[Title 36 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2007 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          36


          Parts 200 to 299

          Revised as of July 1, 2007


          Parks, Forests, and Public Property
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2007
          With Ancillaries
                    Published by:
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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[[Page iii]]




                            Table of Contents



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

  Title 36:
          Chapter II--Forest Service, Department of 
          Agriculture                                                3
  Finding Aids:
      Table of CFR Titles and Chapters........................     391
      Alphabetical List of Agencies Appearing in the CFR......     409
      List of CFR Sections Affected...........................     419

[[Page iv]]





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

                     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 
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LEGAL STATUS

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HOW TO USE THE CODE OF FEDERAL REGULATIONS

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collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
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[[Page vii]]

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                                    Director,
                          Office of the Federal Register.

July 1, 2007.

[[Page ix]]



                               THIS TITLE

    Title 36--Parks, Forests, and Public Property is composed of three 
volumes. The parts in these volumes are arranged in the following order: 
parts 1 to 199, parts 200 to 299, and part 300 to End. The contents of 
these volumes represent all current regulations codified under this 
title of the CFR as of July 1, 2007.

    For this volume, Elmer Barksdale was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Ann Worley.


[[Page 1]]



              TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY




                  (This book contains parts 200 to 299)

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

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


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

[[Page 3]]



          CHAPTER II--FOREST SERVICE, DEPARTMENT OF AGRICULTURE




  --------------------------------------------------------------------
Part                                                                Page
200             Organization, functions, and procedures.....           5
211             Administration..............................          13
212             Travel management...........................          14
213             Administration of lands under Title III of 
                    the Bankhead-Jones Farm Tenant Act by 
                    the Forest Service......................          27
215             Notice, comment, and appeal procedures for 
                    National Forest System projects and 
                    activities..............................          29
216             Involving the public in the formulation of 
                    Forest Service directives...............          40
218             Predecisional administrative review 
                    processes...............................          43
219             Planning....................................          48
221             Timber management planning..................          60
222             Range management............................          60
223             Sale and disposal of National Forest System 
                    timber..................................          78
228             Minerals....................................         137
230             State and private forestry assistance.......         171
241             Fish and wildlife...........................         188
242             Subsistence management regulations for 
                    public lands in Alaska..................         191
251             Land uses...................................         246
254             Landownership adjustments...................         297
261             Prohibitions................................         315
262             Law enforcement support activities..........         328
264             Property management.........................         332
271             Use of ``Smokey Bear'' symbol...............         333
272             Use of ``Woodsy Owl'' symbol................         334
290             Cave resources management...................         336
292             National recreation areas...................         338
293             Wilderness--primitive areas.................         365
294             Special areas...............................         370
296             Protection of archaeological resources: 
                    uniform regulations.....................         373
297             Wild and scenic rivers......................         386
298-299         [Reserved]

[[Page 5]]



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




                         Subpart A_Organization

Sec. 
200.1 Central organization
200.2 Field organization.

                   Subpart B_Functions and Procedures

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

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



                         Subpart A_Organization



Sec. 200.1  Central organization.

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

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


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

[[Page 6]]

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

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



Sec. 200.2  Field organization.

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

[[Page 7]]

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

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

[[Page 8]]

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

[[Page 9]]

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

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

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

                               Laboratory

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

                                Institute

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

                 State and Private Forestry Area Office

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

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



                   Subpart B_Functions and Procedures



Sec. 200.3  Forest Service functions.

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

[[Page 10]]

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

[44 FR 37505, June 27, 1979]



Sec. 200.4  Administrative issuances.

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

[[Page 11]]

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

[62 FR 33367, June 19, 1997]



Sec. 200.5  Indexes.

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

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



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

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

[[Page 12]]

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

[62 FR 13540, Mar. 21, 1997]



Sec. 200.7  Request for records.

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

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



Sec. 200.8  Appeals.

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

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



Sec. 200.12  Land status and title records.

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

[[Page 13]]

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

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



PART 211_ADMINISTRATION--Table of Contents




                          Subpart A_Cooperation

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

Subpart B [Reserved]

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



                          Subpart A_Cooperation



Sec. 211.1-211.2  [Reserved]



Sec. 211.3  Cooperation with State officers.

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

[1 FR 1261, Aug. 15, 1936]



Sec. 211.4  Cooperation for fire prevention and control.

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

[1 FR 1261, Aug. 15, 1936]



Sec. 211.5  Emergency fire suppression assistance.

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

[[Page 14]]

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

[48 FR 44537, Sept. 29, 1983]



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

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

[64 FR 60678, Nov. 8, 1999]

Subpart B [Reserved]



PART 212_TRAVEL MANAGEMENT--Table of Contents




      Subpart A_Administration of the Forest Transportation System

Sec. 
212.1 Definitions.
212.2 Forest development transportation program.
212.3 Cooperative work.
212.4 Construction and maintenance.
212.5 Road system management.
212.6 Ingress and egress.
212.7 Access procurement by the United States.
212.8 Permission to cross lands and easements owned by the United States 
          and administered by the Forest Service.
212.9 Principles for sharing use of roads.

[[Page 15]]

212.10 Maximum economy National Forest System roads.
212.11-212.19 [Reserved]
212.20 [Reserved]
212.21 Pacific Crest National Scenic Trail.

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

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

                   Subpart C_Use by Over-Snow Vehicles

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



      Subpart A_Administration of the Forest Transportation System

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



Sec. 212.1  Definitions.

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

[[Page 16]]

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

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

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

[[Page 17]]



Sec. 212.2  Forest transportation program.

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

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



Sec. 212.3  Cooperative work.

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

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



Sec. 212.4  Construction and maintenance.

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

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



Sec. 212.5  Road system management.

    (a) Traffic rules. Rules set forth under 36 CFR part 261 and this 
section shall apply to all National Forest System roads under the 
jurisdiction of the Forest Service except when in conflict with written 
agreement.
    (1) General. Traffic on roads is subject to State traffic laws where 
applicable except when in conflict with designations established under 
subpart B of this part or with the rules at 36 CFR part 261.

[[Page 18]]

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

[[Page 19]]

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

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



Sec. 212.6  Ingress and egress.

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

[[Page 20]]

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

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

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



Sec. 212.7  Access procurement by the United States.

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

[[Page 21]]

road, trail, or easement where necessary.

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

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



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

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

[[Page 22]]

    (2) Notwithstanding paragraph (d)(1) of this section, the Chief may 
grant to the applicant a permanent or temporary easement for specified 
periods or otherwise upon such exchange of easements or share-cost 
arrangement or other reasonable consideration as he may deem 
appropriate.
    (3) The Chief may grant to a State or local subdivision thereof; 
easements for roads over lands or easements administered by the Forest 
Service and over roads thereon, when the roads thereon or roads to be 
constructed thereon will serve said lands and are, or will become a part 
of the road system maintained by such State or local subdivision for 
general public use: Provided, That easements shall not be granted under 
authority of this act (78 Stat. 1089), 16 U.S.C. 533 which may be 
granted under the Highway Act (72 Stat. 916, 23 U.S.C. 317), as amended. 
The easements shall contain such provisions, terms, and conditions as 
the Chief may determine are necessary to retain and protect the 
interests needed by the United States.
    (4) All instruments affecting permanent interests in land executed 
pursuant to this paragraph (d) of this section shall be recorded in each 
county where the lands are located. Copies of all instruments affecting 
interests in lands reserved from public domain shall be furnished by the 
Chief to the Sec. etary of the Interior.
    (5) The Chief may terminate any easement granted under the 
provisions of the Act of October 13, 1964 (78 Stat. 1089, 16 U.S.C. 
534),
    (i) By consent of the owner of the easement,
    (ii) By condemnation, or
    (iii) Upon abandonment after nonuse by the owner of the easement for 
a period of 5 years. Before any easement is terminated for nonuse or 
abandonment, the owner of the easement must be given notice and, upon 
his request made within 60 days after receipt of the notice, a hearing 
in accordance with the provisions of 36 CFR part 211, subpart B.

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

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



Sec. 212.9  Principles for sharing use of roads.

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

[[Page 23]]

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

[[Page 24]]

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

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

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



Sec. 212.10  Maximum economy National Forest System roads.

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

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

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



Sec. 212.11-212.19  [Reserved]



Sec. 212.20  [Reserved]



Sec. 212.21  Pacific Crest National Scenic Trail.

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

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

[43 FR 20007, May 10, 1978]



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

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

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



Sec. 212.50  Purpose, scope, and definitions.

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

[[Page 25]]

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



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

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



Sec. 212.52  Public involvement.

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

[[Page 26]]

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



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

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



Sec. 212.54  Revision of designations.

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



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

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



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

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

[[Page 27]]

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



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

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



                   Subpart C_Use by Over-Snow Vehicles

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

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



Sec. 212.80  Purpose, scope, and definitions.

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



Sec. 212.81  Use by over-snow vehicles.

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



PART 213_ADMINISTRATION OF LANDS UNDER TITLE III OF THE 
BANKHEAD-JONESFARM TENANT ACT BY THE FOREST SERVICE--Table of Contents




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

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



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

    (a) The land utilization projects administered by Department of 
Agriculture designated in paragraph (e) of this section hereafter shall 
be named and referred to as National Grasslands.
    (b) The National Grasslands shall be a part of the National Forest 
system and permanently held by the Department of Agriculture for 
administration under the provisions and purposes of title III of the 
Bankhead-Jones Farm Tenant Act.

[[Page 28]]

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

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


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



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

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

[33 FR 12370, Sept. 4, 1968]



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

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

[27 FR 9217, Sept. 18, 1962]

[[Page 29]]



Sec. 213.4  Prior rules and regulations superseded.

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

[27 FR 9217, Sept. 18, 1962]



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




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

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

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



Sec. 215.1  Purpose and scope.

    (a) Purpose. The rules of this part have two purposes. First, this 
part establishes a process by which the public receives notice and is 
provided an opportunity to comment on proposed actions for projects and 
activities implementing a land and resource management plan prior to a 
decision by the Responsible Official. Sec. nd, this part establishes an 
appeal process and identifies the decisions that may be appealed, who 
may appeal those decisions, the responsibilities of the participants in 
an appeal, and the procedures that apply for the prompt disposition of 
the appeal.
    (b) Scope. The notice of proposed actions and opportunity to comment 
provides an opportunity for the public to provide meaningful input prior 
to the decision on projects and activities implementing land and 
resource management plans. The rules of this part complement, but do not 
replace, numerous other opportunities to participate in and influence 
the agency's project and activity planning, such as those provided by 
the National Environmental Policy Act of 1969 (NEPA) implementing 
regulations and procedures at 40 CFR parts 1500-1508, the National 
Forest Management Act (NFMA) implementing regulations at part 219, and 
the pertinent requirements at part 216 regarding notice and comment for 
certain Forest Service Manual (FSM) directives. The appeal process is 
available to those who submit substantive comments during the comment 
period. Appeal disposition constitutes the final administrative 
determination of the United States Department of Agriculture. Throughout 
this part, references to decisions which affect an authorized use or 
occupancy of National Forest System lands and meet all other applicable 
requirements of this part, are subject to appeal by the holders of such 
authorizations under either this part or part 251, subpart C, but not 
under both parts. In addition, certain other parties meeting 
requirements of Sec. 251.86 may also be eligible to appeal projects 
under either this part or part 251, subpart C, but not under both parts.



Sec. 215.2  Definitions.

    Address--An individual's or organization's current physical mailing 
address. An e-mail address is insufficient for identification.
    Appeal--The written document filed with an Appeal Deciding Officer 
by someone seeking review of a decision.
    Appeal Deciding Officer--The Sec. etary of Agriculture (USDA) or the

[[Page 30]]

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

[[Page 31]]

other environmental documents related to it (40 CFR1508.13; FSH 1909.15, 
Chapter 40).
    Forest Service line officer--A Forest Service official who serves in 
a direct line of command from the Chief and who has the delegated 
authority to make and execute decisions subject to this part.
    Lead appellant--For appeals submitted with multiple names, or having 
multiple organizations listed, the appellant identified to represent all 
other appellants for the purposes of communication, written or 
otherwise, regarding the appeal. The use of the generic term 
``appellant'' applies to lead appellant also.
    Name--The first and last name of an individual or the name of an 
organization. An electronic username is insufficient for identification 
of an individual or organization.
    National Forest System land--All lands, waters or interests therein 
administered by the Forest Service (Sec. 251.51).
    Newspaper(s) of record--Those principal newspapers of general 
circulation annually identified in a list and published in the Federal 
Register by each Regional Forester to be used for publishing notices of 
projects and activities implementing land and resource management plans.
    Projects and activities implementing a land and resource management 
plan--Site-specific projects and activities, including those for 
research, on National Forest System lands that are approved in a 
Decision Notice (DN) or Record of Decision (ROD) by a Forest Service 
official.
    Proposed action--A proposal made by the Forest Service that is a 
project or activity implementing a land and resource management plan on 
National Forest System lands and is subject to the notice and comment 
provisions of this part.
    Record of Decision (ROD)--A document signed by a Responsible 
Official recording a decision that was preceded by preparation of an 
environmental impact statement (40 CFR 1505.2; FSH 1909.15, Chapter 20).
    Responsible Official--The Forest Service employee who has the 
delegated authority to make and implement a decision subject to this 
part.
    Substantive comments--Comments that are within the scope of the 
proposed action, are specific to the proposed action, have a direct 
relationship to the proposed action and include supporting reasons for 
the Responsible Official to consider.
    Transmittal letter--The Responsible Official's letter transmitting 
the decision documentation. The letter shall include only an index of 
the transmitted documents and identification of those portions of the 
record that relate to the issues raised.



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

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

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

[[Page 32]]



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

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

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



Sec. 215.5  Legal notice of proposed actions.

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

[[Page 33]]

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



Sec. 215.6  Comments on proposed actions.

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

[[Page 34]]

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



Sec. 215.7  Legal notice of decision.

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

[[Page 35]]

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



Sec. 215.8  Appeal Deciding Officer.

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

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

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



Sec. 215.9  Decision implementation.

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



Sec. 215.10  Emergency situations.

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

[[Page 36]]

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



Sec. 215.11  Decisions subject to appeal.

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



Sec. 215.12  Decisions and actions not subject to appeal.

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

[[Page 37]]

    (g) An amendment, revision, or adoption of a land and resource 
management plan that is made independent of a project or activity 
(subject to either the objection process of Sec. 219.32 or the 
administrative appeal and review procedures of part 217 in effect prior 
to November 9, 2000 (see 36 CFR parts 200 to 299, Revised as of July 1, 
2000)).
    (h) Concurrences and recommendations to other Federal agencies.
    (i) Hazardous fuel reduction projects conducted under provisions of 
the HFRA, as set out at part 218, subpart A, of this title.

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



Sec. 215.13  Who may appeal.

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



Sec. 215.14  Appeal content.

    (a) It is the appellant's responsibility to provide sufficient 
project- or activity-specific evidence and rationale, focusing on the 
decision, to show why the Responsible Official's decision should be 
reversed (paragraph (b)(6-9)).
    (b) The appeal must be filed with the Appeal Deciding Officer Sec. 
215.8 in writing. At a minimum, an appeal must include the following:
    (1) Appellant's name and address (Sec. 215.2), with a telephone 
number, if available;
    (2) Signature or other verification of authorship upon request (a 
scanned signature for electronic mail may be filed with the appeal);
    (3) When multiple names are listed on an appeal, identification of 
the lead appellant (Sec. 215.2) and verification of the identity of the 
lead appellant upon request;
    (4) The name of the project or activity for which the decision was 
made, the name and title of the Responsible Official, and the date of 
the decision;
    (5) The regulation under which the appeal is being filed, when there 
is an option to appeal under either this part or part 251, subpart C 
(Sec. 215.11(d));
    (6) Any specific change(s) in the decision that the appellant seeks 
and rationale for those changes;
    (7) Any portion(s) of the decision with which the appellant 
disagrees, and explanation for the disagreement;
    (8) Why the appellant believes the Responsible Official's decision 
failed to consider the substantive comments; and
    (9) How the appellant believes the decision specifically violates 
law, regulation, or policy.
    (c) The Appeal Deciding Officer shall not process an appeal when one 
or more of the following applies:
    (1) An appellant's identity is not provided or cannot be determined 
from the signature (written or electronically scanned) and a reasonable 
means of contact is not provided.
    (2) The appellant has not provided a reasonable means of contact.
    (3) The decision cannot be identified.

[[Page 38]]

    (4) The appeal is illegible for any reason, including those 
submitted electronically in a format different from that specified in 
the legal notice.



Sec. 215.15  Appeal time periods and process.

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



Sec. 215.16  Dismissal of appeal without review.

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

[[Page 39]]

    (8) The appeal does not provide sufficient information in response 
to Sec. 215.14(b)(6) through (b)(9) for the Appeal Deciding Officer to 
render a decision.
    (9) The appellant withdraws the appeal.
    (b) Any additional information or attachment to an appeal that is 
not filed within the 45-day appeal-filing period shall not be considered 
with the appeal.
    (c) The Appeal Deciding Officer shall give written notice to the 
appellant and the Responsible Official when an appeal is dismissed and 
shall give the reasons for dismissal.



Sec. 215.17  Informal disposition.

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



Sec. 215.18  Formal review and disposition procedures.

    (a) Scope of review. The Appeal Deciding Officer shall complete a 
review based on the appeal record (Sec. 215.2) and the Appeal Reviewing 
Officer's recommendation (Sec. 215.19(b)).
    (b) Disposition. The Appeal Deciding Officer shall either:
    (1) Issue a written appeal decision within 45 days following the end 
of the appeal-filing period, which affirms or reverses the Responsible 
Official's decision, either in whole or in part, and which may include 
instructions for further action. When an appeal decision involves 
instructions concerning new information or changed circumstances, the 
Responsible Official must follow the correction, supplementation, or 
revision of environmental documentation and reconsideration of decisions 
to take action guidance in FSH 1909.15,

[[Page 40]]

Chapter 10, section 18 and Secs. 215.3, 215.4, 215.11, and 215.12. 
The Appeal Deciding Officer shall send a copy of the appeal decision to 
the appellant(s), the Appeal Reviewing Officer, and the Responsible 
Official within 5 days; or
    (2) Not issue an appeal decision and so notify the appellant(s) in 
writing that an appeal decision will not be issued and that the 
Responsible Official's decision constitutes the final agency action of 
the Department of Agriculture (Sec. 215.15(e)(2)). Notification shall 
be sent no sooner than 46 days nor later than 50 days following the end 
of the appeal-filing period.
    (c) Final administrative determination. The Appeal Deciding 
Officer's appeal disposition constitutes the final administrative 
determination of the Department of Agriculture.



Sec. 215.19  Appeal Reviewing Officer.

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



Sec. 215.20  Secretary's authority.

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



Sec. 215.21  Judicial proceedings.

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



Sec. 215.22  Applicability and effective date.

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



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




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

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

[[Page 41]]

Stat. 476 as amended, 90 Stat. 2949, 2958 (16 U.S.C. 1612).

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



Sec. 216.1  Purpose.

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



Sec. 216.2  Definitions.

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



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

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



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

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

[[Page 42]]

    (1) Direct written or oral communication with those known to be 
interested in the proposal;
    (2) The degree to which the proposal is likely to adversely or 
beneficially affect the general public as well as those known to be 
interested in the proposal;
    (3) The amount of change the proposal represents from current 
direction;
    (4) The extent of recent news media coverage on subjects related to 
the proposal; and
    (5) The amount of interest or controversy expressed on previous 
proposals on the same or similar subjects.



Sec. 216.5  Documentation.

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



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

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



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

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



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

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

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District Rangers' Offices when National Forest proposals are involved; 
in the Regional Office and Forest Supervisors' Offices when regional 
proposals are involved; and in Regional Offices and National 
Headquarters when national proposals are involved. When Manual 
directives involve Forest Service Research or State and Private Forestry 
programs, review copies shall be available at comparable administrative 
offices.



PART 218_PREDECISIONAL ADMINISTRATIVE REVIEW PROCESSES--
Table of Contents




Subpart A_Predecisional Administrative Review Process for Hazardous Fuel 
Reduction Projects Authorized by the Healthy Forests Restoration Act of 
                                  2003

Sec. 
218.1 Purpose and scope.
218.2 Definitions.
218.3 Authorized hazardous fuel reduction projects subject to the 
          objection process.
218.4 Legal notice of objection process for proposed authorized 
          hazardous fuel reduction projects.
218.5 Reviewing officer.
218.6 Who may file an objection.
218.7 Filing an objection.
218.8 Objections set aside from review.
218.9 Objection time periods and process.
218.10 Resolution of objections.
218.11 Timing of authorized hazardous fuel reduction project decision.
218.12 Sec. etary's authority.
218.13 Judicial proceedings.
218.14 Information collection requirements.
218.15 Applicability and effective date.

Subpart B [Reserved]

    Authority: Pub. L. 108-148, 117 Stat 1887 (Healthy Forests 
Restoration Act of 2003).

    Source: 69 FR 1533, Jan. 9, 2004, unless otherwise noted.



Sec. 218.1  Purpose and scope.

    This subpart establishes a predecisional administrative review 
(hereinafter referred to as ``objection'') process for proposed 
authorized hazardous fuel reduction projects as defined in the Healthy 
Forests Restoration Act of 2003 (HFRA). The objection process is the 
sole means by which administrative review of a proposed authorized 
hazardous fuel reduction project on National Forest System land may be 
sought. This subpart identifies who may file objections to those 
proposed authorized hazardous fuel reduction projects, the 
responsibilities of the participants in an objection, and the procedures 
that apply for review of the objection.



Sec. 218.2  Definitions.

    Address--An individual's or organization's current physical mailing 
address. An e-mail address is not sufficient.
    Authorized hazardous fuel reduction project--A hazardous fuel 
reduction project authorized by the HFRA.
    Comments--Specific written comments related to a proposed authorized 
hazardous fuel reduction project pursuant to the HFRA.
    Decision Notice (DN)--A concise written record of a Responsible 
Official's decision based on an environmental assessment and a finding 
of no significant impact (FONSI) (40 CFR 1508.13; FSH 1909.15, Chapter 
40).
    Environmental Assessment (EA)--A public document that provides 
sufficient evidence and analysis for determining whether to prepare an 
environmental impact statement (EIS) or a finding of no significant 
impact, aids an agency's compliance with the National Environmental 
Policy Act (NEPA) when no EIS is necessary, and facilitates preparation 
of a statement when one is necessary (40 CFR 1508.9; FSH 1909.15, 
Chapter 40).
    Environmental Impact Statement (EIS)--A detailed written statement 
as required by section 102(2)(C) of the National Environmental Policy 
Act of 1969 (40 CFR 1508.11; FSH 1909.15, Chapter 20).
    Forest Service line officer--A Forest Service official who serves in 
a direct line of command from the Chief and who has the delegated 
authority to make and execute decisions approving hazardous fuel 
reduction projects subject to this subpart.
    Lead objector--For objections submitted with multiple individuals 
and/or organizations listed, the individual or organization identified 
to represent all other objectors for the purposes of communication, 
written or otherwise, regarding the objection.

[[Page 44]]

    Name--The first and last name of an individual or the name of an 
organization. An electronic username is insufficient for identification 
of an individual or organization.
    National Forest System land--All lands, water, or interests therein 
administered by the Forest Service (Sec. 251.51).
    Newspaper(s) of record--Those principal newspapers of general 
circulation annually identified in a list and published in the Federal 
Register by each Regional Forester to be used for publishing notices of 
projects and activities implementing land and resource management plans.
    Objection--The written document filed with a Reviewing Officer by an 
individual or organization seeking predecisional administrative review 
of a proposed authorized hazardous fuel reduction project as defined in 
the Healthy Forests Restoration Act of 2003.
    Objection period--The 30-calendar-day period following publication 
of the legal notice in the newspaper of record of an environmental 
assessment or final environmental impact statement for a proposed 
authorized hazardous fuel reduction project during which an objection 
may be filed with the Reviewing Officer.
    Objection process--Those procedures established for predecisional 
administrative review of proposed authorized hazardous fuel reduction 
projects subject to the Healthy Forests Restoration Act of 2003.
    Objector--An individual or organization filing an objection who 
submitted comments specific to the proposed authorized hazardous fuel 
reduction project during scoping or other opportunity for public comment 
as described in the Healthy Forests Restoration Act of 2003. The use of 
the term ``objector'' applies to all persons that meet eligibility 
requirements associated with the filed objection.
    Record of Decision (ROD)--A document signed by a Responsible 
Official recording a decision that was preceded by preparation of an 
environmental impact statement (40 CFR 1505.2; FSH 1909.15, Chapter 20).
    Responsible Official--The Forest Service employee who has the 
delegated authority to make and implement a decision approving proposed 
authorized hazardous fuel reduction projects subject to this subpart.
    Reviewing Officer--The USDA or Forest Service official having the 
delegated authority and responsibility to review an objection filed 
under this subpart. The Reviewing Officer is the next higher level 
supervisor of the Responsible Official.



Sec. 218.3  Authorized hazardous fuel reduction projects subject to the objection
process.

    Only authorized hazardous fuel reduction projects as defined by the 
Healthy Forests Restoration Act of 2003, section 101(2), occurring on 
National Forest System lands that have been analyzed in an environmental 
assessment or environmental impact statement are subject to this 
subpart. Authorized hazardous fuel reduction projects processed under 
the provisions of the HFRA are not subject to the notice, comment, and 
appeal provisions set forth in part 215 of this chapter.



Sec. 218.4  Legal notice of objection process for proposed authorized hazardous
fuel reduction projects.

    (a) The Responsible Official shall promptly mail the final 
environmental impact statement (FEIS) or the environmental assessment 
(EA) to those who have previously requested to be included on the 
proposed authorized hazardous fuel reduction project mailing list or are 
known to have submitted specific written comments related to the 
proposed authorized hazardous fuel reduction project during the 
opportunity for public comment provided during preparation of the 
environmental assessment or environmental impact statement.
    (b) Upon completion and mailing of the FEIS or EA, legal notice of 
the opportunity to object to a proposed authorized hazardous fuel 
reduction project shall be published in the applicable newspaper of 
record identified in paragraph (c) of this section for each National 
Forest System unit. When the Chief is the Responsible Official, notice 
shall also be published in the Federal Register. The legal notice shall:

[[Page 45]]

    (1) Include the name of the proposed authorized hazardous fuel 
reduction project and a concise description of the preferred 
alternative, name and title of the Responsible Official, name of the 
Forest and/or District on which the proposed authorized hazardous fuel 
reduction project will occur, instructions for obtaining a copy of the 
FEIS or EA, and instructions on how to obtain additional information on 
the proposed authorized hazardous fuel reduction project.
    (2) State that the proposed authorized hazardous fuel reduction 
project is subject to the objection process pursuant to 36 CFR part 218, 
subpart A, and include the following:
    (i) Name and address of the Reviewing Officer with whom an objection 
is to be filed. The notice shall specify a street, postal, fax, and e-
mail address, the acceptable format(s) for objections filed 
electronically, and the Reviewing Officer's office business hours for 
those filing hand-delivered objections.
    (ii) A statement that objections will be accepted only from those 
who have previously submitted written comments specific to the proposed 
authorized hazardous fuel reduction project during scoping or other 
opportunity for public comment (Sec. 218.6(a)).
    (iii) A statement that the publication date of the legal notice in 
the newspaper of record is the exclusive means for calculating the time 
to file an objection (Sec. 218.9(a)) and that those wishing to object 
should not rely upon dates or timeframe information provided by any 
other source. A specific date shall not be included in the legal notice.
    (iv) A statement that an objection, including attachments, must be 
filed (regular mail, fax, e-mail, hand-delivery, express delivery, or 
messenger service) with the appropriate Reviewing Officer (Sec. 218.7) 
within 30 days of the date of publication of the legal notice for the 
objection process. Incorporation of documents by reference shall not be 
allowed.
    (v) A statement describing the minimum content requirements of an 
objection (Sec. 218.7(b)-(c)).
    (vi) A statement that the proposed authorized hazardous fuel 
reduction project is not subject to the notice, comment, and appeal 
procedures found at part 215 of this chapter (Sec. 218.3).
    (c) Publication. Through notice published annually in the Federal 
Register, each Regional Forester shall advise the public of the 
newspaper(s) of record utilized for publishing legal notice required by 
this subpart.



Sec. 218.5  Reviewing officer.

    The Reviewing Officer determines procedures to be used for 
processing objections when the procedures are not specifically described 
in this subpart, including such procedures as needed to be compatible to 
the extent practicable, with the administrative review processes of 
other Federal agencies, for authorized hazardous fuel reduction projects 
proposed jointly with other agencies. Such determinations are not 
subject to further administrative review.



Sec. 218.6  Who may file an objection.

    (a) Individuals and organizations who have submitted specific 
written comments related to the proposed authorized hazardous fuel 
reduction project during the opportunity for public comment provided 
during preparation of an environmental assessment or environmental 
impact statement for the proposed authorized hazardous fuel reduction 
project as characterized in section 104(g) of the HFRA may file an 
objection. For proposed authorized hazardous fuel reduction projects 
described in a draft environmental impact statement, such opportunity 
for public comment will be fulfilled by the comment procedures set forth 
in 40 CFR 1506.10. For proposed authorized hazardous fuel reduction 
projects described in an environmental assessment, such opportunity for 
public comment will be fulfilled during scoping or other public 
involvement opportunities as environmental assessments are not 
circulated for public comment in draft form.
    (b) Comments received from an authorized representative(s) of an 
organization are considered those of the organization only. Individual 
members of that organization do not meet objection eligibility 
requirements solely on the basis of membership in an organization. A 
member or an individual

[[Page 46]]

must submit comments independently in order to be eligible to file an 
objection in an individual capacity.
    (c) When an objection lists multiple individuals or organizations, 
each individual or organization shall meet the requirements of paragraph 
(a) of this section. Individuals or organizations listed on an objection 
that do not meet eligibility requirements shall not be considered 
objectors. Objections from individuals or organizations that do not meet 
the requirements of paragraph (a) shall not be accepted. This shall be 
documented in the objection record.
    (d) Federal agencies may not file objections.
    (e) Federal employees who otherwise meet the requirements of this 
subpart for filing objections in a non-official capacity, shall comply 
with Federal conflict of interest statutes at 18 U.S.C. 202-209 and with 
employee ethics requirements at 5 CFR part 2635. Specifically, employees 
shall not be on official duty nor use Government property or equipment 
in the preparation or filing of an objection. Further, employees shall 
not incorporate information unavailable to the public, such as Federal 
agency documents that are exempt from disclosure under the Freedom of 
Information Act (5 U.S.C. 552 (b)).



Sec. 218.7  Filing an objection.

    (a) Objections must be filed with the Reviewing Officer in writing. 
All objections shall be open to public inspection during the objection 
process.
    (b) It is the objector's responsibility to provide sufficient 
narrative description of those aspects of the proposed authorized 
hazardous fuel reduction project addressed by the objection, specific 
issues related to the proposed authorized hazardous fuel reduction 
project, and suggested remedies which would resolve the objection.
    (c) Incorporation of documents by reference shall not be allowed.
    (d) At a minimum, an objection must include the following:
    (1) Objector's name and address (Sec. 218.2), with a telephone 
number, if available;
    (2) Signature or other verification of authorship upon request (a 
scanned signature for electronic mail may be filed with the objection);
    (3) When multiple names are listed on an objection, identification 
of the lead objector (Sec. 218.2). Verification of the identity of the 
lead objector shall be provided upon request;
    (4) The name of the proposed authorized hazardous fuel reduction 
project, the name and title of the Responsible Official, and the name(s) 
of the National Forest(s) and/or Ranger District(s) on which the 
proposed authorized hazardous fuel reduction project will be 
implemented.



Sec. 218.8  Objections set aside from review.

    (a) The Reviewing Officer shall set aside and not review an 
objection when one or more of the following applies:
    (1) Objections are not filed in a timely manner (Sec. 
218.4(b)(2)(iv), Sec. 218.9(c)).
    (2) The proposed project is not subject to the objection procedures 
of this subpart (Sec. 218.3).
    (3) The individual or organization did not submit written comments 
during scoping or other opportunity for public comment (Sec. 218.6(a)).
    (4) The objection does not provide sufficient information as 
required by Sec. 218.7(b) through (d) for the Reviewing Officer to 
review.
    (5) The objector withdraws the objection.
    (6) An objector's identity is not provided or cannot be determined 
from the signature (written or electronically scanned) and a reasonable 
means of contact is not provided (Sec. 218.7(c)(1)).
    (7) The objection is illegible for any reason, including submissions 
in an electronic format different from that specified in the legal 
notice.
    (b) The Reviewing Officer shall give written notice to the objector 
and the Responsible Official when an objection is set aside from review 
and shall state the reasons for not reviewing the objection. If the 
objection is set aside from review for reasons of illegibility or lack 
of a means of contact, the reasons shall be documented in the project 
record.

[[Page 47]]



Sec. 218.9  Objection time periods and process.

    (a) Time to file an objection. Written objections, including any 
attachments, must be filed with the Reviewing Officer within 30 days 
following the publication date of the legal notice of the EA or FEIS in 
the newspaper of record (Sec. 218.4(b)). It is the responsibility of 
objectors to ensure that their objection is received in a timely manner.
    (b) Computation of time periods. (1) All time periods are computed 
using calendar days, including Saturdays, Sundays, and Federal holidays. 
However, when the time period expires on a Saturday, Sunday, or Federal 
holiday, the time is extended to the end of the next Federal working day 
as stated in the legal notice or to the end of the calendar day (11:59 
p.m.) for objections filed by electronic means such as e-mail or 
facsimile machine.
    (2) The day after publication of the legal notice for this subpart 
of the EA or FEIS in the newspaper of record (Sec. 218.4(b)) is the 
first day of the objection-filing period.
    (3) The publication date of the legal notice of the EA or FEIS in 
the newspaper of record is the exclusive means for calculating the time 
to file an objection. Objectors may not rely on dates or timeframe 
information provided by any other source.
    (c) Evidence of timely filing. Timeliness shall be determined by:
    (1) The date of the postmark, e-mail, fax, or other means of filing 
(for example, express delivery service) of an objection and any 
attachment;
    (2) The time and date imprint at the correct Reviewing Officer's 
office on a hand-delivered objection and any attachments; or
    (3) When an objection is electronically mailed, the objector should 
normally receive an automated electronic acknowledgment from the agency 
as confirmation of receipt. If the objector does not receive an 
automated acknowledgment of the receipt of the objection, it is the 
objector's responsibility to ensure timely receipt by other means.
    (d) Extensions. Time extensions are not permitted.
    (e) Other timeframes. The Reviewing Officer shall issue a written 
response to the objector(s) concerning their objection(s) within 30 days 
following the end of the objection-filing period.



Sec. 218.10  Resolution of objections.

    (a) Meetings. Prior to the issuance of the Reviewing Officer's 
written response, either the Reviewing Officer or the objector may 
request to meet to discuss issues raised in the objection and potential 
resolution. The Reviewing Officer has the discretion to determine 
whether or not adequate time remains in the review period to make a 
meeting with the objector practical. All meetings are open to the 
public.
    (b) Response to objections. (1) A written response shall set forth 
the reasons for the response, but need not be a point-by-point review, 
and may contain instructions to the Responsible Official, if necessary. 
In cases involving more than one objection to a proposed authorized 
hazardous fuel reduction project, the Reviewing Officer may consolidate 
objections and issue one or more responses.
    (2) There shall be no further review from any other Forest Service 
or USDA official of the Reviewing Officer's written response to an 
objection.



Sec. 218.11  Timing of authorized hazardous fuel reduction project decision.

    (a) The Responsible Official may not issue a Record of Decision 
(ROD) or Decision Notice (DN) concerning an authorized hazardous fuel 
reduction project subject to the provisions of this subpart until the 
Reviewing Officer has responded to all pending objections.
    (b) When no objection is filed within the 30-day time period, the 
Reviewing Officer shall notify the Responsible Official, and approval of 
the authorized hazardous fuel reduction project in a Record of Decision 
or Decision Notice may occur on, but not before, the fifth business day 
following the end of the objection-filing period.



Sec. 218.12  Secretary's authority.

    (a) Nothing in this section shall restrict the Sec. etary of 
Agriculture from exercising any statutory authority regarding the 
protection, management, or administration of National Forest System 
lands.

[[Page 48]]

    (b) Authorized hazardous fuel reduction projects proposed by the 
Sec. etary of Agriculture or the Under Secretary, Natural Resources and 
Environment are not subject to the procedures set forth in this subpart. 
A decision by the Sec. etary or Under Secretary constitutes the final 
administrative determination of the Department of Agriculture.



Sec. 218.13  Judicial proceedings.

    The objection process set forth in this subpart fully implements 
Congress' design for a predecisional administrative review process for 
proposed hazardous fuel reduction projects authorized by the HFRA. These 
procedures present a full and fair opportunity for concerns to be raised 
and considered on a project-by-project basis. Individuals and groups 
must structure their participation so as to alert the local agency 
officials making particular land management decisions of their positions 
and contentions. Further, any filing for Federal judicial review of an 
authorized hazardous fuel reduction project is premature and 
inappropriate unless the plaintiff has submitted specific written 
comments relating to the proposed action during scoping or other 
opportunity for public comment as prescribed by the HFRA, and the 
plaintiff has challenged the authorized hazardous fuel reduction project 
by exhausting the administrative review process set out in this subpart. 
Further, judicial review of hazardous fuel reduction projects that are 
subject to these procedures is strictly limited to those issues raised 
by the plaintiff's submission during the objection process, except in 
exceptional circumstances such as where significant new information 
bearing on a specific claim only becomes available after conclusion of 
the administrative review.



Sec. 218.14  Information collection requirements.

    The rules of this subpart specify the information that objectors 
must provide in an objection to a proposed authorized hazardous fuel 
reduction project as defined in the HFRA (Sec. 218.7). As such, these 
rules contain information collection requirements as defined in 5 CFR 
part 1320. These information requirements are assigned OMB Control 
Number 0596-0172.



Sec. 218.15  Applicability and effective date.

    The provisions of this subpart are effective as of January 9, 2004 
and apply to all proposed authorized hazardous fuel reduction projects 
conducted under the provisions of the HFRA for which scoping begins on 
or after January 9, 2004.

Subpart B [Reserved]



PART 219_PLANNING--Table of Contents




        Subpart A_National Forest System Land Management Planning

Sec. 
219.1 Purpose and applicability.
219.2 Levels of planning and planning authority.
219.3 Nature of land management planning.
219.4 National Environmental Policy Act compliance.
219.5 Environmental management systems.
219.6 Evaluations and monitoring.
219.7 Developing, amending, or revising a plan.
219.8 Application of a new plan, plan amendment, or plan revision.
219.9 Public participation, collaboration, and notification.
219.10 Sustainability.
219.11 Role of science in planning.
219.12 Suitable uses and provisions required by NFMA.
219.13 Objections to plans, plan amendments, or plan revisions.
219.14 Effective dates and transition.
219.15 Severability.
219.16 Definitions.

Subpart B [Reserved]



 Subpart A_National Forest System Land and Resource Management Planning

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

    Source: 70 FR 1055, Jan. 5, 2005, unless otherwise noted.



Sec. 219.1  Purpose and applicability.

    (a) The rules of this subpart set forth a process for land 
management planning, including the process for developing, amending, and 
revising land

[[Page 49]]

management plans (also referred to as plans) for the National Forest 
System, as required by the Forest and Rangeland Renewable Resources 
Planning Act of 1974, as amended by the National Forest Management Act 
of 1976 (16 U.S.C. 1600 et seq.), hereinafter referred to as NFMA. This 
subpart also describes the nature and scope of plans and sets forth the 
required components of a plan. This subpart is applicable to all units 
of the National Forest System as defined by 16 U.S.C. 1609 or subsequent 
statute.
    (b) Consistent with the Multiple-Use Sustained-Yield Act of 1960 (16 
U.S.C. 528-531), the overall goal of managing the National Forest System 
is to sustain the multiple uses of its renewable resources in perpetuity 
while maintaining the long-term productivity of the land. Resources are 
to be managed so they are utilized in the combination that will best 
meet the needs of the American people. Maintaining or restoring the 
health of the land enables the National Forest System to provide a 
sustainable flow of uses, benefits, products, services, and visitor 
opportunities.
    (c) The Chief of the Forest Service shall establish planning 
procedures for this subpart for plan development, plan amendment, or 
plan revision in the Forest Service Directive System.



Sec. 219.2  Levels of planning and planning authority.

    Planning occurs at multiple organizational levels and geographic 
areas.
    (a) National. The Chief of the Forest Service is responsible for 
national planning, such as preparation of the Forest Service Strategic 
Plan required under the Government Performance and Results Act of 1993 
(5 U.S.C. 306; 31 U.S.C. 1115-1119; 31 U.S.C. 9703-9704), which is 
integrated with the requirements of the Forest and Rangeland Renewable 
Resources Planning Act of 1974, as amended by the NFMA. The Strategic 
Plan establishes goals, objectives, performance measures, and strategies 
for management of the National Forest System, as well as the other 
Forest Service mission areas.
    (b) Forest, grassland, prairie, or other comparable administrative 
unit. (1) Land management plans provide broad guidance and information 
for project and activity decisionmaking in a national forest, grassland, 
prairie, or other comparable administrative unit. The Supervisor of the 
National Forest, Grassland, Prairie, or other comparable administrative 
unit is the Responsible Official for development and approval of a plan, 
plan amendment, or plan revision for lands under the responsibility of 
the Supervisor, unless a Regional Forester, the Chief, or the Sec. etary 
chooses to act as the Responsible Official.
    (2) When plans, plan amendments, or plan revisions are prepared for 
more than one administrative unit, a unit Supervisor identified by the 
Regional Forester, or the Regional Forester, the Chief, or the Sec. etary 
may be the Responsible Official. Two or more Responsible Officials may 
undertake joint planning over lands under their respective 
jurisdictions.
    (3) The appropriate Station Director must concur with that part of a 
plan applicable to any experimental forest within the plan area.
    (c) Projects and activities. The Supervisor or District Ranger is 
the Responsible Official for project and activity decisions, unless a 
higher-level official chooses to act as the Responsible Official. 
Requirements for project or activity planning are established in the 
Forest Service Directive System. Except as specifically provided, none 
of the requirements of this subpart applies to projects or activities.
    (d) Developing, amending, and revising plans--(1) Plan development. 
If a new national forest, grassland, prairie, or other administrative 
unit of the National Forest System is established, the Regional 
Forester, or a forest, grassland, prairie, or other comparable unit 
Supervisor identified by the Regional Forester must either develop a 
plan for the unit or amend or revise an existing plan to apply to the 
lands within the new unit.
    (2) Plan amendment. The Responsible Official may amend a plan at any 
time.

[[Page 50]]

    (3) Plan revision. The Responsible Official must revise the plan if 
the Responsible Official concludes that conditions within the plan area 
have significantly changed. Unless otherwise provided by law, a plan 
must be revised at least every 15 years.



Sec. 219.3  Nature of land management planning.

    (a) Principles of land management planning. Land management planning 
is an adaptive management process that includes social, economic, and 
ecological evaluation; plan development, plan amendment, and plan 
revision; and monitoring. The overall aim of planning is to produce 
responsible land management for the National Forest System based on 
useful and current information and guidance. Land management planning 
guides the Forest Service in fulfilling its responsibilities for 
stewardship of the National Forest System to best meet the needs of the 
American people.
    (b) Force and effect of plans. Plans developed in accordance with 
this subpart generally contain desired conditions, objectives, and 
guidance for project and activity decisionmaking in the plan area. Plans 
do not grant, withhold, or modify any contract, permit, or other legal 
instrument, subject anyone to civil or criminal liability, or create any 
legal rights. Plans typically do not approve or execute projects and 
activities. Decisions with effects that can be meaningfully evaluated 
(40 CFR 1508.23) typically are made when projects and activities are 
approved.



Sec. 219.4  National Environmental Policy Act compliance.

    (a) In accordance with 16 U.S.C. 1604(g)(1) this subpart clarifies 
how the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4346) 
(hereinafter referred to as NEPA) applies to National Forest System land 
management planning.
    (b) Approval of a plan, plan amendment, or plan revision, under the 
authority of this subpart, will be done in accordance with the Forest 
Service NEPA procedures and may be categorically excluded from NEPA 
documentation under an appropriate category provided in such procedures.
    (c) Nothing in this subpart alters the application of NEPA to 
proposed projects and activities.
    (d) Monitoring and evaluations, including those required by Sec. 
219.6, may be used or incorporated by reference, as appropriate, in 
applicable NEPA documents.



Sec. 219.5  Environmental management systems.

    The Responsible Official must establish an environmental management 
system (EMS) for each unit of the National Forest System. The scope of 
an EMS will include, at the minimum, the land management planning 
process defined by this subpart. An EMS for any unit may include 
environmental aspects unrelated to the land management planning process 
under this subpart.
    (a) Plan development, plan amendment, or plan revision must be 
completed in accordance with the EMS and Sec. 219.14. An EMS may be 
established independently of the planning process.
    (b) The EMS must conform to the consensus standard developed by the 
International Organization for Standardization (ISO) and adopted by the 
American National Standards Institute (ANSI) as ``ISO 14001: 
Environmental Management Systems--Specification With Guidance For Use'' 
(ISO 14001). The ISO 14001 describes EMSs and outlines the elements of 
an EMS. The ISO 14001 is available from the ANSI website at http://
webstore.ansi.org/ansidocstore/default.asp.
    (c) Pursuant to Sec. 219.1(c), the Chief of the Forest Service 
shall establish procedures in the Forest Service Directive System to 
ensure that appropriate EMSs are in place. The Responsible Official may 
determine whether and how to change and improve an EMS for the plan 
area, consistent with applicable Forest Service Directive System 
procedures.



Sec. 219.6  Evaluations and monitoring.

    (a) Evaluations. The Responsible Official shall keep the Plan Set of 
Documents up to date with evaluation reports, which will reflect 
changing conditions, science, and other relevant information. The 
following three types of

[[Page 51]]

evaluations are required for land management planning: comprehensive 
evaluations for plan development and revision, evaluations for plan 
amendment, and annual evaluations of monitoring information. The 
Responsible Official shall document evaluations in evaluation reports, 
make these reports available to the public as required in Sec. 219.9, 
and include these reports in the Plan Set of Documents (Sec. 
219.7(a)(1)). Evaluations under this section should be commensurate to 
the level of risk or benefit associated with the nature and level of 
expected management activities in the plan area.
    (1) Comprehensive evaluations. These evaluate current social, 
economic, and ecological conditions and trends that contribute to 
sustainability, as described in Sec. 219.10. Comprehensive evaluations 
and comprehensive evaluation reports must be updated at least every five 
years to reflect any substantial changes in conditions and trends since 
the last comprehensive evaluation. The Responsible Official must ensure 
that comprehensive evaluations, including any updates necessary, include 
the following elements:
    (i) Area of analysis. The area(s) of analysis must be clearly 
identified.
    (ii) Conditions and trends. The current social, economic, and 
ecological conditions and trends and substantial changes from previously 
identified conditions and trends must be described based on available 
information, including monitoring information, surveys, assessments, 
analyses, and other studies as appropriate. Evaluations may build upon 
existing studies and evaluations.
    (2) Evaluation for a plan amendment. An evaluation for a plan 
amendment must analyze the issues relevant to the purposes of the 
amendment and may use the information in comprehensive evaluations 
relevant to the plan amendment. When a plan amendment is made 
contemporaneously with, and only applies to, a project or activity 
decision, the analysis prepared for the project or activity satisfies 
the requirements for an evaluation for an amendment.
    (3) Annual evaluation of the monitoring information. Monitoring 
results must be evaluated annually and in accordance with paragraph 
(b)(2) of this section.
    (b) Monitoring. The plan must describe the monitoring program for 
the plan area. Monitoring information in the Plan Document or Set of 
Documents may be changed and updated as appropriate, at any time. Such 
changes and updates are administrative corrections (Sec. 219.7(b)) and 
do not require a plan amendment or revision.
    (1) The plan-monitoring program shall be developed with public 
participation and take into account:
    (i) Financial and technical capabilities;
    (ii) Key social, economic, and ecological performance measures 
relevant to the plan area: and
    (iii) The best available science.
    (2) The plan-monitoring program shall provide for:
    (i) Monitoring to determine whether plan implementation is achieving 
multiple use objectives;
    (ii) Monitoring to determine the effects of the various resource 
management activities within the plan area on the productivity of the 
land;
    (iii) Monitoring of the degree to which on-the-ground management is 
maintaining or making progress toward the desired conditions and 
objectives for the plan; and
    (iv) Adjustment of the monitoring program as appropriate to account 
for unanticipated changes in conditions.
    (3) The Responsible Official may conduct monitoring jointly with 
others, including but not limited to, Forest Service units, Federal, 
State or local government agencies, federally recognized Indian Tribes, 
and members of the public.



Sec. 219.7  Developing, amending, or revising a plan.

    (a) General planning requirements--(1) Plan Documents or Set of 
Documents. The Responsible Official must maintain a Plan Document or Set 
of Documents for the plan. A Plan Document or Set of Documents includes, 
but is not limited to, evaluation reports; documentation of public 
involvement; the plan, including applicable maps; applicable plan 
approval documents; applicable NEPA documents, if any; the monitoring 
program for the plan area; and

[[Page 52]]

documents relating to the EMS established for the unit.
    (2) Plan components. Plan components may apply to all or part of the 
plan area. A plan should include the following components:
    (i) Desired conditions. Desired conditions are the social, economic, 
and ecological attributes toward which management of the land and 
resources of the plan area is to be directed. Desired conditions are 
aspirations and are not commitments or final decisions approving 
projects and activities, and may be achievable only over a long time 
period.
    (ii) Objectives. Objectives are concise projections of measurable, 
time-specific intended outcomes. The objectives for a plan are the means 
of measuring progress toward achieving or maintaining desired 
conditions. Like desired conditions, objectives are aspirations and are 
not commitments or final decisions approving projects and activities.
    (iii) Guidelines. Guidelines provide information and guidance for 
project and activity decisionmaking to help achieve desired conditions 
and objectives. Guidelines are not commitments or final decisions 
approving projects and activities.
    (iv) Suitability of areas. Areas of each National Forest System unit 
are identified as generally suitable for various uses (Sec. 219.12). An 
area may be identified as generally suitable for uses that are 
compatible with desired conditions and objectives for that area. The 
identification of an area as generally suitable for a use is guidance 
for project and activity decisionmaking and is not a commitment or a 
final decision approving projects and activities. Uses of specific areas 
are approved through project and activity decisionmaking.
    (v) Special areas. Special areas are areas within the National 
Forest System designated because of their unique or special 
characteristics. Special areas such as botanical areas or significant 
caves may be designated, by the Responsible Official in approving a 
plan, plan amendment, or plan revision. Such designations are not final 
decisions approving projects and activities. The plan may also recognize 
special areas designated by statute or through a separate administrative 
process in accordance with NEPA requirements (Sec. 219.4) and other 
applicable laws.
    (3) Changing plan components. Plan components may be changed through 
plan amendment or revision, or through an administrative correction in 
accordance with Sec. 219.7(b).
    (4) Planning authorities. The Responsible Official has the 
discretion to determine whether and how to change the plan, subject to 
the requirement that the plan be revised at least every 15 years. A 
decision by a Responsible Official about whether or not to initiate the 
plan amendment or plan revision process and what issues to consider for 
plan development, plan amendment, or plan revision is not subject to 
objection under this subpart (Sec. 219.13).
    (5) Plan process. (i) Required evaluation reports, plan, plan 
amendments, and plan revisions must be prepared by an interdisciplinary 
team; and
    (ii) Unless otherwise provided by law, all National Forest System 
lands possessing wilderness characteristics must be considered for 
recommendation as potential wilderness areas during plan development or 
revision.
    (6) Developing plan options. In the collaborative and participatory 
process of land management planning, the Responsible Official may use an 
iterative approach in development of a plan, plan amendment, and plan 
revision in which plan options are developed and narrowed successively. 
The key steps in this process shall be documented in the Plan Set of 
Documents.
    (b) Administrative corrections. Administrative corrections may be 
made at any time and are not plan amendments or revisions. 
Administrative corrections include the following:
    (1) Corrections and updates of data and maps;
    (2) Corrections of typographical errors or other non-substantive 
changes;
    (3) Changes in the monitoring program and monitoring information 
(Sec. 219.6(b));
    (4) Changes in timber management projections; and
    (5) Other changes in the Plan Document or Set of Documents, except 
for substantive changes in the plan components.

[[Page 53]]

    (c) Approval document. The Responsible Official must record approval 
of a new plan, plan amendment, or plan revision in a plan approval 
document, which must include:
    (1) The rationale for the approval of the plan, plan amendment, or 
plan revision;
    (2) Concurrence by the appropriate Station Director with any part of 
the plan applicable to any experimental forest within the plan area, in 
accordance with Sec. 219.2(b)(3);
    (3) A statement of how the plan, plan amendment, or plan revision 
applies to approved projects and activities, in accordance with Sec. 
219.8;
    (4) Science documentation, in accordance with Sec. 219.11; and
    (5) The effective date of the approval (Sec. 219.14(a)).



Sec. 219.8  Application of a new plan, plan amendment, or plan revision.

    (a) Application of a new plan, plan amendment, or plan revision to 
existing authorizations and approved projects or activities. (1) The 
Responsible Official must include in any document approving a plan 
amendment or revision a description of the effects of the plan, plan 
amendments, or plan revision on existing occupancy and use, authorized 
by permits, contracts, or other instruments implementing approved 
projects and activities. If not expressly excepted, approved projects 
and activities must be consistent with applicable plan components, as 
provided in paragraph (e) of this section. Approved projects and 
activities are those for which a Responsible Official has signed a 
decision document.
    (2) Any modifications of such permits, contracts, or other 
instruments necessary to make them consistent with applicable plan 
components as developed, amended, or revised are subject to valid 
existing rights. Such modifications should be made as soon as 
practicable following approval of a new plan, plan amendment, or plan 
revision.
    (b) Application of a new plan, plan amendment, or plan revision to 
authorizations and projects or activities subsequent to plan approval. 
Decisions approving projects and activities subsequent to approval of a 
plan, plan amendment, or plan revision must be consistent with the plan 
as provided in paragraph (e) of this section.
    (c) Application of a plan. Plan provisions remain in effect until 
the effective date of a new plan, plan amendment, or plan revision.
    (d) Effect of new information on projects or activities. Although 
new information will be considered in accordance with agency NEPA 
procedures, nothing in this subpart requires automatic deferral, 
suspension, or modification of approved decisions in light of new 
information.
    (e) Ensuring project or activity consistency with plans. Projects 
and activities must be consistent with the applicable plan. If an 
existing (paragraph (a) of this section) or proposed (paragraph (b) of 
this section) use, project, or activity is not consistent with the 
applicable plan, the Responsible Official may take one of the following 
steps, subject to valid existing rights:
    (1) Modify the project or activity to make it consistent with the 
applicable plan components;
    (2) Reject the proposal or terminate the project or activity, 
subject to valid existing rights; or
    (3) Amend the plan contemporaneously with the approval of the 
project or activity so that it will be consistent with the plan as 
amended. The amendment may be limited to apply only to the project or 
activity.



Sec. 219.9  Public participation, collaboration, and notification.

    The Responsible Official must use a collaborative and participatory 
approach to land management planning, in accordance with this subpart 
and consistent with applicable laws, regulations, and policies, by 
engaging the skills and interests of appropriate combinations of Forest 
Service staff, consultants, contractors, other Federal agencies, 
federally recognized Indian Tribes, State or local governments, or other 
interested or affected communities, groups, or persons.
    (a) Providing opportunities for participation. The Responsible 
Official must provide opportunities for the public to collaborate and 
participate openly and meaningfully in the planning process, taking into 
account the discrete and

[[Page 54]]

diverse roles, jurisdictions, and responsibilities of interested and 
affected parties. Specifically, as part of plan development, plan 
amendment, and plan revision, the Responsible Official shall involve the 
public in developing and updating the comprehensive evaluation report, 
establishing the components of the plan, and designing the monitoring 
program. The Responsible Official has the discretion to determine the 
methods and timing of public involvement opportunities.
    (1) Engaging interested individuals and organizations. The 
Responsible Official must provide for and encourage collaboration and 
participation by interested individuals and organizations, including 
private landowners whose lands are within, adjacent to, or otherwise 
affected by future management actions within the plan area.
    (2) Engaging State and local governments and Federal agencies. The 
Responsible Official must provide opportunities for the coordination of 
Forest Service planning efforts undertaken in accordance with this 
subpart with those of other resource management agencies. The 
Responsible Official also must meet with and provide early opportunities 
for other government agencies to be involved, collaborate, and 
participate in planning for National Forest System lands. The 
Responsible Official should seek assistance, where appropriate, from 
other State and local governments, Federal agencies, and scientific and 
academic institutions to help address management issues or 
opportunities.
    (3) Engaging Tribal governments. The Forest Service recognizes the 
Federal Government's trust responsibility for federally recognized 
Indian Tribes. The Responsible Official must consult with, invite, and 
provide opportunities for federally recognized Indian Tribes to 
collaborate and participate in planning. In working with federally 
recognized Indian Tribes, the Responsible Official must honor the 
government-to-government relationship between Tribes and the Federal 
Government.
    (b) Public notification. The following public notification 
requirements apply to plan development, amendment, or revision, except 
when a plan amendment is approved contemporaneously with approval of a 
project or activity and the amendment applies only to the project or 
activity, in which case 36 CFR part 215 or part 218, subpart A, applies:
    (1) When formal public notification is provided. Public notification 
must be provided at the following times:
    (i) Initiation of development of a plan, plan amendment, or plan 
revision;
    (ii) Commencement of the 90-day comment period on a proposed plan, 
plan amendment, or plan revision;
    (iii) Commencement of the 30-day objection period prior to approval 
of a plan, plan amendment, or plan revision;
    (iv) Approval of a plan, plan amendment, or plan revision; and
    (v) Adjustment to conform to this subpart of a planning process for 
a plan, plan amendment, or plan revision initiated under the provisions 
of a previous planning regulation.
    (2) How public notice is provided. Public notice must be provided in 
the following manner:
    (i) All required public notices applicable to a new plan, plan 
revision, or adjustment of any ongoing plan revision as provided at 
Sec. 219.14(e) must be published in the Federal Register and 
newspaper(s) of record.
    (ii) Required notifications that are associated with a plan 
amendment or adjustment of any ongoing plan amendment as provided at 
Sec. 219.14(e) and that apply to one plan must be published in the 
newspaper(s) of record. Required notifications that are associated with 
plan amendments and adjustment of any ongoing plan amendments (as 
provided at Sec. 219.14(e)) and that apply to more than one plan must 
be published in the Federal Register.
    (iii) Public notification of evaluation reports and monitoring 
program changes may be made in a manner deemed appropriate by the 
Responsible Official.
    (3) Content of the public notice. Public notices must contain the 
following information:
    (i) Content of the public notice for initiating a plan development, 
plan amendment, or plan revision. The notice must inform the public of 
the documents available for review and how to obtain

[[Page 55]]

them; provide a summary of the need to develop a plan or change a plan; 
invite the public to comment on the need for change in a plan and to 
identify any other need for change in a plan that they feel should be 
addressed during the planning process; and provide an estimated schedule 
for the planning process, including the time available for comments, and 
inform the public how to submit comments.
    (ii) Content of the public notice for a proposed plan, plan 
amendment, or plan revision. The notice must inform the public of the 
availability of the proposed plan, plan amendment, or plan revision, 
including any relevant evaluation report; the commencement of the 90-day 
comment period; and the process for submitting comments.
    (iii) Content of the public notice for a plan, plan amendment, or 
plan revision prior to approval. The notice must inform the public of 
the availability of the plan, plan amendment, or plan revision; any 
relevant evaluation report; and the commencement of the 30-day objection 
period; and the process for objecting.
    (iv) Content of the public notice for approval of a plan, plan 
amendment, or plan revision. The notice must inform the public of the 
availability of the approved plan, plan amendment, or plan revision, the 
approval document, and the effective date of the approval (Sec. 
219.14(a)).
    (v) Content of the public notice for an adjustment to an ongoing 
planning process. The notice must state how a planning process initiated 
before the transition period (Sec. 219.14(b) and (e)) will be adjusted 
to conform to this subpart.



Sec. 219.10  Sustainability.

    Sustainability, for any unit of the National Forest System, has 
three interrelated and interdependent elements: social, economic, and 
ecological. A plan can contribute to sustainability by creating a 
framework to guide on-the-ground management of projects and activities; 
however, a plan by itself cannot ensure sustainability. Agency 
authorities, the nature of a plan, and the capabilities of the plan area 
are some of the factors that limit the extent to which a plan can 
contribute to achieving sustainability.
    (a) Sustaining social and economic systems. The overall goal of the 
social and economic elements of sustainability is to contribute to 
sustaining social and economic systems within the plan area. To 
understand the social and economic contributions that National Forest 
System lands presently make, and may make in the future, the Responsible 
Official, in accordance with Sec. 219.6, must evaluate relevant 
economic and social conditions and trends as appropriate during plan 
development, plan amendment, or plan revision.
    (b) Sustaining ecological systems. The overall goal of the 
ecological element of sustainability is to provide a framework to 
contribute to sustaining native ecological systems by providing 
ecological conditions to support diversity of native plant and animal 
species in the plan area. This will satisfy the statutory requirement to 
provide for diversity of plant and animal communities based on the 
suitability and capability of the specific land area in order to meet 
overall multiple-use objectives (16 U.S.C. 1604(g)(3)(B)). Procedures 
developed pursuant to Sec. 219.1(c) for sustaining ecological systems 
must be consistent with the following:
    (1) Ecosystem diversity. Ecosystem diversity is the primary means by 
which a plan contributes to sustaining ecological systems. Plan 
components must establish a framework to provide the characteristics of 
ecosystem diversity in the plan area.
    (2) Species diversity. If the Responsible Official determines that 
provisions in plan components, in addition to those required by 
paragraph (b)(1) of this section, are needed to provide appropriate 
ecological conditions for specific threatened and endangered species, 
species-of-concern, and species-of-interest, then the plan must include 
additional provisions for these species, consistent with the limits of 
agency authorities, the capability of the plan area, and overall 
multiple use objectives.



Sec. 219.11  Role of science in planning.

    (a) The Responsible Official must take into account the best 
available science. For purposes of this subpart, taking into account the 
best available

[[Page 56]]

science means the Responsible Official must:
    (1) Document how the best available science was taken into account 
in the planning process within the context of the issues being 
considered;
    (2) Evaluate and disclose substantial uncertainties in that science;
    (3) Evaluate and disclose substantial risks associated with plan 
components based on that science; and
    (4) Document that the science was appropriately interpreted and 
applied.
    (b) To meet the requirements of paragraph (a) of this section, the 
Responsible Official may use independent peer review, a science advisory 
board, or other review methods to evaluate the consideration of science 
in the planning process.



Sec. 219.12  Suitable uses and provisions required by NFMA.

    (a) Suitable uses--(1) Identification of suitable land uses. 
National Forest System lands are generally suitable for a variety of 
multiple uses, such as outdoor recreation, range, timber, watershed, and 
wildlife and fish purposes. The Responsible Official, as appropriate, 
shall identify areas within a National Forest System unit as generally 
suitable for uses that are compatible with desired conditions and 
objectives for that area. Such identification is guidance for project 
and activity decisionmaking, is not a permanent land designation, and is 
subject to change through plan amendment or plan revision. Uses of 
specific areas are approved through project and activity decisionmaking.
    (2) Identification of lands not suitable for timber production. (i) 
The Responsible Official must identify lands within the plan area as not 
suitable for timber production (Sec. 219.16) if:
    (A) Statute, Executive order, or regulation prohibits timber 
production on the land; or
    (B) The Sec. etary of Agriculture or the Chief of the Forest Service 
has withdrawn the land from timber production; or
    (C) The land is not forest land (as defined at Sec. 219.16); or
    (D) Timber production would not be compatible with the achievement 
of desired conditions and objectives established by the plan for those 
lands.
    (ii) This identification is not a final decision compelling, 
approving, or prohibiting projects and activities. A final determination 
of suitability for timber production is made through project and 
activity decisionmaking. Salvage sales or other harvest necessary for 
multiple-use objectives other than timber production may take place on 
areas that are not suitable for timber production.
    (b) NFMA requirements. (1) The Chief of the Forest Service must 
include in the Forest Service Directive System procedures for estimating 
the quantity of timber that can be removed annually in perpetuity on a 
sustained-yield basis in accordance with 16 U.S.C. 1611.
    (2) The Chief of the Forest Service must include in the Forest 
Service Directive System procedures to ensure that plans include the 
resource management guidelines required by 16 U.S.C. 1604(g)(3).
    (3) Forest Service Directive System procedures adopted to fulfill 
the requirements of this paragraph shall provide public involvement as 
described in 36 CFR part 216.



Sec. 219.13  Objections to plans, plan amendments, or plan revisions.

    (a) Opportunities to object. Before approving a plan, plan 
amendment, or plan revision, the Responsible Official must provide the 
public 30 calendar days for pre-decisional review and the opportunity to 
object. Federal agencies may not object under this subpart. During the 
30-day review period, any person or organization, other than a Federal 
agency, who participated in the planning process through the submission 
of written comments, may object to a plan, plan amendment, or plan 
revision according to the procedures in this section, except in the 
following circumstances:
    (1) When a plan amendment is approved contemporaneously with a 
project or activity decision and the plan amendment applies only to the 
project or activity, in which case the administrative review process of 
36 CFR part 215 or part 218, subpart A, applies instead of the objection 
process established in this section; or

[[Page 57]]

    (2) When the Responsible Official is an official in the Department 
of Agriculture at a level higher than the Chief of the Forest Service, 
in which case there is no opportunity for administrative review.
    (b) Submitting objections. The objection must be in writing and must 
be filed with the Reviewing Officer within 30 days following the 
publication date of the legal notice in the newspaper of record of the 
availability of the plan, plan amendment, or plan revision. Specific 
details will be included in the Forest Service Directive System. An 
objection must contain:
    (1) The name, mailing address, and telephone number of the person or 
entity filing the objection. Where a single objection is filed by more 
than one person, the objection must indicate the lead objector to 
contact. The Reviewing Officer may appoint the first name listed as the 
lead objector to act on behalf of all parties to the single objection 
when the single objection does not specify a lead objector. The 
Reviewing Officer may communicate directly with the lead objector and is 
not required to notify the other listed objectors of the objection 
response or any other written correspondence related to the single 
objection;
    (2) A statement of the issues, the parts of the plan, plan 
amendment, or plan revision to which the objection applies, and how the 
objecting party would be adversely affected; and
    (3) A concise statement explaining how the objector believes that 
the plan, plan amendment, or plan revision is inconsistent with law, 
regulation, or policy or how the objector disagrees with the decision 
and providing any recommendations for change.
    (c) Responding to objections. (1) The Reviewing Officer (Sec. 
219.16) has the authority to make all procedural determinations related 
to the objection not specifically explained in this subpart, including 
those procedures necessary to ensure compatibility, to the extent 
practicable, with the administrative review processes of other Federal 
agencies. The Reviewing Officer must promptly render a written response 
to the objection. The response must be sent to the objecting party by 
certified mail, return receipt requested.
    (2) The response of the Reviewing Officer shall be the final 
decision of the Department of Agriculture on the objection.
    (d) Use of other administrative review processes. Where the Forest 
Service is a participant in a multi-Federal agency effort that would 
otherwise be subject to objection under this subpart, the Reviewing 
Officer may waive the objection procedures of this subpart and instead 
adopt the administrative review procedure of another participating 
Federal agency. As a condition of such a waiver, the Responsible 
Official for the Forest Service must have agreement with the Responsible 
Official of the other agency or agencies that a joint agency response 
will be provided to those who file for administrative review of the 
multi-agency effort.
    (e) Compliance with the Paperwork Reduction Act. The information 
collection requirements associated with submitting an objection have 
been approved by the Office of Management and Budget and assigned 
control number 0596-0158.



Sec. 219.14  Effective dates and transition.

    (a) Effective dates. A plan, plan amendment, or plan revision is 
effective 30 days after publication of notice of its approval (Sec. 
219.9(b)), except when a plan amendment is approved contemporaneously 
with a project or activity and applies only to the project or activity, 
in which case 36 CFR part 215 or part 218, subpart A, apply.
    (b) Transition period. For each unit of the National Forest System, 
the transition period begins on January 5, 2005 and ends on the unit's 
establishment of an EMS in accordance with Sec. 219.5 or on January 7, 
2008 whichever comes first.
    (c) Initiation of plans, plan amendments, or plan revisions. For the 
purposes of this section, initiation means that the agency has provided 
notice under Sec. 219.9(b) or issued a Notice of Intent or other public 
notice announcing the commencement of the process to develop a plan, 
plan amendment, or plan revision.
    (d) Plan development, plan amendments, or plan revisions initiated 
during the transition period. (1) Plan development and plan revisions 
initiated after

[[Page 58]]

January 5, 2005 must conform to the requirements of this subpart, except 
that the plan for the Tongass National Forest may be revised once under 
this subpart or the planning regulations in effect before November 9, 
2000.
    (2) Plan amendments initiated during the transition period may 
continue using the provisions of the planning regulations in effect 
before November 9, 2000 (See 36 CFR parts 200 to 299, Revised as of July 
1, 2000) or may conform to the requirements of this subpart if the 
Responsible Official establishes an EMS in accordance with Sec. 219.5.
    (3) Plan amendments initiated after the transition period must 
conform to the requirements of this subpart.
    (e) Plan development, plan amendments, or plan revisions previously 
initiated. Plan development, plan amendments, or plan revisions 
initiated before the transition period may continue to use the 
provisions of the planning regulations in effect before November 9, 2000 
(See 36 CFR parts 200 to 299, Revised as of July 1, 2000), or may 
conform to the requirements of this subpart, in accordance with the 
following:
    (1) The Responsible Official is not required to halt the process and 
start over. Rather, upon the unit's establishment of an EMS in 
accordance with Sec. 219.5, the Responsible Official may apply this 
subpart as appropriate to complete the plan development, plan amendment, 
or plan revision process.
    (2) The Responsible Official may elect to use either the 
administrative appeal and review procedures at 36 CFR part 217 in effect 
prior to November 9, 2000, (See 36 CFR parts 200 to 299, Revised as of 
July 1, 2000), or the objection procedures of this subpart, except when 
a plan amendment is approved contemporaneously with a project or 
activity and applies only to the project or activity, in which case 36 
CFR part 215 or part 218, subpart A, apply.
    (f) Management indicator species. For units with plans developed, 
amended, or revised using the provisions of the planning rule in effect 
prior to November 9, 2000, the Responsible Official may comply with any 
obligations relating to management indicator species by considering data 
and analysis relating to habitat unless the plan specifically requires 
population monitoring or population surveys for the species. Site-
specific monitoring or surveying of a proposed project or activity area 
is not required, but may be conducted at the discretion of the 
Responsible Official.

[70 FR 1055, Jan. 5, 2005, as amended at 71 FR 10838, Mar. 3, 2006]



Sec. 219.15  Severability.

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



Sec. 219.16  Definitions.

    Definitions of the special terms used in this subpart are set out in 
alphabetical order.
    Adaptive management: An approach to natural resource management 
where actions are designed and executed and effects are monitored for 
the purpose of learning and adjusting future management actions, which 
improves the efficiency and responsiveness of management.
    Area of analysis: The geographic area within which ecosystems, their 
components, or their processes are evaluated during analysis and 
development of one or more plans, plan revisions, or plan amendments. 
This area may vary in size depending on the relevant planning issue. For 
a plan, an area of analysis may be larger than a plan area. For 
development of a plan amendment, an area of analysis may be smaller than 
the plan area. An area of analysis may include multiple ownerships.
    Diversity of plant and animal communities: The distribution and 
relative abundance or extent of plant and animal communities and their 
component species, including tree species, occurring within an area.
    Ecological conditions: Components of the biological and physical 
environment that can affect diversity of plant and animal communities 
and the productive capacity of ecological systems. These components 
could include the abundance and distribution of aquatic and terrestrial 
habitats, roads and other structural developments, human uses, and 
invasive, exotic species.

[[Page 59]]

    Ecosystem diversity: The variety and relative extent of ecosystem 
types, including their composition, structure, and processes within all 
or a part of an area of analysis.
    Environmental management system: The part of the overall management 
system that includes organizational structure, planning activities, 
responsibilities, practices, procedures, processes, and resources for 
developing, implementing, achieving, reviewing, and maintaining the 
environmental policy of the planning unit.
    Federally recognized Indian Tribe: An Indian or Alaska Native Tribe, 
band, nation, pueblo, village, or community that the Sec. etary of the 
Interior acknowledges to exist as an Indian Tribe pursuant to the 
Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
    Forest land: Land at least 10 percent occupied by forest trees of 
any size or formerly having had such tree cover and not currently 
developed for nonforest uses. Lands developed for non-forest use include 
areas for crops; improved pasture; residential or administrative areas; 
improved roads of any width and adjoining road clearing; and power line 
clearings of any width.
    ISO 14001: A consensus standard developed by the International 
Organization for Standardization and adopted by the American National 
Standards Institute that describes environmental management systems and 
outlines the elements of an environmental management system.
    Newspaper(s) of record: The principal newspapers of general 
circulation annually identified and published in the Federal Register by 
each Regional Forester to be used for publishing notices as required by 
36 CFR 215.5. The newspaper(s) of record for projects in a plan area is 
(are) the newspaper(s) of record for notices related to planning.
    Plan: A document or set of documents that integrates and displays 
information relevant to management of a unit of the National Forest 
System.
    Plan area: The National Forest System lands covered by a plan.
    Productivity: The capacity of National Forest System lands and their 
ecological systems to provide the various renewable resources in certain 
amounts in perpetuity. For the purposes of this subpart it is an 
ecological, not an economic, term.
    Public participation: Activities that include a wide range of public 
involvement tools and processes, such as collaboration, public meetings, 
open houses, workshops, and comment periods.
    Responsible Official: The official with the authority and 
responsibility to oversee the planning process and to approve plans, 
plan amendments, and plan revisions.
    Reviewing Officer: The supervisor of the Responsible Official. The 
Reviewing Officer responds to objections made to a plan, plan amendment, 
or plan revision prior to approval.
    Species: Any member of the currently accepted and scientifically 
defined plant or animal kingdoms of organisms.
    Species-of-concern: Species for which the Responsible Official 
determines that management actions may be necessary to prevent listing 
under the Endangered Species Act.
    Species-of-interest: Species for which the Responsible Official 
determines that management actions may be necessary or desirable to 
achieve ecological or other multiple use objectives.
    Timber production: The purposeful growing, tending, harvesting, and 
regeneration of regulated crops of trees to be cut into logs, bolts, or 
other round sections for industrial or consumer use.
    Visitor opportunities: The spectrum of settings, landscapes, 
scenery, facilities, services, access points, information, learning-
based recreation, wildlife, natural features, cultural and heritage 
sites, and so forth available for National Forest System visitors to use 
and enjoy.
    Wilderness: Any area of land designated by Congress as part of the 
National Wilderness Preservation System that was established in the 
Wilderness Act of 1964 (16 U.S.C. 1131-1136).

Subpart B [Reserved]

[[Page 60]]



PART 221_TIMBER MANAGEMENT PLANNING--Table of Contents




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



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

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

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



PART 222_RANGE MANAGEMENT--Table of Contents




    Subpart A_Grazing and Livestock Use on the National Forest System

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

       Subpart B_Management of Wild Free-Roaming Horses and Burros

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

                         Subpart C_Grazing Fees

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

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

[[Page 61]]



    Subpart A_Grazing and Livestock Use on the National Forest System

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

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



Sec. 222.1  Authority and definitions.

    (a) Authority. The Chief, Forest Service, shall develop, administer 
and protect the range resources and permit and regulate the grazing use 
of all kinds and classes of livestock on all National Forest System 
lands and on other lands under Forest Service control. He may redelegate 
this authority.
    (b) Definitions. (1) An allotment is a designated area of land 
available for livestock grazing.
    (2) An allotment management plan is a document that specifies the 
program of action designated to reach a given set of objectives. It is 
prepared in consultation with the permittee(s) involved and:
    (i) Prescribes the manner in and extent to which livestock 
operations will be conducted in order to meet the multiple-use, 
sustained yield, economic, and other needs and objectives as determined 
for the lands, involved; and
    (ii) Describes the type, location, ownership, and general 
specifications for the range improvements in place or to be installed 
and maintained on the lands to meet the livestock grazing and other 
objectives of land management; and
    (iii) Contains such other provisions relating to livestock grazing 
and other objectives as may be prescribed by the Chief, Forest Service, 
consistent with applicable law.
    (3) Base property is land and improvements owned and used by the 
permittee for a farm or ranch operation and specifically designated by 
him to qualify for a term grazing permit.
    (4) Cancel means action taken to permanently invalidate a term 
grazing permit in whole or in part.
    (5) A grazing permit is any document authorizing livestock to use 
National Forest System or other lands under Forest Service control for 
the purpose of livestock production including:
    (i) Temporary grazing permits for grazing livestock temporarily and 
without priority for reissuance.
    (ii) Term permits for up to 10 years with priority for renewal at 
the end of the term.
    (6) Land subject to commercial livestock grazing means National 
Forest System lands within established allotments.
    (7) Lands within National Forest in the 16 contiguous western States 
means lands designated as National Forest within the boundaries of 
Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, 
New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, 
Washington, and Wyoming (National Grasslands are excluded).
    (8) Livestock means animals of any kind kept or raised for use or 
pleasure.
    (9) Livestock use permit means a permit issued for not to exceed one 
year where the primary use is for other than grazing livestock.
    (10) Modify means to revise the terms and conditions of an issued 
permit.
    (11) National Forest System lands, are the National Forests, 
National Grasslands, Land Utilization Projects, and other Federal lands 
for which the Forest Service has administrative jurisdiction.
    (12) On-and-off grazing permits are permits with specific provisions 
on range only part of which is National Forest System lands or other 
lands under Forest Service control.
    (13) On-the-ground expenditure means payment of direct project costs 
of implementing an improvement or development, such as survey and 
design, equipment, labor and material (or contract) costs, and on-the-
ground supervision.
    (14) Other lands under Forest Service control are non-Federal public 
and private lands over which the Forest Service has been given control 
through lease, agreement, waiver, or otherwise.
    (15) Private land grazing permits are permits issued to persons who 
control grazing lands adjacent to National Forest System lands and who 
waive exclusive grazing use of these lands to the United States for the 
full period the permit is to be issued.

[[Page 62]]

    (16) Permittee means any person who has been issued a grazing 
permit.
    (17) Permitted livestock is livestock authorized by a written 
permit.
    (18) Person means any individual, partnership, corporation, 
association, organization, or other private entity, but does not include 
Government Agencies.
    (19) Range betterment means rehabilitation, protection and 
improvement of National Forest System lands to arrest range 
deterioration and improve forage conditions, fish and wildlife habitat, 
watershed protection, and livestock production.
    (20) Range betterment fund means the fund established by title IV, 
section 401(b)(1), of the Federal Land Policy and Management Act of 
1976. This consists of 50 percent of all monies received by the United 
States as fees for grazing livestock on the National Forests in the 16 
contiguous western States.
    (21) Range Improvement means any activity or program designed to 
improve production of forage and includes facilities or treatments 
constructed or installed for the purpose of improving the range resource 
or the management of livestock and includes the following types:
    (i) Non-structural which are practices and treatments undertaken to 
improve range not involving construction of improvements.
    (ii) Structural which are improvements requiring construction or 
installation undertaken to improve the range or to facilitate management 
or to control distribution and movement of livestock.
    (A) Permanent which are range improvements installed or constructed 
and become a part of the land such as: dams, ponds, pipelines, wells, 
fences, trails, seeding, etc.
    (B) Temporary which are short-lived or portable improvements that 
can be removed such as: troughs, pumps and electric fences, including 
improvements at authorized places of habitation such as line camps.
    (22) Suspend means temporary withholding of a term grazing permit 
privilege, in whole or in part.
    (23) Term period means the period for which term permits are issued, 
the maximum of which is 10 years.
    (24) Transportation livestock is livestock used as pack and saddle 
stock for travel on the National Forest System.

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

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



Sec. 222.2  Management of the range environment.

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

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

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



Sec. 222.3  Issuance of grazing and livestock use permits.

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

[[Page 63]]

Forest Service control must be authorized by a grazing or livestock use 
permit.
    (b) Grazing permits and livestock use permits convey no right, 
title, or interest held by the United States in any lands or resources.
    (c) The Chief, Forest Service, is authorized to issue permits for 
livestock grazing and other use by livestock of the National Forest 
System and on other lands under Forest Service control as follows:
    (1) Grazing permits with priority for renewal may be issued as 
follows: On National Forests in the 16 contiguous western States 10-year 
term permits will be issued unless the land is pending disposal, or will 
be devoted to other uses prior to the end of ten years, or it will be in 
the best interest of sound land management to specify a shorter term. On 
National Forest System lands other than National Forests in the 16 
contiguous western States, the permit term shall be for periods of 10 
years or less. Term grazing permits for periods of 10 years or less in 
the form of grazing agreements may be issued to cooperative grazing 
associations or similar organizations incorporated or otherwise 
established pursuant to State law. Such an agreement will make National 
Forest System lands and improvements available to the association for 
grazing in accordance with provisions of the grazing agreement and 
Forest Service policies. Term permits authorized in this paragraph may 
be in the form of private land or on-and-off grazing permits where the 
person is qualified to hold such permits under provisions the Chief may 
require. Permits issued under this paragraph are subject to the 
following:
    (i) Except as provided for by the Chief, Forest Service, paid term 
permits will be issued to persons who own livestock to be grazed and 
such base property as may be required, provided the land is determined 
to be available for grazing purposes by the Chief, Forest Service, and 
the capacity exists to graze specified numbers of animals.
    (ii) A term permit holder has first priority for receipt of a new 
permit at the end of the term period provided he has fully complied with 
the terms and conditions of the expiring permit.
    (iii) In order to update terms and conditions, term permits may be 
cancelled at the end of the calendar year of the midyear of the decade 
(1985, 1995, etc.), provided they are reissued to the existing permit 
holder for a new term of 10 years.
    (iv) New term permits may be issued to the purchaser of a 
permittee's permitted livestock and/or base property, provided the 
permittee waives his term permit to the United States and provided the 
purchaser is otherwise eligible and qualified.
    (v) If the permittee chooses to dispose of all or part of his base 
property or permitted livestock (not under approved nonuse) but does not 
choose to waive his term permit, the Forest Supervisor will give written 
notice that he no longer is qualified to hold a permit, provided he is 
given up to one year to reestablish his qualifications before 
cancellation action is final.
    (vi) The Chief, Forest Service, shall prescribe provisions and 
requirements under which term permits will be issued, renewed, and 
administered, including:
    (A) The amount and character of base property and livestock the 
permit holder shall be required to own.
    (B) Specifying the period of the year the base property shall be 
capable of supporting permitted livestock.
    (C) Acquisition of base property and/or permitted livestock.
    (D) Conditions for the approval of nonuse of permit for specified 
periods.
    (E) Upper and special limits governing the total number of livestock 
for which a person is entitled to hold a permit.
    (F) Conditions whereby waiver of grazing privileges may be confirmed 
and new applicants recognized.
    (2) Permits with no priority for reissuance, subject to terms and 
conditions as the Chief, Forest Service, may prescribe, are authorized 
as follows:
    (i) Temporary grazing permits for periods not to exceed one year, 
and on a charge basis, may be issued:
    (A) To allow for use of range while a term grazing permit is held in 
suspension.
    (B) To use forage created by unusually favorable climatic 
conditions.

[[Page 64]]

    (C) To use the forage available when the permit of the normal user's 
livestock is in nonuse status for reasons of personal convenience.
    (D) To allow a person to continue to graze livestock for the 
remainder of the grazing season where base property has been sold, the 
permit waived, and a new term permit issued.
    (E) To allow grazing use in the event of drought or other emergency 
of National or Regional scope where such use would not result in 
permanent resource damage.
    (ii) Livestock use permits for not to exceed one year may be issued 
under terms and conditions prescribed by the Chief, Forest Service, as 
follows:
    (A) Paid permits for transportation livestock to persons engaged in 
commercial packing, dude ranching, or other commercial enterprises which 
involve transportation livestock including mining, ranching, and 
logging, activities.
    (B) Paid or free permits for research purposes and administrative 
studies.
    (C) Paid or free permits to trail livestock across National Forest 
System lands.
    (D) Free permits to persons who reside on ranch or agricultural 
lands within or contiguous to National Forest System lands for not to 
exceed 10 head of livestock owned or kept and whose products are 
consumed or whose services are used directly by the family of the 
resident, and who distinctly need such National Forest System lands to 
support such animals.
    (E) Free permits to campers and travelers for the livestock actually 
used during the period of occupancy. This may be authorized without 
written permit.
    (F) Paid or free permits for horses, mules, or burros to persons who 
clearly need National Forest System land to support the management of 
permitted livestock.
    (G) Free permits for horses, mules, or burros to cooperators who 
clearly need National Forest System land to support research, 
administration or other work being conducted. This may be authorized 
without written permit.
    (H) Paid permits to holders of grazing permits for breeding animals 
used to service livestock permitted to graze on lands administered by 
the Forest Service.
    (I) Paid permits or cooperative agreements entered into as a 
management tool to manipulate revegetation on a given parcel of land.

