public, or pursuant to a clearly delineated Federal, State, or local 
governmental conservation policy, and will yield a significant public 
benefit, or
    (iv) The preservation of a historically important land area or a 
certified historic structure.
    Public access. Access that is provided on a non-discriminatory basis 
at reasonable times and places, but may be limited to protect cultural 
and natural resources or public health and safety.
    State Forester. The State employee who is responsible for 
administration and delivery of forestry assistance within a State, or 
equivalent official.



Sec. 230.3  Application process.

    (a) The Forest Service will issue a national request for 
applications (RFA) for grants under the CFP. The RFA will be posted to 
http://www.grants.gov as well as other venues. The RFA will include the 
following information outlined in this final rule:
    (1) The process for submitting an application;
    (2) Application requirements (Sec. 230.4);
    (3) Review process and criteria that will be used by the Forest 
Service (Sec. 230.5); and
    (4) Other conditions determined appropriate by the Forest Service.
    (b) Pursuant to the RFA, interested eligible entities will submit an 
application for program participation to:
    (1) The State Forester or equivalent official, for applications by 
local governments and qualified nonprofit organizations, or

[[Page 229]]

    (2) The equivalent officials of the Indian tribe, for applications 
submitted by an Indian tribe.
    (c) Interested eligible entities will also notify the Forest 
Service, pursuant to the RFA, when submitting an application to the 
State Forester or equivalent officials of the Indian tribe.
    (d) The State Forester or equivalent official of the Indian tribe 
will forward all applications to the Forest Service, and, as time and 
resources allow:
    (1) Provide a review of each application to help the Forest Service 
determine:
    (i) That the applicant is an eligible entity;
    (ii) That the land is eligible;
    (iii) That the proposed project has not been submitted for funding 
consideration under the Forest Legacy Program; and
    (iv) Whether the project contributes to a landscape conservation 
initiative.
    (2) Describe what technical assistance provided through CFP they may 
render in support of implementing the proposed community forest project 
and an estimate of needed financial assistance (Sec. 230.10).
    (e) A proposed application cannot be submitted for funding 
consideration simultaneously for both the CFP and the Forest Service's 
Forest Legacy Program (16 U.S.C. 2103c).



Sec. 230.4  Application requirements.

    The following section outlines minimum application requirements, but 
the RFA may include additional requirements.
    (a) Documentation verifying that the applicant is an eligible entity 
and that the proposed acquisition is of eligible lands.
    (b) Applications must include the following regarding the property 
proposed for acquisition:
    (1) A description of the property, including acreage and county 
location;
    (2) A description of current land uses, including improvements;
    (3) A description of forest type and vegetative cover;
    (4) A map of sufficient scale to show the location of the property 
in relation to roads and other improvements as well as parks, refuges, 
or other protected lands in the vicinity;
    (5) A description of applicable zoning and other land use 
regulations affecting the property;
    (6) Relationship of the property within and its contributions to a 
landscape conservation initiative; and
    (7) A description of any threats of conversion to nonforest uses.
    (c) Information regarding the proposed establishment of a community 
forest, including:
    (1) A description of the benefiting community, including 
demographics, and the associated benefits provided by the proposed land 
acquisition;
    (2) A description of the community involvement to date in the 
planning of the community forest and of the community involvement 
anticipated in its long-term management;
    (3) An identification of persons and organizations that support the 
project and their specific role in acquiring the land and establishing 
and managing the community forest; and
    (4) A draft community forest plan. The eligible entity is encouraged 
to work with the State Forester or equivalent official of the Indian 
tribe for technical assistance when developing or updating the Community 
Forest Plan. In addition, the eligible entity is encouraged to work with 
technical specialists, such as professional foresters, recreation 
specialists, wildlife biologists, or outdoor education specialists, when 
developing the Community Forest Plan.
    (d) Information regarding the proposed land acquisition, including:
    (1) A proposed project budget (Sec. 230.6);
    (2) The status of due diligence, including signed option or purchase 
and sale agreement, title search, minerals determination, and appraisal;
    (3) Description and status of cost share (secure, pending, 
commitment letter, etc.) (Sec. 230.6);
    (4) The status of negotiations with participating landowner(s) 
including purchase options, contracts, and other terms and conditions of 
sale;
    (5) The proposed timeline for completing the acquisition and 
establishing the community forest; and
    (6) Long term management costs and funding source(s).

[[Page 230]]

    (e) Applications must comply with the Uniform Federal Assistance 
Regulations (7 CFR part 3015).
    (f) Applications must also include the forms required to process a 
Federal grant. Section 230.7 references the grant forms that must be 
included in the application and the specific administrative requirements 
that apply to the type of Federal grant used for this program.



Sec. 230.5  Ranking criteria and proposal selection.

    (a) Using the criteria described below, to the extent practicable, 
the Forest Service will give priority to an application that maximizes 
the delivery of community benefits, as defined in this final rule, 
through a high degree of public participation; and
    (b) The Forest Service will evaluate all applications received by 
the State Foresters or equivalent officials of the Indian tribe and 
award grants based on the following criteria:
    (1) Type and extent of community benefits provided. Community 
benefits are defined in this final rule as:
    (i) Economic benefits such as timber and non-timber products;
    (ii) Environmental benefits, including clean air and water, 
stormwater management, and wildlife habitat;
    (iii) Benefits from forest-based experiential learning, including K-
12 conservation education programs; vocational education programs in 
disciplines such as forestry and environmental biology; and 
environmental education through individual study or voluntary 
participation in programs offered by organizations such as 4-H, Boy or 
Girl Scouts, Master Gardeners, etc;
    (iv) Benefits from serving as replicable models of effective forest 
stewardship for private landowners; and
    (v) Recreational benefits such as hiking, hunting and fishing 
secured through public access.
    (2) Extent and nature of community engagement in the establishment 
and long-term management of the community forest;
    (3) Amount of cost share leveraged;
    (4) Extent to which the community forest contributes to a landscape 
conservation initiative;
    (5) Extent of due diligence completed on the project, including cost 
share committed and status of appraisal;
    (6) Likelihood that, unprotected, the property would be converted to 
nonforest uses;
    (7) Costs to the Federal government; and
    (8) Additional considerations as may be outlined in the RFA.



Sec. 230.6  Project costs and cost share requirements.