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



Sec. 222.4  Changes in grazing permits.

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

[[Page 65]]

    (6) Cancel or suspend the permit if the permit holder is convicted 
for failing to comply with Federal laws or regulations or State laws 
relating to protection of air, water, soil and vegetation, fish and 
wildlife, and other environmental values when exercising the grazing use 
authorized by the permit.
    (7) Modify the terms and conditions of a permit to conform to 
current situations brought about by changes in law, regulation, 
executive order, development or revision of an allotment management 
plan, or other management needs.
    (8) Modify the seasons of use, numbers, kind, and class of livestock 
allowed or the allotment to be used under the permit, because of 
resource condition, or permittee request. One year's notice will be 
given of such modification, except in cases of emergency.
    (b) Association permits or grazing agreements may be canceled for 
noncompliance with title VI of the Civil Rights Act of 1964 and 
Department of Agriculture regulation promulgated thereunder.

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



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

    (a) Whenever a term permit for grazing livestock on National Forest 
land in the 16 contiguous western States is canceled in whole or in part 
to devote the lands covered by the permit to another public purpose, 
including disposal, the permittee shall receive from the United States a 
reasonable compensation for the adjusted value of his interest in 
authorized permanent improvements placed or constructed by him on the 
lands covered by the canceled permit. The adjusted value is to be 
determined by the Chief, Forest Service. Compensation received shall not 
exceed the fair market value of the terminated portion of the 
permittee's interest therein.
    (b) In the event a permittee waives his grazing permit in connection 
with sale of his base property or permitted livestock, he is not 
entitled to compensation.

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

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



Sec. 222.7  Cooperation in management.

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

[[Page 66]]

    (iv) The association's activities must be governed by a constitution 
and bylaws acceptable to the Forest Supervisor and approved by him.
    (4) Withdrawing recognition. The Forest Supervisor may withdraw his 
recognition of the association whenever:
    (i) The majority of the grazing permittees request that the 
association be dissolved.
    (ii) The association becomes inactive, and does not meet in annual 
or special meetings during a consecutive 2-year period.
    (b) Cooperation with national, State, and county livestock 
organizations. The policies and programs of national, State, and county 
livestock organizations give direction to, and reflect in, the practices 
of their members. Good working relationships with these groups is 
conducive to the betterment of range management on both public and 
private lands. The Chief, Forest Service, will endeavor to establish and 
maintain close working relationships with National livestock 
organizations who have an interest in the administration of National 
Forest System lands, and direct Forest officers to work cooperatively 
with State and county livestock organizations having similar interests.
    (c) Interagency cooperation. The Chief, Forest Service, will 
cooperate with other Federal agencies which have interest in improving 
range management on public and private lands.
    (d) Cooperation with others. The Chief, Forest Service, will 
cooperate with other agencies, institutions, organizations, and 
individuals who have interest in improvement of range management on 
public and private lands.



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

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

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



Sec. 222.9  Range improvements.

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

[[Page 67]]

other lands under Forest Service control may be required by the Chief, 
Forest Service, to maintain improvements to specified standards.
    (d) Grazing fees or the number of animal months charged shall not be 
adjusted to compensate permittees for range improvement work performed 
on National Forest System lands: Provided, That, in accordance with 
section 32(c), title III, Bankhead-Jones Farm Tenant Act, the cost to 
grazing users in complying with requirements of a grazing permit or 
agreement may be considered in determining the annual grazing fee on 
National Grasslands or land utilization projects if it has not been used 
in establishing the grazing base value.



Sec. 222.10  Range betterment fund.

    In addition to range development which is accomplished through funds 
from the rangeland management budget line item and the Granger-Thye Act, 
and deposited and nondeposited cooperative funds, range development may 
also be accomplished through use of the range betterment fund as 
follows:
    (a) On National Forest land within the 16 contiguous western States, 
the Chief, Forest Service, shall implement range improvement programs 
where necessary to arrest range deterioration and improve forage 
conditions with resulting benefits to wildlife, watershed protection, 
and livestock production. One-half of the available funds will be 
expended on the National Forest where derived. The remaining one-half of 
the fund will be allocated for range rehabilitation, protection and 
improvements on National Forest lands within the Forest Service Regions 
where they were derived. During the planning process there will be 
consultation with grazing permittees who will be affected by the range 
rehabilitation, protection and improvements, and other interested 
persons or organizations.
    (b) Range betterment funds shall be utilized only for on-the-ground 
expenditure for range land betterment, including, but not limited to, 
seeding and reseeding, fence construction, water development, weed and 
other plant control, and fish and wildlife habitat enhancement within 
allotments.

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

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



Sec. 222.11  Grazing advisory boards.

    (a) Establishment. Persons holding term permits to graze livestock 
on National Forest System lands with headquarters, office in the 16 
contiguous western States having jurisdiction over more than 500,000 
acres of land subject to commercial livestock grazing may petition the 
Forest Supervisor for establishment of a statutory grazing advisory 
board in accordance with provisions of the Federal Land Policy and 
Management Act of 1976.
    (1) Upon being properly petitioned by a simple majority (more than 
50 percent) of term grazing permittees under the jurisdiction of such 
headquarters office, the Sec. etary shall establish and maintain at least 
one grazing advisory board.
    (2) The Chief, Forest Service, shall determine the number of such 
boards, the area to be covered, and the number of advisers on each 
board.
    (3) Processing Petitions. Upon receiving a proper petition from the 
grazing permittees, the Forest Supervisor will request the Chief, Forest 
Service, through the Regional Forester, to initiate action to establish 
grazing advisory boards in accordance with regulations of the Sec. etary 
of Agriculture. Grazing advisory boards will comply with the provisions 
of the Federal Advisory Committee Act.
    (b) Membership. Grazing advisory boards established under this 
authority shall consist of members who are National Forest System term 
permittees under the jurisdiction of a National Forest headquarters 
office in the 16 contiguous western States, provided board members shall 
be elected by term grazing permittees in the area covered by the board.
    (c) Elections. The Forest Supervisor of the headquarters office 
shall prescribe

[[Page 68]]

and oversee the manner in which permittees are nominated and board 
members are elected. Nominations will be made by petition with all term 
grazing permittees under the jurisdiction of such headquarters office 
being eligible for membership on the board. All members of the board 
will be elected by secret ballot with each term grazing permittee in the 
area covered by the board being qualified to vote. No person shall be 
denied the opportunity to serve as a grazing advisory board member 
because of race, color, sex, religion, or national origin. No board 
member shall concurrently serve on another USDA advisory committee. The 
Forest Supervisor shall determine and announce the results of the 
election of the members of the board and shall recognize the duly 
elected board as representing National Forest System term grazing 
permittees in the areas for which it is established. Board members will 
be elected to terms not to exceed 2 years.
    (d) Charter and bylaws. (1) The Forest Supervisor will prepare a 
charter to be filed with the Department and the Congress as required by 
Sec. ion 9(c) of the Federal Advisory Committee Act.
    (2) A duly recognized grazing advisory board may, with the 
concurrence of a majority of its members and the Forest Supervisor, 
adopt bylaws to govern its proceedings.
    (e) Function. The function of grazing advisory boards will be to 
offer advice and make recommendations concerning the development of 
allotment management plans and the utilization of range betterment 
funds.
    (f) Meetings. The Forest Supervisor shall call at least one meeting 
of each board annually, and call additional meetings as needed to meet 
the needs of the permittees and the Forest Service. Each meeting shall 
be conducted in accordance with an agenda approved by the Forest 
Supervisor and in the presence of a Forest officer.
    (g) Termination. (1) Grazing advisory boards established under the 
Federal Land Policy and Management Act of 1976 shall continue until 
December 31, 1985, unless terminated earlier.
    (2) The Forest Supervisor may withdraw recognition of any board 
whenever:
    (i) A majority of the term grazing permittees for the area which the 
board represents requests that the board be dissolved.
    (ii) The board becomes inactive and does not meet at least once each 
calendar year.

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

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



       Subpart B_Management of Wild Free-Roaming Horses and Burros

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

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



Sec. 222.20  Authority and definitions.

    (a) Authority. The Chief, Forest Service, shall protect, manage, and 
control wild free-roaming horses and burros on lands of the National 
Forest System and shall maintain vigilance for the welfare of wild free-
roaming horses and burros that wander or migrate from the National 
Forest System. If these animals also use lands administered by the 
Bureau of Land Management as a part of their habitat, the Chief, Forest 
Service, shall cooperate to the fullest extent with the Department of 
the Interior through the Bureau of Land Management in administering the 
animals.
    (b) Definitions.
    (1) Act means the Act of December 15, 1971 (85 Stat. 649, as 
amended, 16 U.S.C. 1331-1340).
    (2) Captured animal means a wild free-roaming horse or burro taken 
and held in the custody of an authorized officer, his delegate, or 
agent. This term does not apply to an animal after it is placed in 
private custody through a Private Maintenance and Care agreement.

[[Page 69]]

    (3) Excess animals means wild free-roaming horses and burros which 
have been removed by authorized personnel pursuant to applicable law or 
which must be removed from an area in order to preserve and maintain a 
thriving natural ecological balance in coordination with other resources 
and activities.
    (4) Herd means one or more stallions and their mares, or jacks and 
their jennies.
    (5) Humane treatment means kind and merciful treatment, without 
causing unnecessary stress or suffering to the animal.
    (6) Inhumane treatment means causing physical stress to an animal 
through any harmful action or omission that is not compatible with 
standard animal husbandry practices; causing or allowing an animal to 
suffer from a lack of necessary food, water, or shelter; using any 
equipment, apparatus, or technique during transportation, domestication, 
or handling that causes undue injury to an animal; or failing to treat 
or care for a sick or injured animal.
    (7) Lame means a wild free-roaming horse or burro with 
malfunctioning muscles, ligaments or limbs that impair freedom of 
movement.
    (8) Malicious harassment means any intentional act demonstrating 
deliberate disregard for the well-being of wild free-roaming horses and 
burros and which creates a likelihood of injury or is detrimental to 
normal behavior pattern of wild free-roaming horses or burros including 
feeding, watering, resting, and breeding. Such acts include, but are not 
limited to, unauthorized chasing, pursuing, herding, roping, or 
attempting to gather wild free-roaming horses or burros. It does not 
apply to activities conducted by or on behalf of the Forest Service or 
the Bureau of Land Management in implementation or performance of duties 
and responsibilities under the Act.
    (9) National Advisory Board means the Advisory Board as established 
jointly by the Sec. etary of Agriculture and the Secretary of the 
Interior under the provisions of the Act.
    (10) National Forest System includes the National Forests, National 
Grasslands, and other Federal lands for which the Forest Service has 
administrative jurisdiction.
    (11) Old means a wild free-roaming horse or burro characterized by 
inability to fend for itself because of age, physical deterioration, 
suffering or closeness to death.
    (12) Sick means a wild free-roaming horse or burro with failing 
health, infirmness, or disease from which there is little chance of 
recovery.
    (13) Wild free-roaming horses and burros mean all unbranded and 
unclaimed horses and burros and their progeny that have used lands of 
the National Forest System on or after December 15, 1971, or do 
hereafter use these lands as all or part of their habitat, but does not 
include any horse or burro introduced onto the National Forest System on 
or after December 15, 1971, by accident, negligence, or willful 
disregard of private ownership. Unbranded, claimed horses and burros for 
which the claim is found to be erroneous, are also considered as wild 
and free-roaming if they meet the criteria above.
    (14) Wild-horse and burro range means an area of National Forest 
System specifically so designated by the Chief, Forest Service, from 
wild horse and burro territory, for the purpose of sustaining an 
existing herd or herds of wild free-roaming horses and burros, provided 
the range does not exceed known territorial limits and is devoted 
principally, but not necessarily exclusively, to the welfare of the wild 
horses and burros, in keeping with the multiple-use management concept 
for the National Forest System.
    (15) Wild horse and burro territory means lands of the National 
Forest System which are identified by the Chief, Forest Service, as 
lands which were territorial habitat of wild free-roaming horses and/or 
burros at the time of the passage of the Act.



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

    (a) The Chief, Forest Service, shall:
    (1) Administer wild free-roaming horses and burros and their progeny 
on the National Forest System in the areas where they now occur (wild 
horse and burro territory) to maintain a thriving ecological balance 
considering

[[Page 70]]

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



Sec. 222.22  Ownership claims.

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

[[Page 71]]



Sec. 222.23  Removal of other horses and burros.

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

[61 FR 35959, July 9, 1996]



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

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

[[Page 72]]

of wild free-roaming horses and burros shall be limited in sequence, to 
a maximum of 24 hours in transit followed by a minimum of 5 hours of on-
the-ground rest with adequate feed and water.



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

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



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

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



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

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



Sec. 222.28  Agreements.

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



Sec. 222.29  Relocation and disposal of animals.

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

[[Page 73]]

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

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



Sec. 222.30  Disposal of carcasses.

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



Sec. 222.31  Loss of status.

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



Sec. 222.32  Use of non-Forest Service personnel.

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



Sec. 222.33  Management coordination.

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

[[Page 74]]



Sec. 222.34  National Advisory Board.

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



Sec. 222.35  Studies.

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



Sec. 222.36  Arrest.

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



                         Subpart C_Grazing Fees

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



Sec. 222.50  General procedures.

    (a) Fees shall be charged for all livestock grazing or livestock use 
of National Forest system lands, or other lands under Forest Service 
control. An exception is livestock authorized free of charge under 
provisions of Sec. 222.3(c)(2)(ii) (B) through (G).
    (b) Guiding establishment of fees are the law and general 
governmental policy as established by Bureau of the Budget (now, Office 
of Management and Budget) Circular A-25 of September 23, 1959, which 
directs that a fair market value be obtained for all services and 
resources provided the public through establishment of a system of 
reasonable fee charges, and that the users be afford equitable 
treatment. This policy precludes a monetary consideration in the fee 
structure for any permit value that may be capitalized into the permit 
holder's private ranching operation.
    (c) A grazing fee shall be charged for each head month of livestock 
grazing or use. A head month is a month's use and occupancy of range by 
one animal, except for sheep or goats. A full head month's fee is 
charged for a month of grazing by adult animals; if the grazing animal 
is weaned or 6 months of age or older at the time of entering National 
Forest System lands; or will become 12 months of age during the 
permitted period of use. For fee purposes 5 sheep or goats, weaned or 
adult, are equivalent to one cow, bull, steer, heifer, horse, or mule.
    (d) No additional charge will be made for the privilege of lambing 
upon National Forest System lands, or other lands under Forest Service 
control.
    (e) Transportation livestock may be charged for at a special rate, 
and at a minimum established for such use. Fees for horses, mules, or 
burros associated with management of permitted livestock on an 
allotment, or for research purposes and administrative studies, and 
authorized on a charge basis, are determined under provisions of 
paragraph (b) of this section.
    (f) The fees for trailing livestock across National Forest System 
lands will conform with the rates established for other livestock. Where 
practicable, fees for trailing permitted livestock will be covered in 
the regular grazing fee and the crossing period covered in the regular 
grazing period.
    (g) All fees for livestock grazing or livestock use of National 
Forest System lands or other lands under Forest

[[Page 75]]

Service control are payable in advance of the opening date of the 
grazing period, entry, or livestock use unless otherwise authorized by 
the Chief, Forest Service.
    (h) Unauthorized grazing use rate will be determined by establishing 
a base value without giving consideration for those contributions 
normally made by the permittee under terms of the grazing permit. The 
base will be adjusted annually by the same indexes used to adjust the 
regular fee. This rate will also apply to excess number of livestock 
grazing by permittees; to livestock grazed outside the permitted grazing 
season; or to livestock grazed under an unvalidated permit.
    (i) Refunds or credits may be allowed under justifiable conditions 
and circumstances as the Chief, Forest Service, may specify.
    (j) The fee year for the purpose of charging grazing fees will be 
March 1 through the following February.
    (k) The data year for the purpose of collecting beef cattle price 
data for computing indexes will be November 1 through the following 
October and apply to the following fee year.

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



Sec. 222.51  National Forests in 16 Western States.

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

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

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



Sec. 222.52  National Grasslands.

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

[44 FR 24843, Apr. 27, 1979]

[[Page 76]]



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

    (a) Scope. Except as provided in Sec. 222.54 of this subpart, the 
fee charged for commercial livestock grazing use and occupancy on 
National Forest System (NFS) lands in the States of New York, Missouri, 
Vermont, West Virginia, and in the Southern Region shall be determined 
through noncompetitive, fair market value procedures. These rules do not 
apply to grazing fees on National Forest System lands in Oklahoma or 
National Grasslands in Texas. Grazing permits under the noncompetitive 
fee method in the East are subject to the rules governing grazing permit 
administration in Subpart A of this part.
    (b) Applicability. The rules of this section apply to the 
establishment of grazing fees for existing permittees in the Eastern and 
Southern Regions on National Forest System lands, including grazing 
associations in New York and Missouri as of March 1, 1990, to any 
livestock on-and-off permits defined in Subpart A of this part; and to 
any allotments advertised for competitive bidding which were not bid on 
(Sec. 222.54(h)). Noncompetitive permits vacated or terminated by an 
existing permittee and any new allotments created after the effective 
date of this rule shall be offered on a competitive bid basis as 
specified in Sec. 222.54 of this subpart. As provided in subpart A of 
this part, holders of term permits have first priority for receipt of a 
new permit.
    (c) Fee System. The grazing fee charged under this section shall be 
based on fair market value, as determined by: Using comparable private 
grazing lease rates, adjusted for the difference in the costs of grazing 
comparable private leased lands and National Forest System lands, or by 
reference to prevailing prices in competitive markets for other Federal 
or State leased grazing lands that are the same or substantially similar 
to grazing lands offered or administered by the Forest Service in the 
East with comparability adjustments as appropriate. Comparable grazing 
lease rates shall be adjusted for the difference between the total costs 
of operating on leased grazing lands and the total costs (other than 
grazing fee costs) of operating on National Forest System lands.
    (1) Establishing Base Grazing Value. (i) The Chief of the Forest 
Service, or an authorized officer to whom such authority has been 
delegated, shall determine an estimated base market value of grazing use 
and occupancy on National Forest System lands in the Eastern States for 
the following designated subregions:
    (A) Corn Belt (Illinois, Indiana, Missouri, and Ohio);
    (B) Lake States (Michigan, Minnesota, and Wisconsin);
    (C) Northeast (Maine, New Hampshire, New York, Pennsylvania, and 
Vermont);
    (D) Appalachia (Kentucky, North Carolina, Tennessee, Virginia, and 
West Virginia);
    (E) Southeast/Delta (Alabama, Arkansas, Georgia, Louisiana, 
Mississippi, South Carolina, and Texas); and
    (F) Florida.
    (ii) The Chief or authorized officer shall revise or update 
estimated market values of grazing use and occupancy, as necessary to 
respond to significant changes in the agricultural economy in the East, 
and to ensure that fees represent fair market value.
    (iii) The Chief, or an authorized officer to whom authority has been 
delegated, where sufficient market data exist, may establish the base 
grazing value for grazing allotments using comparable, local lease rates 
for private grazing lands.
    (2) Annual Adjustment of Base Grazing Value. To maintain currency 
with the private grazing lease market, the respective base grazing 
value(s) established for grazing permits under this section shall be 
annually adjusted through a hay price index, by respective subregion. 
The hay price index means the weighted average selling price of ``other 
baled hay,'' computed by the National Agricultural Statistics Service of 
the U.S. Department of Agriculture, by designated State and subregion. 
This index shall be based on 3-year average hay prices and annually 
reflect the percentage change in the cost of alternative livestock feed.
    (3) Computation of Annual Grazing Fee--(i) Annual Fee Basis. The 
annual

[[Page 77]]

grazing fee shall equal the base grazing value, adjusted by the current 
period's hay price index, less the value of any agency required range 
improvements.
    (ii) Grazing Fee Credits for Range Improvements. Any requirements 
for permittee construction or development of range improvements shall be 
identified through an agreement and incorporated into the grazing 
permit, with credits for such improvements to be allowed toward the 
annual grazing fee. Fee credits shall be allowed only for range 
improvements which the Forest Service requires an individual permittee 
to construct or develop on a specific allotment to meet the management 
direction and prescriptions in the relevant forest land and resource 
management plan and allotment management plan. These improvements must 
involve costs which the permittee would not ordinarily incur under the 
grazing permit, must be of tangible public benefit, and must enhance 
management of vegetation for resource protection, soil productivity, 
riparian, watershed, and wetland values, wildlife and fishery habitat, 
or outdoor recreation values. Maintenance of range improvements 
specified in allotment management planning documents or the grazing 
permit, and other costs incurred by the permittee in the ordinary course 
of permitted livestock grazing, do not qualify for grazing fee credits.
    (4) Implementation. The grazing fee formula provided by this section 
shall be used to calculate fees for the 1990 grazing fee year. Where 
implementation would raise fees, the increase shall be phased in over a 
5-year period. Full fair market value will be reached in 5 years, 
beginning in 1990.

[55 FR 2650, Jan. 26, 1990]



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

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

[[Page 78]]

for the grazing fee, and a bid deposit of 10 percent of the total amount 
of the bid.
    (e) Qualifications and Deposit Refunds. Upon opening applicants 
bids, the authorized officer shall determine whether each bidder meets 
the qualifications to hold a permit as set forth in Subpart A of this 
part; and shall refund the deposit to any applicant who is not qualified 
or who does not offer the high bid.
    (f) Permit Issuance. The authorized officer shall issue the grazing 
permit to the qualified high bidder, except as provided in paragraphs 
(f)(1) and (2) of this section. The successful bidder receives the 
privilege of obtaining or renewing a grazing permit and is billed for 
the occupancy offered and forage sold.
    (1) Priority for Reissuance. On allotments where a current permit is 
expiring and competition has been held on a new grazing permit, the 
current grazing permittee shall have priority for retaining the permit. 
Accordingly, an applicant who holds the permit on the allotment under 
bid, who has a satisfactory record of performance under that permit, and 
who is not the higher bidder for the future grazing privileges in the 
specified allotment shall be offered the opportunity to match the high 
bid and thereby retain the permit. Should there be more than one 
existing permittee in the allotment under bid, each shall be offered the 
option of meeting the high bid; if only one current permittee opts to 
meet the high bid, the remaining allowable grazing use, if any, shall be 
awarded to the initial high bidder.
    (2) Identical Bids. In cases of identical bids, the selection of the 
successful applicant shall be made through a drawing.
    (g) Computation of Successful Bidder's Annual Fee--(1) Annual Fee 
Basis. The highest bid received shall establish the base grazing value 
in the initial year of the grazing permit for each allotment offered. 
The annual grazing fee shall equal the base grazing value, adjusted by 
the current period's hay price index for the relevant subregion as 
described in Sec. 222.53(c)(1), and (c)(3), less the value of any 
agency required range improvements. This hay price index shall be based 
on 3-year average hay prices and annually reflect the percent change in 
the cost of alternative livestock feed.
    (2) Grazing Fee Credits for Range Improvements. Any requirements for 
permittee construction or development of range improvements shall be 
identified through an agreement and incorporated into the grazing 
permit, with credits for such improvements to be allowed toward the 
annual grazing fee. Fee credits shall be allowed only for range 
improvements which the Forest Service requires an individual permittee 
to construct or develop on a specific allotment to meet the management 
direction and prescriptions in the relevant forest land and resource 
management plan and allotment management plan. These improvements must 
involve costs which the permittee would not ordinarily incur under the 
grazing permit, must be of tangible public benefit, and must enhance 
management of vegetation for resource protection, soil productivity, 
riparian, watershed, and wetland values, wildlife and fishery habitat, 
or outdoor recreation values. Maintenance of range improvements 
specified in allotment management planning documents or the grazing 
permit, and other costs incurred by the permittee in the ordinary course 
of permitted livestock grazing, do not qualify for grazing fee credits.
    (h) No Bids Received. If qualified sealed bids are not received, the 
authorized officer reserves the right to conduct an oral auction using 
the minimum bid price established under paragraph (b) of this section or 
to establish grazing fees through noncompetitive grazing fee procedures 
specified in Sec. 222.53 of this subpart.

[55 FR 2651, Jan. 26, 1990]



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




                      Subpart A_General Provisions

Sec. 
223.1 Authority to sell timber.
223.2 Disposal of timber for administrative use.
223.3 Sale of seized material.
223.4 Exchange of trees or portions of trees.
223.5 Scope of free use granted to individuals.
223.6 Cutting and removal of timber in free-use areas.

[[Page 79]]

223.7 Permission for free use of timber outside free-use areas.
223.8 Delegations of authority to approve free use by individuals.
223.9 Free use to owners of certain mining claims.
223.10 Free use to Alaskan settlers, miners, residents, and prospectors.
223.11 Free use to other Federal agencies.
223.12 Permission to cut, damage, or destroy trees without 
          advertisement.
223.13 Compliance.
223.14 Where timber may be cut.

                     Subpart B_Timber Sale Contracts

                   Contract Conditions and Provisions

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

                          Appraisal and Pricing

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

                         Advertisement and Bids

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

                           Award of Contracts

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

                         Contract Administration

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

         Subpart C_Suspension and Debarment of Timber Purchasers

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

[[Page 80]]

223.145 Scope of suspension.

          Subpart D_Timber Export and Substitution Restrictions

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

Subpart E [Reserved]

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

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

    Authority: 90 Stat. 2958, 16 U.S.C. 472a; 98 Stat. 2213, 16 U.S.C. 
618, 104 Stat. 714-726, 16 U.S.C. 620-620j, unless otherwise noted.

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



                      Subpart A_General Provisions



Sec. 223.1  Authority to sell timber.

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



Sec. 223.2  Disposal of timber for administrative use.

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



Sec. 223.3  Sale of seized material.

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



Sec. 223.4  Exchange of trees or portions of trees.

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

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

[[Page 81]]



Sec. 223.5  Scope of free use granted to individuals.

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


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

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



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

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

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



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

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



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

    (a) Forest officers whom the supervisor may designate are authorized 
to grant free use of timber to individuals up to $200 in value in any 
one fiscal year. Supervisors may grant permits for material not 
exceeding $5,000 in value. Regional Foresters may approve permits for 
larger amounts, and in times of emergency may delegate authority to 
supervisors for not over $10,000 in value. Prior review by the Chief of 
the Forest Service will be given if the amount involved exceeds $10,000 
in value.
    (b) Regional Foresters may authorize supervisors to permit the 
removal of specific classes of material without scaling or measurement.

[42 FR 28252, June 2, 1977. Redesignated at 49 FR 2760-2761, Jan. 23, 
1984, as amended at 71 FR 525, Jan. 4, 2006]



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

    Free use will be granted to an owner of a mining claim located 
subsequent to July 23, 1955, or of a mining claim which is otherwise 
subject to Sec. ion 4 of the Act of July 23, 1955 (69 Stat. 367), if at 
any time said claim owner requires more timber for his mining 
operations, in connection with that claim, than is available on that 
claim because of Forest Service timber disposal therefrom subsequent to 
location of that claim. He will be granted, free of charge, timber from 
the nearest National Forest land which is ready for harvesting under the 
applicable management plan, substantially equivalent in kind and 
quantity to that estimated by the Forest Service to have been cut under 
Forest Service authorization from the claim subsequent to its location, 
Forest officers may be delegated authority to grant amounts of timber

[[Page 82]]

not in excess of those which these officers are authorized to sell in 
commercial sales.

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



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

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

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



Sec. 223.11  Free use to other Federal agencies.

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

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



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

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

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



Sec. 223.13  Compliance.

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

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



Sec. 223.14  Where timber may be cut.

    (a) The cutting of trees, portions of trees or other forest products 
may be authorized on any National Forest System lands, except for:
    (1) Timber reserved by a grantor of land, during the life of such 
reservation.
    (2) Timber reserved from cutting under other regulations.
    (3) Timber on unpatented mining claims located prior to July 23, 
1955, unless the claimant has executed a waiver pursuant to section 6 of 
the Act of July 23, 1955 (69 Stat. 367), or unless pursuant to a 
proceeding under Sec. ion

[[Page 83]]

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



                     Subpart B_Timber Sale Contracts

                   Contract Conditions and Provisions



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

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



Sec. 223.31  Duration of contracts.

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



Sec. 223.32  Timber sale operating plan.

    Sale contracts with a term of 2 years or more shall provide for the 
filing of an operating plan as soon as practicable after execution of 
the contract, such plan shall be a part of the contract. The plan of 
operation shall be general in nature, outlining the expected timing and 
order of sale development, including such major operations as road 
construction, felling and

[[Page 84]]

removal of timber, distribution of timber, and contractual requirements 
for erosion prevention and slash disposal. The plan of operation and 
revisions thereto shall be subject to concurrence by the Forest Service.



Sec. 223.33  Redetermination of stumpage rates and deposits.

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



Sec. 223.34  Advance payment.

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

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



Sec. 223.35  Performance bond.

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



Sec. 223.36  Volume determination.

    (a) Timber sale contracts may provide for volume determination by 
scaling, measuring, weighing, or counting the logs or other products, or 
by measuring the trees before cutting. If the contract or permit 
provides for the determination of volume by tree measurement and the 
timber has been paid for, the marking or otherwise designating of the 
tree authorizes cutting and removal. Otherwise no timber cut under any 
contract shall be removed from the place designated until it has been 
scaled, measured or counted as provided in the timber sale contract, 
unless such removal is specifically authorized in the contract.
    (b) National Forest timber sold on board foot scale shall be scaled 
by the Scribner Decimal C Log Rule, or if the advertisement and contract 
or permit so state, by the International \1/4\-inch log rule or by the 
International \1/4\-inch Decimal log rule. National Forest timber may 
also be sold by the cubic volume rule or by cords, each as used by the 
Forest Service.



Sec. 223.37  Revegetation of temporary roads.

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



Sec. 223.38  Standards for road design and construction.

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



Sec. 223.39  [Reserved]



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

    Timber sale contracts, permits, and other such instruments, 
authorizing

[[Page 85]]

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



Sec. 223.41  Payment when purchaser elects government road construction.

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

[71 FR 11510, Mar. 8, 2006]



Sec. 223.42  Transfer of effective purchaser credits.

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

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

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



Sec. 223.43  Limitation on amounts of transferred purchaser credit.

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

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

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



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

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

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

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

[[Page 86]]



Sec. 223.45  Definitions applicable to transfer of purchaser credit.

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

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

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



Sec. 223.46  Adjustment of contract termination date.

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



Sec. 223.47  Date of completion of permanent road construction.

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



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

    (a) Contracts for the sale of unprocessed timber from National 
Forest System lands located west of the 100th meridian in the contiguous 
48 States and Alaska, awarded before August 20, 1990, shall include 
provisions implementing the Sec. etary's timber export and substitution 
regulations at subpart D of this part in effect prior to that data. Such 
contracts shall also require purchasers to:
    (1) Submit annually, until all unprocessed timber is accounted for, 
a certified report on the disposition of any unprocessed timber 
harvested from the sale including a description of unprocessed timber 
which is sold, exchanged or otherwise disposed of to another person and 
a description of the relationship with the other person;
    (2) Submit annually, until all unprocessed timber from the sale is 
accounted for, a certified report on the sale of any unprocessed timber 
from private lands in the tributary area which is exported or sold for 
export; and
    (3) Maintain records of all such transactions involving unprocessed 
timber and to make such records available for inspection and 
verification by the Forest Service for up to three (3) years after the 
sale is terminated.

[[Page 87]]

    (b) Contracts for the sale of unprocessed timber from National 
Forest System lands located west of the 100th meridian in the contiguous 
48 States, awarded on or after August 20, 1990, shall include provisions 
implementing the requirements of the Forest Resources Conservation and 
Shortage Relief Act of 1990 (16 U.S.C. 620 et seq.).
    (c) The reporting and recordkeeping procedures in this section 
constitute information collection requirements as defined in 5 CFR part 
1320. These requirements have been approved by the Office of Management 
and Budget and assigned clearance number 0596-0021.

[56 FR 65842, Dec. 19, 1991]



Sec. 223.49  Downpayment.

    (a) For the purposes of this section, the terms listed in this 
paragraph shall have the following meaning:
    (1) Total bid value is the sum of the products obtained by 
multiplying the rate the purchaser bid for each species by the estimated 
volume listed in the contract.
    (2) Ineffective purchaser credit is that portion of the credit 
earned, pursuant to a specific Forest Service timber sale contract for 
construction of specified roads, or for other purposes in such contract, 
that exceeds the current contract value, minus base rate value as 
defined in that contract and, thus, is an amount that cannot be applied 
toward stumpage charges.
    (3) Bid premium is the amount in excess of the advertised value that 
a purchaser bids for timber offered.
    (4) Lump sum timber sales are premeasured sales where the entire 
value of the sale is paid in one payment at time of release for cutting.
    (5) Affiliate. Concerns or individuals are affiliates if directly or 
indirectly, either one controls or has the power to control the other, 
or a third party controls or has the power to control both. In 
determining whether or not affiliation exists, the Forest Service shall 
consider all appropriate factors, including, but not limited to, common 
ownership, common management, and contractual relationships.
    (b) Timber sale contracts shall include provisions that require 
purchasers to make a downpayment in cash or by application of earned 
effective purchaser credit at the time a timber sale contract is 
executed.
    (c) The minimum downpayment shall be equivalent to 10 percent of the 
total advertised value of each sale, plus 20 percent of the bid premium, 
except in those geographic areas where the Chief of the Forest Service 
determines that it is necessary to increase the amount of the 
downpayment in order to deter speculation. To determine the amount of 
the downpayment due on a sale where the timber is measured in units 
other than board feet, the Forest Service shall convert the measure to 
board feet, using appropriate conversion factors with any necessary 
adjustment.
    (d) On scaled sales, a purchaser cannot apply the amount deposited 
as a downpayment to cover other obligations due on that sale until 
stumpage value representing 25 percent of the total bid value of the 
sale has been charged and paid for. On tree measurement sales, a 
purchaser cannot apply the amount deposited as a downpayment to cover 
other obligations due on that sale until stumpage value representing 25 
percent of the total bid value of the sale is shown on the timber sale 
statement of account to have been cut, removed, and paid for. For lump 
sum sales, the downpayment amount may be applied to payment for release 
of the single payment unit.
    (e) A purchaser or any affiliate of that purchaser, awarded a Forest 
Service timber sale contract must meet the additional downpayment 
requirements of paragraph (g) of this section under the following 
circumstances:
    (1) The purchaser or its affiliate after September 29, 1988 has 
failed to perform in accordance with the terms of a Forest Service or 
Bureau of Land Management timber sale contract which results in 
notification by a Contracting Officer that a contract has expired 
uncompleted or is terminated for cause; and
    (2) The estimated value of the unscaled timber on scaled sales, or 
the estimated value of the timber outstanding on tree measurement sales, 
included in those terminated or expired contracts exceeds $100,000, and
    (3) Unpaid damages claimed by the Government remain outstanding 
prior to award of the new sale at issue and

[[Page 88]]

corrective action has not been taken to avoid future deficient 
performance.
    (f) A subsequent final determination by the Contracting Officer or 
by a court of competent jurisdiction that a contract was improperly 
classified under the criteria in paragraph (e) of this section will 
result in the refund or credit of any unobligated portion of the amount 
of downpayment exceeding that required by paragraphs (c) and (d) and the 
limitations of paragraph (h) on application of downpayment shall no 
longer apply.
    (g) Notwithstanding the provisions of paragraphs (c) and (d) of this 
section, a purchaser meeting the criteria of paragraph (e) of this 
section must make a minimum downpayment equal to 20 percent of the total 
advertised value of that sale, plus 40 percent of the total bid premium. 
This higher downpayment requirement applies throughout the National 
Forest System, except in those areas where the Chief of the Forest 
Service determines, before advertisement of the sale, that another 
downpayment rate is necessary to achieve the management objectives of 
the National Forest System.
    (1) In calculating bid premiums for the downpayment requirement, the 
Forest Service shall not include the portion of the bid premium that 
offsets ineffective purchaser credit.
    (2) To determine the amount of the downpayment due on a sale where 
the timber is measured in units other than board feet, the Forest 
Service shall convert the measure to board feet, using appropriate 
conversion factors with any necessary adjustments.
    (h) A purchaser subject to the additional downpayment requirements 
of paragraph (g) of this section cannot apply the amount deposited as a 
downpayment to other uses until:
    (1) On scaled sales, the estimated value of the unscaled timber is 
equal to or less than the amount of the downpayment; or
    (2) On tree measurement sales, the estimated value remaining to be 
cut and removed as shown on the timber sale statement of account is 
equal to or less than the amount of the downpayment.
    (i) For the purpose of releasing funds deposited as downpayment by a 
purchaser subject to paragraph (f) of this section, the Forest Service 
shall compute the estimated value of timber as follows:
    (1) On scaled sales, the estimated value of the unscaled timber is 
the sum of the products obtained by multiplying the current contract 
rate for each species by the difference between the advertised volume 
and the volume that has been scaled of that species.
    (2) On tree measurement sales, the estimated value of the timber 
outstanding (that not shown on the timber sale statement of account as 
cut and removed) is the sum of the products obtained by multiplying the 
current contract rate for each species by the difference between the 
advertised volume and the volume that has been shown on the timber sale 
statement to have been cut and removed of the species. The current 
contract rate for each species is that specified in each Forest Service 
timber sale contract.
    (j) In order to deter speculation, the Chief of the Forest Service 
may increase the period for retention of the downpayment for future 
contracts subject to such criteria as the Chief may adopt after giving 
the public notice and opportunity to comment.

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



Sec. 223.50  Periodic payments.

    (a) For the purposes of this section, the following terms have the 
meaning given:
    (1) Total contract value is the product of the estimated volume of 
the sale multiplied by the rates bid by the purchaser. Total contract 
value excludes required deposits and is determined at bid date.
    (2) Current contract value is the sum of the products of the current 
contract rates and, in a scaled sale, estimated remaining unscaled 
volume or, in a tree measurement sale, the estimated remaining 
quantities by species of included timber meeting utilization standards.
    (3) Normal operating season is the period so specified in a timber 
sale contract.
    (4) Periodic payment(s) is/are amount(s) specified in a timber sale 
contract that a purchaser must pay by

[[Page 89]]

the periodic payment determination date(s) unless reduced by amounts 
paid as stumpage for volume removed.
    (5) A periodic payment determination date is a date specified in a 
timber sale contract upon which the Forest Service will compare the 
payments made by the timber sale purchaser for timber charges 
(stumpage), exclusive of required deposits, with the periodic payment 
amount required as of that date in the contract.
    (b) Except for lump sum sales, each timber sale contract of more 
than one full normal operating season shall provide for periodic 
payments. The number of periodic payments required will be dependent 
upon the number of normal operating seasons within the contract, but 
shall not exceed two such payments during the course of the contract. 
Periodic payments must be made by the periodic payment determination 
date, except that the amount of the periodic payment shall be reduced to 
the extent that timber has been removed and paid for by the periodic 
payment determination date. Should the payment fall due on a date other 
than normal billing dates, the contract shall provide that the payment 
date will be extended to coincide with the next timber sale statement of 
account billing date.
    (1) At a minimum, each such contract shall require an initial 
periodic payment at the midpoint between the specified road completion 
date and the termination date. If there is no road construction 
requirement, payment shall be due at the midpoint between award date and 
the termination date.
    (2) Contracts exceeding 2 full operating seasons shall require an 
additional periodic payment to be due no later than the midpoint of the 
last normal operating season or 12 months from the initial periodic 
payment whichever date is first.
    (c) Each timber sale contract shall require the initial periodic 
payment to equal 35 percent of the total contract value or 50 percent of 
the bid premium, whichever is greater. The amount of this periodic 
payment will be reduced if the payment would result in the purchaser's 
credit balance for timber charges exceeding the current contract value.
    (d) Where an additional periodic payment is required by the timber 
sale contract, this payment will equal 75 percent of the total contract 
value. The amount of this periodic payment will be reduced if the 
payment would result in the purchaser's credit balance for timber 
charges exceeding the current contract value.
    (e) Dates for determining future periodic payments shall be adjusted 
as follows:
    (1) When contract term adjustments are granted under Sec. 223.46,
    (2) When market-related contract term additions are granted under 
Sec. 223.52,
    (3) When urgent removal extensions are granted under Sec. 223.53, 
or
    (4) When extensions in the substantial overriding public interest 
are granted under Sec. 223.115(b). Periodic payment determination dates 
shall not be adjusted when a contract term extension is granted under 
the general authority of Sec. 223.115(a).
    (f) In accordance with 36 CFR 223.52(a), no contract executed before 
July 31, 1991, shall be modified to allow for market-related contract 
term additions unless the purchaser makes a written request to the 
Contracting Officer by December 1, 1991, for a simultaneous modification 
implementing the periodic payment requirements of this section. The 
midpoint payment clause in contracts executed before July 31, 1991, is 
not the ``periodic payment requirement'' mandated by 36 CFR 223.52(a).

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



Sec. 223.51  Bid monitoring.

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

[50 FR 41500, Oct. 11, 1985]

[[Page 90]]



Sec. 223.52  Market-related contract term additions.

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

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

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

[[Page 91]]

contract where the Forest Service determines that the timber is in need 
of urgent removal or that timber deterioration or resource damage will 
result from delay.
    (2) For each additional consecutive quarter, in which a contract 
qualifies for a market-related contract term addition, the Forest 
Service will, upon the purchaser's written request, add an additional 3 
months during the normal operating season to the contract.
    (3) No more than twice the original contract length or 3 years, 
whichever is less, shall be added to a contract's term by market-related 
contract term addition.
    (4) In no event shall a revised contract term exceed 10 years as a 
result of market-related contract term additions.
    (d) Recalculation of periodic payments. Where a contract is 
lengthened as a result of market conditions, any subsequent periodic 
payment dates shall be delayed 1 month for each month added to the 
contract's term.

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



Sec. 223.53  Urgent removal contract extensions.

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

[[Page 92]]

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

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

                          Appraisal and Pricing



Sec. 223.60  Determining fair market value.

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

[61 FR 5685, Feb. 14, 1996]



Sec. 223.61  Establishing minimum stumpage rates.

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

[[Page 93]]

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



Sec. 223.62  Timber purchaser road construction credit.

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



Sec. 223.63  Advertised rates.

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

[71 FR 11510, Mar. 8, 2006]



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

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



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

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

[61 FR 48625, Sept. 16, 1996]

[[Page 94]]



Sec. 223.66  [Reserved]

                         Advertisement and Bids



Sec. 223.80  When advertisement is required.

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



Sec. 223.81  Shorter advertising periods in emergencies.

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

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



Sec. 223.82  Contents of advertisement.

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

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



Sec. 223.83  Contents of prospectus.

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

[[Page 95]]

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

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



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

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

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



Sec. 223.85  Noncompetitive sale of timber.

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

[[Page 96]]

wildlife, and related circumstances arising as a result of the award or 
release of timber sale contracts pursuant to section 2001(k) of Public 
Law 104-19 (109 Stat. 246). Notwithstanding the provisions of paragraph 
(a) of this section or any other regulation in this part, for timber 
sale contracts that have been or will be awarded or released pursuant to 
section 2001(k) of Public Law 104-19 (109 Stat. 246), the Sec. etary of 
Agriculture may allow forest officers to, without advertisement, modify 
those timber sale contracts by substituting timber from outside the sale 
area specified in the contract for timber within the timber sale 
contract area.
    (c) Extraordinary conditions, as provided for in 16 U.S.C. 472a(d), 
includes those conditions under which contracts for the sale or exchange 
of timber or other forest products must be suspended, modified, or 
terminated under the terms of such contracts to prevent environmental 
degradation or resource damage, or as the result of administrative 
appeals, litigation, court orders, or catastrophic events. 
Notwithstanding the provisions of paragraph (a) of this section or any 
other regulation in this part, when such extraordinary conditions exist 
on sales not addressed in paragraph (b) of this section, the Sec. etary 
of Agriculture may allow forest officers to, without advertisement, 
modify those contracts by substituting timber or other forest products 
from outside the contract area specified in the contract for timber or 
forest products within the area specified in the contract. When such 
extraordinary conditions exist, the Forest Service and the purchaser 
shall make good faith efforts to identify replacement timber or forest 
products of similar volume, quality, value, access, and topography. When 
replacement timber or forest products agreeable to both parties is 
identified, the contract will be modified to reflect the changes 
associated with the substitution, including a rate redetermination. 
Concurrently, both parties will sign an agreement waiving any future 
claims for damages associated with the deleted timber or forest 
products, except those specifically provided for under the contract up 
to the time of the modification. If the Forest Service and the purchaser 
cannot reach agreement on satisfactory replacement timber or forest 
products, or the proper value of such material, either party may opt to 
end the search. Replacement timber or forest products must come from the 
same national forest as the original contract, and must meet agency 
requirements for compliance with applicable laws and regulations. 
Replacement timber or forest products must also come from an area 
included in an approved National Environmental Policy Act decision in 
which the appeals process has been exhausted. The value of replacement 
timber or forest products may not exceed the value of the material it is 
replacing by more than 10% or $10,000, whichever is less as determined 
by standard Forest Service appraisal methods.

[61 FR 14621, Apr. 3, 1996, as amended at 71 FR 34826, June 16, 2006]



Sec. 223.86  Bid restriction on resale of noncompleted contract.

    (a) Except as otherwise provided in this section, no bid will be 
considered in the resale of timber remaining from any uncompleted timber 
sale contract from any person, or from an affiliate of such person, who 
failed to complete the original contract:
    (1) Because of termination for purchaser's branch or; or
    (2) Through failure to cut designated timber on portions of the sale 
area by the termination date, unless acceptance of such bid is 
determined to be in the public interest.
    (b) The no bid restriction in the preceding paragraph:
    (1) Shall only apply when 50 percent or more of the timber included 
in the resale is timber remaining from the uncompleted contract and the 
resale is advertised within 3 years of the date the uncompleted contract 
terminated;
    (2) When imposed because of failure to cut designated timber on 
portions of the sale area by the termination date, shall not apply to 
resales of timber for which the original contract was awarded prior to 
April 30, 1972, unless the contract is extended thereafter; and
    (3) Shall not apply to:
    (i) Resales of timber within a sustained yield unit unless 
competition

[[Page 97]]

may be invited under the policy statement for the unit,
    (ii) Resales of timber on contract which would ordinarily have been 
awarded prior to April 30, 1972, if award was delayed through no fault 
of the purchaser, and
    (iii) Resales of timber on contracts not extended because of 
environmental considerations.
    (c) Where a third-party agreement has been approved in accordance 
with Sec. 223.114; the original purchaser shall not be affected by this 
section unless such purchaser is an affiliate of the third party.
    (d) As used in this section, person includes any individual, 
corporation, company, association, firm, partnership, society, joint 
stock company, or other business entity or the successor in interest of 
any of the foregoing business entities. A person is an affiliate when 
either directly or indirectly:
    (1) A person controls or has the power to control the other, or
    (2) A third person or persons control or has the power to control 
both.

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



Sec. 223.87  Requirements of bidders concerning exports.

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

[60 FR 46920, Sept. 8, 1995]



Sec. 223.88  Bidding methods.

    (a) Competitive sales of National Forest timber shall be offered 
through either sealed or oral auction bidding. The method chosen for 
each sale will:
    (1) Insure open and fair competition,
    (2) Insure that the Federal Government receives not less than fair 
market value for the public resource,
    (3) Consider the economic stability of communities whose economies 
are dependent upon National Forest timber, and
    (4) Be consistent with the objectives of the National Forest 
Management Act of 1976, as amended, and other Federal Statutes.
    (b) As a prerequisite to participation in an oral auction, bidders 
shall submit a written sealed bid at least equal to the minimum 
acceptable bid prices specified in the prospectus. No price subsequently 
bid at oral auction shall be accepted if it is less than the written 
sealed bid.
    (c) The Chief, Forest Service, shall specify the use of sealed bids 
or a mix of bidding methods in areas where he has reasonable belief that 
collusive bidding may be occurring or where he determines that less than 
normal competitive bidding is occurring.
    (d) Sealed bids shall be used for sales within Federal Sustained 
Yield Units, except where the policy statement for the Unit restricts 
purchasers of timber within the Unit from buying National Forest timber 
outside the Unit and the Chief determines that oral bidding will protect 
individual communities within the Unit.
    (e) The Chief, Forest Service, may authorize departures from the 
requirements of paragraphs (c) and (d) of this section when he 
determines that departures are necessary to protect the public interest.
    (f) The Chief, Forest Service, may authorize the testing and 
evaluation of alternative bidding methods for National Forest timber.

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



Sec. 223.89  Relation to other bidders.

    Any bidder or applicant for a sale may be required to furnish a 
statement of his relation to other bidders or operators, including, if 
desired by the supervisor or Regional Forester, a certified statement of 
stockholders or members of the firm, and the holders of

[[Page 98]]

bonds, notes or other evidences of indebtedness, so far as known, so 
that the statement will show the extent of the interest of each in the 
bidder or applicant.

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

                           Award of Contracts



Sec. 223.100  Award to highest bidder.

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

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



Sec. 223.101  Determination of purchaser responsibility.

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

[[Page 99]]

    (d) Affiliated concerns, as defined in Sec. 223.49(a)(5) of this 
subpart are normally considered separate entities in determining whether 
the concern that is to perform the contract meets the applicable 
standards for responsibility. However, the Contracting Officer shall 
consider an affiliate's past performance and integrity when they may 
adversely affect the prospective purchaser's responsibility.

[53 FR 33132, Aug. 30, 1988]



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

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

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

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



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

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

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

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

                         Contract Administration



Sec. 223.110  Delegation to regional forester.

    The Chief, Forest Service, after approval of conditions of sale, may 
authorize Regional Foresters formally to execute timber sale contracts 
and related papers in sales exceeding the volume which the Regional 
Forester has been authorized to sell.



Sec. 223.111  Administration of contracts in designated disaster areas.

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

[[Page 100]]

    (1) The sale of such timber will assist in the construction of any 
area of a State damaged by a major disaster,
    (2) The sale of such timber will assist in sustaining the economy of 
such area, or
    (3) The sale of such timber is necessary to salvage the value of 
timber damaged in such major disaster or to protect undamaged timber.
    (d) Any request for relief under paragraph (a) or (b) of this 
section shall be made in writing to the Forest Supervisor having 
administrative responsibility for the land involved.

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



Sec. 223.112  Modification of contracts.

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

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



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

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

[61 FR 64816, Dec. 9, 1996]



Sec. 223.114  Acquisition by third party.

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



Sec. 223.115  Contract extensions.

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



Sec. 223.116  Cancellation.

    (a) Timber sale contracts and permits may be canceled:
    (1) For serious or continued violation of their terms.
    (2) Upon application, or with the consent of the purchaser, when 
such action is of advantage to the United States or not prejudicial to 
its interests.

[[Page 101]]

    (3) Upon application of the purchaser if the value of the timber 
remaining to be cut is diminished materially because of catastrophic 
damage caused by forces beyond the control of the purchaser resulting in 
(i) physical change in the sale area or access to it, or (ii) damage to 
timber remaining to be cut.
    (4) For conviction of violation of criminal statutes or, following 
final agency or judicial determination, of violation of civil standards, 
orders, permits, or others regulations for the protection of 
environmental quality issued by a Federal agency, State agency, or 
political subdivision thereof, in the conduct of operations thereunder, 
on National Forest System land, unless compliance with such laws or 
regulations would preclude performance of other contractual 
requirements.
    (5) Upon determination by the Chief, Forest Service, that operations 
thereunder would result in serious environmental degradation or resource 
damage and with reasonable compensation to the purchaser for unrecovered 
costs incurred under the contract and the difference between the current 
contract value and the average value of comparable National Forest 
timber sold during the preceding 6-month period.
    (b) Cancellation will be by the Chief, Forest Service. Authority to 
cancel contracts under paragraph (a)(1) through (4) of this section may 
be delegated to Regional Foresters for sales within their authorization. 
All contract cancellations under paragraph (a)(5) of this section shall 
be by the Chief, Forest Service, whose decision shall be the final 
agency decision.

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



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

    With respect to sustained yield units established pursuant to the 
provisions of the Act of March 29, 1944 (58 Stat. 132; 16 U.S.C. 583-
583l), the Chief, Forest Service, with authority to delegate to other 
officers and employees of the Forest Service:
    (a) Shall provide that National Forest timber in any sustained yield 
unit shall be available in sufficient amounts to meet the needs of bona 
fide farmers, settlers, miners, residents and prospectors for minerals 
for personal and domestic use as provided by law and by regulation.
    (b) May offer for sale to cooperators, without competition but at 
not less than appraised value, timber on National Forest lands within an 
approved cooperative sustained yield unit; or, if the approved sustained 
yield unit consists entirely of federally owned or administered forest 
land and if necessary for the maintenance of a stable community or 
communities, may offer National Forest timber for sale to responsible 
operators within such community or communities, at not less than 
appraised value but without competition or with competition restricted 
to responsible operators who will manufacture the timber to at least a 
stated degree within the community or communities to be maintained. Each 
such sale which involves more than $500 in stumpage value may be made 
only after notice has been given in advance by such means as may be 
deemed effective in informing the public of the proposed action, 
including in any event, publication, once weekly for four consecutive 
weeks and with additional insertions if needed, in one or more 
newspapers of general circulation in the vicinity of the place where the 
timber is located, of a notice of the proposed sale stating at least:
    (1) The location, estimated quantity and appraised value of the 
timber to be cut;
    (2) The name and address of the proposed purchaser or those of the 
operators among whom bidding is to be restricted;
    (3) The time and place of a public advisory hearing on the proposed 
sale, to be held not earlier than 30 days after the first publication of 
said notice, if requested by the State or county where the timber is 
located or by any other person deemed to have a reasonable interest in 
the proposed sale or in its terms; and
    (4) The title and address of the officer of the Forest Service to 
whom any request for such hearing should be made.

Such requests need be considered only if received at the place 
designated in

[[Page 102]]

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



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

    (a) Decisions subject to appeal. The rules of this section govern 
appeal of recomputation decisions related to structural, special, or 
market changes or the scheduled 5-year recomputations of the small 
business share of National Forest System timber sales. Certain decisions 
related to recomputation of shares, such as structural change and 
carryover volume, may require two decisions, one to determine that a 
recomputation is needed and the other to recompute the shares. Decisions 
made both at the earlier stage as well as the later stage are 
appealable.
    (b) Manner of giving notice--(1) Predecisional notice and comment. 
The Responsible Official shall provide qualifying timber sale 
purchasers, as defined in paragraph (c)(1) of this section, 30 days for 
predecisional review and comment on any draft decision to reallocate 
shares, including the data used in making the proposed recomputation 
decision.
    (2) Notice of decision. Upon close of the 30-day predecisional 
review period, the Responsible Official shall consider any comments 
received. Within 15 days of the end of the comment period, the 
Responsible Official shall make a decision on the small business shares 
and shall give prompt written notice to all parties on the national 
forest timber

[[Page 103]]

sale bidders list for the affected area. The notice of decision must 
identify the name of the Appeal Deciding Officer, the address, the date 
by which an appeal must be filed, and a source for obtaining the appeal 
procedures information.
    (c) Who may appeal or file written comments as an interested party. 
(1) Only timber sale purchasers, or their representatives, who are 
affected by recomputations of the small business share of timber sales 
as described in paragraph (a) of this section and who have submitted 
predecisional comments pursuant to paragraph (b)(1) of this section, may 
appeal recomputation decisions under this section or may file written 
comments as an interested party.
    (2) Interested parties are defined as the Small Business 
Administration and those timber sale purchasers, or their 
representatives, who are affected by recomputations of the small 
business share of timber sales as described in paragraph (a) of this 
section and who have individually, or through an association to which 
they belong, submitted predecisional comments pursuant to paragraph 
(b)(1) of this section.
    (i) A timber sale purchaser may submit comments on an appeal as an 
interested party if an association to which the purchaser belongs filed 
predecisional comment but later decides not to appeal or not to file 
comments as an interested party.
    (ii) A timber sale purchaser, who is a member of an association that 
appeals a decision, may not file a separate appeal unless that purchaser 
filed separate predecisional comment under paragraph (b)(1).
    (3) Interested parties who submit written comments on an appeal 
filed by another party may not continue an appeal if the appellant 
withdraws the appeal.
    (d) Level of appeal. Only one level of review is available for 
appeal of decisions pertaining to recomputations under the Small 
Business Timber Sale Set-aside Program. The Appeal Deciding Officer is 
the official one level above the level of the Responsible Official who 
made the recomputation of shares decision. The Responsible Official is 
normally the Forest Supervisor; thus, the Appeal Deciding Officer is 
normally the Regional Forester. However, when the Regional Forester 
makes recomputation decisions, the Appeal Deciding Officer is the Chief 
or such officer at the National headquarters level as the Chief may 
designate.
    (e) Filing procedures. In order to file an appeal under this 
section, an appellant must file a notice of appeal, as specified in the 
notice of decision, with the Appeal Deciding Officer within 20 days of 
the date on the notice of the decision. This date must be specified in 
the notice of decision given pursuant to paragraph (b)(2) of this 
section. Written comments filed by an interested party in response to an 
appeal must be filed within 15 days after the close of the appeal filing 
period.
    (f) Content of notice of appeal. (1) It is the responsibility of the 
appellant to provide sufficient narrative evidence and argument to show 
why a recomputation decision by the Responsible Official should be 
reversed or changed.
    (2) An appellant must include the following information in a notice 
of appeal:
    (i) The appellant's name, mailing address, and daytime telephone 
number;
    (ii) The title or type of recomputation decision involved, the date 
of the decision, and the name of the Responsible Official;
    (iii) A brief description and date of the decision being appealed:
    (iv) A statement of how the appellant is adversely affected by the 
decision being appealed;
    (v) A statement of the facts in dispute regarding the issue(s) 
raised by the appeal;
    (vi) If relevant, any specific references to any law, regulation, or 
policy that the appellant believes to have been violated and the basis 
for such an allegation;
    (vii) A statement as to whether and how the appellant has tried to 
resolve with the Responsible Official the issue(s) being appealed, 
including evidence of submission of written comments at the 
predecisional stage as provided by paragraph (a) of this section, the 
date of any discussion, and the outcome of that meeting or contact; and

[[Page 104]]

    (viii) A statement of the relief the appellant seeks.
    (g) Time periods and timeliness. (1) All time periods applicable to 
this section will begin on the first day following a decision or action 
related to the appeal.
    (2) Time periods applicable to this section are computed using 
calendar days. Saturdays, Sundays, or Federal holidays are included in 
computing the time allowed for filing an appeal; however, when the 
filing period would expire on a Saturday, Sunday, or Federal holiday, 
the filing time is automatically extended to the end of the next Federal 
working day.
    (3) It is the responsibility of those filing an appeal to file the 
notice of appeal by the end of the filing period. In the event of 
questions, legible postmarks on a mailed appeal or the time and date 
imprint on a facsimile appeal will be considered evidence of timely 
filing. Where postmarks or facsimile imprints are illegible, the Appeal 
Deciding Officer shall rule on the timeliness of the notice of appeal.
    (4) The time period for filing a notice of appeal is not extendable.
    (h) Dismissal without decision. The Appeal Deciding Officer shall 
dismiss an appeal and close the record without a decision in any of the 
following circumstances:
    (1) The appellant is not on the timber sale bidders list for the 
area affected by the recomputation decision;
    (2) The appellant's notice of appeal is not filed within the 
required time period;
    (3) The appellant's notice of appeal does not contain responses 
required by paragraphs (f)(2)(i) through (f)(2)(viii) of this section; 
or
    (4) The appellant did not submit written comments on the proposed 
decision of the new recomputed shares as described in paragraph (c) of 
this section.
    (i) Appeal record. The appeal record consists of the written 
decision being appealed, any predecisional comments received, any 
written comments submitted by interested parties, any other supporting 
data used to make the decision, the notice of appeal, and, if prepared, 
a responsive statement by the Responsible Official which addresses the 
issues raised in the notice of appeal. The Responsible Official must 
forward the record to the Appeal Deciding Officer within 7 days of the 
date the notice of appeal is received. A copy of the appeal record must 
be sent to the appellant at the same time.
    (j) Appeal decision--(1) Responsive statement for appeal decision. 
The Appeal Deciding Officer may request the Responsible Official to 
prepare a responsive statement. However, if the information in the files 
clearly demonstrates the rationale for the Responsible Official's 
decision, then a responsive statement addressing the points of the 
appeal is not necessary.
    (2) Appeal issue clarification. For clarification of issues raised 
in the appeal, the Appeal Deciding Officer may request additional 
information from either the Responsible Official, the appellant, or an 
interested party who has submitted comments on the appeal. At the 
discretion of the Appeal Deciding Officer, an appellant or interested 
party may be invited to discuss data relevant to the appeal. Information 
provided to clarify issues or facts in the appeal must be based upon 
information previously documented in the file or appeal. Any information 
provided as a result of the Appeal Deciding Officer's request for more 
information must be made available to all parties, that is, to the 
Responsible Official, the appellant, and interested parties who have 
submitted comments on the appeal. All parties will have 5 days after the 
Appeal Deciding Officer receives the additional information to review 
and comment on the information, and the appeal decision period will be 
extended 5 additional days.
    (3) Issuance of final decision. The Appeal Deciding Officer shall 
review the decision and appeal record and issue a written appeal 
decision to the parties within 30 days of the close of the appeal period 
except that this period must be extended to 35 days when additional 
information is requested by the Appeal Deciding Officer. The Appeal 
Officer may affirm or reverse the Responsible Official's decision, in 
whole or in part. There is no extension of the time period for rendering 
an appeal decision.
    (k) Implementation of decisions during pendency of appeal. 
Recomputation of

[[Page 105]]

shares arising from a scheduled 5-year recomputation are effective on 
April 1 following the end of the 5-year period being considered. If an 
appeal that may affect the shares for the next 5-year period is not 
resolved by the April 1 date, the share decision announced by the 
Responsible Official must be implemented. If an appeal decision results 
in a change in the shares, the revised total share of the Small Business 
Timber Sale Set-aside Program must be accomplished during the remaining 
portion of the 5-year period.
    (l) Timber sale set-aside policy changes. Timber purchasers shall 
receive an opportunity, in accordance with all applicable laws and 
regulations, to review and comment on significant changes in the Small 
Business Timber Sale Set-aside Program or policy prior to adoption and 
implementation.
    (m) Information collection requirements. The provisions of paragraph 
(f) of this section specify the information that appellants must provide 
when appealing decisions pertaining to recomputation of shares. As such, 
these rules contain information requirements as defined in 5 CFR Part 
1320. These information requirements have been approved by the Office of 
Management and Budget and assigned control number 0596-0141.

[64 FR 411, Jan. 5, 1999]



         Subpart C_Suspension and Debarment of Timber Purchasers

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



Sec. 223.130  Scope.

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

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



Sec. 223.131  Applicability.

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

[60 FR 46921, Sept. 8, 1995]



Sec. 223.132  Policy.

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



Sec. 223.133  Definitions.

    As used in this subpart, the following terms shall have the meanings 
set forth below:
    Adequate evidence means information sufficient to support the 
reasonable belief that a particular act or omission has occurred.
    Affiliates are business concerns or persons, whose relationship 
entails the following:

[[Page 106]]

    (a) Either party directly or indirectly controls or has the power to 
control the other; or
    (b) A third party directly or indirectly controls or has the power 
to control both. In determining whether affiliation exists, the Forest 
Service shall consider all appropriate factors, including, but not 
limited to, common ownership, common management, common facilities, and 
contractual relationships. Further guidelines to be used in determining 
affiliation are found in the Small Business Administration regulation in 
13 CFR 121.401.
    Civil judgment means a judgment or finding of a civil offense by any 
court of competent jurisdiction.
    Control means the power to exercise, directly or indirectly, a 
controlling influence over the management, policies, or activities of an 
individual or business concern, whether through ownership of voting 
securities, through one or more intermediary individuals or business 
concerns, or otherwise.
    Conviction means a judgment or conviction of a criminal offense by 
any court of competent jurisdiction, whether entered upon a verdict or a 
plea, and includes a conviction entered upon a plea of nolo contendere.
    Debarment means action taken by a debarring official under 
Secs. 223.136 through 223.140 to exclude a purchaser from Forest 
Service timber sale contracts for a reasonable, specified period of 
time. A purchaser so excluded is ``debarred.'' Debarment pursuant to the 
Forest Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 
620, et seq. means action taken by a debarring official under Secs. 
223.136-223.140 to exclude persons from entering into any contract for 
the purchase of unprocessed timber originating from Federal lands and 
from taking delivery of unprocessed Federal timber purchased by another 
party for the period of debarment.
    Debarring official means the Chief of the Forest Service or the 
Deputy Chief, National Forest System, or the Associate Deputy Chief, 
Resources Divisions, National Forest System.
    Federal lands means, for the purposes of the Forest Resources 
Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.), 
lands that are owned by the United States, but does not include any 
lands the title to which is:
    (a) Held in trust by the United States for the benefit of any Indian 
tribe or individual,
    (b) Held by any Indian tribe or individual subject to a restriction 
by the United States against alienation, or
    (c) Held by any Native Corporation as defined in section 3 of the 
Alaska Native Claims Settlement Act (43 U.S.C. 1602).
    Indictment means indictment for a criminal offense. An information 
or other filing by competent authority charging a criminal offense shall 
be given the same effect as an indictment.
    Legal proceedings means any civil judicial proceeding to which the 
Government is a party or any criminal proceeding. The term includes 
appeals from such proceedings.
    Notice means a written communication served in person or sent by 
certified mail, return receipt requested, or its equivalent, to the last 
known address of a party, its identified counsel, or agent for service 
of process. In the case of an organization, such notice may be sent to 
any partner, principal officer, director, owner or co-owner, or joint 
venturer.
    Person means any individual, partnership, corporation, association, 
or other legal entity, and includes any subsidiary, subcontractor, 
parent company, and business affiliates.
    Preponderance of the evidence means proof by information that, 
compared with that opposing it, leads to the conclusion that the fact at 
issue is more probably true than not.
    Purchaser means any person, who:
    (a) Submits bids for, is awarded, or reasonably may be expected to 
submit bids for or be awarded, a Forest Service timber sale contract;
    (b) Conducts business with the Forest Service as an agent or 
representative of another timber sale purchaser; or
    (c) For the purposes of the Forest Resources Conservation and 
Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.) (Act), any person 
who violates the Act or any regulation or contract issued under the Act, 
or any person who may reasonably be expected to enter into a contract to 
purchase or receive delivery of unprocessed Federal timber in

[[Page 107]]

violation of the Act or its implementing regulations.
    Suspending official means the Chief of the Forest Service or the 
Deputy Chief, National Forest System or the Associate Deputy Chief, 
Resources Divisions, National Forest System.
    Suspension means action taken by a suspending official under 
Secs. 223.141 through 223.145 to immediately exclude a purchaser 
from bidding on or purchasing National Forest System timber for a 
temporary period of time pending completion of an investigation and such 
legal or debarment proceedings as may ensue; a purchaser so excluded is 
suspended.

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



Sec. 223.134  List of debarred and suspended purchasers.

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



Sec. 223.135  Effect of listing.

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

[60 FR 46921, Sept. 8, 1995]



Sec. 223.136  Debarment.

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

[[Page 108]]

shall preclude such person from entering into any contract to purchase 
unprocessed timber originating from Federal lands, and from taking 
delivery of unprocessed Federal timber from any other party who 
purchased such timber.

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



Sec. 223.137  Causes for debarment.

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

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



Sec. 223.138  Procedures for debarment.

    (a) Investigation and referral. Information which may be sufficient 
cause for debarment of a timber sale purchaser and affiliates shall be 
reported to the Forest Service Debarring Official. Generally, such 
information should be referred through the Forest Supervisor and the 
Regional Forester. The referral shall be accompanied by a complete 
statement of the facts supported by appropriate exhibits and a 
recommendation for action. Where the statement of facts indicates a 
possible criminal offense, except possible antitrust violations, the 
debarring official shall notify the Office of Inspector General, USDA. 
Where the statement of facts indicates a possible antitrust violation, 
the debarring official shall notify the Antitrust Division, Department 
of Justice.

[[Page 109]]

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

[[Page 110]]

    (B) The debarring official may refer matters involving disputed 
material facts to another official for findings of fact. The debarring 
official may reject any such findings, in whole or in part, only after 
specifically determining them to be arbitrary and capricious or clearly 
erroneous.
    (C) The debarring official's decision shall be made after the 
conclusion of the proceedings with respect to disputed facts.
    (6) Standard of evidence. In any action in which the proposed 
debarment is not based upon a conviction or civil judgment, the cause 
for debarment must be established by a preponderance of the evidence. In 
any action in which the proposed debarment is based upon a conviction or 
civil judgment, the standard shall be deemed to have been met.
    (7) Notice of debarring official's decision. (i) The purchaser and 
any affiliates involved shall be given prompt notice of the debarring 
official's decision by certified mail, return receipt requested. If the 
debarring official decides to impose debarment, the notice shall:
    (A) Refer to the notice of proposed debarment:
    (B) Specify the reasons for debarment;
    (C) State the period of debarment, including effective dates (see 
Sec. 223.139); and
    (D) Specify any limitations on the terms of the debarment.
    (ii) The debarring official shall also promptly notify Regional 
Foresters and Forest Supervisors of the decision.

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



Sec. 223.139  Period of debarment.

    (a) Debarment shall be for a period commensurate with the 
seriousness of the cause(s):
    (1) The debarring official shall consider any suspension period or 
period since issuance of the notice of proposed debarment in determining 
the debarment period.
    (2) Generally, a debarment for those causes listed at Sec. 223.137 
(a)-(f) of this subpart should not exceed three (3) years, except as 
otherwise provided by law.
    (3) A debarment for the causes listed at Sec. 223.137(g) shall not 
exceed five (5) years.
    (b) The debarring official may extend the debarment for those causes 
listed at Sec. 223.137 (a)-(f) of this subpart for an additional period 
if that official determines that an extension is necessary to protect 
the Government's interest. However:
    (1) A debarment may not be extended solely on the basis of the facts 
and circumstances upon which the initial debarment action was based;
    (2) If debarment for an additional period is necessary, the 
debarring official shall initiate and follow the procedures in Sec. 
223.138 to extend the debarment.
    (c) The debarring official may consider terminating the debarment or 
reducing the period or extent of debarment, upon the purchaser's 
request, supported by documentation, for reasons such as:
    (1) Newly discovered material evidence;
    (2) Reversal of the conviction or judgment upon which the debarment 
was based;
    (3) Bona fide change in ownership or management;
    (4) Elimination of other causes for which the debarment was imposed; 
or
    (5) Other reasons the debarring official deems appropriate.
    (d) The debarring official shall make final disposition of a 
reconsideration request under paragraph (c) of this section in writing 
within 30 working days of receipt of the reconsideration request and 
supporting documentation, unless the debarring official extends this 
period for good cause. The notice of the decision shall set forth the 
reasons for granting or denying the request.

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



Sec. 223.140  Scope of debarment.

    (a) Scope in general. (1) Debarment of a purchaser constitutes 
debarment of all divisions or other organizational elements of the 
purchaser, unless the debarment decision is limited by its terms to 
specific divisions, organizational elements, or classes of sales.

[[Page 111]]

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



Sec. 223.141  Suspension.

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



Sec. 223.142  Causes for suspension.

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



Sec. 223.143  Procedures for suspension.

    (a) Investigation and referral. Information which may be sufficient 
cause for suspension under Sec. 223.142 shall be reported to the Forest 
Service Suspending Official. Generally, such information should be 
referred through the

[[Page 112]]

Forest Supervisor and the Regional Forester. The referral shall be 
accompanied by a complete statement of the facts supported by 
appropriate exhibits and a recommendation for action. Where the 
statement of facts indicates a possible criminal offense, except 
possible antitrust violations, the suspending official shall notify the 
Office of Inspector General, USDA. Where the statement of facts 
indicates a possible antitrust violation, the suspending official shall 
notify the Antitrust Division, Department of Justice.
    (b) Decisionmaking process--(1) Notice of suspension. When a 
purchaser and any specifically named affiliates are suspended, the 
suspending official shall so advise the purchaser and any specifically 
named affiliate immediately by certified mail, return receipt requested. 
Such notice shall specify:
    (i) That they have been suspended as of the date of the notice;
    (ii) That the suspension is based on an indictment or other adequate 
evidence that the purchaser has committed irregularities,
    (A) Of a serious nature in business dealings with the Government, or
    (B) Seriously reflecting on the propriety of further Government 
dealings with the recipient;
    (iii) Any such irregularities shall be described in terms sufficient 
to place the recipient on notice without disclosing the Government's 
evidence;
    (iv) That the suspension is for a temporary period of time pending 
the completion of an investigation and such legal proceedings as may 
ensue;
    (v) The cause(s) relied upon under Sec. 223.142 for imposing 
suspension;
    (vi) The effect of the suspension (see Sec. 223.135);
    (vii) The specific procedures governing suspension decisionmaking in 
Sec. 223.143 (b)(1) through (b)(6).
    (2) Submission in opposition. Within 30 calendar days after receipt 
of the notice of suspension, the purchaser or any specifically named 
affiliate may submit, in person, in writing, or through a 
representative, information and argument in opposition to the 
suspension, including any additional specific information that raises a 
genuine dispute over material facts.
    (3) Informal hearing. Pursuant to paragraph (b)(2) of this section, 
respondent may request an informal hearing with the suspending official. 
The informal hearing shall be held within 20 calendar days from the date 
the request is received. The suspending official may postpone the date 
of the hearing if the respondent requests a postponement in writing. At 
the hearing, the respondent, appearing personally or through an attorney 
or other authorized representative, may informally present and explain 
evidence that causes for suspension do not exist, evidence of any 
mitigating factors, and arguments concerning the imposition, scope, 
duration or effects of suspension. A transcript of the informal hearing 
shall not be required.
    (4) Additional proceedings as to disputed material facts. (i) If the 
suspending official finds that there exists a genuine dispute over facts 
material to the suspension, respondent(s) shall be afforded an 
opportunity to appear with counsel, submit documentary evidence, present 
witnesses, and confront any person the Forest Service presents, unless--
    (A) The action is based on an indictment; or
    (B) A determination is made, on the basis of Department of Justice 
advice, that the substantial interests of the Government in pending or 
contemplated legal proceedings based on the same facts as the suspension 
would be prejudiced.
    (ii) If appropriate, the respondent may request a fact-finding 
conference on disputed material facts. Such a conference shall be held 
within 20 calendar days from the date the request is received unless 
mutually agreed otherwise. The fact-finding conference shall conform 
with the following requirements:
    (A) At least 10 days before the fact-finding conference, the 
suspending official shall send the respondent a copy of all documents in 
the administrative record as of the date of transmittal and not objected 
to by the Department of Justice.
    (B) At the conference, the respondent shall have the opportunity to 
appear

[[Page 113]]

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



Sec. 223.144  Period of suspension.

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



Sec. 223.145  Scope of suspension.

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



          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

[[Page 114]]

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.
    (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

[[Page 115]]

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 Sec. etary to be surplus 
to domestic needs.

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

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



Sec. 223.163  [Reserved]



Sec. 223.164  Penalty for falsification.

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

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

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

Subpart E [Reserved]



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

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



Sec. 223.185  Scope and applicability.

    This subpart implements provisions of the Forest Resources 
Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.) 
that became effective upon enactment or as otherwise specified in the 
Act. As of September 8, 1995, this subpart applies to unprocessed timber 
originating from private lands

[[Page 116]]

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 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,

[[Page 117]]

    (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;
    (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 Sec. etary 
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

[[Page 118]]

the contiguous 48 States and engages in exporting or selling for export, 
unprocessed timber originating from private lands within the same 
geographic and economic area; or
    (2) A person acquires, directly or indirectly, unprocessed timber 
from Federal lands west of the 100th meridian in the contiguous 48 
States and, during the preceding 24-month period, exported unprocessed 
timber originating from private lands; or
    (3) A person exports or sells for export, unprocessed timber 
originating from private lands within the same geographic and economic 
area in the same calendar year that the person has unprocessed timber 
originating from Federal lands in the person's possession or under 
contract; or
    (4) A person purchases, directly or indirectly, unprocessed timber 
originating from Federal lands if such person sells or otherwise 
transfers unprocessed timber that originates from private lands west of 
the 100th meridian in the contiguous 48 States and that requires 
domestic processing, to a third party if that third party or successive 
parties export that unprocessed private timber. A third party or 
successive parties who acquire such unprocessed timber that originates 
from private lands west of the 100th meridian in the contiguous 48 
States and that requires domestic processing may not export such timber.
    Transaction means an arrangement involving the transfer of 
unprocessed timber.
    Transaction statement is a signed copy of one of the transaction 
reporting forms in 36 CFR 223.193 and 223.194.
    Transfer means to pass title, sell, trade, exchange, or otherwise 
convey unprocessed timber to another person.
    Unprocessed timber means trees or portions of trees or other 
roundwood not processed to standards and specifications suitable for end 
product use and intended for remanufacture. Unprocessed timber does not 
include products intended for remanufacture that meet the criteria 
listed in Sec. 223.187(a) (2) or (3). For the purposes of reporting and 
identifying under Secs. 223.193, 223.194 and 223.195, unprocessed 
timber also means timber products listed in Sec. 223.187 of these 
regulations, and other timber products including house logs that are 
part of a structure kit, that are indistinguishable from other 
unprocessed timber.



Sec. 223.187  Determinations of unprocessed timber.

    (a) All species except western red cedar. Unprocessed timber, as 
defined in Sec. 223.186 of this Subpart, does not include timber 
processed into any one of the following:
    (1) Lumber or construction timbers, except western red cedar, 
meeting current American Lumber Standards Grades or Pacific Lumber 
Inspection Bureau Export R or N list grades, sawn on 4 sides, not 
intended for remanufacture. To determine whether such lumber or 
construction timbers meet this grade and intended use standard, the 
shipper of record must have in its possession for each shipment or 
order, and available for inspection upon the request of the Forest 
Service:
    (i) A legible copy of a lumber inspection certificate certified by a 
lumber inspection/grading organization generally recognized by the 
industry as setting a selling standard; and,
    (ii) A statement by the manufacturer certifying under the penalties 
provided in section 492 of the Act (16 U.S.C. 620d) and the False 
Statements Act (18 U.S.C. 1001) that the products in the shipment or 
order are intended to be used as shipped, are manufactured into 
products, or processed into pulp, and are not to be manufactured into 
other products. The certification statements shall be made in accordance 
with paragraph (b) of this section. The certification statements in 
paragraph (b) of this section are not required if the lumber or 
construction timbers described in paragraph (a)(1) of this section or 
the pulpwood bolts described in paragraph (a)(8) of this section 
otherwise may be exported without regard to an intent to remanufacture 
or process into pulp. For instance, because the timber originates from 
private land from which timber may be exported.
    (2) Lumber, construction timbers, or cants for remanufacture, except 
western red cedar, meeting current American Lumber Standards Grades or 
Pacific Lumber Inspection Bureau Export R or N list clear grades, sawn 
on 4

[[Page 119]]

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 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

[[Page 120]]

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 ------ 
(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

[[Page 121]]

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 Sec. etary 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 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 Sec. etary 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 Sec. ion 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

[[Page 122]]

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

    (3) The certification must have been signed by the person making 
such certification or, in the case of a corporation, by its Chief 
Executive Officer.
    (e) Indirect substitution prohibition. No person may purchase from 
any other person unprocessed timber originating from Federal lands west 
of the 100th meridian in the contiguous 48 States if such person would 
be prohibited by paragraph (a) of this section from purchasing such 
timber directly from a Department or agency of the United States, 
pursuant to Sec. 490(b) of the Forest Resources Conservation and 
Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.). The prohibition in 
this paragraph does not apply to the following:
    (1) To the acquisition of western red cedar, which is domestically 
processed into finished products.
    (2) To a person who acquires unprocessed timber originating from 
Federal lands within an approved sourcing

[[Page 123]]

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. 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

[[Page 124]]

such exporting as certified will be a violation of Sec. ion 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 Sec. etary 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 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 Sec. ion 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

[[Page 125]]

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 
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

[[Page 126]]

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 
Sec. etary'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 
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:

[[Page 127]]

    (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 Sec. etary 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 Sec. etary 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 Sec. etary 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 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 
Sec. etary would have approved, as shown on the sourcing area map 
provided by the Sec. etary, 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,

[[Page 128]]

    (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 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 Sec. etary 
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

[[Page 129]]

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 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;

[[Page 130]]

    (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;
    (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;

[[Page 131]]

    (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, 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

[[Page 132]]

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 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

[[Page 133]]

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 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:


[[Page 134]]


    ``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 Sec. etary 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 Sec. etary 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 Sec. etary 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 Sec. etary may:
    (1) Assess against such person a civil penalty of not more than 
$500,000, if the Sec. etary 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 Sec. etary 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 Sec. etary determines that the person 
should have known that the action constituted a violation.
    (c) Penalties not exclusive and judicial review. A penalty assessed 
under paragraph (a) or (b) of this section shall not be exclusive of any 
other penalty provided by law, and shall be subject to review in an 
appropriate United States district court.



Sec. 223.197  Civil penalty assessment procedures.

    Adjudicatory procedures for hearing alleged violations of this Act 
and its implementing regulations and assessing penalties shall be 
conducted under the rules of practice governing formal adjudicatory 
proceedings instituted by the Sec. etary. 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.

[[Page 135]]



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 Sec. etary 
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 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.

[[Page 136]]

    (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 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.

[[Page 137]]

    (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.



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.

[[Page 138]]

228.55 Cancellation or suspension.
228.56 Operating plans.

                      Types and Methods of Disposal

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

               Subpart D_Miscellaneous Minerals Provisions

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

                     Subpart E_Oil and Gas Resources

228.100 Scope and applicability.
228.101 Definitions.

                                 Leasing

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

              Authorization of Occupancy Within a Leasehold

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

                      Administration of Operations

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

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

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



                      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 Sec. etary 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 Sec. etary 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.

[[Page 139]]

    (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 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.

[[Page 140]]

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

[[Page 141]]

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

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

[[Page 142]]

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



Sec. 228.6  Availability of information to the public.

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



Sec. 228.7  Inspection, noncompliance.

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



Sec. 228.8  Requirements for environmental protection.

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

[[Page 143]]

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



Sec. 228.9  Maintenance during operations, public safety.

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



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

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



Sec. 228.11  Prevention and control of fire.

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



Sec. 228.12  Access.

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

[[Page 144]]

off-road vehicles, be used until the operator has received approval of 
an operating plan in writing from the authorized officer when required 
by Sec. 228.4(a). Proposals for construction, improvement or use of 
such access as part of a plan of operations shall include a description 
of the type and standard of the proposed means of access, a map showing 
the proposed route of access, and a description of the means of 
transportation to be used. Approval of the means of such access as part 
of a plan of operations shall specify the location of the access route, 
design standards, means of transportation, and other conditions 
reasonably necessary to protect the environment and forest surface 
resources, including measures to protect scenic values and to insure 
against erosion and water or air pollution.



Sec. 228.13  Bonds.

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

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



Sec. 228.14  Appeals.

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

[54 FR 3362, Jan. 23, 1989]



Sec. 228.15  Operations within National Forest Wilderness.

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

[[Page 145]]

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



                       Subpart B_Leasable Minerals



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).

[[Page 146]]



Sec. 228.41  Scope.

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

[[Page 147]]

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

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



Sec. 228.42  Definitions.

    For the purposes of this subject, the following terms are defined:
    Acquired National Forest lands. National Forest System lands 
acquired under the Weeks Act of March 1, 1911 (36 Stat. 961), and 
National Forest System lands with Weeks Act status as provided in the 
Act of September 2, 1958 (16 U.S.C. 521a).
    Authorized officer. Any Forest Service officer to whom authority for 
disposal of mineral materials has been delegated.

[[Page 148]]

    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 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 
Secs. 228.47 through 228.56 and other provisions of

[[Page 149]]

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

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



Sec. 228.44  Disposal on existing Federal leased areas.

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



Sec. 228.45  Qualifications of applicants.

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



Sec. 228.46  Application of other laws and regulations.

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

                           General Provisions



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

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



Sec. 228.48  Appraisal and measurement.

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

[[Page 150]]

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



Sec. 228.49  Reappraisal.

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



Sec. 228.50  Production records.

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



Sec. 228.51  Bonding.

    (a) Bond requirements. Before operations may begin under any 
contract or permit, a bond must be furnished to the authorized officer 
to ensure performance of payment (as necessary), reclamation, and other 
conditions of the contract or permit, except as noted in paragraphs (a) 
(1) and (3) of this section, where the authorized officer may waive such 
bonding. If an extension of time is granted as provided in Sec. 
228.53(b), the bond requirements must be recalculated and changed 
accordingly.
    (1) For advance payment contracts for 10,000 cubic yards or more in 
volume (or weight equivalent), a bond of not less than 10 percent of the 
total contract price or the value of the estimated annual production 
(whichever is less), plus the reclamation cost for the area covered by 
annual mining, is required. When the total volume is less than 10,000 
cubic yards, bond requirements, if any, are at the discretion of the 
authorized officer.
    (2) For any 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:

[[Page 151]]

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



Sec. 228.53  Term.

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



Sec. 228.54  Single entry sales or permits.

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



Sec. 228.55  Cancellation or suspension.

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



Sec. 228.56  Operating plans.

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

                      Types and Methods of Disposal



Sec. 228.57  Types of disposal.

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

[[Page 152]]

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



Sec. 228.58  Competitive sales.