    (a) The CFP Federal contribution cannot exceed 50 percent of the 
total project costs.
    (b) Allowable project and cost share costs will include the purchase 
price and the following transactional costs associated with the 
acquisition: appraisals and appraisal reviews, land surveys, legal and 
closing costs, development of the community forest plan, and title 
examination. The following principles and procedures will determine 
allowable costs for grants:
    (1) For local and Indian tribal governments, refer to 2 CFR Part 
225, Cost Principles for State, Local, and Indian Tribal Governments 
(OMB Circular A-87) .
    (2) For qualified nonprofit organizations, refer to 2 CFR Part 230, 
Cost Principles for Non-Profit Organizations (OMB Circular A-122).
    (c) Project costs do not include the following:
    (1) Long-term operations, maintenance, and management of the land;
    (2) Construction of buildings or recreational facilities;
    (3) Research;
    (4) Existing liens or taxes owed; and
    (5) Costs associated with preparation of the application, except any 
allowable project costs specified in section 230.6(b) completed as part 
of the application.
    (d) Cost share contributions can include cash, in-kind services, or 
donations and must meet the following requirements:
    (1) Be supported by grant regulations described above;
    (2) Not include other Federal funds unless specifically authorized 
by Federal statute;

[[Page 231]]

    (3) Not include non-Federal funds used as cost share for other 
Federal programs;
    (4) Not include funds used to satisfy mandatory or compensatory 
mitigation requirements under a Federal regulation, such as the Clean 
Water Act, the River and Harbor Act, or the Endangered Species Act;
    (5) Not include borrowed funds; and
    (6) Be accomplished within the grant period.
    (e) Cost share contributions may include the purchase or donation of 
lands located within the community forest as long as it is provided by 
an eligible entity and legally dedicated to perpetual land conservation 
consistent with CFP program objectives; such donations need to meet the 
requirements specified under Sec. 230.8 Acquisition requirements 
(a)(1)(ii).
    (f) For the purposes of calculating the cost share contribution, the 
grant recipient may request the inclusion of project due diligence 
costs, such as title review and appraisals, that were incurred prior to 
issuance of the grant. These pre-award costs may occur up to one year 
prior to the issuance of the grant, but cannot include the purchase of 
CFP land, including cost share tracts.



Sec. 230.7  Grant requirements.

    (a) The following grant forms and supporting materials must be 
included in the application:
    (1) An Application for Federal Assistance (Standard Form 424);
    (2) Budget information (Standard Form SF 424c--Construction 
Programs);
    (3) Assurances of compliance with all applicable Federal laws, 
regulations, and policies (Standard Form 424d--Construction Programs); 
and
    (4) Additional forms, as may be required.
    (b) Once an application is selected, funding will be obligated to 
the grant recipient through a grant.
    (c) The initial grant period will be two years, and acquisition of 
lands should occur within that timeframe. The grant may be reasonably 
extended by the Forest Service when necessary to accommodate unforeseen 
circumstances in the land acquisition process.
    (d) The grant paperwork must adhere to grant requirements listed 
below:
    (1) Local and Indian tribal governments should refer to 2 CFR Part 
225 Cost Principles for State, Local, and Indian Tribal Governments (OMB 
Circular A-87) and 7 CFR Part 3016 (Uniform Administrative Requirements 
for Grants and Cooperative Agreements to State and Local Governments) 
for directions.
    (2) Nonprofit organizations should refer to 2 CFR Part 215 Uniform 
Administrative Requirements for Grants and Other Agreements with 
Institutions of Higher Education, Hospitals and Other Nonprofit 
Organizations (OMB Circular A-110) and 7 CFR Part 3019 Uniform 
Administrative Requirements for Grants and Cooperative Agreements with 
Institutions of Higher Education, Hospitals, and other Nonprofit 
Organizations for directions.
    (e) Forest Service must approve any amendment to a proposal or 
request to reallocate funding within a grant proposal. If negotiations 
on a selected project fail, the applicant cannot substitute an 
alternative site.
    (f) The grant recipient must comply with the requirements in Sec. 
230.8 before funds will be released.
    (g) After the project has closed, as a requirement of the grant, 
grant recipients will be required to provide the Forest Service with a 
Geographic Information System (GIS) shapefile: a digital, vector-based 
storage format for storing geometric location and associated attribute 
information, of CFP project tracts and cost share tracts, if applicable.
    (h) Any funds not expended within the grant period must be de-
obligated and revert to the Forest Service for redistribution.
    (i) All media, press, signage, and other documents discussing the 
creation of the community forest must reference the partnership and 
financial assistance by the Forest Service through the CFP.



Sec. 230.8  Acquisition requirements.

    (a) Grant recipients participating in the CFP must complete the 
following,

[[Page 232]]

which applies to all tracts, including cost share tracts:
    (1) Complete an appraisal:
    (i) For lands purchased with CFP funds, the appraisal must comply 
with Federal Appraisal Standards prior to the release of the grant 
funds. The grant recipient must provide documentation that the appraisal 
and associated appraisal review were conducted in a manner consistent 
with the Federal appraisal standards.
    (ii) For donated cost share tracts, the market value must be 
determined by an independent appraiser. The value needs to be documented 
by a responsible official of the party to which the property is donated.
    (2) Prior to closing, notify the landowner in writing of the 
appraised value of the property and that the sale is voluntary. If the 
grant recipient has a voluntary option for less than appraised value, 
they do not have to renegotiate the agreement.
    (3) Purchase all surface and subsurface mineral rights, whenever 
possible. However, if severed mineral rights cannot be obtained, then 
the grant recipient must follow the retention of qualified mineral 
interest requirements outlined in the Internal Revenue Service 
regulations (26 CFR 1.170A-14 (g)(4)), which address both surface and 
subsurface minerals.
    (4) Ensure that title to lands acquired conforms to title standards 
applicable to State land acquisitions where the land is located:
    (i) Title to lands acquired using CFP funds must not be subject to 
encumbrances or agreements of any kind that would be contrary to the 
purpose of the CFP.
    (ii) Title insurance must not be a substitute for acceptable title.
    (5) Record with the deed in the lands record of the local county or 
municipality, a Notice of Grant Requirement, which includes the 
following:
    (i) States that the property (including cost share tracts) was 
purchased with CFP funds;
    (ii) Provides a legal description;
    (iii) Identifies the name and address of the grant recipient who is 
the authorized title holder;
    (iv) States the purpose of the CFP;
    (v) References the Grant Agreement with the Forest Service (title 
and agreement number) and the address where it is kept on file;
    (vi) States that the grant recipient confirms its obligation to 
manage the interest in real property pursuant to the grant, the 
Community Forest Plan, and the purpose of the CFP;
    (vii) States that the grant recipient will not convey or encumber 
the interest in real property, in whole or in part, to another party; 
and
    (viii) States that the grant recipient will manage the interest in 
real property consistent with the purpose of the CFP.



Sec. 230.9  Ownership and use requirements.

    (a) Grant recipient shall complete the final community forest plan 
within 120 days of the land acquisition, and must update the plan 
periodically to guide the management and the community benefits of the 
community forest.
    (b) Grant recipient shall provide appropriate public access.
    (c) In the event that a grant recipient sells or converts to 
nonforest uses or a use inconsistent with the purpose of the CFP, a 
parcel of land acquired under the CFP, the grant recipient shall:
    (1) Pay the United States an amount equal to the current sale price 
or the current appraised value of the parcel, whichever is greater; and
    (2) Not be eligible for additional grants under the CFP.
    (d) For Indian tribes, land acquired using a grant provided under 
the CFP must not be sold, converted to nonforest uses or a use 
inconsistent with the purpose of the CFP, or converted to land held in 
trust by the United States on behalf of any Indian tribe.
    (e) Every five years, the grant recipients will submit to the Forest 
Service a self-certifying statement that the property has not been sold 
or converted to nonforest uses or a use inconsistent with the purpose of 
the CFP.
    (f) Grant recipients will be subject to a spot check conducted by 
the Forest Service to verify that property acquired under the CFP has 
not been sold or converted to nonforest uses or a use

[[Page 233]]

inconsistent with the purpose of the CFP.



Sec. 230.10  Technical assistance funds.

    CFP technical assistance funds may be provided to State Foresters or 
equivalent officials of Indian tribes through an administrative grant to 
help implement community forest projects funded through the CFP, and as 
a result, funds will only be provided to States or Indian tribes with a 
CFP project funded within their jurisdiction. Section 7A (f) of the 
authorizing statute limits the funds made available for program 
administration and technical assistance to no more than 10% of all funds 
made available to carry out the program for each fiscal year.



        Subpart B_Urban and Community Forestry Assistance Program

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



Sec. 230.20  Scope and authority.

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



Sec. 230.21  Implementation of the program.

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



                Subpart C_Forest Land Enhancement Program

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



Sec. 230.30  Purpose and scope.

    (a) The regulations in this subpart govern the operation of the 
Forest Land Enhancement Program (hereafter, FLEP) as provided in Section 
4 of the Cooperative Forestry Assistance Act (16 U.S.C. 2101 et seq.), 
as amended by title VIII of the Farm Security and Rural Investment Act 
of 2002 (Pub. L.

[[Page 234]]

107-171). The purpose of FLEP is to provide a coordinated and 
cooperative Federal, State, and local sustainable forestry program for 
the establishment, management, maintenance, enhancement, and restoration 
of forests on nonindustrial private forest land.
    (b) The educational assistance, resource management expertise, and 
financial assistance provided under FLEP shall complement any existing 
Federal or State programs or programs offered through institutions of 
higher learning providing assistance to nonindustrial private forest 
landowners. FLEP promotes improved coordination and cooperation among 
Federal, State, and local programs regarding the establishment, 
maintenance, enhancement, and restoration of nonindustrial private 
forestlands.
    (c) Participation in FLEP is voluntary on the part of both the State 
and the nonindustrial forest landowner. To participate, each State must 
have nonindustrial private forest lands, a State Forester or equivalent, 
and a State Forest Stewardship Coordinating Committee.



Sec. 230.31  Definitions.

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

[[Page 235]]

    Service representative. Any person who is recognized by a State 
Forester as having the knowledge and skills to develop management plans, 
understanding of the economic and environmental interrelationships of 
forestry and/or agroforestry resources, and the ability to identify 
appropriate activities to manage, protect, or enhance such resources. 
The State Forester designates service representatives as the line 
officers to perform specified FLEP elements.
    State. Includes each of the States in the United States, and the 
Commonwealth of Puerto Rico, the Virgin Islands of the United States, 
Guam, American Samoa, and the Commonwealth of the Northern Mariana 
Islands.
    State Forester. The director or other head of a State forestry 
agency or equivalent State official.
    State priority plan. The document required from a State to 
participate in FLEP. A State Forester jointly prepares this plan with 
the State Forest Stewardship Coordinating Committee to facilitate long-
term sustainability of nonindustrial private forest lands within the 
State.



Sec. 230.32  National program administration.

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

[[Page 236]]

through distribution of available FLEP funds to State Foresters and 
through monitoring, review, and evaluation of FLEP activities and 
accomplishments.
    (k) FLEP funds may not be used by States for capital investments or 
capital improvements unless specifically authorized in a funding 
document and must be limited to $5,000. The limitation on capital 
improvements excludes practices and activities cost-shared with 
landowners through FLEP.
    (l) Funds may not be authorized in the financial assistance document 
or used for the purchase of land, any interest in land, or any interest 
in an endowment.
    (m) By September 30, 2006, the Chief must submit a cumulative report 
to the Secretary of Agriculture summarizing all the activities and 
practices funded under FLEP as of that date.



Sec. 230.33  Responsible Official program administration.

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



Sec. 230.34  State program administration.

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



Sec. 230.35  FLEP elements.

    (a) States may use FLEP funds to assist landowners in managing their 
nonindustrial private forest lands and related resources through the 
following elements:
    (1) Development and implementation of educational programs;

[[Page 237]]

    (2) Resource management expertise and technical assistance; and
    (3) Financial assistance through cost-share programs.
    (b) All participating States may use a portion of allocated funds 
for FLEP administration costs.
    (c) States do not have to participate in all FLEP elements.



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

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



Sec. 230.37  State priority plan--educational assistance.

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



Sec. 230.38  State priority plan--technical assistance.

    (a) Technical assistance includes, but is not limited to:
    (1) Agreements with other agencies, institutions of higher 
education, natural resource consultants, or private organizations to 
augment or complement existing services of a State Forestry agency;
    (2) Grants, agreements, contracts or other arrangements to provide 
services to landowners not offered by a State;
    (3) Support of existing technical assistance delivery by State 
forestry agencies or development of such technical assistance;

[[Page 238]]

    (4) The development or application of new tools or technology for 
servicing landowners; or
    (5) Similar undertakings.
    (b) If a State determines that all or some of its funds will be used 
for technical assistance, the State priority plan shall describe:
    (1) Who will provide the assistance;
    (2) Outreach efforts directed at specific groups or categories of 
landowners;
    (3) Expected long- and short-term outcomes; and
    (4) Method(s) for documenting accomplishments.



Sec. 230.39  State priority plan--financial assistance.

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



Sec. 230.40  Eligible practices for cost-share assistance.

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

[[Page 239]]

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



Sec. 230.41  Eligibility requirements for cost-share assistance.

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

[[Page 240]]

in its priority plan. Existing landowner management plans such as Tree 
Farm management plans, Forest Stewardship management plans, or similar 
plans may either meet, or can be amended to meet this requirement.
    (d) A leaseholder who has a long-term lease on the land to be 
treated through FLEP must provide a copy of the lease to the State 
Forester in order to be eligible to receive cost-share assistance.



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

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

[[Page 241]]

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



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

    (a) Cost-share payments for the following are prohibited:
    (1) Costs incurred before an application for cost-share is approved 
in writing, except:
    (i) As pre-approved by the State Forester, or
    (ii) The materials and items that may be purchased before approval 
of the practice as described in the State priority plan;
    (2) Repeated practices on the same site within the required 
maintenance period which have been implemented under any other Federal, 
State, or local government programs, or private sector programs, except 
where such practices are repeated due to a failure

[[Page 242]]

of a prior practice without fault of the landowner or recurring 
practices as noted in this subpart;
    (3) Capital investments or capital improvements not related to FLEP 
practices, purchase of land or any interest in land, or any interest in 
an endowment as provided in section 230.32(k) and (l);
    (4) Practices associated with the development of or improvement to 
landowner nursery operations;
    (5) Practices associated with the development of or improvement to 
nut and fruit orchards or Christmas tree plantings or maintenance; or
    (6) Any practice that is not related to the long-term sustainability 
of nonindustrial private forest lands or agroforestry activities.