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

[[Page 153]]

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



Sec. 228.59  Negotiated or noncompetitive sales.

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

[[Page 154]]

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

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



Sec. 228.60  Prospecting permits.

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



Sec. 228.61  Preference right negotiated sales.

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

[[Page 155]]

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



Sec. 228.62  Free use.

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

[[Page 156]]

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



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

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



Sec. 228.64  Community sites and common-use areas.

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



Sec. 228.65  Payment for sales.

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

[[Page 157]]

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



Sec. 228.66  Refunds.

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



Sec. 228.67  Information collection requirements.

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

[55 FR 51706, Dec. 17, 1990]



               Subpart D_Miscellaneous Minerals Provisions



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

    (a) Mineral activities on valid mining claims in the Misty Fjords 
and Admiralty Island National Monuments must be conducted in accordance 
with regulations in subpart A of this part and with the provisions of 
this section.
    (b) Prior to approving a plan of operations, the authorized officer 
must consider:
    (1) The resources of ecological, cultural, geological, historical, 
prehistorical, and scientific interest likely

[[Page 158]]

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

[51 FR 20827, June 9, 1986]



                     Subpart E_Oil and Gas Resources

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



Sec. 228.100  Scope and applicability.

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



Sec. 228.101  Definitions.

    For the purposes of this subpart, the terms listed in this section 
have the following meaning:
    Authorized Forest officer. The Forest Service employee delegated the 
authority to perform a duty described in these rules. Generally, a 
Regional Forester, Forest Supervisor, District Ranger, or Minerals Staff 
Officer, depending on the scope and level of the duty to be performed.

[[Page 159]]

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

                                 Leasing



Sec. 228.102  Leasing analyses and decisions.

    (a) Compliance with the National Environmental Policy Act of 1969. 
In analyzing lands for leasing, the authorized Forest officer shall 
comply with the National Environmental Policy Act of 1969, implementing 
regulations at 43 CFR parts 1500-1508, and Forest Service

[[Page 160]]

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 Sec. etary of the Interior;
    (2) Lands recommended for wilderness allocation by the Sec. etary 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 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

[[Page 161]]

shall be given unless the plan is amended or revised.
    (2) Ensuring that conditions of surface occupancy identified in 
Sec. 228.102(c)(1) are properly included as stipulations in resulting 
leases.
    (3) Determining that operations and development could be allowed 
somewhere on each proposed lease, except where stipulations will 
prohibit all surface occupancy.

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



Sec. 228.103  Notice of appeals of decisions.

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



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

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

              Authorization of Occupancy Within a Leasehold



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

    (a) Onshore oil and gas orders. The Chief of the Forest Service may 
issue, or cosign with the Director, Bureau of Land Management, Onshore 
Oil and Gas Orders necessary to implement and supplement the regulations 
of this subpart.
    (1) Surface Use Plans of Operations and Master Development Plans. 
Operators shall submit Surface Use Plans of Operations or Master 
Development Plans in

[[Page 162]]

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]



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

[[Page 163]]

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 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) Public notice. The authorized Forest Service officer will give 
public notice of the decision regarding a surface use plan of operations 
and include in that notice whether the decision is appealable under the 
applicable Forest Service appeal procedures.
    (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]



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.

[[Page 164]]

    (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 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

[[Page 165]]

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 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

[[Page 166]]

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.



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

[[Page 167]]

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 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

[[Page 168]]

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 in material noncompliance with a reclamation requirement or 
other standard applicable to the lease, the Sec. etary 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

[[Page 169]]

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 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 Sec. etary 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 Sec. etary 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

[[Page 170]]

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 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 Sec. etary 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.

[[Page 171]]



Sec. 228.116  Information collection requirements.

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



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




                 Subpart A_Stewardship Incentive Program

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

        Subpart B_Urban and Community Forestry Assistance Program

230.20 Scope and authority.
230.21 Implementation of the program.

                Subpart C_Forest Land Enhancement Program

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

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

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

[[Page 172]]



                 Subpart A_Stewardship Incentive Program



Sec. 230.1  Purpose and scope.

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



Sec. 230.2  Definitions.

    As used in this subpart, the following terms shall mean:
    Act means the Cooperative Forestry Assistance Act as amended (16 
U.S.C. 2101, et seq).
    Assignee means any person, corporation, government agency, or other 
legal entity to whom a landowner transfers legal rights to receive all 
or part of federal cost-share payments.
    Chief means the Chief of the Forest Service.
    Committee means the State Forest Stewardship Coordinating Committee 
established pursuant to section 19(b)(1) of the Act.
    Fiscal year means the fiscal year of the United States Government 
which is October 1 through September 30.
    Landowner means any private individual, group, association, 
corporation, Indian tribe or other native group, or other private legal 
entity, excluding corporations whose stocks are publicly traded or legal 
entities principally engaged in the production of wood products.
    Nonindustrial private forest land means rural lands with existing 
tree cover or which are suitable for growing trees and owned by any 
landowner as defined in this subpart.
    Practice means a stewardship activity or conservation measure 
consistent with the landowner plan to accomplish the landowner's desired 
management objectives.
    Program means the Stewardship Incentive Program.
    Regional Forester means the Forest Service official charged with the 
administration of a Region of the National Forest System as described in 
36 CFR 200.2, except that with reference to the States covered by the 
Eastern Region, such term shall mean the Area Director for States and 
Private Forestry, Northeastern Area (36 CFR 200.2);
    Resource Management Professional means any person who is recognized 
by the State Forester as having the knowledge and skills to develop 
landowner plans for managing the biological, economic, and environmental 
interrelationship of forest resources and to identify appropriate 
activities to manage, protect, or enhance forest resources including, 
but not limited to, an employee of a State forestry agency, other State 
resource agency, the Soil Conservation Service, a consulting forester, 
or wildlife biologist.
    Service Representative means a resource management professional 
designated by the State Forester to perform any or all of the following 
technical assistance functions: Review and approval of landowner plans, 
determination of need and feasibility of practices, establishment of 
site specific practice specifications, certification of completion of 
practices and performance of compliance checks pursuant to this subpart.
    State means any one of the United States, the District of Columbia, 
the Commonwealth of Puerto Rico, the Virgin Islands of the United 
States, Guam, American Samoa, the Commonwealth of the North Marianas 
Islands, the Trust Territory of the Pacific Islands and the Territories 
and possessions of the United States.
    State Forester means the employee of a State responsible for 
administration

[[Page 173]]

and delivery of forestry and assistance within such State.
    USDA means the U.S. Department of Agriculture.



Sec. 230.3  National program administration.

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



Sec. 230.4  State program administration.

    (a) In each State participating in the Program, the Sec. etary of 
Agriculture, in consultation with the State Forester, shall establish a 
State Forest Stewardship Coordinating Committee whose composition meets 
the requirements of section 19(b) of the Act. The Committee shall be 
chaired by the State Forester, or the designee thereof.
    (b) In each State participating in the Program, the Committee shall 
recommend to the State Forester for approval:
    (1) Stewardship Incentive Program needs within the State;
    (2) The minimum contiguous acreage of eligible nonindustrial private 
forest land, consistent with Sec. 230.5(c) of this subpart;
    (3) Those nationally approved practices that will be eligible for 
cost-share assistance within the State;
    (4) Those nationally approved technical practices and minimum 
specifications to be used in implementing practices;
    (5) The cost-share levels, by practice, which will encourage tree 
planting, maintenance, and improvement, and other high priority 
practices within the State that will result in multiple resource 
benefits:
    (6) The fixed rate or reimbursement or designated percentage of 
total cost for practice components;
    (7) The distribution mechanism for the allocation of cost-share 
funds within the State;
    (8) The assignment of technical responsibility, by type of Program 
practice, to the appropriate Service Representative;
    (9) Guidelines for establishing annual priorities for the approval 
of landowner applications;
    (10) The mechanisms for ensuring landowner compliance with practice 
specification;

[[Page 174]]

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



Sec. 230.5  Eligibility requirements.

    (a) All nonindustrial private forest landowners as defined in Sec. 
230.2 of this subpart, including those who produce forest products on a 
part-time or intermittent basis, who meet the requirements of this 
section, are eligible to apply for and receive assistance under the 
Program without regard to race, color, religion, national origin, age, 
sex, marital status, or handicap.
    (b) To be eligible to receive cost-share funds under the Program, a 
landowner shall own not more than a total of 1,000 acres of 
nonindustrial private forest land, except where the State Forester, with 
the concurrence of the Regional Forester, determines that significant 
public benefits would accrue from approval of a landowner owning not 
more than 5,000 acres. In making a determination of significant public 
benefits, the State Forester and the Regional Forester shall consider, 
at a minimum, whether the installation of practices by landowners who 
own more than 1,000 acres but less than 5,000 acres are necessary to 
achieve cost-effective resource management objectives without unduly 
affecting Program participation of other eligible landowners.
    (c) To be eligible to receive cost-share funds under the Program, a 
landowner shall not own less than the minimum contiguous acreage as 
established by the State Forester. However,

[[Page 175]]

in no case shall the minimum contiguous acreage requirement be higher 
than 25 acres.
    (d) To be eligible to receive cost-share funds under the Program, a 
landowner must agree to manage the following lands under a Landowner 
Forest Stewardship Plan prepared pursuant to Sec. 230.6 of this 
subpart:
    (1) All of their nonindustrial private forest land with existing 
tree cover within a contiguous tract; and
    (2) Other nonindustrial private forest land within the same 
contiguous tract which is identified by the landowner and approved by 
the Service Representative as suitable for growing trees and scheduled 
for conversion to a Program practice.
    (e) To be eligible to receive cost-share funds under the Program, a 
landowner must agree to maintain Program practices for 10 years, unless 
otherwise specified by the Chief.



Sec. 230.6  Landowner forest stewardship plan.

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



Sec. 230.7  Program practices.

    (a) Practices for which cost sharing is available under the 
Stewardship Incentive Program and the reporting codes assigned to each 
are as follows:
    (1) Landowner Forest Stewardship Plan Development (SIP1), which 
identifies landowner objectives and multiple resource management 
decisions.
    (2) Reforestation and Afforestation (SIP2), which includes 
establishment or reestablishment of diverse stands of forest trees 
through natural regeneration, planting, or direct seeding for 
conservation purposes and sustainable timber production.
    (3) Forest and Agroforest Improvement (SIP3), which includes the 
improvement of forest and agroforest stand productivity, vigor, and 
health, and the value and quality of wood products.
    (4) Windbreak and Hedgerow Establishment, Maintenance and Renovation 
(SIP4), which includes the establishment, maintenance, and renovation of 
windbreaks and hedgerows to conserve energy, protect farmsteads, 
livestock, and crops, and reduce soil erosion.
    (5) Soil and Water Protection and Improvement (SIP5), which includes 
the maintenance or improvement of water quality and soil productivity on 
forest land.
    (6) Riparian and Wetland Protection and Improvement (SIP6), which 
includes the protection, restoration, and improvement of wetlands and 
riparian areas to maintain water quality and enhance habitat.
    (7) Fisheries Habitat Enhancement (SIP7), which includes the 
protection and enhancement of habitat for native resident and anadromous 
fisheries.

[[Page 176]]

    (8) Wildlife Habitat Enhancement (SIP8), which includes the 
establishment and enhancement of permanent habitat for game and nongame 
wildlife species.
    (9) Forest Recreation Enhancement (SIP9), which includes the 
enhancement of outdoor recreation activities and aesthetics.
    (b) In the application and use of pesticides, including biological, 
chemical, and behavioral substances, practice performance shall meet all 
label requirements, State and Federal regulations, and local ordinances.
    (c) Anyone who carries out practices under this Program shall be 
responsible for obtaining the authorities, rights, easements, or other 
approvals necessary to the performance and maintenance of the practices 
in keeping with applicable laws and regulations.



Sec. 230.8  Application and approval.

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



Sec. 230.9  Payment to landowners.

    (a) To be eligible for cost-share payments, a landowner must 
complete each practice within eighteen months of approval. However, if 
practice(s) are not completed in eighteen months due to conditions 
beyond the landowner's control, a six month extension period may be 
granted by the Service Representative.
    (b) Upon certification by the Service Representative that a practice 
has been completed in accordance with specifications, the federal cost-
share payment will be calculated and disbursed to the landowner. Service 
Representatives shall have the right of access to the landowner's 
property to inspect practices for the duration of the practice 
maintenance period.
    (c) The amount of payment under the Program to any one landowner 
shall not exceed $10,000 in any given fiscal year. For each landowner 
participating in the Program, the payment limitation shall apply as 
follows:
    (1) Where husband and wife hold joint ownership, they shall be 
considered as a single landowner.

[[Page 177]]

    (2) Where any number of individuals hold common ownership, they 
shall be considered as a single landowner.
    (3) Where the individual is a partner, corporate shareholder, or has 
an ownership interest in another private legal entity, the amount of 
payment to the individual shall be equivalent to the percentage of 
ownership the individual holds in such partnership, corporation or other 
private legal entity times the payment made to such partnership, 
corporation or other legal entity.
    (d) Levels of federal cost-share funds to be paid to landowners 
shall be set by the State Forester, but shall not exceed 75 percent of 
the actual costs incurred by a participating landowner. Non-Federal 
program funds and other donated assistance may be used to supplement 
cost-share assistance under the Program; however, the total of all funds 
and assistance shall not exceed 100 percent of the actual cost of 
practice implementation.
    (e) A practice may consist of one or more component activities. A 
landowner may receive partial payment for completed components on the 
condition that the landowner agrees to complete the remaining 
component(s) of the practice within the time period specified by the 
Service Representative, not to exceed eighteen months following approval 
to implement the practice, unless an extension is justified as provided 
in paragraph (a) of this section.
    (f) Where performance actually rendered does not meet the minimum 
specifications of a practice due to factors beyond the landowner's 
control, the State Forester or designee may approve cost-share payment 
under one of the following conditions:
    (1) The landowner repeats applications of components previously 
implemented or establishes additional eligible components under such 
terms and conditions as the Service Representative may require, in which 
case, the State Forester shall approve additional cost-sharing for 
additional or repeated components to the extent such measures are needed 
to meet the objectives of the landowner forest stewardship plan; or
    (2) The landowner establishes to the satisfaction of the Service 
Representative that:
    (i) A reasonable effort was made to meet the minimum requirements; 
and
    (ii) The practice, as performed, adequately meets the objectives of 
the landowner forest stewardship plan.
    (g) Where the landowner has received cost-share assistance for site 
preparation and the establishment of trees has been unsuccessful due to 
factors beyond the landowner's control, the Service Representative shall 
require that trees be re-established and shall approve cost-share 
assistance for such activity.
    (h) If a landowner sells, conveys, or otherwise loses control of 
lands upon which there is a continuing obligation to maintain a practice 
and the new landowner does not agree to assume the responsibility for 
maintaining the practice, the landowner who was originally obligated to 
maintain the practice shall be liable to reimburse the United States for 
all cost-share payments on such practices.
    (i) In case of death or incompetency of any landowner, the State 
Forester shall approve cost-share payments to the successor if the 
successor agrees to maintain the practices for the duration of the 
required maintenance period.
    (j) Any landowner who may be entitled to any cost-share payment 
under this subpart may assign the right thereto, in whole or in part, 
under the following terms:
    (1) Payments may be assigned only for performance of a Program 
practice.
    (2) A payment which is made to a landowner may not be assigned to 
pay or secure any preexisting debt.
    (3) Neither the United States, the Forest Service, the Sec. etary of 
Agriculture, nor any disbursing agent shall be liable in any suit if 
payment is made to an assignor rather than to an assignee, and nothing 
in this section shall be construed to authorize any suit against the 
United States, the Forest Service, the Sec. etary or any disbursing agent 
if payment is not made to the assignee, or if payment is made to only 
one of several assignees.
    (k) No cost-share payment or portion thereof due and owing any 
landowner shall be subject to any claim arising

[[Page 178]]

under State law by any creditor, except agencies of the United States 
Government.



Sec. 230.10  Prohibitions.

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



Sec. 230.11  Recapture of payment.

    (a) If any landowner, successor, or assignee uses any scheme or 
device to unjustly benefit from this program, the cost-share funds shall 
be withheld or a refund of all or part of any Program payments otherwise 
due or paid that person shall be secured. A scheme or device includes, 
but is not limited to, coercion, fraud or misrepresentation, false 
claims, or any business dissolution, reorganization, revival, or other 
legal mechanism designed for or having the effect of evading the 
requirements of this subpart.
    (b) If any landowner or successor takes any action or fails to take 
action which results in the destruction or impairment of a prescribed 
practice for the duration of the practice, cost-share funds shall be 
withheld or a recapture of all or part of any Program payments otherwise 
due or paid shall be secured based on the extent and effect of 
destruction and impairment.
    (c) Nothing in this section requiring the withholding or refunding 
of cost-share funds shall preclude any penalty or liability otherwise 
imposed by law.



Sec. 230.12  Reconsideration.

    Any landowner, successor, or assignee who is dissatisfied with any 
determination made under the Program may request reconsideration by the 
State Forester and, if the matter is still not resolved, by the Regional 
Forester. All requests for reconsideration shall be in writing and shall 
contain factual information explaining the basis for requesting 
reconsideration. All decisions upon reconsideration shall be issued in 
writing.



Sec. 230.13  Information requirements.

    The requirements governing the preparation of a State forest 
stewardship plan in Sec. 230.4(d) of this subpart, the landowner forest 
stewardship plan in Sec. 230.6 of this subpart, and the application 
requirements of Sec. 230.8 constitute information requirements as 
defined by the Paperwork Reduction Act of 1980 (44 U.S.C. 3507) and have 
been approved for use pursuant to 5 CFR part 1320 and assigned OMB 
Control Number 0596-0120.



        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 
Sec. ion 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 Sec. etary has delegated the 
authority for implementing the program to the Chief of the Forest 
Service under 7 CFR 2.60(a)(16).

[[Page 179]]



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



Sec. 230.31  Definitions.

    The terms used in this subpart are defined as follows:
    Capital investment or improvement. Durable equipment or assets 
capable of being amortized or depreciated over a period of 3 or more 
years, not including activities or practices carried out as part of the 
Forest Land Enhancement Program (FLEP) cost-share element.
    Catastrophic natural event. Destructive natural event, which 
includes, but is not limited to, wildfires, insect infestations, disease 
outbreaks, droughts, floods, windstorms, freezing, ice storms, hail, 
sleet, mudslides, landslides, earthquakes, avalanches, tornadoes, 
volcanoes, hurricanes, or tsunamis.

[[Page 180]]

    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.
    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

[[Page 181]]

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 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 Sec. etary 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

[[Page 182]]

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;
    (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.

[[Page 183]]

    (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;
    (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

[[Page 184]]

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.
    (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

[[Page 185]]

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 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

[[Page 186]]

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 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

[[Page 187]]

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 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.

[[Page 188]]



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 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

[[Page 189]]

person, corporation or State for aid rendered in the enforcement of any 
Federal or State law relating to fur-bearing and game animals, birds, 
and fish.



Sec. 241.2  Cooperation in wildlife management.

    The Chief of the Forest Service, through the Regional Foresters and 
Forest Supervisors, shall determine the extent to which national forests 
or portions thereof may be devoted to wildlife protection in combination 
with other uses and services of the national forests, and, in 
cooperation with the Fish and Game Department or other constituted 
authority of the State concerned, he will formulate plans for securing 
and maintaining desirable populations of wildlife species, and he may 
enter into such general or specific cooperative agreements with 
appropriate State officials as are necessary and desirable for such 
purposes. Officials of the Forest Service will cooperate with State game 
officials in the planned and orderly removal in accordance with the 
requirements of State laws of the crop of game, fish, fur-bearers, and 
other wildlife on national forest lands.



Sec. 241.3  Federal refuge regulations.

    Until a cooperative agreement has been entered into between the 
Chief of the Forest Service and appropriate State officials for the 
regulation of game as provided in Sec. 241.2 and the necessary 
implementing laws or regulations have been promulgated and taken effect 
in order to carry out such cooperative agreement the following 
paragraphs shall be effective:
    (a) Any person desiring to hunt or take game or non-game animals, 
game or non-game birds, or fish, upon any National Forest lands or 
waters embraced within the boundaries of a military reservation or a 
national game or bird refuge, preserve, sanctuary, or reservation 
established by or under authority of an act of Congress, shall procure 
in advance a permit from the Forest Supervisor. The permit shall be 
issued for a specified season, shall fix the bag or creel limits, and 
shall prescribe such other conditions as the Regional Forester may 
consider necessary for carrying out the purposes for which such lands 
have been set aside or reserved.
    (b) Officials of the Forest Service will cooperate with persons, 
firms, corporations, and State and county officials in the protection, 
management, and utilization of game and non-game animals, game and non-
game birds, and fish, upon national forest lands of the character 
referred to in paragraph (a) of this section. The Chief of the Forest 
Service may authorize the acceptance of contributions from cooperators 
for the payment of expenses incurred in carrying out the provisions of 
this section.
    (c) When necessary for the protection of the forest or the 
conservation of animal life on refuges under paragraphs (a) and (b) of 
this section, the Chief of 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,

[[Page 190]]

known as the Copper River Management Area and as described and displayed 
in the Chugach National Forest Land and Resource Management Plan, July 
1984.
    (c) Nothing in these regulations is intended to enlarge or diminish 
the responsibility and authority of the State of Alaska for management 
of fish and wildlife.
    (d) The primary purpose for the management of the Copper River-Rude 
River addition and the Copper River-Bering River portion of the Chugach 
National Forest, Alaska, is the conservation of fish and wildlife and 
their habitat. Consistent with the regulations at part 219 of this 
chapter, direction for managing the fish and wildlife resources of these 
units shall be documented in the land management plan for the Chugach 
National Forest.



Sec. 241.21  Definitions.

    For the purpose of this subpart, the terms listed in this section 
shall be defined as follows:
    ANILCA refers to the Alaska National Interest Lands Conservation Act 
(16 U.S.C. 3101 et seq.)
    Federal lands mean lands the title to which is in the United States, 
but does not include those lands: (1) Tentatively approved, 
legislatively conveyed, or patented to the State of Alaska, or (2) 
interim-conveyed or patented to a Native corporation or person.
    Fish and Wildlife means any member of the animal kingdom, including 
without limitation any mammal, fish, bird, amphibian, reptile, mollusk, 
crustacean, arthropod, or other invertebrate, and includes any part, 
product, egg, or offspring thereof, or dead body or part thereof. For 
the purposes of this subpart, birds also include any migratory or 
endangered bird for which protection is afforded by treaty or other 
international agreement.
    Land means lands, waters, and interests therein.
    Multiple-use activity is a specific management or permitted 
activity, use, measure, course of action, or treatment of National 
Forest System lands carried out under the statutory charter of the 
Multiple-Use Sustained-Yield Act of 1960 (16 U.S.C. 528 et seq.) and the 
National Forest Management Act (16 U.S.C. 1600 et seq.).
    Responsible Forest Officer is the Forest Service employee who has 
the authority to select, authorize, permit and/or carry out a specific 
multiple-use activity.



Sec. 241.22  Consistency determinations.

    (a) Subject to valid existing rights, a multiple-use activity may be 
permitted or authorized within the areas of the Chugach National Forest 
subject to this subpart only after a determination by the responsible 
Forest Officer that such activity is consistent with the conservation of 
fish, wildlife, and their habitat. A use or activity may be determined 
to be consistent if it will not materially interfere with or detract 
from the conservation of fish, wildlife and their habitat.
    (b) Where an evaluation is made pursuant to section 102(2)(C) of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321) for a 
proposed multiple-use activity, and the responsible Forest Officer 
prepares an environmental impact statement (EIS) or environmental 
assessment (EA) or categorically excludes an activity from documentation 
in an EA or EIS, the consistency determination required by this section 
for the use or activity shall be included as a part of the decision 
document.
    (c) Guidelines that are consistent with this section may be 
developed for specific multiple-use activities as a part of the planning 
and implementation process required by the National Forest Management 
Act and the implementing regulations at 36 CFR part 219, National Forest 
System Land and Resource Management Planning.
    (d) Subject to valid existing rights, the responsible Forest Officer 
may incorporate into any permit or other authorization issued pursuant 
to 36 CFR part 251 or other regulations of this chapter any reasonably 
practicable measures that are determined to be necessary to maintain 
consistency with the conservation of fish, wildlife, and their habitat 
as provided by this subpart.
    (e) Subject to valid existing rights, the responsible Forest Officer 
may terminate, suspend, restrict, or require

[[Page 191]]

modification of any activity if it is determined that such measures are 
required to conserve wildlife, fish, or their habitat within the areas 
of the Chugach National Forest subject to this subpart. Prior to taking 
action to terminate, suspend, restrict, or require modification of an 
activity under this section, the responsible Forest Officer shall give 
affected parties reasonable prior notice and an opportunity to comment, 
unless it is determined that doing so would likely result in irreparable 
harm to conservation of fish, wildlife, and their habitat.
    (f) Decisions made pursuant to this section are subject to appeal 
only as provided in 36 CFR parts 217 and 251, subpart C.
    (g) Nothing in this section affects subsistence activities carried 
out in accordance with Sec. 241.23 of this subpart or other applicable 
law.



Sec. 241.23  Taking of fish and wildlife.

    (a) The taking of fish and wildlife by hunting, trapping, or fishing 
from lands subject to the rules of this subpart is authorized in 
accordance with applicable State and Federal law.
    (b) To the extent consistent with the conservation of fish and 
wildlife and their habitat in accordance with recognized scientific 
management principles, local rural residents who depend upon the Chugach 
National Forest for subsistence needs shall continue to have the 
opportunity to engage in a subsistence way of life on the lands to which 
this subpart applies pursuant to applicable State and Federal law.
    (c) To the extent consistent with the conservation of fish and 
wildlife and their habitat, the continuation of existing uses and the 
future establishment and use of temporary campsites, tent, platforms, 
shelters, and other temporary facilities and equipment directly and 
necessarily related to the taking of fish and wildlife may be authorized 
in accordance with applicable law and regulations. However, the Forest 
Supervisor may restrict or prohibit facilities or uses in the Copper 
River-Rude River addition or Copper River-Bering River area if it is 
determined, after adequate notice to the affected parties, that the 
continuation of such facilities or uses would materially interfere with 
or adversely affect the conservation of fish and wildlife and their 
habitat.



PART 242_SUBSISTENCE MANAGEMENT REGULATIONS FOR PUBLIC
LANDS IN ALASKA--Table of Contents




                      Subpart A_General Provisions

Sec. 
242.1 Purpose.
242.2 Authority.
242.3 Applicability and scope.
242.4 Definitions.
242.5 Eligibility for subsistence use.
242.6 Licenses, permits, harvest tickets, tags, and reports.
242.7 Restriction on use.
242.8 Penalties.
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.
242.27 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.

[[Page 192]]



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 Sec. etary 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 Sec. ions 35 
and 36 of Township 30 South, Range 33 West, and a point approximately 
1\1/4\ miles east of Rocky Point within Sec. ion 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 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.

[[Page 193]]

    (5) Southeastern Alaska--Makhnati Island Area: Land and waters 
beginning at the southern point of Fruit Island, 
5[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., 2500 feet, to the southern point of Nepovorotni Rocks; S. 
83[deg] W., 5600 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., 4200 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., 3000 feet, to a point, 
5[deg]03[min]15[sec] north latitude, 135[deg]23[min]07[sec] west 
longitude; East, 2900 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. 1496 to angle 
point No. 35, on the southwestern point of Japonski Island; S. 60[deg] 
E., 3300 feet, along the boundary line of Naval reservation described in 
Executive Order No. 8216, July 25, 1939, to the point beginning.
    (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;
    (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]



Sec. 242.4  Definitions.

    The following definitions apply to all regulations contained in this 
part:

[[Page 194]]

    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 Sec. ion mean one of the 
geographical areas defined in the codified Alaska Department of Fish and 
Game regulations found in Title 5 of the Alaska Administrative Code.
    Barter means the exchange of fish or wildlife or their parts taken 
for subsistence uses; for other fish, wildlife or their parts; or, for 
other food or for nonedible items other than money, if the exchange is 
of a limited and noncommercial nature.
    Board means the Federal Subsistence Board as described in Sec. 
242.10.
    Commissions means the Subsistence Resource Commissions established 
pursuant to section 808 of ANILCA.
    Conservation of healthy populations of fish and wildlife means the 
maintenance of fish and wildlife resources and their habitats in a 
condition that assures stable and continuing natural populations and 
species mix of plants and animals in relation to their ecosystem, 
including the recognition that local rural residents engaged in 
subsistence uses may be a natural part of that ecosystem; minimizes the 
likelihood of irreversible or long-term adverse effects upon such 
populations and species; ensures the maximum practicable diversity of 
options for the future; and recognizes that the policies and legal 
authorities of the managing agencies will determine the nature and 
degree of management programs affecting ecological relationships, 
population dynamics, and the manipulation of the components of the 
ecosystem.
    Customary trade means exchange for cash of fish and wildlife 
resources regulated in this part, not otherwise prohibited by Federal 
law or regulation, to support personal and family needs; and does not 
include trade which constitutes a significant commercial enterprise.
    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

[[Page 195]]

the waters located seaward of the straight line drawn from headland to 
headland across the mouths of rivers or other waters as they flow into 
the sea.
    Person means an individual and does not include a corporation, 
company, partnership, firm, association, organization, business, trust, 
or society.
    Public lands or public land means:
    (1) Lands situated in Alaska which are Federal lands, except--
    (i) Land selections of the State of Alaska which have been 
tentatively approved or validly selected under the Alaska Statehood Act 
and lands which have been confirmed to, validly selected by, or granted 
to the Territory of Alaska or the State under any other provision of 
Federal law;
    (ii) Land selections of a Native Corporation made under the Alaska 
Native Claims Settlement Act, 43 U.S.C. 1601 et seq., which have not 
been conveyed to a Native Corporation, unless any such selection is 
determined to be invalid or is relinquished; and
    (iii) Lands referred to in section 19(b) of the Alaska Native Claims 
Settlement Act, 43 U.S.C. 1618(b).
    (2) Notwithstanding the exceptions in paragraphs (1)(i) through 
(iii) of this definition, until conveyed or interim conveyed, all 
Federal lands within the boundaries of any unit of the National Park 
System, National Wildlife Refuge System, National Wild and Scenic Rivers 
Systems, National Forest Monument, National Recreation Area, National 
Conservation Area, new National forest or forest addition shall be 
treated as public lands for the purposes of the regulations in this part 
pursuant to section 906(o)(2) of ANILCA.
    Regional Councils or Regional Council means the Regional Advisory 
Councils as described in Sec. 242.11.
    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.
    Sec. etary 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 Sec. etary 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

[[Page 196]]

take fish or wildlife on public lands for subsistence uses under the 
regulations in this part.
    (b) Where the Board has made a customary and traditional use 
determination regarding subsistence use of a specific fish stock or 
wildlife population, in accordance with, and as listed in, Sec. 242.24, 
only those Alaskans who are residents of rural areas or communities 
designated by the Board are eligible for subsistence taking of that 
population or stock on public lands for subsistence uses under the 
regulations in this part. If you do not live in one of those areas or 
communities, you may not take fish or wildlife from that population or 
stock, on public lands under the regulations in this part.
    (c) Where customary and traditional use determinations for a fish 
stock or wildlife population within a specific area have not yet been 
made by the Board (e.g., ``no determination''), all Alaskans who are 
residents of rural areas or communities may harvest for subsistence from 
that stock or population under the regulations in this part.
    (d) The National Park Service may regulate further the eligibility 
of those individuals qualified to engage in subsistence uses on National 
Park Service lands in accordance with specific authority in ANILCA, and 
National Park Service regulations at 36 CFR Part 13.



Sec. 242.6  Licenses, permits, harvest tickets, tags, and reports.

    (a) If you wish to take fish and wildlife on public lands for 
subsistence uses, you must be an eligible rural Alaska resident and:
    (1) Possess the pertinent valid Alaska resident hunting and trapping 
licenses (no license required to take fish or shellfish, but you must be 
an Alaska resident) unless Federal licenses are required or unless 
otherwise provided for in subpart D of this part;
    (2) Possess and comply with the provisions of any pertinent Federal 
permits (Federal Subsistence Registration Permit or Federal Designated 
Harvester Permit) required by subpart D of this part; and
    (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.

[[Page 197]]

    (f) You may not make a fraudulent application for Federal or State 
licenses, permits, harvest tickets or tags or intentionally file an 
incorrect harvest report.

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



Sec. 242.7  Restriction on use.

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



Sec. 242.8  Penalties.

    If you are convicted of violating any provision of 50 CFR Part 100 
or 36 CFR Part 242, you may be punished by a fine or by imprisonment in 
accordance with the penalty provisions applicable to the public land 
where the violation occurred.



Sec. 242.9  Information collection requirements.

    (a) The rules in this part contain information collection 
requirements subject to Office of Management and Budget (OMB) approval 
under 44 U.S.C. 3501-3520. They apply to fish and wildlife harvest 
activities on public lands in Alaska. Subsistence users will not be 
required to respond to an information collection request unless a valid 
OMB number is displayed on the information collection form.
    (1) Sec. ion 242.6, Licenses, permits, harvest tickets, tags, and 
reports. The information collection requirements contained in Sec. 
242.6 (Federal Subsistence Registration Permit or Federal Designated 
Harvester Permit forms) provide for permit-specific subsistence 
activities not authorized through the general adoption of State 
regulations. Identity and location of residence are required to 
determine if you are eligible for a permit and a report of success is 
required after a harvest attempt. These requirements are not duplicative 
with the requirements of paragraph (a)(3) of this section. The 
regulations in Sec. 242.6 require this information before a rural 
Alaska resident may engage in subsistence uses on public lands. The 
Department estimates that the average time necessary to obtain and 
comply with this permit information collection requirement is 0.25 
hours.
    (2) Sec. ion 242.20, Request for reconsideration. The information 
collection requirements contained in Sec. 242.20 provide a standardized 
process to allow individuals the opportunity to appeal decisions of the 
Board. Submission of a request for reconsideration is voluntary but 
required to receive a final review by the Board. We estimate that a 
request for reconsideration will take 4 hours to prepare and submit.
    (3) The remaining information collection requirements contained in 
this part imposed upon subsistence users are those adopted from State 
regulations. These collection requirements would exist in the absence of 
Federal subsistence regulations and are not subject to the Paperwork 
Reduction Act. The burden in this situation is negligible, and 
information gained from these reports is systematically available to 
Federal managers by routine computer access requiring less than 1 hour.
    (b) You may direct comments on the burden estimate or any other 
aspect of the burden estimate to: Information Collection Officer, U.S. 
Fish and Wildlife Service, 1849 C Street, N.W., MS 222 ARLSQ, 
Washington, D.C. 20240; and the Office of Management and Budget, 
Paperwork Reduction Project (Subsistence), Washington, D.C. 20503. 
Additional information requirements may be imposed if Local Advisory 
Committees or additional Regional Councils, subject to the Federal 
Advisory Committee Act (FACA), are established under subpart B of this 
part. Such requirements will be submitted to OMB for approval prior to 
their implementation.



                       Subpart B_Program Structure

    Source: 67 FR 30563, May 7, 2002, unless otherwise noted.

[[Page 198]]



Sec. 242.10  Federal Subsistence Board.

    (a) The Sec. etary of the Interior and Secretary of Agriculture 
hereby establish a Federal Subsistence Board, and assign it 
responsibility for administering the subsistence taking and uses of fish 
and wildlife on public lands, and the related promulgation and signature 
authority for regulations of subparts C and D of this part. The 
Sec. etaries, however, retain their existing authority to restrict or 
eliminate hunting, fishing, or trapping activities which occur on lands 
or waters in Alaska other than public lands when such activities 
interfere with subsistence hunting, fishing, or trapping on the public 
lands to such an extent as to result in a failure to provide the 
subsistence priority.
    (b) Membership. (1) The voting members of the Board are: a Chair to 
be appointed by the Sec. etary of the Interior with the concurrence of 
the Sec. etary of Agriculture; the Alaska Regional Director, U.S. Fish 
and Wildlife Service; Alaska Regional Director, National Park Service; 
Alaska Regional Forester, USDA Forest Service; the Alaska State 
Director, Bureau of Land Management; and the Alaska Regional Director, 
Bureau of Indian Affairs. Each member of the Board may appoint a 
designee.
    (2) [Reserved]
    (c) Liaisons to the Board are: a State liaison, and the Chairman of 
each Regional Council. The State liaison and the Chairman of each 
Regional Council may attend public sessions of all Board meetings and be 
actively involved as consultants to the Board.
    (d) Powers and duties. (1) The Board shall meet at least twice per 
year and at such other times as deemed necessary. Meetings shall occur 
at the call of the Chair, but any member may request a meeting.
    (2) A quorum consists of four members.
    (3) No action may be taken unless a majority of voting members are 
in agreement.
    (4) The Board is empowered, to the extent necessary, to implement 
Title VIII of ANILCA, to:
    (i) Issue regulations for the management of subsistence taking and 
uses of fish and wildlife on public lands;
    (ii) Determine which communities or areas of the State are rural or 
non-rural;
    (iii) Determine which rural Alaska areas or communities have 
customary and traditional subsistence uses of specific fish and wildlife 
populations;
    (iv) Allocate subsistence uses of fish and wildlife populations on 
public lands;
    (v) Ensure that the taking on public lands of fish and wildlife for 
nonwasteful subsistence uses shall be accorded priority over the taking 
on such lands of fish and wildlife for other purposes;
    (vi) Close public lands to the non-subsistence taking of fish and 
wildlife;
    (vii) Establish priorities for the subsistence taking of fish and 
wildlife on public lands among rural Alaska residents;
    (viii) Restrict or eliminate taking of fish and wildlife on public 
lands;
    (ix) Determine what types and forms of trade of fish and wildlife 
taken for subsistence uses constitute allowable customary trade;
    (x) Authorize the Regional Councils to convene;
    (xi) Establish a Regional Council in each subsistence resource 
region and recommend to the Sec. etaries, appointees to the Regional 
Councils, pursuant to the FACA;
    (xii) Establish Federal Advisory Committees within the subsistence 
resource regions, if necessary, and recommend to the Sec. etaries that 
members of the Federal Advisory Committees be appointed from the group 
of individuals nominated by rural Alaska residents;
    (xiii) Establish rules and procedures for the operation of the 
Board, and the Regional Councils;
    (xiv) Review and respond to proposals for regulations, management 
plans, policies, and other matters related to subsistence taking and 
uses of fish and wildlife;
    (xv) Enter into cooperative agreements or otherwise cooperate with 
Federal agencies, the State, Native organizations, local governmental 
entities, and other persons and organizations, including international 
entities to effectuate the purposes and policies of the Federal 
subsistence management program;

[[Page 199]]

    (xvi) Develop alternative permitting processes relating to the 
subsistence taking of fish and wildlife to ensure continued 
opportunities for subsistence;
    (xvii) Evaluate whether hunting, fishing, or trapping activities 
which occur on lands or waters in Alaska other than public lands 
interfere with subsistence hunting, fishing, or trapping on the public 
lands to such an extent as to result in a failure to provide the 
subsistence priority, and after appropriate consultation with the State 
of Alaska, the Regional Councils, and other Federal agencies, make a 
recommendation to the Sec. etaries for their action;
    (xviii) Identify, in appropriate specific instances, whether there 
exists additional Federal reservations, Federal reserved water rights or 
other Federal interests in lands or waters, including those in which the 
United States holds less than a fee ownership, to which the Federal 
subsistence priority attaches, and make appropriate recommendation to 
the Sec. etaries for inclusion of those interests within the Federal 
Subsistence Management Program; and
    (xix) Take other actions authorized by the Sec. etaries to implement 
Title VIII of ANILCA.
    (5) The Board may implement one or more of the following harvest and 
harvest reporting or permit systems:
    (i) The fish and wildlife is taken by an individual who is required 
to obtain and possess pertinent State harvest permits, tickets, or tags, 
or Federal permit (Federal Subsistence Registration Permit);
    (ii) A qualified subsistence user may designate another qualified 
subsistence user (by using the Federal Designated Harvester Permit) to 
take fish and wildlife on his or her behalf;
    (iii) The fish and wildlife is taken by individuals or community 
representatives permitted (via a Federal Subsistence Registration 
Permit) a one-time or annual harvest for special purposes including 
ceremonies and potlatches; or
    (iv) The fish and wildlife is taken by representatives of a 
community permitted to do so in a manner consistent with the community's 
customary and traditional practices.
    (6) The Board may delegate to agency field officials the authority 
to set harvest and possession limits, define harvest areas, specify 
methods or means of harvest, specify permit requirements, and open or 
close specific fish or wildlife harvest seasons within frameworks 
established by the Board.
    (7) The Board shall establish a Staff Committee for analytical and 
administrative assistance composed of members from the U.S. Fish and 
Wildlife Service, National Park Service, U.S. Bureau of Land Management, 
Bureau of Indian Affairs, and USDA Forest Service. A U.S. Fish and 
Wildlife Service representative shall serve as Chair of the Staff 
Committee.
    (8) The Board may establish and dissolve additional committees as 
necessary for assistance.
    (9) The U.S. Fish and Wildlife Service shall provide appropriate 
administrative support for the Board.
    (10) The Board shall authorize at least two meetings per year for 
each Regional Council.
    (e) Relationship to Regional Councils. (1) The Board shall consider 
the reports and recommendations of the Regional Councils concerning the 
taking of fish and wildlife on public lands within their respective 
regions for subsistence uses. The Board may choose not to follow any 
Regional Council recommendation which it determines is not supported by 
substantial evidence, violates recognized principles of fish and 
wildlife conservation, would be detrimental to the satisfaction of 
subsistence needs, or in closure situations, for reasons of public 
safety or administration or to assure the continued viability of a 
particular fish or wildlife population. If a recommendation is not 
adopted, the Board shall set forth the factual basis and the reasons for 
the decision, in writing, in a timely fashion.
    (2) The Board shall provide available and appropriate technical 
assistance to the Regional Councils.

[[Page 200]]



Sec. 242.11  Regional advisory councils.

    (a) The Board shall establish a Regional Council for each 
subsistence resource region to participate in the Federal subsistence 
management program. The Regional Councils shall be established, and 
conduct their activities, in accordance with the FACA. The Regional 
Councils shall provide a regional forum for the collection and 
expression of opinions and recommendations on matters related to 
subsistence taking and uses of fish and wildlife resources on public 
lands. The Regional Councils shall provide for public participation in 
the Federal regulatory process.
    (b) Establishment of Regional Councils; membership. (1) The 
Sec. etaries, based on Board recommendation, will establish the number of 
members for each Regional Council. To ensure that each Council 
represents a diversity of interests, the Board will strive to ensure 
that 70 percent of the members represent subsistence interests within a 
region and 30 percent of the members represent commercial and sport 
interests within a region. The portion of membership that represents the 
commercial and sport interests shall include, where possible, at least 
one representative from the sport community and one representative from 
the commercial community. A Regional Council member must be a resident 
of the region in which he or she is appointed and must be knowledgeable 
about the region and subsistence uses of the public lands therein. The 
Board will accept nominations and make recommendations to the 
Sec. etaries for membership on the Regional Councils. In making their 
recommendations, the Board will identify the interest(s) the applicants 
propose to represent on the respective Regional Councils. The Sec. etary 
of the Interior with the concurrence of the Sec. etary of Agriculture 
will make the appointments to the Regional Councils.
    (2) Regional Council members shall serve 3-year terms and may be 
reappointed. Initial members shall be appointed with staggered terms up 
to 3 years.
    (3) The Chair of each Regional Council shall be elected by the 
applicable Regional Council, from its membership, for a 1-year term and 
may be reelected.
    (c) Powers and Duties. (1) The Regional Councils are authorized to:
    (i) Hold public meetings related to subsistence uses of fish and 
wildlife within their respective regions, after the Chair of the Board 
or the designated Federal Coordinator has called the meeting and 
approved the meeting agenda;
    (ii) Elect officers;
    (iii) Review, evaluate, and make recommendations to the Board on 
proposals for regulations, policies, management plans, and other matters 
relating to the subsistence take of fish and wildlife under the 
regulations in this part within the region;
    (iv) Provide a forum for the expression of opinions and 
recommendations by persons interested in any matter related to the 
subsistence uses of fish and wildlife within the region;
    (v) Encourage local and regional participation, pursuant to the 
provisions of the regulations in this part in the decisionmaking process 
affecting the taking of fish and wildlife on the public lands within the 
region for subsistence uses;
    (vi) Prepare and submit to the Board an annual report containing--
    (A) An identification of current and anticipated subsistence uses of 
fish and wildlife populations within the region;
    (B) An evaluation of current and anticipated subsistence needs for 
fish and wildlife populations from the public lands within the region;
    (C) A recommended strategy for the management of fish and wildlife 
populations within the region to accommodate such subsistence uses and 
needs related to the public lands; and
    (D) Recommendations concerning policies, standards, guidelines, and 
regulations to implement the strategy;
    (vii) Appoint members to each Subsistence Resource Commission within 
their region in accordance with the requirements of Sec. ion 808 of 
ANILCA;
    (viii) Make recommendations on determinations of customary and 
traditional use of subsistence resources;
    (ix) Make recommendations on determinations of rural status;
    (x) Make recommendations regarding the allocation of subsistence 
uses

[[Page 201]]

among rural Alaska residents pursuant to Sec. 242.17;
    (xi) Develop proposals pertaining to the subsistence taking and use 
of fish and wildlife under the regulations in this part, and review and 
evaluate such proposals submitted by other sources;
    (xii) Provide recommendations on the establishment and membership of 
Federal Advisory Committees.
    (2) The Regional Councils shall:
    (i) Operate in conformance with the provisions of FACA and comply 
with rules of operation established by the Board;
    (ii) Perform other duties specified by the Board.
    (3) The Regional Council recommendations to the Board should be 
supported by substantial evidence, be consistent with recognized 
principles of fish and wildlife conservation, and not be detrimental to 
the satisfaction of subsistence needs.

[67 FR 30563, May 7, 2002, as amended at 68 FR 7704, Feb. 18, 2003; 69 
FR 60962, Oct. 14, 2004]



Sec. 242.12  Local advisory committees.

    (a) The Board shall establish such local Federal Advisory Committees 
within each region as necessary at such time that it is determined, 
after notice and hearing and consultation with the State, that the 
existing State fish and game advisory committees do not adequately 
provide advice to, and assist, the particular Regional Council in 
carrying out its function as set forth in Sec. 242.11.
    (b) Local Federal Advisory Committees, if established by the Board, 
shall operate in conformance with the provisions of the FACA, and comply 
with rules of operation established by the Board.



Sec. 242.13  Board/agency relationships.

    (a) General. (1) The Board, in making decisions or recommendations, 
shall consider and ensure compliance with specific statutory 
requirements regarding the management of resources on public lands, 
recognizing that the management policies applicable to some public lands 
may entail methods of resource and habitat management and protection 
different from methods appropriate for other public lands.
    (2) The Board shall issue regulations for subsistence taking of fish 
and wildlife on public lands. The Board is the final administrative 
authority on the promulgation of subparts C and D regulations relating 
to the subsistence taking of fish and wildlife on public lands.
    (3) Nothing in the regulations in this part shall enlarge or 
diminish the authority of any agency to issue regulations necessary for 
the proper management of public lands under their jurisdiction in 
accordance with ANILCA and other existing laws.
    (b) Sec. ion 808 of ANILCA establishes National Park and Park 
Monument Subsistence Resource Commissions. Nothing in the regulations in 
this part affects the duties or authorities of these commissions.



Sec. 242.14  Relationship to State procedures and regulations.

    (a) State fish and game regulations apply to public lands and such 
laws are hereby adopted and made a part of the regulations in this part 
to the extent they are not inconsistent with, or superseded by, the 
regulations in this part.
    (b) The Board may close public lands to hunting, trapping, or 
fishing, or take actions to restrict the taking of fish and wildlife 
when necessary to conserve healthy populations of fish and wildlife, 
continue subsistence uses of such populations, or pursuant to other 
applicable Federal law. The Board may review and adopt State openings, 
closures, or restrictions which serve to achieve the objectives of the 
regulations in this part.
    (c) The Board may enter into agreements with the State in order to 
coordinate respective management responsibilities.
    (d) Petition for repeal of subsistence rules and regulations. (1) 
The State of Alaska may petition the Sec. etaries for repeal of the 
subsistence rules and regulations in this part when the State has 
enacted and implemented subsistence management and use laws which:
    (i) Are consistent with sections 803, 804, and 805 of ANILCA; and
    (ii) Provide for the subsistence definition, preference, and 
participation specified in sections 803, 804, and 805 of ANILCA.

[[Page 202]]

    (2) The State's petition shall:
    (i) Be submitted to the Sec. etary of the Interior, U.S. Department 
of the Interior, Washington, D.C. 20240, and the Sec. etary of 
Agriculture, U.S. Department of Agriculture, Washington, D.C. 20240;
    (ii) Include the entire text of applicable State legislation 
indicating compliance with sections 803, 804, and 805 of ANILCA; and
    (iii) Set forth all data and arguments available to the State in 
support of legislative compliance with sections 803, 804, and 805 of 
ANILCA.
    (3) If the Sec. etaries find that the State's petition contains 
adequate justification, a rulemaking proceeding for repeal of the 
regulations in this part will be initiated. If the Sec. etaries find that 
the State's petition does not contain adequate justification, the 
petition will be denied by letter or other notice, with a statement of 
the ground for denial.



Sec. 242.15  Rural determination process.

    (a) The Board shall determine if an area or community in Alaska is 
rural. In determining whether a specific area of Alaska is rural, the 
Board shall use the following guidelines:
    (1) A community or area with a population of 2,500 or less shall be 
deemed to be rural unless such a community or area possesses significant 
characteristics of a non-rural nature, or is considered to be socially 
and economically a part of an urbanized area.
    (2) Communities or areas with populations above 2,500 but not more 
than 7,000 will be determined to be rural or non-rural.
    (3) A community with a population of more than 7,000 shall be 
presumed non-rural, unless such a community or area possesses 
significant characteristics of a rural nature.
    (4) Population data from the most recent census conducted by the 
United States Bureau of Census as updated by the Alaska Department of 
Labor shall be utilized in this process.
    (5) Community or area characteristics shall be considered in 
evaluating a community's rural or non-rural status. The characteristics 
may include, but are not limited to:
    (i) Use of fish and wildlife;
    (ii) Development and diversity of the economy;
    (iii) Community infrastructure;
    (iv) Transportation; and
    (v) Educational institutions.
    (6) Communities or areas which are economically, socially, and 
communally integrated shall be considered in the aggregate.
    (b) The Board shall periodically review rural determinations. Rural 
determinations shall be reviewed on a 10-year cycle, commencing with the 
publication of the year 2000 U.S. census. Rural determinations may be 
reviewed out-of-cycle in special circumstances. Once the Board makes a 
determination that a community has changed from rural to non-rural, a 
waiting period of 5 years shall be required before the non-rural 
determination becomes effective.
    (c) Current determinations are listed at Sec. 242.23.



Sec. 242.16  Customary and traditional use determination process.

    (a) The Board shall determine which fish stocks and wildlife 
populations have been customarily and traditionally used for 
subsistence. These determinations shall identify the specific 
community's or area's use of specific fish stocks and wildlife 
populations. For areas managed by the National Park Service, where 
subsistence uses are allowed, the determinations may be made on an 
individual basis.
    (b) A community or area shall generally exhibit the following 
factors, which exemplify customary and traditional use. The Board shall 
make customary and traditional use determinations based on application 
of the following factors:
    (1) A long-term consistent pattern of use, excluding interruptions 
beyond the control of the community or area;
    (2) A pattern of use recurring in specific seasons for many years;
    (3) A pattern of use consisting of methods and means of harvest 
which are characterized by efficiency and economy of effort and cost, 
conditioned by local characteristics;

[[Page 203]]

    (4) The consistent harvest and use of fish or wildlife as related to 
past methods and means of taking; near, or reasonably accessible from, 
the community or area;
    (5) A means of handling, preparing, preserving, and storing fish or 
wildlife which has been traditionally used by past generations, 
including consideration of alteration of past practices due to recent 
technological advances, where appropriate;
    (6) A pattern of use which includes the handing down of knowledge of 
fishing and hunting skills, values, and lore from generation to 
generation;
    (7) A pattern of use in which the harvest is shared or distributed 
within a definable community of persons; and
    (8) A pattern of use which relates to reliance upon a wide diversity 
of fish and wildlife resources of the area and which provides 
substantial cultural, economic, social, and nutritional elements to the 
community or area.
    (c) The Board shall take into consideration the reports and 
recommendations of any appropriate Regional Council regarding customary 
and traditional uses of subsistence resources.
    (d) Current determinations are listed in Sec. 242.24.



Sec. 242.17  Determining priorities for subsistence uses among rural Alaska residents.

    (a) Whenever it is necessary to restrict the subsistence taking of 
fish and wildlife on public lands in order to protect the continued 
viability of such populations, or to continue subsistence uses, the 
Board shall establish a priority among the rural Alaska residents after 
considering any recommendation submitted by an appropriate Regional 
Council.
    (b) The priority shall be implemented through appropriate 
limitations based on the application of the following criteria to each 
area, community, or individual determined to have customary and 
traditional use, as necessary:
    (1) Customary and direct dependence upon the populations as the 
mainstay of livelihood;
    (2) Local residency; and
    (3) The availability of alternative resources.
    (c) If allocation on an area or community basis is not achievable, 
then the Board shall allocate subsistence opportunity on an individual 
basis through application of the criteria in paragraphs (b)(1) through 
(3) of this section.
    (d) In addressing a situation where prioritized allocation becomes 
necessary, the Board shall solicit recommendations from the Regional 
Council in the area affected.



Sec. 242.18  Regulation adoption process.

    (a) Proposals for changes to the Federal subsistence regulations in 
subparts C or D of this part shall be accepted by the Board according to 
a published schedule. The Board may establish a rotating schedule for 
accepting proposals on various sections of subpart C or subpart D 
regulations over a period of years. The Board shall develop and publish 
proposed regulations in the Federal Register and publish notice in local 
newspapers. Comments on the proposed regulations in the form of 
proposals shall be distributed for public review.
    (1) Proposals shall be made available for at least a thirty (30) day 
review by the Regional Councils. Regional Councils shall forward their 
recommendations on proposals to the Board. Such proposals with 
recommendations may be submitted in the time period as specified by the 
Board or as a part of the Regional Council's annual report described in 
Sec. 242.11, whichever is earlier.
    (2) The Board shall publish notice throughout Alaska of the 
availability of proposals received.
    (3) The public shall have at least thirty (30) days to review and 
comment on proposals.
    (4) After the comment period the Board shall meet to receive public 
testimony and consider the proposals. The Board shall consider 
traditional use patterns when establishing harvest levels and seasons, 
and methods and means. The Board may choose not to follow any 
recommendation which the Board determines is not supported by 
substantial evidence, violates recognized principles of fish and 
wildlife conservation, or would be detrimental to the satisfaction of 
subsistence

[[Page 204]]

needs. If a recommendation approved by a Regional Council is not adopted 
by the Board, the Board shall set forth the factual basis and the 
reasons for its decision in writing to the Regional Council.
    (5) Following consideration of the proposals the Board shall publish 
final regulations pertaining to subparts C and D of this part in the 
Federal Register.
    (b) Proposals for changes to subparts A and B of this part shall be 
accepted by the Sec. etary of the Interior in accordance with 43 CFR part 
14.



Sec. 242.19  Special actions.

    (a) The Board may restrict, close, or reopen the taking of fish and 
wildlife for non-subsistence uses on public lands when necessary to 
assure the continued viability of a particular fish or wildlife 
population, to continue subsistence uses of a fish or wildlife 
population, or for reasons of public safety or administration.
    (b) The Board may open, close, or restrict subsistence uses of a 
particular fish or wildlife population on public lands to assure the 
continued viability of a fish or wildlife population, to continue 
subsistence uses of a fish or wildlife population, or for reasons of 
public safety or administration.
    (c) The Board will accept a request for a change in seasons, methods 
and means, harvest limits and/or restrictions on harvest under this 
Sec. 242.19 only if there are extenuating circumstances necessitating a 
regulatory change before the next annual subpart D proposal cycle. 
Extenuating circumstances include unusual and significant changes in 
resource abundance or unusual conditions affecting harvest opportunities 
that could not reasonably have been anticipated and that potentially 
could have significant adverse effects on the health of fish and 
wildlife populations or subsistence uses. Requests for Special Action 
that do not meet these conditions will be rejected; however, a rejected 
Special Action request will be deferred, if appropriate, to the next 
annual regulatory proposal cycle for consideration, after coordination 
with the submitter. In general, changes to Customary and Traditional Use 
Determinations will only be considered through the annual subpart C 
proposal cycle.
    (d) In an emergency situation, the Board may immediately open, 
close, liberalize, or restrict subsistence uses of fish and wildlife on 
public lands, or close or restrict non-subsistence uses of fish and 
wildlife on public lands, if necessary to assure the continued viability 
of a fish or wildlife population, to continue subsistence uses of fish 
or wildlife, or for public safety reasons. Prior to implementing an 
emergency action, the Board shall consult with the State. The emergency 
action shall be effective when directed by the Board, may not exceed 60 
days, and may not be extended unless it is determined by the Board, 
after notice and public hearing, that such action should be extended. 
The Board shall, in a timely manner, provide notice via radio 
announcement or personal contact of the emergency action and shall 
publish notice and reasons justifying the emergency action in newspapers 
of any area affected, and in the Federal Register thereafter.
    (e) After consultation with the State, the appropriate Regional 
Advisory Council(s), and adequate notice and public hearing, the Board 
may make or direct a temporary change to close, open, or adjust the 
seasons, to modify the harvest limits, or to modify the methods and 
means of harvest for subsistence uses of fish and wildlife populations 
on public lands. An affected rural resident, community, Regional 
Council, or administrative agency may request a temporary change in 
seasons, harvest limits, or methods or means of harvest. In addition, a 
temporary change may be made only after the Board determines that the 
proposed temporary change will not interfere with the conservation of 
healthy fish and wildlife populations, will not be detrimental to the 
long-term subsistence use of fish or wildlife resources, and is not an 
unnecessary restriction on non-subsistence users. The decision of the 
Board shall be the final administrative action. The temporary change 
shall be effective when directed by the Board following notice in the 
affected area(s). This notice may include publication in newspapers or 
announcement on local radio stations. The Board shall

[[Page 205]]

publish notice and reasons justifying the temporary action in the 
Federal Register thereafter. The length of any temporary change shall be 
confined to the minimum time period or harvest limit determined by the 
Board to be necessary to satisfy subsistence uses. A temporary opening 
or closure will not extend beyond the regulatory year for which it is 
promulgated.
    (f) Regulations authorizing any individual agency to direct 
temporary or emergency closures on public lands managed by the agency 
remain unaffected by the regulations in this part, which authorize the 
Board to make or direct restrictions, closures, or temporary changes for 
subsistence uses on public lands.
    (g) You may not take fish and wildlife in violation of a 
restriction, closure, opening, or temporary change authorized by the 
Board.



Sec. 242.20  Request for reconsideration.

    (a) Regulations in subparts C and D of this part published in the 
Federal Register are subject to requests for reconsideration.
    (b) Any aggrieved person may file a request for reconsideration with 
the Board.
    (c) To file a request for reconsideration, you must notify the Board 
in writing within sixty (60) days of the effective date or date of 
publication of the notice, whichever is earlier, for which 
reconsideration is requested.
    (d) It is your responsibility to provide the Board with sufficient 
narrative evidence and argument to show why the action by the Board 
should be reconsidered. The Board will accept a request for 
reconsideration only if it is based upon information not previously 
considered by the Board, demonstrates that the existing information used 
by the Board is incorrect, or demonstrates that the Board's 
interpretation of information, applicable law, or regulation is in error 
or contrary to existing law. You must include the following information 
in your request for reconsideration:
    (1) Your name, and mailing address;
    (2) The action which you request be reconsidered and the date of 
Federal Register publication of that action;
    (3) A detailed statement of how you are adversely affected by the 
action;
    (4) A detailed statement of the facts of the dispute, the issues 
raised by the request, and specific references to any law, regulation, 
or policy that you believe to be violated and your reason for such 
allegation;
    (5) A statement of how you would like the action changed.
    (e) Upon receipt of a request for reconsideration, the Board shall 
transmit a copy of such request to any appropriate Regional Council and 
the Alaska Department of Fish and Game (ADFG) for review and 
recommendation. The Board shall consider any Regional Council and ADFG 
recommendations in making a final decision.
    (f) If the request is justified, the Board shall implement a final 
decision on a request for reconsideration after compliance with 5 U.S.C. 
551-559 (APA).
    (g) If the request is denied, the decision of the Board represents 
the final administrative action.



Sec. 242.21  [Reserved]



                     Subpart C_Board Determinations



Sec. 242.22  Subsistence resource regions.

    (a) The Board hereby designates the following areas as subsistence 
resource regions:
    (1) Southeast Region;
    (2) Southcentral Region;
    (3) Kodiak/Aleutians Region;
    (4) Bristol Bay Region;
    (5) Yukon-Kuskokwim Delta Region;
    (6) Western Interior Region;
    (7) Seward Peninsula Region;
    (8) Northwest Arctic Region;
    (9) Eastern Interior Region;
    (10) North Slope Region.
    (b) You may obtain maps delineating the boundaries of subsistence 
resource regions from the U.S. Fish and Wildlife Service, 3601 C Street, 
Suite 1030, Anchorage, Alaska 99503.

[67 FR 30570, May 7, 2002]



Sec. 242.23  Rural determinations.

    (a) The Board has determined all communities and areas to be rural 
in accordance with Sec. 242.15, except those set forth in this 
paragraph. You may obtain maps delineating the boundaries of nonrural 
areas from the U.S. Fish

[[Page 206]]

and Wildlife Service, Office of Subsistence Management. The nonrural 
areas include:
    (1) Anchorage, Municipality of;
    (2) Fairbanks North Star Borough;
    (3) Homer area--including Homer, Anchor Point, North Fork Road area, 
Kachemak City, and the Fritz Creek East area (not including Voznesenka);
    (4) Juneau area--including Juneau, West Juneau, and Douglas;
    (5) Kenai area--including Kenai, Soldotna, Sterling, Nikiski, 
Salamatof, Kalifonsky, Kasilof, and Clam Gulch;
    (6) Ketchikan area--including all parts of the road system connected 
to the City of Ketchikan including Saxman, Pennock Island and parts of 
Gravina Island;
    (7) Prudhoe Bay;
    (8) Seward area--including Seward and Moose Pass;
    (9) Valdez; and
    (10) Wasilla/Palmer area--including Wasilla, Palmer, Sutton, Big 
Lake, Houston, Point MacKenzie, and Bodenburg Butte.
    (b) [Reserved]

[72 FR 25697, May 7, 2007]



Sec. 242.24  Customary and traditional use determinations.

    (a) The Federal Subsistence Board has determined that rural Alaska 
residents of the listed communities, areas, and individuals have 
customary and traditional use of the specified species on Federal public 
land in the specified areas. Persons granted individual customary and 
traditional use determinations will be notified in writing by the Board. 
The Fish & Wildlife Service and the local NPS Superintendent will 
maintain the list of individuals having customary and traditional use on 
National Parks and Monuments. A copy of the list is available upon 
request. When there is a determination for specific communities or areas 
of residence in a Unit, all other communities not listed for that 
species in that Unit have no Federal subsistence priority for that 
species in that Unit. If no determination has been made for a species in 
a Unit, all rural Alaska residents are eligible to harvest fish or 
wildlife under this part.
    (1) Wildlife determinations. The rural Alaska residents of the 
listed communities and areas have a customary and traditional use of the 
specified species on Federal public lands within the listed areas:

------------------------------------------------------------------------
             Area                    Species           Determination
------------------------------------------------------------------------
Unit 1C.......................  Black Bear.......  Residents of Units
                                                    1C, 1D, 3, Hoonah,
                                                    Pelican, Point
                                                    Baker, Sitka, and
                                                    Tenakee Springs.
1A............................  Brown Bear.......  Residents of Unit 1A,
                                                    except no
                                                    subsistence for
                                                    residents of Hyder.
1B............................  Brown Bear.......  Residents of Unit 1A,
                                                    Petersburg, and
                                                    Wrangell, except no
                                                    subsistence for
                                                    residents of Hyder.
1C............................  Brown Bear.......  Residents of Unit 1C,
                                                    Haines, Hoonah,
                                                    Kake, Klukwan,
                                                    Skagway, and
                                                    Wrangell, except no
                                                    subsistence for
                                                    residents of
                                                    Gustavus.
1D............................  Brown Bear.......  Residents of 1D.
1A............................  Deer.............  Residents of Units 1A
                                                    and 2.
1B............................  Deer.............  Residents of Units
                                                    1A, 1B, 2, and 3.
1C............................  Deer.............  Residents of 1C, 1D,
                                                    Hoonah, Kake, and
                                                    Petersburg.
1D............................  Deer.............  No Federal
                                                    subsistence
                                                    priority.
1B............................  Goat.............  Residents of Units 1B
                                                    and 3.
1C............................  Goat.............  Residents of Haines,
                                                    Kake, Klukwan,
                                                    Petersburg, and
                                                    Hoonah.
1B............................  Moose............  Residents of Units 1,
                                                    2, 3, and 4.
1C Berner's Bay...............  Moose............  No Federal
                                                    subsistence
                                                    priority.
1D............................  Moose............  Residents of Unit 1D.
Unit 2........................  Deer.............  Residents of Units
                                                    1A, 2, and 3.
Unit 3........................  Deer.............  Residents of Units
                                                    1B, 3, Port
                                                    Alexander, Port
                                                    Protection, Pt.
                                                    Baker, and Meyer's
                                                    Chuck.
3, Wrangell and Mitkof Islands  Moose............  Residents of Units
                                                    1B, 2, and 3.
Unit 4........................  Brown Bear.......  Residents of Unit 4
                                                    and Kake.
4.............................  Deer.............  Residents of Unit 4,
                                                    Kake, Gustavus,
                                                    Haines, Petersburg,
                                                    Pt. Baker, Klukwan,
                                                    Port Protection,
                                                    Wrangell, and
                                                    Yakutat.

[[Page 207]]

 
4.............................  Goat.............  Residents of Sitka,
                                                    Hoonah, Tenakee,
                                                    Pelican, Funter Bay,
                                                    Angoon, Port
                                                    Alexander, and Elfin
                                                    Cove.
Unit 5........................  Black Bear.......  Residents of Unit 5A.
5.............................  Brown Bear.......  Residents of Yakutat.
5.............................  Deer.............  Residents of Yakutat.
5.............................  Goat.............  Residents of Unit 5A.
5.............................  Moose............  Residents of Unit 5A.
5.............................  Wolf.............  Residents of Unit 5A.
Unit 6A.......................  Black Bear.......  Residents of Yakutat
                                                    and Units 6C and 6D,
                                                    except no
                                                    subsistence for
                                                    Whittier.
6, remainder..................  Black Bear.......  Residents of Units 6C
                                                    and 6D, except no
                                                    subsistence for
                                                    Whittier.
6.............................  Brown Bear.......  No Federal
                                                    subsistence
                                                    priority.
6A............................  Goat.............  Residents of Units
                                                    5A, and 6C, Chenega
                                                    Bay, and Tatitlek.
6C and D......................  Goat.............  Residents of Units 6C
                                                    and D.
6A............................  Moose............  Residents of Units
                                                    5A, 6A, 6B and 6C.
6B and C......................  Moose............  Residents of Units
                                                    6A, 6B and 6C.
6D............................  Moose............  No Federal
                                                    subsistence
                                                    priority.
6A............................  Wolf.............  Residents of Units
                                                    5A, 6, 9, 10 (Unimak
                                                    Island only), 11-13
                                                    and the residents of
                                                    Chickaloon, and 16-
                                                    26.
6, remainder..................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
Unit 7........................  Brown Bear.......  No Federal
                                                    subsistence
                                                    priority.
7.............................  Caribou..........  No Federal
                                                    subsistence
                                                    priority.
7, Brown Mountain hunt area...  Goat.............  Residents of Port
                                                    Graham and Nanwalek.
7, that portion draining into   Moose............  Residents of Chenega
 Kings Bay.                                         Bay and Tatitlek.
7, remainder..................  Moose............  No Federal
                                                    subsistence
                                                    priority.
7.............................  Sheep............  No Federal
                                                    subsistence
                                                    priority.
7.............................  Ruffed Grouse....  No Federal
                                                    subsistence
                                                    priority.
Unit 8........................  Brown Bear.......  Residents of Old
                                                    Harbor, Akhiok,
                                                    Larsen Bay, Karluk,
                                                    Ouzinkie, and Port
                                                    Lions.
8.............................  Deer.............  Residents of Unit 8.
8.............................  Elk..............  Residents of Unit 8.
8.............................  Goat.............  No Federal
                                                    subsistence
                                                    priority.
Unit 9D.......................  Bison............  No Federal
                                                    subsistence
                                                    priority.
9A and 9B.....................  Black Bear.......  Residents of Units
                                                    9A, 9B, 17A, 17B,
                                                    and 17C.
9A............................  Brown Bear.......  Residents of Pedro
                                                    Bay.
9B............................  Brown Bear.......  Residents of Unit 9B.
9C............................  Brown Bear.......  Residents of Unit 9C.
9D............................  Brown Bear.......  Residents of Units 9D
                                                    and 10 (Unimak
                                                    Island).
9E............................  Brown Bear.......  Residents of Chignik,
                                                    Chignik Lagoon,
                                                    Chignik Lake,
                                                    Egegik, Ivanof Bay,
                                                    Perryville, Pilot
                                                    Point, Ugashik, and
                                                    Port Heiden/Meshik.
9A and B......................  Caribou..........  Residents of Units
                                                    9B, 9C, and 17.
9C............................  Caribou..........  Residents of Units
                                                    9B, 9C, 17, and
                                                    Egegik.
9D............................  Caribou..........  Residents of Unit 9D,
                                                    Akutan, and False
                                                    Pass.
9E............................  Caribou..........  Residents of Units
                                                    9B, 9C, 9E, 17,
                                                    Nelson Lagoon and
                                                    Sand Point.
9A, B, C and E................  Moose............  Residents of Units
                                                    9A, 9B, 9C, and 9E.
9D............................  Moose............  Residents of Cold
                                                    Bay, False Pass,
                                                    King Cove, Nelson
                                                    Lagoon, and Sand
                                                    Point.
9B............................  Sheep............  Residents of Iliamna,
                                                    Newhalen, Nondalton,
                                                    Pedro Bay, Port
                                                    Alsworth, and
                                                    residents of Lake
                                                    Clark Natonal Park
                                                    and Preserve within
                                                    Unit 9B.
9, remainder..................  Sheep............  No determination.
9.............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
9A, B, C, & E.................  Beaver...........  Residents of Units
                                                    9A, 9B, 9C, 9E, and
                                                    17.
Unit 10 Unimak Island.........  Brown Bear.......  Residents of Units 9D
                                                    and 10 (Unimak
                                                    Island).
Unit 10 Unimak Island.........  Caribou..........  Residents of Akutan,
                                                    False Pass, King
                                                    Cove, and Sand
                                                    Point.
10, remainder.................  Caribou..........  No determination.
10............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
Unit 11.......................  Bison............  No Federal
                                                    subsistence
                                                    priority.

[[Page 208]]

 
11, north of the Sanford River  Black Bear.......  Residents of
                                                    Chistochina,
                                                    Chitina, Copper
                                                    Center, Gakona,
                                                    Glennallen, Gulkana,
                                                    Kenny Lake, Mentasta
                                                    Lake, Slana,
                                                    Tazlina, Tonsina,
                                                    and Units 11 and 12.
11, remainder.................  Black Bear.......  Residents of
                                                    Chistochina,
                                                    Chitina, Copper
                                                    Center, Gakona,
                                                    Glennallen, Gulkana,
                                                    Kenny Lake, Mentasta
                                                    Lake, Slana,
                                                    Tazlina, Tonsina,
                                                    and Unit 11.
11, north of the Sanford River  Brown Bear.......  Residents of
                                                    Chistochina,
                                                    Chitina, Copper
                                                    Center, Gakona,
                                                    Glennallen, Gulkana,
                                                    Kenny Lake, Mentasta
                                                    Lake, Slana,
                                                    Tazlina, Tonsina,
                                                    and Units 11 and 12.
11, remainder.................  Brown Bear.......  Residents of
                                                    Chistochina,
                                                    Chitina, Copper
                                                    Center, Gakona,
                                                    Glennallen, Gulkana,
                                                    Kenny Lake, Mentasta
                                                    Lake, Slana,
                                                    Tazlina, Tonsina,
                                                    and Units 11.
11, north of the Sanford River  Caribou..........  Residents of Units
                                                    11, 12, 13A-D,
                                                    Chickaloon, Healy
                                                    Lake, and Dot Lake.
11, remainder.................  Caribou..........  Residents of Units
                                                    11, 13A-D, and
                                                    Chickaloon.
11............................  Goat.............  Residents of Unit 11,
                                                    Chitina,
                                                    Chistochina, Copper
                                                    Center, Gakona,
                                                    Glennallen, Gulkana,
                                                    Mentasta Lake,
                                                    Slana, Tazlina,
                                                    Tonsina, and Dot
                                                    Lake
11, north of the Sanford River  Moose............  Residents of Units
                                                    11, 12, 13A-D,
                                                    Chickaloon, Healy
                                                    Lake, and Dot Lake.
11, remainder.................  Moose............  Residents of Units
                                                    11, 13A-D, and
                                                    Chickaloon.
11, north of the Sanford River  Sheep............  Residents of Unit 12,
                                                    Chistochina,
                                                    Chitina, Copper
                                                    Center, Dot Lake,
                                                    Gakona, Glennallen,
                                                    Gulkana, Healy Lake,
                                                    Kenny Lake, Mentasta
                                                    Lake, Slana,
                                                    McCarthy/South
                                                    Wrangell/South Park,
                                                    Tazlina, Tonsina,
                                                    residents along the
                                                    Nabesna Road--
                                                    Milepost 0-46
                                                    (Nabesna Road), and
                                                    residents along the
                                                    McCarthy Road--
                                                    Milepost 0-62
                                                    (McCarthy Road).
11, remainder.................  Sheep............  Residents of Chisana,
                                                    Chistochina,
                                                    Chitina, Copper
                                                    Center, Glennallen,
                                                    Gulkana, Kenny Lake,
                                                    Mentasta Lake,
                                                    Slana, McCarthy/
                                                    South Wrangell/South
                                                    Park, Tazlina,
                                                    Tonsina, residents
                                                    along the Tok
                                                    Cutoff--Milepost 79-
                                                    110 (Mentasta Pass),
                                                    residents along the
                                                    Nabesna Road--
                                                    Milepost 0-46
                                                    (Nabesna Road), and
                                                    residents along the
                                                    McCarthy Road--
                                                    Milepost 0-62
                                                    (McCarthy Road).
11............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
11............................  Grouse (Spruce,    Residents of Units
                                 Blue, Ruffed and   11, 12, 13 and the
                                 Sharp-tailed).     residents of
                                                    Chickaloon, 15, 16,
                                                    20D, 22 and 23.
11............................  Ptarmigan (Rock,   Residents of Units
                                 Willow and White-  11, 12, 13 and the
                                 tailed).           residents of
                                                    Chickaloon, 15, 16,
                                                    20D, 22 and 23.
Unit 12.......................  Brown Bear.......  Residents of Unit 12,
                                                    Dot Lake,
                                                    Chistochina, Gakona,
                                                    Mentasta Lake, and
                                                    Slana.
12............................  Caribou..........  Residents of Unit 12,
                                                    Dot Lake, Healy
                                                    Lake, and Mentasta
                                                    Lake.
12, that portion within the     Moose............  Residents of Units
 Tetlin National Wildlife                           12, 13C, Dot Lake,
 Refuge and those lands within                      and Healy Lake.
 the Wrangell-St. Elias
 National Preserve north and
 east of a line formed by the
 Pickerel Lake Winter Trail
 from the Canadian border to
 Pickerel Lake.
12, that portion east of the    Moose............  Residents of Units
 Nabesna River and Nabesna                          12, 13C, and Healy
 Glacier, and south of the                          Lake.
 Winter Trail running
 southeast from Pickerel Lake
 to the Canadian border.
12, remainder.................  Moose............  Residents of Unit 11
                                                    north of 62nd
                                                    parallel, Units 12,
                                                    13A-D and the
                                                    residents of
                                                    Chickaloon, Dot
                                                    Lake, and Healy
                                                    Lake.
12............................  Sheep............  Residents of Unit 12,
                                                    Chistochina, Dot
                                                    Lake, Healy Lake,
                                                    and Mentasta Lake.
12............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
Unit 13.......................  Brown Bear.......  Residents of Unit 13
                                                    and Slana.

[[Page 209]]

 
13B...........................  Caribou..........  Residents of Units
                                                    11, 12 (along the
                                                    Nabesna Road), 13,
                                                    residents of Unit
                                                    20D except Fort
                                                    Greely, and the
                                                    residents of
                                                    Chickaloon.
13C...........................  Caribou..........  Residents of Units
                                                    11, 12 (along the
                                                    Nabesna Road), 13
                                                    Chickaloon, Dot Lake
                                                    and Healy Lake.
13A and D.....................  Caribou..........  Residents of Units
                                                    11, 12 (along the
                                                    Nabesna Road), 13,
                                                    and the residents of
                                                    Chickaloon.
13E...........................  Caribou..........  Residents of Units
                                                    11, 12 (along the
                                                    Nabesna Road), 13,
                                                    Chickaloon, McKinley
                                                    Village, and the
                                                    area along the Parks
                                                    Highway between
                                                    mileposts 216 and
                                                    239 (except no
                                                    subsistence for
                                                    residents of Denali
                                                    National Park
                                                    headquarters).
13D...........................  Goat.............  No Federal
                                                    subsistence
                                                    priority.
13A and D.....................  Moose............  Residents of Unit 13,
                                                    Chickaloon, and
                                                    Slana.
13B...........................  Moose............  Residents of Units
                                                    13, 20D except Fort
                                                    Greely, and the
                                                    residents of
                                                    Chickaloon and
                                                    Slana.
13C...........................  Moose............  Residents of Units
                                                    12, 12, and the
                                                    residents of
                                                    Chickaloon, Healy
                                                    Lake, Dot Lake and
                                                    Slana.
13E...........................  Moose............  Residents of Unit 13,
                                                    Chickaloon, McKinley
                                                    Village, Slana, and
                                                    the area along the
                                                    Parks Highway
                                                    between mileposts
                                                    216 and 239 (except
                                                    no subsistence for
                                                    residents of Denali
                                                    National Park
                                                    headquarters).
13D...........................  Sheep............  No Federal
                                                    subsistence
                                                    priority.
13............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
13............................  Grouse (Spruce,    Residents of Units
                                 Blue, Ruffed and   11, 13 and the
                                 Sharp-tailed).     residents of
                                                    Chickaloon, 15, 16,
                                                    20D, 22 and 23.
13............................  Ptarmigan (Rock,   Residents of Units
                                 Willow and White-  11, 13 and the
                                 tailed).           residents of
                                                    Chickaloon, 15, 16,
                                                    20D, 22 and 23.
Unit 14C......................  Brown Bear.......  No Federal
                                                    subsistence
                                                    priority.
14............................  Goat.............  No Federal
                                                    subsistence
                                                    priority.
14............................  Moose............  No Federal
                                                    subsistence
                                                    priority.
14A and C.....................  Sheep............  No Federal
                                                    subsistence
                                                    priority.
Unit 15C......................  Black Bear.......  Residents of Port
                                                    Graham and Nanwalek
                                                    only.
15, remainder.................  Black Bear.......  No Federal
                                                    subsistence
                                                    priority.
15............................  Brown Bear.......  No Federal
                                                    subsistence
                                                    priority.
15............................  Moose............  Residents of
                                                    Ninilchik, Nanwalek,
                                                    Port Graham, and
                                                    Seldovia.
15............................  Sheep............  No Federal
                                                    subsistence
                                                    priority.
15............................  Ptarmigan (Rock,   Residents of Unit 15.
                                 Willow and White-
                                 tailed).
15............................  Grouse (Spruce)..  Residents of Unit 15.
15............................  Grouse (Ruffed)..  No Federal
                                                    subsistence
                                                    priority.
Unit 16B......................  Black Bear.......  Residents of Unit
                                                    16B.
16............................  Brown Bear.......  No Federal
                                                    subsistence
                                                    priority.
16A...........................  Moose............  No Federal
                                                    subsistence
                                                    priority.
16B...........................  Moose............  Residents of Unit
                                                    16B.
16............................  Sheep............  No Federal
                                                    subsistence
                                                    priority.
16............................  Wolf.............  Residents of Units 6,
                                                    19, 10 (Unimak
                                                    Island only), 11-13
                                                    and the residents of
                                                    Chickaloon, and 16-
                                                    26.
16............................  Grouse (Spruce     Residents of Units
                                 and Ruffed).       11, 13 and the
                                                    residents of
                                                    Chickaloon, 15, 16,
                                                    20D, 22 and 23.
16............................  Ptarmigan (Rock,   Residents of Units
                                 Willow and White-  11, 13 and the
                                 tailed).           residents of
                                                    Chickaloon 15, 16,
                                                    20D, 22 and 23.
Unit 17A and that portion of    Black Bear.......  Residents of Units 9A
 17B draining into Nuyakuk                          and B, 17, Akiak,
 Lake and Tikchik Lake.                             and Akiachak.
17, remainder.................  Black Bear.......  Residents of Units 9A
                                                    and B, and 17.
17A...........................  Brown Bear.......  Residents of Unit 17,
                                                    Akiak, Akiachak,
                                                    Goodnews Bay, and
                                                    Platinum.
17A and B, those portions       Brown Bear.......  Residents of
 north and west of a line                           Kwethluk.
 beginning from the Unit 18
 boundary at the northwest end
 of Nenevok Lake, to the
 southern point of upper
 Togiak Lake, and northeast to
 the northern point of Nuyakuk
 Lake, northeast to the point
 where the Unit 17 boundary
 intersects the Shotgun Hills.
17B, that portion draining      Brown Bear.......  Residents of Akiak
 into Nuyakuk Lake and Tikchik                      and Akiachak.
 Lake.

[[Page 210]]

 
17B and C.....................  Brown Bear.......  Residents of Unit 17.
17............................  Caribou..........  Residents of Units
                                                    9B, 17, Lime
                                                    Village, and Stony
                                                    River.
Unit 17A, that portion west of  Caribou..........  Residents of Goodnews
 the Izavieknik River, Upper                        Bay, Platinum,
 togiak Lake, Togiak Lake, and                      Quinhagak, Eek,
 the main course of the Togiak                      Tuntutuliak, and
 River.                                             Napakiak.
Unit 17A, that portion north    Caribou..........  Residents of Goodnews
 of Togiak Lake that includes                       Bay, Platinum,
 Izavieknik River drainages.                        Quinhagak, Eek,
                                                    Tuntutuliak, and
                                                    Napakiak.
Unit 17A, that portion north    Caribou..........  Residents of Akiak,
 of Togiak Lake that includes                       Akiachak, and
 Izavieknik River drainages.                        Tuluksak.
17A and B, those portions       Caribou..........  Residents of
 north and west of a line                           Kwethluk.
 beginning from the Unit 18
 boundary at the northwest end
 of Nenevok Lake, to the
 southern point of upper
 Togiak Lake, and northeast to
 the northern point of Nuyakuk
 Lake, northeast to the point
 where the Unit 17 boundary
 intersects the Shotgun Hills.
Unit 17B, that portion of       Caribou..........  Residents of Bethel,
 Togiak National Wildlife                           Goodnews Bay,
 Refuge within Unit 17B.                            Platinum, quinhagak,
                                                    Eek, Akiak,
                                                    Akiachak, Tuluksak,
                                                    Tuntutuliak, and
                                                    Napakiak.
17A and B, those portions       Moose............  Residents of
 north and west of a line                           Kwethluk.
 beginning from the Unit 18
 boundary at the northwest end
 of Nenevok Lake, to the
 southern point of upper
 Togiak Lake, and northeast to
 the northern point of Nuyakuk
 Lake, northeast to the point
 where the Unit 17 boundary
 intersects the Shotgun Hills.
17A...........................  Moose............  Residents of Unit 17,
                                                    Goodnews Bay and
                                                    Platinum; however,
                                                    no subsistence for
                                                    residents of
                                                    Akiachak, Akiak and
                                                    Quinhagak.
17A, that portion north of      Moose............  Residents of Akiak,
 Togiak Lake that includes                          Akiachak.
 Izavieknik River drainages.
Unit 17B, that portion within   Moose............  Residents of Akiak,
 the Togiak National Wildlife                       Akiachak.
 Refuge.
17B and C.....................  Moose............  Residents of Unit 17,
                                                    Nondalton, Levelock,
                                                    Goodnews Bay, and
                                                    Platinum.
17............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
17............................  Beaver...........  Residents of Units
                                                    9A, 9B, 9C, 9E, and
                                                    17.
Unit 18.......................  Black Bear.......  Residents of Unit 18,
                                                    Unit 19A living
                                                    downstream of the
                                                    Holokuk River, Holy
                                                    Cross, Stebbins, St.
                                                    Michael, Twin Hills,
                                                    and Togiak.
18............................  Brown Bear.......  Residents of
                                                    Akiachak, Akiak,
                                                    Eek, Goodnews Bay,
                                                    Kwethluk, Mt.
                                                    Village, Napaskiak,
                                                    Platinum, Quinhagak,
                                                    St. Marys, and
                                                    Tuluksak.
18............................  Caribou..........  Residents of Unit 18,
                                                    Manokotak, Stebbins,
                                                    St. Michael, Togiak,
                                                    Twin Hills, and
                                                    Upper Kalskag.
18, that portion of the Yukon   Moose............  Residents of Unit 18,
 River drainage upstream of                         Upper Kalskag,
 Russian Mission and that                           Aniak, and
 portion of the Kuskokwim                           Chuathbaluk.
 River drainage upstream of,
 but not including, the
 Tuluksak River drainage.
18, remainder.................  Moose............  Residents of Unit 18,
                                                    Upper Kalskag, and
                                                    Lower Kalskag.
18............................  Muskox...........  No Federal
                                                    subsistence
                                                    priority.
18............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
Unit 19C and D................  Bison............  No Federal
                                                    subsistence
                                                    priority.
19A and B.....................  Brown Bear.......  Residents of Units 19
                                                    and 18 within the
                                                    Kuskokwim River
                                                    drainage upstream
                                                    from, and including,
                                                    the Johnson River.
19C...........................  Brown Bear.......  No Federal
                                                    subsistence
                                                    priority.
19D...........................  Brown Bear.......  Residents of Units
                                                    19A and D, Tuluksak
                                                    and Lower Kalskag.
19A and B.....................  Caribou..........  Residents of Units
                                                    19A and 19B, Unit 18
                                                    within the Kuskokwim
                                                    River drainage
                                                    upstream from, and
                                                    including, the
                                                    Johnson River, and
                                                    residents of St.
                                                    Marys, Marshall,
                                                    Pilot Station,
                                                    Russian Mission.
19C...........................  Caribou..........  Residents of Unit
                                                    19C, Lime Village,
                                                    McGrath, Nikolai,
                                                    and Telida.

[[Page 211]]

 
19D...........................  Caribou..........  Residents of Unit
                                                    19D, Lime Village,
                                                    Sleetmute, and Stony
                                                    River.
19A and B.....................  Moose............  Residents of Unit 18
                                                    within Kuskokwim
                                                    River drainage
                                                    upstream from and
                                                    including the
                                                    Johnson River, and
                                                    residents of Unit
                                                    19.
Unit 19B, west of the           Moose............  Residents of Eek and
 Kogrukluk River.                                   Quinhagak.
19C...........................  Moose............  Residents of Unit 19.
19D...........................  Moose............  Residents of Unit 19
                                                    and Lake Minchumina.
19............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
Unit 20D......................  Bison............  No Federal
                                                    subsistence
                                                    priority.
20F...........................  Black Bear.......  Residents of Unit
                                                    20F, Stevens
                                                    Village, and Manley.
20E...........................  Brown Bear.......  Residents of Unit 12
                                                    and Dot Lake.
20F...........................  Brown Bear.......  Residents of Unit
                                                    20F, Stevens
                                                    Village, and Manley.
20A...........................  Caribou..........  Residents of
                                                    Cantwell, Nenana,
                                                    and those demociled
                                                    between mileposts
                                                    216 and 239 of the
                                                    Parks Highway. No
                                                    subsistence priority
                                                    for residents of
                                                    households of the
                                                    Denali National Park
                                                    Headquarters.
20B...........................  Caribou..........  Residents of Unit
                                                    20B, Nenana, and
                                                    Tanana.
20C...........................  Caribou..........  Residents of Unit 20C
                                                    living east of the
                                                    Teklanika River,
                                                    residents of
                                                    Cantwell, Lake
                                                    Minchumina, Manley
                                                    Hot Springs, Minto,
                                                    Nenana, Nikolai,
                                                    Tanana, Talida, and
                                                    those domiciled
                                                    between mileposts
                                                    216 and 239 of the
                                                    Parks Highway and
                                                    between mileposts
                                                    300 and 309. No
                                                    subsistence priority
                                                    for residents of
                                                    households of the
                                                    Denali National Park
                                                    Headquarters.
20D and E.....................  Caribou..........  Residents of 20D, 20E
                                                    and Unit 12 north of
                                                    the Wrangell-St.
                                                    Elias National Park
                                                    and Preserve.
20F...........................  Caribou..........  Residents of 20F,
                                                    25D, and Manley.
20A...........................  Moose............  Residents of
                                                    Cantwell, Minto,
                                                    Nenana, McKinley
                                                    Village, and the
                                                    area along the Parks
                                                    Highway between
                                                    mileposts 216 and
                                                    239, except no
                                                    subsistence for
                                                    residents of
                                                    households of the
                                                    Denali National Park
                                                    Headquarters.
20B, Minto Flats Management     Moose............  Residents of Minto
 Area.                                              and Nenana.
20B, remainder................  Moose............  Residents of Unit
                                                    20b, Nenana, and
                                                    Tanana.
20C...........................  Moose............  Residents of Unit 20C
                                                    (except that portion
                                                    within Denali
                                                    National Park and
                                                    Preserve and that
                                                    portion east of the
                                                    Teklanika River),
                                                    Cantwell, Manley,
                                                    Minto, Nenana, those
                                                    domiciled between
                                                    mileposts 300 and
                                                    309 of the Parks
                                                    Highway, Nikolai,
                                                    Tanana, Telida,
                                                    McKinely Village,
                                                    and the area along
                                                    the Parks Highway
                                                    between mileposts
                                                    216 and 239. No
                                                    subsistence for
                                                    residents of
                                                    households of the
                                                    Denali National Park
                                                    Headquarters.
20D...........................  Moose............  Residents of Unit 20D
                                                    and residents of
                                                    Tanacross.
20E...........................  Moose............  Residents of Unit
                                                    20E, Unit 12 north
                                                    of the Wrangell-St.
                                                    Elias National
                                                    Preserve, Circle,
                                                    Centrl, Dot Lake,
                                                    Healy Lake, and
                                                    Mentasta Lake.
20F...........................  Moose............  Residents of Unit
                                                    20F, Manley, Minto,
                                                    and Stevens Village.
20F...........................  Wolf.............  Residents of Unit
                                                    20F, Stevens
                                                    Village, and Manley.
20, remainder.................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
20D...........................  Grouse, (Spruce,   Residents of Units
                                 Ruffed and Sharp-  11, 13, and the
                                 tailed).           residents of
                                                    Chickaloon, 15, 16,
                                                    20D, 22 and 23.
20D...........................  Ptarmigan (Rock    Residents of Units
                                 and Willow).       11, 13 and the
                                                    residents of
                                                    Chickaloon, 15, 16,
                                                    20D, 22 and 23.
Unit 21.......................  Brown Bear.......  Residents of Units 21
                                                    and 23.
21A...........................  Caribou..........  Residents of Units
                                                    21A, 21D, 21E,
                                                    Aniak, Chuathbaluk,
                                                    Crooked Creek,
                                                    McGrath, and
                                                    Takotna.
21B and C.....................  Caribou..........  Residents of Units
                                                    21B, 21C, 21D, and
                                                    Tanana.

[[Page 212]]

 
21D...........................  Caribou..........  Residents of Units
                                                    21B, 21C, 21D, and
                                                    Huslia.
21E...........................  Caribou..........  Residents of Units
                                                    21A, 21E, Aniak,
                                                    Chuathbaluk, Crooked
                                                    Creek, McGrath, and
                                                    Takotna.
21A...........................  Moose............  Residents of Units
                                                    21A, 21E, Takotna,
                                                    McGrath, Aniak, and
                                                    Crooked Creek.
21B and C.....................  Moose............  Residents of Units
                                                    21B, 21C, Tanana,
                                                    Ruby, and Galena.
21D...........................  Moose............  Residents of Units
                                                    21D, Huslia, and
                                                    Ruby.
21E...........................  Moose............  Residents of Unit 21E
                                                    and Russian Mission.
21............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
Unit 22A......................  Black Bear.......  Residents of Unit 22A
                                                    and Koyuk.
22B...........................  Black Bear.......  Residents of Unit
                                                    22B.
22C, D, and E.................  Black Bear.......  No Federal
                                                    subsistence
                                                    priority.
22............................  Brown Bear.......  Residents of Unit 22.
22A...........................  Caribou..........  Residents of Unit 21D
                                                    west of the Koyukuk
                                                    and Yukon Rivers, 22
                                                    (except residents of
                                                    St. Lawrence
                                                    Island), 23, 24,
                                                    Kotlik, Emmonak,
                                                    Hooper Bay, Scammon
                                                    Bay, Chevak,
                                                    Marshall, Mountain
                                                    Village, Pilot
                                                    Station, Pitka's
                                                    Point, Russian
                                                    Mission, St. Marys,
                                                    Nunam Iqua, and
                                                    Alakanuk.
22, remainder.................  Caribou..........  Residents of Unit 21D
                                                    west of the Koyukuk
                                                    and Yukon Rivers, 22
                                                    (except residents of
                                                    St. Lawrence
                                                    Island), 23 and 24.
22............................  Moose............  Residents of Unit 22.
22B, west of the Darby          Muskox...........  Residents of Unit 22B
 Mountains.                                         and 22C.
22B, remainder................  Muskox...........  Residents of Unit
                                                    22B.
22C...........................  Muskox...........  Residents of Unit
                                                    22C.
Unit 22D, that portion within   Muskox...........  Residents of Unit
 the Kougarok, Kuzitrin, and                        22C, White Mountain,
 Pilgrim River drainages.                           and unit 22D
                                                    excluding St.
                                                    Lawrence Island.
22D, remainder................  Muskox...........  Residents of Unit 22D
                                                    excluding St.
                                                    Lawrence Island.
22E...........................  Muskox...........  Residents of Unit 22E
                                                    excluding Little
                                                    Diomede Island.
22............................  Wolf.............  Residents of Units
                                                    23, 22, 21D north
                                                    and west of the
                                                    Yukon River, and
                                                    Kotlik.
22............................  Grouse (Spruce)..  Residents of Units
                                                    11, 13 and the
                                                    residents of
                                                    Chickaloon, 15, 16,
                                                    20D, 22, and 23.
22............................  Ptarmigan (Rock    Residents of Units
                                 and Willow).       11, 13 and the
                                                    residents of
                                                    Chickaloon, 15, 16,
                                                    20D, 22 and 23.
Unit 23.......................  Black Bear.......  Residents of Unit 23,
                                                    Alatna, Allakaket,
                                                    Bettles, Evansville,
                                                    Galena, Hughes,
                                                    Huslia, and Koyukuk.
23............................  Brown Bear.......  Residents of Units 21
                                                    and 23.
23............................  Caribou..........  Residents of Unit 21D
                                                    west of the Koyukuk
                                                    and Yukon Rivers,
                                                    Galena, 22, 23, 24
                                                    including residents
                                                    of Wiseman but not
                                                    including other
                                                    residents of the
                                                    Dalton Highway
                                                    Corridor Management
                                                    Area, and 26A.
23............................  Moose............  Residents of Unit 23.
23, south of Kotzebue Sound     Muskox...........  Residents of Unit 23
 and west of and including the                      south of Kotzebue
 Buckland River drainage.                           Sound and west of
                                                    and including the
                                                    Buckland River
                                                    drainage.
23, remainder.................  Muskox...........  Residents of Unit 23
                                                    east and north of
                                                    the Buckland River
                                                    drainage.
23............................  Sheep............  Residents of Point
                                                    Lay and Unit 23
                                                    north of the Arctic
                                                    Circle.
23............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
23............................  Grouse (Spruce     Residents of Units
                                 and Ruffed).       11, 13 and the
                                                    residents of
                                                    Chickaloon, 15, 16,
                                                    20D, 22, and 23.
23............................  Ptarmigan (Rock,   Residents of Units
                                 Willow and White-  11, 13 and the
                                 tailed).           residents of
                                                    Chickaloon, 15, 16,
                                                    20D, 22, and 23.
Unit 24, that portion south of  Black Bear.......  Residents of Stevens
 Caribou Mountain, and within                       Village, Unit 24 and
 the public lands composing or                      Wiseman, but not
 immediately adjacent to the                        including any other
 Dalton Highway Corridor                            residents of the
 Management Area.                                   Dalton Highway
                                                    Corridor Management
                                                    Area.
24, remainder.................  Black Bear.......  Residents of Unit 24
                                                    and Wiseman, but not
                                                    including any other
                                                    residents of the
                                                    Dalton Highway
                                                    Corridor Management
                                                    Area.

[[Page 213]]

 
24, that portion south of       Brown Bear.......  Residents of Stevens
 Caribou Mountain, and within                       Village and
 the public lands composing or                      residents of Unit
 immediately adjacent to the                        24.
 Dalton Highway Corridor
 Management Area.
24, remainder.................  Brown Bear.......  Residents of Unit 24.
24............................  Caribou..........  Residents of Unit 24,
                                                    Galena, Kobuk,
                                                    Koyukuk, Stevens
                                                    Village, and Tanana.
24............................  Moose............  Residents of Unit 24,
                                                    Koyukuk, and Galena.
24............................  Sheep............  Residents of Unit 24
                                                    residing north of
                                                    the Arctic Circle,
                                                    Allakaket, Alatna,
                                                    Hughes, and Huslia.
24............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon and 16-
                                                    26.
Unit 25D......................  Black Bear.......  Residents of Unit
                                                    25D.
25D...........................  Brown Bear.......  Residents of Unit
                                                    25D.
25, remainder.................  Brown Bear.......  Residents of Unit 25
                                                    and Eagle.
25D...........................  Caribou..........  Residents of 20F,
                                                    25D, and Manley.
25A...........................  Moose............  Residents of Units
                                                    25A and 25D.
25D, west.....................  Moose............  Residents of Unit 25D
                                                    West.
25D, remainder................  Moose............  Residents of
                                                    remainder of Unit
                                                    25.
25A...........................  Sheep............  Residents of Arctic
                                                    Village,
                                                    Chalkyitsik, Fort
                                                    Yukon, Kaktovik, and
                                                    Venetie.
25B and C.....................  Sheep............  No Federal
                                                    subsistence
                                                    priority.
25D...........................  Wolf.............  Residents of Unit
                                                    25D.
25, remainder.................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
Unit 26.......................  Brown Bear.......  Residents of Unit 26
                                                    (except the Prudhoe
                                                    Bay-Deadhorse
                                                    Industrial Complex),
                                                    Anaktuvuk Pass, and
                                                    Point Hope.
26A and C.....................  Caribou..........  Residents of Unit 26,
                                                    Anaktuvuk Pass, and
                                                    Point Hope.
26B...........................  Caribou..........  Residents of Unit 26,
                                                    Anaktuvuk Pass,
                                                    Point Hope, and
                                                    residents of Unit 24
                                                    within the Dalton
                                                    Highway Corridor
                                                    Management Area.
26............................  Moose............  Residents of Unit 26
                                                    (except the Prudhoe
                                                    Bay-Deadhorse
                                                    Industrial Complex),
                                                    Point Hope, and
                                                    Anaktuvuk Pass.
26A...........................  Muskox...........  Residents of
                                                    Anaktuvuk Pass,
                                                    Atqasuk, Barrow,
                                                    Nuiqsut, Point Hope,
                                                    Point Lay, and
                                                    Wainwright.
26B...........................  Muskox...........  Residents of
                                                    Anaktuvuk Pass,
                                                    Nuiqsut, and
                                                    Kaktovik.
26C...........................  Muskox...........  Residents Kaktovik.
26A...........................  Sheep............  Residents of Unit 26,
                                                    Anaktuvuk Pass, and
                                                    Point Hope.
26B...........................  Sheep............  Residents of Unit 26,
                                                    Anaktuvuk Pass,
                                                    Point Hope, and
                                                    Wiseman.
26C...........................  Sheep............  Residents of Unit 26,
                                                    Anaktuvuk Pass,
                                                    Arctic Village,
                                                    Chalkyitsik, Fort
                                                    Yukon, Point Hope,
                                                    and Venetie.
26............................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
------------------------------------------------------------------------

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

------------------------------------------------------------------------
             Area                    Species           Determination
------------------------------------------------------------------------
Kotzebue Area.................  All fish.........  Residents of the
                                                    Kotzebue Area.
Norton Sound--Port Clarence
 Area:
    Norton Sound--Port          All fish.........  Residents of
     Clarence Area, waters                          Stebbins, St.
     draining into Norton                           Michael, and Kotlik.
     Sound between Point
     Romanof and Canal Point.
    Norton Sound--Port          All fish.........  Residents of the
     Clarence Area, remainder.                      Norton Sound--Port
                                                    Clarence Area.
Yukon--Northern Area:

[[Page 214]]

 
    Yukon River drainage......  Salmon, other      Residents of the
                                 than fall chum     Yukon River drainage
                                 salmon.            and the community of
                                                    Stebbins.
    Yukon River drainage......  Fall chum salmon.  Residents of the
                                                    Yukon River drainage
                                                    and the communities
                                                    of Stebbins, Scammon
                                                    Bay, Hooper Bay, and
                                                    Chevak.
    Yukon River drainage......  Freshwater fish    Residents of the
                                 (other than        Yukon--Northern
                                 salmon).           Area.
    Remainder of the Yukon--    All fish.........  Residents of the
     Northern Area.                                 Yukon--Northern
                                                    Area, excluding the
                                                    residents of the
                                                    Yukon River drainage
                                                    and excluding those
                                                    domiciled in Unit
                                                    26B.
    Tanana River drainage       Freshwater fish    Residents of the
     contained within the        (other than        Yukon--Northern Area
     Tetlin NWR and the          salmon).           and residents of
     Wrangell-St. Elias NPP.                        Mentasta Lake,
                                                    Chistochina, Slana,
                                                    and all residents
                                                    living between
                                                    Mentasta Lake and
                                                    Chistochina.
Kuskokwim Area................  Salmon...........  Residents of the
                                                    Kuskokwim Area,
                                                    except those persons
                                                    residing on the
                                                    United States
                                                    military
                                                    installations
                                                    located on Cape
                                                    Newenham, Sparrevohn
                                                    USAFB, and Tatalina
                                                    USAFB.
                                Rainbow trout....  Residents of the
                                                    communities of
                                                    Akiachak, Akiak,
                                                    Aniak, Atmautluak,
                                                    Bethel, Chuathbaluk,
                                                    Crooked Creek, Eek,
                                                    Goodnews Bay,
                                                    Kasigluk, Kwethluk,
                                                    Lower Kalskag,
                                                    Napakiak, Napaskiak,
                                                    Nunapitchuk,
                                                    Oscarville,
                                                    Platinum, Quinhagak,
                                                    Tuluksak,
                                                    Tuntutuliak, and
                                                    Upper Kalskag.
                                Pacific cod......  Residents of the
                                                    communities of
                                                    Chevak, Newtok,
                                                    Tununak, Toksook
                                                    Bay, Nightmute,
                                                    Chefornak, Kipnuk,
                                                    Mekoryuk,
                                                    Kwigillingok,
                                                    Kongiganak, Eek, and
                                                    Tuntutuliak.
                                All other fish     Residents of the
                                 other than         Kuskokwim Area,
                                 herring.           except those persons
                                                    residing on the
                                                    United States
                                                    military
                                                    installation located
                                                    on Cape Newenham,
                                                    Sparrevohn USAFB,
                                                    and Tatalina USAFB.
    Waters around Nunivak       Herring and        Residents within 20
     Island.                     herring roe.       miles of the coast
                                                    between the
                                                    westernmost tip of
                                                    the Naskonat
                                                    Peninsula and the
                                                    terminus of the
                                                    Ishowik River and on
                                                    Nunivak Island.
Bristol Bay Area:
    Nushagak District,          Salmon and         Residents of the
     including drainages         freshwater fish.   Nushagak District
     flowing into the district.                     and freshwater
                                                    drainages flowing
                                                    into the district.
    Naknek-Kvichak District--   Salmon and         Residents of the
     Naknek River drainage.      freshwater fish.   Naknek and Kvichak
                                                    River drainages.
    Naknek-Kvichak District--   Salmon and         Residents of the
     Kvichak/Iliamna-Lake        freshwater fish.   Kvichak/Iliamna-Lake
     Clark drainage.                                Clark drainage.
    Togiak District, including  Salmon and         Residents of the
     drainages flowing into      freshwater fish.   Togiak District,
     the district.                                  freshwater drainages
                                                    flowing into the
                                                    district, and the
                                                    community of
                                                    Manokotak.
    Egegik District, including  Salmon and         Residents of South
     drainages flowing into      freshwater fish.   Naknek, the Egegik
     the district.                                  District and
                                                    freshwater drainages
                                                    flowing into the
                                                    district.
    Ugashik District,           Salmon and         Residents of the
     including drainages         freshwater fish.   Ugashik District and
     flowing into the district.                     freshwater drainages
                                                    flowing into the
                                                    district.
    Togiak District...........  Herring spawn on   Residents of the
                                 kelp.              Togiak District and
                                                    freshwater drainages
                                                    flowing into the
                                                    district.
Aleutian Islands Area.........  All fish.........  Residents of the
                                                    Aleutian Islands
                                                    Area and the
                                                    Pribilof Islands.
Alaska Peninsula Area.........  Halibut..........  Residents of the
                                                    Alaska Peninsula
                                                    Area and the
                                                    communities of
                                                    Ivanof Bay and
                                                    Perryville.
                                All other fish in  Residents of the
                                 the Alaska         Alaska Peninsula
                                 Peninsula Area.    Area.
Chignik Area..................  Halibut, salmon    Residents of the
                                 and fish other     Chignik Area.
                                 than rainbow/
                                 steelhead trout.

[[Page 215]]

 
Kodiak Area--except the         Salmon...........  Residents of the
 Mainland District, all waters                      Kodiak Island
 along the south side of the                        Borough, except
 Alaska Peninsula bounded by                        those residing on
 the latitude of Cape Douglas                       the Kodiak Coast
 (58[deg]51.10[min] North                           Guard Base.
 latitude) mid-stream Shelikof
 Strait, north and east of the
 longitude of the southern
 entrance of Imuya Bay near
 Kilokak Rocks
 (57[deg]10.34[min] North
 latitude, 156[deg]20.22[min]
 West longitude).
    Kodiak Area...............  Fish other than    Residents of the
                                 rainbow/           Kodiak Area.
                                 steelhead trout
                                 and salmon.
Cook Inlet Area:
    Kenai Peninsula District--  All fish.........  Residents of the
     Waters north of and                            communities of Hope,
     includng the Kenai River                       Cooper Landing, and
     drainage within the Kenai                      Ninilchik.
     National Wildlife Refuge
     an the Chugach National
     Forest.
    Waters within the Kasilof   All fish.........  Residents of the
     River drainage within the                      community of
     Kenai NWR.                                     Ninilchik.
    Waters within Lake Clark    Salmon...........  Residents of the
     National Park draining                         Tuxedni Bay area.
     into and including that
     portion of Tuxedni Bay
     within the park.
    Cook Inlet Area--Remainder  Fish other than    Residents of the Cook
                                 salmon, Dolly      Inlet Area.
                                 Varden, trout,
                                 char, grayling,
                                 and burbot.
Prince William Sound Area:
    Southwestern District and   Salmon...........  Residents of the
     Green Island.                                  Southwestern
                                                    District, which is
                                                    mainland waters from
                                                    the outer point on
                                                    the north shore of
                                                    Granite Bay to Cape
                                                    Fairfield, and
                                                    Knight Island,
                                                    Chenega Island,
                                                    Bainbridge Island,
                                                    Evans Island,
                                                    Elrington Island,
                                                    Latouche Island and
                                                    adjacent islands.
    North of a line from        Salmon...........  Residents of the
     Porcupine Point to                             villages of Tatitlek
     Granite Point, and south                       and Ellamar.
     of a line from Point Lowe
     to Tongue Point.
    Copper River drainage       Freshwater fish..  Residents of
     upstream from Haley Creek.                     Cantwell, Chisana,
                                                    Chistochina,
                                                    Chitina, Copper
                                                    Center, Dot Lake,
                                                    Gakona, Gakona
                                                    Junction,
                                                    Glennallen, Gulkana,
                                                    Healy Lake, Kenny
                                                    Lake, Lower Tonsina,
                                                    McCarthy, Mentasta
                                                    Lake, Nabesna,
                                                    Northway, Slana,
                                                    Tanacross, Tazlina,
                                                    Tetlin, Tok,
                                                    Tonsina, and those
                                                    individuals that
                                                    live along the Tok
                                                    Cutoff from Tok to
                                                    Mentasta Pass, and
                                                    along the Nabesna
                                                    Road.
    Gulkana National Wild and   Freshwater fish..  Residents of
     Scenic River.                                  Cantwell, Chisana,
                                                    Chistochina,
                                                    Chitina, Copper
                                                    Center, Dot Lake,
                                                    Gakona, Gakona
                                                    Junction,
                                                    Glennallen, Gulkana,
                                                    Healy Lake, Kenny
                                                    Lake, Lower Tonsina,
                                                    McCarthy, Mentasta
                                                    Lake, Nabesna,
                                                    Northway, Paxson-
                                                    Sourdough, Slana,
                                                    Tanacross, Tazlina,
                                                    Tetlin, Tok,
                                                    Tonsina, and those
                                                    individuals that
                                                    live along the Tok
                                                    Cutoff from Tok to
                                                    Mentasta Pass, and
                                                    along the Nabesna
                                                    Road.
    Waters of the Prince        Freshwater fish    Residents of the
     William Sound Area,         (trout, char,      Prince William Sound
     except for the Copper       whitefish,         Area, except those
     River drainage upstream     suckers,           living in the Copper
     of Haley Creek.             grayling, and      River drainage
                                 burbot).           upstream of Haley
                                                    Creek.
    Chitina Subdistrict of the  Salmon...........  Residents of
     Upper Copper River                             Cantwell,
     District.                                      Chickaloon, Chisana,
                                                    Christochina,
                                                    Chitina, Copper
                                                    Center, Dot Lake,
                                                    Gakona, Gakona
                                                    Junction,
                                                    Glennallen, Gulkana,
                                                    Healy Lake, Kenny
                                                    Lake, Lower Tonsina,
                                                    McCarthy, Mentasta
                                                    Lake, Nabesna,
                                                    Northway, Paxson-
                                                    Sourdough, Slana,
                                                    Tanacross, Tazlina,
                                                    Tetlin, Tok,
                                                    Tonsina, and those
                                                    individuals that
                                                    live along the Tok
                                                    Cutoff from Tok to
                                                    Mentasta Pass, and
                                                    along the Nabesna
                                                    Road.

[[Page 216]]

 
    Glennallen Subdistrict of   Salmon...........  Residents of the
     the Upper Copper River                         Prince William Sound
     District.                                      Area and residents
                                                    of Cantwell,
                                                    Chickaloon, Chisana,
                                                    Dot Lake, Healy
                                                    Lake, Northway,
                                                    Tanacross, Tetlin,
                                                    Tok, and those
                                                    individuals living
                                                    along the Alaska
                                                    Highway from the
                                                    Alaskan/Canadian
                                                    border to Dot Lake,
                                                    along the Tok Cutoff
                                                    from Tok to Mentasta
                                                    Pass, and along the
                                                    Nabesna Road.
    Waters of the Copper River  Salmon...........  Residents of Mentasta
     between National Park                          Lake and Dot Lake.
     Service regulatory
     markers located near the
     mouth of Tanada Creek,
     and in Tanada Creek
     between National Park
     Service regulatory
     markers identifying the
     open waters of the creek.
    Remainder of the Prince     Salmon...........  Residents of the
     William Sound Area.                            Prince William Sound
                                                    Area.
    Waters of the Bering River  Eulachon.........  Residents of Cordova.
     area from Point Martin to
     Cape Suckling.
    Waters of the Copper River  Eulachon.........  Residents of Cordova,
     Delta from the Eyak River                      Chenega Bay, and
     to Point Martin.                               Tatitlek.
Yakutat Area:
    Fresh water upstream from   Salmon...........  Residents of the area
     the terminus of streams                        east of Yakutat Bay,
     and rivers of the Yakutat                      including the
     Area from the Doame River                      islands within
     to the Tsiu River.                             Yakutat Bay, west of
                                                    the Situk River
                                                    drainage, and south
                                                    of and including
                                                    Knight Island.
    Fresh water upstream from   Dolly Varden,      Residents of the area
     the terminus of streams     steelhead trout,   east of Yakutat Bay,
     and rivers of the Yakutat   and smelt.         including the
     Area from the Doame River                      islands within
     to Point Manby.                                Yakutat Bay, west of
                                                    the Situk River
                                                    drainage, and south
                                                    of and including
                                                    Knight Island.
    Remainder of the Yakutat    Dolly Varden,      Residents of
     Area.                       trout, smelt,      Southeastern Alaska
                                 and eulachon.      and Yakutat Areas.
Southeastern Alaska Area:
    District 1--Sec. ion 1E in   Salmon, Dolly      Residents of the City
     waters of the Naha River    Varden, trout,     of Saxman.
     and Roosevelt Lagoon.       smelt, and
                                 eulachon.
    District 1--Sec. ion 1F in   Salmon, Dolly      Residents of the City
     Boca de Quadra in waters    Varden, trout,     of Saxman.
     of Sockeye Creek and Hugh   smelt, and
     Smith Lake within 500       eulachon.
     yards of the terminus of
     Sockeye Creek.
    Districts 2, 3, and 5 and   Salmon, Dolly      Residents living
     waters draining into        Varden, trout,     south of Sumner
     those Districts.            smelt, and         Strait and west of
                                 eulachon.          Clarence Strait and
                                                    Kashevaroff Passage.
    District 5--North of a      Salmon, Dolly      Residents of the City
     line from Point Barrie to   Varden, trout,     of Kake and in
     Boulder Point.              smelt, and         Kupreanof Island
                                 eulachon.          drainages emptying
                                                    into Keku Strait
                                                    south of Point White
                                                    and north of the
                                                    Portage Bay boat
                                                    harbor.
    District 6 and waters       Salmon, Dolly      Residents of the
     draining into that          Varden, trout,     living south of
     District.                   smelt, and         Sumner Strait and
                                 eulachon.          west of Clarence
                                                    Strait and
                                                    Kashevaroff Passage;
                                                    residents of
                                                    drainages flowing
                                                    into District 6
                                                    north of the
                                                    latitude of Point
                                                    Alexander (Mitkof
                                                    Island); residents
                                                    of drainages flowing
                                                    into Districts 7 &
                                                    8, including the
                                                    communities of
                                                    Petersburg &
                                                    Wrangell; and
                                                    residents of the
                                                    communities of
                                                    Meyers Chuck and
                                                    Kake.
    District 7 and waters       Salmon, Dolly      Residents of
     draining into that          Varden, trout,     drainages flowing
     District.                   smelt, and         into District 6
                                 eulachon.          north of the
                                                    latitude of Point
                                                    Alexander (Mitkof
                                                    Island); residents
                                                    of drainages flowing
                                                    into Districts 7 &
                                                    8, including the
                                                    communities of
                                                    Petersburg &
                                                    Wrangell; and
                                                    residents of the
                                                    communities of
                                                    Meyers Chuck and
                                                    Kake.
    District 8 and waters       Salmon, Dolly      Residents of
     draining into that          Varden, trout,     drainages flowing
     District.                   smelt, and         into Districts 7 &
                                 eulachon.          8, residents of
                                                    drainages flowing
                                                    into District 6
                                                    north of the
                                                    latitude of Point
                                                    Alexander (Mitkof
                                                    Island), and
                                                    residents of Meyers
                                                    Chuck.

[[Page 217]]

 
    District 9--Sec. ion 9A....  Salmon, Dolly      Residents of the City
                                 Varden, trout,     of Kake and in
                                 smelt, and         Kupreanof Island
                                 eulachon.          drainages emptying
                                                    into Keku Strait
                                                    south of Point White
                                                    and north of Portage
                                                    Bay boat harbor.
    District 9--Sec. ion 9B      Salmon, Dolly      Residents of the City
     north of the latitude of    Varden, trout,     of Kake and in
     Swain Point.                smelt, and         Kupreanof Island
                                 eulachon.          drainages emptying
                                                    into Keku Strait
                                                    south of Point White
                                                    and north of the
                                                    Portage Bay boat
                                                    harbor.
    District 10--West of a      Salmon, Dolly      Residents of the City
     line from Pinta Point to    Varden, trout,     of Kake and in
     False Point Pybus.          smelt, and         Kupreanof Island
                                 eulachon.          drainages emptying
                                                    into Keku Strait
                                                    south of Point White
                                                    and north of the
                                                    Portage Bay boat
                                                    harbor.
    District 12--South of a     Salmon, Dolly      Residents of the City
     line from Fishery Point     Varden, trout,     of Angoon and along
     to south Passage Point      smelt, and         the western shore of
     and north of the latitude   eulachon.          Admiralty Island
     of Point Caution.                              north of the
                                                    latitude of Sand
                                                    Island, south of the
                                                    latitude of Thayer
                                                    Creek, and west of
                                                    134[deg]30[min] West
                                                    longitude, including
                                                    Killisnoo Island.
    District 12--Sec. ion 12A,   All fish.........  Residents of
     excluding the area south                       drainages flowing
     of a line from Fishery                         into Districts 12
     Point to South Passage                         and 14.
     Point Sec. ion 12B.
    District 13--Sec. ion 13A,   Salmon, Dolly      Residents of the City
     south of the latitude of    Varden, trout,     and Borough of Sitka
     Cape Edward.                smelt, and         in drainages that
                                 eulachon.          empty into Sec. ion
                                                    13B north of the
                                                    latitude of Dorothy
                                                    Narrows.
    District 13--Sec. ion 13A,   All fish.........  Residents of
     excluding the area south                       drainages flowing
     of the latitude of Cape                        into Sec. ions 13A,
     Edward.                                        13B, and District
                                                    14.
    District 13--Sec. ion 13B    Salmon, Dolly      Residents of the City
     north of the latitude of    Varden, trout,     and Borough of Sitka
     Redfish Cape.               smelt, and         in drainages that
                                 eulachon.          empty into Sec. ion
                                                    13B north of the
                                                    latitude of Dorothy
                                                    Narrows.
    District 13--Sec. ion 13C..  Salmon, Dolly      Residents of the City
                                 Varden, trout,     and Borough of Sitka
                                 smelt, and         in drainages that
                                 eulachon.          empty into Sec. ion
                                                    13B north of the
                                                    latitude of Dorothy
                                                    Narrows.
    District 13--Sec. ion 13C    Salmon, Dolly      Residents of the City
     east of the longitude of    Varden, trout,     of Angoon and along
     Point Elizabeth.            smelt, and         the western shore of
                                 eulachon.          Admiralty Island
                                                    north of the
                                                    latitude of Sand
                                                    Island, south of the
                                                    latitude of Thayer
                                                    Creek, and west of
                                                    134[deg]30[min] West
                                                    longitude, including
                                                    Killisnoo Island.
    District 14...............  All fish.........  Residents of
                                                    drainages flowing
                                                    into Sec. ions 12A,
                                                    13A, and District
                                                    14.
    Remainder of the            Dolly Varden,      Residents of
     Southeastern Alaska Area.   trout, smelt,      Southeastern Alaska
                                 and eulachon.      and Yakutat Areas.
------------------------------------------------------------------------

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

------------------------------------------------------------------------
             Area                    Species           Determination
------------------------------------------------------------------------
Bering Sea Area...............  All shellfish....  Residents of the
                                                    Bering Sea Area.
Alaska Peninsula-Aleutian       Shrimp Dungeness,  Residents of the
 Islands Area.                   and Tanner crab.   Alaska Peninsula-
                                                    Aleutian Islands
                                                    Area.
Kodiak Area...................  Shrimp,            Residents of the
                                 Dungeness, and     Kodiak Area.
                                 Tanner crab.
    Kodiak Area, except for     King crab........  Residents of the
     the Semidi Island, the                         Kodiak Island
     North Mainland, and the                        Borough, except
     South Mainland Sec. ions.                       those residents on
                                                    the Kodiak Coast
                                                    Guard base.
Cook Inlet Area:
    Federal waters in the       Shellfish........  Residents of Tuxedni
     Tuxedni Bay Area within                        Bay, Chisik Island,
     the boundaries of Lake                         and Tyonek.
     Clark National Park.
Prince William Sound Area.....  Shrimp, clams,     Residents of the
                                 Dungeness, king,   Prince William Sound
                                 and Tanner crab.   Area.
Southeastern Alaska--Yakutat
 Area:
    Sec. ion 1E south of the     Shellfish, except  Residents of the
     latitude of Grant Island    shrimp, king       Southeast Area.
     light.                      crab, and Tanner
                                 crab..

[[Page 218]]

 
    Sec. ion 1F north of the     Shellfish, except  Residents of the
     latitude of the             shrimp, king       Southeast Area.
     northernmost tip of Mary    crab, and Tanner
     Island, except waters of    crab.
     Boca de Quadra.
    Sec. ion 3A and 3B.........  Shellfish, except  Residents of the
                                 shrimp, king       Southeast Area.
                                 crab, and Tanner
                                 crab.
    District 13...............  Dungeness crab,    Residents of the
                                 shrimp, abalone,   Southeast Area.
                                 sea cucumbers,
                                 gum boots,
                                 cockles, and
                                 clams, except
                                 geoducks.
------------------------------------------------------------------------

    (b) [Reserved]

[64 FR 1301, Jan. 8, 1999; 64 FR 35823, 35780, July 1, 1999, as amended 
at 65 FR 40734, June 30, 2000; 66 FR 31544, June 12, 2001; 66 FR 33748, 
June 25, 2001; 67 FR 30570, May 7, 2002; 67 FR 43714, June 28, 2002; 70 
FR 36272, June 22, 2005; 71 FR 37647, June 30, 2006; 72 FR 12679, Mar. 
16, 2007]



            Subpart D_Subsistence Taking of Fish and Wildlife



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

    (a) Definitions. The following definitions shall apply to all 
regulations contained in this part:
    Abalone iron means a flat device which is used for taking abalone 
and which is more than 1 inch (24 mm) in width and less than 24 inches 
(610 mm) in length, with all prying edges rounded and smooth.
    ADF&G means the Alaska Department of Fish and Game.
    Airborne means transported by aircraft.
    Aircraft means any kind of airplane, glider, or other device used to 
transport people or equipment through the air, excluding helicopters.
    Airport means an airport listed in the Federal Aviation 
Administration's Alaska Airman's Guide and chart supplement.
    Anchor means a device used to hold a fishing vessel or net in a 
fixed position relative to the beach; this includes using part of the 
seine or lead, a ship's anchor, or being secured to another vessel or 
net that is anchored.
    Animal means those species with a vertebral column (backbone).
    Antler means one or more solid, horn-like appendages protruding from 
the head of a caribou, deer, elk, or moose.
    Antlered means any caribou, deer, elk, or moose having at least one 
visible antler.
    Antlerless means any caribou, deer, elk, or moose not having visible 
antlers attached to the skull.
    Bait means any material excluding a scent lure that is placed to 
attract an animal by its sense of smell or taste; however, those parts 
of legally taken animals that are not required to be salvaged and which 
are left at the kill site are not considered bait.
    Beach seine means a floating net which is designed to surround fish 
and is set from and hauled to the beach.
    Bear means black bear, or brown or grizzly bear.
    Big game means black bear, brown bear, bison, caribou, Sitka black-
tailed deer, elk, mountain goat, moose, musk-ox, Dall sheep, wolf, and 
wolverine.
    Bow means a longbow, recurve bow, or compound bow, excluding a 
crossbow or any bow equipped with a mechanical device that holds arrows 
at full draw.
    Broadhead means an arrowhead that is not barbed and has two or more 
steel cutting edges having a minimum cutting diameter of not less than 
seven-eighths of an inch.
    Brow tine means a tine on the front portion of a moose antler, 
typically projecting forward from the base of the antler toward the 
nose.
    Buck means any male deer.
    Bull means any male moose, caribou, elk, or musk-oxen.

[[Page 219]]

    Calf means a moose, caribou, elk, musk-ox, or bison less than 12 
months old.
    Cast net means a circular net with a mesh size of no more than 12 
inches and weights attached to the perimeter, which, when thrown, 
surrounds the fish and closes at the bottom when retrieved.
    Char means the following species: Arctic char (Salvelinus alpinis), 
lake trout (Salvelinus namaycush), brook trout (Salvelinus fontinalis), 
and Dolly Varden (Salvelinus malma).
    Closed season means the time when fish, wildlife, or shellfish may 
not be taken.
    Crab means the following species: red king crab (Paralithodes 
camshatica), blue king crab (Paralithodes platypus), brown king crab 
(Lithodes aequispina), scarlet king crab Lithodes couesi, all species of 
tanner or snow crab (Chionoecetes spp.), and Dungeness crab (Cancer 
magister).
    Cub bear means a brown or grizzly bear in its first or second year 
of life, or a black bear (including cinnamon and blue phases) in its 
first year of life.
    Depth of net means the perpendicular distance between cork line and 
lead line expressed as either linear units of measure or as a number of 
meshes, including all of the web of which the net is composed.
    Designated hunter or fisherman means a Federally qualified hunter or 
fisherman who may take all or a portion of another Federally qualified 
hunter's or fisherman's harvest limit(s) only under situations approved 
by the Board.
    Dip net means a bag-shaped net supported on all sides by a rigid 
frame; the maximum straight-line distance between any two points on the 
net frame, as measured through the net opening, may not exceed 5 feet; 
the depth of the bag must be at least one-half of the greatest straight-
line distance, as measured through the net opening; no portion of the 
bag may be constructed of webbing that exceeds a stretched measurement 
of 4.5 inches; the frame must be attached to a single rigid handle and 
be operated by hand.
    Diving gear means any type of hard hat or skin diving equipment, 
including SCUBA equipment; a tethered, umbilical, surface-supplied unit; 
or snorkel.
    Drainage means all of the lands and waters comprising a watershed, 
including tributary rivers, streams, sloughs, ponds, and lakes, which 
contribute to the water supply of the watershed.
    Drift gillnet means a drifting gillnet that has not been 
intentionally staked, anchored, or otherwise fixed in one place.
    Edible meat means the breast meat of ptarmigan and grouse, and, 
those parts of caribou, deer, elk, mountain goat, moose, musk-oxen, and 
Dall sheep that are typically used for human consumption, which are: The 
meat of the ribs, neck, brisket, front quarters as far as the distal 
(bottom) joint of the radius-ulna (knee), hindquarters as far as the 
distal joint (bottom) of the tibia-fibula (hock) and that portion of the 
animal between the front and hindquarters; however, edible meat of 
species listed in this definition does not include: meat of the head, 
meat that has been damaged and made inedible by the method of taking, 
bones, sinew, and incidental meat reasonably lost as a result of boning 
or close trimming of the bones, or viscera. For black bear, brown and 
grizzly bear, ``edible meat'' means the meat of the front quarter and 
hindquarters and meat along the backbone (backstrap).
    Federally-qualified subsistence user means a rural Alaska resident 
qualified to harvest fish or wildlife on Federal public lands in 
accordance with the Federal Subsistence Management Regulations in this 
part.
    Field means an area outside of established year-round dwellings, 
businesses, or other developments usually associated with a city, town, 
or village; field does not include permanent hotels or roadhouses on the 
State road system or at State or Federally maintained airports.
    Fifty-inch (50-inch) moose means a bull moose with an antler spread 
of 50 inches or more.
    Fish wheel means a fixed, rotating device, with no more than four 
baskets on a single axle, for catching fish, which is driven by river 
current or other means.
    Fresh water of streams and rivers means the line at which fresh 
water is

[[Page 220]]

separated from salt water at the mouth of streams and rivers by a line 
drawn headland to headland across the mouth as the waters flow into the 
sea.
    Full curl horn means the horn of a Dall sheep ram; the tip of which 
has grown through 360 degrees of a circle described by the outer surface 
of the horn, as viewed from the side, or that both horns are broken, or 
that the sheep is at least 8 years of age as determined by horn growth 
annuli.
    Furbearer means a beaver, coyote, arctic fox, red fox, lynx, marten, 
mink, weasel, muskrat, river (land) otter, red squirrel, flying 
squirrel, ground squirrel, marmot, wolf, or wolverine.
    Fyke net means a fixed, funneling (fyke) device used to entrap fish.
    Gear means any type of fishing apparatus.
    Gillnet means a net primarily designed to catch fish by entanglement 
in a mesh that consists of a single sheet of webbing which hangs between 
cork line and lead line, and which is fished from the surface of the 
water.
    Grappling hook means a hooked device with flukes or claws, which is 
attached to a line and operated by hand.
    Groundfish or bottomfish means any marine fish except halibut, 
osmerids, herring and salmonids.
    Grouse collectively refers to all species found in Alaska, including 
spruce grouse, ruffed grouse, blue grouse, and sharp-tailed grouse.
    Hand purse seine means a floating net which is designed to surround 
fish and which can be closed at the bottom by pursing the lead line; 
pursing may only be done by hand power, and a free-running line through 
one or more rings attached to the lead line is not allowed.
    Handicraft means a finished product made by a rural Alaskan resident 
from the nonedible byproducts of fish or wildlife and is composed wholly 
or in some significant respect of natural materials. The shape and 
appearance of the natural material must be substantially changed by the 
skillful use of hands, such as sewing, weaving, drilling, lacing, 
beading, carving, etching, scrimshawing, painting, or other means, and 
incorporated into a work of art, regalia, clothing, or other creative 
expression, and can be either traditional or contemporary in design. The 
handicraft must have substantially greater monetary and aesthetic value 
than the unaltered natural material alone.
    Handline means a hand-held and operated line, with one or more hooks 
attached.
    Hare or hares collectively refers to all species of hares (commonly 
called rabbits) in Alaska and includes snowshoe hare and tundra hare.
    Harvest limit means the number of any one species permitted to be 
taken by any one person or designated group, per specified time period, 
in a Unit or portion of a Unit in which the taking occurs even if part 
or all of the harvest is preserved. A fish, when landed and killed by 
means of rod and reel, becomes part of the harvest limit of the person 
originally hooking it.
    Herring pound means an enclosure used primarily to contain live 
herring over extended periods of time.
    Highway means the drivable surface of any constructed road.
    Household means that group of people residing in the same residence.
    Hung measure means the maximum length of the cork line when measured 
wet or dry with traction applied at one end only.
    Hunting means the taking of wildlife within established hunting 
seasons with archery equipment or firearms, and as authorized by a 
required hunting license.
    Hydraulic clam digger means a device using water or a combination of 
air and water used to harvest clams.
    Jigging gear means a line or lines with lures or baited hooks, drawn 
through the water by hand, and which are operated during periods of ice 
cover from holes cut in the ice, or from shore ice and which are drawn 
through the water by hand.
    Lead means either a length of net employed for guiding fish into a 
seine, set gillnet, or other length of net, or a length of fencing 
employed for guiding fish into a fish wheel, fyke net, or dip net.
    Legal limit of fishing gear means the maximum aggregate of a single 
type of fishing gear permitted to be used by one individual or boat, or 
combination of boats in any particular regulatory area, district, or 
section.

[[Page 221]]

    Long line means either a stationary, buoyed, or anchored line, or a 
floating, free-drifting line with lures or baited hooks attached.
    Marmot collectively refers to all species of marmot that occur in 
Alaska, including the hoary marmot, Alaska marmot, and the woodchuck.
    Mechanical clam digger means a mechanical device used or capable of 
being used for the taking of clams.
    Mechanical jigging machine means a mechanical device with line and 
hooks used to jig for halibut and bottomfish, but does not include hand 
gurdies or rods with reels.
    Mile means a nautical mile when used in reference to marine waters 
or a statute mile when used in reference to fresh water.
    Motorized vehicle means a motor-driven land, air, or water 
conveyance.
    Open season means the time when wildlife may be taken by hunting or 
trapping; an open season includes the first and last days of the 
prescribed season period.
    Otter means river or land otter only, excluding sea otter.
    Permit hunt means a hunt for which State or Federal permits are 
issued by registration or other means.
    Poison means any substance that is toxic or poisonous upon contact 
or ingestion.
    Possession means having direct physical control of wildlife at a 
given time or having both the power and intention to exercise dominion 
or control of wildlife either directly or through another person or 
persons.
    Possession limit means the maximum number of fish, grouse, or 
ptarmigan a person or designated group may have in possession if the 
they have not been canned, salted, frozen, smoked, dried, or otherwise 
preserved so as to be fit for human consumption after a 15-day period.
    Pot means a portable structure designed and constructed to capture 
and retain live fish and shellfish in the water.
    Ptarmigan collectively refers to all species found in Alaska, 
including white-tailed ptarmigan, rock ptarmigan, and willow ptarmigan.
    Purse seine means a floating net which is designed to surround fish 
and which can be closed at the bottom by means of a free-running line 
through one or more rings attached to the lead line.
    Ram means a male Dall sheep.
    Registration permit means a permit that authorizes hunting and is 
issued to a person who agrees to the specified hunting conditions. 
Hunting permitted by a registration permit begins on an announced date 
and continues throughout the open season, or until the season is closed 
by Board action. Registration permits are issued in the order 
applications are received and/or are based on priorities as determined 
by 50 CFR 100.17 and 36 CFR 242.17.
    Regulatory year means July 1 through June 30, except for fish and 
shellfish, for which it means April 1 through March 31.
    Ring net means a bag-shaped net suspended between no more than two 
frames; the bottom frame may not be larger in perimeter than the top 
frame; the gear must be nonrigid and collapsible so that free movement 
of fish or shellfish across the top of the net is not prohibited when 
the net is employed.
    Rockfish means all species of the genus Sebastes.
    Rod and reel means either a device upon which a line is stored on a 
fixed or revolving spool and is deployed through guides mounted on a 
flexible pole, or a line that is attached to a pole. In either case, 
bait or an artificial fly or lure is used as terminal tackle. This 
definition does not include the use of rod and reel gear for snagging.
    Salmon means the following species: pink salmon (Oncorhynchus 
gorbuscha); sockeye salmon (Oncorhynchus nerka); Chinook salmon 
(Oncorhynchus tshawytscha); coho salmon (Oncorhynchus kisutch); and chum 
salmon (Oncorhynchus keta).
    Salmon stream means any stream used by salmon for spawning, rearing, 
or for traveling to a spawning or rearing area.
    Salvage means to transport the edible meat, skull, or hide, as 
required by regulation, of a regulated fish, wildlife, or shellfish to 
the location where the edible meat will be consumed by humans or 
processed for human consumption in a manner which saves or prevents the

[[Page 222]]

edible meat from waste, and preserves the skull or hide for human use.
    Scallop dredge means a dredge-like device designed specifically for 
and capable of taking scallops by being towed along the ocean floor.
    Sea urchin rake means a hand-held implement, no longer than 4 feet, 
equipped with projecting prongs used to gather sea urchins.
    Sealing means placing a mark or tag on a portion of a harvested 
animal by an authorized representative of the ADF&G sealing includes 
collecting and recording information about the conditions under which 
the animal was harvested, and measurements of the specimen submitted for 
sealing or surrendering a specific portion of the animal for biological 
information.
    Set gillnet means a gillnet that has been intentionally set, staked, 
anchored, or otherwise fixed.
    Seven-eighths curl horn means the horn of a male Dall sheep, the tip 
of which has grown through seven-eights (315 degrees) of a circle, 
described by the outer surface of the horn, as viewed from the side, or 
with both horns broken.
    Shovel means a hand-operated implement for digging clams.
    Skin, hide, pelt, or fur means any tanned or untanned external 
covering of an animal's body. However, for bear, the skin, hide, pelt, 
or fur means the external covering with claws attached.
    Snagging means hooking or attempting to hook a fish elsewhere than 
in the mouth.
    Spear means a shaft with a sharp point or fork-like implement 
attached to one end, which is used to thrust through the water to impale 
or retrieve fish, and which is operated by hand.
    Spike-fork moose means a bull moose with only one or two tines on 
either antler; male calves are not spike-fork bulls.
    Stretched measure means the average length of any series of 10 
consecutive meshes measured from inside the first knot and including the 
last knot when wet; the 10 meshes, when being measured, shall be an 
integral part of the net, as hung, and measured perpendicular to the 
selvages; measurements shall be made by means of a metal tape measure 
while the 10 meshes being measured are suspended vertically from a 
single peg or nail, under 5-pound weight.
    Subsistence fishing permit means a subsistence harvest permit issued 
by the Alaska Department of Fish and Game or the Federal Subsistence 
Board.
    Take or Taking means to fish, pursue, hunt, shoot, trap, net, 
capture, collect, kill, harm, or attempt to engage in any such conduct.
    Tine or antler point refers to any point on an antler, the length of 
which is greater than its width and is at least one inch.
    To operate fishing gear means any of the following: To deploy gear 
in the water; to remove gear from the water; to remove fish or shellfish 
from the gear during an open season or period; or to possess a gillnet 
containing fish during an open fishing period, except that a gillnet 
which is completely clear of the water is not considered to be operating 
for the purposes of minimum distance requirement.
    Transportation means to ship, convey, carry, or transport by any 
means whatever and deliver or receive for such shipment, conveyance, 
carriage, or transportation.
    Trapping means the taking of furbearers within established trapping 
seasons and with a required trapping license.
    Trawl means a bag-shaped net towed through the water to capture fish 
or shellfish, and includes beam, otter, or pelagic trawl.
    Troll gear means a power gurdy troll gear consisting of a line or 
lines with lures or baited hooks which are drawn through the water by a 
power gurdy; hand troll gear consisting of a line or lines with lures or 
baited hooks which are drawn through the water from a vessel by hand 
trolling, strip fishing, or other types of trolling, and which are 
retrieved by hand power or hand-powered crank and not by any type of 
electrical, hydraulic, mechanical, or other assisting device or 
attachment; or dinglebar troll gear consisting of one or more lines, 
retrieved and set with a troll gurdy or hand troll gurdy, with a 
terminally attached weight from which one or more leaders with one or 
more lures or baited hooks are pulled

[[Page 223]]

through the water while a vessel is making way.
    Trophy means a mount of a big game animal, including the skin of the 
head (cape) or the entire skin, in a lifelike representation of the 
animal, including a lifelike representation made from any part of a big 
game animal; ``trophy'' also includes a ``European mount'' in which the 
horns or antlers and the skull or a portion of the skull are mounted for 
display.
    Trout means the following species: cutthroat trout (Oncorhynchus 
clarki) and rainbow/steelhead trout (Oncorhynchus mykiss).
    Unclassified wildlife or unclassified species means all species of 
animals not otherwise classified by the definitions in this paragraph 
(a), or regulated under other Federal law as listed in paragraph (i) of 
this section.
    Ungulate means any species of hoofed mammal, including deer, 
caribou, elk, moose, mountain goat, Dall sheep, and musk oxen.
    Unit and Subunit mean one of the geographical areas in the State of 
Alaska known as Game Management Units, or GMUs, as defined in the 
codified Alaska Department of Fish and Game regulations found in Title 5 
of the Alaska Administrative Code and collectively listed in this part 
as Units or Subunits.
    Wildlife means any hare (rabbit), ptarmigan, grouse, ungulate, bear, 
furbearer, or unclassified species and includes any part, product, egg, 
or offspring thereof, or carcass or part thereof.
    (b) Taking fish, wildlife, or shellfish for subsistence uses by a 
prohibited method is a violation of this part. Seasons are closed unless 
opened by Federal regulation. Hunting, trapping, or fishing during a 
closed season or in an area closed by this part is prohibited. You may 
not take for subsistence fish, wildlife, or shellfish outside 
established Unit or Area seasons, or in excess of the established Unit 
or Area harvest limits, unless otherwise provided for by the Board. You 
may take fish, wildlife, or shellfish under State regulations on public 
lands, except as otherwise restricted at Secs. 242.26 through 
242.28. Unit/Area-specific restrictions or allowances for subsistence 
taking of fish, wildlife, or shellfish are identified at Secs. 
242.26 through 242.28.
    (c) Harvest limits. (1) Harvest limits authorized by this section 
and harvest limits established in State regulations may not be 
accumulated.
    (2) Fish, wildlife, or shellfish taken by a designated individual 
for another person pursuant to Sec. 242.10(d)(5)(ii) count toward the 
individual harvest limit of the person for whom the fish, wildlife, or 
shellfish is taken.
    (3) A harvest limit applies to the number of fish, wildlife, or 
shellfish that can be taken during a regulatory year; however, harvest 
limits for grouse, ptarmigan, and caribou (in some Units) are regulated 
by the number that may be taken per day. Harvest limits of grouse and 
ptarmigan are also regulated by the number that can be held in 
possession.
    (4) Unless otherwise provided, any person who gives or receives 
fish, wildlife, or shellfish shall furnish, upon a request made by a 
Federal or State agent, a signed statement describing the following: 
names and addresses of persons who gave and received fish, wildlife, or 
shellfish; the time and place that the fish, wildlife, or shellfish was 
taken; and identification of species transferred. Where a qualified 
subsistence user has designated another qualified subsistence user to 
take fish, wildlife, or shellfish on his or her behalf in accordance 
with Sec. 242.10(d)(5)(ii), the permit shall be furnished in place of a 
signed statement.
    (d) Fishing by designated harvest permit. (1) Any species of fish 
that may be taken by subsistence fishing under this part may be taken 
under a designated harvest permit.
    (2) If you are a Federally-qualified subsistence user, you 
(beneficiary) may designate another Federally-qualified subsistence user 
to take fish on your behalf. The designated fisherman must obtain a 
designated harvest permit prior to attempting to harvest fish and must 
return a completed harvest report. The designated fisherman may fish for 
any number of beneficiaries but may have no more than two harvest limits 
in his/her possession at any one time.
    (3) The designated fisherman must have in possession a valid 
designated

[[Page 224]]

fishing permit when taking, attempting to take, or transporting fish 
taken under this section, on behalf of a beneficiary.
    (4) The designated fisherman may not fish with more than one legal 
limit of gear.
    (5) You may not designate more than one person to take or attempt to 
take fish on your behalf at one time. You may not personally take or 
attempt to take fish at the same time that a designated fisherman is 
taking or attempting to take fish on your behalf.
    (e) Hunting by designated harvest permit. In Units 1-8, 9D, 10-16, 
and 18-26, if you are a Federally qualified subsistence user 
(recipient), you may designate another Federally qualified subsistence 
user to take deer, moose and caribou on your behalf unless you are a 
member of a community operating under a community harvest system or 
unless Unit-specific regulations in Sec. 242.26 preclude or modify the 
use of the designated hunter system or allow the harvest of additional 
species by a designated hunter. The designated hunter must obtain a 
designated hunter permit and must return a completed harvest report. The 
designated hunter may hunt for any number of recipients but may have no 
more than two harvest limits in his/her possession at any one time, 
unless otherwise specified in unit-specific regulations in Sec. 242.26.
    (f) A rural Alaska resident who has been designated to take fish, 
wildlife, or shellfish on behalf of another rural Alaska resident in 
accordance with Sec. 242.10(d)(5)(ii) shall promptly deliver the fish, 
wildlife, or shellfish to that rural Alaska resident and may not charge 
the recipient for his/her services in taking the fish, wildlife, or 
shellfish or claim for themselves the meat or any part of the harvested 
fish, wildlife, or shellfish.
    (g) [Reserved]
    (h) Permits. If a subsistence fishing or hunting permit is required 
by this part, the following permit conditions apply unless otherwise 
specified in this section:
    (1) You may not take more fish, wildlife, or shellfish for 
subsistence use than the limits set out in the permit;
    (2) You must obtain the permit prior to fishing or hunting;
    (3) You must have the permit in your possession and readily 
available for inspection while fishing, hunting, or transporting 
subsistence-taken fish, wildlife, or shellfish;
    (4) If specified on the permit, you shall keep accurate daily 
records of the harvest, showing the number of fish, wildlife, or 
shellfish taken, by species, location and date of harvest, and other 
such information as may be required for management or conservation 
purposes; and
    (5) If the return of harvest information necessary for management 
and conservation purposes is required by a permit and you fail to comply 
with such reporting requirements, you are ineligible to receive a 
subsistence permit for that activity during the following calendar year, 
unless you demonstrate that failure to report was due to loss in the 
mail, accident, sickness, or other unavoidable circumstances.
    (i) You may not possess, transport, give, receive, or barter fish, 
wildlife, or shellfish that was taken in violation of Federal or State 
statutes or a regulation promulgated hereunder.
    (j) Utilization of fish, wildlife, or shellfish. (1) You may not use 
wildlife as food for a dog or furbearer, or as bait, except as allowed 
for in Sec. 242.26, Sec.242.27, or Sec.242.28, or except for the 
following:
    (i) The hide, skin, viscera, head, or bones of wildlife;
    (ii) The skinned carcass of a furbearer;
    (iii) Squirrels, hares (rabbits), grouse, or ptarmigan; however, you 
may not use the breast meat of grouse and ptarmigan as animal food or 
bait;
    (iv) Unclassified wildlife.
    (2) If you take wildlife for subsistence, you must salvage the 
following parts for human use:
    (i) The hide of a wolf, wolverine, coyote, fox, lynx, marten, mink, 
weasel, or otter;
    (ii) The hide and edible meat of a brown bear, except that the hide 
of brown bears taken in Units 5, 9B, 17, 18, portions of 19A and 19B, 
21D, 22, 23, 24, and 26A need not be salvaged;
    (iii) The hide and edible meat of a black bear;

[[Page 225]]

    (iv) The hide or meat of squirrels, hares (rabbits), marmots, 
beaver, muskrats, or unclassified wildlife.
    (3) You must salvage the edible meat of ungulates, bear, grouse, and 
ptarmigan.
    (4) You may not intentionally waste or destroy any subsistence-
caught fish or shellfish; however, you may use for bait or other 
purposes whitefish, herring, and species for which bag limits, seasons, 
or other regulatory methods and means are not provided in this section, 
as well as the head, tail, fins, and viscera of legally taken 
subsistence fish.
    (5) Failure to salvage the edible meat may not be a violation if 
such failure is caused by circumstances beyond the control of a person, 
including theft of the harvested fish, wildlife, or shellfish, 
unanticipated weather conditions, or unavoidable loss to another animal.
    (6) If you are a Federally-qualified subsistence user, you may sell 
handicraft articles made from the skin, hide, pelt, or fur, including 
claws, of a black bear.
    (i) In Units 1, 2, 3, 4, and 5, you may sell handicraft articles 
made from the skin, hide, pelt, fur, claws, bones, teeth, sinew, or 
skulls of a black bear taken from Units 1, 2, 3, or 5.
    (ii) [Reserved]
    (7) If you are a Federally-qualified subsistence user, you may sell 
handicraft articles made from the skin, hide, pelt, or fur, including 
claws, of a brown bear taken from Units 1-5, 9A-C, 9E, 12, 17, 20, or 
25.
    (i) In Units 1, 2, 3, 4, and 5, you may sell handicraft articles 
made from the skin, hide, pelt, fur, claws, bones, teeth, sinew, or 
skulls of a brown bear taken from Units 1, 4, or 5.
    (ii) [Reserved]
    (8) If you are a Federally-qualified subsistence user, you may sell 
the raw fur or tanned pelt with or without claws attached from legally 
harvested furbearers.
    (9) If you are a Federally-qualified subsistence user, you may sell 
handicraft articles made from the nonedible byproducts (including, but 
not limited to, skin, shell, fins, and bones) of subsistence-harvested 
fish or shellfish.
    (10) If you are a Federally qualified subsistence user, you may sell 
handicraft articles made from nonedible byproducts of wildlife harvested 
for subsistence uses (excluding bear), to include; skin, hide, pelt, 
fur, claws, bones (except skulls of moose, caribou, elk, deer, sheep, 
goat and muskox), teeth, sinew, antlers and/or horns (if not attached to 
any part of the skull or made to represent a big game trophy) and 
hooves.
    (11) The sale of handicrafts made from the nonedible byproducts of 
wildlife, when authorized in this part, may not constitute a significant 
commercial enterprise.
    (k) The regulations found in this part do not apply to the 
subsistence taking and use of fish, wildlife, or shellfish regulated 
pursuant to the Fur Seal Act of 1966 (80 Stat. 1091, 16 U.S.C. 1187); 
the Endangered Species Act of 1973 (87 Stat. 884, 16 U.S.C. 1531-1543); 
the Marine Mammal Protection Act of 1972 (86 Stat. 1027; 16 U.S.C. 1361-
1407); and the Migratory Bird Treaty Act (40 Stat. 755; 16 U.S.C. 703-
711), or to any amendments to these Acts. The taking and use of fish, 
wildlife, or shellfish, covered by these Acts, will conform to the 
specific provisions contained in these Acts, as amended, and any 
implementing regulations.
    (l) Rural residents, nonrural residents, and nonresidents not 
specifically prohibited by Federal regulations from fishing, hunting, or 
trapping on public lands in an area may fish, hunt, or trap on public 
lands in accordance with the appropriate State regulations.

[71 FR 37654, June 30, 2006]



Sec. 242.27  Subsistence taking of fish.

    (a) Applicability. (1) Regulations in this section apply to the 
taking of fish or their parts for subsistence uses.
    (2) You may take fish for subsistence uses at any time by any method 
unless you are restricted by the subsistence fishing regulations found 
in this section. The harvest limit specified in this section for a 
subsistence season for a species and the State harvest limit set for a 
State season for the same species are not cumulative, except as modified 
by regulations in Sec. 242.27(i). This means that if you have taken the 
harvest limit for a particular species under a subsistence season 
specified in this section, you may not, after that, take any

[[Page 226]]

additional fish of that species under any other harvest limit specified 
for a State season.
    (b) [Reserved]
    (c) Methods, means, and general restrictions. (1) Unless otherwise 
specified in this section or under terms of a required subsistence 
fishing permit (as may be modified by this section), you may use the 
following legal types of gear for subsistence fishing:
    (i) A set gillnet;
    (ii) A drift gillnet;
    (iii) A purse seine;
    (iv) A hand purse seine;
    (v) A beach seine;
    (vi) Troll gear;
    (vii) A fish wheel;
    (viii) A trawl;
    (ix) A pot;
    (x) A longline;
    (xi) A fyke net;
    (xii) A lead;
    (xiii) A herring pound;
    (xiv) A dip net;
    (xv) Jigging gear;
    (xvi) A mechanical jigging machine;
    (xvii) A handline;
    (xviii) A cast net;
    (xix) A rod and reel; and
    (xx) A spear.
    (2) You must include an escape mechanism on all pots used to take 
fish or shellfish. The escape mechanisms are as follows:
    (i) A sidewall, which may include the tunnel, of all shellfish and 
bottomfish pots must contain an opening equal to or exceeding 18 inches 
in length, except that in shrimp pots the opening must be a minimum of 6 
inches in length. The opening must be laced, sewn, or secured together 
by a single length of untreated, 100 percent cotton twine, no larger 
than 30 thread. The cotton twine may be knotted at each end only. The 
opening must be within 6 inches of the bottom of the pot and must be 
parallel with it. The cotton twine may not be tied or looped around the 
web bars. Dungeness crab pots may have the pot lid tie-down straps 
secured to the pot at one end by a single loop of untreated, 100 percent 
cotton twine no larger than 60 thread, or the pot lid must be secured so 
that, when the twine degrades, the lid will no longer be securely 
closed;
    (ii) All king crab, Tanner crab, shrimp, miscellaneous shellfish and 
bottomfish pots may, instead of complying with paragraph (c)(2)(i) of 
this section, satisfy the following: a sidewall, which may include the 
tunnel, must contain an opening at least 18 inches in length, except 
that shrimp pots must contain an opening at least 6 inches in length. 
The opening must be laced, sewn, or secured together by a single length 
of treated or untreated twine, no larger than 36 thread. A galvanic 
timed-release device, designed to release in no more than 30 days in 
saltwater, must be integral to the length of twine so that, when the 
device releases, the twine will no longer secure or obstruct the opening 
of the pot. The twine may be knotted only at each end and at the 
attachment points on the galvanic timed-release device. The opening must 
be within 6 inches of the bottom of the pot and must be parallel with 
it. The twine may not be tied or looped around the web bars.
    (3) For subsistence fishing for salmon, you may not use a gillnet 
exceeding 50 fathoms in length, unless otherwise specified in this 
section. The gillnet web must contain at least 30 filaments of equal 
diameter or at least 6 filaments, each of which must be at least 0.20 
millimeter in diameter.
    (4) Except as otherwise provided for in this section, you may not 
obstruct more than one-half the width of any stream with any gear used 
to take fish for subsistence uses.
    (5) You may not use live nonindigenous fish as bait.
    (6) You must have your first initial, last name, and address plainly 
and legibly inscribed on the side of your fish wheel facing midstream of 
the river.
    (7) You may use kegs or buoys of any color but red on any permitted 
gear, except in the following areas where kegs or buoys of any color, 
including red, may be used:
    (i) Yukon-Northern Area; and
    (ii) Kuskokwim Area.
    (8) You must have your first initial, last name, and address plainly 
and legibly inscribed on each keg, buoy, stakes attached to gillnets, 
stakes identifying gear fished under the ice, and any other unattended 
fishing gear

[[Page 227]]

which you use to take fish for subsistence uses.
    (9) You may not use explosives or chemicals to take fish for 
subsistence uses.
    (10) You may not take fish for subsistence uses within 300 feet of 
any dam, fish ladder, weir, culvert or other artificial obstruction, 
unless otherwise indicated.
    (11) Transactions between rural residents. Rural residents may 
exchange in customary trade subsistence-harvested fish, their parts, or 
their eggs, legally taken under the regulations in this part, for cash 
from other rural residents. The Board may recognize regional differences 
and define customary trade differently for separate regions of the 
State.
    (i) Bristol Bay Fishery Management Area--The total cash value per 
household of salmon taken within Federal jurisdiction in the Bristol Bay 
Fishery Management Area and exchanged in customary trade to rural 
residents may not exceed $500.00 annually.
    (ii) Upper Copper River District--The total number of salmon per 
household taken within the Upper Copper River District and exchanged in 
customary trade to rural residents may not exceed 50% of the annual 
harvest of salmon by the household. No more than 50% of the annual 
household limit may be sold under paragraphs 242.27(c)(11) and (12) when 
taken together. These customary trade sales must be immediately recorded 
on a customary trade recordkeeping form. The recording requirement and 
the responsibility to ensure the household limit is not exceeded rests 
with the seller.
    (12) Transactions between a rural resident and others. In customary 
trade, a rural resident may trade fish, their parts, or their eggs, 
legally taken under the regulations in this part, for cash from 
individuals other than rural residents if the individual who purchases 
the fish, their parts, or their eggs uses them for personal or family 
consumption. If you are not a rural resident, you may not sell fish, 
their parts, or their eggs taken under the regulations in this part. The 
Board may recognize regional differences and define customary trade 
differently for separate regions of the State.
    (i) Bristol Bay Fishery Management Area--The total cash value per 
household of salmon taken within Federal jurisdiction in the Bristol Bay 
Fishery Management Area and exchanged in customary trade between rural 
residents and individuals other than rural residents may not exceed 
$400.00 annually. These customary trade sales must be immediately 
recorded on a customary trade recordkeeping form. The recording 
requirement and the responsibility to ensure the household limit is not 
exceeded rest with the seller.
    (ii) Upper Copper River District--The total cash value of salmon per 
household taken within the Upper Copper River District and exchanged in 
customary trade between rural residents and individuals other than rural 
residents may not exceed $500.00 annually. No more than 50% of the 
annual household limit may be sold under paragraphs 242.27(c)(11) and 
(12) when taken together. These customary trade sales must be 
immediately recorded on a customary trade recordkeeping form. The 
recording requirement and the responsibility to ensure the household 
limit is not exceeded rest with the seller.
    (13) No sale to, nor purchase by, fisheries businesses. (i) You may 
not sell fish, their parts, or their eggs taken under the regulations in 
this part to any individual, business, or organization required to be 
licensed as a fisheries business under Alaska Statute AS 43.75.011 
(commercial limited-entry permit or crew license holders excluded) or to 
any other business as defined under Alaska Statute 43.70.110(1) as part 
of its business transactions.
    (ii) If you are required to be licensed as a fisheries business 
under Alaska Statute AS 43.75.011 (commercial limited-entry permit or 
crew license holders excluded) or are a business as defined under Alaska 
Statute 43.70.110(1), you may not purchase, receive, or sell fish, their 
parts, or their eggs taken under the regulations in this part as part of 
your business transactions.
    (14) Except as provided elsewhere in this section, you may not take 
rainbow/steelhead trout.
    (15) You may not use fish taken for subsistence use or under 
subsistence

[[Page 228]]

regulations in this part as bait for commercial or sport fishing 
purposes.
    (16) [Reserved]
    (17) Unless specified otherwise in this section, you may use a rod 
and reel to take fish without a subsistence fishing permit. Harvest 
limits applicable to the use of a rod and reel to take fish for 
subsistence uses shall be as follows:
    (i) If you are required to obtain a subsistence fishing permit for 
an area, that permit is required to take fish for subsistence uses with 
rod and reel in that area. The harvest and possession limits for taking 
fish with a rod and reel in those areas are the same as indicated on the 
permit issued for subsistence fishing with other gear types;
    (ii) Except as otherwise provided for in this section, if you are 
not required to obtain a subsistence fishing permit for an area, the 
harvest and possession limits for taking fish for subsistence uses with 
a rod and reel are the same as for taking fish under State of Alaska 
subsistence fishing regulations in those same areas. If the State does 
not have a specific subsistence season and/or harvest limit for that 
particular species, the limit shall be the same as for taking fish under 
State of Alaska sport fishing regulations.
    (18) Unless restricted in this section, or unless restricted under 
the terms of a subsistence fishing permit, you may take fish for 
subsistence uses at any time.
    (19) Provisions on ADF&G subsistence fishing permits that are more 
restrictive or in conflict with the provisions contained in this section 
do not apply to Federal subsistence users.
    (20) You may not intentionally waste or destroy any subsistence-
caught fish or shellfish; however, you may use for bait or other 
purposes, whitefish, herring, and species for which harvest limits, 
seasons, or other regulatory methods and means are not provided in this 
section, as well as the head, tail, fins, and viscera of legally taken 
subsistence fish.
    (21) The taking of fish from waters within Federal jurisdiction is 
authorized outside of published open seasons or harvest limits if the 
harvested fish will be used for food in traditional or religious 
ceremonies that are part of funerary or mortuary cycles, including 
memorial potlatches, provided that:
    (i) Prior to attempting to take fish, the person (or designee) or 
Tribal Government organizing the ceremony contacts the appropriate 
Federal fisheries manager to provide the nature of the ceremony, the 
parties and/or clans involved, the species and the number of fish to be 
taken, and the Federal waters from which the harvest will occur;
    (ii) The taking does not violate recognized principles of fisheries 
conservation, and uses the methods and means allowable for the 
particular species published in the applicable Federal regulations (the 
Federal fisheries manager will establish the number, species, or place 
of taking if necessary for conservation purposes);
    (iii) Each person who takes fish under this section must, as soon as 
practical, and not more than 15 days after the harvest, submit a written 
report to the appropriate Federal fisheries manager, specifying the 
harvester's name and address, the number and species of fish taken, and 
the date and locations of the taking; and
    (iv) No permit is required for taking under this section; however, 
the harvester must be eligible to harvest the resource under Federal 
regulations.
    (d) [Reserved]
    (e) Fishing permits and reports. (1) You may take salmon only under 
the authority of a subsistence fishing permit, unless a permit is 
specifically not required in a particular area by the subsistence 
regulations in this part, or unless you are retaining salmon from your 
commercial catch consistent with paragraph (f) of this section.
    (2) The U.S. Fish and Wildlife Service Office of Subsistence 
Management may issue a permit to harvest fish for a qualifying cultural/
educational program to an organization that has been granted a Federal 
subsistence permit for a similar event within the previous 5 years. A 
qualifying program must have instructors, enrolled students, minimum 
attendance requirements, and standards for successful completion of the 
course. Applications must be submitted to the Office of Subsistence 
Management 60 days prior to the earliest desired date of harvest. 
Permits will be issued for no more than 25

[[Page 229]]

fish per culture/education camp. Appeal of a rejected request can be 
made to the Federal Subsistence Board. Application for an initial permit 
for a qualifying cultural/educational program, for a permit when the 
circumstances have changed significantly, when no permit has been issued 
within the previous 5 years, or when there is a request for harvest in 
excess of that provided in this paragraph (e)(2), will be considered by 
the Federal Subsistence Board.
    (3) If a subsistence fishing permit is required by this section, the 
following permit conditions apply unless otherwise specified in this 
section:
    (i) You may not take more fish for subsistence use than the limits 
set out in the permit;
    (ii) You must obtain the permit prior to fishing;
    (iii) You must have the permit in your possession and readily 
available for inspection while fishing or transporting subsistence-taken 
fish;
    (iv) If specified on the permit, you must record, prior to leaving 
the harvest site, daily records of the catch, showing the number of fish 
taken by species, location and date of catch, and other such information 
as may be required for management or conservation purposes; and
    (v) If the return of catch information necessary for management and 
conservation purposes is required by a fishing permit and you fail to 
comply with such reporting requirements, you are ineligible to receive a 
subsistence permit for that activity during the following calendar year, 
unless you demonstrate that failure to report was due to loss in the 
mail, accident, sickness, or other unavoidable circumstances. You must 
also return any tags or transmitters that have been attached to fish for 
management and conservation purposes.
    (f) Relation to commercial fishing activities. (1) If you are a 
Federally-qualified subsistence user who also commercial fishes, you may 
retain fish for subsistence purposes from your lawfully-taken commercial 
catch.
    (2) When participating in a commercial and subsistence fishery at 
the same time, you may not use an amount of combined fishing gear in 
excess of that allowed under the appropriate commercial fishing 
regulations.
    (g) You may not possess, transport, give, receive, or barter 
subsistence-taken fish or their parts which have been taken contrary to 
Federal law or regulation or State law or regulation (unless superseded 
by regulations in this part).
    (h) [Reserved]
    (i) Fishery management area restrictions--(1) Kotzebue Area. The 
Kotzebue Area includes all waters of Alaska between the latitude of the 
westernmost tip of Point Hope and the latitude of the westernmost tip of 
Cape Prince of Wales, including those waters draining into the Chukchi 
Sea.
    (i) You may take fish for subsistence purposes without a permit.
    (ii) You may take salmon only by gillnets, beach seines, or a rod 
and reel.
    (iii) In the Kotzebue District, you may take sheefish with gillnets 
that are not more than 50 fathoms in length, nor more than 12 meshes in 
depth, nor have a stretched-mesh size larger than 7 inches.
    (iv) You may not obstruct more than one-half the width of a stream, 
creek, or slough with any gear used to take fish for subsistence uses, 
except from May 15 to July 15 and August 15 to October 31 when taking 
whitefish or pike in streams, creeks, or sloughs within the Kobuk River 
drainage and from May 15 to October 31 in the Selawik River drainage. 
Only one gillnet 100 feet or less in length with a stretched-mesh size 
from 2\1/2\ to 4\1/2\ inches may be used per site. You must check your 
net at least once in every 24-hour period.
    (2) Norton Sound-Port Clarence Area. The Norton Sound-Port Clarence 
Area includes all waters of Alaska between the latitude of the 
westernmost tip of Cape Prince of Wales and the latitude of Point 
Romanof, including those waters of Alaska surrounding St. Lawrence 
Island and those waters draining into the Bering Sea.
    (i) Unless otherwise restricted in this section, you may take fish 
at any time in the Port Clarence District.
    (ii) In the Norton Sound District, you may take fish at any time 
except as follows:
    (A) In Subdistricts 2 through 6, if you are a commercial fishermen, 
you may

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not fish for subsistence purposes during the weekly closures of the 
State commercial salmon fishing season, except that from July 15 through 
August 1, you may take salmon for subsistence purposes 7 days per week 
in the Unalakleet and Shaktoolik River drainages with gillnets which 
have a stretched-mesh size that does not exceed 4\1/2\ inches, and with 
beach seines;
    (B) In the Unalakleet River from June 1 through July 15, you may 
take salmon only from 8 a.m. Monday until 8 p.m. Saturday.
    (iii) You may take salmon only by gillnets, beach seines, fish 
wheel, or a rod and reel.
    (iv) You may take fish other than salmon by set gillnet, drift 
gillnet, beach seine, fish wheel, pot, long line, fyke net, jigging 
gear, spear, lead, or a rod and reel.
    (v) In the Unalakleet River from June 1 through July 15, you may not 
operate more than 25 fathoms of gillnet in the aggregate nor may you 
operate an unanchored gillnet.
    (vi) Only one subsistence fishing permit will be issued to each 
household per year.
    (3) Yukon-Northern Area. The Yukon-Northern Area includes all waters 
of Alaska between the latitude of Point Romanof and the latitude of the 
westernmost point of the Naskonat Peninsula, including those waters 
draining into the Bering Sea, and all waters of Alaska north of the 
latitude of the westernmost tip of Point Hope and west of 141[deg] West 
longitude, including those waters draining into the Arctic Ocean and the 
Chukchi Sea.
    (i) Unless otherwise restricted in this section, you may take fish 
in the Yukon-Northern Area at any time. You may subsistence fish for 
salmon with rod and reel in the Yukon River drainage 24 hours per day, 7 
days per week, unless rod and reel are specifically otherwise restricted 
in Sec. 242.27(i)(3).
    (ii) For the Yukon River drainage, Federal subsistence fishing 
schedules, openings, closings, and fishing methods are the same as those 
issued for the subsistence taking of fish under Alaska Statutes (AS 
16.05.060), unless superseded by a Federal Special Action.
    (iii) In the following locations, you may take salmon during the 
open weekly fishing periods of the State commercial salmon fishing 
season and may not take them for 24 hours before the opening of the 
State commercial salmon fishing season:
    (A) In District 4, excluding the Koyukuk River drainage;
    (B) In Subdistricts 4B and 4C from June 15 through September 30, 
salmon may be taken from 6 p.m. Sunday until 6 p.m. Tuesday and from 6 
p.m. Wednesday until 6 p.m. Friday;
    (C) In District 6, excluding the Kantishna River drainage, salmon 
may be taken from 6 p.m. Friday until 6 p.m. Wednesday.
    (iv) During any State commercial salmon fishing season closure of 
greater than five days in duration, you may not take salmon during the 
following periods in the following districts:
    (A) In District 4, excluding the Koyukuk River drainage, salmon may 
not be taken from 6 p.m. Friday until 6 p.m. Sunday;
    (B) In District 5, excluding the Tozitna River drainage and 
Subdistrict 5D, salmon may not be taken from 6 p.m. Sunday until 6 p.m. 
Tuesday.
    (v) Except as provided in this section, and except as may be 
provided by the terms of a subsistence fishing permit, you may take fish 
other than salmon at any time.
    (vi) In Districts 1, 2, 3, and Subdistrict 4A, excluding the Koyukuk 
and Innoko River drainages, you may not take salmon for subsistence 
purposes during the 24 hours immediately before the opening of the State 
commercial salmon fishing season.
    (vii) In Districts 1, 2, and 3:
    (A) After the opening of the State commercial salmon fishing season 
through July 15, you may not take salmon for subsistence for 18 hours 
immediately before, during, and for 12 hours after each State commercial 
salmon fishing period;
    (B) After July 15, you may not take salmon for subsistence for 12 
hours immediately before, during, and for 12 hours after each State 
commercial salmon fishing period.
    (viii) In Subdistrict 4A after the opening of the State commercial 
salmon fishing season, you may not take salmon for subsistence for 12 
hours immediately before, during, and for 12

[[Page 231]]

hours after each State commercial salmon fishing period; however, you 
may take Chinook salmon during the State commercial fishing season, with 
drift gillnet gear only, from 6 p.m. Sunday until 6 p.m. Tuesday and 
from 6 p.m. Wednesday until 6 p.m. Friday.
    (ix) You may not subsistence fish in the following drainages located 
north of the main Yukon River:
    (A) Kanuti River upstream from a point 5 miles downstream of the 
State highway crossing;
    (B) Bonanza Creek;
    (C) Jim River including Prospect and Douglas Creeks.
    (x) You may not subsistence fish in the Delta River.
    (xi) In Beaver Creek downstream from the confluence of Moose Creek, 
a gillnet with mesh size not to exceed 3-inches stretch-measure may be 
used from June 15 through September 15. You may subsistence fish for all 
non-salmon species but may not target salmon during this time period 
(retention of salmon taken incidentally to non-salmon directed fisheries 
is allowed). From the mouth of Nome Creek downstream to the confluence 
of Moose Creek, only rod and reel may be used. From the mouth of Nome 
Creek downstream to the confluence of O'Brien Creek, the daily harvest 
and possession limit is 5 grayling; from the mouth of O'Brien Creek 
downstream to the confluence of Moose Creek, the daily harvest and 
possession limit is 10 grayling. The Nome Creek drainage of Beaver Creek 
is closed to subsistence fishing for grayling.
    (xii) You may not subsistence fish in the Toklat River drainage from 
August 15 through May 15.
    (xiii) You may take salmon only by gillnet, beach seine, fish wheel, 
or rod and reel, subject to the restrictions set forth in this section.
    (xiv) In District 4, if you are a commercial fisherman, you may not 
take salmon for subsistence purposes during the State commercial salmon 
fishing season using gillnets with stretched-mesh larger than 6-inches 
after a date specified by ADF&G emergency order issued between July 10 
and July 31.
    (xv) In Districts 4, 5, and 6, you may not take salmon for 
subsistence purposes by drift gillnets, except as follows:
    (A) In Subdistrict 4A upstream from the mouth of Stink Creek, you 
may take Chinook salmon by drift gillnets less than 150 feet in length 
from June 10 through July 14, and chum salmon by drift gillnets after 
August 2;
    (B) In Subdistrict 4A downstream from the mouth of Stink Creek, you 
may take Chinook salmon by drift gillnets less than 150 feet in length 
from June 10 through July 14;
    (C) In the Yukon River mainstem, Subdistricts 4B and 4C with a 
Federal subsistence fishing permit, you may take Chinook salmon during 
the last 18-hour period of the weekly regulatory opening(s) by drift 
gillnets no more than 150 feet long and no more than 35 meshes deep, 
from June 10 through July 14.
    (xvi) Unless otherwise specified in this section, you may take fish 
other than salmon and halibut by set gillnet, drift gillnet, beach 
seine, fish wheel, long line, fyke net, dip net, jigging gear, spear, 
lead, or rod and reel, subject to the following restrictions, which also 
apply to subsistence salmon fishing:
    (A) During the open weekly fishing periods of the State commercial 
salmon fishing season, if you are a commercial fisherman, you may not 
operate more than one type of gear at a time, for commercial, personal 
use, and subsistence purposes;
    (B) You may not use an aggregate length of set gillnet in excess of 
150 fathoms and each drift gillnet may not exceed 50 fathoms in length;
    (C) In Districts 4, 5, and 6, you may not set subsistence fishing 
gear within 200 feet of other operating commercial use, personal use, or 
subsistence fishing gear except that, at the site approximately 1 mile 
upstream from Ruby on the south bank of the Yukon River between ADF&G 
regulatory markers containing the area known locally as the ``Slide,'' 
you may set subsistence fishing gear within 200 feet of other operating 
commercial or subsistence fishing gear, and in District 4, from Old 
Paradise Village upstream to a point 4 miles upstream from Anvik, there 
is no minimum distance requirement between fish wheels;