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

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



Sec. 230.45  Recapture of cost-share assistance.

    (a) Payments made to landowners may be recaptured under one or more 
of the following circumstances:
    (1) If any landowner, successor, or assignee uses any scheme or 
device to unjustly benefit from FLEP. A scheme or device includes, but 
is not limited to, coercion, fraud or misrepresentation, false claims, 
or any business dissolution, reorganization, revival, or other legal 
mechanism designed for or having the effect of evading the requirements 
of FLEP. Financial assistance payments shall be withheld or a refund of 
all or part of any FLEP payments otherwise due or paid to that person 
shall be secured.
    (2) If any landowner or successor takes any action or fails to take 
action, which results in the destruction or impairment of a prescribed 
practice for the duration of the practice. Cost-share payments shall be 
withheld or a recapture of all or part of any FLEP payments otherwise 
due or paid shall be secured, based on the extent and effect of 
destruction and impairment.
    (3) If a landowner sells, conveys, or otherwise loses control of the 
land, except when determined by a State Forester to have been beyond the 
landowner's control, upon which there is a continuing obligation to 
maintain a practice, and the new landowner does not agree to assume the 
responsibility for maintaining the practice. In such cases the landowner 
who was originally obligated to maintain the practice shall be liable to 
reimburse the State(s) for all cost-share on such practices.
    (b) Nothing in this section requiring the withholding or refunding 
of financial assistance payments shall preclude any penalty or liability 
otherwise imposed by law.
    (c) Any landowner, successor, or assignee who is dissatisfied with 
any determination made under FLEP may request reconsideration by the 
State Forester and, if the matter is not resolved, by the Responsible 
Official. All requests for reconsideration shall be in writing and shall 
contain factual information explaining the basis for the request. All 
decisions on reconsideration must be issued in writing.



Sec. 230.46  Information collection requirements.

    The requirements governing the preparation of a State priority plan, 
management plan, and practice plan, the reporting requirements, and the 
application requirements of this subpart

[[Page 243]]

constitute information requirements as defined by the Paperwork 
Reduction Act of 1995 and have been assigned Office of Management and 
Budget (OMB) control number 0596-0168.



PART 241_FISH AND WILDLIFE--Table of Contents



                      Subpart A_General Provisions

Sec.
241.1 Cooperation in wildlife protection.
241.2 Cooperation in wildlife management.
241.3 Federal refuge regulations.

  Subpart B_Conservation of Fish, Wildlife, and Their Habitat, Chugach 
                         National Forest, Alaska

241.20 Scope and applicability.
241.21 Definitions.
241.22 Consistency determinations.
241.23 Taking of fish and wildlife.

    Authority: 16 U.S.C. 472, 539, 551, 683.



                      Subpart A_General Provisions

    Source: 6 FR 1987, Apr. 17, 1941, unless otherwise noted.



Sec. 241.1  Cooperation in wildlife protection.

    (a) Officials of the Forest Service will cooperate with State, 
county, and Federal officials in the enforcement of all laws and 
regulations for the protection of wildlife.
    (b) Officials of the Forest Service who have been, or hereafter may 
be, lawfully appointed deputy game wardens under the laws of any State, 
will serve in such capacity with full power to enforce the State laws 
and regulations relating to fur-bearing and game animals, birds, and 
fish. Such officials will serve as State deputy game wardens without 
additional pay, except that they may accept the usual fees allowed by 
the respective States for issuing hunting and fishing licenses. All 
officials of the Forest Service are prohibited from accepting bounties, 
rewards, or parts of fines offered by any person, corporation or State 
for aid rendered in the enforcement of any Federal or State law relating 
to fur-bearing and game animals, birds, and fish.



Sec. 241.2  Cooperation in wildlife management.

    The Chief of the Forest Service, through the Regional Foresters and 
Forest Supervisors, shall determine the extent to which national forests 
or portions thereof may be devoted to wildlife protection in combination 
with other uses and services of the national forests, and, in 
cooperation with the Fish and Game Department or other constituted 
authority of the State concerned, he will formulate plans for securing 
and maintaining desirable populations of wildlife species, and he may 
enter into such general or specific cooperative agreements with 
appropriate State officials as are necessary and desirable for such 
purposes. Officials of the Forest Service will cooperate with State game 
officials in the planned and orderly removal in accordance with the 
requirements of State laws of the crop of game, fish, fur-bearers, and 
other wildlife on national forest lands.



Sec. 241.3  Federal refuge regulations.

    Until a cooperative agreement has been entered into between the 
Chief of the Forest Service and appropriate State officials for the 
regulation of game as provided in Sec. 241.2 and the necessary 
implementing laws or regulations have been promulgated and taken effect 
in order to carry out such cooperative agreement the following 
paragraphs shall be effective:
    (a) Any person desiring to hunt or take game or non-game animals, 
game or non-game birds, or fish, upon any National Forest lands or 
waters embraced within the boundaries of a military reservation or a 
national game or bird refuge, preserve, sanctuary, or reservation 
established by or under authority of an act of Congress, shall procure 
in advance a permit from the Forest Supervisor. The permit shall be 
issued for a specified season, shall fix the bag or creel limits, and 
shall prescribe such other conditions as the Regional Forester may 
consider necessary for carrying out the purposes for which such lands 
have been set aside or reserved.
    (b) Officials of the Forest Service will cooperate with persons, 
firms, corporations, and State and county officials in

[[Page 244]]

the protection, management, and utilization of game and non-game 
animals, game and non-game birds, and fish, upon national forest lands 
of the character referred to in paragraph (a) of this section. The Chief 
of the Forest Service may authorize the acceptance of contributions from 
cooperators for the payment of expenses incurred in carrying out the 
provisions of this section.
    (c) When necessary for the protection of the forest or the 
conservation of animal life on refuges under paragraphs (a) and (b) of 
this section, the Chief of the Forest Service may sell, barter, 
exchange, or donate game and non-game animals. When the interests of 
game conservation will be promoted thereby, the Chief of the Forest 
Service may accept donations of game and non-game animals, game and non-
game birds, and fish, or the eggs of birds and fish.



  Subpart B_Conservation of Fish, Wildlife, and Their Habitat, Chugach 
                         National Forest, Alaska

    Source: 56 FR 63463, Dec. 4, 1991, unless otherwise noted.



Sec. 241.20  Scope and applicability.

    (a) The regulations in this subpart apply to management of the 
Copper River-Rude River addition and Copper River-Bering River portion 
of the Chugach National Forest, for the conservation of fish, wildlife 
and their habitat as required by the Alaska National Interest Lands 
Conservation Act (16 U.S.C. 539). These regulations supplement the 
general regulations governing use and occupancy of National Forest 
System lands nationwide in 36 CFR part 251--Land Uses.
    (b) The rules of this subpart are applicable only on Federally-owned 
lands within the boundaries of the Copper River-Rude River addition and 
the Copper River-Bering River portion of the Chugach National Forest, 
Alaska, known as the Copper River Management Area and as described and 
displayed in the Chugach National Forest Land and Resource Management 
Plan, July 1984.
    (c) Nothing in these regulations is intended to enlarge or diminish 
the responsibility and authority of the State of Alaska for management 
of fish and wildlife.
    (d) The primary purpose for the management of the Copper River-Rude 
River addition and the Copper River-Bering River portion of the Chugach 
National Forest, Alaska, is the conservation of fish and wildlife and 
their habitat. Consistent with the regulations at part 219 of this 
chapter, direction for managing the fish and wildlife resources of these 
units shall be documented in the land management plan for the Chugach 
National Forest.



Sec. 241.21  Definitions.

    For the purpose of this subpart, the terms listed in this section 
shall be defined as follows:
    ANILCA refers to the Alaska National Interest Lands Conservation Act 
(16 U.S.C. 3101 et seq.)
    Federal lands mean lands the title to which is in the United States, 
but does not include those lands: (1) Tentatively approved, 
legislatively conveyed, or patented to the State of Alaska, or (2) 
interim-conveyed or patented to a Native corporation or person.
    Fish and Wildlife means any member of the animal kingdom, including 
without limitation any mammal, fish, bird, amphibian, reptile, mollusk, 
crustacean, arthropod, or other invertebrate, and includes any part, 
product, egg, or offspring thereof, or dead body or part thereof. For 
the purposes of this subpart, birds also include any migratory or 
endangered bird for which protection is afforded by treaty or other 
international agreement.
    Land means lands, waters, and interests therein.
    Multiple-use activity is a specific management or permitted 
activity, use, measure, course of action, or treatment of National 
Forest System lands carried out under the statutory charter of the 
Multiple-Use Sustained-Yield Act of 1960 (16 U.S.C. 528 et seq.) and the 
National Forest Management Act (16 U.S.C. 1600 et seq.).
    Responsible Forest Officer is the Forest Service employee who has 
the authority to select, authorize, permit and/or

[[Page 245]]

carry out a specific multiple-use activity.



Sec. 241.22  Consistency determinations.

    (a) Subject to valid existing rights, a multiple-use activity may be 
permitted or authorized within the areas of the Chugach National Forest 
subject to this subpart only after a determination by the responsible 
Forest Officer that such activity is consistent with the conservation of 
fish, wildlife, and their habitat. A use or activity may be determined 
to be consistent if it will not materially interfere with or detract 
from the conservation of fish, wildlife and their habitat.
    (b) Where an evaluation is made pursuant to section 102(2)(C) of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321) for a 
proposed multiple-use activity, and the responsible Forest Officer 
prepares an environmental impact statement (EIS) or environmental 
assessment (EA) or categorically excludes an activity from documentation 
in an EA or EIS, the consistency determination required by this section 
for the use or activity shall be included as a part of the decision 
document.
    (c) Guidelines that are consistent with this section may be 
developed for specific multiple-use activities as a part of the planning 
and implementation process required by the National Forest Management 
Act and the implementing regulations at 36 CFR part 219, National Forest 
System Land and Resource Management Planning.
    (d) Subject to valid existing rights, the responsible Forest Officer 
may incorporate into any permit or other authorization issued pursuant 
to 36 CFR part 251 or other regulations of this chapter any reasonably 
practicable measures that are determined to be necessary to maintain 
consistency with the conservation of fish, wildlife, and their habitat 
as provided by this subpart.
    (e) Subject to valid existing rights, the responsible Forest Officer 
may revoke, suspend, restrict, or require modification of any activity 
if it is determined that such measures are required to conserve 
wildlife, fish, or their habitat within areas of the Chugach National 
Forest subject to this subpart. Prior to taking action to revoke, 
suspend, restrict, or require modification of an activity under this 
section, the responsible Forest Officer shall give affected parties 
reasonable prior notice and an opportunity to comment, unless it is 
determined that doing so would likely result in irreparable harm to 
conservation of fish, wildlife, and their habitat.
    (f) Decisions made pursuant to this section are subject to appeal 
only as provided in 36 CFR part 214.
    (g) Nothing in this section affects subsistence activities carried 
out in accordance with Sec. 241.23 of this subpart or other applicable 
law.

[56 FR 63463, Dec. 4, 1991, as amended at 78 FR 33724, June 5, 2013]



Sec. 241.23  Taking of fish and wildlife.

    (a) The taking of fish and wildlife by hunting, trapping, or fishing 
from lands subject to the rules of this subpart is authorized in 
accordance with applicable State and Federal law.
    (b) To the extent consistent with the conservation of fish and 
wildlife and their habitat in accordance with recognized scientific 
management principles, local rural residents who depend upon the Chugach 
National Forest for subsistence needs shall continue to have the 
opportunity to engage in a subsistence way of life on the lands to which 
this subpart applies pursuant to applicable State and Federal law.
    (c) To the extent consistent with the conservation of fish and 
wildlife and their habitat, the continuation of existing uses and the 
future establishment and use of temporary campsites, tent, platforms, 
shelters, and other temporary facilities and equipment directly and 
necessarily related to the taking of fish and wildlife may be authorized 
in accordance with applicable law and regulations. However, the Forest 
Supervisor may restrict or prohibit facilities or uses in the Copper 
River-Rude River addition or Copper River-Bering River area if it is 
determined, after adequate notice to the affected parties, that the 
continuation of such facilities or uses would materially interfere with 
or adversely affect the conservation of fish and wildlife and their 
habitat.

[[Page 246]]



PART 242_SUBSISTENCE MANAGEMENT REGULATIONS FOR PUBLIC LANDS IN 
ALASKA--Table of Contents



                      Subpart A_General Provisions

Sec.
242.1 Purpose.
242.2 Authority.
242.3 Applicability and scope.
242.4 Definitions.
242.5 Eligibility for subsistence use.
242.6 Licenses, permits, harvest tickets, tags, and reports.
242.7 Restriction on use.
242.8 Penalties.
242.9 Information collection requirements.

                       Subpart B_Program Structure

242.10 Federal Subsistence Board.
242.11 Regional advisory councils.
242.12 Local advisory committees.
242.13 Board/agency relationships.
242.14 Relationship to State procedures and regulations.
242.15 Rural determination process.
242.16 Customary and traditional use determination process.
242.17 Determining priorities for subsistence uses among rural Alaska 
          residents.
242.18 Regulation adoption process.
242.19 Special actions.
242.20 Request for reconsideration.
242.21 [Reserved]

                     Subpart C_Board Determinations

242.22 Subsistence resource regions.
242.23 Rural determinations.
242.24 Customary and traditional use determinations.

            Subpart D_Subsistence Taking of Fish and Wildlife

242.25 Subsistence taking of fish, wildlife, and shellfish: general 
          regulations.
242.26 Subsistence taking of wildlife.
242.27 Subsistence taking of fish.
242.28 Subsistence taking of shellfish.