[[Page 232]]

    (D) During the State commercial salmon fishing season, within the 
Yukon River and the Tanana River below the confluence of the Wood River, 
you may use drift gillnets and fish wheels only during open subsistence 
salmon fishing periods;
    (E) In Birch Creek, gillnet mesh size may not exceed 3-inches 
stretch-measure from June 15 through September 15.
    (xvii) In District 4, from September 21 through May 15, you may use 
jigging gear from shore ice.
    (xviii) You must possess a subsistence fishing permit for the 
following locations:
    (A) For the Yukon River drainage from the mouth of Hess Creek to the 
mouth of the Dall River;
    (B) For the Yukon River drainage from the upstream mouth of 22 Mile 
Slough to the U.S.-Canada border;
    (C) Only for salmon in the Tanana River drainage above the mouth of 
the Wood River.
    (xix) Only one subsistence fishing permit will be issued to each 
household per year.
    (xx) In Districts 1, 2, and 3, you may not possess Chinook salmon 
taken for subsistence purposes unless the dorsal fin has been removed 
immediately after landing.
    (xxi) In the Yukon River drainage, Chinook salmon must be used 
primarily for human consumption and may not be targeted for dog food. 
Dried Chinook salmon may not be used for dog food anywhere in the Yukon 
River drainage. Whole fish unfit for human consumption (due to disease, 
deterioration, deformities), scraps, and small fish (16 inches or less) 
may be fed to dogs. Also, whole Chinook salmon caught incidentally 
during a subsistence chum salmon fishery in the following time periods 
and locations may be fed to dogs:
    (A) After July 10 in the Koyukuk River drainage;
    (B) After August 10, in Subdistrict 5D, upstream of Circle City.
    (4) Kuskokwim Area. The Kuskokwim Area consists of all waters of 
Alaska between the latitude of the westernmost point of Naskonat 
Peninsula and the latitude of the southernmost tip of Cape Newenham, 
including the waters of Alaska surrounding Nunivak and St. Matthew 
Islands and those waters draining into the Bering Sea.
    (i) Unless otherwise restricted in this section, you may take fish 
in the Kuskokwim Area at any time without a subsistence fishing permit.
    (ii) For the Kuskokwim area, Federal subsistence fishing schedules, 
openings, closings, and fishing methods are the same as those issued for 
the subsistence taking of fish under Alaska Statutes (AS 16.05.060), 
unless superseded by a Federal Special Action.
    (iii) In District 1, Kuskokuak Slough, from June 1 through July 31 
only, you may not take salmon for 16 hours before and during each State 
open commercial salmon fishing period in the district.
    (iv) In Districts 4 and 5, from June 1 through September 8, you may 
not take salmon for 16 hours before or during, and for 6 hours after 
each State open commercial salmon fishing period in each district.
    (v) In District 2, and anywhere in tributaries that flow into the 
Kuskokwim River within that district, from June 1 through September 8 
you may not take salmon by net gear or fish wheel for 16 hours before or 
during, and for 6 hours after each open commercial salmon fishing period 
in the district. You may subsistence fish for salmon with rod and reel 
24 hours per day, 7 days per week, unless rod and reel are specifically 
restricted by paragraph (i)(4) of this section.
    (vi) You may not take subsistence fish by nets in the Goodnews River 
east of a line between ADF&G regulatory markers placed near the mouth of 
the Ufigag River and an ADF&G regulatory marker placed near the mouth of 
the Tunulik River 16 hours before or during, and for 6 hours after each 
State open commercial salmon fishing period.
    (vii) You may not take subsistence fish by nets in the Kanektok 
River upstream of ADF&G regulatory markers placed near the mouth 16 
hours before or during, and for 6 hours after each State open commercial 
salmon fishing period.
    (viii) You may not take subsistence fish by nets in the Arolik River 
upstream of ADF&G regulatory markers

[[Page 233]]

placed near the mouth 16 hours before or during, and for 6 hours after 
each State open commercial salmon fishing period.
    (ix) You may only take salmon by gillnet, beach seine, fish wheel, 
or rod and reel subject to the restrictions set out in this section, 
except that you may also take salmon by spear in the Kanektok, and 
Arolik River drainages, and in the drainage of Goodnews Bay.
    (x) You may not use an aggregate length of set gillnets or drift 
gillnets in excess of 50 fathoms for taking salmon.
    (xi) You may take fish other than salmon by set gillnet, drift 
gillnet, beach seine, fish wheel, pot, long line, fyke net, dip net, 
jigging gear, spear, lead, handline, or rod and reel.
    (xii) You must attach to the bank each subsistence gillnet operated 
in tributaries of the Kuskokwim River and fish it substantially 
perpendicular to the bank and in a substantially straight line.
    (xiii) Within a tributary to the Kuskokwim River in that portion of 
the Kuskokwim River drainage from the north end of Eek Island upstream 
to the mouth of the Kolmakoff River, you may not set or operate any part 
of a set gillnet within 150 feet of any part of another set gillnet.
    (xiv) The maximum depth of gillnets is as follows:
    (A) Gillnets with 6-inch or smaller stretched-mesh may not be more 
than 45 meshes in depth;
    (B) Gillnets with greater than 6-inch stretched-mesh may not be more 
than 35 meshes in depth.
    (xv) You may take halibut only by a single handheld line with no 
more than two hooks attached to it.
    (xvi) You may not use subsistence set and drift gillnets exceeding 
15 fathoms in length in Whitefish Lake in the Ophir Creek drainage. You 
may not operate more than one subsistence set or drift gillnet at a time 
in Whitefish Lake in the Ophir Creek drainage. You must check the net at 
least once every 24 hours.
    (xvii) You may take rainbow trout only in accordance with the 
following restrictions:
    (A) You may take rainbow trout only by the use of gillnets, dip 
nets, fyke nets, handline, spear, rod and reel, or jigging through the 
ice;
    (B) You may not use gillnets, dip nets, or fyke nets for targeting 
rainbow trout from March 15 through June 15;
    (C) If you take rainbow trout incidentally in other subsistence net 
fisheries and through the ice, you may retain them for subsistence 
purposes;
    (D) There are no harvest limits with handline, spear, rod and reel, 
or jigging.
    (5) Bristol Bay Area. The Bristol Bay Area includes all waters of 
Bristol Bay, including drainages enclosed by a line from Cape Newenham 
to Cape Menshikof.
    (i) Unless restricted in this section, or unless under the terms of 
a subsistence fishing permit, you may take fish at any time in the 
Bristol Bay area.
    (ii) In all State commercial salmon districts, from May 1 through 
May 31 and October 1 through October 31, you may subsistence fish for 
salmon only from 9 a.m. Monday until 9 a.m. Friday. From June 1 through 
September 30, within the waters of a commercial salmon district, you may 
take salmon only during State open commercial salmon fishing periods.
    (iii) In the Egegik River from 9 a.m. June 23 through 9 a.m. July 
17, you may take salmon only during the following times: from 9 a.m. 
Tuesday to 9 a.m. Wednesday and from 9 a.m. Saturday to 9 a.m. Sunday.
    (iv) You may not take fish from waters within 300 feet of a stream 
mouth used by salmon.
    (v) You may not subsistence fish with nets in the Tazimina River and 
within one-fourth mile of the terminus of those waters during the period 
from September 1 through June 14.
    (vi) Within any district, you may take salmon, herring, and capelin 
by set gillnets only.
    (vii) Outside the boundaries of any district, unless otherwise 
specified, you may take salmon by set gillnet only.
    (A) You may also take salmon by spear in the Togiak River, excluding 
its tributaries.
    (B) You may also use drift gillnets not greater than 10 fathoms in 
length to take salmon in the Togiak River in the first two river miles 
upstream from

[[Page 234]]

the mouth of the Togiak River to the ADF&G regulatory markers.
    (C) You may also take salmon without a permit in Lake Clark and its 
tributaries by snagging (by handline or rod and reel), using a spear, 
bow and arrow, or capturing by bare hand.
    (D) You may also take salmon by beach seines not exceeding 25 
fathoms in length in Lake Clark, excluding its tributaries.
    (viii) The maximum lengths for set gillnets used to take salmon are 
as follows:
    (A) You may not use set gillnets exceeding 10 fathoms in length in 
the Egegik River;
    (B) In the remaining waters of the area, you may not use set 
gillnets exceeding 25 fathoms in length.
    (ix) You may not operate any part of a set gillnet within 300 feet 
of any part of another set gillnet.
    (x) You must stake and buoy each set gillnet. Instead of having the 
identifying information on a keg or buoy attached to the gillnet, you 
may plainly and legibly inscribe your first initial, last name, and 
subsistence permit number on a sign at or near the set gillnet.
    (xi) You may not operate or assist in operating subsistence salmon 
net gear while simultaneously operating or assisting in operating 
commercial salmon net gear.
    (xii) During State closed commercial herring fishing periods, you 
may not use gillnets exceeding 25 fathoms in length for the subsistence 
taking of herring or capelin.
    (xiii) You may take fish other than salmon, herring, capelin, and 
halibut by gear listed in this part unless restricted under the terms of 
a subsistence fishing permit.
    (xiv) You may take salmon only under authority of a subsistence 
fishing permit.
    (xv) Only one subsistence fishing permit for salmon may be issued to 
each household per year.
    (xvi) In the Togiak River section and the Togiak River drainage:
    (A) You may not possess coho salmon taken under the authority of a 
subsistence fishing permit unless both lobes of the caudal fin (tail) or 
the dorsal fin have been removed.
    (B) You may not possess salmon taken with a drift gillnet under the 
authority of a subsistence fishing permit unless both lobes of the 
caudal fin (tail) or the dorsal fin have been removed.
    (xvii) You may take rainbow trout only by rod and reel or jigging 
gear. Rainbow trout daily harvest and possession limits are 2 per day/2 
in possession with no size limit from April 10 through October 31 and 5 
per day/5 in possession with no size limit from November 1 through April 
9.
    (xviii) If you take rainbow trout incidentally in other subsistence 
net fisheries, or through the ice, you may retain them for subsistence 
purposes.
    (6) Aleutian Islands Area. The Aleutian Islands Area includes all 
waters of Alaska west of the longitude of the tip of Cape Sarichef, east 
of 172[deg] East longitude, and south of 54[deg]36[min] North latitude.
    (i) You may take fish other than salmon, rainbow/steelhead trout, or 
char at any time unless restricted under the terms of a subsistence 
fishing permit. If you take rainbow/steelhead trout incidentally in 
other subsistence net fisheries, you may retain them for subsistence 
purposes.
    (ii) In the Unalaska District, you may take salmon for subsistence 
purposes from 6 a.m. until 9 p.m. from January 1 through December 31, 
except as may be specified on a subsistence fishing permit.
    (iii) In the Adak, Akutan, Atka-Amlia, and Umnak Districts, you may 
take salmon at any time.
    (iv) You may not subsistence fish for salmon in the following 
waters:
    (A) The waters of Unalaska Lake, its tributaries and outlet stream;
    (B) The waters of Summers and Morris Lakes and their tributaries and 
outlet streams;
    (C) All streams supporting anadromous fish runs that flow into 
Unalaska Bay south of a line from the northern tip of Cape Cheerful to 
the northern tip of Kalekta Point;
    (D) Waters of McLees Lake and its tributaries and outlet stream;
    (E) All fresh water on Adak Island and Kagalaska Island in the Adak 
District.

[[Page 235]]

    (v) You may take salmon by seine and gillnet, or with gear specified 
on a subsistence fishing permit.
    (vi) In the Unalaska District, if you fish with a net, you must be 
physically present at the net at all times when the net is being used.
    (vii) You may take fish other than salmon by gear listed in this 
part unless restricted under the terms of a subsistence fishing permit.
    (viii) You may take salmon, trout, and char only under the terms of 
a subsistence fishing permit, except that you do not need a permit in 
the Akutan, Umnak, and Atka-Amlia Islands Districts.
    (ix) You may take no more than 250 salmon for subsistence purposes 
unless otherwise specified on the subsistence fishing permit, except 
that in the Unalaska and Adak Districts, you may take no more than 25 
salmon plus an additional 25 salmon for each member of your household 
listed on the permit. You may obtain an additional permit.
    (x) You must keep a record on the reverse side of the permit of 
subsistence-caught fish. You must complete the record immediately upon 
taking subsistence-caught fish and must return it no later than October 
31.
    (xi) The daily harvest limit for halibut is two fish, and the 
possession limit is two daily harvest limits. You may not possess sport-
taken and subsistence-taken halibut on the same day.
    (7) Alaska Peninsula Area. The Alaska Peninsula Area includes all 
waters of Alaska on the north side of the Alaska peninsula southwest of 
a line from Cape Menshikof (57[deg] 28.34[min] North latitude, 157[deg] 
55.84[min] West longitude) to Cape Newenham (58[deg] 39.00[min] North 
latitude, 162[deg] West longitude) and east of the longitude of Cape 
Sarichef Light (164[deg] 55.70[min] West longitude) and on the south 
side of the Alaska Peninsula from a line extending from Scotch Cape 
through the easternmost tip of Ugamak Island to a line extending 
135[deg] southeast from Kupreanof Point (55[deg] 33.98[min] North 
latitude, 159[deg] 35.88[min] West longitude).
    (i) You may take fish, other than salmon, rainbow/steelhead trout, 
or char, at any time unless restricted under the terms of a subsistence 
fishing permit. If you take rainbow/steelhead trout incidentally in 
other subsistence net fisheries or through the ice, you may retain them 
for subsistence purposes.
    (ii) You may take salmon, trout, and char only under the authority 
of a subsistence fishing permit.
    (iii) You must keep a record on the reverse side of the permit of 
subsistence-caught fish. You must complete the record immediately upon 
taking subsistence-caught fish and must return it no later than October 
31.
    (iv) You may take salmon at any time, except in those districts and 
sections open to commercial salmon fishing where salmon may not be taken 
during the 24 hours before and 12 hours following each State open weekly 
commercial salmon fishing period, or as may be specified on a 
subsistence fishing permit.
    (v) You may not subsistence fish for salmon in the following waters:
    (A) Russell Creek and Nurse Lagoon and within 500 yards outside the 
mouth of Nurse Lagoon;
    (B) Trout Creek and within 500 yards outside its mouth.
    (vi) You may take salmon by seine, gillnet, rod and reel, or with 
gear specified on a subsistence fishing permit.
    (vii) You may take fish other than salmon by gear listed in this 
part unless restricted under the terms of a subsistence fishing permit.
    (viii) You may not use a set gillnet exceeding 100 fathoms in 
length.
    (ix) You may take halibut for subsistence purposes only by a single 
handheld line with no more than two hooks attached.
    (x) You may take no more than 250 salmon for subsistence purposes 
unless otherwise specified on your subsistence fishing permit.
    (xi) The daily harvest limit for halibut is two fish and the 
possession limit is two daily harvest limits. You may not possess sport-
taken and subsistence-taken halibut on the same day.
    (8) Chignik Area. The Chignik Area includes all waters of Alaska on 
the south side of the Alaska Peninsula bounded by a line extending 
135[deg] southeast for 3 miles from a point near

[[Page 236]]

Kilokak Rocks at 57[deg] 10.34[min] North latitude, 156[deg] 20.22[min] 
West longitude (the longitude of the southern entrance to Imuya Bay) 
then due south, and a line extending 135[deg] southeast from Kupreanof 
Point at 55[deg] 33.98[min] North latitude, 159[deg] 35.88[min] West 
longitude.
    (i) You may take fish other than salmon, rainbow/steelhead trout, or 
char at any time, except as may be specified by a subsistence fishing 
permit. For salmon, Federal subsistence fishing openings, closings and 
fishing methods are the same as those issued for the subsistence taking 
of fish under Alaska Statutes (AS 16.05.060), unless superseded by a 
Federal Special Action. If you take rainbow/steelhead trout incidentally 
in other subsistence net fisheries, you may retain them for subsistence 
purposes.
    (ii) You may not take salmon in the Chignik River, from a point 300 
feet upstream of the ADF&G weir to Chignik Lake from July 1 through 
August 31. You may not take salmon in Black Lake or any tributary to 
Black or Chignik Lakes.
    (iii) You may take salmon, trout, and char only under the authority 
of a subsistence fishing permit.
    (iv) You must keep a record on your permit of subsistence-caught 
fish. You must complete the record immediately upon taking subsistence-
caught fish and must return it no later than October 31.
    (v) If you hold a commercial fishing license, you may only 
subsistence fish for salmon as specified on a State subsistence salmon 
fishing permit.
    (vi) You may take salmon by seines, gillnets, rod and reel, or with 
gear specified on a subsistence fishing permit, except that in Chignik 
Lake, you may not use purse seines.
    (vii) You may take fish other than salmon by gear listed in this 
part unless restricted under the terms of a subsistence fishing permit.
    (viii) You may take halibut for subsistence purposes only by a 
single handheld line with no more than two hooks attached.
    (ix) You may take no more than 250 salmon for subsistence purposes 
unless otherwise specified on the subsistence fishing permit.
    (x) The daily harvest limit for halibut is two fish, and the 
possession limit is two daily harvest limits. You may not possess sport-
taken and subsistence-taken halibut on the same day.
    (9) Kodiak Area. The Kodiak Area includes all waters of Alaska south 
of a line extending east from Cape Douglas (58[deg]51.10[min] North 
latitude), west of 150[deg] West longitude, north of 55[deg]30.00[min] 
North latitude, and north and east of a line extending 135[deg] 
southeast for three miles from a point near Kilokak Rocks at 
57[deg]10.34[min] North latitude, 156[deg]20.22[min] West longitude (the 
longitude of the southern entrance of Imuya Bay), then due south.
    (i) You may take fish other than salmon, rainbow/steelhead trout, 
char, bottomfish, or herring at any time unless restricted by the terms 
of a subsistence fishing permit. If you take rainbow/steelhead trout 
incidentally in other subsistence net fisheries, you may retain them for 
subsistence purposes.
    (ii) You may take salmon for subsistence purposes 24 hours a day 
from January 1 through December 31, with the following exceptions:
    (A) From June 1 through September 15, you may not use salmon seine 
vessels to take subsistence salmon for 24 hours before or during, and 
for 24 hours after any State open commercial salmon fishing period. The 
use of skiffs from any type of vessel is allowed;
    (B) From June 1 through September 15, you may use purse seine 
vessels to take salmon only with gillnets, and you may have no other 
type of salmon gear on board the vessel.
    (iii) You may not subsistence fish for salmon in the following 
locations:
    (A) Womens Bay closed waters--all waters inside a line from the tip 
of the Nyman Peninsula (57[deg]43.23[min] North latitude, 
152[deg]31.51[min] West longitude), to the northeastern tip of Mary's 
Island (57[deg]42.40[min] North latitude, 152[deg]32.00[min] West 
longitude), to the southeastern shore of Womens Bay at 57[deg]41.95[min] 
North latitude, 152[deg]31.50[min] West longitude;
    (B) Buskin River closed waters--all waters inside of a line running 
from a marker on the bluff north of the mouth of the Buskin River at 
approximately 57[deg]45.80[min] North latitude, 152[deg]28.38[min] West

[[Page 237]]

longitude, to a point offshore at 57[deg]45.35[min] North latitude, 
152[deg]28.15[min] West longitude, to a marker located onshore south of 
the river mouth at approximately 57[deg]45.15[min] North latitude, 
152[deg]28.65[min] West longitude;
    (C) All waters closed to commercial salmon fishing within 100 yards 
of the terminus of Selief Bay Creek;
    (D) In Afognak Bay north and west of a line from the tip of Last 
Point to the tip of River Mouth Point;
    (E) From August 15 through September 30, all waters 500 yards 
seaward of the terminus of Little Kitoi Creek;
    (F) All fresh water systems of Afognak Island.
    (iv) You must have a subsistence fishing permit for taking salmon, 
trout, and char for subsistence purposes. You must have a subsistence 
fishing permit for taking herring and bottomfish for subsistence 
purposes during the State commercial herring sac roe season from April 
15 through June 30.
    (v) With a subsistence salmon fishing permit you may take 25 salmon 
plus an additional 25 salmon for each member of your household whose 
names are listed on the permit. You may obtain an additional permit if 
you can show that more fish are needed.
    (vi) You must record on your subsistence permit the number of 
subsistence fish taken. You must complete the record immediately upon 
landing subsistence-caught fish, and must return it by February 1 of the 
year following the year the permit was issued.
    (vii) You may take fish other than salmon and halibut by gear listed 
in this part unless restricted under the terms of a subsistence fishing 
permit.
    (viii) You may take salmon only by gillnet, rod and reel, or seine.
    (ix) You must be physically present at the net when the net is being 
fished.
    (x) You may take halibut only by a single handheld line with not 
more than two hooks attached to it.
    (xi) The daily harvest limit for halibut is two fish, and the 
possession limit is two daily harvest limits. You may not possess sport-
taken and subsistence-taken halibut on the same day.
    (10) Cook Inlet Area. The Cook Inlet Area includes all waters of 
Alaska enclosed by a line extending east from Cape Douglas 
(58[deg]51.1[min] North latitude) and a line extending south from Cape 
Fairfield (148[deg]50.25[min] West longitude).
    (i) Unless restricted in this section, or unless restricted under 
the terms of a subsistence fishing permit, you may take fish at any time 
in the Cook Inlet Area. If you take rainbow/steelhead trout incidentally 
in other subsistence net fisheries, you may retain them for subsistence 
purposes.
    (ii) You may not take grayling or burbot for subsistence purposes.
    (iii) You may take fish by gear listed in this part unless 
restricted in this section or under the terms of a subsistence fishing 
permit (as may be modified by this section).
    (iv) You may only take salmon, trout, Dolly Varden, and other char 
under authority of a Federal subsistence fishing permit. Seasons, 
harvest and possession limits, and methods and means for take are the 
same as for the taking of those species under Alaska sport fishing 
regulations (5 AAC 56).
    (v) You may only take smelt with dip nets in fresh water from April 
1 through June 15. There are no harvest or possession limits for smelt.
    (vi) Gillnets may not be used in fresh water, except for the taking 
of whitefish in the Tyone River drainage.
    (11) Prince William Sound Area. The Prince William Sound Area 
includes all waters and drainages of Alaska between the longitude of 
Cape Fairfield and the longitude of Cape Suckling.
    (i) You may take fish, other than rainbow/steelhead trout, in the 
Prince William Sound Area only under authority of a subsistence fishing 
permit, except that a permit is not required to take eulachon. You make 
not take rainbow/steelhead trout, except as otherwise provided for in 
this Sec. 242.27(i)(11).
    (A) In the Prince William Sound Area within Chugach National Forest 
and in the Copper River drainage downstream of Haley Creek you may 
accumulate Federal subsistence fishing harvest limits with harvest 
limits under State of Alaska sport fishing regulations provided that 
accumulation of fishing harvest limits does not occur during the same 
day.
    (B) You may accumulate harvest limits of salmon authorized for the 
Copper

[[Page 238]]

River drainage upstream from Haley Creek with harvest limits for salmon 
authorized under State of Alaska sport fishing regulations.
    (ii) You may take fish by gear listed in paragraph (c)(1) of this 
part unless restricted in this section or under the terms of a 
subsistence fishing permit.
    (iii) If you catch rainbow/steelhead trout incidentally in other 
subsistence net fisheries, you may retain them for subsistence purposes, 
unless restricted in this section.
    (iv) In the Copper River drainage, you may take salmon only in the 
waters of the Upper Copper River District, or in the vicinity of the 
Native Village of Batzulnetas.
    (v) In the Upper Copper River District, you may take salmon only by 
fish wheels, rod and reel, or dip nets.
    (vi) Rainbow/steelhead trout and other freshwater fish caught 
incidentally to salmon by fish wheel in the Upper Copper River District 
may be retained.
    (vii) Freshwater fish other than rainbow/steelhead trout caught 
incidentally to salmon by dip net in the Upper Copper River District may 
be retained. Rainbow/steelhead trout caught incidentally to salmon by 
dip net in the Upper Copper River District must be released unharmed to 
the water.
    (viii) You may not possess salmon taken under the authority of an 
Upper Copper River District subsistence fishing permit, or rainbow/
steelhead trout caught incidentally to salmon by fish wheel, unless the 
anal (ventral) fin has been immediately removed from the fish. You must 
immediately record all retained fish on the subsistence permit. 
Immediately means prior to concealing the fish from plain view or 
transporting the fish more than 50 feet from where the fish was removed 
from the water.
    (ix) You may take salmon in the Upper Copper River District from May 
15 through September 30 only.
    (x) The total annual harvest limit for subsistence salmon fishing 
permits in combination for the Glennallen Subdistrict and the Chitina 
Subdistrict is as follows:
    (A) For a household with 1 person, 30 salmon, of which no more than 
5 may be Chinook salmon taken by dip net and no more than 5 Chinook 
taken by rod and reel;
    (B) For a household with 2 persons, 60 salmon, of which no more than 
5 may be Chinook salmon taken by dip net and no more than 5 Chinook 
taken by rod and reel, plus 10 salmon for each additional person in a 
household over 2 persons, except that the household's limit for Chinook 
salmon taken by dip net or rod and reel does not increase;
    (C) Upon request, permits for additional salmon will be issued for 
no more than a total of 200 salmon for a permit issued to a household 
with 1 person, of which no more than 5 may be Chinook salmon taken by 
dip net and no more than 5 Chinook taken by rod and reel, or no more 
than a total of 500 salmon for a permit issued to a household with 2 or 
more persons, of which no more than 5 may be Chinook salmon taken by dip 
net and no more than 5 Chinook taken by rod and reel.
    (xi) The following apply to Upper Copper River District subsistence 
salmon fishing permits:
    (A) Only one subsistence fishing permit per subdistrict will be 
issued to each household per year. If a household has been issued 
permits for both subdistricts in the same year, both permits must be in 
your possession and readily available for inspection while fishing or 
transporting subsistence-taken fish in either subdistrict. A qualified 
household may also be issued a Batzulnetas salmon fishery permit in the 
same year;
    (B) Multiple types of gear may be specified on a permit, although 
only one unit of gear may be operated at any one time;
    (C) You must return your permit no later than October 31 of the year 
in which the permit is issued, or you may be denied a permit for the 
following year;
    (D) A fish wheel may be operated only by one permit holder at one 
time; that permit holder must have the fish wheel marked as required by 
Sec. 242.27(i)(11) and during fishing operations;
    (E) Only the permit holder and the authorized member of the 
household listed on the subsistence permit may take salmon;

[[Page 239]]

    (F) You must personally operate your fish wheel or dip net;
    (G) You may not loan or transfer a subsistence fish wheel or dip net 
permit except as permitted.
    (xii) If you are a fish wheel owner:
    (A) You must register your fish wheel with ADF&G or the Federal 
Subsistence Board;
    (B) Your registration number and a wood, metal, or plastic plate at 
least 12 inches high by 12 inches wide bearing either your name and 
address, or your Alaska driver's license number, or your Alaska State 
identification card number in letters and numerals at least 1 inch high, 
must be permanently affixed and plainly visible on the fish wheel when 
the fish wheel is in the water;
    (C) Only the current year's registration number may be affixed to 
the fish wheel; you must remove any other registration number from the 
fish wheel;
    (D) You must check your fish wheel at least once every 10 hours and 
remove all fish;
    (E) You are responsible for the fish wheel; you must remove the fish 
wheel from the water at the end of the permit period;
    (F) You may not rent, lease, or otherwise use your fish wheel used 
for subsistence fishing for personal gain.
    (xiii) If you are operating a fish wheel:
    (A) You may operate only one fish wheel at any one time;
    (B) You may not set or operate a fish wheel within 75 feet of 
another fish wheel;
    (C) No fish wheel may have more than two baskets;
    (D) If you are a permittee other than the owner, you must attach an 
additional wood, metal, or plastic plate at least 12 inches high by 12 
inches wide, bearing your name and address in letters and numerals at 
least 1 inch high, to the fish wheel so that the name and address are 
plainly visible.
    (xiv) A subsistence fishing permit may be issued to a village 
council, or other similarly qualified organization whose members operate 
fish wheels for subsistence purposes in the Upper Copper River District, 
to operate fish wheels on behalf of members of its village or 
organization. The following additional provisions apply to subsistence 
fishing permits issued under this paragraph (i)(11)(xiv):
    (A) The permit will list all households and household members for 
whom the fish wheel is being operated. The permit will identify a person 
who will be responsible for each fish wheel in a similar manner to a 
fish wheel owner as described in paragraph (i)(11)(xii) of this section;
    (B) The allowable harvest may not exceed the combined seasonal 
limits for the households listed on the permit; the permittee will 
notify the ADF&G or Federal Subsistence Board when households are added 
to the list, and the seasonal limit may be adjusted accordingly;
    (C) Members of households listed on a permit issued to a village 
council or other similarly qualified organization are not eligible for a 
separate household subsistence fishing permit for the Upper Copper River 
District;
    (D) The permit will include provisions for recording daily catches 
for each fish wheel; location and number of fish wheels; full legal name 
of the individual responsible for the lawful operation of each fish 
wheel as described in paragraph (i)(11)(xii) of this section; and other 
information determined to be necessary for effective resource 
management.
    (xv) You may take salmon in the vicinity of the former Native 
village of Batzulnetas only under the authority of a Batzulnetas 
subsistence salmon fishing permit available from the National Park 
Service under the following conditions:
    (A) You may take salmon only in those waters of the Copper River 
between National Park Service regulatory markers located near the mouth 
of Tanada Creek and approximately one-half mile downstream from that 
mouth and in Tanada Creek between National Park Service regulatory 
markers identifying the open waters of the creek;
    (B) You may use only fish wheels, dip nets, and rod and reel on the 
Copper River and only dip nets, spears, fyke nets, and rod and reel in 
Tanada Creek. One fyke net and associated lead may be used in Tanada 
Creek upstream of the National Park Service weir;

[[Page 240]]

    (C) You may take salmon only from May 15 through September 30 or 
until the season is closed by special action;
    (D) You may retain Chinook salmon taken in a fish wheel in the 
Copper River. You must return to the water unharmed any Chinook salmon 
caught in Tanada Creek;
    (E) You must return the permit to the National Park Service no later 
than October 15;
    (F) You may only use a fyke net after consultation with the in-
season manager. You must be present when the fyke net is actively 
fishing. You may take no more than 1,000 sockeye salmon in Tanada Creek 
with a fyke net;
    (xvi) You may take pink salmon for subsistence purposes from fresh 
water with a dip net from May 15 through September 30, 7 days per week, 
with no harvest or possession limits in the following areas:
    (A) Green Island, Knight Island, Chenega Island, Bainbridge Island, 
Evans Island, Elrington Island, Latouche Island, and adjacent islands, 
and the mainland waters from the outer point of Granite Bay located in 
Knight Island Passage to Cape Fairfield;
    (B) Waters north of a line from Porcupine Point to Granite Point, 
and south of a line from Point Lowe to Tongue Point.
    (12) Yakutat Area. The Yakutat Area includes all waters and 
drainages of Alaska between the longitude of Cape Suckling and the 
longitude of Cape Fairweather.
    (i) Unless restricted in this section or unless restricted under the 
terms of a subsistence fishing permit, you may take fish at any time in 
the Yakutat Area.
    (ii) You may not take salmon during the period commencing 48 hours 
before a State opening of commercial salmon net fishing season and 
ending 48 hours after the closure. This applies to each river or bay 
fishery individually.
    (iii) When the length of the weekly State commercial salmon net 
fishing period exceeds two days in any Yakutat Area salmon net fishery, 
the subsistence fishing period is from 6 a.m. to 6 p.m. on Saturday in 
that location.
    (iv) You may take salmon, trout (other than steelhead), and char 
only under authority of a subsistence fishing permit. You may take 
steelhead trout only in the Situk and Ahrnklin Rivers and only under 
authority of a Federal subsistence fishing permit.
    (v) If you take salmon, trout, or char incidentally by gear operated 
under the terms of a subsistence permit for salmon, you may retain them 
for subsistence purposes. You must report any salmon, trout, or char 
taken in this manner on your permit calendar.
    (vi) You may take fish by gear listed in this part unless restricted 
in this section or under the terms of a subsistence fishing permit. In 
areas where use of rod and reel is allowed, you may use artificial fly, 
lure, or bait when fishing with rod and reel, unless restricted by 
Federal permit. If you use bait, you must retain all Federally-regulated 
fish species caught, and they apply to your applicable daily and annual 
harvest limits for that species. For streams with steelhead, once your 
daily or annual limit of steelhead is harvested, you may no longer fish 
with bait for any species.
    (vii) In the Situk River, each subsistence salmon fishing permit 
holder shall attend his or her gillnet at all times when it is being 
used to take salmon.
    (viii) You may block up to two-thirds of a stream with a gillnet or 
seine used for subsistence fishing.
    (ix) You must immediately remove both lobes of the caudal (tail) fin 
from subsistence-caught salmon when taken.
    (x) You may not possess subsistence-taken and sport-taken salmon on 
the same day.
    (xi) You must possess a subsistence fishing permit to take Dolly 
Varden. The daily harvest and possession limit is 10 Dolly Varden of any 
size.
    (13) Southeastern Alaska Area. The Southeastern Alaska Area includes 
all waters between a line projecting southwest from the westernmost tip 
of Cape Fairweather and Dixon Entrance.
    (i) Unless restricted in this section or under the terms of a 
subsistence fishing permit, you may take fish other than salmon, trout, 
grayling, and char in the Southeastern Alaska Area at any time.

[[Page 241]]

    (ii) You must possess a subsistence fishing permit to take salmon, 
trout, grayling, or char. You must possess a subsistence fishing permit 
to take eulachon from any freshwater stream flowing into fishing 
Sec. ions 1C or 1D.
    (iii) In the Southeastern Alaska Area, a rainbow trout is defined as 
a fish of the species Oncorhyncus mykiss less than 22 inches in overall 
length. A steelhead is defined as a rainbow trout with an overall length 
of 22 inches or larger.
    (iv)(A) In areas where use of rod and reel is allowed, you may use 
artificial fly, lure, or bait when fishing with rod and reel, unless 
restricted by Federal permit. If you use bait, you must retain all 
Federally-regulated fish species caught, and they apply to your 
applicable daily, seasonal, and annual harvest limits for that species. 
For streams with steelhead, once your daily, seasonal, or annual limit 
of steelhead is harvested, you may no longer fish with bait for any 
species.
    (B) Unless otherwise specified in this Sec. 242.27(i)(13), 
allowable gear for salmon or steelhead is restricted to gaffs, spears, 
gillnets, seines, dip nets, cast nets, handlines, or rod and reel.
    (v) Unless otherwise specified in this Sec. 242.27(i)(13), you may 
use a handline for snagging salmon or steelhead.
    (vi) You may fish with a rod and reel within 300 feet of a fish 
ladder unless the site is otherwise posted by the USDA Forest Service. 
You may not fish from, on, or in a fish ladder.
    (vii) You may accumulate annual Federal subsistence harvest limits 
authorized for the Southeastern Alaska Area with harvest limits 
authorized under State of Alaska sport fishing regulations.
    (viii) If you take salmon, trout, or char incidentally with gear 
operated under terms of a subsistence permit for other salmon, they may 
be kept for subsistence purposes. You must report any salmon, trout, or 
char taken in this manner on your subsistence fishing permit.
    (ix) No permits for the use of nets will be issued for the salmon 
streams flowing across or adjacent to the road systems within the city 
limits of Petersburg, Wrangell, and Sitka.
    (x) You must immediately remove both lobes of the caudal (tail) fin 
of subsistence-caught salmon when taken.
    (xi) You may not possess subsistence-taken and sport-taken salmon on 
the same day.
    (xii) If a harvest limit is not otherwise listed for sockeye in this 
Sec. 242.27(i)(13), the harvest limit for sockeye salmon is the same as 
provided for in adjacent State subsistence or personal use fisheries. If 
a harvest limit is not established for the State subsistence or personal 
use fisheries, the possession limit is 10 sockeye and the annual harvest 
limit is 20 sockeye per household for that stream.
    (xiii)-(xv) [Reserved]
    (xvi) The Sarkar River system above the bridge is closed to the use 
of all nets by both Federally-qualified and non-Federally qualified 
users.
    (xvii) Only Federally-qualified subsistence users may harvest 
sockeye salmon in streams draining into Falls Lake Bay, Gut Bay, or Bay 
of Pillars.
    (xviii) From July 7 through July 31, you may take sockeye salmon in 
the waters of the Klawock River and Klawock Lake only from 8 a.m. Monday 
until 5 p.m. Friday.
    (xix) You may take Chinook, sockeye, and coho salmon in the mainstem 
of the Stikine River only under the authority of a Federal subsistence 
fishing permit. Each Stikine River permit will be issued to a household 
and will be valid for 15 days. Permits may be revalidated for additional 
15-day periods. Only dip nets, spears, gaffs, rod and reel, beach seine, 
or gillnets not exceeding 15 fathoms in length may be used. The maximum 
gillnet mesh size is 5\1/2\-inches, except during the Chinook season 
when the maximum gillnet mesh size is 8 inches.
    (A) You may take Chinook salmon from May 15 through June 20. The 
annual limit is 5 Chinook salmon per household.
    (B) You may take sockeye salmon from June 21 through July 31. The 
annual limit is 40 sockeye salmon per household.
    (C) You may take coho salmon from August 15 through October 1. The 
annual limit is 20 coho salmon per household.

[[Page 242]]

    (D) You may retain other salmon taken incidentally by gear operated 
under terms of this permit. The incidentally taken salmon must be 
reported on your permit calendar.
    (E) The total annual guideline harvest level for the Stikine River 
fishery is 125 Chinook, 600 sockeye, and 400 coho salmon. All salmon 
harvested, including incidentally taken salmon, will count against the 
guideline for that species.
    (xx) You may take coho salmon under the terms of a subsistence 
fishing permit, except in the Stikine and Taku Rivers. There is no 
closed season. The daily harvest limit is 20 coho salmon per household. 
Only dip nets, spears, gaffs, handlines, and rod and reel may be used.
    (xxi) Unless noted on a Federal subsistence harvest permit, there 
are no harvest limits for pink or chum salmon.
    (xxii) Unless otherwise specified in this Sec. 242.27(i)(13), you 
may take steelhead under the terms of a subsistence fishing permit. The 
open season is January 1 through May 31. The daily household harvest and 
possession limit is one with an annual household limit of two. You may 
only use a dip net, gaff, handline, spear, or rod and reel. The permit 
conditions and systems to receive special protection will be determined 
by the local Federal fisheries manager in consultation with ADF&G.
    (xxiii) You may take steelhead trout on Prince of Wales and 
Kosciusko Islands under the terms of Federal subsistence fishing 
permits. You must obtain a separate permit for the winter and spring 
seasons.
    (A) The winter season is December 1 through the last day of 
February, with a harvest limit of 2 fish per household. You may use only 
a dip net, handline, spear, or rod and reel. The winter season may be 
closed when the harvest level cap of 100 steelhead for Prince of Wales/
Kosciusko Islands has been reached. You must return your winter season 
permit within 15 days of the close of the season and before receiving 
another permit for a Prince of Wales/Kosciusko steelhead subsistence 
fishery. The permit conditions and systems to receive special protection 
will be determined by the local Federal fisheries manager in 
consultation with ADF&G.
    (B) The spring season is March 1 through May 31, with a harvest 
limit of 5 fish per household. You may use only a dip net, handline, 
spear, or rod and reel. The spring season may be closed prior to May 31 
if the harvest quota of 600 fish minus the number of steelhead harvested 
in the winter subsistence steelhead fishery is reached. You must return 
your spring season permit within 15 days of the close of the season and 
before receiving another permit for a Prince of Wales/Kosciusko 
steelhead subsistence fishery. The permit conditions and systems to 
receive special protection will be determined by the local Federal 
fisheries manager in consultation with ADF&G.
    (xxiv) In addition to the requirement for a Federal subsistence 
fishing permit, the following restrictions for the harvest of Dolly 
Varden, brook trout, grayling, cutthroat, and rainbow trout apply:
    (A) The daily household harvest and possession limit is 20 Dolly 
Varden; there is no closed season or size limit;
    (B) The daily household harvest and possession limit is 20 brook 
trout; there is no closed season or size limit;
    (C) The daily household harvest and possession limit is 20 grayling; 
there is no closed season or size limit;
    (D) The daily household harvest limit is 6 and the household 
possession limit is 12 cutthroat or rainbow trout in combination; there 
is no closed season or size limit;
    (E) You may only use a rod and reel;
    (F) The permit conditions and systems to receive special protection 
will be determined by the local Federal fisheries manager in 
consultation with ADF&G.

[72 FR 12683, Mar. 16, 2007]

    Effective Date Note: At 72 FR 12683, Mar. 16, 2007, Sec. 242.27 was 
added, effective Apr. 1, 2007, through Mar. 31, 2008.



Sec. 242.28  Subsistence taking of shellfish.

    (a) Regulations in this section apply to subsistence taking of 
Dungeness crab, king crab, Tanner crab, shrimp, clams, abalone, and 
other shellfish or their parts.
    (b) [Reserved]

[[Page 243]]

    (c) You may take shellfish for subsistence uses at any time in any 
area of the public lands by any method unless restricted by this 
section.
    (d) Methods, means, and general restrictions. (1) The harvest limit 
specified in this section for a subsistence season for a species and the 
State harvest limit set for a State season for the same species are not 
cumulative. This means that if you have taken the harvest limit for a 
particular species under a subsistence season specified in this section, 
you may not, after that, take any additional shellfish of that species 
under any other harvest limit specified for a State season.
    (2) Unless otherwise provided in this section or under terms of a 
required subsistence fishing permit (as may be modified by this 
section), you may use the following legal types of gear to take 
shellfish:
    (i) Abalone iron;
    (ii) Diving gear;
    (iii) A grappling hook;
    (iv) A handline;
    (v) A hydraulic clam digger;
    (vi) A mechanical clam digger;
    (vii) A pot;
    (viii) A ring net;
    (ix) A scallop dredge;
    (x) A sea urchin rake;
    (xi) A shovel; and
    (xii) A trawl.
    (3) You are prohibited from buying or selling subsistence-taken 
shellfish, their parts, or their eggs, unless otherwise specified.
    (4) You may not use explosives and chemicals, except that you may 
use chemical baits or lures to attract shellfish.
    (5) Marking requirements for subsistence shellfish gear are as 
follows:
    (i) You must plainly and legibly inscribe your first initial, last 
name, and address on a keg or buoy attached to unattended subsistence 
fishing gear, except when fishing through the ice, when you may 
substitute for the keg or buoy a stake inscribed with your first 
initial, last name, and address inserted in the ice near the hole; 
subsistence fishing gear may not display a permanent ADF&G vessel 
license number;
    (ii) Kegs or buoys attached to subsistence crab pots also must be 
inscribed with the name or United States Coast Guard number of the 
vessel used to operate the pots.
    (6) Pots used for subsistence fishing must comply with the escape 
mechanism requirements found in Sec. 242.27(c)(2).
    (7) You may not mutilate or otherwise disfigure a crab in any manner 
which would prevent determination of the minimum size restrictions until 
the crab has been processed or prepared for consumption.
    (e) Taking shellfish by designated harvest permit. (1) Any species 
of shellfish that may be taken by subsistence fishing under this part 
may be taken under a designated harvest permit.
    (2) If you are a Federally-qualified subsistence user (beneficiary), 
you may designate another Federally-qualified subsistence user to take 
shellfish on your behalf. The designated fisherman must obtain a 
designated harvest permit prior to attempting to harvest shellfish and 
must return a completed harvest report. The designated fisherman may 
harvest for any number of beneficiaries but may have no more than two 
harvest limits in his/her possession at any one time.
    (3) The designated fisherman must have in possession a valid 
designated harvest permit when taking, attempting to take, or 
transporting shellfish taken under this section, on behalf of a 
beneficiary.
    (4) You may not fish with more than one legal limit of gear as 
established by this section.
    (5) You may not designate more than one person to take or attempt to 
take shellfish on your behalf at one time. You may not personally take 
or attempt to take shellfish at the same time that a designated 
fisherman is taking or attempting to take shellfish on your behalf.
    (f) If a subsistence shellfishing permit is required by this 
section, the following conditions apply unless otherwise specified by 
the subsistence regulations in this section:
    (1) You may not take shellfish for subsistence in excess of the 
limits set out in the permit unless a different limit is specified in 
this section;
    (2) You must obtain a permit prior to subsistence fishing;

[[Page 244]]

    (3) You must have the permit in your possession and readily 
available for inspection while taking or transporting the species for 
which the permit is issued;
    (4) The permit may designate the species and numbers of shellfish to 
be harvested, time and area of fishing, the type and amount of fishing 
gear and other conditions necessary for management or conservation 
purposes;
    (5) If specified on the permit, you must keep accurate daily records 
of the catch involved, showing the number of shellfish taken by species, 
location and date of the catch, and such other information as may be 
required for management or conservation purposes;
    (6) You must complete and submit subsistence fishing reports at the 
time specified for each particular area and fishery;
    (7) If the return of catch information necessary for management and 
conservation purposes is required by a subsistence fishing permit and 
you fail to comply with such reporting requirements, you are ineligible 
to receive a subsistence permit for that activity during the following 
calendar year, unless you demonstrate that failure to report was due to 
loss in the mail, accident, sickness, or other unavoidable 
circumstances.
    (g) Subsistence take by commercial vessels. No fishing vessel which 
is commercially licensed and registered for shrimp pot, shrimp trawl, 
king crab, Tanner crab, or Dungeness crab fishing may be used for 
subsistence take during the period starting 14 days before an opening 
and ending 14 days after the closure of a respective open season in the 
area or areas for which the vessel is registered. However, if you are a 
commercial fisherman, you may retain shellfish for your own use from 
your lawfully taken commercial catch.
    (h) You may not take or possess shellfish smaller than the minimum 
legal size limits.
    (i) Unlawful possession of subsistence shellfish. You may not 
possess, transport, give, receive, or barter shellfish or their parts 
taken in violation of Federal or State regulations.
    (j)(1) An owner, operator, or employee of a lodge, charter vessel, 
or other enterprise that furnishes food, lodging, or guide services may 
not furnish to a client or guest of that enterprise, shellfish that has 
been taken under this section, unless:
    (i) The shellfish has been taken with gear deployed and retrieved by 
the client or guest who is a Federally-qualified subsistence user;
    (ii) The gear has been marked with the client's or guest's name and 
address; and
    (iii) The shellfish is to be consumed by the client or guest or is 
consumed in the presence of the client or guest.
    (2) The captain and crewmembers of a charter vessel may not deploy, 
set, or retrieve their own gear in a subsistence shellfish fishery when 
that vessel is being chartered.
    (k) Subsistence shellfish areas and pertinent restrictions--(1) 
Southeastern Alaska-Yakutat Area. No marine waters are currently 
identified under Federal subsistence management jurisdiction.
    (2) Prince William Sound Area. No marine waters are currently 
identified under Federal subsistence management jurisdiction.
    (3) Cook Inlet Area. (i) You may take shellfish for subsistence 
purposes only as allowed in this section (k)(3).
    (ii) You may not take king crab, Dungeness crab, or shrimp for 
subsistence purposes.
    (iii) In the subsistence taking of Tanner crab:
    (A) Male Tanner crab may be taken only from July 15 through March 
15;
    (B) The daily harvest and possession limit is 5 male Tanner crabs;
    (C) Only male Tanner crabs 5\1/2\ inches or greater in width of 
shell may be taken or possessed;
    (D) No more than 2 pots per person, regardless of type, with a 
maximum of 2 pots per vessel, regardless of type, may be used to take 
Tanner crab.
    (iv) In the subsistence taking of clams:
    (A) The daily harvest and possession limit for littleneck clams is 
1,000 and the minimum size is 1.5 inches in length;
    (B) The daily harvest and possession limit for butter clams is 700 
and the minimum size is 2.5 inches in length.

[[Page 245]]

    (v) Other than as specified in this section, there are no harvest, 
possession, or size limits for other shellfish, and the season is open 
all year.
    (4) Kodiak Area. (i) You may take crab for subsistence purposes only 
under the authority of a subsistence crab fishing permit issued by the 
ADF&G.
    (ii) The operator of a commercially licensed and registered shrimp 
fishing vessel must obtain a subsistence fishing permit from the ADF&G 
before subsistence shrimp fishing during a State closed commercial 
shrimp fishing season or within a closed commercial shrimp fishing 
district, section, or subsection. The permit must specify the area and 
the date the vessel operator intends to fish. No more than 500 pounds 
(227 kg) of shrimp may be in possession aboard the vessel.
    (iii) The daily harvest and possession limit is 12 male Dungeness 
crabs per person; only male Dungeness crabs with a shell width of 6\1/2\ 
inches or greater may be taken or possessed. Taking of Dungeness crab is 
prohibited in water 25 fathoms or more in depth during the 14 days 
immediately before the State opening of a commercial king or Tanner crab 
fishing season in the location.
    (iv) In the subsistence taking of king crab:
    (A) The annual limit is six crabs per household; only male king crab 
with shell width of 7 inches or greater may be taken or possessed;
    (B) All crab pots used for subsistence fishing and left in saltwater 
unattended longer than a 2-week period must have all bait and bait 
containers removed and all doors secured fully open;
    (C) You may only use one crab pot, which may be of any size, to take 
king crab;
    (D) You may take king crab only from June 1 through January 31, 
except that the subsistence taking of king crab is prohibited in waters 
25 fathoms or greater in depth during the period 14 days before and 14 
days after State open commercial fishing seasons for red king crab, blue 
king crab, or Tanner crab in the location;
    (E) The waters of the Pacific Ocean enclosed by the boundaries of 
Womens Bay, Gibson Cove, and an area defined by a line \1/2\ mile on 
either side of the mouth of the Karluk River, and extending seaward 
3,000 feet, and all waters within 1,500 feet seaward of the shoreline of 
Afognak Island are closed to the harvest of king crab except by 
Federally-qualified subsistence users.
    (v) In the subsistence taking of Tanner crab:
    (A) You may not use more than five crab pots to take Tanner crab;
    (B) You may not take Tanner crab in waters 25 fathoms or greater in 
depth during the 14 days immediately before the opening of a State 
commercial king or Tanner crab fishing season in the location;
    (C) The daily harvest and possession limit per person is 12 male 
crabs with a shell width 5\1/2\ inches or greater.
    (5) Alaska Peninsula-Aleutian Islands Area. (i) The operator of a 
commercially licensed and registered shrimp fishing vessel must obtain a 
subsistence fishing permit from the ADF&G prior to subsistence shrimp 
fishing during a closed State commercial shrimp fishing season or within 
a closed commercial shrimp fishing district, section, or subsection; the 
permit must specify the area and the date the vessel operator intends to 
fish; no more than 500 pounds (227 kg) of shrimp may be in possession 
aboard the vessel.
    (ii) The daily harvest and possession limit is 12 male Dungeness 
crabs per person; only crabs with a shell width of 5\1/2\ inches or 
greater may be taken or possessed.
    (iii) In the subsistence taking of king crab:
    (A) The daily harvest and possession limit is six male crabs per 
person; only crabs with a shell width of 6\1/2\ inches or greater may be 
taken or possessed;
    (B) All crab pots used for subsistence fishing and left in saltwater 
unattended longer than a 2-week period must have all bait and bait 
containers removed and all doors secured fully open;
    (C) You may take crabs only from June 1 through January 31.
    (iv) The daily harvest and possession limit is 12 male Tanner crabs 
per person; only crabs with a shell width of 5\1/2\ inches or greater 
may be taken or possessed.

[[Page 246]]

    (6) Bering Sea Area. (i) In that portion of the area north of the 
latitude of Cape Newenham, shellfish may only be taken by shovel, 
jigging gear, pots, and ring net.
    (ii) The operator of a commercially licensed and registered shrimp 
fishing vessel must obtain a subsistence fishing permit from the ADF&G 
prior to subsistence shrimp fishing during a closed commercial shrimp 
fishing season or within a closed commercial shrimp fishing district, 
section, or subsection; the permit must specify the area and the date 
the vessel operator intends to fish; no more than 500 pounds (227 kg) of 
shrimp may be in possession aboard the vessel.
    (iii) In waters south of 60[deg] North latitude, the daily harvest 
and possession limit is 12 male Dungeness crabs per person.
    (iv) In the subsistence taking of king crab:
    (A) In waters south of 60[deg] North latitude, the daily harvest and 
possession limit is six male crabs per person;
    (B) All crab pots used for subsistence fishing and left in saltwater 
unattended longer than a 2-week period must have all bait and bait 
containers removed and all doors secured fully open;
    (C) In waters south of 60[deg] North latitude, you may take crab 
only from June 1 through January 31;
    (D) In the Norton Sound Sec. ion of the Northern District, you must 
have a subsistence permit.
    (v) In waters south of 60[deg] North latitude, the daily harvest and 
possession limit is 12 male Tanner crabs.

[72 FR 12683, Mar. 16, 2007]

    Effective Date Note: At 72 FR 12683, Mar. 16, 2007, Sec. 242.28 was 
added, effective Apr. 1, 2007, through Mar. 31, 2008.



PART 251_LAND USES--Table of Contents




                    Subpart A_Miscellaneous Land Uses

                        Natural Resources Control

Sec. 
251.9 Management of municipal watersheds.
251.10 Prohibition of location of mining claims within certain areas in 
          the Norbeck Wildlife Preserve, South Dakota.
251.11 Governing mining locations under the mining laws of the United 
          States within that portion of the Black Hills National Forest, 
          State of South Dakota, designated as the Norbeck Wildlife 
          Preserve.
251.14 Conditions, rules, and regulations to govern exercise of timber 
          rights reserved in conveyance to the United States.
251.15 Conditions, rules, and regulations to govern exercise of mineral 
          rights reserved in conveyances to the United States.

                           Rights of Grantors

251.17 Grantor's right to occupy and use lands conveyed to the United 
          States.
251.18 Rights-of-way reserved by the grantor on lands conveyed to the 
          United States.
251.19 Exercise of water rights reserved by the grantor of lands 
          conveyed to the United States.

                          Designation of Areas

251.23 Experimental areas and research natural areas.

                          Petersburg Watershed

251.35 Petersburg watershed.

                         Subpart B_Special Uses

251.50 Scope.
251.51 Definitions.
251.52 Delegation of authority.
251.53 Authorities.
251.54 Proposal and application requirements and procedures.
251.55 Nature of interest.
251.56 Terms and conditions.
251.57 Rental fees.
251.58 Cost recovery.
251.59 Transfer of authorized improvements.
251.60 Termination, revocation, and suspension.
251.61 Modifications.
251.62 Acceptance.
251.63 Reciprocity.
251.64 Renewals.
251.65 Information collection requirements.

Subpart C_Appeal of Decisions Relating to Occupancy and Use of National 
                           Forest System Lands

251.80 Purpose and scope.
251.81 Definitions and terminology.
251.82 Appealable decisions.
251.83 Decisions not appealable.
251.84 Obtaining notice.
251.85 Election of appeal process.
251.86 Parties.
251.87 Levels of appeal.
251.88 Filing procedures.
251.89 Time extensions.
251.90 Content of notice of appeal.

[[Page 247]]

251.91 Stays.
251.92 Dismissal.
251.93 Resolution of issues.
251.94 Responsive statement.
251.95 Authority of Reviewing Officer.
251.96 Intervention.
251.97 Oral presentation.
251.98 Appeal record.
251.99 Appeal decision.
251.100 Discretionary review.
251.101 Policy in event of judicial proceedings.
251.102 Applicability and effective date.

                  Subpart D_Access to Non-Federal Lands

251.110 Scope and application.
251.111 Definitions.
251.112 Application requirements.
251.113 Instrument of authorization.
251.114 Criteria, terms, and conditions.

         Subpart E_Revenue-Producing Visitor Services in Alaska

251.120 Applicability and scope.
251.121 Definitions.
251.122 Historical operator special use authorizations.
251.123 Most directly affected Native Corporation determination.
251.124 Preferred operator competitive special use authorization 
          procedures.
251.125 Preferred operator privileges and limitations.
251.126 Appeals.

    Authority: 16 U.S.C. 472, 479b, 551, 1134, 3210, 6201-13; 30 U.S.C. 
1740, 1761-1771.



                    Subpart A_Miscellaneous Land Uses

    Authority: 7 U.S.C. 1011; 16 U.S.C. 518, 551, 678a; Pub. L. 76-867, 
54 Stat. 1197.

                        Natural Resources Control



Sec. 251.9  Management of Municipal Watersheds.

    (a) The Forest Service shall manage National Forest watersheds that 
supply municipal water under multiple use prescriptions in forest plans 
(36 CFR part 219). When a municipality desires protective actions or 
restrictions of use not specified in the forest plan, within agreements, 
and/or special use authorizations, the municipality must apply to the 
Forest Service for consideration of these needs.
    (b) When deemed appropriate by the Regional Forester, requested 
restrictions and/or requirements shall be incorporated in the forest 
plan without written agreements. Written agreements with municipalities 
to assure protection of water supplies are appropriate when requested by 
the municipality and deemed necessary by the Regional Forester. A 
special use authorization may be needed to effect these agreements.
    (c) In preparing any municipal watershed agreement for approval by 
the Regional Forester or issuing special use authorization to protect 
municipal water supplies, the authorized forest officer shall specify 
the types of uses, if any, to be restricted; the nature and extent of 
any restrictions; any special land management protective measures and/or 
any necessary standards and guidelines needed to protect water quality 
or quantity; and any resources that are to be provided by the 
municipality.
    (d) A special use authorization (36 CFR 251.54) is required if the 
municipality is to use the subject lands, restrict public access, or 
control resource uses within the watershed. Special use authorizations 
issued pursuant to this section are subject to the same fee waivers, 
conditions, and procedures applicable to all other special uses as set 
forth in subpart B of this part.
    (e) Any municipal watershed management agreements, special use 
authorizations, requirements, and/or restrictions shall be consistent 
with forest plans, or amendments and revisions thereto.

[53 FR 27685, July 22, 1988]



Sec. 251.10  Prohibition of location of mining claims within certain areas in the Norbeck Wildlife Preserve, South Dakota.

    The location of mining claims in such areas within 660 feet of any 
Federal, State or county road and within such other areas where the 
location of mining claims would not be in the public interest, as may be 
designated by the Chief, Forest Service, or the Regional Forester, of 
Forest Service Region 2, is hereby prohibited. The Director, Bureau of 
Land Management, Department of the Interior, shall be advised of the 
areas so designated and notices of the boundaries of such areas posted 
at conspicuous places in the

[[Page 248]]

Preserve, as well as at the county courthouses in Pennington in the 
cities of Custer and Rapid City, and Custer Counties and the post 
offices State of South Dakota.

[13 FR 3676, July 1, 1948, as amended at 48 FR 31854, July 12, 1983]



Sec. 251.11  Governing mining locations under the mining laws of the United States within that portion of the Black Hills National Forest, State of South 
          Dakota, designated as the Norbeck Wildlife Preserve.

    (a) Whoever locates a mining claim within the Norbeck Wildlife 
Preserve must, within 10 days after posting the location notice upon 
such claim, file a true copy of such location notice with the Forest 
Supervisor of the Black Hills National Forest at Custer, South Dakota, 
and further, within 10 days after said location notice is filed for 
record pursuant to the State laws of South Dakota, a true copy of the 
recorded location certificate must be filed with said Forest Supervisor.
    (b) All mining locators shall in all developments and operations 
make all reasonable provisions for the disposal of tailings, dumpage, 
and other deleterious materials or substances in such manner as to 
prevent obstruction, pollution, or deterioration of the land, streams, 
ponds, lakes, or springs, as may be directed by the Forest Supervisor.
    (c) All slash resulting from cutting or destruction of forest growth 
incident and necessary to mining operations must be disposed of as 
directed by the Forest Supervisor.
    (d) The cutting and removal of timber, except where clearing is 
necessary in connection with mining operations or to provide space for 
buildings or structures used in connection with mining operations, shall 
be conducted in accordance with the marking rules and timber sale 
practices applicable to the Black Hills National Forest, and such 
cutting and removal of timber shall be as directed by the Forest 
Supervisor.
    (e) No use of the surface of a mining claim or the resources 
therefrom not reasonably required for carrying on mining and prospecting 
shall be allowed, except under the National Forest rules and 
regulations, nor shall the locator prevent or obstruct other occupancy 
of the surface or use of surface resources under authority of National 
Forest Regulations, or permits issued thereunder, if such occupancy or 
use is not in conflict with mineral developments.
    (f) When any road is to be built for mining purposes upon a mining 
claim, the locator must apply to the Forest Supervisor for the 
applicable rules and regulations governing the construction and 
maintenance of roads within the Black Hills National Forest, and such 
road will be built in accordance with such specifications and in such 
locations as the Forest Supervisor may direct.
    (g) In conducting mining operations the locator, his agents, 
representatives, or employees, or other persons whose presence in the 
area or in the vicinity thereof, is occasioned by such mining 
operations, shall use due diligence in the prevention and suppression of 
fires, and shall, when requested by the Forest Supervisor, or his 
authorized representative, be available for service in the 
extinguishment and suppression of all fires occurring within the 
Preserve: Provided, That if such fire does not originate through any 
negligence on the part of the locator, his agents, representatives, or 
employees, or other persons whose presence in the area or in the 
vicinity thereof, is occasioned by such mining operations and does not 
threaten the structures, improvements or property incident to the mining 
operation, such persons shall be paid for their services at the current 
rate of pay of fire fighters employed by the United States.
    (h) Nothing contained in this section shall be construed to relieve 
the locator from complying with any requirements of the laws of the 
State of South Dakota, nor from compliance with or conformity to any 
requirements of any Federal law or regulation now existing or which 
later may be enacted or promulgated, and applicable to the subject 
involved in this section.

[13 FR 4792, Aug. 19, 1948, as amended at 48 FR 31854, July 12, 1983]

[[Page 249]]



Sec. 251.14  Conditions, rules and regulations to govern exercise of timber rights reserved in conveyance to the United States.

    (a) Except as otherwise provided in paragraphs (b) and (c) of this 
section, in conveyance of lands to the United States under authorized 
programs of the Forest Service, where owners reserve the right to enter 
upon the conveyed lands and to cut and remove timber and timber 
products, said reservations shall be subject to the following 
conditions, rules and regulations which shall be expressed in and made a 
part of the deed of conveyance to the United States and such 
reservations shall be exercised thereunder and in obedience thereto:
    (1) Whoever undertakes to exercise the reserved rights, hereinafter 
called operator, shall give prior written notice to Forest Service and 
shall submit satisfactory evidence of authority to exercise such rights. 
Operator shall repair, replace, or restore any improvements owned by the 
United States or its permittees, damaged or destroyed by the timber 
operations and he shall restore the land to a condition safe and 
reasonably serviceable for authorized programs of Forest Service.
    (2) In cutting and removing timber and timber products and in 
locating, constructing and using mills, logging roads, railroads, 
chutes, landings, camps, or other improvements, no unnecessary damage 
shall be done to the air, water and soil resources, and to young growth 
or to trees left standing. All survey monuments and witness trees shall 
be preserved.
    (3) All trees, timber or timber products of species or sizes not 
specifically reserved which are unnecessarily cut, damaged, or destroyed 
by operator shall be paid for at double the usual rates charged in the 
locality for sales of similar National Forest timber and timber 
products.
    (4) Slash and debris resulting from the cutting, removal, or 
processing of timber or timber products, or from construction 
operations, shall be disposed of or otherwise treated by methods 
acceptable to the Forest Service. Such treatment or disposal shall 
comply with known air and water quality criteria and standards and 
include necessary preparatory work such as fireline constructing and 
snag falling. The timing of log removal and preparatory work shall not 
unnecessarily delay slash disposal or treatment.
    (5) Operator is authorized to construct and maintain buildings, 
facilities, and other improvements, including roads needed to log the 
reserved timber. Construction and maintenance plans, designs, and 
location shall be approved in writing by Forest Service before 
construction is started.
    (6) All buildings, camps, equipment, and other structures or 
improvements shall be removed from the lands within 6 months from date 
of completion or abandonment of the operation, unless relieved by Forest 
Service by issuance of a special-use permit. Otherwise such buildings, 
camps, equipment, and other structures or improvements shall become the 
property of the United States, but this does not relieve operator of 
liability for the cost of removal and restoration of the site.
    (7) Nothing in this section shall be construed to exempt operator 
from any requirements of the laws of the States in which situated; nor 
from compliance with or conformity to any requirement of any law which 
later may be enacted and which otherwise would be applicable.
    (8) While operations are in progress, operator, his employees, any 
subcontractors, and their employees, shall take all reasonable and 
practicable action in the prevention and suppression of fire, and shall 
be available for service in the suppression of all fires within the 
reserved area. On any fire not caused by negligence on the part of the 
operator, Forest Service shall pay operator at fire-fighting rates 
common in the area or at prior agreed rates for equipment or manpower 
furnished by operator.
    (9) Only one cutting shall be made on any portion of the area on 
which timber is reserved. Forest Service may permit the cutting of 
special products, or products the cutting of which is seasonal, on any 
portion of the area in advance of the cutting of the chief products of 
the reserved timber. Each reservation of timber shall include a specific 
period of time within which material may be removed.

[[Page 250]]

    (10) Forest Service shall have the right to use any road constructed 
under the authority of this timber reservation for any and all purposes 
in connection with the protection and administration of the National 
Forest.
    (11) Operator shall take all reasonable precautions to prevent 
pollution of the air, soil, and water, in operation hereunder.
    (12) All activities by operator in the reserved area shall be 
conducted in a safe, orderly, and workmanlike manner.
    (13) For the protection of streamcourses, the following measures 
shall be observed by operator: Culverts or bridges will be required on 
temporary roads at all points where it is necessary to cross 
streamcourses. Such facilities shall be of sufficient size and design to 
provide unobstructed flow of water. Equipment will not be operated in 
streamcourses except at designated crossings and as essential to 
construction or removal of culverts and bridges. Any stream that is 
temporarily diverted must be restored to the natural course as soon as 
practicable, and in any event prior to a major runoff season.
    (14) Operator shall perform currently as weather and soil conditions 
permit, the following erosion control work on portions of the reserved 
area where logging is in progress or has been completed: Construct 
cross-ditches and water-spreading ditches where staked or otherwise 
marked on the ground by Forest Service; after a temporary road has 
served operator's purpose, operator shall remove culverts and bridges, 
eliminate ditches, out-slope and cross-drain roadbed and remove ruts and 
berms to the extent necessary to stabilize fills and otherwise minimize 
erosion; operator shall avoid felling into, yarding in, or crossing 
natural meadows; and operations will not take place when soil and water 
conditions are such that excessive damage will result.
    (b) The conditions, rules and regulations set forth in paragraphs 
(a)(1) through (14) of this section shall not apply to reservations 
contained in conveyances of land to the United States under the Act of 
March 3, 1925, as amended (43 Stat. 1133, 64 Stat. 82, 16 U.S.C. 555).
    (c) In cases where a State, or an agency, or a political subdivision 
thereof, reserves timber rights for the cutting and removal of timber 
and timber products, in the conveyance of land to the United States 
under authorized programs of the Forest Service and there are provisions 
in the laws of such State or in conditions, rules and regulations 
promulgated by such State, agency or political subdivision thereof, 
which the Chief, Forest Service, determines are adequate to protect the 
interest of the United States in the event of the exercise of such 
reservation, the Chief, Forest Service, is hereby authorized, in his 
discretion, to subject the exercise of the reservation to such statutory 
provisions or such conditions, rules, and regulations in lieu of the 
conditions, rules and regulations set forth in paragraphs (a) (1) 
through (14) of this section. In that event, such statutory provisions 
or such conditions, rules and regulations shall be expressed in and made 
a part of the deed of conveyance to the United States and the 
reservation shall be exercised thereunder and in obedience thereto.

All regulations heretofore issued by the Sec. etary of Agriculture to 
govern the exercise of timber rights reserved in conveyance of lands to 
the United States under authorized programs of Forest Service shall 
continue to be effective in the cases to which they are applicable, but 
are hereby superseded as to timber rights hereafter reserved in 
conveyances under such programs.

[35 FR 5401, Apr. 1, 1970]



Sec. 251.15  Conditions, rules and regulations to govern exercise of mineral rights reserved in conveyances to the United States.

    (a) Except as otherwise provided in paragraphs (b) and (c) of this 
section, in conveyances of lands to the United States under authorized 
programs of the Forest Service, where owners reserve the right to enter 
upon the conveyed lands and to prospect for, mine and remove minerals, 
oil, gas, or other inorganic substances, said reservations shall be 
subject to the following conditions, rules and regulations which shall 
be expressed in and made a part of the deed of conveyance to the United 
States and such reservations shall be

[[Page 251]]

exercised thereunder and in obedience thereto:
    (1) Whoever undertakes to exercise the reserved rights shall give 
prior written notice to the Forest Service and shall submit satisfactory 
evidence of authority to exercise such rights. Only so much of the 
surface of the lands shall be occupied, used, or disturbed as is 
necessary in bona fide prospecting for, drilling, mining (including the 
milling or concentration of ores), and removal of the reserved minerals, 
oil, gas, or other inorganic substances.
    (2)(i) None of the lands in which minerals are reserved shall be so 
used, occupied, or disturbed as to preclude their full use for 
authorized programs of the Forest Service until the record owner of the 
reserved rights, or the successors, assigns, or lessees thereof, shall 
have applied for and received a permit authorizing such use, occupancy, 
or disturbance of those specifically described parts of the lands as may 
reasonably be necessary to exercise of the reserved rights.
    (ii) Said permit shall be issued upon agreement as to conditions 
necessary to protect the interest of the United States including such 
conditions deemed necessary to provide for the safety of the public and 
other users of the land, and upon initial payment of the annual fee, 
which shall be at the rate of $2 per acre or fraction of acre included 
in the permit.
    (iii) The permit shall also provide that the record owner of the 
reserved right or the successors, assigns, or lessees thereof, will 
repair or replace any improvements damaged or destroyed by the mining 
operations and restore the land to a condition safe and reasonably 
serviceable for authorized programs of the Forest Service, and shall 
provide for a bond in sufficient amount as determined necessary by the 
Forest Service to guarantee such repair, replacement or restoration.
    (iv) Failure to comply with the terms and conditions of the 
aforesaid permit shall be cause for termination of all rights to use, 
occupy, or disturb the surface of the lands covered thereby, but in 
event of such termination a new permit shall be issued upon application 
when the causes for termination of the preceding permit have been 
satisfactorily remedied and the United States reimbursed for any 
resultant damage to it.
    (3) All structures, other improvements, and materials shall be 
removed from the lands within one year after date of termination of the 
aforementioned permit. Should the holder of the permit fail to do so 
within the specified time, the Forest Service may remove, destroy or 
otherwise dispose of said structures, other improvements, and materials 
at the permittee's expense, or in lieu thereof, may upon written notice 
to the permittee, assume title thereto in the name of the United States.
    (4) Timber and/or young growth cut or destroyed in connection with 
exercise of the reserved right shall be paid for at rates determined by 
the Forest Service to be fair and equitable for comparable timber and/or 
young growth in the locality. All slash resulting from cutting or 
destruction of timber or young growth shall be disposed of as required 
by the Forest Service.
    (5) In the prospecting for, mining, and removal of reserved 
minerals, oil, gas, or other inorganic substances all reasonable 
provisions shall be made for the disposal of tailings, dumpage, and 
other deleterious materials or substances in such manner as to prevent 
obstruction, pollution, or deterioration of water resources.
    (6) Nothing herein contained shall be construed to exempt operators 
or the mining operations from any requirements of applicable State laws 
nor from compliance with or conformity to any requirement of any law 
which later may be enacted and which otherwise would be applicable.
    (7) While any activities and/or operations incident to the exercise 
of the reserved rights are in progress, the operators, contractors, 
subcontractors, and any employees thereof shall use due diligence in the 
prevention and suppression of fires, and shall comply with all rules and 
regulations applicable to the land.
    (b) The conditions, rules and regulations set forth in paragraphs 
(a) (1) through (7) of this section shall not apply to reservations 
contained in conveyances of lands to the United States

[[Page 252]]

under the Act of March 3, 1925, as amended (43 Stat. 1133, 64 Stat. 82; 
16 U.S.C. 555).
    (c) In cases where a State, or an agency, or a political subdivision 
thereof, reserves minerals, oil, gas, or other inorganic substances, in 
the conveyance of land to the United States under authorized programs of 
the Forest Service and there are provisions in the laws of such State or 
in conditions, rules and regulations promulgated by such State, agency 
or political subdivision thereof, which the Chief, Forest Service, 
determines are adequate to protect the interest of the United States in 
the event of the exercise of such reservation, the Chief, Forest 
Service, is hereby authorized, in his discretion, to subject the 
exercise of the reservation to such statutory provisions or such 
conditions, rules and regulations in lieu of the conditions, rules and 
regulations set forth in paragraphs (a) (1) through (7) of this section. 
In that event, such statutory provisions or such conditions, rules and 
regulations shall be expressed in and made a part of the deed of 
conveyance to the United States and the reservation shall be exercised 
thereunder and in obedience thereto.

All regulations heretofore issued by the Sec. etary of Agriculture to 
govern the exercise of mineral rights reserved in conveyances of lands 
to the United States under authorized programs of the Forest Service 
shall continue to be effective in the cases to which they are 
applicable, but are hereby superseded as to mineral rights hereafter 
reserved in conveyances under such programs.

[28 FR 4440, May 3, 1963]

                           Rights of Grantors



Sec. 251.17  Grantor's right to occupy and use lands conveyed to the United States.

    Except as otherwise provided in paragraph (h) of this section, in 
conveyances of lands to the United States under authorized programs of 
the Forest Service, where owners reserve the right to occupy and use the 
land for the purposes of residence, agriculture, industry, or commerce, 
said reservations shall be subject to the following conditions, rules 
and regulations which shall be expressed in and made a part of the deed 
of conveyance to the United States and such reservations shall be 
exercised thereunder and in obedience thereto:
    (a) Except when provided otherwise by statute, the reservation so 
created shall not be assigned, used, or occupied by anyone other than 
the grantor without the consent of the United States.
    (b) All reasonable precautions shall be taken by the grantor and all 
persons acting for or claiming under him to prevent and suppress forest 
fires upon or threatening the premises or other adjacent lands of the 
United States, and any person failing to comply with this requirement 
shall be responsible for any damages sustained by the United States by 
reason thereof.
    (c) The premises shall not be used or permitted to be used, without 
the written consent of the United States, for any purpose or purposes 
other than those specified in the instrument creating the reservation.
    (d) The grantor and all persons acting for or claiming under him 
shall maintain the premises and all buildings and structures thereon in 
proper repair and sanitation and shall comply with the National Forest 
laws and regulations and the laws and lawful orders of the State in 
which the premises are located.
    (e) Except when provided otherwise by statute, the reservation shall 
terminate: (1) Upon the expiration of the period named in the deed; (2) 
upon failure for a period of more than one calendar year to use and 
occupy the premises for the purposes named in the deed; (3) by use and 
occupancy for unlawful purposes or for purposes other than those 
specified in the deed; and (4) by voluntary written relinquishment by 
the owner.
    (f) Upon the termination of the reservation the owners of personal 
property remaining on the premises shall remove same within a period of 
three months, and all such property not so removed shall become the 
property of the United States except that when such removal is prevented 
by conditions beyond the control of the owners the period shall be 
extended in writing

[[Page 253]]

by the Forest Service to allow a reasonable time for said removal, but 
in no event longer than one year.
    (g) The said reservation shall be subject to rights-of-way for the 
use of the United States or its permittees, upon, across, or through the 
said land, as may hereafter be required for the erection, construction, 
maintenance and operation of public utility systems over all or parts 
thereof, or for the construction and maintenance of any improvements 
necessary for the good administration and protection of the National 
Forests, and shall be subject to the right of officials or employees of 
the Forest Service to inspect the premises, or any part thereof, at all 
reasonable times and as often as deemed necessary in the performance of 
official duties in respect to the premises.
    (h) The conditions, rules, and regulations set forth in paragraphs 
(a) through (g) of this section shall not apply to reservations 
contained in conveyances of lands to the United States under the Act of 
March 3, 1925, as amended (43 Stat. 1133, 64 Stat. 82; 16 U.S.C. 555).

[33 FR 11452, Aug. 13, 1968, as amended at 36 FR 156, Jan. 6, 1971]



Sec. 251.18  Rights-of-way reserved by the grantor on lands conveyed to the United States.

    This section governs the use, occupancy, and operation of rights-of-
way reserved by a grantor of lands to the United States.
    (a) Brush and refuse resulting from the exercise of the right-of-way 
reservation shall be disposed of to the satisfaction of the Forest 
Officer in charge.
    (b) Timber cut and destroyed in the exercise of the right-of-way 
reservation shall be paid for at rates to be prescribed by the Forest 
Officer in charge, which rates shall be the usual stumpage prices 
charged in the locality in sales of national forest timber of the same 
kind or species; for injury to timber, second growth, and reproduction, 
the amount of actual damage shall be ascertained by the Forest 
Supervisor according to the rules applicable in such cases.
    (c) All improvements built or maintained upon the right-of-way shall 
be kept in an orderly, safe and sanitary condition. Failure to maintain 
such conditions shall be cause for the termination of the reservation 
after 30 days' notice in writing to the occupant or user that 
unsatisfactory conditions exist and that the Department intends to 
terminate all rights under the reservation unless such conditions are 
forthwith corrected to the satisfaction of the Regional Forester.
    (d) Upon the abandonment of a reserved right-of-way, either by 
formal release, by termination, or by non-use for a period of one 
calendar year, all improvements thereon not the property of the United 
States shall be removed therefrom within three months from the date of 
the abandonment, otherwise such improvements shall vest in and become 
the property of the United States.
    (e) All reasonable precautions to prevent and suppress forest fires 
shall be taken by the grantor and all persons acting for or claiming 
under him; suitable crossings shall be constructed by grantor and/or 
said persons where the reserved right-of-way intersects existing roads 
and trails; borrow pits shall not be opened outside of the immediate 
graded section except under a special use permit from the Forest 
Supervisor.
    (f) Officers of the Forest Service shall have free ingress and 
egress on and over the reserved rights-of-way for all purposes necessary 
and incidental to the protection and administration of the national 
forest.

[3 FR 1953, Aug. 9, 1938]



Sec. 251.19  Exercise of water rights reserved by the grantor of lands conveyed to the United States.

    This section governs the exercise of water and related rights 
reserved by the grantor of lands conveyed to the United States under the 
provisions of the act of March 1, 1911 (36 Stat. 961).
    (a) All reasonable precautions shall be taken by the grantor and all 
persons acting for or claiming under him to prevent and suppress forest 
fires upon or threatening the premises or other adjacent lands of the 
United States, and any person failing to comply with this requirement 
shall be responsible for any damages sustained by the United States by 
reason thereof.

[[Page 254]]

    (b) All slash and debris resulting from the cutting and removal of 
timber shall be disposed of as directed by the Forest Officer in charge.
    (c) Flowage and reservoir areas shall be cleared of timber and 
debris, in a manner satisfactory to the Forest Supervisor, or in 
accordance with a special agreement approved by him. Timber cut and 
destroyed in the exercise of the reserved rights shall be paid for at 
rates to be prescribed by the Forest Officer in charge, which rates 
shall be the usual stumpage price charged in the locality.
    (d) The water surface created shall be open to the Forest Service 
and its permittees when such use does not interfere with the original 
purpose of the development.
    (e) The water surface shall be open to fishing by the public in 
accordance with State laws when such use does not interfere with the 
original purpose of the development.
    (f) Plans for dams and supplemental structures, impounding or 
controlling more than 10 acre-feet of water or with a head in excess of 
6 feet, shall be approved by the Regional Engineer of the Forest Service 
before construction shall begin.

[3 FR 1953, Aug. 9, 1938]

                          Designation of Areas



Sec. 251.23  Experimental areas and research natural areas.

    The Chief of the Forest Service shall establish and permanently 
record a series of areas on National Forest land to be known as 
experimental forests or experimental ranges, sufficient in number and 
size to provide adequately for the research necessary to serve as a 
basis for the management of forest and range land in each forest region. 
Also, when appropriate, the Chief shall establish a series of research 
natural areas, sufficient in number and size to illustrate adequately or 
typify for research or educational purposes, the important forest and 
range types in each forest region, as well as other plant communities 
that have special or unique characteristics of scientific interest and 
importance. Research Natural Areas will be retained in a virgin or 
unmodified condition except where measures are required to maintain a 
plant community which the area is intended to represent. Within areas 
designated by this regulation, occupancy under a special-use permit 
shall not be allowed, nor the construction of permanent improvements 
permitted except improvements required in connection with their 
experimental use, unless authorized by the Chief of the Forest Service.

[31 FR 5072, Mar. 29, 1966]

                          Petersburg Watershed



Sec. 251.35  Petersburg watershed.

    (a) Except as authorized in paragraphs (b) and (c), access to lands 
within the Petersburg watershed, Tongass National Forest, as described 
in the Act of October 17, 1940 (54 Stat. 1197), is prohibited.
    (b) Access to lands within the Petersburg watershed is hereby 
authorized, without further written approval, for the following routine 
purposes:
    (1) The discharge of official duties related to management of the 
Tongass National Forest by Federal employees, holders of Forest Service 
contracts, or Forest Service agents;
    (2) The operation, maintenance, and improvement of the municipal 
water system by Federal and State officials and employees of the city of 
Petersburg; and
    (3) Public recreational use of the Raven's Roost Trail for access to 
and from the Raven's Roost public recreation cabin and the Alpine 
Recreation Area.
    (c) Any person who wishes to enter upon the lands within the 
watershed for purposes other than those listed in paragraph (b) must 
obtain a permit that has been signed by the appropriate city official 
and countersigned by the District Ranger.
    (d) Unauthorized entrance upon lands within the watershed is subject 
to punishment as provided in 36 CFR 261.1b.
    (e) The Forest Supervisor of the Stikine Area of the Tongass 
National Forest may authorize the removal of timber from the watershed 
under the regulations governing disposal of National Forest timber (36 
CFR part 223). In any removal of timber from the watershed, the Forest 
Supervisor shall

[[Page 255]]

provide adequate safeguards for the protection of the Petersburg 
municipal water supply.

[53 FR 26595, July 14, 1988]



                         Subpart B_Special Uses

    Authority: 16 U.S.C. 460l-6a, 460l-6d, 472, 497b, 497c, 551, 580d, 
1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761-1771.

    Source: 45 FR 38327, June 6, 1980, unless otherwise noted.



Sec. 251.50  Scope.