    Authority: 16 U.S.C. 3, 472, 551, 668dd, 3101-3126; 18 U.S.C. 3551-
3586; 43 U.S.C. 1733.



                      Subpart A_General Provisions

    Source: 67 FR 30563, May 7, 2002, unless otherwise noted.



Sec. 242.1  Purpose.

    The regulations in this part implement the Federal Subsistence 
Management Program on public lands within the State of Alaska.



Sec. 242.2  Authority.

    The Secretary of the Interior and Secretary of Agriculture issue the 
regulations in this part pursuant to authority vested in Title VIII of 
the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. 
3101-3126.



Sec. 242.3  Applicability and scope.

    (a) The regulations in this part implement the provisions of Title 
VIII or ANILCA relevant to the taking of fish and wildlife on public 
land in the State of Alaska. The regulations in this part do not permit 
subsistence uses in Glacier Bay National Park, Kenai Fjords National 
Park, Katmai National Park, and that portion of Denali National Park 
established as Mt. McKinley National Park prior to passage of ANILCA, 
where subsistence taking and uses are prohibited. The regulations in 
this part do not supersede agency-specific regulations.
    (b) The regulations contained in this part apply on all public 
lands, including all inland waters, both navigable and non-navigable, 
within and adjacent to the exterior boundaries of the following areas, 
and on the marine waters as identified in the following areas:
    (1) Alaska Maritime National Wildlife Refuge, including the:
    (i) Karluk Subunit: All of the submerged land and water of the 
Pacific Ocean (Sheliokof Strait) extending 3,000 feet from the shoreline 
between a point on the spit at the meander corner common to Sections 35 
and 36 of Township 30 South, Range 33 West, and a point approximately 
1\1/4\ miles east of Rocky Point within Section 14 of Township 29 South, 
Range 31, West, Seward Meridian as described in Public Land Order 128, 
dated June 19, 1943;
    (ii) Womens Bay Subunit: Womens Bay, Gibson Cove, portions of St. 
Paul Harbor and Chiniak Bay: All of the submerged land and water as 
described in Public Land Order 1182, dated July 7, 1955 (U.S. Survey 
21539);
    (iii) Afognak Island Subunit: A submerged lands and waters of the 
Pacific Ocean lying within 3 miles of the shoreline as described in 
Proclamation No. 39, dated December 24, 1892;
    (iv) Simeonof Subunit: All of the submerged land and water of 
Simeonof Island together with the adjacent waters

[[Page 247]]

of the Pacific Ocean extending 1 mile from the shoreline as described in 
Public Land Order 1749, dated October 30, 1958; and
    (v) Semidi Subunit: All of the submerged land and water of the 
Semidi Islands together with the adjacent waters of the Pacific Ocean 
lying between parallels 55[deg]57[min]57[sec]00-56[deg]15[min]57[sec]00 
North Latitude and 156[deg]30[min]00[sec]-157[deg]00[min]00[sec] West 
Longitude as described in Executive Order 5858, dated June 17, 1932;
    (2) Arctic National Wildlife Refuge, including those waters 
shoreward of the line of extreme low water starting in the vicinity of 
Monument 1 at the intersection of the International Boundary line 
between the State of Alaska and the Yukon Territory; Canada, and 
extending westerly, along the line of extreme low water across the 
entrances of lagoons such that all offshore bars, reefs and islands, and 
lagoons that separate them from the mainland to Brownlow Point, 
approximately 70 10[min] North Latitude and 145 51[min] West Longitude;
    (3) National Petroleum Reserve in Alaska, including those waters 
shoreward of a line beginning at the western bank of the Colville River 
following the highest highwater mark westerly, extending across the 
entrances of small lagoons, including Pearl Bay, Wainwright Inlet, the 
Kuk River, Kugrau Bay and River, and other small bays and river 
estuaries, and following the ocean side of barrier islands and sandspits 
within three miles of shore and the ocean side of the Plover Islands, to 
the northwestern extremity of Icy cape, at approximately 70[deg]21[min] 
North Latitute and 161 46[min] West Longitude; and
    (4) Yukon Delta National Wildlife Refuge, including Nunivak Island: 
the submerged land and water of Nunivak Island together with the 
adjacent waters of the Bering Sea extending, for Federal Subsistence 
Management purposes, 3 miles from the shoreline of Nunivak Island as 
described in Executive Order No. 5059, dated April 15, 1929.
    (5) Southeastern Alaska--Makhnati Island Area: Land and waters 
beginning at the southern point of Fruit Island, 57[deg]02[min]35[sec] 
north latitude, 135[deg]21[min]07[sec] west longitude as shown on United 
States Coast and Geodetic Survey Chart No. 8244, May 21, 1941; from the 
point of beginning, by metes and bounds; S. 58[deg] W., 2,500 feet, to 
the southern point of Nepovorotni Rocks; S. 83[deg] W., 5,600 feet, on a 
line passing through the southern point of a small island lying about 
150 feet south of Makhnati Island; N. 6[deg] W., 4,200 feet, on a line 
passing through the western point of a small island lying about 150 feet 
west of Makhnati Island, to the northwestern point of Signal Island; N. 
24[deg] E., 3,000 feet, to a point, 57[deg]03[min]15[sec] north 
latitude, 134[deg]23[min]07[sec] west longitude; East, 2,900 feet, to a 
point in course No. 45 in meanders of U.S. Survey No. 1496, on west side 
of Japonski Island; southeasterly, with the meanders of Japonski Island, 
U.S. Survey No. 1,496 to angle point No. 35, on the southwestern point 
of Japonski Island; S. 60[deg] E., 3,300 feet, along the boundary line 
of Naval reservation described in Executive Order No. 8216, July 25, 
1939, to the point beginning, and that part of Sitka Bay lying south of 
Japonski Island and west of the main channel, but not including Aleutski 
Island as revoked in Public Land Order 925, October 27, 1953, described 
by metes and bounds as follows: Beginning at the southeast point of 
Japonski Island at angle point No. 7 of the meanders of U.S. Survey No. 
1496; thence east approximately 12.00 chains to the center of the main 
channel; thence S. 45[deg] E. along the main channel approximately 20.00 
chains; thence S. 45[deg] W. approximately 9.00 chains to the 
southeastern point of Aleutski Island; thence S. 79[deg] W. 
approximately 40.00 chains to the southern point of Fruit Island; thence 
N. 60[deg] W. approximately 50.00 chains to the southwestern point of 
Japonski Island at angle point No. 35 of U.S. Survey No 1496; thence 
easterly with the meanders of Japonski Island to the point of beginning 
including Charcoal, Harbor, Alice, Love, Fruit islands and a number of 
smaller unnamed islands.
    (c) The regulations contained in this part apply on all public 
lands, excluding marine waters, but including all inland waters, both 
navigable and non-navigable, within and adjacent to the exterior 
boundaries of the following areas:
    (1) Alaska Peninsula National Wildlife Refuge;