    (a) All uses of National Forest System lands, improvements, and 
resources, except those authorized by the regulations governing sharing 
use of roads (Sec. 212.9); grazing and livestock use (part 222); the 
sale and disposal of timber and special forest products, such as greens, 
mushrooms, and medicinal plants (part 223); and minerals (part 228) are 
designated ``special uses.'' Before conducting a special use, 
individuals or entities must submit a proposal to the authorized officer 
and must obtain a special use authorization from the authorized officer, 
unless that requirement is waived by paragraphs (c) through (e)(3) of 
this section.
    (b) Nothing in this section prohibits the temporary occupancy of 
National Forest System lands without a special use authorization when 
necessary for the protection of life and property in emergencies, if a 
special use authorization is applied for and obtained at the earliest 
opportunity, unless waived pursuant to paragraphs (c) through (e)(3) of 
this section. The authorized officer may, pursuant to Sec. 251.56 of 
this subpart, impose in that authorization such terms and conditions as 
are deemed necessary or appropriate and may require changes to the 
temporary occupancy to conform to those terms and conditions. Those 
temporarily occupying National Forest System lands without a special use 
authorization assume liability, and must indemnify the United States, 
for all injury, loss, or damage arising in connection with the temporary 
occupancy.
    (c) A special use authorization is not required for noncommercial 
recreational activities, such as camping, picnicking, hiking, fishing, 
boating, hunting, and horseback riding, or for noncommercial activities 
involving the expression of views, such as assemblies, meetings, 
demonstrations, and parades, unless:
    (1) The proposed use is a noncommercial group use as defined in 
Sec. 251.51 of this subpart;
    (2) The proposed use is still photography as defined in Sec. 251.51 
of this subpart; or
    (3) Authorization of that use is required by an order issued under 
Sec. 261.50 or by a regulation issued under Sec.261.70 of this 
chapter.
    (d) Travel on any National Forest System road shall comply with all 
Federal and State laws governing the road to be used and does not 
require a special use authorization, unless:
    (1) The travel is for the purpose of engaging in a noncommercial 
group use, outfitting or guiding, a recreation event, commercial 
filming, or still photography, as defined in Sec. 251.51 of this 
subpart, or for a landowner's ingress or egress across National Forest 
System lands that requires travel on a National Forest System road that 
is not authorized for general public use under Sec. 251.110(d) of this 
part; or
    (2) Authorization of that use is required by an order issued under 
Sec. 261.50 or by a regulation issued under Sec.261.70 of this 
chapter.
    (e) For proposed uses other than a noncommercial group use, a 
special use authorization is not required if, based upon review of a 
proposal, the authorized officer determines that the proposed use has 
one or more of the following characteristics:
    (1) The proposed use will have such nominal effects on National 
Forest System lands, resources, or programs that it is not necessary to 
establish terms and conditions in a special use authorization to protect 
National Forest System lands and resources or to avoid conflict with 
National Forest System programs or operations;
    (2) The proposed use is regulated by a State agency or another 
Federal agency in a manner that is adequate to protect National Forest 
System lands and resources and to avoid conflict with National Forest 
System programs or operations; or

[[Page 256]]

    (3) The proposed use is not situated in a congressionally designated 
wilderness area, and is a routine operation or maintenance activity 
within the scope of a statutory right-of-way for a highway pursuant to 
R.S. 2477 (43 U.S.C. 932, repealed Oct. 21, 1976) or for a ditch or 
canal pursuant to R.S. 2339 (43 U.S.C. 661, as amended), or the proposed 
use is a routine operation or maintenance activity within the express 
scope of a documented linear right-of-way.

[69 FR 41964, July 13, 2004]



Sec. 251.51  Definitions.

    Applicant--any individual, partnership, corporation, association, or 
other business entity, and any Federal, State or governmental entity or 
agency which applies for a special use authorization.
    Authorized officer--any employee of the Forest Service to whom has 
been delegated the authority to perform the duties described in this 
part.
    Chief--the Chief of the Forest Service.
    Commercial filming--use of motion picture, videotaping, sound 
recording, or any other moving image or audio recording equipment on 
National Forest System lands that involves the advertisement of a 
product or service, the creation of a product for sale, or the use of 
models, actors, sets, or props, but not including activities associated 
with broadcasting breaking news, as defined in FSH 2709.11, chapter 40.
    Commercial use or activity--any use or activity on National Forest 
System lands (a) where an entry or participation fee is charged, or (b) 
where the primary purpose is the sale of a good or service, and in 
either case, regardless of whether the use or activity is intended to 
produce a profit.
    Easement--a type of special use authorization (usually granted for 
linear rights-of-way) that is utilized in those situations where a 
conveyance of a limited and transferable interest in National Forest 
System land is necessary or desirable to serve or facilitate authorized 
long-term uses, and that may be compensable according to its terms.
    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.
    Group use--an activity conducted on National Forest System lands 
that involves a group of 75 or more people, either as participants or 
spectators.
    Guiding--providing services or assistance (such as supervision, 
protection, education, training, packing, touring, subsistence, 
transporting people, or interpretation) for pecuniary remuneration or 
other gain to individuals or groups on National Forest System lands.
    Holder--any applicant who has received a special use authorization.
    Lease--a type of special use authorization (usually granted for uses 
other than linear rights-of-way) that is used when substantial capital 
investment is required and when conveyance of a conditional and 
transferable interest in National Forest System lands is necessary or 
desirable to serve or facilitate authorized long-term uses, and that may 
be revocable and compensable according to its terms.
    Linear right-of-way--a right-of-way for a linear facility, such as a 
road, trail, pipeline, electronic transmission line, fence, water 
transmission facility, or fiber optic cable.
    Major category--A processing or monitoring category requiring more 
than 50 hours of agency time to process an application for a special use 
authorization (processing category 6 and, in certain situations, 
processing category 5) or more than 50 hours of agency time to monitor 
compliance with the terms and conditions of an authorization (monitoring 
category 6 and, in certain situations, monitoring category 5). Major 
categories usually require documentation of environmental and associated 
impacts in an environmental assessment and may require an environmental 
impact statement.
    Minor category--A processing or monitoring category requiring 50 
hours or less of agency time to process an application for a special use 
authorization (processing categories 1 through 4 and, in certain 
situations, processing category 5) or 50 hours or less of agency time to 
monitor compliance with the

[[Page 257]]

terms and conditions of an authorization (monitoring categories 1 
through 4 and, in certain situations, monitoring category 5). Minor 
categories may require documentation of environmental and associated 
impacts in an environmental assessment.
    Monitoring--Actions needed to ensure compliance with the terms and 
conditions in a special use authorization.
    National Forest System land--all lands, waters, or interests therein 
administered by the Forest Service.
    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.
    NEPA procedures--the rules, policies, and procedures governing 
agency compliance with the National Environmental Policy Act set forth 
in 50 CFR parts 1500-1508, 7 CFR part 1b, Forest Service Manual Chapter 
1950, and Forest Service Handbook 1909.15.
    Noncommercial use or activity--any use or activity that does not 
involve a commercial use or activity as defined in this section.
    Outfitting--renting on or delivering to National Forest System lands 
for pecuniary remuneration or other gain any saddle or pack animal, 
vehicle, boat, camping gear, or similar supplies or equipment.
    Permit--a special use authorization which provides permission, 
without conveying an interest in land, to occupy and use National Forest 
System land or facilities for specified purposes, and which is both 
revocable and terminable.
    Recreation event--a recreational activity conducted on National 
Forest System lands for which an entry or participation fee is charged, 
such as animal, vehicle, or boat races; dog trials; fishing contests; 
rodeos; adventure games; and fairs.
    Recreation Residence Lot--a parcel of National Forest System land on 
which a holder is authorized to build, use, occupy, and maintain a 
recreation residence and related improvements. A recreation residence 
lot is considered to be in its natural, native state at the time when 
the Forest Service first permitted its use for a recreation residence. A 
recreation residence lot is not necessarily confined to the platted 
boundaries shown on a tract map or permit area map. A recreation 
residence lot includes the physical area of all National Forest System 
land being used or occupied by a recreation residence permit holder, 
including, but not limited to, land being occupied by ancillary 
facilities and uses owned, operated, or maintained by the holder, such 
as septic systems, water systems, boat houses and docks, major 
vegetative modifications, and so forth.
    Revocation--the cessation of a special use authorization by action 
of an authorized officer before the end of the specified period of 
occupancy or use for reasons set forth in Sec. 251.60(a)(1)(i), 
(a)(2)(i), (g), and (h) of this subpart.
    Right-of-way--land authorized to be used or occupied for the 
construction, operation, maintenance and termination of a project or 
facility passing over, upon, under or through such land.
    Sec. etary--the Secretary of Agriculture.
    Ski area--a site and attendant facilities expressly developed to 
accommodate alpine or nordic skiing and from which the preponderance of 
revenue is generated by the sale of lift tickets and fees for ski 
rentals, for skiing instruction and trail passes for the use of 
permittee-maintained ski trails. A ski area may also include ancillary 
facilities directly related to the operation and support of skiing 
activities.
    Sound business management principles--a phrase that refers to 
accepted industry practices or methods of establishing fees and charges 
that are used or applied by the Forest Service to help establish the 
appropriate charge for a special use. Examples of such practices and 
methods include, but are not limited to, appraisals, fee schedules, 
competitive bidding, negotiation of fees, and application of other 
economic factors, such as cost efficiency, supply and demand, and 
administrative costs.
    Special use authorization--a permit, term permit, lease, or easement 
which allows occupancy, use, rights, or privileges of National Forest 
System land.
    Still photography--use of still photographic equipment on National 
Forest System lands that takes place at a location where members of the 
public

[[Page 258]]

generally are not allowed or where additional administrative costs are 
likely, or uses models, sets, or props that are not a part of the site's 
natural or cultural resources or administrative facilities.
    Suspension--a temporary revocation of a special use authorization.
    Termination--the cessation of a special use authorization by 
operation of law or by operation of a fixed or agreed-upon condition, 
event, or time as specified in an authorization without the necessity 
for any decision or action by the authorized officer; for example, 
expiration of the authorized term or transfer of the authorized 
improvement to another party.
    Term permit--a special use authorization to occupy and use National 
Forest System land, other than rights-of-way under Sec. 251.53(l) of 
this part, for a specified period which is both revocable and 
compensable according to its terms.

[45 FR 38327, June 6, 1980, as amended at 49 FR 25449, June 21, 1984; 53 
FR 16550, May 10, 1988; 54 FR 22593, May 25, 1989; 60 FR 45293, Aug. 30, 
1995; 60 FR 54409, Oct. 23, 1995; 63 FR 65964, Nov. 30, 1998; 69 FR 
41965, July 13, 2004; 70 FR 68290, Nov. 9, 2005; 71 FR 8913, Feb. 21, 
2006; 71 FR 16621, Apr. 3, 2006]



Sec. 251.52  Delegation of authority.

    Special use authorizations shall be issued, granted, amended, 
renewed, suspended, terminated, or revoked by the Chief, or through 
delegation, by the Regional Forester, Forest Supervisor, District Ranger 
or other forest officer, and shall be in such form and contain such 
terms, stipulations, conditions, and agreements as may be required by 
the regulations of the Sec. etary and the instructions of the Chief (7 
CFR 2.60; 36 CFR part 200, subpart B).



Sec. 251.53  Authorities.

    Subject to any limitations contained in applicable statutes, the 
Chief of the Forest Service, or other Agency official to whom such 
authority is delegated, may issue special use authorizations for 
National Forest System land under the authorities cited and for the 
types of use specified in this section as follows:
    (a) Permits governing occupancy and use, including group events and 
distribution of noncommercial printed materials, under the act of June 
4, 1897, 30 Stat. 35 (16 U.S.C. 551);
    (b) Leases under the Act of February 28, 1899, 30 Stat. 908 (16 
U.S.C. 495) for public sanitariums or hotels near or adjacent to mineral 
springs;
    (c) Permits under the Act of June 8, 1906, 34 Stat. 225 (16 U.S.C. 
431, et seq.), for the examination of ruins, the excavation of 
archaeological sites, and the gathering of objects of antiquity in 
conformity with the rules and regulations prescribed by the Sec. etaries 
of the Interior, Agriculture, and War, December 28, 1906 (43 CFR part 
3);
    (d) Term permits under the Act of March 4, 1915, 38 Stat. 1101, as 
amended, 70 Stat. 708 (16 U.S.C. 497) for periods not over 30 years and 
(1) for not over 80 acres for (i) hotels, resorts, and other structures 
and facilities for recreation, public convenience, or safety; (ii) 
industrial or commercial purposes, and (iii) education or public 
activities; and (2) for not over 5 acres for summer homes and stores;
    (e) Easements for rights-of-way for pipeline purposes for the 
transportation of oil and gas and products thereof where no Federal land 
other than National Forest System land is required, and permits for the 
temporary use of additional National Forest System land necessary for 
construction, operation, maintenance or termination of a pipeline or to 
protect the natural environment or the public safety under section 28 of 
the Mineral Leasing Act of 1920, 41 Stat. 449, as amended, (30 U.S.C. 
185);
    (f) Permits, term permits, and easements in the National Grasslands 
and other lands acquired or administered under title III, Act of July 
22, 1937, 50 Stat. 525, as amended, (7 U.S.C. 1011(d));
    (g) Permits under section 7 of the Act of April 24, 1950, 64 Stat. 
84 (16 U.S.C. 580d) for periods not over 30 years for the use of 
structures or improvements under the administrative control of the 
Forest Service and land used in connection therewith;
    (h) Permits, term permits, leases, or easements as authorized by the 
Act of September 3, 1954, 68 Stat. 1146 (43 U.S.C. 931c, 931d), to 
States, counties, cities, towns, townships, municipal corporations, or 
other public agencies for periods not over 30 years, at prices

[[Page 259]]

representing the fair market value, fixed by the Chief, through 
appraisal for the purpose of constructing and maintaining on such lands 
public buildings or other public works;
    (i) Permits under the Wilderness Act of September 3, 1964, 78 Stat. 
890 (16 U.S.C. 1131-1136) for temporary structures and commercial 
services and for access to valid mining claims or other valid 
occupancies and to surrounded State or private land within designated 
wilderness (see part 293 of this chapter);
    (j) Temporary or permanent easements under the Act of October 13, 
1964, 78 Stat. 1089 (16 U.S.C. 532-538) for road rights-of-way over 
lands and interests in land administered by the Forest Service (see 
Sec. 212.10 of this chapter);
    (k) Special recreation permits issued under section 803(h) of the 
Federal Lands Recreation Enhancement Act (16 U.S.C. 6802(h)), for 
specialized recreation uses of National Forest System lands, such as 
group activities, recreation events, and motorized recreational vehicle 
use.
    (l) Permits, leases and easements under the Federal Land Policy and 
Management Act of 1976, 90 Stat. 2776 (43 U.S.C. 1761-1771) for rights-
of-way for:
    (1) Reservoirs, canals, ditches, flumes, laterals, pipes, pipelines, 
tunnels, and other facilities and systems for the impoundment, storage, 
transportation, or distribution of water;
    (2) Pipelines and other systems for the transportation or 
distribution of liquids and gases, other than water and other than oil, 
natural gas, synthetic liquid or gaseous fuels, or any refined product 
produced therefrom, and for storage and terminal facilities in 
connection therewith;
    (3) Pipelines, slurry and emulsion systems, and conveyor belts for 
transportation and distribution of solid materials, and facilities for 
the storage of such materials in connection therewith;
    (4) Systems and related facilities for generation, transmission, and 
distribution of electric energy, except that the applicant, in addition 
to obtaining a Forest Service special use authorization, shall also 
comply with all applicable requirements of the Federal Energy Regulatory 
Commission under the Federal Power Act of 1935, as amended, 49 Stat. 838 
(16 U.S.C. 791a, et seq.);
    (5) Systems for transmission or reception of radio, television, 
telephone, telegraph, and other electronic signals and other means of 
communication;
    (6) Roads, trails, highways, railroads, canals, tunnels, tramways, 
airways, livestock driveways, or other means of transportation except 
where such facilities are constructed and maintained in connection with 
commercial recreation facilities;
    (7) Such other necessary transportation or other systems or 
facilities which are in the public interest and which require rights-of-
way over, upon, under, or through National Forest System lands; and
    (8) Any Federal department or agency for pipeline purposes for the 
transportation of oil, natural gas, synthetic liquid or gaseous fuels, 
or any product produced therefrom;
    (m) Permits under the Archaeological Resources Protection Act of 
1979, 93 Stat. 721 (16 U.S.C. 470aa).
    (n) Operation of nordic and alpine ski areas and facilities for up 
to 40 years and encompassing such acreage as the Forest Officer 
determines sufficient and appropriate as authorized by the National 
Forest Ski Area Permit Act of 1986 (16 U.S.C. 497b).

[45 FR 38327, June 6, 1980; 45 FR 43167, June 26, 1980, as amended at 49 
FR 25449, June 21, 1984; 53 FR 16550, May 10, 1988; 54 FR 22594, May 25, 
1989; 70 FR 70498, Nov. 22, 2005]



Sec. 251.54  Proposal and application requirements and procedures.

    (a) Early notice. When an individual or entity proposes to occupy 
and use National Forest System lands, the proponent is required to 
contact the Forest Service office(s) responsible for the management of 
the affected land as early as possible in advance of the proposed use.
    (b) Filing proposals. Proposals for special uses must be filed in 
writing with or presented orally to the District Ranger or Forest 
Supervisor having jurisdiction over the affected land (Sec. 200.2 of 
this chapter), except as follows:
    (1) Proposals for projects on lands under the jurisdiction of two or 
more administrative units of the Forest

[[Page 260]]

Service may be filed at the most convenient Forest Service office having 
jurisdiction over part of the project, and the proponent will be 
notified where to direct subsequent communications;
    (2) Proposals for cost-share and other road easements to be issued 
under Sec. 251.53(j) must be filed in accordance with regulations in 
Sec. 212.10(c) and (d) of this chapter; and
    (3) Proposals for oil and gas pipeline rights-of-way crossing 
Federal lands under the jurisdiction of two or more Federal agencies 
must be filed with the State Office, Bureau of Land Management, pursuant 
to regulations at 43 CFR part 2882.
    (c) Rights of proponents. A proposal to obtain a special use 
authorization does not grant any right or privilege to use National 
Forest System lands. Rights or privileges to occupy and use National 
Forest System lands under this subpart are conveyed only through 
issuance of a special use authorization.
    (d) Proposal content--(1) Proponent identification. Any proponent 
for a special use authorization must provide the proponent's name and 
mailing address, and, if the proponent is not an individual, the name 
and address of the proponent's agent who is authorized to receive notice 
of actions pertaining to the proposal.
    (2) Required information--(i) Noncommercial group uses. Paragraphs 
(d)(3) through (d)(5) of this section do not apply to proposals for 
noncommercial group uses. A proponent for noncommercial group uses shall 
provide the following:
    (A) A description of the proposed activity;
    (B) The location and a description of the National Forest System 
lands and facilities the proponent would like to use;
    (C) The estimated number of participants and spectators;
    (D) The starting and ending time and date of the proposed activity; 
and
    (E) The name of the person or persons 21 years of age or older who 
will sign a special use authorization on behalf of the proponent.
    (ii) All other special uses. At a minimum, proposals for special 
uses other than noncommercial group uses must include the information 
contained in paragraphs (d)(3) through (d)(5) of this section. In 
addition, if requested by an authorized officer, a proponent in one of 
the following categories must furnish the information specified for that 
category:
    (A) If the proponent is a State or local government agency: a copy 
of the authorization under which the proposal is made;
    (B) If the proponent is a public corporation: the statute or other 
authority under which it was organized;
    (C) If the proponent is a Federal Government agency: the title of 
the agency official delegated the authority to file the proposal;
    (D) If the proponent is a private corporation:
    (1) Evidence of incorporation and its current good standing;
    (2) If reasonably obtainable by the proponent, the name and address 
of each shareholder owning three percent or more of the shares, together 
with the number and percentage of any class of voting shares of the 
entity which such shareholder is authorized to vote;
    (3) The name and address of each affiliate of the entity;
    (4) In the case of an affiliate which is controlled by the entity, 
the number of shares and the percentage of any class of voting stock of 
the affiliate that the entity owns either directly or indirectly; or
    (5) In the case of an affiliate which controls that entity, the 
number of shares and the percentage of any class of voting stock of that 
entity owned, either directly or indirectly by the affiliate; or
    (E) If the proponent is a partnership, association, or other 
unincorporated entity: a certified copy of the partnership agreement or 
other similar document, if any, creating the entity, or a certificate of 
good standing under the laws of the State.
    (3) Technical and financial capability. The proponent is required to 
provide sufficient evidence to satisfy the authorized officer that the 
proponent has, or prior to commencement of construction will have, the 
technical and financial capability to construct, operate, maintain, and 
terminate the project

[[Page 261]]

for which an authorization is requested, and the proponent is otherwise 
acceptable.
    (4) Project description. Except for requests for planning permits 
for a major development, a proponent must provide a project description, 
including maps and appropriate resource information, in sufficient 
detail to enable the authorized officer to determine the feasibility of 
a proposed project or activity, any benefits to be provided to the 
public, the safety of the proposal, the lands to be occupied or used, 
the terms and conditions to be included, and the proposal's compliance 
with applicable laws, regulations, and orders.
    (5) Additional information. The authorized officer may require any 
other information and data necessary to determine feasibility of a 
project or activity proposed; compliance with applicable laws, 
regulations, and orders; compliance with requirements for associated 
clearances, certificates, permits, or licenses; and suitable terms and 
conditions to be included in the authorization. The authorized officer 
shall make requests for any additional information in writing.
    (e) Pre-application actions--(1) Initial screening. Upon receipt of 
a request for any proposed use other than for noncommercial group use, 
the authorized officer shall screen the proposal to ensure that the use 
meets the following minimum requirements applicable to all special uses:
    (i) The proposed use is consistent with the laws, regulations, 
orders, and policies establishing or governing National Forest System 
lands, with other applicable Federal law, and with applicable State and 
local health and sanitation laws.
    (ii) The proposed use is consistent or can be made consistent with 
standards and guidelines in the applicable forest land and resource 
management plan prepared under the National Forest Management Act and 36 
CFR part 219.
    (iii) The proposed use will not pose a serious or substantial risk 
to public health or safety.
    (iv) The proposed use will not create an exclusive or perpetual 
right of use or occupancy.
    (v) The proposed use will not unreasonably conflict or interfere 
with administrative use by the Forest Service, other scheduled or 
authorized existing uses of the National Forest System, or use of 
adjacent non-National Forest System lands.
    (vi) The proponent does not have any delinquent debt owed to the 
Forest Service under terms and conditions of a prior or existing 
authorization, unless such debt results from a decision on an 
administrative appeal or from a fee review and the proponent is current 
with the payment schedule.
    (vii) The proposed use does not involve gambling or providing of 
sexually oriented commercial services, even if permitted under State 
law.
    (viii) The proposed use does not involve military or paramilitary 
training or exercises by private organizations or individuals, unless 
such training or exercises are federally funded.
    (ix) The proposed use does not involve disposal of solid waste or 
disposal of radioactive or other hazardous substances.
    (2) Results of initial screening. Any proposed use other than a 
noncommercial group use that does not meet all of the minimum 
requirements of paragraphs (e)(1)(i)-(ix) of this section shall not 
receive further evaluation and processing. In such event, the authorized 
officer shall advise the proponent that the use does not meet the 
minimum requirements. If the proposal was submitted orally, the 
authorized officer may respond orally. If the proposal was made in 
writing, the authorized officer shall notify the proponent in writing 
that the proposed use does not meet the minimum requirements and shall 
simultaneously return the request.
    (3) Guidance and information to proponents. For proposals for 
noncommercial group use as well as for those proposals that meet the 
minimum requirements of paragraphs (e)(1)(i)-(ix), the authorized 
officer, to the extent practicable, shall provide the proponent guidance 
and information on the following:
    (i) Possible land use conflicts as identified by review of forest 
land and resource management plans, landownership records, and other 
readily available sources;

[[Page 262]]

    (ii) Proposal and application procedures and probable time 
requirements;
    (iii) Proponent qualifications;
    (iv) Applicable fees, charges, bonding, and/or security 
requirements;
    (v) Necessary associated clearances, permits, and licenses;
    (vi) Environmental and management considerations;
    (vii) Special conditions; and
    (viii) identification of on-the-ground investigations which will 
require temporary use permits.
    (4) Confidentiality. If requested by the proponent, the authorized 
officer, or other Forest Service official, to the extent reasonable and 
authorized by law, shall hold confidential any project and program 
information revealed during pre-application contacts.
    (5) Sec. nd-level screening of proposed uses. A proposal which passes 
the initial screening set forth in paragraph (e)(1) and for which the 
proponent has submitted information as required in paragraph (d)(2)(ii) 
of this section, proceeds to second-level screening and consideration. 
In order to complete this screening and consideration, the authorized 
officer may request such additional information as necessary to obtain a 
full description of the proposed use and its effects. An authorized 
officer shall reject any proposal, including a proposal for commercial 
group uses, if, upon further consideration, the officer determines that:
    (i) The proposed use would be inconsistent or incompatible with the 
purposes for which the lands are managed, or with other uses; or
    (ii) The proposed use would not be in the public interest; or
    (iii) The proponent is not qualified; or
    (iv) The proponent does not or cannot demonstrate technical or 
economic feasibility of the proposed use or the financial or technical 
capability to undertake the use and to fully comply with the terms and 
conditions of the authorization; or
    (v) There is no person or entity authorized to sign a special use 
authorization and/or there is no person or entity willing to accept 
responsibility for adherence to the terms and conditions of the 
authorization.
    (6) NEPA compliance for second-level screening process. A request 
for a special use authorization that does not meet the criteria 
established in paragraphs (e)(5)(i) through (e)(5)(v) of this section 
does not constitute an agency proposal as defined in 40 CFR 1508.23 and, 
therefore, does not require environmental analysis and documentation.
    (f) Special requirements for certain proposals--(1) Oil and gas 
pipeline rights-of-way. These proposals must include the citizenship of 
the proponent(s) and disclose the identity of its participants as 
follows:
    (i) Citizens of another country, the laws, customs, or regulations 
of which deny similar or like privileges to citizens or corporations of 
the United States, shall not own an appreciable interest in any oil and 
gas pipeline right-of-way or associated permit; and
    (ii) The authorized officer shall notify the House Committee on 
Resources and the Senate Committee on Energy and Natural Resources 
promptly upon receipt of a proposal for a right-of-way for a pipeline 
twenty-four (24) inches or more in diameter, and no right-of-way for 
such a pipeline shall be granted until sixty (60) days (not counting 
days on which the House of Representatives or the Senate has adjourned 
for more than three (3) days) after a notice of intention to grant the 
right-of-way, together with the authorized officer's detailed findings 
as to terms and conditions the officer proposes to impose, has been 
submitted to such committees, unless each committee by resolution waives 
the waiting period.
    (2) Electric power transmission lines 66 KV or over. Any proposal 
for authority to construct and maintain a facility for the generation of 
electric power and energy or for the transmission or distribution of 
electric power and energy of 66 kilovolts or higher under this section 
must be referred to the Sec. etary of Energy for consultation.
    (3) Major development. Proponents of a major development may submit 
a request for a planning permit of up to 10 years in duration. Requests 
for a planning permit must include the information contained in 
paragraphs (d)(1) through (d)(3) of this section. Upon completion of a 
master development

[[Page 263]]

plan developed under a planning permit, proponents may then submit a 
request for a long-term authorization to construct and operate the 
development. At a minimum, a request for a long-term permit for a major 
development must include the information contained in paragraphs (d)(1) 
and (d)(2)(ii) through (d)(5) of this section. Issuance of a planning 
permit does not prejudice approval or denial of a subsequent request for 
a special use permit for the development.
    (g) Application processing and response--(1) Acceptance of 
applications. Except for proposals for noncommercial group uses, if a 
request does not meet the criteria of both screening processes or is 
subsequently denied, the proponent must be notified with a written 
explanation of the rejection or denial and any written proposal returned 
to the proponent. If a request for a proposed use meets the criteria of 
both the initial and second-level screening processes as described in 
paragraph (e) of this section, the authorized officer shall notify the 
proponent that the agency is prepared to accept a written formal 
application for a special use authorization and shall, as appropriate or 
necessary, provide the proponent guidance and information of the type 
described in paragraphs (e)(3)(i) through (e)(3)(viii) of this section.
    (2) Processing applications. (i) Upon acceptance of an application 
for a special use authorization other than a planning permit, the 
authorized officer shall evaluate the proposed use for the requested 
site, including effects on the environment. The authorized officer may 
request such additional information as necessary to obtain a full 
description of the proposed use and its effects.
    (ii) Federal, State, and local government agencies and the public 
shall receive adequate notice and an opportunity to comment upon a 
special use proposal accepted as a formal application in accordance with 
Forest Service NEPA procedures.
    (iii) The authorized officer shall give due deference to the 
findings of another agency such as a Public Utility Commission, the 
Federal Regulatory Energy Commission, or the Interstate Commerce 
Commission in lieu of another detailed finding. If this information is 
already on file with the Forest Service, it need not be refiled, if 
reference is made to the previous filing date, place, and case number.
    (iv) Applications for noncommercial group uses must be received at 
least 72 hours in advance of the proposed activity. Applications for 
noncommercial group uses shall be processed in order of receipt, and the 
use of a particular area shall be allocated in order of receipt of fully 
executed applications, subject to any relevant limitations set forth in 
this section.
    (v) For applications for planning permits, including those issued 
for a major development as described in paragraph (f)(3) of this 
section, the authorized officer shall assess only the applicant's 
financial and technical qualifications and determine compliance with 
other applicable laws, regulations, and orders. Planning permits may be 
categorically excluded from documentation in an environmental assessment 
or environmental impact statement pursuant to Forest Service Handbook 
1909.15 (36 CFR 200.4).
    (3) Response to applications for noncommercial group uses. (i) All 
applications for noncommercial group uses shall be deemed granted and an 
authorization shall be issued for those uses pursuant to the 
determination as set forth below, unless applications are denied within 
48 hours of receipt. Where an application for a noncommercial group use 
has been granted or is deemed to have been granted and an authorization 
has been issued under this paragraph, an authorized officer may revoke 
that authorization only as provided under Sec. 251.60(a)(1)(i).
    (ii) An authorized officer shall grant an application for a special 
use authorization for a noncommercial group use upon a determination 
that:
    (A) Authorization of the proposed activity is not prohibited by the 
rules at 36 CFR part 261, subpart B, or by Federal, State, or local law 
unrelated to the content of expressive activity;
    (B) Authorization of the proposed activity is consistent or can be 
made consistent with the standards and guidelines in the applicable 
forest land and resource management plan required

[[Page 264]]

under the National Forest Management Act and 36 CFR part 219;
    (C) The proposed activity does not materially impact the 
characteristics or functions of the environmentally sensitive resources 
or lands identified in Forest Service Handbook 1909.15, chapter 30;
    (D) The proposed activity will not delay, halt, or prevent 
administrative use of an area by the Forest Service or other scheduled 
or existing uses or activities on National Forest System lands, 
including but not limited to uses and activities authorized under parts 
222, 223, 228, and 251 of this chapter;
    (E) The proposed activity does not violate State and local public 
health laws and regulations as applied to the proposed site. Issues 
addressed by State and local public health laws and regulations as 
applied to the proposed site include but are not limited to:
    (1) The sufficiency of sanitation facilities;
    (2) The sufficiency of waste-disposal facilities;
    (3) The availability of sufficient potable drinking water;
    (4) The risk of disease from the physical characteristics of the 
proposed site or natural conditions associated with the proposed site; 
and
    (5) The risk of contamination of the water supply;
    (F) The proposed activity will not pose a substantial danger to 
public safety. Considerations of public safety must not include concerns 
about possible reaction to the users' identity or beliefs from non-
members of the group that is seeking an authorization and shall be 
limited to the following:
    (1) The potential for physical injury to other forest users from the 
proposed activity;
    (2) The potential for physical injury to users from the physical 
characteristics of the proposed site or natural conditions associated 
with the proposed site;
    (3) The potential for physical injury to users from scheduled or 
existing uses or activities on National Forest System lands; and
    (4) The adequacy of ingress and egress in case of an emergency;
    (G) The proposed activity does not involve military or paramilitary 
training or exercises by private organizations or individuals, unless 
such training or exercises are federally funded; and
    (H) A person or persons 21 years of age or older have been 
designated to sign and do sign a special use authorization on behalf of 
the applicant.
    (iii) If an authorized officer denies an application because it does 
not meet the criteria in paragraphs (g)(3)(ii)(A) through (g)(3)(ii)(H) 
of this section, the authorized officer shall notify the applicant in 
writing of the reasons for the denial. If an alternative time, place, or 
manner will allow the applicant to meet the eight evaluation criteria, 
an authorized officer shall offer that alternative. If an application is 
denied solely under paragraph (g)(3)(ii)(C) of this section and all 
alternatives suggested are unacceptable to the applicant, the authorized 
officer shall offer to have completed the requisite environmental and 
other analyses for the requested site. A decision to grant or deny the 
application for which an environmental assessment or an environmental 
impact statement is prepared is subject to the notice and appeal 
procedures at 36 CFR part 215 and shall be made within 48 hours after 
the decision becomes final under that appeal process. A denial of an 
application under paragraphs (g)(3)(ii)(A) through (g)(3)(ii)(H) of this 
section constitutes final agency action and is immediately subject to 
judicial review.
    (4) Response to all other applications. Based on evaluation of the 
information provided by the applicant and other relevant information 
such as environmental findings, the authorized officer shall decide 
whether to approve the proposed use, approve the proposed use with 
modifications, or deny the proposed use. A group of applications for 
similar uses having minor environmental impacts may be evaluated with 
one analysis and approved in one decision.
    (5) Authorization of a special use. Upon a decision to approve a 
special use or a group of similar special uses, the authorized officer 
may issue one or more special use authorizations as defined in Sec. 
251.51 of this subpart.

[63 FR 65964, Nov. 30, 1998]

[[Page 265]]



Sec. 251.55  Nature of interest.

    (a) A holder is authorized only to occupy such land and structures 
and conduct such activities as is specified in the special use 
authorization. The holder may sublet the use and occupancy of the 
premises and improvements authorized only with the prior written 
approval of the authorized officer, but the holder shall continue to be 
responsible for compliance with all conditions of the special use 
authorization.
    (b) All rights not expressly granted are retained by the United 
States, including but not limited to (1) continuing rights of access to 
all National Forest System land (including the subsurface and air 
space); (2) a continuing right of physical entry to any part of the 
authorized facilities for inspection, monitoring, or for any other 
purposes or reason consistent with any right or obligation of the United 
States under any law or regulation; and (3) the right to require common 
use of the land or to authorize the use by others in any way not 
inconsistent with a holder's existing rights and privileges after 
consultation with all parties and agencies involved. When costs can be 
feasibly allocated and have not been amortized, a new holder may be 
required to compensate existing holders for an equitable proportion of 
the original costs or other expense associated with the common use.
    (c) Special use authorizations are subject to all outstanding valid 
rights.
    (d) Each special use authorization will specify the lands to be used 
or occupied which shall be limited to that which the authorized officer 
determines: (1) Will be occupied by the facilities authorized; (2) to be 
necessary for the construction, operation, maintenance, and full 
utilization of the authorized facilities or the conduct of authorized 
activities; and, (3) to be necessary to protect the public health and 
safety and the environment.
    (e) The holder will secure permission under applicable law, and pay 
in advance, the value as determined by the authorized officer for any 
mineral and vegetative materials (including timber) to be cut, removed, 
used, or destroyed by the holder from the authorized use area or other 
National Forest System land. The authorized officer may, in lieu of 
requiring an advance payment, require the holder to stockpile or stack 
the material at designated locations for later disposal by the United 
States.



Sec. 251.56  Terms and conditions.

    (a) General. (1) Each special use authorization must contain:
    (i) Terms and conditions which will:
    (A) Carry out the purposes of applicable statutes and rules and 
regulations issued thereunder;
    (B) Minimize damage to scenic and esthetic values and fish and 
wildlife habitat and otherwise protect the environment;
    (C) Require compliance with applicable air and water quality 
standards established by or pursuant to applicable Federal or State law; 
and
    (D) Require compliance with State standards for public health and 
safety, environmental protection, and siting, construction, operation, 
and maintenance if those standards are more stringent than applicable 
Federal standards.
    (ii) Such terms and conditions as the authorized officer deems 
necessary to:
    (A) Protect Federal property and economic interests;
    (B) Manage efficiently the lands subject to the use and adjacent 
thereto;
    (C) Protect other lawful users of the lands adjacent to or occupied 
by such use;
    (D) Protect lives and property;
    (E) Protect the interests of individuals living in the general area 
of the use who rely on the fish, wildlife, and other biotic resources of 
the area for subsistence purposes;
    (F) Require siting to cause the least damage to the environment, 
taking into consideration feasibility and other relevant factors; and
    (G) Otherwise protect the public interest.

    Note to paragraph (a)(1)(ii)(G): The Department is making explicit 
its preexisting understanding of Sec. 251.56(a)(1)(ii)(G) of this 
subpart in the context of authorizing noncommercial group uses of 
National Forest System lands. Sec. ion 251.56(a)(1)(ii)(G) provides that 
each special use authorization shall contain such terms and conditions 
as the authorized officer deems necessary to otherwise protect the 
public interest. In the context of noncommercial group uses, the

[[Page 266]]

Forest Service interprets the term ``public interest'' found in Sec. 
251.56(a)(1)(ii)(G) to refer to the three public interests identified by 
the Forest Service on August 30, 1995. These public interests include 
the protection of resources and improvements on National Forest System 
lands, the allocation of space among potential or existing uses and 
activities, and public health and safety concerns. Under this 
construction, Sec. 251.56(a)(1)(ii)(G) allows the Forest Service to 
impose terms and conditions that are not specifically addressed in Sec. 
251.56(a)(1)(ii)(A)-(F) but only those that further these public 
interests. The Forest Service shall implement and enforce Sec. 
251.56(a)(1)(ii)(G) in accordance with this interpretation.

    (2) Authorizations for use of National Forest System lands may be 
conditioned to require State, county, or other Federal agency licenses, 
permits, certificates, or other approval documents, such as a Federal 
Communication Commission license, a Federal Energy Regulatory Commission 
license, a State water right, or a county building permit.
    (b) Duration and renewability--(1) Requirements. If appropriate, 
each special use authorization will specify its duration and 
renewability. The duration shall be no longer than the authorized 
officer determines to be necessary to accomplish the purpose of the 
authorization and to be reasonable in light of all circumstances 
concerning the use, including
    (i) Resource management direction contained in land management and 
other plans;
    (ii) Public benefits provided;
    (iii) Cost and life expectancy of the authorized facilities;
    (iv) Financial arrangements for the project; and
    (v) The life expectancy of associated facilities, licenses, etc. 
Except for special use authorizations issued under the National Forest 
Ski Area Permit Act of 1986, authorizations exceeding 30 years shall 
provide for revision of terms and conditions at specified intervals to 
reflect changing times and conditions.
    (2) Ski area permits. (i) For authorizations issued under the 
National Forest Ski Area Permit Act of 1986, the authorized officer 
normally shall issue a ski area authorization for 40 years, if, upon 
consideration of information submitted by the applicant, the authorized 
officer finds that the ski area development meets the following 
standards:
    (A) In the case of an existing permit holder, existing on-site 
investment is of sufficient magnitude to justify authorization for 40 
years;
    (B) In the case of an existing permit holder, existing investment of 
capital is in ski-related facilities;
    (C) Planned investment capital is directly related to development of 
ski area facilities and is not for financing regular, ongoing operation 
and maintenance costs;
    (D) Ski facilities requiring long-term investment are, or will be, 
located predominately on land authorized under a permit;
    (E) The number and magnitude of planned facilities, as detailed in a 
Master Development Plan, clearly require long-term financing and/or 
operation;
    (F) The United States is not the owner of the principal facilities 
within the authorized ski area.
    (ii) A term of less than 40 years shall be authorized for a ski area 
when the applicant requests a shorter term or when, in the authorized 
officer's discretion:
    (A) Analysis of the information submitted by the applicant indicates 
that a shorter term is sufficient for financing of the ski area;
    (B) The ski area development, whether existing or proposed, does not 
meet the standards of paragraph (2)(i)(A) through (F) of this section; 
or
    (C) A 40-year authorization would be inconsistent with the approved 
forest land and resource management plan governing the area (36 CFR part 
219).
    (c) Preconstruction approvals. Forest Service approval of location, 
design and plans (or standards, if appropriate) of all developments 
within the authorized area will be required prior to construction.
    (d) Liability. Holders shall pay the United States for all injury, 
loss, or damage, including fire suppression costs, in accordance with 
existing Federal and State laws.
    (1) Holders shall also indemnify the United States for any and all 
injury, loss, or damage, including fire suppression costs, the United 
States may suffer as a result of claims, demands,

[[Page 267]]

losses, or judgments caused by the holder's use or occupancy.
    (2) Holders of special use authorizations for high risk use and 
occupancy, such as, but not limited to, powerlines and oil and gas 
pipelines, shall be held liable for all injury, loss, or damage, 
including fire suppression costs, caused by the holder's use or 
occupancy, without regard to the holder's negligence, provided that 
maximum liability shall be specified in the special use authorization as 
determined by a risk assessment, prepared in accordance with established 
agency procedures, but shall not exceed $1,000,000 for any one 
occurrence. Liability for injury, loss, or damage, including fire 
suppression costs, in excess of the specified maximum shall be 
determined by the laws governing ordinary negligence of the jurisdiction 
in which the damage or injury occurred.
    (e) Bonding. An authorized officer may require the holder of a 
special use authorization for other than a noncommercial group use to 
furnish a bond or other security to secure all or any of the obligations 
imposed by the terms of the authorization or by any applicable law, 
regulation or order.
    (f) Special terms and conditions--(1) Public service enterprises. 
Special use permits authorizing the operation of public service 
enterprises shall require that the permittee charge reasonable rates and 
furnish such services as may be necessary in the public interest, except 
where such rates and services are regulated by Federal, State or 
municipal agencies having jurisdiction.
    (2) Common carriers. Oil and gas pipelines and related facilities 
authorized under section 28 of the Mineral Leasing Act of 1920, 41 Stat. 
449, as amended (30 U.S.C. 185), shall be constructed, operated and 
maintained as common carriers. The owners or operators of pipelines 
shall accept, convey, transport, or purchase without discrimination all 
oil or gas delivered to the pipeline without regard to whether such oil 
or gas was produced on Federal or nonfederal lands. In the case of oil 
or gas produced from Federal lands or from the resources on the Federal 
lands in the vicinity of the pipeline, the Sec. etary may, after a full 
hearing with due notice thereof to interested parties and a proper 
finding of facts, determine the proportionate amounts to be accepted, 
conveyed, transported, or purchased. The common carrier provisions of 
this section shall not apply to any natural gas pipeline operated (i) by 
any person subject to regulation under the Natural Gas Act, 52 Stat. 
821, as amended, (15 U.S.C. 717) or (ii) by any public utility subject 
to regulation by a State or municipal regulatory agency having 
jurisdiction to regulate the rates and charges for the sale of natural 
gas to consumers within the State or municipality. Where natural gas not 
subject to State regulatory or conservation laws governing its purchase 
by pipeline companies is offered for sale, each pipeline company shall 
purchase, without discrimination, any such natural gas produced in the 
vicinity of the pipeline.
    (g) Conversion of Ski Area Authorizations. (1) The Forest Service 
shall request that all existing permit holders convert existing 
authorizations for ski areas to a new authorization issued pursuant to 
the National Forest Ski Area Permit Act.
    (2) Any current holder of a ski area permit who wishes to convert an 
existing permit to one issued pursuant to the National Forest Ski Area 
Permit Act must submit a written request for the new authorization to 
the authorized officer.
    (3) With the consent of the holder, the authorized officer shall 
convert the authorization if:
    (i) The holder is in compliance with the existing authorization;
    (ii) All fees currently due under the existing authorization are 
paid in full; and
    (iii) Any proposed modifications of terms and conditions of the 
existing authorization included in a request for conversion meet the 
standards of paragraphs (2)(i) (A) through (F) of this section and the 
relevant requirements of this subpart.
    (4) A holder retains the right to decline a new authorization 
offered pursuant to this paragraph and to continue to operate under the 
terms of the existing permit. However, pursuant to the rules at Sec. 
251.61 of this subpart,

[[Page 268]]

major modifications of existing permits shall require conversion to a 
permit issued under the authority of the National Forest Ski Area Permit 
Act, unless the holder provides compelling justification for retaining 
the existing permit.

[45 FR 38327, June 6, 1980, as amended at 49 FR 46895, Nov. 29, 1984; 54 
FR 22594, May 25, 1989; 60 FR 45294, Aug. 30, 1995; 63 FR 65967, Nov. 
30, 1998; 64 FR 48960, Sept. 9, 1999]



Sec. 251.57  Rental fees.

    (a) Except as otherwise provided in this part or when specifically 
authorized by the Sec. etary of Agriculture, special use authorizations 
shall require the payment in advance of an annual rental fee as 
determined by the authorized officer.
    (1) The fee shall be based on the fair market value of the rights 
and privileges authorized, as determined by appraisal or other sound 
business management principles.
    (2) Where annual fees of one hundred dollars ($100) or less are 
assessed, the authorized officer may require either annual payment or a 
payment covering more than one year at a time. If the annual fee is 
greater than one hundred dollars ($100), holders who are private 
individuals (that is, acting in an individual capacity), as opposed to 
those who are commercial, other corporate, or business or government 
entities, may, at their option, elect to make either annual payments or 
payments covering more than one year.
    (3) A base cabin user fee for a recreation residence use shall be 5 
percent of the market value of the recreation residence lot, established 
by an appraisal conducted in accordance with the Act of October 11, 2000 
(16 U.S.C. 6201-13).
    (b) All or part of the fee may be waived by the authorized officer, 
when equitable and in the public interest, for the use and occupancy of 
National Forest System land in the following circumstances:
    (1) The holder is a State or local government or any agency or 
instrumentality thereof, excluding municipal utilities and cooperatives 
whose principal source of revenue from the authorized use is customer 
charges; or
    (2) The holder is a nonprofit association or nonprofit corporation, 
which is not controlled or owned by profit-making corporations or 
business enterprises, and which is engaged in public or semi-public 
activity to further public health, safety, or welfare, except that free 
use will not be authorized when funds derived by the holder through the 
authorization are used to increase the value of the authorized 
improvements owned by the holder, or are used to support other 
activities of the holder; or
    (3) The holder provides without charge, or at reduced charge, a 
valuable benefit to the public or to the programs of the Sec. etary; or
    (4) When the rental fee is included in the fees for an authorized 
use or occupancy for which the United States is already receiving 
compensation; or
    (5) When a right-of-way is authorized in reciprocation for a right-
of-way conveyed to the United States; or
    (6) For rights-of-way involving cost-share roads or reciprocal 
right-of-way agreements.
    (c) No rental fee will be charged when the holder is the Federal 
government.
    (d) No fee shall be charged when the authorization is for a 
noncommercial group use as defined in Sec. 251.51 of this subpart.
    (e) Special use authorizations issued under Sec. 251.53(g) of this 
part may require as all or a part of the consideration the 
reconditioning and maintenance of the government-owned or controlled 
structures, improvements, and land to a satisfactory standard. The total 
consideration will be based upon the fair market value of the rights and 
privileges authorized.
    (f) Special use authorizations involving government-owned or 
controlled buildings, structures, or other improvements which require 
caretakers' services, or the furnishing of special services such as 
water, electric lights, and clean-up, may require the payment of an 
additional fee or charge to cover the cost of such services.
    (g) Except where specified otherwise by terms of a special use 
authorization, rental fees may be initiated or adjusted whenever 
necessary: (1) As a result of fee review, reappraisal; or (2) upon a 
change in the holder's qualifications under paragraph (b) of this 
section; and

[[Page 269]]

(3) notice is given prior to initiating or adjusting rental fees.
    (h) Each ski area authorization issued under the authority of the 
National Forest Ski Area Permit Act shall include a clause that provides 
that the Forest Service may adjust and calculate future rental fees to 
reflect Agency revisions to the existing system for determining fees 
based on fair market value or to comply with any new fee system for 
determining fees based on fair market value that may be adopted after 
issuance of the authorization.
    (i) Each permit or term permit for a recreation residence use shall 
include a clause stating that the Forest Service shall recalculate the 
base cabin user fee at least every 10 years and shall use an appraisal 
to recalculate that fee as provided in paragraph (a)(3) of this section.

[45 FR 38327, June 6, 1980, as amended at 51 FR 16683, May 6, 1986; 54 
FR 22594, May 25, 1989; 60 FR 45294, Aug. 30, 1995; 63 FR 65967, Nov. 
30, 1998; 71 FR 16621, Apr. 3, 2006]



Sec. 251.58  Cost recovery.

    (a) Assessment of fees to recover agency processing and monitoring 
costs. The Forest Service shall assess fees to recover the agency's 
processing costs for special use applications and monitoring costs for 
special use authorizations. Applicants and holders shall submit 
sufficient information for the authorized officer to estimate the number 
of hours required to process their applications or monitor their 
authorizations. Cost recovery fees are separate from any fees charged 
for the use and occupancy of National Forest System lands.
    (b) Special use applications and authorizations subject to cost 
recovery requirements. Except as exempted in paragraphs (g)(1) through 
(g)(4) of this section, the cost recovery requirements of this section 
apply in the following situations to the processing of special use 
applications and monitoring of special use authorizations issued 
pursuant to this subpart:
    (1) Applications for use and occupancy that require a new special 
use authorization. Fees for processing an application for a new special 
use authorization shall apply to any application formally accepted by 
the agency on or after March 23, 2006 and to any application formally 
accepted by the agency before March 23, 2006, which the agency has not 
commenced processing. Proposals accepted as applications which the 
agency has commenced processing prior to March 23, 2006 shall not be 
subject to processing fees. The cost recovery provisions of this section 
shall not apply to or supersede written agreements providing for 
recovery of processing costs executed by the agency and applicants prior 
to March 23, 2006.
    (2) Changes to existing authorizations. Processing fees apply to 
proposals that require an application to amend or formally approve 
specific activities or facilities as identified in an existing 
authorization, operating plan, or master development plan. Processing 
fees also apply to agency actions to amend a special use authorization.
    (3) Agency actions to issue a special use authorization and 
applications for issuance of a new special use authorization due to 
termination of an existing authorization, including termination caused 
by expiration, a change in ownership or control of the authorized 
facilities, or a change in ownership or control of the holder of the 
authorization. Upon termination of an existing authorization, a holder 
shall be subject to a processing fee for issuance of a new 
authorization, even if the holder's existing authorization does not 
require submission of an application for a new authorization.
    (4) Monitoring of authorizations issued or amended on or after March 
23, 2006.
    (c) Processing fee requirements. A processing fee is required for 
each application for or agency action to issue a special use 
authorization as identified in paragraphs (b)(1) through (b)(3) of this 
section. Processing fees do not include costs incurred by the applicant 
in providing information, data, and documentation necessary for the 
authorized officer to make a decision on the proposed use or occupancy 
pursuant to the provisions at Sec. 251.54.
    (1) Basis for processing fees. The processing fee categories 1 
through 6 set out in paragraphs (c)(2)(i) through (c)(2)(vi) of this 
section are based upon the costs that the Forest Service incurs in 
reviewing the application, conducting environmental analyses of the

[[Page 270]]

effects of the proposed use, reviewing any applicant-generated 
environmental documents and studies, conducting site visits, evaluating 
an applicant's technical and financial qualifications, making a decision 
on whether to issue the authorization, and preparing documentation of 
analyses, decisions, and authorizations for each application. The 
processing fee for an application shall be based only on costs necessary 
for processing that application. ``Necessary for'' means that but for 
the application, the costs would not have been incurred and that the 
costs cover only those activities without which the application cannot 
be processed. The processing fee shall not include costs for studies for 
programmatic planning or analysis or other agency management objectives, 
unless they are necessary for the application being processed. For 
example, the processing fee shall not include costs for capacity 
studies, use allocation decisions, corridor or communications site 
planning, and biological studies that address species diversity, unless 
they are necessary for the application. Proportional costs for analyses, 
such as capacity studies, that are necessary for an application may be 
included in the processing fee for that application. The costs incurred 
for processing an application, and thus the processing fee, depend on 
the complexity of the project; the amount of information that is 
necessary for the authorized officer's decision in response to the 
proposed use and occupancy; and the degree to which the applicant can 
provide this information to the agency. Processing work conducted by the 
applicant or a third party contracted by the applicant minimizes the 
costs the Forest Service will incur to process the application, and thus 
reduces the processing fee. The total processing time is the total time 
estimated for all Forest Service personnel involved in processing an 
application and is estimated case by case to determine the fee category.
    (i) Processing fee determinations. The applicable fee rate for 
processing applications in minor categories 1 through 4 (paragraphs 
(c)(2)(i) through (c)(2)(iv) of this section) shall be assessed from a 
schedule. The processing fee for applications in category 5, which may 
be either minor or major, shall be established in the master agreement 
(paragraph (c)(2)(v) of this section). For major category 5 (paragraph 
(c)(2)(v) of this section) and category 6 (paragraph (c)(2)(vi) of this 
section) cases, the authorized officer shall estimate the agency's full 
actual processing costs. The estimated processing costs for category 5 
and category 6 cases shall be reconciled as provided in paragraphs 
(c)(5)(ii) and (iii) and (c)(6)(ii) and (iii) of this section.
    (ii) Reduction in processing fees for certain category 6 
applications. For category 6 applications submitted under authorities 
other than the Mineral Leasing Act, the applicant:
    (A) May request a reduction of the processing fee based upon the 
applicant's written analysis of actual costs, the monetary value of the 
rights and privileges sought, that portion of the costs incurred for the 
benefit of the general public interest, the public service provided, the 
efficiency of the agency processing involved, and other factors relevant 
to determining the reasonableness of the costs. The agency will 
determine whether the estimate of full actual costs should be reduced 
based upon this analysis and will notify the applicant in writing of 
this determination; or
    (B) May agree in writing to waive payment of reasonable costs and 
pay the actual costs incurred in processing the application.
    (2) Processing fee categories. No fee is charged for applications 
taking 1 hour or less for the Forest Service to process. Applications 
requiring more than 1 hour for the agency to process are covered by the 
fee categories 1 through 6 set out in the following paragraphs i through 
vi.
    (i) Category 1: Minimal Impact: More than 1 hour and up to and 
including 8 hours. The total estimated time in this minor category is 
more than 1 hour and up to and including 8 hours for Forest Service 
personnel to process an application.
    (ii) Category 2: More than 8 and up to and including 24 hours. The 
total estimated time in this minor category is more than 8 and up to and 
including 24 hours for Forest Service personnel to process an 
application.

[[Page 271]]

    (iii) Category 3: More than 24 and up to and including 36 hours. The 
total estimated time in this minor category is more than 24 and up to 
and including 36 hours for Forest Service personnel to process an 
application.
    (iv) Category 4: More than 36 and up to and including 50 hours. The 
total estimated time in this minor category is more than 36 and up to 
and including 50 hours for Forest Service personnel to process an 
application.
    (v) Category 5: Master agreements. The Forest Service and the 
applicant may enter into master agreements for the agency to recover 
processing costs associated with a particular application, a group of 
applications, or similar applications for a specified geographic area. 
This category is minor if 50 hours or less are needed for Forest Service 
personnel to process an application and major if more than 50 hours are 
needed. In signing a master agreement for a major category application 
submitted under authorities other than the Mineral Leasing Act, an 
applicant waives the right to request a reduction of the processing fee 
based upon the reasonableness factors enumerated in paragraph 
(c)(1)(ii)(A) of this section. A master agreement shall at a minimum 
include:
    (A) The fee category or estimated processing costs;
    (B) A description of the method for periodic billing, payment, and 
auditing;
    (C) A description of the geographic area covered by the agreement;
    (D) A work plan and provisions for updating the work plan;
    (E) Provisions for reconciling differences between estimated and 
final processing costs; and
    (F) Provisions for terminating the agreement.
    (vi) Category 6: More than 50 hours. In this major category more 
than 50 hours are needed for Forest Service personnel to process an 
application. The authorized officer shall determine the issues to be 
addressed and shall develop preliminary work and financial plans for 
estimating recoverable costs.
    (3) Multiple applications other than those covered by master 
agreements (category 5). (i) Unsolicited applications where there is no 
competitive interest. Processing costs that are incurred in processing 
more than one of these applications (such as the cost of environmental 
analysis or printing an environmental impact statement that relates to 
all of the applications) must be paid in equal shares or on a prorated 
basis, as deemed appropriate by the authorized officer, by each 
applicant, including applicants for recreation special uses that are 
otherwise exempt under paragraph (g)(3) of this section when the Forest 
Service requires more than 50 hours in the aggregate to process the 
applications submitted in response to the prospectus.
    (ii) Unsolicited proposals where competitive interest exists. When 
there is one or more unsolicited proposals and the authorized officer 
determines that competitive interest exists, the agency shall issue a 
prospectus. All proposals accepted pursuant to that solicitation shall 
be processed as applications. The applicants are responsible for the 
costs of environmental analyses that are necessary for their 
applications and that are conducted prior to issuance of the prospectus. 
Processing fees for these cases shall be determined pursuant to the 
procedures for establishing a category 6 processing fee and shall 
include costs such as those incurred in printing and mailing the 
prospectus; having parties other than the Forest Service review and 
evaluate applications; establishing a case file; recording data; 
conducting financial reviews; and, for selected applicants, any 
additional environmental analysis required in connection with their 
applications. Processing fees shall be paid in equal shares or on a 
prorated basis, as deemed appropriate by the authorized officer, by all 
parties who submitted proposals that were processed as applications 
pursuant to the solicitation, including applicants for recreation 
special uses that are otherwise exempt under paragraph (g)(3) of this 
section when the Forest Service requires more than 50 hours in the 
aggregate to process the applications submitted in response to the 
prospectus.
    (iii) Solicited applications. When the Forest Service solicits 
applications through the issuance of a prospectus on its own initiative, 
rather than in response to an unsolicited proposal or

[[Page 272]]

proposals, the agency is responsible for the cost of environmental 
analyses conducted prior to issuance of the prospectus. All proposals 
accepted pursuant to that solicitation shall be processed as 
applications. Processing fees for these cases shall be determined 
pursuant to the procedures for establishing a category 6 processing fee 
and shall include costs such as those incurred in printing and mailing 
the prospectus; having parties other than the Forest Service review and 
evaluate applications; establishing a case file; recording data; 
conducting financial reviews; and, for selected applicants, any 
additional environmental analysis required in connection with their 
applications. Processing fees shall be paid in equal shares or on a 
prorated basis, as deemed appropriate by the authorized officer, by all 
parties who submitted proposals that were processed as applications 
pursuant to the solicitation, including applicants for recreation 
special uses that are otherwise exempt under paragraph (g)(3) of this 
section when the Forest Service requires more than 50 hours in the 
aggregate to process the applications submitted in response to the 
prospectus.
    (4) Billing and revision of processing fees. (i) Billing. When the 
Forest Service accepts a special use application, the authorized officer 
shall provide written notice to the applicant that the application has 
been formally accepted. The authorized officer shall not bill the 
applicant a processing fee until the agency is prepared to process the 
application.
    (ii) Revision of processing fees. Minor category processing fees 
shall not be reclassified into a higher minor category once the 
processing fee category has been determined. However, if the authorized 
officer discovers previously undisclosed information that necessitates 
changing a minor category processing fee to a major category processing 
fee, the authorized officer shall notify the applicant or holder of the 
conditions prompting a change in the processing fee category in writing 
before continuing with processing the application. The applicant or 
holder may accept the revised processing fee category and pay the 
difference between the previous and revised processing categories; 
withdraw the application; revise the project to lower the processing 
costs; or request review of the disputed fee as provided in paragraphs 
(e)(1) through (e)(4) of this section.
    (5) Payment of processing fees. (i) Payment of a processing fee 
shall be due within 30 days of issuance of a bill for the fee, pursuant 
to paragraph (c)(4) of this section. The processing fee must be paid 
before the Forest Service can initiate or, in the case of a revised fee, 
continue with processing an application. Payment of the processing fee 
by the applicant does not obligate the Forest Service to authorize the 
applicant's proposed use and occupancy.
    (ii) For category 5 cases, when the estimated processing costs are 
lower than the final processing costs for applications covered by a 
master agreement, the applicant shall pay the difference between the 
estimated and final processing costs.
    (iii) For category 6 cases, when the estimated processing fee is 
lower than the full actual costs of processing an application submitted 
under the Mineral Leasing Act, or lower than the full reasonable costs 
(when the applicant has not waived payment of reasonable costs) of 
processing an application submitted under other authorities, the 
applicant shall pay the difference between the estimated and full actual 
or reasonable processing costs.
    (6) Refunds of processing fees. (i) Processing fees in minor 
categories 1 through 4 are nonrefundable and shall not be reconciled.
    (ii) For category 5 cases, if payment of the processing fee exceeds 
the agency's final processing costs for the applications covered by a 
master agreement, the authorized officer either shall refund the excess 
payment to the applicant or, at the applicant's request, shall credit it 
towards monitoring fees due.
    (iii) For category 6 cases, if payment of the processing fee exceeds 
the full actual costs of processing an application submitted under the 
Mineral Leasing Act, or the full reasonable costs (when the applicant 
has not waived payment of reasonable costs) of processing an application 
submitted under

[[Page 273]]

other authorities, the authorized officer either shall refund the excess 
payment to the applicant or, at the applicant's request, shall credit it 
towards monitoring fees due.
    (iv) For major category 5 and category 6 applications, an applicant 
whose application is denied or withdrawn in writing is responsible for 
costs incurred by the Forest Service in processing the application up to 
and including the date the agency denies the application or receives 
written notice of the applicant's withdrawal. When an applicant 
withdraws a major category 5 or category 6 application, the applicant 
also is responsible for any costs subsequently incurred by the Forest 
Service in terminating consideration of the application.
    (7) Customer service standards. The Forest Service shall endeavor to 
make a decision on an application that falls into minor processing 
category 1, 2, 3, or 4, and that is subject to a categorical exclusion 
pursuant to the National Environmental Policy Act, within 60 calendar 
days from the date of receipt of the processing fee. If the application 
cannot be processed within the 60-day period, then prior to the 30th 
calendar day of the 60-day period, the authorized officer shall notify 
the applicant in writing of the reason why the application cannot be 
processed within the 60-day period and shall provide the applicant with 
a projected date when the agency plans to complete processing the 
application. For all other applications, including all applications that 
require an environmental assessment or an environmental impact 
statement, the authorized officer shall, within 60 calendar days of 
acceptance of the application, notify the applicant in writing of the 
anticipated steps that will be needed to process the application. These 
customer service standards do not apply to applications that are subject 
to a waiver of or exempt from cost recovery fees under Secs. 
251.58(f) or (g).
    (d) Monitoring fee requirements. The monitoring fee for an 
authorization shall be assessed independently of any fee charged for 
processing the application for that authorization pursuant to paragraph 
(c) of this section. Payment of the monitoring fee is due upon issuance 
of the authorization.
    (1) Basis for monitoring fees. Monitoring is defined at Sec. 
251.51. For monitoring fees in minor categories 1 through 4, 
authorization holders are assessed fees based upon the estimated time 
needed for Forest Service monitoring to ensure compliance with the 
authorization during the construction or reconstruction of temporary or 
permanent facilities and rehabilitation of the construction or 
reconstruction site. Major category 5 and category 6 monitoring fees 
shall be based upon the agency's estimated costs to ensure compliance 
with the terms and conditions of the authorization during all phases of 
its term, including but not limited to monitoring to ensure compliance 
with the authorization during the construction or reconstruction of 
temporary or permanent facilities and rehabilitation of the construction 
or reconstruction site. Monitoring for all categories does not include 
billings, maintenance of case files, annual performance evaluations, or 
scheduled inspections to determine compliance generally with the terms 
and conditions of an authorization.
    (i) Monitoring fee determinations. The applicable fee rate for 
monitoring compliance with authorizations in minor categories 1 through 
4 (paragraphs (d)(2)(i) through (d)(2)(iv) of this section) shall be 
assessed from a schedule. The monitoring fee for authorizations in 
category 5, which may be minor or major, shall be established in the 
master agreement (paragraph (d)(2)(v) of this section). For major 
category 5 (paragraph (d)(2)(v) of this section) and category 6 
(paragraph (d)(2)(vi) of this section) cases, the authorized officer 
shall estimate the agency's full actual monitoring costs. The estimated 
monitoring costs for category 5 and category 6 cases shall be reconciled 
as provided in paragraphs (d)(3)(ii) and (iii) and (d)(4)(ii) and (iii) 
of this section.
    (ii) Reductions in monitoring fees for certain category 6 
authorizations. For category 6 authorizations issued under authorities 
other than the Mineral Leasing Act, the holder:
    (A) May request a reduction of the monitoring fee based upon the 
holder's written analysis of actual costs, the monetary value of the 
rights or privileges granted, that portion of the costs

[[Page 274]]

incurred for the benefit of the general public interest, the public 
service provided, the efficiency of the agency monitoring involved, and 
other factors relevant to determining the reasonableness of the costs. 
The agency will determine whether the estimate of full actual costs 
should be reduced based upon this analysis and will notify the holder in 
writing of this determination; or
    (B) May agree in writing to waive payment of reasonable costs and 
pay the actual costs incurred in monitoring the authorization.
    (2) Monitoring fee categories. No monitoring fee is charged for 
authorizations requiring 1 hour or less for the Forest Service to 
monitor. Authorizations requiring more than1 hour for the agency to 
monitor are covered by fee categories 1 through 6 set out in the 
following paragraphs (d)(2)(i) through (vi) of this section.
    (i) Category 1: Minimal Impact: More than 1 hour and up to and 
including 8 hours. This minor category requires more than1 hour and up 
to and including 8 hours for Forest Service personnel to monitor 
compliance with a special use authorization during construction or 
reconstruction of temporary or permanent facilities and rehabilitation 
of the construction or reconstruction site.
    (ii) Category 2: More than 8 and up to and including 24 hours. This 
minor category requires more than 8 and up to and including 24 hours for 
Forest Service personnel to monitor compliance with a special use 
authorization during construction or reconstruction of temporary or 
permanent facilities and rehabilitation of the construction or 
reconstruction site.
    (iii) Category 3: More than 24 and up to and including 36 hours. 
This minor category requires more than 24 and up to and including 36 
hours for Forest Service personnel to monitor compliance with a special 
use authorization during construction or reconstruction of temporary or 
permanent facilities and rehabilitation of the construction or 
reconstruction site.
    (iv) Category 4: More than 36 and up to and including 50 hours. This 
minor category requires more than 36 and up to and including 50 hours 
for Forest Service personnel to monitor compliance with a special use 
authorization during construction or reconstruction of temporary or 
permanent facilities and rehabilitation of the construction or 
reconstruction site.
    (v) Category 5: Master agreements. The Forest Service and the holder 
of an authorization may enter into a master agreement for the agency to 
recover monitoring costs associated with a particular authorization or 
by a group of authorizations for a specified geographic area. This 
category is minor if 50 hours or less are needed for Forest Service 
personnel to monitor compliance with an authorization and major if more 
than 50 hours are needed. In signing a master agreement for a major 
category authorization issued under authorities other than the Mineral 
Leasing Act, a holder waives the right to request a reduction of the 
monitoring fee based upon the reasonableness factors enumerated in 
paragraph (d)(1)(ii)(A) of this section. A master agreement shall at a 
minimum include:
    (A) The fee category or estimated monitoring costs;
    (B) A description of the method for periodic billing, payment, and 
auditing of monitoring fees;
    (C) A description of the geographic area covered by the agreement;
    (D) A monitoring work plan and provisions for updating the work 
plan;
    (E) Provisions for reconciling differences between estimated and 
final monitoring costs; and
    (F) Provisions for terminating the agreement.
    (vi) Category 6: More than 50 hours. This major category requires 
more than 50 hours for Forest Service personnel to monitor compliance 
with the terms and conditions of the authorization during all phases of 
its term, including, but not limited, to monitoring compliance with the 
authorization during the construction or reconstruction of temporary or 
permanent facilities and rehabilitation of the construction or 
reconstruction site.
    (3) Billing and payment of monitoring fees. (i) The authorized 
officer shall estimate the monitoring costs and shall notify the holder 
of the required fee. Monitoring fees in minor categories 1 through 4 
must be paid in full before or

[[Page 275]]

at the same time the authorization is issued. For authorizations in 
major category 5 and category 6, the estimated monitoring fees must be 
paid in full before or at the same time the authorization is issued, 
unless the authorized officer and the applicant or holder agree in 
writing to periodic payments.
    (ii) For category 5 cases, when the estimated monitoring costs are 
lower than the final monitoring costs for authorizations covered by a 
master agreement, the holder shall pay the difference between the 
estimated and final monitoring costs.
    (iii) For category 6 cases, when the estimated monitoring fee is 
lower than the full actual costs of monitoring an authorization issued 
under the Mineral Leasing Act, or lower than the full reasonable costs 
(when the holder has not waived payment of reasonable costs) of 
monitoring an authorization issued under other authorities, the holder 
shall pay the difference in the next periodic payment or the authorized 
officer shall bill the holder for the difference between the estimated 
and full actual or reasonable monitoring costs. Payment shall be due 
within 30 days of receipt of the bill.
    (4) Refunds of monitoring fees. (i) Monitoring fees in minor 
categories 1 through 4 are nonrefundable and shall not be reconciled.
    (ii) For category 5 cases, if payment of the monitoring fee exceeds 
the agency's final monitoring costs for the authorizations covered by a 
master agreement, the authorized officer shall either adjust the next 
periodic payment to reflect the overpayment or refund the excess payment 
to the holder.
    (iii) For category 6 cases, if payment of the monitoring fee exceeds 
the full actual costs of monitoring an authorization issued under the 
Mineral Leasing Act, or the full reasonable costs (when the holder has 
not waived payment of reasonable costs) of monitoring an authorization 
issued under other authorities, the authorized officer shall either 
adjust the next periodic payment to reflect the overpayment or refund 
the excess payment to the holder.
    (e) Applicant and holder disputes concerning processing or 
monitoring fee assessments; requests for changes in fee categories or 
estimated costs. (1) If an applicant or holder disagrees with the 
processing or monitoring fee category assigned by the authorized officer 
for a minor category or, in the case of a major processing or monitoring 
category, with the estimated dollar amount of the processing or 
monitoring costs, the applicant or holder may submit a written request 
before the disputed fee is due for substitution of an alternative fee 
category or alternative estimated costs to the immediate supervisor of 
the authorized officer who determined the fee category or estimated 
costs. The applicant or holder must provide documentation that supports 
the alternative fee category or estimated costs.
    (2) In the case of a disputed processing fee:
    (i) If the applicant pays the full disputed processing fee, the 
authorized officer shall continue to process the application during the 
supervisory officer's review of the disputed fee, unless the applicant 
requests that the processing cease.
    (ii) If the applicant fails to pay the full disputed processing fee, 
the authorized officer shall suspend further processing of the 
application pending the supervisory officer's determination of an 
appropriate processing fee and the applicant's payment of that fee.
    (3) In the case of a disputed monitoring fee:
    (i) If the applicant or holder pays the full disputed monitoring 
fee, the authorized officer shall issue the authorization or allow the 
use and occupancy to continue during the supervisory officer's review of 
the disputed fee, unless the applicant or holder elects not to exercise 
the authorized use and occupancy of National Forest System lands during 
the review period.
    (ii) If the applicant or holder fails to pay the full disputed 
monitoring fee, the authorized officer shall not issue the applicant a 
new authorization or shall suspend the holder's existing authorization 
in whole or in part pending the supervisory officer's determination of 
an appropriate monitoring fee and the applicant's or holder's payment of 
that fee.

[[Page 276]]

    (4) The authorized officer's immediate supervisor shall render a 
decision on a disputed processing or monitoring fee within 30 calendar 
days of receipt of the written request from the applicant or holder. The 
supervisory officer's decision is the final level of administrative 
review. The dispute shall be decided in favor of the applicant or holder 
if the supervisory officer does not respond to the written request 
within 30 days of receipt.
    (f) Waivers of processing and monitoring fees. (1) All or part of a 
processing or monitoring fee may be waived, at the sole discretion of 
the authorized officer, when one or more of the following criteria are 
met:
    (i) The applicant or holder is a local, State, or Federal 
governmental entity that does not or would not charge processing or 
monitoring fees for comparable services the applicant or holder provides 
or would provide to the Forest Service;
    (ii) A major portion of the processing costs results from issues not 
related to the project being proposed;
    (iii) The application is for a project intended to prevent or 
mitigate damage to real property, or to mitigate hazards or dangers to 
public health and safety resulting from an act of God, an act of war, or 
negligence of the United States;
    (iv) The application is for a new authorization to relocate 
facilities or activities to comply with public health and safety or 
environmental laws and regulations that were not in effect at the time 
the authorization was issued;
    (v) The application is for a new authorization to relocate 
facilities or activities because the land is needed by a Federal agency 
or for a Federally funded project for an alternative public purpose; or
    (vi) The proposed facility, project, or use will provide, without 
user or customer charges, a valuable benefit to the general public or to 
the programs of the Sec. etary of Agriculture.
    (2) An applicant's or holder's request for a full or partial waiver 
of a processing or monitoring fee must be in writing and must include an 
analysis that demonstrates how one or more of the criteria in paragraphs 
(f)(1)(i) through (f)(1)(vi) of this section apply.
    (g) Exemptions from processing or monitoring fees. No processing or 
monitoring fees shall be charged when the application or authorization 
is for a:
    (1) Noncommercial group use as defined in Sec. 251.51, or when the 
application or authorization is to exempt a noncommercial activity from 
a closure order, except for an application or authorization for access 
to non-Federal lands within the boundaries of the National Forest System 
granted pursuant to section 1323(a) of the Alaska National Interest 
Lands Conservation Act (16 U.S.C. 3210(a)).
    (2) Water systems authorized by section 501(c) of the Federal Land 
Policy and Management Act of 1976 (43 U.S.C. 1761(c)).
    (3) A use or activity conducted by a Federal agency that is not 
authorized under Title V of the Federal Land Policy and Management Act 
of 1976 (43 U.S.C. 1761-1771); the Mineral Leasing Act of 1920 (30 
U.S.C. 185); the National Historic Preservation Act of 1966 (16 U.S.C. 
470h-2); or the Act of May 26, 2000 (16 U.S.C. 460l-6d).
    (4) Recreation special use as defined in the Forest Service's 
directive system and requires 50 hours or less for Forest Service 
personnel to process, except for situations involving multiple 
recreation special use applications provided for in paragraph (c)(3) of 
this section. No monitoring fees shall be charged for a recreation 
special use authorization that requires 50 hours or less for Forest 
Service personnel to monitor.
    (h) Appeal of decisions. (1) A decision by the authorized officer to 
assess a processing or monitoring fee or to determine the fee category 
or estimated costs is not subject to administrative appeal.
    (2) A decision by an authorized officer's immediate supervisor in 
response to a request for substitution of an alternative fee category or 
alternative estimated costs likewise is not subject to administrative 
appeal.
    (i) Processing and monitoring fee schedules. (1) The Forest Service 
shall maintain schedules for processing and monitoring fees in its 
directive system (36 CFR 200.4). The rates in the schedules shall be 
updated annually by using the annual rate of change, second quarter

[[Page 277]]

to second quarter, in the Implicit Price Deflator-Gross Domestic Product 
(IPD-GDP) index. The Forest Service shall round the changes in the rates 
either up or down to the nearest dollar.
    (2) Within 5 years of the effective date of this rule, March 23, 
2006, the Forest Service shall review these rates:
    (i) To determine whether they are commensurate with the actual costs 
incurred by the agency in conducting the processing and monitoring 
activities covered by this rule and
    (ii) To assess consistency with processing and monitoring fee 
schedules established by the United States Department of the Interior, 
Bureau of Land Management.

[71 FR 8913, Feb. 21, 2006]



Sec. 251.59  Transfer of authorized improvements.

    If the holder, through death, voluntary sale, transfer, or through 
enforcement of a valid legal proceeding or operation of law, ceases to 
be the owner of the authorized improvements, the authorization 
terminates upon change of ownership. Except for easements issued under 
authorities other than Sec. 251.53(e) and leases and easements under 
Sec. 251.53(l) of this subpart, the new owner of the authorized 
improvements must apply for and receive a new special use authorization. 
The new owner must meet requirements under applicable regulations of 
this subpart and agree to comply with the terms and conditions of the 
authorization and any new terms and conditions warranted by existing or 
prospective circumstances.

[63 FR 65967, Nov. 30, 1998]



Sec. 251.60  Termination, revocation, and suspension.

    (a) Grounds for termination, revocation, and suspension--(1) 
Noncommercial group uses. (i) Revocation or suspension. An authorized 
officer may revoke or suspend a special use authorization for a 
noncommercial group use only under one of the following circumstances:
    (A) Under the criteria for which an application for a special use 
authorization may be denied under Sec. 251.54(h)(1);
    (B) For noncompliance with applicable statutes or regulations or the 
terms and conditions of the authorization;
    (C) For failure of the holder to exercise the rights or privileges 
granted; or
    (D) With the consent of the holder.
    (ii) Administrative or judicial review. Revocation or suspension of 
a special use authorization under this paragraph constitutes final 
agency action and is immediately subject to judicial review.
    (iii) Termination. A special use authorization for a noncommercial 
group use terminates when it expires by its own terms. Termination of a 
special use authorization under this paragraph does not involve agency 
action and is not subject to administrative or judicial review.
    (2) All other special uses. (i) Revocation or suspension. An 
authorized officer may revoke or suspend a special use authorization for 
all other special uses, except an easement issued pursuant to Sec. 
251.53 (e) and (l):
    (A) For noncompliance with applicable statutes, regulations, or the 
terms and conditions of the authorization;
    (B) For failure of the holder to exercise the rights or privileges 
granted;
    (C) With the consent of the holder; or
    (D) At the discretion of the authorized officer for specific and 
compelling reasons in the public interest.
    (ii) Administrative review. Except for revocation or suspension of 
an easement issued pursuant to Sec. 251.53 (e) and (l) of this subpart, 
a suspension or revocation of a special use authorization under this 
paragraph is subject to administrative appeal and review in accordance 
with 36 CFR part 251, subpart C, of this chapter.
    (iii) Termination. For all special uses except noncommercial group 
uses, a special use authorization terminates when, by its terms, a fixed 
or agreed-upon condition, event, or time occurs. Termination of a 
special use authorization under this paragraph does not involve agency 
action and is not subject to administrative or judicial review.
    (b) For purposes of this section, the authorized officer is that 
person who issues the authorization or that officer's successor.
    (c) A right-of-way authorization granted to another Federal agency 
will

[[Page 278]]

be limited, suspended, revoked, or terminated only with that agency's 
concurrence.
    (d) A right-of-way authorization serving another Federal agency will 
be limited, suspended, revoked, or terminated only after advance notice 
to, and consultation with, that agency.
    (e) Except when immediate suspension pursuant to paragraph (f) of 
this section is indicated, the authorized officer shall give the holder 
written notice of the grounds for suspension or revocation under 
paragraph (a) of this section and reasonable time to cure any 
noncompliance, prior to suspension or revocation pursuant to paragraph 
(a) of this section.
    (f) Immediate suspension of a special use authorization, in whole or 
in part, may be required when the authorized officer deems it necessary 
to protect the public health or safety or the environment. In any such 
case, within 48 hours of a request of the holder, the superior of the 
authorized officer shall arrange for an on-site review of the adverse 
conditions with the holder. Following this review, the superior officer 
shall take prompt action to affirm, modify, or cancel the suspension.
    (g) The authorized officer may suspend or revoke easements issued 
pursuant to Sec. 251.53 (e) and (l) of this subpart under the Rules of 
Practice Governing Formal Adjudicatory Administrative Proceedings 
instituted by the Sec. etary under 7 CFR 1.130 through 1.151. No 
administrative proceeding shall be required if the easement, by its 
terms, provides that it terminates on the occurrence of a fixed or 
agreed-upon condition, event, or time.
    (h)(1) 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:
    (i) By consent of the owner of the easement;
    (ii) By condemnation; or
    (iii) Upon abandonment after a 5-year period of nonuse by the owner 
of the easement.
    (2) Before any such easement is revoked for nonuse or 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, an opportunity 
to present relevant information in accordance with the provisions of 36 
CFR part 251, subpart C, of this chapter.
    (i) Upon revocation or termination of a special use authorization, 
the holder must remove within a reasonable time the structures and 
improvements and shall restore the site to a condition satisfactory to 
the authorized officer, unless the requirement to remove structures or 
improvements is otherwise waived in writing or in the authorization. If 
the holder fails to remove the structures or improvements within a 
reasonable period, as determined by the authorized officer, they shall 
become the property of the United States, but holder shall remain liable 
for the costs of removal and site restoration.

[45 FR 38327, June 6, 1980; 45 FR 43167, June 26, 1980, as amended at 48 
FR 28639, June 23, 1983; 60 FR 45295, Aug. 30, 1995; 63 FR 65968, Nov. 
30, 1998]



Sec. 251.61  Modifications.

    (a) A holder shall file a new or amended application for a special 
use authorization to cover new, changed, or additional use(s) or area.
    (1) In approving or denying changes or modifications, the authorized 
officer shall consider among other things, the findings or 
recommendations of other involved agencies and whether the terms and 
conditions of the existing authorization may be continued or revised, or 
a new authorization issued.
    (2) Changes during construction, or at any other time, from the 
approved plans or the location shown in the application or authorization 
shall be allowed only with the prior approval of the authorized officer.
    (b) A holder may be required to furnish as-built plans, map(s), or 
survey(s) upon completion of construction.
    (c) A holder shall obtain prior approval from the authorized officer 
for modifications to approved uses that involve any activity impacting 
the environment, other users, or the public.

[45 FR 38327, June 6, 1980, as amended at 63 FR 65968, Nov. 30, 1998]



Sec. 251.62  Acceptance.

    Except for an easement, a special use authorization shall become 
effective when signed by both the applicant and

[[Page 279]]

the authorized officer. The authorization must be signed by the 
applicant and returned to the authorized officer within 60 days of its 
receipt by the applicant, unless extended by the authorized officer. 
Refusal of an applicant to sign and accept a special use authorization 
within the time allowed, and before its final approval and signature by 
an authorized officer, shall terminate an application and constitute 
denial of the requested use and occupancy.

[53 FR 16550, May 10, 1988]



Sec. 251.63  Reciprocity.

    If it is determined that a right-of-way shall be needed by the 
United States across nonfederal lands directly or indirectly owned or 
controlled by an applicant for a right-of-way across Federal lands, the 
authorized officer may condition a special use authorization to require 
the holder to grant the United States the needed right-of-way.



Sec. 251.64  Renewals.

    (a) When a special use authorization provides for renewal, the 
authorized officer shall renew it where such renewal is authorized by 
law, if the project or facility is still being used for the purpose(s) 
previously authorized and is being operated and maintained in accordance 
with all the provisions of the authorization. In making such renewal, 
the authorized officer may modify the terms, conditions, and special 
stipulations to reflect any new requirements imposed by current Federal 
and State land use plans, laws, regulations or other management 
decisions. Special uses may be reauthorized upon expiration so long as 
such use remains consistent with the decision that approved the expiring 
special use or group of uses. If significant new information or 
circumstances have developed, appropriate environmental analysis must 
accompany the decision to reauthorize the special use.
    (b) When a special use authorization does not provide for renewal, 
it is discretionary with the authorized officer, upon request from the 
holder and prior to its expiration, whether or not the authorization 
shall be renewed. A renewal pursuant to this section shall comply with 
the same provisions contained in paragraph (a) of this section.

[45 FR 38327, June 6, 1980, as amended at 63 FR 65968, Nov. 30, 1998]



Sec. 251.65  Information collection requirements.

    The rules of this subpart governing special use applications (Sec. 
251.54 and Sec. 251.59), terms and conditions (Sec.251.54), rental 
fees (Sec. 251.57), and modifications (Sec.251.61) specify the 
information that proponents or applicants for special use authorizations 
or holders of existing authorizations must provide in order for an 
authorized officer to act on a request or administer the authorization. 
As such, these rules contain information requirements as defined in 5 
CFR part 1320. These information requirements are assigned OMB Control 
Number 0596-0082.

[63 FR 65968, Nov. 30, 1998]



Subpart C_Appeal of Decisions Relating to Occupancy and Use of National 
                           Forest System Lands

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

    Source: 54 FR 3362, Jan. 23, 1989, unless otherwise noted.



Sec. 251.80  Purpose and scope.

    (a) This subpart provides a process by which those who hold or, in 
certain instances, those who apply for written authorizations to occupy 
and use National Forest System lands, may appeal a written decision by 
an authorized Forest Service line officer with regard to issuance, 
approval, or administration of the written instrument. The rules in the 
subpart establish who may appeal under these rules, the kinds of 
decisions that can and cannot be appealed, the responsibilities of 
parties to the appeal, and the various procedures and timeframes that 
will govern the conduct of appeals under this subpart.
    (b) The rules in this subpart seek to offer appellants a fair and 
deliberate

[[Page 280]]

process for appealing and obtaining administrative review of decisions 
regarding written instruments that authorize the occupancy and use of 
National Forest System lands.



Sec. 251.81  Definitions and terminology.