[[Page 248]]

    (2) Aniakchak National Monument and Preserve;
    (3) Becharof National Wildlife Refuge;
    (4) Bering Land Bridge National Preserve;
    (5) Cape Krusenstern National Monument;
    (6) Chugach National Forest;
    (7) Denali National Preserve and the 1980 additions to Denali 
National Park;
    (8) Gates of the Arctic National Park and Preserve;
    (9) Glacier Bay National Preserve;
    (10) Innoko National Wildlife Refuge;
    (11) Izembek National Wildlife Refuge;
    (12) Kanuti National Wildlife Refuge;
    (13) Katmai National Preserve;
    (14) Kenai National Wildlife Refuge;
    (15) Kobuk Valley National Park;
    (16) Kodiak National Wildlife Refuge;
    (17) Koyukuk National Wildlife Refuge;
    (18) Lake Clark National Park and Preserve;
    (19) Noatak National Preserve;
    (20) Nowitna National Wildlife Refuge;
    (21) Selawik National Wildlife Refuge;
    (22) Steese National Conservation Area;
    (23) Tetlin National Wildlife Refuge;
    (24) Togiak National Wildlife Refuge;
    (25) Tongass National Forest, including Admiralty Island National 
Monument and Misty Fjords National Monument;
    (26) White Mountain National Recreation Area;
    (27) Wrangell-St. Elias National Park and Preserve;
    (28) Yukon-Charley Rivers National Preserve;
    (29) Yukon Flats National Wildlife Refuge;
    (30) All components of the Wild and Scenic River System located 
outside the boundaries of National Parks, National Preserves, or 
National Wildlife Refuges, including segments of the Alagnak River, 
Beaver Creek, Birch Creek, Delta River, Fortymile River, Gulkana River, 
and Unalakleet River.
    (d) The regulations contained in this part apply on all other public 
lands, other than to the military, U.S. Coast Guard, and Federal 
Aviation Administration lands that are closed to access by the general 
public, including all non-navigable waters located on these lands.
    (e) The public lands described in paragraphs (b) and (c) of this 
section remain subject to change through rulemaking pending a Department 
of the Interior review of title and jurisdictional issues regarding 
certain submerged lands beneath navigable waters in Alaska.

[70 FR 76407, Dec. 27, 2005, as amended at 71 FR 49999, Aug. 24, 2006; 
74 FR 34696, July 17, 2009]



Sec. 242.4  Definitions.

    The following definitions apply to all regulations contained in this 
part:
    Agency means a subunit of a cabinet-level Department of the Federal 
Government having land management authority over the public lands 
including, but not limited to, the U.S. Fish & Wildlife Service, Bureau 
of Indian Affairs, Bureau of Land Management, National Park Service, and 
USDA Forest Service.
    ANILCA means the Alaska National Interest Lands Conservation Act, 
Public Law 96-487, 94 Stat. 2371, (codified, as amended, in scattered 
sections of 16 U.S.C. and 43 U.S.C.)
    Area, District, Subdistrict, and Section mean one of the 
geographical areas defined in the codified Alaska Department of Fish and 
Game regulations found in Title 5 of the Alaska Administrative Code.
    Barter means the exchange of fish or wildlife or their parts taken 
for subsistence uses; for other fish, wildlife or their parts; or, for 
other food or for nonedible items other than money, if the exchange is 
of a limited and noncommercial nature.
    Board means the Federal Subsistence Board as described in Sec. 
242.10.
    Commissions means the Subsistence Resource Commissions established 
pursuant to section 808 of ANILCA.
    Conservation of healthy populations of fish and wildlife means the 
maintenance of fish and wildlife resources and their habitats in a 
condition that assures stable and continuing natural populations and 
species mix of plants and animals in relation to their ecosystem, 
including the recognition that local

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rural residents engaged in subsistence uses may be a natural part of 
that ecosystem; minimizes the likelihood of irreversible or long-term 
adverse effects upon such populations and species; ensures the maximum 
practicable diversity of options for the future; and recognizes that the 
policies and legal authorities of the managing agencies will determine 
the nature and degree of management programs affecting ecological 
relationships, population dynamics, and the manipulation of the 
components of the ecosystem.
    Customary trade means exchange for cash of fish and wildlife 
resources regulated in this part, not otherwise prohibited by Federal 
law or regulation, to support personal and family needs; and does not 
include trade which constitutes a significant commercial enterprise.
    Customary and traditional use means a long-established, consistent 
pattern of use, incorporating beliefs and customs which have been 
transmitted from generation to generation. This use plays an important 
role in the economy of the community.
    FACA means the Federal Advisory Committee Act, Public Law 92-463, 86 
Stat. 770 (codified as amended, at 5 U.S.C. Appendix II, 1-15).
    Family means all persons related by blood, marriage, or adoption or 
any other person living within the household on a permanent basis.
    Federal Advisory Committees or Federal Advisory Committee means the 
Federal Local Advisory Committees as described in Sec. 242.12.
    Federal lands means lands and waters and interests therein the title 
to which is in the United States, including navigable and non-navigable 
waters in which the United States has reserved water rights.
    Fish and wildlife means any member of the animal kingdom, including 
without limitation any mammal, fish, bird (including any migratory, 
nonmigratory, or endangered bird for which protection is also afforded 
by treaty or other international agreement), amphibian, reptile, 
mollusk, crustacean, arthropod, or other invertebrate, and includes any 
part, product, egg, or offspring thereof, or the carcass or part 
thereof.
    Game Management Unit or GMU means one of the 26 geographical areas 
listed under game management units in the codified State of Alaska 
hunting and trapping regulations and the Game Unit Maps of Alaska.
    Inland Waters means, for the purposes of this part, those waters 
located landward of the mean high tide line or the waters located 
upstream of the straight line drawn from headland to headland across the 
mouths of rivers or other waters as they flow into the sea. Inland 
waters include, but are not limited to, lakes, reservoirs, ponds, 
streams, and rivers.
    Marine Waters means, for the purposes of this part, those waters 
located seaward of the mean high tide line or the waters located seaward 
of the straight line drawn from headland to headland across the mouths 
of rivers or other waters as they flow into the sea.
    Person means an individual and does not include a corporation, 
company, partnership, firm, association, organization, business, trust, 
or society.
    Public lands or public land means:
    (1) Lands situated in Alaska which are Federal lands, except--
    (i) Land selections of the State of Alaska which have been 
tentatively approved or validly selected under the Alaska Statehood Act 
and lands which have been confirmed to, validly selected by, or granted 
to the Territory of Alaska or the State under any other provision of 
Federal law;
    (ii) Land selections of a Native Corporation made under the Alaska 
Native Claims Settlement Act, 43 U.S.C. 1601 et seq., which have not 
been conveyed to a Native Corporation, unless any such selection is 
determined to be invalid or is relinquished; and
    (iii) Lands referred to in section 19(b) of the Alaska Native Claims 
Settlement Act, 43 U.S.C. 1618(b).
    (2) Notwithstanding the exceptions in paragraphs (1)(i) through 
(iii) of this definition, until conveyed or interim conveyed, all 
Federal lands within the boundaries of any unit of the National Park 
System, National Wildlife Refuge System, National Wild and Scenic Rivers 
Systems, National Forest Monument, National Recreation Area, National 
Conservation Area, new National forest or forest addition shall be

[[Page 250]]

treated as public lands for the purposes of the regulations in this part 
pursuant to section 906(o)(2) of ANILCA.
    Regional Councils or Regional Council means the Regional Advisory 
Councils as described in Sec. 242.11.
    Reserved water right(s) means the Federal right to use 
unappropriated appurtenant water necessary to accomplish the purposes 
for which a Federal reservation was established. Reserved water rights 
include nonconsumptive and consumptive uses.
    Resident means any person who has his or her primary, permanent home 
for the previous 12 months within Alaska and whenever absent from this 
primary, permanent home, has the intention of returning to it. Factors 
demonstrating the location of a person's primary, permanent home may 
include, but are not limited to: the address listed on an Alaska 
Permanent Fund dividend application; an Alaska license to drive, hunt, 
fish, or engage in an activity regulated by a government entity; 
affidavit of person or persons who know the individual; voter 
registration; location of residences owned, rented, or leased; location 
of stored household goods; residence of spouse, minor children, or 
dependents; tax documents; or whether the person claims residence in 
another location for any purpose.
    Rural means any community or area of Alaska determined by the Board 
to qualify as such under the process described in Sec. 242.15.
    Secretary means the Secretary of the Interior, except that in 
reference to matters related to any unit of the National Forest System, 
such term means the Secretary of Agriculture.
    State means the State of Alaska.
    Subsistence uses means the customary and traditional uses by rural 
Alaska residents of wild, renewable resources for direct personal or 
family consumption as food, shelter, fuel, clothing, tools, or 
transportation; for the making and selling of handicraft articles out of 
nonedible byproducts of fish and wildlife resources taken for personal 
or family consumption; for barter, or sharing for personal or family 
consumption; and for customary trade.
    Take or taking as used with respect to fish or wildlife, means to 
pursue, hunt, shoot, trap, net, capture, collect, kill, harm, or attempt 
to engage in any such conduct.
    Year means calendar year unless another year is specified.

[67 FR 30563, May 7, 2002, as amended at 69 FR 60962, Oct. 14, 2004]



Sec. 242.5  Eligibility for subsistence use.

    (a) You may take fish and wildlife on public lands for subsistence 
uses only if you are an Alaska resident of a rural area or rural 
community. The regulations in this part may further limit your 
qualifications to harvest fish or wildlife resources for subsistence 
uses. If you are not an Alaska resident or are a resident of a non-rural 
area or community listed in Sec. 242.23, you may not take fish or 
wildlife on public lands for subsistence uses under the regulations in 
this part.
    (b) Where the Board has made a customary and traditional use 
determination regarding subsistence use of a specific fish stock or 
wildlife population, in accordance with, and as listed in, Sec. 242.24, 
only those Alaskans who are residents of rural areas or communities 
designated by the Board are eligible for subsistence taking of that 
population or stock on public lands for subsistence uses under the 
regulations in this part. If you do not live in one of those areas or 
communities, you may not take fish or wildlife from that population or 
stock, on public lands under the regulations in this part.
    (c) Where customary and traditional use determinations for a fish 
stock or wildlife population within a specific area have not yet been 
made by the Board (e.g., ``no determination''), all Alaskans who are 
residents of rural areas or communities may harvest for subsistence from 
that stock or population under the regulations in this part.
    (d) The National Park Service may regulate further the eligibility 
of those individuals qualified to engage in subsistence uses on National 
Park Service lands in accordance with specific authority in ANILCA, and 
National Park Service regulations at 36 CFR Part 13.

[[Page 251]]



Sec. 242.6  Licenses, permits, harvest tickets, tags, and reports.

    (a) If you wish to take fish and wildlife on public lands for 
subsistence uses, you must be an eligible rural Alaska resident and:
    (1) Possess the pertinent valid Alaska resident hunting and trapping 
licenses (no license required to take fish or shellfish, but you must be 
an Alaska resident) unless Federal licenses are required or unless 
otherwise provided for in subpart D of this part;
    (2) Possess and comply with the provisions of any pertinent Federal 
permits (Federal Subsistence Registration Permit or Federal Designated 
Harvester Permit) required by subpart D of this part; and
    (3) Possess and comply with the provisions of any pertinent permits, 
harvest tickets, or tags required by the State unless any of these 
documents or individual provisions in them are superseded by the 
requirements in subpart D of this part.
    (b) In order to receive a Federal Subsistence Registration Permit or 
Federal Designated Harvester Permit or designate someone to harvest fish 
or wildlife for you under a Federal Designated Harvester Permit, you 
must be old enough to reasonably harvest that species yourself (or under 
the guidance of an adult).
    (c) If you have been awarded a permit to take fish and wildlife, you 
must have that permit in your possession during the taking and must 
comply with all requirements of the permit and the regulations in this 
section pertaining to validation and reporting and to regulations in 
subpart D of this part pertaining to methods and means, possession and 
transportation, and utilization. Upon the request of a State or Federal 
law enforcement agent, you must also produce any licenses, permits, 
harvest tickets, tags, or other documents required by this section. If 
you are engaged in taking fish and wildlife under the regulations in 
this part, you must allow State or Federal law enforcement agents to 
inspect any apparatus designed to be used, or capable of being used to 
take fish or wildlife, or any fish or wildlife in your possession.
    (d) You must validate the harvest tickets, tags, permits, or other 
required documents before removing your kill from the harvest site. You 
must also comply with all reporting provisions as set forth in subpart D 
of this part.
    (e) If you take fish and wildlife under a community harvest system, 
you must report the harvest activity in accordance with regulations 
specified for that community in subpart D of this part, and as required 
by any applicable permit conditions. Individuals may be responsible for 
particular reporting requirements in the conditions permitting a 
specific community's harvest. Failure to comply with these conditions is 
a violation of the regulations in this part. Community harvests are 
reviewed annually under the regulations in subpart D of this part.
    (f) You may not make a fraudulent application for Federal or State 
licenses, permits, harvest tickets or tags or intentionally file an 
incorrect harvest report.

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



Sec. 242.7  Restriction on use.

    (a) You may not use fish or wildlife or their parts, taken pursuant 
to the regulations in this part, unless provided for in this part.
    (b) You may not exchange in customary trade or sell fish or wildlife 
or their parts, taken pursuant to the regulations in this part, unless 
provided for in th