    For the purposes of this subpart, the following terms are defined:
    Appeal. A request to a higher ranking officer for relief from a 
written decision filed under this subpart by an applicant for or a 
holder of a written instrument issued or approved by a Forest Service 
line officer.
    Appeal decision. The written decision rendered by the Reviewing 
Officer on an appeal for relief under this subpart. The use of this term 
is limited to the final decision of a Reviewing Officer and does not 
refer to a stay decision or to any other determinations or procedural 
orders made on the conduct of an appeal (Sec. 251.99).
    Appeal record. The documents submitted to the Reviewing Officer by 
an appellant, intervenor, or Deciding Officer (Sec. 251.98).
    Appellant. An eligible applicant for or holder of a written 
instrument issued for the occupancy and use of National Forest System 
land (or their authorized agent or representative) who files an appeal 
pursuant to the provisions of this subpart (Sec. 251.86).
    Deciding officer. The Forest Service line officer who makes a 
decision related to issuance, approval, or administration of an 
authorization to occupancy and use National Forest System lands that is 
appealed under this subpart.
    Decisions regarding a written instrument or authorization to occupy 
and use National Forest System lands. A broad, all inclusive phrase used 
throughout this subpart to connote the full range of actions and 
decisions a forest officer takes to issue written instruments, or to 
manage authorized uses of National Forest System lands, including, but 
not limited to, enforcement of terms and conditions, and suspension, 
cancellation, and/or termination of an authorization.
    Forest Service line officer. The Chief of the Forest Service or a 
Forest Service official who serves in a direct line of command from the 
Chief and who has the delegated authority to make and execute decisions 
under this subpart. Specifically, for the purposes of this subpart, a 
Forest Service employee who holds one of the following offices and 
titles: District Ranger, Forest Supervisor, Deputy Forest Supervisor, 
Regional Forester, Deputy Regional Forester, Deputy Chief, Associate 
Deputy Chief, Associate Chief, or the Chief of the Forest Service.
    Intervenor. An individual who, or organization that, is an applicant 
for or holder of the written instrument, or a similar instrument, issued 
by the Forest Service that is the subject of an appeal, and who has an 
interest that could be affected by an appeal, and who has made a timely 
request to intervene in that appeal, and who has been granted intervenor 
status by the Reviewing Officer (Sec. 251.96).
    Issuance of a written instrument of authorization. Applies both to 
decisions to grant and to deny a written instrument or authorization.
    Notice of appeal. The document prepared and filed by an appellant to 
dispute a decision subject to review under this subpart (Sec. 251.90).
    Oral presentation. An informal meeting (in person or by telephone) 
at which an appellant, intervenor, and/or Deciding Officer may present 
information related to an appeal to the Reviewing Officer (Sec. 
251.97).
    Parties to an appeal. The appellant(s), intervenor(s), and the 
Deciding Officer.
    Responsive statement. A written document prepared by a Deciding 
Officer that responds to the notice of appeal record by an appellant 
(Sec. 251.94).
    Reviewing Officer. The officer at the next administrative level 
above that of the Deciding Officer who conducts appeal proceedings, 
makes all necessary rulings regarding conduct of an appeal, and issues 
the appeal decision.
    Written instrument or authorization. Any of those kinds of documents 
listed in Sec. 251.82 of this subpart issued or approved by the Forest 
Service authorizing an individual, organization or other entity to 
occupy and use National Forest System lands and resources.

[54 FR 3362, Jan. 23, 1989; 54 FR 13807, Apr. 5, 1989]

[[Page 281]]



Sec. 251.82  Appealable decisions.

    (a) The rules of this subpart govern appeal of written decisions of 
Forest Service line officers related to issuance, denial, or 
administration of the following written instruments to occupy and use 
National Forest System lands, including but not limited to:
    (1) Permits for ingress and egress to intermingled and adjacent 
private lands across National Forest System lands, 36 CFR 212.8 and 
212.10.
    (2) Permits and occupancy agreements on National Grasslands and 
other lands administered under the provisions of title III of Bankhead-
Jones Farm Tenant Act issued under 36 CFR 213.3.
    (3) Grazing and livestock use permits issued under 36 CFR part 222, 
subpart A.
    (4) Mining plans of operation under 36 CFR part 228, subpart A.
    (5) Mining operating plans for the Sawtooth National Recreation Area 
issued under 36 CFR 292.17 and 292.18.
    (6) Permits and agreements regarding mineral materials (petrified 
wood and common varieties of sand, gravel, stone, pumice, pumicite, 
cinder, clay and other similar materials) under 36 CFR 228, subpart C.
    (7) Permits authorizing exercise of mineral rights reserved in 
conveyance to the United States issued under 36 CFR part 251, subpart A.
    (8) Special use authorizations issued under 36 CFR part 251, subpart 
B, except, as provided in Sec. 251.60(g), for suspension or termination 
of easements issued pursuant to 36 CFR 251.53(e) and (e)(1).
    (9) Permits for uses in Wilderness Areas issued under 36 CFR 293.3.
    (10) Permits to excavate and/or remove archaeological resources 
issued under the Archaeological Resources Protection Act 1979 and 36 CFR 
part 296.
    (11) Approval/non-approval of Surface Use Plans of Operations 
related to the authorized use and occupancy of a particular site or 
area.
    (12) Decisions related to the standards for the use, subdivision, 
and development of privately owned property within the boundaries of the 
Sawtooth National Recreation Area pursuant to 36 CFR part 292, subpart 
C.
    (b) Written decisions on any of the matters of the type listed in 
paragraph (a) of this section issued by a Forest Service staff officer 
with delegated authority to act for a Forest Service line officer are 
considered to be decisions of the line officer.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]



Sec. 251.83  Decisions not appealable.

    The following decisions are not appealable under this subpart:
    (a) Decisions appealable to the Agriculture Board of Contract 
Appeals, USDA, under 7 CFR part 24.
    (b) Decisions involving Freedom of Information Act denials under 7 
CFR part 1 or Privacy Act determinations under 7 CFR 1.118.
    (c) Decisions for which the jurisdiction of another Government 
agency, the Comptroller General, or a court to hear and settle disputes 
supersedes that of the Department of Agriculture.
    (d) Recommendations of Forest Service line officers to higher 
ranking Forest Service line officers or to other entities having final 
authority to implement the recommendation in question.
    (e) Decisions appealable under separate administrative proceedings, 
including, but not limited to, those under 36 CFR 223.117 
(Administration of Cooperative for Federal Sustained Yield Units); 7 CFR 
21.104 (Eligibility for Recreation Payment of Amount); and 4 CFR part 21 
(Bid Protests).
    (f) Decisions pursuant to Office of Management and Budget Circular 
A-76, Performance of Commercial Activities.
    (g) Decisions concerning contracts under the Federal Property and 
Administrative Services Act of 1949, as amended.
    (h) Decisions covered by the Contract Disputes Act.
    (i) Decisions involving Agency personnel matters.
    (j) Decisions where relief sought is reformation of a contract or 
award of monetary damages.
    (k) Decisions made during the preliminary planning process pursuant 
to 36 CFR part 219 and 40 CFR parts 1500-1508 that precede decisions to 
implement the proposed action.

[[Page 282]]

    (l) Decisions related to National Forest land and resource 
management plans and projects only reviewable under 36 CFR part 217.
    (m) Decisions related to rehabilitation of National Forest System 
lands and recovery of forest resources resulting from natural disasters 
or other natural phenomena such as wildfires, severe wind, earthquakes, 
and flooding when the Regional Forester or, in situations of national 
significance, the Chief of the Forest Service determines and gives 
notice that good cause exists to exempt such decisions from appeal under 
this subpart.
    (n) Decisions imposing penalties for archaeological violations under 
36 CFR 296.15 or for violations of prohibitions and orders under 36 CFR 
part 261.
    (o) Reaffirmation of prior decisions.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]



Sec. 251.84  Obtaining notice.

    (a) A Deciding Officer shall promptly give written notice of 
decisions subject to appeal under this subpart to applicants and holders 
defined in Sec. 251.86 of this subpart and to any holder of like 
instruments who has made a written request to be notified of a specific 
decision. The notice shall include a statement of the Deciding Officer's 
willingness to meet with applicants or holders to hear and discuss any 
concerns or issues related to the decision (Sec. 251.93). The notice 
shall also specify the name of the officer to whom an appeal of the 
decision may be filed, the address, and the deadline for filing an 
appeal.
    (b) In States with Department of Agriculture certified mediation 
programs, a Deciding Officer shall also give written notice of the 
opportunity for the affected term grazing permit holder to request 
mediation of decisions to suspend or cancel term grazing permits, in 
whole or in part, pursuant to 36 CFR 222.4(a)(2)(i), (ii), (iv), (v) and 
(a)(3) through (a)(6). Such notice must inform the permit holder that, 
if mediation is desired, the permit holder must request mediation as 
part of the filing of an appeal.

[54 FR 3362, Jan. 23, 1989, as amended at 64 FR 37846, July 14, 1999]



Sec. 251.85  Election of appeal process.

    (a) No decision can be appealed by the same person under both this 
subpart and part 217 of this chapter.
    (b) Should a decision be reviewable under this subpart as well as 
part 217 of this chapter, a party who qualifies to bring an appeal under 
this subpart can elect which process to use for obtaining review of a 
decision, but in so doing, the appellant thereby forfeits all right to 
appeal the same decision under the other review process. However, a 
holder who waives the right to appeal under the provisions of 36 CFR 
part 217 may intervene pursuant to 36 CFR 217.6(b).



Sec. 251.86  Parties.

    Only the following may participate in the appeals process provided 
under this subpart:
    (a) An applicant who, in response to a prospectus or written 
solicitation or other notice by the Forest Service, files a formal 
written request for a written authorization to occupy and use National 
Forest System land covered under Sec. 251.82 of this subpart and
    (1) Was denied the authorization, or
    (2) Was offered an authorization subject to terms and conditions 
that the applicant finds unreasonable or impracticable.
    (b) The signatory(ies) or holder(s) of a written authorization to 
occupy and use National Forest System land covered under Sec. 251.82 of 
this subpart who seeks relief from a written decision related to that 
authorization.
    (c) An intervenor as defined in Sec. 251.81 of this subpart.
    (d) The Deciding Officer who made the decision being appealed under 
this subpart.



Sec. 251.87  Levels of appeal.

    (a) Decisions made by the Chief. If the Chief of the Forest Service 
is the Deciding Officer, the appeal is to the Sec. etary of Agriculture. 
Review by the Sec. etary is discretionary. Within 15 calendar days of 
receipt of a timely notice of appeal, the Sec. etary shall determine 
whether or not to review the decision. If the Sec. etary has not decided 
to review the Chief's decision by the expiration of the 15-day period, 
the requester(s) shall be notified by the

[[Page 283]]

Sec. etary's office that the Chief's decision is the final administrative 
decision of the Department of Agriculture. When the Sec. etary elects to 
review an initial decision made by the Chief, the Sec. etary shall 
conduct the review in accordance with the first level appeal procedures 
outlined in this rule.
    (b) Decisions made By Forest Supervisors and Regional Foresters. 
Only one level of appeal is available on written decisions by Forest 
Service line officers below the level of the Chief and above the level 
of the District Ranger. The levels of available appeal are as follows:
    (1) If the decision is made by a Forest Supervisor, the appeal is 
filed with the Regional Forester;
    (2) If the decision is made by a Regional Forester, the appeal is 
filed with the Chief of the Forest Service.
    (c) Decisions made by the District Ranger. Two levels of appeal are 
available for written decisions by District Rangers.
    (1) The appeal for initial review is filed with the Forest 
Supervisor.
    (2) The appeal for a second level of review is filed with the 
Regional Forester within 15 days of the first level appeal decision. 
Upon receiving such a request, the Regional Forester shall promptly 
request the first level file from the Forest Supervisor. The review 
shall be conducted on the existing record and no additional information 
shall be added to the file.
    (d) Discretionary review of dismissal decisions. Dismissal decisions 
rendered by Forest Service line officers pursuant to this part (Sec. 
251.92) are subject to only one level of discretionary review (Sec. 
251.100) as follows:
    (1) If the Reviewing Officer was the Forest Supervisor, the Regional 
Forester has discretion to review.
    (2) If the Reviewing Officer was the Regional Forester, the Chief 
has discretion to review.
    (3) If the Reviewing Officer was the Chief, the Sec. etary of 
Agriculture has discretion to review.
    (e) Discretionary review of appeal decisions. Appeal decisions 
rendered by Regional Foresters and the Chief pursuant to this part are 
subject to only one level of discretionary review as follows:
    (1) If the Reviewing Officer is the Regional Forester, the Chief of 
the Forest Service has discretion to review.
    (2) If the Reviewing Officer is Chief, the Sec. etary of Agriculture 
has discretion to review.
    (3) A Regional Forester's decision on a second-level appeal 
constitutes the final administrative determination of the Department of 
Agriculture on the appeal and is not subject to further review by a 
higher level officer under this subpart.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]



Sec. 251.88  Filing procedures.

    (a) Filing procedures. In order to appeal a decision under this 
subpart, an appellant must:
    (1) File a notice of appeal in accordance with Sec. 251.90 of this 
subpart with the next higher line officer as identified in Sec. 251.87.
    (2) File the notice of appeal within 45 days of the date on the 
notice of the written decision being appealed (Sec. 251.84); and
    (3) Simultaneously send a copy of the notice of appeal to the 
Deciding Officer.
    (b) Evidence of timely filing. 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 will be considered 
evidence of timely filing. Where postmarks are illegible, the Reviewing 
Officer shall rule on the timeliness of the notice of appeal. Untimely 
submissions are subject to dismissal as provided for in Sec. 
251.92(a)(2).
    (c) Computation of time period for filing. (1) The time period for 
filing a notice of appeal of a decision under this subpart begins on the 
first day after the Deciding Officer's written notice of the decision. 
All other time periods applicable to this subpart also will be computed 
to begin on the first day following an event or action related to the 
appeal.
    (2) Time periods applicable to this subpart 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

[[Page 284]]

holiday the filing time is extended to the end of the next Federal 
working day.



Sec. 251.89  Time extensions.

    (a) Filing of notice of appeal. Time for filing a notice of appeal 
is not extendable.
    (b) All other time periods. Appellants, Intervenors, Deciding 
Officers, and Reviewing Officers shall meet the time periods specified 
in the rules of this subpart, unless a Reviewing Officer has extended 
the time as provided in this paragraph. Except as noted in paragraph (a) 
of this section and as prohibited at the discretionary review level 
(Sec. 251.100), the Reviewing Officer may extend all other time periods 
under this subpart.
    (1) For appeals of initial written decisions by the Chief, a 
Regional Forester, or a Forest Supervisor, a Reviewing Officer, where 
good cause exists, may grant a written request for extension of time to 
file a responsive statement or replies thereto. The Reviewing Officer 
shall rule on requests for extensions within 10 days of receipt of the 
request and shall provide written notice of the extension ruling to all 
parties to the appeal.
    (2) Except for discretionary reviews of appeal decisions as provided 
in Sec. 251.100 of this subpart, a Reviewing Officer may extend the 
time period for issuance of the appeal decision, including for purposes 
of allowing additional time for the Deciding Officer to resolve disputed 
issues, as provided in Sec. 251.93 of this subpart.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]



Sec. 251.90  Content of notice of appeal.

    (a) It is the responsibility of an appellant to provide a Reviewing 
Officer sufficient narrative evidence and argument to show why a 
decision by a lower level officer should be reversed or changed.
    (b) An appellant must include the following information in a notice 
of appeal:
    (1) The appellant's name, mailing address, and daytime telephone 
number;
    (2) The title or type of written instrument involved, the date of 
application for or issuance of the written instrument, and the name of 
the responsible Forest Service Officer;
    (3) A brief description and the date of the written decision being 
appealed;
    (4) A statement of how the appellant is adversely affected by the 
decision being appealed;
    (5) A statement of the facts of the dispute and the issue(s) raised 
by the appeal;
    (6) Specific references to any law, regulation, or policy that the 
appellant believes to be violated and the reason for such an allegation.
    (7) A statement as to whether and how the appellant has tried to 
resolve the issue(s) being appealed with the Deciding Officer, the date 
of any discussion, and the outcome of that meeting or contact; and
    (8) A statement of the relief the appellant seeks.
    (c) An appellant may also include one or more of the following in a 
notice of appeal: a request for oral presentation (Sec. 251.97); a 
request for stay of implementation of the decision pending decision on 
the appeal (Sec. 251.91); or, in those States with a Department of 
Agriculture certified mediation program, a request for mediation of 
grazing permit cancellation or suspensions pursuant to Sec. 251.103.

[54 FR 3362, Jan. 23, 1989; 54 FR 13807, Apr. 5, 1989, as amended at 54 
FR 34510, Aug. 21, 1989; 64 FR 37846, July 14, 1999]



Sec. 251.91  Stays.

    (a) A decision may be implemented during the appeal process, unless 
the Reviewing Officer grants a stay or unless a term grazing permit 
holder appeals a decision and simultaneously requests mediation pursuant 
to Sec. 251.103. In the case of mediation requests, a stay is granted 
automatically upon receipt of the notice of appeal for the duration of 
the mediation period as provided in Sec. 251.103.
    (b) An appellant or intervenor may request a stay of a decision at 
any time while an appeal is pending, if the harmful effects alleged 
pursuant to paragraph (c)(3) of this section would occur during pendency 
of the appeal. The Reviewing Officer shall not accept any request to 
stay implementation of a decision that is not scheduled to begin during 
pendency of the appeal.

[[Page 285]]

    (c) To request a stay of decision, an appellant or intervenor must--
    (1) File a written request with the Reviewing Officer;
    (2) Simultaneously send a copy of the stay request to any other 
appellant(s), to intervenor(s), and to the Deciding Officer.
    (3) Provide a written justification of the need for a stay, which at 
a minimum includes the following:
    (i) A description of the specific project(s), activity(ies), or 
action(s) to be stopped.
    (ii) Specific reasons why the stay should be granted in sufficient 
detail to permit the Reviewing Officer to evaluate and rule upon the 
stay request, including at a minimum:
    (A) The specific adverse effect(s) upon the requester;
    (B) Harmful site-specific impacts or effects on resources in the 
area affected by the activity(ies) to be stopped, and
    (C) How the cited effects and impacts would prevent a meaningful 
decision on the merits.
    (d) A Deciding Officer and other parties to an appeal may provide 
the Reviewing Officer with a written response to a stay request. A copy 
of any response must be sent to all parties to the appeal.
    (e) Timeframe. The Reviewing Officer must rule on a stay request no 
later than 10 calendar days from receipt.
    (f) Criteria to consider. In deciding a stay request, a Reviewing 
Officer shall consider:
    (1) Information provided by the requester pursuant to paragraph (c) 
of this section including the validity of any claim of adverse effect on 
the requester;
    (2) The effect that granting a stay would have on preserving a 
meaningful appeal on the merits;
    (3) Any information provided by the Deciding Officer or other party 
to the appeal in response to the stay request; and
    (4) Any other factors the Reviewing Officer considers relevant to 
the decision.
    (g) Notice of decision on a stay request. A Reviewing Officer must 
issue a written decision on a stay request.
    (1) If a stay is granted, the stay shall specify the specific 
activities to be stopped, duration of the stay, and reasons for granting 
the stay.
    (2) If a stay is denied in whole or in part, the decision shall 
specify the reasons for the denial.
    (3) A copy of a decision on a stay request shall be sent to all 
parties to the appeal.
    (h) Duration. A stay shall remain in effect for the 15-day period 
for determining discretionary review (Sec. 251.100), unless changed by 
the Reviewing Officer in accordance with paragraph (i) of this section.
    (i) Change in a stay. A Reviewing Officer may change a stay decision 
in accordance with any terms established in the stay decision itself or 
at any time during pendency of an appeal that circumstances support a 
change of stay. In making any changes to a stay decision, the Reviewing 
Officer must issue a written notice to all parties to the appeal 
explaining the reason for making the changes and setting forth any terms 
or conditions that apply to the change.
    (j) Petitions to change a stay. An appellant or intervenor may 
petition a Reviewing Officer to change or lift a stay at any time during 
the pendency of an appeal. Such petitions must be in writing, must 
explain how circumstances have changed since the stay was imposed, and 
must state why the change in the stay is being requested. The petitioner 
must send a copy of the petition to all parties to the appeal.
    (k) Appeal of stay decision or changes in stay. A Reviewing 
Officer's decision to grant, deny, lift, or otherwise change a stay is 
not subject to further appeal and review, except when the first-level 
Reviewing Officer was the Forest Supervisor. In this instance, the 
Regional Forester has discretion to review.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989; 64 
FR 37846, July 14, 1999]



Sec. 251.92  Dismissal.

    (a) The Reviewing Officer shall dismiss an appeal and close the 
record without a decision on the merits when:

[[Page 286]]

    (1) The appellant is not eligible to appeal a decision under this 
subpart.
    (2) Appellant's notice of appeal is not filed within the required 
time period, or the notice of appeal fails to meet the minimum 
requirements of Sec. 251.90 of this subpart to such an extent that the 
Reviewing Officer lacks adequate information on which to base a 
decision.
    (3) In cases where there is only one appellant, the appellant 
withdraws the appeal.
    (4) The requested relief cannot be granted under existing law, fact, 
or regulation.
    (5) The decision is excluded from appeal under this subpart (Sec. 
251.83).
    (6) The Deciding Officer has withdrawn the decision under appeal.
    (7) A request for review of the same decision has been filed by the 
same person under part 217 of this chapter.
    (8) A mediated agreement is reached (Sec. 251.103).
    (b) The Reviewing Officer shall give written notice of dismissal 
that includes an explanation of why the appeal is dismissed.
    (c) A Reviewing Officer's dismissal decision is subject to 
discretionary review at the next administrative level as provided for in 
Sec. 251.87(d), except when a dismissal decision results from 
withdrawal of an appeal by an appellant, withdrawal of the initial 
decision by the Deciding Officer, or a mediated resolution of the 
dispute.

[54 FR 3362, Jan. 23, 1989, as amended at 55 FR 7896, Mar. 6, 1990; 64 
FR 37846, July 14, 1999]



Sec. 251.93  Resolution of issues.

    (a) Authorized Forest Service officers shall, to the extent 
practicable and consistent with the public interest, consult and meet in 
person, or by phone, with holders of written instruments prior to 
issuing written decisions related to administration of a written 
authorization. The purpose of such meetings is to discuss any issues or 
concerns related to the authorized use and to reach a common 
understanding and agreement where possible prior to issuance of a 
written decision.
    (b) When decisions are appealed, the Deciding Officer may discuss 
the appeal with the appellant(s) and intervenor(s) together or 
separately to narrow issues, agree on facts, and explore opportunities 
to resolve the issues by means other than review and decision on the 
appeal, including mediation pursuant to Sec. 251.103. At the request of 
the Deciding Officer, the Reviewing Officer may extend the time period 
to allow for meaningful negotiations, except for appeals under review at 
the discretionary level. In the event of mediation of a grazing dispute 
under Sec. 251.103, the Reviewing Officer may extend the time for 
mediation only as provided in Sec. 251.103.
    (c) The Deciding Officer has the authority to withdraw a decision, 
in whole or in part, during the appeal. Where a Deciding Officer decides 
to withdraw a decision, all parties to the appeal and the Reviewing 
Officer must receive written notice.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989; 64 
FR 37846, July 14, 1999]



Sec. 251.94  Responsive statement.

    (a) Content. A responsive statement contains the Deciding Officer's 
response to the specific facts or issues of law or regulation and the 
requested relief set forth by the appellant in the notice of appeal.
    (b) Timeframe. Unless the Reviewing Officer has granted an extension 
or dismissed the appeal, or unless mediation has been requested under 
this subpart, the Deciding Officer shall prepare a responsive statement 
and send it to the Reviewing Officer and all parties to the appeal 
within 30 days of receipt of the notice of appeal. Where mediation 
occurs but fails to resolve the issues, the Deciding Officer shall 
prepare a responsive statement and send it to the Reviewing Officer and 
all parties to the appeal within 30 days of the reinstatement of the 
appeal timeframes (Sec. 251.103(c)).
    (c) Replies. Within 20 days of the postmarked date of the responsive 
statement, the appellant(s) and any intervenor(s) may file a written 
reply to the responsive statement with the Reviewing Officer. Appellants 
and intervenors must send a copy of any reply to a responsive statement 
to all parties to the appeal, including the Deciding Officer.

[54 FR 3362, Jan. 23, 1989, as amended at 64 FR 37846, July 14, 1999]

[[Page 287]]



Sec. 251.95  Authority of reviewing officer.

    (a) Discretion to establish procedures. A Reviewing Officer may 
issue such procedural orders as deemed appropriate to ensure orderly, 
expeditious, and fair conduct of an appeal providing they are consistent 
with other provisions of this part.
    (1) In appeals involving intervenors, the Reviewing Officer may 
prescribe special procedures to conduct the appeal.
    (2) All parties to an appeal shall receive notice of any orders or 
decisions on the conduct of the appeal.
    (3) Orders and determinations governing the conduct of an appeal are 
not subject to appeal and further review.
    (b) Consolidation of appeals. A Reviewing Officer may consolidate 
multiple appeals of the same decision, or of similar decisions involving 
common issues of fact or law and issue one appeal decision. Similarly, a 
Reviewing Officer may issue one decision in cases involving separate 
reviews filed pursuant to 36 CFR part 217 and under this part when the 
decision at issue is the same decision. In such case, the Reviewing 
Officer shall give notice to all parties to multiple appeals.
    (1) A decision to consolidate appeals is not subject to appeal and 
further review.
    (2) At the discretion of the Reviewing Officer, the Deciding Officer 
may prepare one responsive statement to multiple appeals.
    (c) Requests for additional information. Except in discretionary 
review conducted pursuant to Sec. 251.100 and second level appeals of 
decisions made by the District Ranger pursuant to Sec. 251.87(c) of 
this subpart, the Reviewing Officer may ask any party to an appeal for 
additional information as deemed necessary to decide the appeal. Such 
requests will be limited to obtaining and evaluating information needed 
to clarify issues raised. The Reviewing Officer shall notify all parties 
of the request for information, provide it to all parties, give 
opportunity to comment, and extend time periods if necessary to allow 
for submission of the information.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989; 55 
FR 7896, Mar. 6, 1990]



Sec. 251.96  Intervention.

    (a) A request to intervene in an appeal may be made at any time 
prior to the closing of the appeal record (Sec. 251.98) at the first 
level of appeal (Sec. 251.87). Requests to intervene in an appeal at 
the discretionary review level (Sec. 251.87(d)) shall be denied.
    (b) To request intervention in a first-level appeal under this 
subpart, a party, at a minimum, must:
    (1) Submit a written petition to intervene to the Reviewing Officer,
    (2) Be, as defined at Sec. 251.81 of this subpart, an applicant for 
or holder of a written instrument issued by the Forest Service that is 
the subject of or affected by the appeal, and have an interest that 
could be directly affected by a decision on the appeal, and
    (3) Show, in the request for intervention, how the decision on the 
appeal would directly affect petitioner's interests.
    (c) The Reviewing Officer determines whether a party requesting 
intervention meets the requirements of paragraph (a) of this section. In 
granting intervention, the Reviewing Officer must give notice to all 
other parties to the appeal.
    (d) A granting or denial of intervention is not subject to appeal to 
a higher level.
    (e) Appellants and intervenors must concurrently furnish copies of 
all submissions to each other as well as the Deciding Officer. Failure 
to provide each other copies may result in removal of a submission from 
the appeal record. At the discretion of the Reviewing Officer, 
appellants may be given additional time to review and comment on initial 
submissions by intervenors.
    (f) An intervenor cannot continue an appeal if the appellant 
withdraws the appeal.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]



Sec. 251.97  Oral presentation.

    (a) Purpose. An oral presentation provides an additional opportunity 
for an appellant, and other parties to an appeal, to present their 
viewpoints to the

[[Page 288]]

Reviewing Officer. The purpose is to restate, emphasize, and/or clarify 
information related to an appeal. Oral presentations are to be conducted 
in an informal manner and shall not be subject to formal rules of 
procedure such as those applicable to judicial proceedings.
    (b) Requests. Only an appellant may request and be granted an oral 
presentation. An appellant may request an oral presentation at any time 
prior to closing of the appeal record (Sec. 251.98). A Reviewing 
Officer shall automatically grant an oral presentation if the appellant 
requested the presentation as part of the notice of appeal.
    (c) Participation. At the discretion of the Reviewing Officer, oral 
presentations may be open to public attendance, but participation is 
limited to parties to the appeal. The Reviewing Officer shall advise all 
parties to the appeal, including the Deciding Officer, of the place, 
time, and date of the oral presentation, and how the oral presentation 
will be conducted. All parties to an appeal shall be invited to 
participate. Appellants and intervenors must bear any expense involved 
in making an oral presentation in person or by telephone.
    (d) Limitation. Oral presentations shall be held only at the first 
level of appeal (Sec. 251.87(b)).



Sec. 251.98  Appeal record.

    The following rules apply only to the appeal record for appeals at 
the first level (Sec. 251.87 (a), (b)):
    (a) It is the responsibility of the Reviewing Officer to maintain in 
one location the documents related to the appeal.
    (b) The record consists of the documents filed with the Reviewing 
Officer including, but not limited to, the notice of appeal, responsive 
statement, replies to submissions by various parties to the appeal, 
orders and determinations made on the conduct of the appeal, and 
correspondence.
    (c) The Reviewing Officer has discretion to remove from the record 
documents that were not sent to all parties to an appeal.
    (d) Unless the Reviewing Officer has ordered otherwise, the appeal 
record closes with the expiration of the time period for filing of the 
reply(ies) to the responsive statement, or at the conclusion of an oral 
presentation, if there is one. The Reviewing Officer shall notify all 
parties to an appeal of the closure of the record.
    (e) The appeal record is open to public inspection.
    (f) In appeals involving initial decisions of the Chief (Sec. 
251.87(a)), the establishment of an administrative record as defined in 
paragraph (a) of this section shall not begin unless the Sec. etary 
elects to review the appeal. Except for the initial notice of appeal, 
any filings made previous to the Sec. etary's election to review will not 
be accepted.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]



Sec. 251.99  Appeal decision.

    (a) The Reviewing Officer shall base the appeal decision on the 
appeal record and applicable laws, regulations, orders, policies, and 
procedures.
    (b) The Reviewing Officer shall affirm or reverse the original 
decision whole or in part and include the reason(s) for the decision. 
The Reviewing Officer may also include in the appeal decision 
instructions for further action by the Deciding Officer.
    (c) At the first level of appeal, the Reviewing Officer shall make 
and issue an appeal decision within 30 days of the date the record is 
closed.
    (d) At the second level of appeal provided in Sec. 251.87(c), the 
Reviewing Officer shall make and issue an appeal decision within 30 days 
of the date the record is received from the first level Reviewing 
Officer.
    (e) The Reviewing Officer shall send a copy of all appeal decisions 
to all participants.
    (f) Unless the next higher officer exercises the discretion to 
review an appeal decision as provided in Secs. 251.87(e) and 
251.100 of this subpart, the appeal decision is the final administrative 
decision of the Department of Agriculture and is not subject to further 
review under this subpart or part 217 of this chapter.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]

[[Page 289]]



Sec. 251.100  Discretionary review.

    (a) Petitions or requests for discretionary review shall not, in and 
of themselves, give rise to a decision to exercise discretionary review. 
In electing to exercise discretion, a Reviewing Officer should consider, 
but is not limited to, such factors as controversy surrounding the 
decision, the potential for litigation, and whether the appeal decision 
is precedential in nature or establishes new policy.
    (b) As provided for in Secs. 251.87(d) and (e), 251.91(k), and 
251.92, stay decisions rendered by a Forest Supervisor, certain 
dismissal decisions rendered by Forest Service line officers, and first-
level appeal decisions rendered by Regional Foresters and the Chief 
(Sec. 251.99), are subject to discretionary review at the next highest 
administrative level. Within one day following the date of a decision 
subject to such discretionary review, the Reviewing Officer shall 
forward a copy of the decision and the initial decision upon which the 
appeal is predicated to the next higher officer.
    (c) The next higher level officer shall have 15 calendar days from 
date of receipt to decide whether or not to review an appeal decision 
and may call for or use the appeal record in deciding whether or not to 
review the appeal decision. If the record is requested, the 15-day 
period is suspended at that point. The lower level Reviewing Officer 
shall forward it within 5 days of the request. Upon receipt, the higher 
level officer shall have 15 days to decide whether or not to review the 
lower level decision. If that officer takes no action by the expiration 
of the discretionary review period, appellants shall be notified by the 
discretionary level officer that the appeal decision of the Reviewing 
Officer stands as the final administrative review decision of the 
Department of Agriculture.
    (d) When an official exercises the discretion in Sec. 251.87(d) or 
Sec. 251.87(e) of this subpart to review a dismissal or appeal 
decision, the discretionary review shall be made on the existing appeal 
record and the lower level Reviewing Officer's appeal decision. The 
record shall not be reopened to accept additional submissions from any 
source, including the Reviewing Officer whose appeal decision is being 
reviewed.
    (e) When an official exercises discretion to review an appeal 
decision, a Reviewing Officer may extend a stay, in whole or in part, 
during pendency of the discretionary review.
    (f) The second level Reviewing Officer shall conclude the review 
within 30 days of the date of notice issued to an appellant that the 
lower level decision will be reviewed.
    (g) If a discretionary review decision is not issued by the end of 
the 30-day review period, appellants and intervenors shall be deemed to 
have exhausted their administrative remedies for purposes of judicial 
review. In such case, appellants, intervenors, and the lower level 
Reviewing Officer shall be notified by the discretionary level officer.
    (h) The Reviewing Officer shall provide a copy of the decision to 
all appellants, intervenors, the Deciding Officer, and the lower level 
Reviewing Officer.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989; 55 
FR 7896, Mar. 6, 1990]



Sec. 251.101  Policy in event of judicial proceedings.

    It is the position of the Department of Agriculture that any filing 
for Federal judicial review of and relief from a decision appealable 
under this subpart is premature and inappropriate, unless the appellant 
has first sought to resolve the dispute by invoking and exhausting the 
procedures of this subpart. This position may be waived only upon a 
written finding by the Chief.



Sec. 251.102  Applicability and effective date.

    (a) Except where applicants or holders elect the decision review 
procedures of part 217 of this chapter, appealable decisions arising 
from the issuance, approval, and administration of written instruments 
authorizing occupancy and use of National Forest System lands made on or 
after February 22, 1989, shall be subject to the procedures of this 
part.
    (b) Decisions made before February 22, 1989, arising from the 
issuance, approval, and administration of written instruments 
authorizing occupancy and use of National Forest System

[[Page 290]]

lands shall be subject to appeal under the provisions of 36 CFR 211.18.

[54 FR 6892, Feb. 15, 1989]



Sec. 251.103  Mediation of term grazing permit disputes.

    (a) Decisions subject to mediation. In those States with Department 
of Agriculture certified mediation programs, any holder of a term 
grazing permit may request mediation, if a Deciding Officer issues a 
decision to suspend or cancel a term grazing permit, in whole or in 
part, as authorized by 36 CFR 222.4 (a)(2)(i), (ii), (iv), (v), and 
(a)(3) through (a)(6).
    (b) Parties. Notwithstanding the provisions addressing parties to an 
appeal at Sec. 251.86, only the following may participate in mediation 
of term grazing permit disputes under this section:
    (1) A mediator authorized to mediate under a Department of 
Agriculture State certified mediation program:
    (2) The Deciding Officer who made the decision being mediated, or 
designee;
    (3) The holder whose term grazing permit is the subject of the 
Deciding Officer's decision and who has requested mediation in the 
notice of appeal;
    (4) The holder's creditors, if applicable; and
    (5) Legal counsel, if applicable. The Forest Service will have legal 
counsel participate only if the permittee choose to have legal counsel.
    (c) Timeframe. When an appellant simultaneously requests mediation 
at the time an appeal is filed (Sec. 251.84), the Reviewing Officer 
shall immediately notify, by certified mail, all parties to the appeal 
that, in order to allow for mediation, the appeal is suspended for 45 
calendar days from the date of the Reviewing Officer's notice. If 
agreement has not been reached at the end of 45 calendar days, but it 
appears to the Deciding Officer that a mediated agreement may soon be 
reached, the Reviewing Officer may notify, by certified mail, all 
parties to the appeal that the period for mediation is extended for a 
period of up to 15 calendar days from the end of the 45-day appeal 
suspension period. If a mediated agreement cannot be reached under the 
specified timeframes, the Reviewing Officer shall immediately notify, by 
certified mail, all parties to the appeal that mediation was 
unsuccessful, that the stay granted during mediation is lifted, and that 
the timeframes and procedures applicable to an appeal (Sec. 251.89) are 
reinstated as of the date of such notice.
    (d) Confidentiality. Mediation sessions shall be confidential; 
moreover, dispute resolution communications, as defined in 5 U.S.C. 
571(5), shall be confidential. However, the final agreement signed by 
the Forest Service official and the permit holder is subject to public 
disclosure.
    (e) Records. Notes taken or factual material received during 
mediation sessions are not to be entered as part of the appeal record.
    (f) Cost. The United States Government shall cover only incurred 
expenses of its own employees in mediation sessions.
    (g) Exparte communication. Except to request a time extension or 
communicate the results of mediation pursuant to paragraph (d) of this 
section, the Deciding Officer, or designee, shall not discuss mediation 
and/or appeal matters with the Reviewing Officer.

[64 FR 37846, July 14, 1999]



                  Subpart D_Access to Non-Federal Lands

    Source: 56 FR 27417, June 14, 1991, unless otherwise noted.



Sec. 251.110  Scope and application.

    (a) The regulations in this subpart set forth the procedures by 
which landowners may apply for access across National Forest System 
lands and the terms and conditions that govern any special use or other 
authorization that is issued by the Forest Service to permit such 
access.
    (b) These regulations apply to access across all National Forest 
System lands, including Congressionally designated areas, and supplement 
the regulations in subpart B of this part, and in parts 212 and 293 of 
this chapter. The regulations of this subpart do not affect rights-of-
way established under authority of R.S. 2477 (43 U.S.C. 932); rights-of-
way transferred to States

[[Page 291]]

under 23 U.S.C. 317; access rights outstanding in third parties at the 
time the United States acquired the land; or the rights reserved in 
conveyances to the United States and in other easements granted by an 
authorized officer of the Forest Service. Except for the aforementioned 
rights-of-way, currently valid special-use authorizations will become 
subject to the rules of this subpart upon expiration, termination, 
reversion, modification, or reauthorization.
    (c) Subject to the terms and conditions contained in this part and 
in parts 212 and 293 of this chapter, as appropriate, landowners shall 
be authorized such access as the authorized officer deems to be adequate 
to secure them the reasonable use and enjoyment of their land.
    (d) ln those cases where a landowner's ingress or egress across 
National Forest System lands would require surface disturbance or would 
require the use of Government-owned roads, trails, or transportation 
facilities not authorized for general public use, the landowner must 
apply for and receive a special-use or road-use authorization 
documenting the occupancy and use authorized on National Forest System 
lands or facilities and identifying the landowner's rights, privileges, 
responsibilities, and obligations.
    (e) Where ingress and egress will require the use of existing 
Government-owned roads, trails, or other transportation facilities which 
are open and available for general public use, use by the landowner 
shall be in accordance with the provisions of part 212 of this chapter.
    (f) The rules of this subpart do not apply to access within 
conservation system units in Alaska which are subject to title XI of the 
Alaska National Interest Lands Conservation Act (16 U.S.C. 3101), except 
for access to inholdings authorized by section 1110(b) of that Act.
    (g) Where there is existing access or a right of access to a 
property over non-National Forest land or over public roads that is 
adequate or that can be made adequate, there is no obligation to grant 
additional access through National Forest System lands.



Sec. 251.111  Definitions.

    In addition to the definitions in subpart B of this part, the 
following terms apply to this subpart:
    Access means the ability of landowners to have ingress and egress to 
their lands. It does not include rights-of-way for power lines or other 
utilities.
    Adequate access means a route and method of access to non-Federal 
land that provides for reasonable use and enjoyment of the non-Federal 
land consistent with similarly situated non-Federal land and that 
minimizes damage or disturbance to National Forest System lands and 
resources.
    Congressionally designated area means lands which are within the 
boundaries of a component of the National Wilderness Preservation 
System, National Wild and Scenic River System, National Trails System, 
and also National Monuments, Recreation, and Scenic Areas within the 
National Forest System, and similar areas designated by Federal statute.
    Landowner(s) means the owner(s) of non-Federal land or interests in 
land within the boundaries of the National Forest System.



Sec. 251.112  Application requirements.

    (a) A landowner shall apply for access across National Forest System 
lands in accordance with the application requirements of Sec. 251.54 of 
this part. Such application shall specifically include a statement of 
the intended mode of access to, and uses of, the non-Federal land for 
which the special-use authorization is requested.
    (b) The application shall disclose the historic access to the 
landowner's property and any rights of access which may exist over non-
federally owned land and shall provide reasons why these means of access 
do not provide adequate access to the landowners property.
    (c) The information required to apply for access across National 
Forest lands under this subpart is approved for use under subpart B of 
this part and assigned OMB control number 0596-0082.

[[Page 292]]



Sec. 251.113  Instrument of authorization.

    To grant authority to construct and/or use facilities and structures 
on National Forest System lands for access to non-Federal lands, the 
authorized officer shall issue a special-use authorization in 
conformance with the provisions of subpart B of this part or a road-use 
permit. In cases where Road Rights-of-way Construction And Use 
Agreements are in effect, the authorized officer may grant an easement 
in accordance with the provisions of part 212 of this chapter.



Sec. 251.114  Criteria, terms and conditions.

    (a) In issuing a special-use authorization for access to non-Federal 
lands, the authorized officer shall authorize only those access 
facilities or modes of access that are needed for the reasonable use and 
enjoyment of the land and that minimize the impacts on the Federal 
resources. The authorizing officer shall determine what constitutes 
reasonable use and enjoyment of the lands based on contemporaneous uses 
made of similarly situated lands in the area and any other relevant 
criteria.
    (b) Landowners must pay an appropriate fee for the authorized use of 
National Forest System lands in accordance with Sec. 251.57 of this 
part.
    (c) A landowner may be required to provide a reciprocal grant of 
access to the United States across the landowner's property where such 
reciprocal right is deemed by the authorized officer to be necessary for 
the management of adjacent Federal land. In such case, the landowner 
shall receive the fair market value of the rights-of-way granted to the 
United States. If the value of the rights-of-way obtained by the 
Government exceeds the value of the rights-of-way granted, the 
difference in value will be paid to the landowner. If the value of the 
rights-of-way across Government land exceeds the value of the rights-of-
way across the private land, an appropriate adjustment will be made in 
the fee charged for the special-use authorization as provided in Sec. 
251.57(b)(5) of this part.
    (d) For access across National Forest System lands that will have 
significant non-Forest user traffic, a landowner may be required to 
construct new roads or reconstruct existing roads to bring the roads to 
a safe and adequate standard. A landowner also may be required to 
provide for the operation and maintenance of the road. This may be done 
by arranging for such road to be made part of the local public road 
system, or formation of a local improvement district to assume the 
responsibilities for the operation and maintenance of the road as either 
a private road or as a public road, as determined to be appropriate by 
the authorizing officer.
    (e) When access is tributary to or dependent on forest development 
roads, and traffic over these roads arising from the use of landowner's 
lands exceeds their safe capacity or will cause damage to the roadway, 
the landowner(s) may be required to obtain a road-use permit and to 
perform such reconstruction as necessary to bring the road to a safe and 
adequate standard to accommodate such traffic in addition to the 
Government's traffic. In such case, the landowner(s) also shall enter 
into a cooperative maintenance arrangement with the Forest Service to 
ensure that the landowner's commensurate maintenance responsibilities 
are met or shall make arrangements to have the jurisdiction and 
maintenance responsibility for the road assumed by the appropriate 
public road authority.
    (f) In addition to ensuring that applicable terms and conditions of 
paragraphs (a) through (e) of this section are met, the authorizing 
officer, prior to issuing any access authorization, must also ensure 
that:
    (1) The landowner has demonstrated a lack of any existing rights or 
routes of access available by deed or under State or common law;
    (2) The route is so located and constructed as to minimize adverse 
impacts on soils, fish and wildlife, scenic, cultural, threatened and 
endangered species, and other values of the Federal land;
    (3) The location and method of access is as consistent as reasonably 
possible with the management of any congressionally designated area and 
is consistent with Forest Land and Resource Management Plans or the 
plans are amended to accommodate the access grant, and;

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    (4) When access routes exist across the adjacent non-Federal lands 
or the best route as determined by the authorizing officer is across 
non-Federal lands, the applicant landowner has demonstrated that all 
legal recourse to obtain reasonable access across adjacent non-Federal 
lands has been exhausted or has little chance of success.
    (g) In addition to the other requirements of this section, the 
following factors shall be considered in authorizing access to non-
federally owned lands over National Forest System lands which are 
components of the National Wilderness Preservation System:
    (1) The use of means of ingress and egress which have been or are 
being customarily used with respect to similarly situated non-Federal 
land used for similar purposes;
    (2) The combination of routes and modes of travel, including 
nonmotorized modes, which will cause the least lasting impact on the 
wilderness but, at the same time, will permit the reasonable use of the 
non-federally owned land;
    (3) The examination of a voluntary acquisition of land or interests 
in land by exchange, purchase, or donation to modify or eliminate the 
need to use wilderness areas for access purposes.



         Subpart E_Revenue-Producing Visitor Services in Alaska

    Authority: 16 U.S.C. 3197.

    Source: 68 FR 35121, June 11, 2003, unless otherwise noted.



Sec. 251.120  Applicability and scope.

    (a) These regulations implement section 1307 of the Alaska National 
Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3197) with regard to 
the continuation of visitor services offered as of January 1, 1979, and 
the granting of a preference to local residents and certain Native 
Corporations to obtain special use authorizations for visitor services 
provided on National Forest System lands within Conservation System 
Units of the Tongass and Chugach National Forests in Alaska.
    (b) Except as may be specifically provided in this subpart, the 
regulations at subpart B shall apply to special use authorizations 
issued under this subpart. However, if subpart B conflicts with subpart 
E, subpart E controls.
    (c) This subpart does not apply to the guiding of sport hunting and 
fishing.



Sec. 251.121  Definitions.

    In addition to the definitions in subpart B of this part, the 
following terms apply to this subpart:
    Best application--the application, as determined by the authorized 
officer, that best meets the evaluation criteria contained in a 
prospectus to solicit visitor services.
    Conservation System Unit (CSU) as it relates to the Tongass and 
Chugach National Forests in Alaska--a National Forest Monument or any 
unit of the National Wild and Scenic Rivers System, National Trails 
System, or National Wilderness Preservation System, including existing 
units and any such unit established, designated, or expanded hereafter.
    Controlling interest--in the case of a corporation, an interest, 
beneficial or otherwise, of sufficient outstanding voting securities or 
capital of the business so as to permit the exercise of managerial 
authority over the actions and operations of the corporation or election 
of a majority of the board of directors of the corporation. In the case 
of a partnership, limited partnership, joint venture, or individual 
entrepreneurship, a beneficial ownership of or interest in the entity or 
its capital so as to permit the exercise of managerial authority over 
the actions and operations of the entity. In other circumstances, any 
arrangement under which a third party has the ability to exercise 
management authority over the actions or operations of the business.
    Historical operator--a holder of a valid special use authorization 
to provide visitor services in a CSU under Forest Service jurisdiction 
who:
    (1) On or before January 1, 1979, was lawfully and adequately 
providing visitor services in that CSU;
    (2) Has continued lawfully and adequately to provide the same or 
similar types of visitor services within that CSU; and

[[Page 294]]

    (3) Is otherwise determined by the authorized officer to have a 
right to continue to provide the same or similar visitor services.
    Local area--any site within 100 miles of the location within a CSU 
where any visitor services covered by a single solicitation by the 
Forest Service are to be authorized.
    Local resident:
    (1) For individuals--Alaska residents who have lived within the 
local area for 12 consecutive months prior to issuance of a solicitation 
of applications for a visitor services authorization for a CSU; who 
maintain their primary, permanent residence and business within the 
local area; and who, whenever absent from this primary, permanent 
residence, have the intention of returning to it.
    (2) For corporations, partnerships, limited partnerships, joint 
ventures, individual entrepreneurships, and other circumstances--where 
the controlling interest is held by an individual or individuals who 
qualify as local residents within the meaning of this section.
    (3) For nonprofit entities--where a majority of the board members 
and a majority of the officers qualify as local residents within the 
meaning of this section.
    Native Corporation has the same meaning as under section 102(6) of 
ANILCA (16 U.S.C. 3197).
    Preferred operator--a Native Corporation that is determined, 
pursuant to Sec. 251.123, to be most directly affected by establishment 
or expansion of a CSU; or a local resident, as defined in this section, 
who competes for a visitor service special use authorization under Sec. 
251.124 of this subpart.
    Responsive application--an application that is received in a timely 
manner and that meets the requirements stated in the prospectus.
    Visitor service--any service or activity for which persons who visit 
a CSU pay a fee, commission, brokerage, or other compensation, including 
such services as providing food, accommodations, transportation, tours, 
and outfitting and guiding, except the guiding of sport hunting and 
fishing.



Sec. 251.122  Historical operator special use authorizations.

    (a) A historical operator has the right to continue to provide 
visitor services under appropriate terms and conditions contained in a 
special use authorization, as long as such services are determined by 
the authorized officer to be consistent with the purposes for which the 
CSU was established or expanded. A historical operator may not operate 
without such an authorization.
    (b) Any person who qualifies as a historical operator under this 
subpart and who wishes to exercise the rights granted to historical 
operators under section 1307(a) of ANILCA (16 U.S.C. 1397(a)) must 
notify the authorized officer responsible for the CSU.
    (c) A historical operator may apply for a special use authorization 
to provide visitor services similar to but in lieu of those provided by 
that historical operator before January 1, 1979. The authorized officer 
shall grant the application if those visitor services are determined by 
the authorized officer to be:
    (1) Consistent with the purposes for which the applicable CSU was 
established or expanded;
    (2) Similar in kind and scope to the visitor services provided by 
the historical operator before January 1, 1979; and
    (3) Consistent with the legal rights of any other person.
    (d) Upon the authorized officer's determination that the person 
qualifies as a historical operator, under either paragraph (a) or 
paragraph (c) of this section, the authorized officer shall amend the 
current special use authorization or issue a new special use 
authorization to identify that portion of the authorized services that 
is deemed to be historical operations. The special use authorization 
shall identify the location, type, and frequency or volume of visitor 
services to be provided.
    (e) When a historical operator's special use authorization expires, 
the authorized officer shall offer to reissue the special use 
authorization for the same or similar visitor services, as long as the 
visitor services remain consistent with the purposes for which the CSU 
was established or expanded, the

[[Page 295]]

historical operator was lawfully and adequately providing visitor 
services under the previous special use authorization, and the 
historical operator continues to possess the capability to provide the 
visitor services adequately.
    (1) If the operator accepts the offer to reissue, the authorized 
officer shall issue a new special use authorization that clearly 
identifies the historical operations as required by paragraph (d) of 
this section.
    (2) If the authorized officer determines that it is necessary to 
reduce the visitor services to be provided by a historical operator, the 
authorized officer shall modify the historical operator's special use 
authorization to reflect the reduced services as follows:
    (i) If more than one historical operator provides services in the 
area where visitor service capacity is to be reduced, the authorized 
officer shall apportion the reduction among the historical operators, 
taking into account historical operating levels and such other factors 
as are relevant to achieve a proportionate reduction among the 
operators.
    (ii) If the reductions in visitor service capacity make it necessary 
to reduce operators in an area, the authorized officer shall select, 
through a competitive process that is limited to historical operators 
only, the operator or operators to receive a special use authorization 
from among the historical operators. Historical operators participating 
in this competitive process may not claim a preference as a preferred 
operator under Sec. 251.124.
    (f) Any of the following shall result in the loss of historical 
operator status:
    (1) Revocation of a special use authorization for historical types 
and levels of visitor services for failure to comply with the terms and 
conditions of the special use authorization;
    (2) A historical operator's refusal of an offer to reissue a special 
use authorization made pursuant to paragraph (e) of this section;
    (3) A change in the controlling interest of a historical operator 
through sale, assignment, devise, transfer, or otherwise, except as 
provided in paragraph (g) of this section; or
    (4) An operator's failure to provide the authorized services for a 
period of more than 24 consecutive months.
    (g) A change in the controlling interest of a historical operator 
that results only in the acquisition of the controlling interest by an 
individual or individuals, who were personally engaged in the visitor 
service activities of the historical operator before January 1, 1979, 
shall not be deemed a change in the historical operator's controlling 
interest for the purposes of this subpart.
    (h) Nothing in this section shall prohibit the authorized officer 
from authorizing persons other than historical operators to provide 
visitor services in the same area, as long as historical operators 
receive authorization to provide visitor services that are the same as 
or similar to those they provided on or before January 1, 1979.
    (i) If an authorized officer grants to a historical operator an 
increase in the scope or level of visitor services from what was 
provided on or before January 1, 1979, beyond what was authorized under 
paragraph (d) of this section, for either the same or similar visitor 
services, the historical operator has no right of preference for the 
increased amount of authorized services. If additional operations are 
authorized, the special use authorization shall explicitly state that 
they are not subject to the historical operator preference.



Sec. 251.123  Most directly affected Native Corporation determination.

    (a) Before issuance of the first special use authorization for a 
specific CSU pursuant to Sec. 251.124 on or after the effective date of 
this subpart, the authorized officer shall give notice to Native 
Corporations interested in providing visitor services within the CSU and 
give them an opportunity to submit an application to be considered the 
Native Corporation most directly affected by the establishment or 
expansion of the CSU under section 1307(b) of ANILCA (16 U.S.C. 
1397(b)). In giving notice of the application procedure, the authorized 
officer shall make clear that this is the only opportunity to apply for 
most directly affected status for that particular CSU.

[[Page 296]]

    (1) At a minimum, an application from an interested Native 
Corporation shall include the following:
    (i) Name, address, and telephone number of the Native Corporation; 
date of its incorporation; its articles of incorporation and structure; 
and the name of the applicable CSU and the solicitation to which the 
Native Corporation is responding;
    (ii) Location of the Native Corporation's population centers; and
    (iii) An assessment of the socioeconomic impacts (including changes 
in historical and traditional use and landownership patterns) on the 
Native Corporation resulting from establishment or expansion of the 
applicable CSU.
    (2) In addition to the minimum information required by paragraph 
(a)(1) of this section, Native Corporations may submit such additional 
information as they consider relevant.
    (b) Upon receipt of all applications from interested Native 
Corporations, the authorized officer shall determine the most directly 
affected Native Corporation considering the following factors:
    (1) Distance and accessibility from the Native Corporation's 
population centers and/or business address to the applicable CSU;
    (2) Socioeconomic impacts (including changes in historical and 
traditional use and landownership patterns) on Native Corporations 
resulting from establishment or expansion of the applicable CSU; and
    (3) Information provided by Native Corporations and other 
information considered relevant by the authorized officer to assessment 
of the effects of establishment or expansion of the applicable CSU.
    (c) In the event that two or more Native Corporations are determined 
to be equally affected for purposes of the most directly affected Native 
Corporation determination pursuant to this section, each such Native 
Corporation shall be considered a preferred operator under this subpart.
    (d) A Native Corporation determined to be most directly affected for 
a CSU shall maintain that status for all future visitor service 
solicitations for that CSU.



Sec. 251.124  Preferred operator competitive special use authorization procedures.

    (a) In selecting persons to provide visitor services for a CSU, the 
authorized officer shall, if the number of visitor service 
authorizations is to be limited, give a preference (subject to any 
rights of historical operators under this subpart) to preferred 
operators as defined in this subpart who are determined to be qualified 
to provide such visitor services.
    (b) In such circumstances, the authorized officer shall solicit 
applications competitively by issuing a prospectus for persons to apply 
for a visitor services authorization. Notwithstanding Forest Service 
outfitting and guiding policy in Forest Service Handbook 2709.11, 
chapter 40, when authorizations, including priority use permits for 
activities other than sport hunting and fishing, expire in accordance 
with their terms, they shall not be reissued if there is a need to limit 
use and when there is competitive interest by preferred operators.
    (c) To qualify as a preferred operator under this subpart, an 
applicant responding to a solicitation made under this section must be 
determined by the authorized officer to be a local resident as defined 
in Sec. 251.121 of this subpart, or the Native Corporation most 
directly affected by establishment or expansion of the CSU covered by 
the solicitation pursuant to Sec. 251.123 of this subpart.
    (d) Applicants seeking preferred operator status based on local 
residency must provide documentation verifying their claim. Factors 
demonstrating the location of an individual's primary, permanent 
residence and business include, but are not limited to, the permanent 
address indicated on licenses issued by the State of Alaska, tax 
returns, and voter registration.
    (e) An application from a preferred operator in the form of a 
corporation, partnership, limited partnership, joint venture, individual 
entrepreneurship, nonprofit entity, or other form of organization shall 
be considered valid only when the application documents to the 
satisfaction of the authorized officer that the preferred operator holds 
the controlling interest in the corporation, partnership, limited 
partnership, joint

[[Page 297]]

venture, individual entrepreneurship, nonprofit entity, or other form of 
organization.
    (f) A qualified preferred operator shall be given preference, 
pursuant to paragraph (g) of this section, over all other applicants, 
except with respect to use allocated to historical operators pursuant to 
Sec. 251.122 of this subpart.
    (g) If the best application from a preferred operator is at least 
substantially equal to the best application from a non-preferred 
operator, the preferred operator shall be issued the visitor service 
authorization. If an application from an applicant other than a 
preferred operator is determined to be the best application (and no 
preferred operator submits a responsive application that is 
substantially equal to it), the preferred operator who submitted the 
best application from among the applications submitted by preferred 
operators shall be given the opportunity, by amending its application, 
to meet the terms and conditions of the best application received. If 
the amended application of that preferred operator is considered by the 
authorized officer to be at least substantially equal to the best 
application, the preferred operator shall be issued the visitor service 
authorization. If a preferred operator does not amend its application to 
meet the terms and conditions of the best application, the authorized 
officer shall issue the visitor service authorization to the applicant 
who submitted the best application in response to the prospectus.



Sec. 251.125  Preferred operator privileges and limitations.

    (a) A preferred operator has no preference within a National Forest 
in Alaska beyond that authorized by section 1307 of ANILCA (16 U.S.C. 
1397) and by Sec. 251.124 of this subpart.
    (b) Local residents and most directly affected Native Corporations 
have equal priority for consideration in providing visitor services 
pursuant to Sec. 251.124 of this subpart.
    (c) Nothing in this subpart shall prohibit the authorized officer 
from issuing special use authorizations to other applicants within the 
CSU, as long as the requirements of Sec. 251.124 are met.
    (d) If an operator qualifies as a local resident for any part of an 
area designated in the solicitation for a specific visitor service, in 
matters related solely to that solicitation, the operator shall be 
treated as a local resident for the entire area covered by that 
solicitation.
    (e) The preferences described in this section may not be sold, 
assigned, transferred, or devised, either directly or indirectly, in 
whole or in part.



Sec. 251.126  Appeals.

    Decisions related to the issuance of special use authorizations in 
response to written solicitations by the Forest Service under this 
subpart or related to the modification of special use authorizations to 
reflect historical use are subject to administrative appeal under 
subpart C of this part.



PART 254_LANDOWNERSHIP ADJUSTMENTS--Table of Contents




                        Subpart A_Land Exchanges

Sec. 
254.1 Scope and applicability.
254.2 Definitions.
254.3 Requirements.
254.4 Agreement to initiate an exchange.
254.5 Assembled land exchanges.
254.6 Segregative effect.
254.7 Assumption of costs.
254.8 Notice of exchange proposal.
254.9 Appraisals.
254.10 Bargaining; arbitration.
254.11 Exchanges at approximately equal value.
254.12 Value equalization; cash equalization waiver.
254.13 Approval of exchanges; notice of decision.
254.14 Exchange agreement.
254.15 Title standards.
254.16 Case closing.
254.17 Information requirements.

                   Subpart B_National Forest Townsites

254.20 Purpose and scope.
254.21 Applications.
254.22 Designation and public notice.
254.23 Studies, assessments, and approval.
254.24 Conveyance.
254.25 Survey.
254.26 Appraisal.

                  Subpart C_Conveyance of Small Tracts

254.30 Purpose.
254.31 Definitions.

[[Page 298]]

254.32 Encroachments.
254.33 Road rights-of-way.
254.34 Mineral survey fractions.
254.35 Limitations.
254.36 Determining public interest.
254.37-254.39 [Reserved]
254.40 Applications.
254.41 Public sale or exchange in absence of application.
254.42 Valuation of tracts.
254.43 Surveys.
254.44 Document of conveyance.



                        Subpart A_Land Exchanges

    Authority: 7 U.S.C. 428a(a) and 1011; 16 U.S.C. 484a, 485, 486, 516, 
551, and 555a; 43 U.S.C. 1701, 1715, 1716, and 1740; and other 
applicable laws.

    Source: 59 FR 10867, Mar. 8, 1994, unless otherwise noted.



Sec. 254.1  Scope and applicability.

    (a) These rules set forth the procedures for conducting exchanges of 
National Forest System lands. The procedures in these rules may be 
supplemented by instructions issued to Forest Service officers in 
Chapter 5400 of the Forest Service Manual and Forest Service Handbooks 
5409.12 and 5409.13.
    (b) These rules apply to all National Forest System exchanges of 
land or interests in land, including but not limited to minerals, water 
rights, and timber, except those exchanges made under the authority of 
Small Tracts Act of January 12, 1983 (16 U.S.C. 521c-521i) (36 CFR part 
254, subpart C), and as otherwise noted. These rules also apply to other 
methods of acquisition, where indicated.
    (c) The application of these rules to exchanges made under the 
authority of the Alaska Native Claims Settlement Act, as amended (43 
U.S.C. 1621), or the Alaska National Interest Lands Conservation Act (16 
U.S.C. 3192), shall be limited to those provisions which do not conflict 
with the provisions of these Acts.
    (d) Unless the parties to an exchange otherwise agree, land 
exchanges for which the parties have agreed in writing to initiate prior 
to April 7, 1994, will proceed in accordance with the rules and 
regulations in effect at the time of the agreement.
    (e) Except for exchanges requiring cash equalization payments made 
available through the Land and Water Conservation Act of 1965, as 
amended (16 U.S.C. 460[1]9), the boundaries of a national forest are 
automatically extended to encompass lands acquired under the Weeks Act 
of March 1, 1911, as amended (16 U.S.C. 516), provided the acquired 
lands are contiguous to existing national forest boundaries and total no 
more than 3,000 acres in each exchange.
    (f) Exchanges under the Weeks Act of March 1, 1911, or the General 
Exchange Act of March 20, 1922, may involve land-for-timber (non-Federal 
land exchanged for the rights to Federal timber), or timber-for-land 
(the exchange of the rights to non-Federal timber for Federal land), or 
tripartite land-for-timber (non-Federal land exchanged for the rights to 
Federal timber cut by a third party in behalf of the exchange parties).
    (g) Land exchanges involving National Forest System lands are 
authorized by a number of statutes, depending upon the status 
(conditions of ownership) of such lands and the purpose for which an 
exchange is to be made. The status of National Forest System land is 
determined by the method by which the land or interests therein became 
part of the National Forest System. Unless otherwise provided by law, 
lands acquired by the United States in exchanges assume the same status 
as the Federal lands conveyed.
    (h) The Federal Land Policy and Management Act of 1976, as amended 
(43 U.S.C. 1701), is supplemental to all applicable exchange laws, 
except the cash equalization provisions of the Sisk Act of December 4, 
1967, as amended (16 U.S.C. 484a).



Sec. 254.2  Definitions.

    For the purposes of this subpart, the following terms have the 
meanings set forth in this section.
    Acquisition means the attainment of lands or interests in lands by 
the Sec. etary, acting on behalf of the United States, by exchange, 
purchase, donation, or eminent domain.
    Adjustment to relative values means compensation for exchange-
related costs, or other responsibilities or requirements assumed by one 
party, which ordinarily would be borne by the

[[Page 299]]

other party. These adjustments do not alter the agreed upon value of the 
lands involved in an exchange.
    Agreement to initiate means a written, nonbinding statement of 
present intent to initiate and pursue an exchange, which is signed by 
the parties and which may be amended by consent of the parties or 
terminated at any time upon written notice by any party.
    Appraisal or appraisal report means a written statement 
independently and impartially prepared by a qualified appraiser setting 
forth an opinion as to the market value of the lands or interests in 
lands as of a specific date(s), supported by the presentation and 
analysis of relevant market information.
    Approximately equal value means a comparative estimate of value of 
the lands involved in an exchange which have readily apparent and 
substantially similar elements of value, such as location, size, use, 
physical characteristics, and other amenities.
    Arbitration is a process to resolve a disagreement among the parties 
as to appraised value, performed by an arbitrator appointed by the 
Sec. etary from a list recommended by the American Arbitration 
Association.
    Assembled land exchange means an exchange of Federal land for a 
package of multiple ownership parcels of non-Federal land consolidated 
for purposes of one land exchange transaction.
    Authorized officer means a Forest Service line or staff officer who 
has been delegated the authority and responsibility to make decisions 
and perform the duties described in this subpart.
    Bargaining is a process other than arbitration, by which parties 
attempt to resolve a dispute concerning the appraised value of the lands 
involved in an exchange.
    Federal lands means any lands or interests in lands, such as mineral 
and timber interests, that are owned by the United States and 
administered by the Sec. etary of Agriculture through the Chief of the 
Forest Service, without regard to how the United States acquired 
ownership.
    Hazardous substances are those substances designated under 
Environmental Protection Agency regulations at 40 CFR part 302.
    Highest and best use means an appraiser's supported opinion of the 
most probable and legal use of a property, based on market evidence, as 
of the date of valuation.
    Lands means any land and/or interests in land.
    Market value means the most probable price in cash, or terms 
equivalent to cash, which lands or interest in lands should bring in a 
competitive and open market under all conditions requisite to a fair 
sale, where the buyer and seller each acts prudently and knowledgeably, 
and the price is not affected by undue influence.
    Mineral laws means the mining and mineral leasing laws applicable to 
Federally owned lands and minerals reserved from the public domain for 
national forest purposes and the Geothermal Steam Act of 1970 (30 U.S.C. 
1001 et seq.), but not the Materials Act of 1947 (30 U.S.C. 601 et 
seq.).
    Outstanding interests are rights or interests in property held by an 
entity other than a party to an exchange.
    Party means the United States or any person, State, or local 
government who enters into an agreement to initiate an exchange.
    Person means any individual, corporation, or other legal entity 
legally capable to hold title to and convey land. An individual must be 
a citizen of the United States and a corporation must be subject to the 
laws of the United States or of the State where the land is located or 
the corporation is incorporated. No Member of Congress may participate 
in a land exchange with an agency of the United States, as set forth in 
18 U.S.C. 431-433.
    Public land laws means that body of non-mineral land laws dealing 
with the disposal of National Forest System lands administered by the 
Sec. etary of Agriculture.
    Reserved interest means an interest in real property retained by a 
party from a conveyance of the title to that property.
    Resource values means any of the various commodity values or non-
commodity values, such as wildlife habitat and aesthetics, contained 
within land interests, surface and subsurface.

[[Page 300]]

    Sec. etary means the Secretary of Agriculture or the individual to 
whom responsibility has been delegated.
    Segregation means the removal for a limited period, subject to valid 
existing rights, of a specified area of the Federal lands from 
appropriation under the public land laws and mineral laws, pursuant to 
the authority of the Sec. etary of the Interior to allow for the orderly 
administration of the Federal lands.
    Statement of value means a written report prepared by a qualified 
appraiser in conformance with the minimum standards of the Uniform 
Standards of Professional Appraisal Practice that states the appraiser's 
conclusion(s) of value.



Sec. 254.3  Requirements.

    (a) Discretionary nature of exchanges. The Sec. etary is not required 
to exchange any Federal lands. Land exchanges are discretionary, 
voluntary real estate transactions between the Federal and non-Federal 
parties. Unless and until the parties enter into a binding exchange 
agreement, any party may withdraw from and terminate an exchange 
proposal at any time during the exchange process.
    (b) Determination of public interest. The authorized officer may 
complete an exchange only after a determination is made that the public 
interest will be well served.
    (1) Factors to consider. When considering the public interest, the 
authorized officer shall give full consideration to the opportunity to 
achieve better management of Federal lands and resources, to meet the 
needs of State and local residents and their economies, and to secure 
important objectives, including but not limited to: protection of fish 
and wildlife habitats, cultural resources, watersheds, and wilderness 
and aesthetic values; enhancement of recreation opportunities and public 
access; consolidation of lands and/or interests in lands, such as 
mineral and timber interests, for more logical and efficient management 
and development; consolidation of split estates; expansion of 
communities; accommodation of existing or planned land use 
authorizations (Sec. 254.4(c)(4); promotion of multiple-use values; 
implementation of applicable Forest Land and Resource Management Plans; 
and fulfillment of public needs.
    (2) Findings. To determine that an exchange well serves the public 
interest, the authorized officer must find that--
    (i) The resource values and the public objectives served by the non-
Federal lands or interests to be acquired must equal or exceed the 
resource values and the public objectives served by the Federal lands to 
be conveyed, and
    (ii) The intended use of the conveyed Federal land will not 
substantially conflict with established management objectives on 
adjacent Federal lands, including Indian Trust lands.
    (3) Documentation. The findings and the supporting rationale shall 
be documented and made part of the administrative record.
    (c) Equal value exchanges. Except as provided in Sec. 254.11 of 
this subpart, lands or interests to be exchanged must be of equal value 
or equalized in accordance with the methods set forth in Sec. 254.12 of 
this subpart. An exchange of lands or interests shall be based on market 
value as determined by the Sec. etary through appraisal(s), through 
bargaining based on appraisal(s), through other acceptable and commonly 
recognized methods of determining market value, or through arbitration.
    (d) Same-State exchanges. Unless otherwise provided by statute, the 
Federal and non-Federal lands involved in an exchange must be located 
within the same State.
    (e) Congressional designations. Upon acceptance of title by the 
United States, lands acquired by the Sec. etary of the Interior by 
exchange under the authority granted by the Federal Land Policy and 
Management Act of 1976, as amended, which are within the boundaries of 
any unit of the National Forest System, the National Wild and Scenic 
Rivers System, the National Trails System, the National Wilderness 
Preservation System, or any other system established by Act of Congress; 
or the boundaries of any national conservation area or national 
recreation area established by Act of Congress, immediately are reserved 
for and become a part of the unit or area in which they are located, 
without further action by

[[Page 301]]

the Sec. etary of the Interior, and, thereafter, shall be managed in 
accordance with all laws, rules, regulations, and land resource 
management plans applicable to such unit or area.
    (f) Land and resource management planning. The authorized officer 
shall consider only those exchange proposals that are consistent with 
land and resource management plans (36 CFR part 219). Lands acquired by 
exchange that are located within areas having an administrative 
designation established through the land management planning process 
shall automatically become part of the area within which they are 
located, without further action by the Forest Service, and shall be 
managed in accordance with the laws, rules, regulations, and land and 
resource management plan applicable to such area.
    (g) Environmental analysis. After an agreement to initiate an 
exchange is signed, the authorized officer shall undertake an 
environmental analysis in accordance with the National Environmental 
Policy Act of 1969 (42 U.S.C. 4371), the Council on Environmental 
Quality regulations (40 CFR parts 1500-1508), and Forest Service 
environmental policies and procedures (Forest Service Manual Chapter 
1950 and Forest Service Handbook 1909.15). In making this analysis, the 
authorized officer shall consider timely written comments received in 
response to the exchange notice published pursuant to Sec. 254.8 of 
this subpart.
    (h) Reservations or restrictions in the public interest. In any 
exchange, the authorized officer shall reserve such rights or retain 
such interests as are needed to protect the public interest or shall 
otherwise restrict the use of Federal lands to be exchanged, as 
appropriate. The use or development of lands conveyed out of Federal 
ownership are subject to any restrictions imposed by the conveyance 
documents and all laws, regulations, and zoning authorities of State and 
local governing bodies.
    (i) Hazardous substances--(1) Federal lands. The authorized officer 
shall determine whether hazardous substances are known to be present on 
the Federal lands involved in the exchange and shall provide notice of 
known storage, release, or disposal of hazardous substances on the 
Federal lands in the contract agreement and in the conveyance document, 
pursuant to 40 CFR part 373 and 42 U.S.C. 9620. For purposes of this 
section, the notice of hazardous substances on involved Federal lands in 
an agreement to initiate an exchange or an exchange agreement meets the 
requirements for notices established in 40 CFR part 373. Unless the non-
Federal party is a potentially responsible party under 42 U.S.C. 9607(a) 
and participated as an owner, or in the operation, arrangement, 
generation, or transportation of the hazardous substances found on the 
Federal land, the conveyance document from the United States must 
contain a covenant warranting that all remedial action necessary to 
protect human health and the environment with respect to any such 
substances remaining on the property has been taken before the date of 
transfer and that any additional remedial action found necessary after 
the transfer shall be conducted by the United States, pursuant to 42 
U.S.C. 9620(h)(3). The conveyance document must also reserve to the 
United States the right of access to the conveyed property if remedial 
or corrective action is required after the date of transfer. Where the 
non-Federal party is a potentially responsible party with respect to the 
property, it may be appropriate to enter into an agreement as referenced 
in 42 U.S.C. 9607(e) whereby that party would indemnify the United 
States and hold the United States harmless against any loss or cleanup 
costs after conveyance.
    (2) Non-Federal lands. The non-Federal party shall notify the 
authorized officer of any hazardous substances known to have been 
released, stored, or disposed of on the non-Federal land, pursuant to 
Sec. 254.4 of this subpart. Notwithstanding such notice, the authorized 
officer shall determine whether hazardous substances are known to be 
present on the non-Federal land involved in an exchange. If hazardous 
substances are known or believed to be present on the non-Federal land, 
the authorized officer shall reach an agreement with the non-Federal 
party regarding the responsibility for appropriate response action 
concerning the

[[Page 302]]

hazardous substances before completing the exchange. The terms of this 
agreement and any appropriate ``hold harmless agreement'' shall be 
included in an exchange agreement, pursuant to Sec. 254.14 of this 
subpart.
    (j) Legal description of properties. All lands subject to an 
exchange must be properly described on the basis of either a survey 
executed in accordance with the Public Land Survey System laws and 
standards of the United States or, if those laws and standards cannot be 
applied, the lands shall be properly described and clearly locatable by 
other means as may be prescribed or allowed by law.
    (k) Special review. Except as provided in this paragraph, land 
acquisitions of $150,000 or more in value made under the authority of 
the Weeks Act of March 1, 1911, as amended (16 U.S.C. 516), must be 
submitted to Congress for oversight review, pursuant to the Act of 
October 22, 1976, as amended (16 U.S.C. 521b). However, minor and 
insignificant changes in land acquisition proposals need not be 
resubmitted for congressional oversight, provided the general concept of 
and basis for the acquisition remain the same.



Sec. 254.4  Agreement to initiate an exchange.

    (a) Exchanges may be proposed by the Forest Service or by any 
person, State, or local government. Initial exchange proposals should be 
directed to the authorized officer responsible for the management of 
Federal lands proposed for exchange.
    (b) To assess the feasibility of an exchange proposal, the 
prospective parties may agree to obtain a preliminary estimate of the 
values of the lands involved in the proposal. A qualified appraiser must 
prepare the preliminary estimate.
    (c) If the authorized officer agrees to proceed with an exchange 
proposal, all prospective parties shall execute a nonbinding agreement 
to initiate an exchange. At a minimum, the agreement must include:
    (1) The identity of the parties involved in the proposed exchange 
and the status of their ownership or ability to provide title to the 
land;
    (2) A description of the lands or interest in lands being considered 
for exchange;
    (3) A statement by a party, other than the United States and State 
and local governments, that such party is a citizen of the United States 
or a corporation or other legal entity subject to the laws of the United 
States or a State thereof;
    (4) A description of the appurtenant rights proposed to be exchanged 
or reserved; any authorized uses, including grants, permits, easements, 
or leases; and any known unauthorized uses, outstanding interests, 
exceptions, covenants, restrictions, title defects or encumbrances;
    (5) A time schedule for completing the proposed exchange;
    (6) An assignment of responsibility for performance of required 
functions and for costs associated with processing the exchange;
    (7) A statement specifying whether compensation for costs assumed 
will be allowed pursuant to the provisions of Sec. 254.7 of this 
subpart;
    (8) Notice of any known release, storage, or disposal of hazardous 
substances on involved Federal or non-Federal lands and any commitments 
regarding responsibility for removal or other remedial actions 
concerning such substances on involved non-Federal lands (Sec. 254.3(i) 
and Sec. 254.14);
    (9) A grant of permission by each party to physically examine the 
lands offered by the other party;
    (10) The terms of any assembled land exchange arrangement, pursuant 
to Sec. 254.5 of this subpart;
    (11) A statement as to the arrangements for relocation of any 
tenants occupying non-Federal lands pursuant to Sec. 254.15 of this 
subpart;
    (12) A notice to an owner-occupant of the voluntary basis for the 
acquisition of the non-Federal lands, pursuant to Sec. 254.15 of this 
subpart; and
    (13) A statement as to the manner in which documents of conveyance 
will be exchanged, should the exchange proposal be successfully 
completed.
    (d) Unless the parties agree to some other schedule, no later than 
90 days from the date of the executed agreement to initiate an exchange, 
the parties shall arrange for appraisals which

[[Page 303]]

are to be completed within timeframes and under such terms as are 
negotiated. In the absence of current market information reliably 
supporting value, the parties may agree to use other acceptable and 
commonly recognized methods to estimate value.
    (e) An agreement to initiate may be amended by consent of the 
parties or terminated at any time upon written notice by any party.
    (f) Entering into an agreement to initiate an exchange does not 
legally bind any party to proceed with processing or to consummate a 
proposed exchange, or to reimburse or pay damages to any party to a 
proposed exchange that is not consummated or to anyone doing business 
with any such party.
    (g) The withdrawal from an exchange proposal by an authorized 
officer at any time prior to the notice of decision, pursuant to Sec. 
254.13 of this subpart, is not appealable under 36 CFR part 215 or 36 
CFR part 251, subpart C.

[59 FR 10867, Mar. 8, 1984, as amended at 64 FR 25822, May 13, 1999]



Sec. 254.5  Assembled land exchanges.

    (a) Whenever the authorized officer determines it to be practicable, 
an assembled land exchange arrangement may be used to facilitate 
exchanges and reduce costs.
    (b) The parties to an exchange may agree to such an arrangement 
where multiple ownership parcels of non-Federal lands are consolidated 
into a package for the purpose of completing one exchange transaction.
    (c) An assembled land exchange arrangement must be documented in the 
agreement to initiate an exchange, pursuant to Sec. 254.4 of this 
subpart.
    (d) Value of the Federal and non-Federal lands involved in an 
assembled land exchange arrangement shall be estimated pursuant to Sec. 
254.9 of this subpart.

[59 FR 10867, Mar. 8, 1994; 59 FR 15501, Apr. 1, 1994]



Sec. 254.6  Segregative effect.

    (a) If a proposal is made to exchange Federal lands, the authorized 
officer may request the appropriate State Office of the Bureau of 
Management (BLM) to segregate the Federal lands by a notation on the 
public land records. Subject to valid existing rights, the Federal lands 
shall be segregated from appropriation under the public land laws and 
mineral laws for a period not to exceed 5 years from the date of record 
notation.
    (b) Any interests of the United States in the non-Federal lands that 
are covered by the exchange proposal may be noted and segregated from 
appropriation under the mineral laws for a period not to exceed 5 years 
from the date of notation.
    (c) The segregative effect terminates as follows:
    (1) Automatically, upon issuance of a patent or other document of 
conveyance to the affected lands;
    (2) On the date and time specified in an opening order, published in 
the Federal Register by the appropriate BLM State Office, if a decision 
is made not to proceed with the exchange or upon removal of any lands 
from the exchange proposal; or
    (3) Automatically, at the end of the segregation period not to 
exceed 5 years from the date of notation on the public land records, 
whichever occurs first.



Sec. 254.7  Assumption of costs.

    (a) Generally, each party to an exchange will bear their own costs 
of the exchange. However, if the authorized officer finds it is in the 
public interest as specified in paragraph (b) of this section, an 
agreement to initiate an exchange may provide that:
    (1) One or more of the parties may assume, without compensation, all 
or part of the costs or other responsibilities or requirements that the 
authorized officer determines would ordinarily be borne by the other 
parties; or
    (2) Subject to the limitation in paragraph (c) of this section, the 
parties may agree to make adjustments to the relative values involved in 
an exchange transaction, in order to compensate parties for assuming 
costs or other responsibilities or requirements that the authorized 
officer determines would ordinarily be borne by the other parties. These 
costs or services may include but are not limited to: land surveys; 
appraisals; mineral examinations; timber

[[Page 304]]

cruises; title searches; title curative actions; cultural resource 
surveys and mitigation; hazardous substance surveys and controls; 
removal of encumbrances; arbitration, including all fees; bargaining; 
cure of deficiencies preventing highest and best use of the land; 
conduct of public hearings; assemblage of non-Federal parcels from 
multiple ownerships; and the expenses of complying with laws, 
regulations, and policies applicable to exchange transactions, or which 
are necessary to bring the Federal and non-Federal lands involved in the 
exchange to their highest and best use for appraisal and exchange 
purposes.
    (b) As a condition of an agreement to initiate, the authorized 
officer may agree to assume without compensation costs ordinarily borne 
by the non-Federal party or to compensate the non-Federal party for 
assuming Federal costs only on an exceptional basis when it is clearly 
in the public interest and when the authorized officer determines and 
documents that each of the following circumstances exist:
    (1) The amount of such cost assumed or compensation is reasonable 
and accurately reflects the value of the cost or service provided, or 
any responsibility and requirement assumed;
    (2) The proposed exchange is a high priority of the agency;
    (3) The land exchange must be expedited to protect important Federal 
resource values, such as congressionally designated areas or endangered 
species habitat;
    (4) Cash equalization funds are available for compensation of the 
non-Federal party; and
    (5) There are no other practicable means available to the authorized 
officer for meeting Federal exchange processing costs, responsibilities, 
or requirements.
    (c) The total amount of an adjustment agreed to as compensation for 
costs pursuant to this section shall not exceed the limitations set 
forth in Sec. 254.12(b) of this subpart.

[59 FR 10867, Mar. 8, 1994; 59 FR 15501, Apr. 1, 1994]



Sec. 254.8  Notice of exchange proposal.

    (a) Upon entering into an agreement to initiate an exchange, the 
authorized officer shall publish a notice once a week for four 
consecutive weeks in newspapers of general circulation in the counties 
in which the Federal and non-Federal lands or interests proposed for 
exchange are located. The authorized officer shall notify authorized 
users, the jurisdictional State and local governments, and the 
congressional delegation and shall make other distribution of the notice 
as appropriate. At a minimum, the notice shall include:
    (1) The identity of the parties involved in the proposed exchange;
    (2) A description of the Federal and non-Federal lands being 
considered for exchange;
    (3) A statement as to the effect of segregation from appropriation 
under the public land laws and mineral laws, if applicable;
    (4) An invitation to the public to submit in writing any comments on 
or concerns about the exchange proposal, including advising the agency 
as to any liens, encumbrances, or other claims relating to the lands 
being considered for exchange; and
    (5) The deadline by which comments must be received, and the name, 
title, and address of the official to whom comments must be sent and 
from whom additional information may be obtained.
    (b) To be assured of consideration in the environmental analysis of 
the proposed exchange, all comments must be made in writing to the 
authorized officer and postmarked or delivered within 45 days after the 
initial date of publication.
    (c) The authorized officer is not required to republish legal 
descriptions of any lands that may be excluded from the final exchange 
transaction, provided such lands were identified in the notice of 
exchange proposal. In addition, minor corrections of land descriptions 
and other insignificant changes do not require republication.



Sec. 254.9  Appraisals.

    The Federal and non-Federal parties to an exchange shall comply with 
the appraisal standards as set forth in paragraphs (a) through (d) of 
this section, and, to the extent appropriate, with the Uniform Appraisal 
Standards

[[Page 305]]

for Federal Land Acquisitions: Interagency Land Acquisition Conference 
1992 (Washington, DC, 1992), ISBN 0-16-038050-2 when appraising the 
values of the Federal and non-Federal lands involved in an exchange.
    (a) Appraiser qualifications. (1) A qualified appraiser(s) shall 
provide to the authorized officer appraisals estimating the market value 
of Federal and non-Federal properties involved in an exchange. A 
qualified appraiser may be an employee or a contractor to the Federal or 
non-Federal exchange parties. At a minimum, a qualified appraiser shall 
be an individual agreeable to all parties and approved by the authorized 
officer, who is competent, reputable, impartial, and has training and 
experience in appraising property similar to the property involved in 
the appraisal assignment.
    (2) Qualified appraisers shall possess qualifications consistent 
with State regulatory requirements that meet the intent of Title XI, 
Financial Institutions Reform, Recovery, and Enforcement Act of 1989 
(FIRREA) (12 U.S.C. 3331). In the event a State or Territory does not 
have approved policies, practices, and procedures regulating the 
activities of appraisers, the Forest Service may establish appraiser 
qualification standards commensurate with those generally adopted by 
other States or Territories meeting the requirements of FIRREA.
    (b) Market value. (1) In estimating market value, the appraiser 
shall:
    (i) Determine the highest and best use of the property to be 
appraised;
    (ii) Estimate the value of the lands and interests as if in private 
ownership and available for sale in the open market;
    (iii) Include historic, wildlife, recreation, wilderness, scenic, 
cultural, or other resource values or amenities as reflected in prices 
paid for similar properties in the competitive market;
    (iv) Consider the contributory value of any interest in land such as 
water rights, minerals, or timber, to the extent they are consistent 
with the highest and best use of the property; and
    (v) If stipulated in the agreement to initiate in accordance with 
Sec. 254.4 of this subpart, estimate separately the value of each 
property optioned or acquired from multiple ownerships by the non-
Federal party for purposes of exchange, pursuant to Sec. 254.5 of this 
subpart. In this case, the appraiser also must estimate the value of the 
Federal and non-Federal properties in a similar manner.
    (2) In estimating market value, the appraiser may not independently 
add the separate values of the fractional interests to be conveyed, 
unless market evidence indicates the following:
    (i) The various interests contribute their full value (pro rata) to 
the value of the whole; and
    (ii) The valuation is compatible with the highest and best use of 
the property.
    (3) In the absence of current market information reliably supporting 
value, the authorized officer may use other acceptable and commonly 
recognized methods to determine market value.
    (c) Appraisal report standards. Appraisals prepared for exchange 
purposes must contain the following minimum information:
    (1) A summary of facts and conclusions;
    (2) The purpose and/or the function of the appraisal, a definition 
of the estate being appraised, and a statement of the assumptions and 
limiting conditions affecting the appraisal assignment, if any;
    (3) An explanation of the extent of the appraiser's research and 
actions taken to collect and confirm information relied upon in 
estimating value;
    (4) An adequate description of the physical characteristics of the 
land being appraised; a statement of all encumbrances; title 
information; location, zoning, and present use; an analysis of highest 
and best use; and at least a 5-year sales history of the property;
    (5) A disclosure of any condition that is observed during the 
inspection of the property or becomes known to the appraiser through the 
normal research which would lead the appraiser to believe that hazardous 
substances may be present on the property being appraised;

[[Page 306]]

    (6) A comparative market analysis and, if more than one method of 
valuation is used, an analysis and reconciliation of the methods used to 
support the appraiser's estimate of value;
    (7) A description of comparable sales, including a description of 
all relevant physical, legal, and economic factors such as parties to 
the transaction, source and method of financing, effect of any favorable 
financing on sale price, and verification by a party involved in the 
transaction;
    (8) An estimate of market value;
    (9) The effective date of valuation, date of appraisal, signature, 
and certification of the appraiser;
    (10) A certification by the appraiser to the following:
    (i) The appraiser has personally contacted the property owner or 
designated representative and offered the owner an opportunity to be 
present during inspection of the property;
    (ii) The appraiser has personally examined the subject property and 
all comparable sale properties relied upon in the report;
    (iii) The appraiser has no present or prospective interest in the 
appraised property; and
    (iv) The appraiser has not received compensation that was contingent 
on the analysis, opinions, or conclusions contained in the appraisal 
report; and
    (11) Copies of relevant written reports, studies, or summary 
conclusions prepared by others in association with the appraisal 
assignment which were relied upon by the appraiser to estimate value, 
which may include, but is not limited to, current title reports, mineral 
reports, or timber cruises prepared by qualified specialists.
    (d) Appraisal review. (1) Appraisal reports shall be reviewed by a 
qualified review appraiser meeting the qualifications set forth in 
paragraph (a) of this section. Statements of value prepared by agency 
appraisers are not subject to this review.
    (2) The review appraiser shall determine whether the appraisal 
report:
    (i) Is complete, logical, consistent, and supported by market 
analysis;
    (ii) Complies with the standards prescribed in paragraph (c) of this 
section; and
    (iii) Reasonably estimates the probable market value of the lands 
appraised.
    (3) The review appraiser shall prepare a written review report, 
containing at a minimum:
    (i) A description of the review process used;
    (ii) An explanation of the adequacy, relevance, and reasonableness 
of the data and methods used by the appraiser to estimate value;
    (iii) The review appraiser's conclusions regarding the appraiser's 
estimate of market value; and
    (iv) A certification by the review appraiser to the following:
    (A) The review appraiser has no present or prospective interest in 
the property which is the subject of the review report; and
    (B) The review appraiser has not received compensation that was 
contingent upon approval of the appraisal report.



Sec. 254.10  Bargaining; arbitration.

    (a) Unless the parties to an exchange agree in writing to suspend or 
modify the deadlines contained in paragraphs (a)(1) through (a)(4) of 
this section, the parties shall adhere to the following:
    (1)(i) Within 180 days from the date of receipt of the appraisal(s) 
for review and approval by the authorized officer, the parties to an 
exchange may agree on the appraised values or may initiate a process of 
bargaining or some other process to determine values. Bargaining or any 
other process must be based on an objective analysis of the valuation in 
the appraisal report(s) and is a means of reconciling differences in 
such report(s). Bargaining or another process to determine values may 
involve one or more of the following actions:
    (A) Submission of the disputed appraisal(s) to another qualified 
appraiser for review:
    (B) Request for additional appraisals;
    (C) Involvement of an impartial third party to facilitate resolution 
of the value disputes, or
    (D) Use of some other acceptable and commonly recognized practice 
for resolving value disputes.
    (ii) Any agreement based upon bargaining must be in writing and made

[[Page 307]]

part of the administrative record of the exchange. Such agreement must 
contain a reference to all relevant appraisal information and state how 
the parties reconciled or compromised appraisal information to arrive at 
an agreement based on market value.
    (2) If within 180 days from the date of receipt of the appraisal(s) 
for review and approval by the authorized officer, the parties to an 
exchange cannot agree on values but wish to continue with the land 
exchange, the appraisal(s), at the initiative of either party, must be 
submitted to arbitration, unless, in lieu of arbitration, the parties 
have employed a process of bargaining or some other process to determine 
values. If arbitration occurs, it must be conducted in accordance with 
the real estate valuation arbitration rules of the American Arbitration 
Association. The Sec. etary or an official to whom such authority has 
been delegated shall appoint an arbitrator from a list provided by the 
American Arbitration Association.
    (3) Within 30 days after completion of arbitration, the parties 
involved in the exchange must determine whether to proceed with the 
exchange, modify the exchange to reflect the findings of the arbitration 
or any other factors, or withdraw from the exchange. A decision to 
withdraw from the exchange may be made upon written notice by either 
party at this time or at any other time prior to entering into a binding 
exchange agreement.
    (4) If the parties agree to proceed with an exchange after 
arbitration, the values established by arbitration are binding upon all 
parties for a period not to exceed 2 years from the date of the 
arbitration decision.
    (b) Arbitration is limited to the disputed valuation of the lands 
involved in a proposed exchange and an arbitrator's award decision is 
limited to the value estimate(s) of the contested appraisal(s). An 
arbitrator may not include in an award decision recommendations 
regarding the terms of a proposed exchange, nor may an arbitrator's 
award decision infringe upon the authority of the Sec. etary to make all 
decisions regarding management of Federal lands and to make public 
interest determinations.



Sec. 254.11  Exchanges at approximately equal value.

    (a) The authorized officer may exchange lands which are of 
approximately equal value upon a determination that:
    (1) The exchange is in the public interest and the consummation of 
the proposed exchange will be expedited;
    (2) The value of the lands to be conveyed out of Federal ownership 
is not more than $150,000 as based upon a statement of value prepared by 
a qualified appraiser and accepted by an authorized officer;
    (3) The Federal and non-Federal lands are substantially similar in 
location, acreage, use, and physical attributes; and
    (4) There are no significant elements of value requiring complex 
analysis.
    (b) The authorized officer, not the non-Federal party, determines 
whether the Federal and non-Federal lands are approximately equal in 
value and must document how the determination was made.



Sec. 254.12  Value equalization; cash equalization waiver.

    (a) To equalize the agreed upon values of the Federal and non-
Federal lands involved in an exchange, either with or without 
adjustments of relative values as compensation for various costs, the 
parties to an exchange may agree to:
    (1) Modify the exchange proposal by adding or excluding lands; and/
or
    (2) Use cash equalization, after making all reasonable efforts to 
equalize values by adding or deleting lands.
    (b) The combined amount of any cash equalization payment and/or the 
amount of adjustments agreed to as compensation for costs under Sec. 
254.7 of this subpart may not exceed 25 percent of the value of the 
Federal lands to be conveyed.
    (c) The Sec. etary of Agriculture may not waive cash equalization 
payment due the United States, but the parties may agree to waive cash 
equalization payment due the non-Federal party. The amount to be waived 
may not exceed 3 percent of the value of the lands being exchanged out 
of Federal ownership or $15,000, whichever is less.

[[Page 308]]

    (d) A cash equalization payment may be waived only after the 
authorized officer certifies, in writing, that the waiver will expedite 
the exchange and that the public interest will be best served by the 
waiver.



Sec. 254.13  Approval of exchanges; notice of decision.

    (a) Upon completion of all environmental analyses and appropriate 
documentation, appraisals, and all other supporting studies and 
requirements to determine if a proposed exchange is in the public 
interest and in compliance with applicable law and regulations, the 
authorized officer shall decide whether to approve an exchange proposal.
    (1) When a decision to approve or disapprove an exchange is made, 
the authorized officer shall publish a notice of the availability of the 
decision in newspapers of general circulation. At a minimum, the notice 
must include:
    (i) The date of decision;
    (ii) A concise description of the decision;
    (iii) The name and title of the deciding official;
    (iv) Directions for obtaining a copy of the decision; and
    (v) The date of the beginning of the appeal period.
    (2) The authorized officer shall distribute notices to the State and 
local governmental subdivisions having authority in the geographical 
area within which the lands covered by the notice are located, the non-
Federal exchange parties, authorized users of involved Federal lands, 
the congressional delegation, and individuals who requested notification 
or filed written objections, and others as appropriate.
    (b) For a period of 45 days after the date of publication of a 
notice of the availability of a decision to approve or disapprove an 
exchange proposal, the decision shall be subject to appeal as provided 
under 36 CFR part 215 or, for eligible parties, under 36 CFR part 251, 
subpart C.

[59 FR 10867, Mar. 8, 1994, as amended at 64 FR 25822, May 13, 1999]



Sec. 254.14  Exchange agreement.

    (a) The parties to a proposed exchange may enter into an exchange 
agreement subsequent to a decision by the authorized officer to approve 
the exchange, pursuant to Sec. 254.13 of this subpart. Such an 
agreement is required if hazardous substances are present on the non-
Federal lands. An exchange agreement must contain the following:
    (1) Identification of the parties, description of the lands and 
interests to be exchanged, identification of all reserved and 
outstanding interests, stipulation of any necessary cash equalization, 
and all other terms and conditions necessary to complete an exchange;
    (2) Inclusion of the terms regarding responsibility for removal, 
indemnification (``hold harmless'' agreement), or other remedial actions 
concerning any hazardous substances on the involved non-Federal lands; 
and
    (3) The agreed upon values of the involved lands, until consummation 
of the land exchange.
    (b) An exchange agreement, as described in paragraph (a) of this 
section, is legally binding on all parties, subject to the terms and 
conditions thereof, provided:
    (1) Acceptable title can be conveyed;
    (2) No substantial loss or damage occurs to either property from any 
cause;
    (3) No undisclosed hazardous substances are found on the involved 
Federal or non-Federal lands prior to conveyance;
    (4) The exchange proposal receives any required Sec. etarial 
approval;
    (5) No objections are raised during any required congressional 
oversight;
    (6) In the event of an appeal under 36 CFR part 215 or 36 CFR part 
251, subpart C, a decision to approve an exchange proposal pursuant to 
Sec. 254.13 of this subpart is upheld; and
    (7) The agreement is not terminated by mutual consent or upon such 
terms as may be provided in the agreement.
    (c) In the event of a failure to perform or to comply with the terms 
of an exchange agreement, the noncomplying party is liable for all costs 
borne by the other party as a result of the proposed exchange, 
including, but not limited to, land surveys, appraisals, mineral 
examinations, timber cruises, title searches, title curative actions, 
cultural resource surveys and mitigation, hazardous substance surveys 
and

[[Page 309]]

controls, removal of encumbrances, arbitration, curing deficiencies 
preventing highest and best use of the land, and any other expenses 
incurred in processing the proposed land exchange.
    (d) Absent an executed exchange agreement, an action taken by the 
parties prior to consummation of an exchange does not create any 
contractual or other binding obligations or rights enforceable against 
any party.

[59 FR 10867, Mar. 8, 1994; 59 FR 15501, Apr. 1, 1994, as amended at 64 
FR 25822, May 13, 1999]



Sec. 254.15  Title standards.

    (a) Title evidence. (1) Unless otherwise specified by the USDA 
Office of the General Counsel, evidence of title for the non-Federal 
lands being conveyed to the United States must be in recordable form and 
in conformance with the Department of Justice regulations and 
``Standards for the Preparation of Title Evidence in Land Acquisitions 
by the United States'' in effect at the time of conveyance.
    (2) The United States is not required to furnish title evidence for 
the Federal lands being exchanged.
    (b) Conveyance documents. (1) Unless otherwise specified by the USDA 
Office of the General Counsel, all conveyances to the United States must 
be prepared, executed, and acknowledged in accordance with the 
Department of Justice regulations and ``Standards for the Preparation of 
Title Evidence in Land Acquisitions by the United States'' in effect at 
the time of conveyance.
    (2) Conveyances of lands from the United States are made by patent, 
quitclaim deed, or deed and without express or implied warranties, 
except as to hazardous substances pursuant to Sec. 254.3 of this 
subpart.
    (c) Title encumbrances--(1) Non-Federal lands. (i) Title to the non-
Federal lands must be acceptable to the United States. For example, 
encumbrances such as taxes, judgment liens, mortgages, and other 
objections or title defects shall be eliminated, released, or waived in 
accordance with requirements of the preliminary title opinion of the 
USDA Office of the General Counsel or the Department of Justice, as 
appropriate.
    (ii) The United States shall not accept lands in which there are 
reserved or outstanding interests that would interfere with the use and 
management of the land by the United States or would otherwise be 
inconsistent with the authority under which, or the purpose for which, 
the lands are to be acquired. Reserved interests of the non-Federal 
landowner are subject to the appropriate rules and regulations of the 
Sec. etary, except upon special finding by the Chief, Forest Service in 
the case of States, agencies, or political subdivisions thereof (36 CFR 
part 251, subpart A).
    (iii) Any personal property owned by the non-Federal party which is 
not a part of the exchange proposal, should be removed by the non-
Federal party prior to acceptance of title by the United States, unless 
the authorized officer and the non-Federal party to the exchange 
previously agree upon a specified period to remove the personal 
property. If the personal property is not removed prior to acceptance of 
title or within the otherwise prescribed time, it shall be deemed 
abandoned and shall become vested in the United States.
    (iv) The exchange parties must reach agreement on the arrangements 
for the relocation of any tenants. Qualified tenants occupying non-
Federal lands affected by a land exchange may be entitled to relocation 
benefits under 49 CFR 24.2. Unless otherwise provided by law or 
regulation (49 CFR 24.101(a)(1)), relocation benefits are not applicable 
to owner-occupants involved in exchanges with the United States provided 
the owner-occupants are notified in writing that the non-Federal lands 
are being acquired by the United States on a voluntary basis.
    (2) Federal lands. If Federal lands proposed for exchange are 
occupied under grant, permit, easement, or non-mineral lease by a third 
party who is not a party to the exchange, the third party holder of such 
authorization and the non-Federal party to the exchange may reach 
agreement as to the disposition of the existing use(s) authorized under 
the terms of the grant, permit, easement, or lease. The non-Federal 
exchange party shall submit documented proof of such agreement prior to

[[Page 310]]

issuance of a decision to approve the land exchange, as instructed by 
the authorized officer. If an agreement cannot be reached, the 
authorized officer shall consider other alternatives to accommodate the 
authorized use or shall determine whether the public interest will be 
best served by terminating such use pursuant to 36 CFR 251.60.



Sec. 254.16  Case closing.

    (a) Title transfers. Unless otherwise agreed, and notwithstanding 
the decision in United States v. Schurz, 102 U.S. 378 (1880), or any 
other law or ruling to the contrary, title to both the non-Federal and 
Federal lands pass simultaneously and are deemed accepted by the United 
States and the non-Federal landowner, respectively, when the documents 
of conveyance are recorded in the county clerk's or other local 
recorder's office. Before recordation, all instructions, requirements, 
and conditions set forth by the United States and the non-Federal 
landowner must be met. The minimum requirements and conditions necessary 
for recordation include the following, as appropriate:
    (1) The determination by the authorized officer that the United 
States will receive possession, acceptable to it, of such lands;
    (2) The issuance of title evidence as of the date of recordation 
which conforms to the instructions and requirements of the USDA Office 
of the General Counsel's preliminary title opinion; and
    (3) Continuation searches disclosing no matters of record that would 
require any change in the aforementioned title evidence as issued.
    (b) Automatic segregation of lands. Subject to valid existing 
rights, non-Federal lands acquired through exchange by the United States 
automatically are segregated from appropriation under the public land 
laws and mineral laws until midnight of the 90th day after acceptance of 
title by the United States, and the public land records must be noted 
accordingly. Thereafter, the lands will be open automatically to 
operation of the public land laws and mineral laws, except to the extent 
otherwise provided by law, unless action is taken pursuant to 43 CFR 
part 2300 to initiate a withdrawal within the 90-day period.



Sec. 254.17  Information requirements.

    The requirements governing the preparation of an agreement to 
initiate in Sec. 254.4 of this subpart and an exchange agreement in 
Sec. 254.14 of this subpart constitute information requirements as 
defined by the Paperwork Reduction Act of 1980 (44 U.S.C. 3507) and have 
been approved for use pursuant to 5 CFR part 1320 and assigned OMB 
Control Number 0596-0105.

[59 FR 10867, Mar. 8, 1994; 59 FR 15501, Apr. 1, 1994]



                   Subpart B_National Forest Townsites

    Authority: Pub. L. 85-569; 72 Stat. 438; 16 U.S.C. 478a, as amended 
by sec. 213, Pub. L. 94-579; 90 Stat. 2743.

    Source: 50 FR 29673, July 22, 1985, unless otherwise noted.



Sec. 254.20  Purpose and scope.

    (a) A Forest Service official may, upon application, set aside and 
designate for townsite purposes up to 640 acres of National Forest 
System lands adjacent to or contiguous to an established community in 
Alaska, Arizona, California, Colorado, Idaho, Montana, Nevada, New 
Mexico, Oregon, Utah, Washington, and Wyoming.
    (b) National Forest System lands, needed by a community, may be sold 
under the Townsite Act, for fair market value if those lands would serve 
indigenous community objectives that outweigh the public objectives and 
values of retaining the lands in Federal ownership. Indigenous community 
objectives may include space for housing and for service industries, 
expansion of existing economic enterprises, new industries utilizing 
local resources and skills, public schools, public health facilities, 
community parks, and other recreation areas for local citizens, but 
would exclude such uses as commercial enterprises or new industries and 
housing projects that would change the character of the local community.

[[Page 311]]



Sec. 254.21  Applications.

    (a) An application to purchase National Forest System lands--
    (1) Must be made by designated officials) authorized to do business 
in the name of a county, city, or local governmental subdivision;
    (2) May be in the form of a letter, ordinance, or resolution;
    (3) Must be furnished to the District Ranger or the Forest 
Supervisor for the National Forest area in which the lands are situated; 
and
    (4) Must be limited to 640 acres or less adjacent to an established 
community.
    (b) An application must be accompanied by--
    (1) A description of the land desired; and
    (2) A development plan, consisting of a narrative statement and map, 
which gives a detailed description of the intended use of the site and 
how essential community needs will be met by the purchase.



Sec. 254.22  Designation and public notice.

    (a) A Forest Service official must--
    (1) Ensure the application meets the requirements of Sec. 254.21;
    (2) Process an order to set aside and designate the lands for 
townsite purposes; and
    (3) Transmit, where applicable, a copy of the designation order to 
the State Director, Bureau of Land Management.
    (b) The designation order will segregate the lands from other forms 
of entry as long as the application remains in force.
    (c) The designation order does not preclude compatible land 
adjustments under the Sec. etary's authority within the area set aside.
    (d) A Forest Service official must prepare a public notice of the 
proposed townsite sale to be inserted once a week for 4 consecutive 
weeks in a local newspaper:
    (1) The notice shall include descriptive information on the proposed 
townsite sale and identify the applicant and responsible Forest Service 
official; and
    (2) A period of 45 days, from first date of publication, must be 
provided for accepting public comments.



Sec. 254.23  Studies, assessments, and approval.

    (a) After initial public notice has been published, a Forest Service 
official must conduct the necessary studies and assessments to--
    (1) Determine if the applicant has made a satisfactory showing that 
the land will meet essential community needs resulting from internal 
growth;
    (2) Determine if lands applied for would serve indigenous community 
objectives that outweigh other public objectives and values which would 
be served by maintaining such a tract in Federal ownership;
    (3) Determine if the sale would substantially affect or impair 
important scenic, wildlife, environmental, historical, archeological, or 
cultural values;
    (4) Evaluate the applicability of public comments;
    (5) Identify the extent of valid existing rights and uses; and
    (6) Determine if zoning ordinances, covenants, or standards are 
needed to protect adjacent National Forest land and to protect or 
mitigate valid existing rights and uses.
    (b) Upon approval, the authorized Forest Service official shall take 
appropriate steps to have an assessment made of the fair market value of 
the land and process the conveyance pursuant to Secs. 254.24, 
254.25, and 254.26.
    (c) Upon disapproval, a Forest Service official shall--
    (1) Notify the applicant in writing of the reasons the proposal is 
not acceptable;
    (2) Inform the applicant of alternate proposals under other 
authorities and/or appeal rights.



Sec. 254.24  Conveyance.

    (a) Conveyance of the approved tract(s) may be made by a single 
transaction or by multiple transactions spread over a period of time in 
accordance with a prearranged schedule.
    (b) The authorized Forest Service official shall--
    (1) Execute and convey title to the townsite tract(s) by quitclaim 
deed;
    (2) Ensure deeds are free of terms and covenants, except those 
deemed necessary to ensure protection of adjacent National Forest System 
land and/or valid existing rights and uses; and

[[Page 312]]

    (3) Deliver executed deeds to the governmental body upon--
    (i) Adoption of zoning ordinance and development plan if found 
necessary; and
    (ii) Notice from the authorized Forest Service Fiscal Agent that 
payment has been received.



Sec. 254.25  Survey.

    The authorized Forest Service official shall conduct or provide for 
the necessary tract survey and boundary posting of National Forest 
System land.



Sec. 254.26  Appraisal.

    Fair market value of townsite tracts shall be determined following 
Forest Service appraisal procedures and the Uniform Standards for 
Federal Acquisitions.



                  Subpart C_Conveyance of Small Tracts

    Authority: Pub. L. 97-465; 96 Stat. 2535.

    Source: 49 FR 1185, Jan. 10, 1984, unless otherwise noted.



Sec. 254.30  Purpose.

    These regulations set forth procedures by which the Sec. etary of 
Agriculture may resolve land disputes and management problems pursuant 
to Pub. L. 97-465, commonly called the Small Tracts Act, by conveying, 
through sale, exchange, or interchange, three categories of tracts of 
land: Parcels encroached on, road rights-of-way, and mineral survey 
fractions. Implementation of these regulations does not constitute 
authorization of nor consent to adverse possession against lands 
administered by the Sec. etary of Agriculture.



Sec. 254.31  Definitions.

    For the purpose of this subpart,
    An applicant is a person who occupies or has improvements on 
National Forest System land under claim of title or color of title, or 
who owns land abutting or underlying a road right-of-way, or who owns 
land interspersed with or adjacent to mineral survey fractions.
    Approximately equal value is a comparative estimate of value of 
lands involved in an interchange where elements of value, such as 
physical characteristics and other amenities, are readily apparent and 
substantially similar.
    Claim of title is a claim of land as a person's own, based on any 
reasonable evidence which establishes the person's actual use of the 
land as though the person had full title thereto from the time the 
person obtained ownership of abutting land.
    Color of title arises from an instrument purporting to convey title 
to a tract of land.
    Encroachments are improvements occupied or used on National Forest 
System land under claim of title or color of title.
    Exchange is a discretionary, voluntary transaction involving mutual 
transfers of land or interests in land between the Sec. etary of 
Agriculture acting by and through the Forest Service and a nonfederal 
entity.
    Good faith is honesty of intention and freedom from knowledge of 
circumstances which ought to put a prudent person upon inquiry.
    Improvements mean an addition to property costing labor or capital 
which affects its value. The term generally includes fixtures, 
structures and attendant facilities, or buildings.
    Interchange is a land transfer in which the Sec. etary and another 
person exchange lands or interests in lands of approximately equal value 
without a formal appraisal.
    Mineral survey fractions are small parcels of National Forest System 
lands interspersed with or adjacent to lands transferred out of Federal 
ownership under the mining laws.
    Person includes any nonfederal entity such as a State or any 
political subdivision as well as any individual or business entity.
    Sec. etary refers to the Secretary of the United States Department of 
Agriculture.



Sec. 254.32  Encroachments.

    (a) Conveyances under this subpart are limited to tracts of 10 acres 
or less to resolve encroachments by persons:
    (1) To whom no advance notice was given that the improvements 
encroached or would encroach, and

[[Page 313]]

    (2) Who in good faith relied on an erroneous survey, title search, 
or other land description which did not reveal such encroachment.
    (b) Forest Service officials shall consider the following factors 
when determining whether to convey lands upon which encroachments exist:
    (1) The location of the property boundaries based on historical 
location and continued acceptance and maintenance,
    (2) Factual evidence of claim of title or color of title,
    (3) Notice given to persons encroaching on National Forest System 
lands,
    (4) Degree of development in the encroached upon area, and
    (5) Creation of an uneconomic remnant.



Sec. 254.33  Road rights-of-way.

    (a) Reserved or acquired road right-of-way parcels subject to 
conveyance under this subpart are limited to those which are 
substantially surrounded by lands not owned by the United States.
    (b) Forest Service officials shall consider public road system 
right-of-way needs based on National Forest transportation planning and 
State and local law before making any conveyance of rights-of-way.
    (c) Reimbursement will be required for the value of any improvements 
made by the United States or other highway authorities, unless waived by 
the Chief of the Forest Service.



Sec. 254.34  Mineral survey fractions.

    (a) Mineral survey fractions subject to conveyance under this 
subpart are limited to those tracts which:
    (1) Cannot be efficiently administered because of size, shape, or 
location;
    (2) Are occupied or could be occupied or used by adjoining owners; 
and
    (3) When sold separately or aggregated in one transaction, do not 
exceed 40 acres.
    (b) Forest Service officials shall consider the following criteria 
in determining whether to convey mineral survey fractions under this 
subpart:
    (1) The mineral survey fractions are interspersed among and are more 
or less an integral part of private land holdings;
    (2) The feasibility and cost of surveying the parcels in order to 
manage them effectively;
    (3) The size, shape, and location of the parcels as they affect 
management, utility, access, occupancy or use of the parcels or the 
lands with which they are interspersed.



Sec. 254.35  Limitations.

    (a) Lands within the National Wilderness Preservation System, the 
National Wild and Scenic Rivers System, the National Trails System, and 
National Monuments are excluded from any conveyance under these 
provisions.
    (b) Lands within National Recreation Areas may not be conveyed by 
sale under this subpart.
    (c) The value of Federal lands conveyed in any transaction, pursuant 
to this subpart, shall not exceed $150,000.
    (d) Compensation for lands conveyed shall be of at least equal 
value, or in the case of interchange, of approximately equal value, and 
may be in the form of land, interest in land (including minerals), or 
cash, or any combination thereof.
    (e) The sale, exchange, or interchange of lands or interest in lands 
under these rules are discretionary and shall be made only if found to 
be in the public interest.
    (f) The abutting landowner(s) shall have the first right of 
acquisition.
    (g) The area of land conveyed shall be limited to the minimum 
necessary to resolve encroachment or land management problems.

[49 FR 1185, Jan. 10, 1984; 49 FR 2762, Jan. 23, 1984]



Sec. 254.36  Determining public interest.

    (a) The requirements of Sec. 254.35 and of one of Sec.254.32, 
Sec. 254.33, or Sec.254.34 must be met before a determination of 
public interest can be made.
    (b) Before a conveyance is made under this subpart, such conveyance 
must be determined to be in the public interest.
    (c) Forest Service officials shall consider the following criteria 
in determining when the public interest will be served:
    (1) Sale, exchange, or interchange of the affected lands is not 
practicable

[[Page 314]]

under any other authority of the Sec. etary;
    (2) Administration and management of National Forest System lands 
will be more efficient and will result in improved utilization;
    (3) Access to and use and enjoyment of National Forest System lands 
by the general public will not be unduly impeded or restricted;
    (4) New or extensive inholdings which would create management 
problems will not be established;
    (5) Scenic, wildlife, environmental, historical, archaeological, or 
cultural values will not be substantially affected or impaired;
    (6) Existence of structures authorized under a special use permit or 
easement, and
    (7) Applicable Federal, State, and local laws, rules, regulations, 
and zoning ordinances will not be violated.



Sec. 254.37-254.39  [Reserved]



Sec. 254.40  Applications.

    (a) A request for conveyance of National Forest System land must be 
made in writing to the District Ranger or the Forest Supervisor who has 
administrative jurisdiction over the land.
    (b) The applicant shall bear all reasonable costs of administration, 
survey, and appraisal incidental to the conveyance.
    (c) Costs incidental to the conveyance may be waived at the 
discretion of the Chief of the Forest Service.



Sec. 254.41  Public sale or exchange in absence of application.

    (a) Mineral survey fractions or road rights-of-way which have not 
been applied for by an abutting landowner may be offered to the public 
for sale or exchange at not less than fair market value.
    (b) Public notice of a proposed sale of land for which there is no 
applicant shall be published once a week for four consecutive weeks in a 
local newspaper prior to the date of sale.
    (c) The public notice shall describe the lands to be sold, minimum 
acceptable price, conditions of sale, sealed or oral bid procedures, 
date and location of sale.



Sec. 254.42  Valuation of tracts.

    (a) Approximately equal value shall be determined by comparing and 
evaluating the elements of value on the lands or interest in lands to be 
interchanged. Elements of value to be considered include size, shape, 
location, physical attributes, functional utility, proximity of other 
similar sites, and amenities in the immediate environs of the parcel. 
Findings that tracts are approximately equal in value shall be 
documented. An applicant must signify acceptance of the value 
determination by signing the documented findings prior to the 
interchange.
    (b) Equal value in sale or exchange transactions shall be developed 
by recognized appraisal methods following Forest Service appraisal 
procedures and the Uniform Appraisal Standards for Federal Land 
Acquisition. The date of the value estimate will be current with the 
date of sale or exchange.
    (c) Improvements to National Forest System land made by any persons 
other than the Government may be excluded from the property value 
determinations.



Sec. 254.43  Surveys.

    All necessary tract surveys of National Forest System land shall be 
conducted by a licensed private surveyor under Forest Service 
instructions, contracted by the person applying for the conveyance, or 
by a Forest Service surveyor. The person will also be required to have 
all Federal property boundaries resulting from a conveyance marked and 
posted to Forest Service standards.



Sec. 254.44  Document of conveyance.

    (a) Title to the United States may be conveyed by quitclaim or 
warranty deed. The United States will convey title only by quitclaim 
deed.
    (b) Deeds shall be free of terms, conditions, and convenants except 
those deemed necessary to ensure protection of the public interest.
    (c) A copy of all documents of conveyance will be transmitted after 
recordation, where applicable, to the appropriate State Office of the 
Bureau of Land Management.

[[Page 315]]



PART 261_PROHIBITIONS--Table of Contents




                     Subpart A_General Prohibitions

Sec. 
261.1 Scope.
261.1a Special use authorizations, contracts and operating plans.
261.1b Penalty.
261.2 Definitions.
261.3 Interfering with a Forest Officer, volunteer, or human resource 
          program enrollee or giving false report to a Forest Officer.
261.4 Disorderly conduct.
261.5 Fire.
261.6 Timber and other forest products.
261.7 Livestock.
261.8 Fish and wildlife.
261.9 Property.
261.10 Occupancy and use.
261.11 Sanitation.
261.12 National Forest System roads and trails.
261.13 Motor vehicle use.
261.14 Use by over-snow vehicles.
261.15 Use of vehicles off roads.
261.16 Developed recreation sites.
261.17 Recreation fees.
261.18 National Forest Wilderness.
261.19 Boundary Waters Canoe Area Wilderness.
261.20 Pacific Crest National Scenic Trail.
261.21 National Forest primitive areas.
261.22 Unauthorized use of ``Smokey Bear'' and ``Woodsy Owl'' symbol.
261.23 Wild free-roaming horses and burros.

           Subpart B_Prohibitions in Areas Designated by Order

261.50 Orders.
261.51 Posting.
261.52 Fire.
261.53 Special closures.
261.54 Forest development roads.
261.55 National Forest System trails.
261.56 Use of vehicles off forest development roads.
261.57 National Forest wilderness.
261.58 Occupancy and use.

                    Subpart C_Prohibitions in Regions

261.70 Issuance of regulations.
261.71 Regulations applicable to Region 1, Northern Region, as defined 
          in Sec. 200.2. [Reserved]
261.72 Regulations applicable to Region 2, Rocky Mountain Region, as 
          defined in Sec. 200.2. [Reserved]
261.73 Regulations applicable to Region 3, Southwestern Region, as 
          defined in Sec. 200.2. [Reserved]
261.74 Regulations applicable to Region 4, Intermountain Region, as 
          defined in Sec. 200.2. [Reserved]
261.75 Regulations applicable to Region 5, California Region, as defined 
          in Sec. 200.2.
261.76 Regulations applicable to Region 6, Pacific Northwest Region, as 
          defined in Sec. 200.2. [Reserved]
261.77 Prohibitions in Region 8, Southern Region.
261.78 Prohibitions applicable to Region 9, Eastern Region, as defined 
          in Sec. 200.2.
261.79 Regulations applicable to Region 10, Alaska Region, as defined in 
          Sec. 200.2. [Reserved]

    Authority: 7 U.S.C. 1011(f); 16 U.S.C. 472, 551, 620(f), 1133(c), 
(d)(1), 1246(i).

    Source: 42 FR 2957, Jan. 14, 1977, unless otherwise noted.



                     Subpart A_General Prohibitions



Sec. 261.1  Scope.

    (a) The prohibitions in this part apply, except as otherwise 
provided, when:
    (1) An act or omission occurs in the National Forest System or on a 
National Forest System road or trail.
    (2) An act or omission affects, threatens, or endangers property of 
the United States administered by the Forest Service.
    (3) An act or omission affects, threatens, or endangers a person 
using, or engaged in the protection, improvement or administration of 
the National Forest System or a National Forest System road or trail.
    (4) An act or omission occurs within the designated boundaries of a 
component of the National Wild and Scenic Rivers System.
    (b) Nothing in this part shall preclude activities as authorized by 
the Wilderness Act of 1964 or the U.S. Mining Laws Act of 1872 as 
amended.

[42 FR 35958, July 13, 1977, as amended at 43 FR 32136, July 25, 1978; 
46 FR 33519, June 30, 1981; 66 FR 3218, Jan. 12, 2001]



Sec. 261.1a  Special use authorizations, contracts and operating plans.

    The Chief, each Regional Forester, each Forest Supervisor, and each 
District Ranger or equivalent officer may issue special-use 
authorizations, award contracts, or approve operating plans authorizing 
the occupancy or use of a road, trail, area, river, lake, or other part 
of the National Forest System in accordance with authority which is 
delegated elsewhere in this chapter or

[[Page 316]]

in the Forest Service Manual. These Forest Officers may permit in the 
authorizing document or approved plan an act or omission that would 
otherwise be a violation of a subpart A or subpart C regulation or a 
subpart B order. In authorizing such uses, the Forest Officer may place 
such conditions on the authorization as that officer considers necessary 
for the protection or administration of the National Forest System, or 
for the promotion of public health, safety, or welfare.

[49 FR 25450, June 21, 1984]



Sec. 261.1b  Penalty.

    Any violation of the prohibitions of this part (261) shall be 
punished by a fine of not more than $500 or imprisonment for not more 
than six months or both pursuant to title 16 U.S.C., section 551, unless 
otherwise provided.

[46 FR 33519, June 30, 1981]



Sec. 261.2  Definitions.

    The following definitions apply to this part:
    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.
    Archaeological resource means any material remains of prehistoric or 
historic human life or activities which are of archaeological interest 
and are at least 50 years of age, and the physical site, location, or 
context in which they are found.
    Area. A discrete, specifically delineated space that is smaller, and 
in most cases much smaller, than a Ranger District.
    Campfire means a fire, not within any building, mobile home or 
living accommodation mounted on a motor vehicle, which is used for 
cooking, personal warmth, lighting, ceremonial, or esthetic purposes. 
Fire includes campfire.
    Camping means the temporary use of National Forest System lands for 
the purpose of overnight occupancy without a permanently-fixed 
structure.
    Camping equipment means the personal property used in or suitable 
for camping, and includes any vehicle used for transportation and all 
equipment in possession of a person camping. Food and beverage are not 
considered camping equipment.
    Cave means any naturally occurring void, cavity, recess, or system 
of interconnected passages beneath the surface of the earth or within a 
cliff or ledge and which is large enough to permit a person to enter, 
whether the entrance is excavated or naturally formed. Such term shall 
include any natural pit, sinkhole, or other opening which is an 
extensive of a cave entrance or which is an integral part of the cave.
    Cave resources mean any materials or substances occurring in caves 
including, but not limited to, biotic, cultural, mineralogic, 
paleontologic, geologic, and hydrologic resources.
    Commercial use or activity-- any use or activity on National Forest 
System lands (a) where an entry or participation fee is charged, or (b) 
where the primary purpose is the sale of a good or service, and in 
either case, regardless of whether the use or activity is intended to 
produce a profit.
    Damaging means to injure, mutilate, deface, destroy, cut, chop, 
girdle, dig, excavate, kill or in any way harm or disturb.
    Developed recreation site means an area which has been improved or 
developed for recreation.
    Distribution of printed material-- disseminating, posting, affixing, 
or erecting printed material as defined in this section.
    Forest officer means an employee of the Forest Service.
    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.
    Historical resource means any structural, architectural, 
archaeological, artifactual or other material remains of past human life 
or activities which are of historical interest and are at least 50 years 
of age, and the physical

[[Page 317]]

site, location, or context in which they are found.
    Motorized equipment means any machine activated by a nonliving power 
source except small battery-powered handcarried devices such as 
flashlights, shavers, Geiger counters, and cameras.
    Motor vehicle means 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.
    National Forest System includes all national forest lands and waters 
reserved or withdrawn from the public domain of the United States, 
national forest lands and waters acquired through purchase, exchange, 
donation, or other means, national grasslands and land utilization 
projects and waters administered under title III of the Bankhead-Jones 
Farm Tenant Act (50 Stat. 525, 7 U.S.C. 1010-1012), and other lands, 
waters, or interests therein acquired under the Wild and Scenic River 
Act (16 U.S.C. 1271-1287) or National Trails System Act (16 U.S.C. 1241-
1249).
    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.
    National Forest wilderness means those parts of the National Forest 
System which were designated units of the National Wilderness 
Preservation System by the Wilderness Act of September 3, 1964, and such 
other areas of the National Forest System as are added to the wilderness 
system by act of Congress.
    Operating plan means a plan of operations as provided for in 36 CFR 
part 228, subpart A, and a surface use plan of operations as provided 
for in 36 CFR part 228, subpart E.
    Paleontological resource means any evidence of fossilized remains of 
multicellular invertebrate and vertebrate animals and multicellular 
plants, including imprints thereof. Organic remains primarily collected 
for use as fuel such as coal and oil are Paleontological Resources, but 
are excluded from the prohibitions under the rule.
    Person means natural person, corporation, company, partnership, 
trust, firm, or association of persons.
    Permission means oral authorization by a forest officer.
    Permit means authorization in writing by a forest officer.
    Prehistoric resource means any structural, architectural, 
archaeological, artifactual or other material remains of past human life 
or activity generally prior to the advent of written records and of 
anthropological interest, and the physical site, location, or context in 
which they are found.
    Primitive areas are those areas within the National Forest System 
classified as Primitive on the effective date of the Wilderness Act, 
September 3, 1964.
    Printed material--any written and/or graphic material including but 
not limited to pamphlets, brochures, photographs, graphics, signs, and 
posters.
    Publicly nude means nude in any place where a person may be observed 
by another person. Any person is nude if the person has failed to cover 
the rectal area, pubic area or genitals. A female person is also nude if 
she has failed to cover both breasts below a point immediately above the 
top of the areola. Each such covering must be fully opaque. No person 
under the age of 10 years shall be considered publicly nude.
    Recreation fee means a standard amenity recreation fee, an expanded 
amenity recreation fee, or a special recreation permit fee as defined in 
section 802(8) of the Federal Lands Recreation Enhancement Act (16 
U.S.C. 6801(8)).
    Special-use authorization means a permit, term permit, lease or 
easement which allows occupancy, or use rights or privileges of National 
Forest System land.
    State means any State, the Commonwealth of Puerto Rico, and the 
District of Columbia.
    State law means the law of any State in whose exterior boundaries an 
act or omission occurs regardless of whether State law is otherwise 
applicable.

[[Page 318]]

    Stove fire means a campfire built inside an enclosed stove or grill, 
a portable brazier, or a pressurized liquid or gas stove, including a 
space-heating device.
    Unauthorized livestock means any cattle, sheep, goat, hog, or equine 
not defined as a wild free-roaming horse or burro by Sec. 
222.20(b)(13), which is not authorized by permit to be upon the land on 
which the livestock is located and which is not related to use 
authorized by a grazing permit; provided, that noncommercial pack and 
saddle stock used by recreationists, travelers, other Forest visitors 
for occasional trips, as well as livestock to be trailed over an 
established driveway when there is no overnight stop on Forest Service 
administered land do not fall under this definition.
    Vehicle means any device in, upon, or by which any person or 
property is or may be transported, including any frame, chassis, or body 
of any motor vehicle, except devices used exclusively upon stationary 
rails or tracks.
    Volunteer or hosted enrollee means any person, not a Forest Service 
employee, officially participating in a Forest Service human resource 
program as authorized by an act of Congress and identified to accomplish 
one or more of the following objectives: provide skills training; 
education; useful work; develop understanding of ecological systems and 
conservation of natural resources; build cultural and communication 
bridges between various socioeconomic groups; and further the 
administration, development, and management of National Forest 
resources, forest research, and State and Private Forest activities.
    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 National Forest System lands on or after December 
15, 1971, by accident, negligence, or willful disregard of private 
ownership. Unbranded, claimed horses and burros, where the claim is 
found to be erroneous, are also considered as wild and free-roaming if 
they meet the criteria above.

[42 FR 2957, Jan. 14, 1977, as amended at 42 FR 35959, July 13, 1977; 46 
FR 33519, June 30, 1981; 47 FR 29230, July 6, 1982; 49 FR 25450, June 
24, 1984; 51 FR 1250, Jan. 10, 1986; 55 FR 10452, Mar. 21, 1990; 59 FR 
31152, June 17, 1994; 60 FR 45295, Aug. 30, 1995; 66 FR 3218, Jan. 12, 
2001; 69 FR 41965, July 13, 2004; 70 FR 68290, Nov. 9, 2005; 70 FR 
70498, Nov. 22, 2005]



Sec. 261.3  Interfering with a Forest officer, volunteer, or human resource program enrollee or giving false report to a Forest officer.

    The following are prohibited:
    (a) Threatening, resisting, intimidating, or interfering with any 
forest officer engaged in or on account of the performance of his 
official duties in the protection, improvement, or administration of the 
National Forest System is prohibited.
    (b) Giving any false, fictitious or fraudulent report or other 
information to any Forest Officer engaged in or on account of the 
performance of his official duties knowing that such report or other 
information contains false, fictitious or fraudulent statement or entry.
    (c) Threatening, intimidating, or intentionally interfering with any 
Forest officer, volunteer, or human resource program enrollee while 
engaged in, or on account of, the performance of duties for the 
protection, improvement, or administration of the National Forest System 
or other duties assigned by the Forest Service.

[42 FR 2957, Jan. 14, 1977, as amended at 46 FR 33520, June 30, 1981; 49 
FR 25450, June 21, 1984]



Sec. 261.4  Disorderly conduct.

    The following are prohibited:
    (a) Engaging in fighting.
    (b) Addressing any offensive, derisive, or annoying communication to 
any other person who is lawfully present when such communication has a 
direct tendency to cause acts of violence by the person to whom, 
individually, the remark is addressed.
    (c) Make statements or other actions directed toward inciting or 
producing imminent lawless action and likely to incite or produce such 
action.

[[Page 319]]

    (d) Causing public inconvenience, annoyance, or alarm by making 
unreasonably loud noise.

[46 FR 33520, June 30, 1981]



Sec. 261.5  Fire.

    The following are prohibited:
    (a) Carelessly or negligently throwing or placing any ignited 
substance or other substance that may cause a fire.
    (b) Firing any tracer bullet or incendiary ammunition.
    (c) Causing timber, trees, slash, brush or grass to burn except as 
authorized by permit.
    (d) Leaving a fire without completely extinguishing it.
    (e) Allowing a fire to escape from control.
    (f) Building, attending, maintaining, or using a campfire without 
removing all flammable material from around the campfire adequate to 
prevent its escape.

[42 FR 2957, Jan. 14, 1977, as amended at 46 FR 33520, June 30, 1981]



Sec. 261.6  Timber and other forest products.

    The following are prohibited:
    (a) Cutting or otherwise damaging any timber, tree, or other forest 
product, except as authorized by a special-use authorization, timber 
sale contract, or Federal law or regulation.
    (b) Cutting any standing tree, under permit or timber sale contract, 
before a Forest Officer has marked it or has otherwise designated it for 
cutting.
    (c) Removing any timber or other forest product cut under permit or 
timber sale contract, except to a place designated for scaling, or 
removing it from that place before it is scaled, measured, counted, or 
otherwise accounted for by a forest officer.
    (d) Stamping, marking with paint, or otherwise identifying any tree 
or other forest product in a manner similar to that employed by forest 
officers to mark or designate a tree or any other forest product for 
cutting or removal.
    (e) Loading, removing or hauling timber or other forest product 
acquired under any permit or timber sale contract unless such product is 
identified as required in such permit or contract.
    (f) Selling or exchanging any timber or other forest product 
obtained under free use pursuant to Secs. 223.5 through 223.11.
    (g) Violating any timber export or substitution restriction in 
Secs. 223.160 through 223.164.
    (h) Removing any timber, tree or other forest product, except as 
authorized by a special-use authorization, timber sale contract, or 
Federal law or regulation.
    (i) Violating the Forest Resources Conservation and Shortage Relief 
Act of 1990 (16 U.S.C. 620, et seq.), or its implementing regulations at 
36 CFR 223.185-223.203.

[42 FR 2957, Jan. 14, 1977; 42 FR 24739, May 16, 1977, as amended at 49 
FR 25450, June 21, 1984; 51 FR 1250, Jan. 10, 1986; 60 FR 46934, Sept. 
8, 1995]



Sec. 261.7  Livestock.

    The following are prohibited:
    (a) Placing or allowing unauthorized livestock to enter or be in the 
National Forest System or other lands under Forest Service control.
    (b) Not removing unauthorized livestock from the National Forest 
System or other lands under Forest Service control when requested by a 
forest officer.
    (c) Failing to reclose any gate or other entry.
    (d) Molesting, injuring, removing, or releasing any livestock 
impounded under Sec. 262.10 while in the custody of the Forest Service 
or its authorized agents.

[42 FR 35959, July 13, 1977, as amended at 51 FR 1251, Jan. 10, 1986]



Sec. 261.8  Fish and wildlife.

    The following are prohibited to the extent Federal or State law is 
violated:
    (a) Hunting, trapping, fishing, catching, molesting, killing or 
having in possession any kind of wild animal, bird, or fish, or taking 
the eggs of any such bird.
    (b) Possessing a firearm or other implement designed to discharge a 
missile capable of destroying animal life.
    (c) Possessing equipment which could be used for hunting, fishing, 
or trapping.
    (d) Possessing a dog not on a leash or otherwise confined.

[[Page 320]]

    (e) Curtail the free movement of any animal or plant life into or 
out of a cave, except as authorized to protect a cave resource.

[42 FR 2957, Jan. 14, 1977, as amended at 46 FR 33520, June 30, 1981; 59 
FR 31152, June 17, 1994]



Sec. 261.9  Property.

    The following are prohibited:
    (a) Damaging any natural feature or other property of the United 
States.
    (b) Removing any natural feature or other property of the United 
States.
    (c) Damaging any plant that is classified as a threatened, 
endangered, sensitive, rare, or unique species.
    (d) Removing any plant that is classified as a threatened, 
endangered, sensitive, rare, or unique species.
    (e) Entering any building, structure, or enclosed area owned or 
controlled by the United States when such building, structure, or 
enclosed area is not open to the public.
    (f) Using any pesticide except for personal use as an insect 
repellent or as provided by special-use authorization for other minor 
uses.
    (g) Digging in, excavating, disturbing, injuring, destroying, or in 
any way damaging any prehistoric, historic, or archaeological resource, 
structure, site, artifact, or property.
    (h) Removing any prehistoric, historic, or archaeological resource, 
structure, site, artifact, property.
    (i) Excavating, damaging, or removing any vertebrate fossil or 
removing any paleontological resource for commercial purposes without a 
special use authorization.
    (j) Excavating, damaging, or removing any cave resource from a cave 
without a special use authorization, or removing any cave resource for 
commercial purposes.

[46 FR 33520, June 30, 1981, as amended at 49 FR 25450, June 21, 1984; 
51 FR 30356, Aug. 26, 1986; 59 FR 31152, June 17, 1994]



Sec. 261.10  Occupancy and use.

    The following are prohibited:
    (a) Constructing, placing, or maintaining any kind of road, trail, 
structure, fence, enclosure, communications equipment, or other 
improvement on National Forest System lands or facilities without a 
special use authorization, contract, or approved operating plan, unless 
such authorization, contract, or operating plan is waived pursuant to 
Sec. 251.50(e) of this chapter.
    (b) Taking possession of, occupying, or otherwise using National 
Forest System lands for residential purposes without a special-use 
authorization, or as otherwise authorized by Federal law or regulation.
    (c) Selling or offering for sale any merchandise or conducting any 
kind of work activity or service unless authorized by Federal law, 
regulation, or special-use authorization.
    (d) Discharging a firearm or any other implement capable of taking 
human life, causing injury, or damaging property as follows:
    (1) In or within 150 yards of a residence, building, campsite, 
developed recreation site or occupied area, or
    (2) Across or on a National Forest System road or a body of water 
adjacent thereto, or in any manner or place whereby any person or 
property is exposed to injury or damage as a result in such discharge.
    (3) Into or within any cave.
    (e) Abandoning any personal property.
    (f) Placing a vehicle or other object in such a manner that it is an 
impediment or hazard to the safety or convenience of any person.
    (g) Commercial distribution of printed material without a special 
use authorization.
    (h) When commercially distributing printed material, delaying, 
halting, or preventing administrative use of an area by the Forest 
Service or other scheduled or existing uses or activities on National 
Forest System lands; misrepresenting the purposes or affiliations of 
those selling or distributing the material; or misrepresenting the 
availability of the material without cost.
    (i) Operating or using in or near a campsite, developed recreation 
site, or over an adjacent body of water without a permit, any device 
which produces noise, such as a radio, television, musical instrument, 
motor or engine in such a manner and at such a time so as to 
unreasonably disturb any person.
    (j) Operating or using a public address system, whether fixed, 
portable

[[Page 321]]

or vehicle mounted, in or near a campsite or developed recreation site 
or over an adjacent body of water without a special-use authorization.
    (k) Use or occupancy of National Forest System land or facilities 
without special-use authorization when such authorization is required.
    (l) Violating any term or condition of a special-use authorization, 
contract or approved operating plan.
    (m) Failing to stop a vehicle when directed to do so by a Forest 
Officer.
    (n) Failing to pay any special use fee or other charges as required.
    (o) Discharging or igniting a firecracker, rocket or other firework, 
or explosive into or within any cave.

[42 FR 2957, Jan. 14, 1977, as amended at 46 FR 33520, June 30, 1981; 49 
FR 25450, June 21, 1984; 53 FR 16550, May 10, 1988; 59 FR 31152, June 
17, 1994; 60 FR 45295, Aug. 30, 1995; 66 FR 3218, Jan. 12, 2001; 69 FR 
41965, July 13, 2004]



Sec. 261.11  Sanitation.

    The following are prohibited:
    (a) Depositing in any toilet, toilet vault, or plumbing fixture any 
substance which could damage or interfere with the operation or 
maintenance of the fixture.
    (b) Possessing or leaving refuse, debris, or litter in an exposed or 
unsanitary condition.
    (c) Placing in or near a stream, lake, or other water any substance 
which does or may pollute a stream, lake, or other water.
    (d) Failing to dispose of all garbage, including any paper, can, 
bottle, sewage, waste water or material, or rubbish either by removal 
from the site or area, or by depositing it into receptacles or at places 
provided for such purposes.
    (e) Dumping of any refuse, debris, trash or litter brought as such 
from private property or from land occupied under permit, except, where 
a container, dump or similar facility has been provided and is 
identified as such, to receive trash generated from private lands or 
lands occupied under permit.

[42 FR 2957, Jan. 14, 1977, as amended at 46 FR 33520, June 30, 1981]



Sec. 261.12  National Forest System roads and trails.

    The following are prohibited:
    (a) Violating the load, weight, height, length, or width limitations 
prescribed by State law except by special-use authorization or written 
agreement or by order issued under Sec. 261.54 of this Chapter.
    (b) Failing to have a vehicle weighed at a Forest Service weighing 
station, if required by a sign.
    (c) Damaging and leaving in a damaged condition any such road, 
trail, or segment thereof.
    (d) Blocking, restricting, or otherwise interfering with the use of 
a road, trail, or gate.

[42 FR 2957, Jan. 14, 1977, as amended at 46 FR 33520, June 30, 1981; 49 
FR 25450, June 21, 1984; 55 FR 25832, June 25, 1990]



Sec. 261.13  Motor vehicle use.

    After National Forest System roads, National Forest System trails, 
and areas on National Forest System lands have been designated pursuant 
to 36 CFR 212.51 on an administrative unit or a Ranger District of the 
National Forest System, and these designations have been identified on a 
motor vehicle use map, it is prohibited to possess or operate a motor 
vehicle on National Forest System lands in that administrative unit or 
Ranger District other than in accordance with those designations, 
provided that the following vehicles and uses are exempted from this 
prohibition:
    (a) Aircraft;
    (b) Watercraft;
    (c) Over-snow vehicles;
    (d) Limited administrative use by the Forest Service;
    (e) Use of any fire, military, emergency, or law enforcement vehicle 
for emergency purposes;
    (f) Authorized use of any combat or combat support vehicle for 
national defense purposes;
    (g) Law enforcement response to violations of law, including 
pursuit;
    (h) Motor vehicle use that is specifically authorized under a 
written authorization issued under Federal law or regulations; and
    (i) Use of a road or trail that is authorized by a legally 
documented right-of-way held by a State, county, or other local public 
road authority.

[70 FR 68291, Nov. 9, 2005]

[[Page 322]]



Sec. 261.14  Use by over-snow vehicles.

    It is prohibited to possess or operate an over-snow vehicle on 
National Forest System lands in violation of a restriction or 
prohibition established pursuant to 36 CFR part 212, subpart C, provided 
that the following uses are exempted from this section:
    (a) Limited administrative use by the Forest Service;
    (b) Use of any fire, military, emergency, or law enforcement vehicle 
for emergency purposes;
    (c) Authorized use of any combat or combat support vehicle for 
national defense purposes;
    (d) Law enforcement response to violations of law, including 
pursuit;
    (e) Use by over-snow vehicles that is specifically authorized under 
a written authorization issued under Federal law or regulations; and
    (f) Use of a road or trail that is authorized by a legally 
documented right-of-way held by a State, county, or other local public 
road authority.

[70 FR 68291, Nov. 9, 2005]



Sec. 261.15  Use of vehicles off roads.

    It is prohibited to operate any vehicle off National Forest System, 
State or County roads:
    (a) Without a valid license as required by State law.
    (b) Without an operable braking system.
    (c) From one-half hour after sunset to one-half hour before sunrise 
unless equipped with working head and tail lights.
    (d) In violation of any applicable noise emission standard 
established by any Federal or State agency.
    (e) While under the influence of alcohol or other drug;
    (f) Creating excessive or unusual smoke;
    (g) Carelessly, recklessly, or without regard for the safety of any 
person, or in a manner that endangers, or is likely to endanger, any 
person or property.
    (h) In a manner which damages or unreasonably disturbs the land, 
wildlife, or vegetative resources.
    (i) In violation of State law established for vehicles used off 
roads.

[42 FR 2957, Jan. 14, 1977, as amended at 42 FR 35959, July 13, 1977; 66 
FR 3218, Jan. 12, 2001. Redesignated at 70 FR 68291, Nov. 9, 2005]



Sec. 261.16  Developed recreation sites.

    The following are prohibited:
    (a) Occupying any portion of the site for other than recreation 
purposes.
    (b) Building, attending, maintaining, or using a fire outside of a 
fire ring provided by the Forest Service for such purpose or outside of 
a stove, grill or fireplace.
    (c) Cleaning or washing any personal property, fish, animal, or 
food, or bathing or washing at a hydrant or water faucet not provided 
for that purpose.
    (d) Discharging or igniting a firecracker, rocket or other firework, 
or explosive.
    (e) Occupying between 10 p.m. and 6 a.m. a place designated for day 
use only.
    (f) Failing to remove all camping equipment or personal property 
when vacating the area or site.
    (g) Placing, maintaining, or using camping equipment except in a 
place specifically designated or provided for such equipment.
    (h) Without permission, failing to have at least one person occupy a 
camping area during the first night after camping equipment has been set 
up.
    (i) Leaving camping equipment unattended for more than 24 hours 
without permission.
    (j) Bringing in or possessing an animal, other than a seeing eye 
dog, unless it is crated, caged, or upon a leash not longer than six 
feet, or otherwise under physical restrictive control.
    (k) Bringing in or possessing in a swimming area an animal, other 
than a seeing eye dog.
    (l) Bringing in or possessing a saddle, pack, or draft animal except 
as authorized by posted instructions.
    (m) Operating or parking a motor vehicle or trailer except in places 
developed or designated for this purpose.
    (n) Operating a bicycle, motorbike, or motorcycle on a trail unless 
designated for this use.

[[Page 323]]

    (o) Operating a motorbike, motorcycle, or other motor vehicle for 
any purpose other than entering or leaving the site.
    (p) Depositing any body waste except into receptacles provided for 
that purpose.

[42 FR 2957, Jan. 14, 1977, as amended at 46 FR 33520, June 30, 1981; 49 
FR 25450, June 21, 1984; 60 FR 45295, Aug. 30, 1995. Redesignated at 70 
FR 68291, Nov. 9, 2005]



Sec. 261.17  Recreation fees.

    Failure to pay any recreation fee is prohibited. Notwithstanding 18 
U.S.C. 3571(e), the fine imposed for the first offense of nonpayment 
shall not exceed $100.

[70 FR 70498, Nov. 22, 2005]



Sec. 261.18  National Forest Wilderness.

    The following are prohibited in a National Forest Wilderness:
    (a) Possessing or using a motor vehicle, motorboat or motorized 
equipment except as authorized by Federal Law or regulation.
    (b) Possessing or using a hang glider or bicycle.
    (c) Landing of aircraft, or dropping or picking up of any material, 
supplies, or person by means of aircraft, including a helicopter.

[42 FR 2957, Jan. 14, 1977, as amended at 42 FR 35959, July 13, 1977; 50 
FR 16231, Apr. 25, 1985. Redesignated at 70 FR 68291, Nov. 9, 2005]



Sec. 261.19  Boundary Waters Canoe Area Wilderness.

    The following are prohibited in the Boundary Waters Canoe Area 
Wilderness:
    (a) Possessing or transporting any motor or other mechanical device 
capable of propelling a watercraft through water by any means, except by 
permit or as specifically authorized by Federal law or regulation.
    (b) Transporting, using, or mooring amphibious craft of any type or 
any watercraft designed for or used as floating living quarters.
    (c) Using wheels, rollers, or other mechanical devices for the 
overland transportation of any watercraft, except by special-use 
authorization, or as authorized by Federal law or regulation.

[42 FR 2957, Jan. 14, 1977; 42 FR 24739, May 16, 1977, as amended at 49 
FR 25450, June 21, 1984; 50 FR 16231, Apr. 25, 1985. Redesignated at 70 
FR 68291, Nov. 9, 2005]



Sec. 261.20  Pacific Crest National Scenic Trail.

    It is prohibited to use a motorized vehicle on the Pacific Crest 
National Scenic Trail without a special-use authorization.

[49 FR 25450, June 21, 1984. Redesignated at 70 FR 68291, Nov. 9, 2005]



Sec. 261.21  National Forest primitive areas.

    The following are prohibited in any area classified as a National 
Forest Primitive Area on September 3, 1964:
    (a) Landing of aircraft or using a motor boat, unless such use had 
become well established before September 3, 1964.
    (b) Possessing or using a motor or motorized equipment, except small 
battery powered, hand-held devices, such as cameras, shavers, 
flashlights, and Geiger-counters.

[42 FR 35959, July 13, 1977. Redesignated at 70 FR 68291, Nov. 9, 2005]



Sec. 261.22  Unauthorized use of ``Smokey Bear'' and ``Woodsy Owl'' symbol.

    (a) Manufacture, importation, reproduction, or use of ``Smokey 
Bear'' except as provided under Secs. 271.2, 271.3, or 271.4 is 
prohibited.
    (b) Manufacture, importation, reproduction, or use of ``Woodsy Owl'' 
except as provided under Secs. 272.2, 272.3, or 272.4 is 
prohibited.

[42 FR 2957, Jan. 14, 1977; 42 FR 24739, May 16, 1977. Redesignated at 
70 FR 68291, Nov. 9, 2005]



Sec. 261.23  Wild free-roaming horses and burros.

    The following are prohibited:
    (a) Removing or attempting to remove a wild free-roaming horse or 
burro from the National Forest System unless authorized by law or 
regulation.
    (b) Causing or allowing the inhumane treatment or harassment of a 
wild free-roaming horse or burro.

[[Page 324]]

    (c) Removing or attempting to remove, alter or destroy any official 
mark used to identify a wild horse or burro or its remains unless 
authorized or permitted by law or regulation.
    (d) Violating any terms or conditions specified in a care and 
maintenance agreement or permit.

[46 FR 33520, June 30, 1981. Redesignated at 70 FR 68291, Nov. 9, 2005]



           Subpart B_Prohibitions in Areas Designated by Order



Sec. 261.50  Orders.

    (a) The Chief, each Regional Forester, each Experiment Station 
Director, the Administrator of the Lake Tahoe Basin Management Unit and 
each Forest Supervisor may issue orders which close or restrict the use 
of described areas within the area over which he has jurisdiction. An 
order may close an area to entry or may restrict the use of an area by 
applying any or all of the prohibitions authorized in this subpart or 
any portion thereof.
    (b) The Chief, each Regional Forester, each Experiment Station 
Director, the Administrator of the Lake Tahoe Basin Management Unit and 
each Forest Supervisor may issue orders which close or restrict the use 
of any National Forest System road or trail within the area over which 
he has jurisdiction.
    (c) Each order shall:
    (1) For orders issued under paragraph (a) of this section, describe 
the area to which the order applies;
    (2) For orders issued under paragraph (b) of this section, describe 
the road or trail to which the order applies;
    (3) Specify the times during which the prohibitions apply if applied 
only during limited times;
    (4) State each prohibition which is applied; and
    (5) Be posted in accordance with Sec. 261.51.
    (d) The prohibitions which are applied by an order are supplemental 
to the general prohibitions in Subpart A.
    (e) An order may exempt any of the following persons from any of the 
prohibitions contained in the order:
    (1) Persons with a permit specifically authorizing the otherwise 
prohibited act or omission.
    (2) Owners or lessees of land in the area;
    (3) Residents in the area;
    (4) Any Federal, State, or local officer, or member of an organized 
rescue or fire fighting force in the performance of an official duty; 
and
    (5) Persons engaged in a business, trade, or occupation in the area.
    (6) Any other person meeting exemption requirements specified in the 
order.
    (f) Any person wishing to use a National Forest System road or trail 
or a portion of the National Forest System, should contact the Forest 
Supervisor, Director, Administrator, or District Ranger to ascertain the 
special restrictions which may be applicable thereto.

[42 FR 2957, Jan. 14, 1977; 42 FR 24739, May 16, 1977, as amended at 42 
FR 35959, July 13, 1977; 46 FR 33521, June 30, 1981; 66 FR 3218, Jan. 
12, 2001]



Sec. 261.51  Posting.

    Posting is accomplished by:
    (a) Placing a copy of the order imposing each prohibition in the 
offices of the Forest Supervisor and District Ranger, or equivalent 
officer who have jurisdiction over the lands affected by the order, and
    (b) Displaying each prohibition imposed by an order in such 
locations and manner as to reasonably bring the prohibition to the 
attention of the public.



Sec. 261.52  Fire.

    When provided by an order, the following are prohibited:
    (a) Building, maintaining, attending or using a fire, campfire, or 
stove fire.
    (b) Using an explosive.
    (c) Smoking.
    (d) Smoking, except within an enclosed vehicle or building, a 
developed recreation site, or while stopped in an area at least three 
feet in diameter that is barren or cleared of all flammable material.
    (e) Going into or being upon an area.
    (f) Possessing, discharging or using any kind of firework or other 
pyrotechnic device.

[[Page 325]]

    (g) Entering an area without any firefighting tool prescribed by the 
order.
    (h) Operating an internal combustion engine.
    (i) Welding, or operating an acetylene or other torch with open 
flame.
    (j) Operating or using any internal or external combustion engine 
without a spark arresting device properly installed, maintained and in 
effective working order meeting either:
    (1) Department of Agriculture, Forest Service Standard 5100-1a; or
    (2) Appropriate Society of Automotive Engineers (SAE) recommended 
practice J335(b) and J350(a).
    (k) Violating any state law specified in the order concerning 
burning, fires or which is for the purpose of preventing, or restricting 
the spread of fires.

[42 FR 2957, Jan. 14, 1977; 42 FR 24739, May 16, 1977; as amended at 42 
FR 35959, July 13, 1977; 46 FR 33521, June 30, 1981]



Sec. 261.53  Special closures.

    When provided in an order, it is prohibited to go into or be upon 
any area which is closed for the protection of:
    (a) Threatened, endangered, rare, unique, or vanishing species of 
plants, animals, birds or fish.
    (b) Special biological communities.
    (c) Objects or areas of historical, archeological, geological, or 
paleontological interest.
    (d) Scientific experiments or investigations.
    (e) Public health or safety.
    (f) Property.



Sec. 261.54  National Forest System roads.

    When provided by an order, the following are prohibited:
    (a) Using any type of vehicle prohibited by the order.
    (b) Use by any type of traffic prohibited by the order.
    (c) Using a road for commercial hauling without a permit or written 
authorization.
    (d) Operating a vehicle in violation of the speed, load, weight, 
height, length, width, or other limitations specified by the order.
    (e) Being on the road.
    (f) Operating a vehicle carelessly, recklessly, or without regard 
for the rights or safety of other persons or in a manner or at a speed 
that would endanger or be likely to endanger any person or property.

[42 FR 2957, Jan. 14, 1977, as amended at 46 FR 33521, June 30, 1981]



Sec. 261.55  National Forest System trails.

    When provided by an order issued in accordance with Sec. 261.50 of 
this subpart, the following are prohibited on a National Forest System 
trail:
    (a) Being on a trail.
    (b) Using any type of vehicle prohibited by the order.
    (c) Use by any type of traffic or mode of transport prohibited by 
the order.
    (d) Operating a vehicle in violation of the width, weight, height, 
length, or other limitations specified by the order.
    (e) Shortcutting a switchback in a trail.

[55 FR 25832, June 25, 1990, as amended at 69 FR 41965, July 13, 2004; 
70 FR 68291, Nov. 9, 2005]



Sec. 261.56  Use of vehicles off National Forest System roads.

    When provided by an order, it is prohibited to possess or use a 
vehicle off National Forest System roads.

[42 FR 2957, Jan. 14, 1977, as amended at 66 FR 3218, Jan. 12, 2001]



Sec. 261.57  National Forest wilderness.

    When provided by an order, the following are prohibited:
    (a) Entering or being in the area.
    (b) Possessing camping or pack-outfitting equipment, as specified in 
the order.
    (c) Possessing a firearm or firework.
    (d) Possessing any non-burnable food or beverage containers, 
including deposit bottles, except for non-burnable containers designed 
and intended for repeated use.
    (e) Grazing.
    (f) Storing equipment, personal property or supplies.
    (g) Disposing of debris, garbage, or other waste.

[[Page 326]]

    (h) Possessing or using a wagon, cart or other vehicle.

[42 FR 2957, Jan. 14, 1977, as amended at 49 FR 25450, June 21, 1984]



Sec. 261.58  Occupancy and use.

    When provided by an order, the following are prohibited:
    (a) Camping for a period longer than allowed by the order.
    (b) Entering or using a developed recreation site or portion 
thereof.
    (c) Entering or remaining in a campground during night periods 
prescribed in the order except for persons who are occupying such 
campgrounds.
    (d) Occupying a developed recreation site with prohibited camping 
equipment prescribed by the order.
    (e) Camping.
    (f) Using a campsite or other area described in the order by more 
than the number of users allowed by the order.
    (g) Parking or leaving a vehicle in violation of posted 
instructions.
    (h) Parking or leaving a vehicle outside a parking space assigned to 
one's own camp unit.
    (i) Possessing, parking or leaving more than two vehicles, except 
motorcycles or bicycles per camp unit.
    (j) Being publicly nude.
    (k) Entering or being in a body of water.
    (l) Being in the area after sundown or before sunrise.
    (m) Discharging a firearm, air rifle, or gas gun.
    (n) Possessing or operating a motorboat.
    (o) Water skiing.
    (p) Storing or leaving a boat or raft.
    (q) Operating any watercraft in excess of a posted speed limit.
    (r) Launching a boat except at a designated launching ramp.
    (s) Possessing, storing, or transporting any bird, fish, or other 
animal or parts thereof, as specified in the order.
    (t) Possessing, storing, or transporting any part of a tree or other 
plant, as specified in the order.
    (u) Being in the area between 10 p.m. and 6 a.m. except a person who 
is camping or who is visiting a person camping in that area.
    (v) Hunting or fishing.
    (w) Possessing or transporting any motor or mechanical device 
capable of propelling a watercraft through water by any means.
    (x) Using any wheel, roller, or other mechanical device for the 
overland transportation of any watercraft.
    (y) Landing of aircraft, or dropping or picking up any material, 
supplies, or person by means of an aircraft, including a helicopter.
    (z) Entering or being on lands or waters within the boundaries of a 
component of the National Wild and Scenic Rivers System.
    (aa) Riding, hitching, tethering or hobbling a horse or other saddle 
or pack animal in violation of posted instructions.
    (bb) Possessing a beverage which is defined as an alcoholic beverage 
by State law.
    (cc) Possessing or storing any food or refuse, as specified in the 
order.
    (dd) [Reserved]
    (ee) Depositing any body waste in caves except into receptacles 
provided for that purpose.

[42 FR 2597, Jan. 14, 1977, as amended at 42 FR 35959, July 13, 1977; 43 
FR 32136, July 25, 1978; 46 FR 33521, June 30, 1981; 52 FR 19347, May 
22, 1987; 59 FR 31152, June 17, 1994]



                    Subpart C_Prohibitions in Regions



Sec. 261.70  Issuance of regulations.

    (a) Pursuant to 7 CFR 2.60, the Chief, and each Regional Forester, 
to whom the Chief has delegated authority, may issue regulations 
prohibiting acts or omissions within all or any part of the area over 
which he has jurisdiction, for one or more of the following purposes:
    (1) Fire prevention or control.
    (2) Disease prevention or control.
    (3) Protection of property, roads, or trails.
    (4) Protection of threatened, endangered, rare, unique, or vanishing 
species of plants, animals, birds or fish, or special biological 
communities.
    (5) Protection of objects or places of historical, archaeological, 
geological or paleontological interest.
    (6) Protection of scientific experiments or investigations.
    (7) Public safety.
    (8) Protection of health.

[[Page 327]]

    (9) Establishing reasonable rules of public conduct.
    (b) Regulations issued under this subpart shall not be contrary to 
or duplicate any prohibition which is established under existing 
regulations.
    (c) In issuing any regulations under paragraph (a) of this section, 
the issuing officer shall follow 5 U.S.C. 553.
    (d) In a situation when the issuing officer determines that a notice 
of proposed rule making and public participation thereon is 
impracticable, unnecessary, or contrary to the public interest, he shall 
issue, with the concurrence of the Chief, an interim regulation 
containing an expiration date.
    (e) No interim regulation issued under paragraph (d) of this section 
will be effective for more than 90 days unless readopted as a permanent 
rule after a notice of proposed rule making under 5 U.S.C. 553 (b) and 
(c).



Sec. 261.71  Regulations applicable to Region 1, Northern Region, as defined in Sec.200.2. [Reserved]



Sec. 261.72  Regulations applicable to Region 2, Rocky Mountain Region, as defined in Sec.200.2. [Reserved]



Sec. 261.73  Regulations applicable to Region 3, Southwestern Region, as defined in Sec.200.2. [Reserved]



Sec. 261.74  Regulations applicable to Region 4, Intermountain Region, as defined in Sec.200.2. [Reserved]



Sec. 261.75  Regulations applicable to Region 5, California Region, as defined in Sec.200.2.

    (a) Definitions. In this section: (1) Middle Fork of the Feather 
River means the river and land area in or adjacent to Plumas National 
Forest described as the River Area in the notice at 35 FR 4219 or any 
amendment to that notice.
    (2) Motorized equipment means any equipment having or using an 
engine or motor, except small battery-powered handheld devices such as 
cameras, shavers, flashlights, and Geiger counters.
    (3) Wild river zone means the area described as the Bald Rock Canyon 
Wild River Zone or as the Upper Canyon Wild River Zone in the notice at 
35 FR 4219 or any amendment to that notice.
    (b) Prohibitions. (1) Possessing or using motorized equipment in the 
wild river zone of the Middle Fork of the Feather River, except on the 
Stag Point Trail or the Cleghorn Bar Trail, is prohibited.
    (2) Paragraph (b)(1) of this section does not apply to any equipment 
authorized by a permit from the Forest Supervisor, Plumas National 
Forest, containing such terms and conditions as he considers necessary 
for the protection or preservation of the wild river zone or the health, 
safety or welfare of its users. Violation of any term or condition of 
such a permit is prohibited.

[42 FR 31789, June 23, 1977]



Sec. 261.76  Regulations applicable to Region 6, Pacific Northwest Region, as defined in Sec.200.2. [Reserved]



Sec. 261.77  Prohibitions in Region 8, Southern Region.

    (a) Using or occupying any area of the Sumter National Forest or the 
Chattahoochee National Forest abutting the Chattooga River for the 
purpose of entering or going upon the River in, on, or upon any 
floatable object or craft of every kind or description, unless 
authorized by permit obtained through registration at Forest Service 
Registration Stations abutting the Chattooga River located at Highway 
28, Low-Water Bridge, Earl's Ford, Sandy Ford, Highway 76, Woodall 
Shoals, or Overflow Bridge or unless authorized under special use 
permit.
    (b) Using or occupying within the scope of any commercial operation 
or business any area of the Sumter National Forest or the Chattahoochee 
National Forest abutting the Chattooga River for the purpose of entering 
or going upon the River in, on, or upon any floatable object or craft of 
every kind or description, unless authorized by special use permit.
    (c) Violating or failing to comply with any of the terms or 
conditions of any permit authorizing the occupancy and use specified in 
paragraph (a) or (b) of this section is prohibited.
    (d) Entering, going, riding, or floating upon any portion or segment 
of the Chattooga River within the boundaries of the Chattahoochee 
National Forest

[[Page 328]]

in, on, or upon any floatable object or craft of every kind of 
description, unless authorized by a permit obtained through registration 
at Forest Service Registration Stations abutting the Chattooga River 
located at Highway 28, Low-Water Bridge, Earl's Ford, Sandy Ford, 
Highway 76, Woodall Shoals, or Overflow Bridge or unless authorized 
under special use permit.
    (e) Entering, going, riding, or floating within the scope of any 
commercial operation or business upon any portion or segment of the 
Chattooga River within the boundaries of the Chattahoochee National 
Forest in, on, or upon any floatable object or craft of every kind or 
description, unless authorized by special use permit.
    (f) Violating or failing to comply with any of the terms or 
conditions of any permit authorizing the occupancy and use specified in 
paragraph (d) or (e) of this section is prohibited.

[43 FR 3706, Jan. 27, 1978]



Sec. 261.78  Prohibitions applicable to Region 9, Eastern Region, as defined in Sec.200.2.

    (a) Using or occupying any area of the Manistee National Forest 
abutting the Pine River between a point commencing 1 mile downstream 
from Lincoln Bridge to a point one-half mile upstream from Stronach Dam, 
for the purpose of entering, leaving, or going upon the river, in, on, 
or upon any floatable object of any kind or description during specific 
dates set forth annually and posted in such locations and manner as to 
reasonably bring the closure and dates to the attention of the public, 
is prohibited unless otherwise authorized by permit.
    (b) [Reserved]

[43 FR 42749, Sept. 21, 1978]



Sec. 261.79  Regulations applicable to Region 10, Alaska Region, as defined in Sec.200.2. [Reserved]



PART 262_LAW ENFORCEMENT SUPPORT ACTIVITIES--Table of Contents




                     Subpart A_Rewards and Payments

Sec. 
262.1 Rewards in connection with fire or property prosecution.
262.2 Purchase of information in furtherance of investigations.
262.3 Purchase of evidence in furtherance of investigations.
262.4 Audit of expenditures.
262.5 Disposal of purchased property.

                   Subpart B_Impoundments and Removals

262.10 Impoundment and disposal of unauthorized livestock.
262.11 Impounding of dogs.
262.12 Impounding of personal property.
262.13 Removal of obstructions.

    Authority: 30 Stat. 35, as amended (16 U.S.C. 551); sec. 1, 33 Stat. 
628 (16 U.S.C. 472); 50 Stat. 526 as amended (7 U.S.C. 1011(f)); 58 
Stat. 736 (16 U.S.C. 559(a)).



                     Subpart A_Rewards and Payments



Sec. 262.1  Rewards in connection with fire or property prosecutions.

    (a) Hereafter, provided Congress shall make the necessary 
appropriation or authorize the payment thereof, the Department of 
Agriculture will pay the following rewards:
    (1) Not exceeding $5,000 for information leading to the arrest and 
conviction of any person on the charge of willfully or maliciously 
setting on fire, or causing to be set on fire, any timber, underbrush, 
or grass upon the lands of the United States within the National Forest 
System or nearby.
    (2) Not exceeding $1,000 for information leading to the arrest and 
conviction of any person on the charge of having kindled or caused to be 
kindled a fire on lands of the United States within the National Forest 
System or nearby, and leaving said fire which escapes before the same 
has been totally extinguished;
    (3) Not exceeding $5,000 for information leading to the arrest and 
conviction of any person charged with destroying or stealing any 
property of the United States; and
    (4) Not exceeding $10,000 for information leading to the arrest and 
conviction of any person charged with damaging or stealing the Pacific 
yew tree, Taxus brevifolia, or any portion thereof, including but not 
limited to bark, twigs, needles and other foliage.
    (b) A reward may be paid to the person or persons giving the 
information leading to such arrest and conviction

[[Page 329]]

upon presentation to the Department of Agriculture of satisfactory 
evidence thereof, subject to the necessary appropriation as aforesaid, 
or otherwise as may be provided.
    (c) Officers and employees of the Department of Agriculture are 
barred from receiving such rewards.
    (d) The Department of Agriculture reserves the right to refuse 
payments of any claim for reward when, in its opinion, collusion or 
improper methods have been used to secure arrest and conviction. The 
Department also reserves the right to allow only one reward where 
several persons have been convicted of the same offense or where one 
person has been convicted of several offenses, unless the circumstances 
entitle the person to a reward on each conviction.
    (e) Applications for reward should be forwarded to the Regional 
Forester, Research Director, or Area Director who has responsibility for 
the land or property involved in the trespass. However, no application 
will be considered unless presented to a responsible Forest Service 
officer within three months from the date of conviction of an offender. 
In order that all claimants for rewards may have an opportunity to 
present their claims within the prescribed limit, the Department will 
not take action with respect to rewards for three months from the date 
of the conviction of an offender.

[42 FR 2961, Jan. 14, 1977, as amended at 46 FR 33521, June 30, 1981; 56 
FR 29182, June 26, 1991]



Sec. 262.2  Purchase of information in furtherance of investigations.

    (a) Approval of payments. Payments for purchase of information to 
further investigations of felonies and misdemeanors related to Forest 
Service administration are authorized for each transaction as follows:
    (1) Criminal investigators in the GS-1811 series and such other 
personnel as the Chief of the Forest Service or a Regional Forester may 
designate, may, without prior approval, pay up to but not exceeding $200 
for the purchase of information under this section.
    (2) For payments of amounts over $200 but not exceeding $500, 
advance approval of the Forest Supervisor is required.
    (3) For payments of amounts over $500 but not exceeding $2,500, 
advance approval of the Regional Forester is required.
    (4) For payments of amounts over $2,500, advance approval of the 
Chief of the Forest Service is required.
    (5) For purchase of information to further investigations within a 
Regional Office, Forest and Range Experiment Station, State and Private 
Forestry Area Office, or the National Office, payments in excess of $200 
must be approved in advance by the Chief of the Forest Service or by 
such other personnel as the Chief may designate.
    (b) Limitations. Purchase of information under this section is 
restricted to furthering investigations of felony and misdemeanor 
violations. Payment for information to further investigations of petty 
offenses as classified in title 18 U.S.C., section 1, are not authorized 
under this section.

[48 FR 26604, June 9, 1983]



Sec. 262.3  Purchase of evidence in furtherance of investigations.

    (a) Approval of payments. Payments for purchase of evidence to 
further investigations of felonies and misdemeanors related to Forest 
Service administration are authorized for each transaction as follows:
    (1) Criminal investigators in the GS-1811 series and such other 
personnel as the Chief of the Forest Service or a Regional Forester may 
designate, may, without prior approval, pay up to but not exceeding $400 
for the purchase of evidence under this section.
    (2) For payments of amounts over $400 but not exceeding $1,000, 
advance approval of the Forest Supervisor is required.
    (3) For payments of amounts over $1,000 but not exceeding $5,000, 
advance approval of the Regional Forester is required.
    (4) For payments of amounts over $5,000, advance approval of the 
Chief of the Forest Service is required.
    (5) For purchase of evidence to further investigations within a 
Regional Office, Forest and Range Experiment Station, State and Private 
Forestry Area Office, or the National Office,

[[Page 330]]

payments in excess of $400 must be approved in advance by the Chief of 
the Forest Service or by such other personnel as the Chief may 
designate.
    (b) Limitations. Purchase of evidence under this section is 
restricted to furthering investigations of felony and misdemeanor 
violations. Payment for evidence to further investigations of petty 
offenses as classified in title 18 U.S.C., section 1, are not authorized 
under this section.

[48 FR 26605, June 9, 1983; 48 FR 34262, July 28, 1983]



Sec. 262.4  Audit of expenditures.

    The Chief of the Forest Service shall, through appropriate 
directives to agency personnel, assure the accountability of all funds 
spent in carrying out the provisions of this subpart and safeguard the 
identity of those wishing to remain anonymous.

[48 FR 26605, June 9, 1983]



Sec. 262.5  Disposal of purchased property.

    All evidence purchased under the authority of this subpart shall be 
maintained in accordance with all laws, regulations, and rules 
applicable to the care, custody, and control of evidence. Evidence 
purchased under this subpart shall be disposed of in accordance with 
laws, regulation, rules, and Forest Service policy applicable to the 
disposal of evidence.

[48 FR 26605, June 9, 1983]



                   Subpart B_Impoundments and Removals



Sec. 262.10  Impoundment and disposal of unauthorized livestock.

    Unauthorized livestock or livestock in excess of those authorized by 
a grazing permit on the National Forest System, which are not removed 
therefrom within the periods prescribed by this regulation, may be 
impounded and disposed of by a forest officer as provided herein.
    (a) When a Forest officer determines that such livestock use is 
occurring, has definite knowledge of the kind of livestock, and knows 
the name and address of the owners, such livestock may be impounded any 
time five days after written notice of intent to impound such livestock 
is mailed by certified or registered mail or personally delivered to 
such owners.
    (b) When a Forest officer determines that such livestock use is 
occurring, but does not have complete knowledge of the kind of 
livestock, or if the name of the owner is unknown, such livestock may be 
impounded any time 15 days after the date a notice of intent to impound 
livestock is first published in a local newspaper and posted at the 
county courthouse and in one or more local post offices. The notice will 
identify the area in which it will be effective.
    (c) Unauthorized livestock or livestock in excess of those 
authorized by a grazing permit on National Forest System which are owned 
by persons given notice under paragraph (a) of this section, and any 
such livestock in areas for which a notice has been posted and published 
under paragraph (b) of this section, may be impounded without further 
notice any time within the 12-month period immediately following the 
effective date of the notice or notices given under paragraphs (a) and 
(b) of this section.
    (d) Following the impoundment of livestock, a notice of sale of 
impounded livestock will be published in a local newspaper and posted at 
the county courthouse and in one or more local post offices. The notice 
will describe the livestock and specify the date, time, and place of the 
sale. The date shall be at least five days after the publication and 
posting of such notice.
    (e) The owner may redeem the livestock any time before the date and 
time set for the sale by submitting proof of ownership and paying for 
all expenses incurred by the United States in gathering, impounding, and 
feeding or pasturing the livestock. However, when the impoundment costs 
exceed fair market value a minimum acceptable redemption price at fair 
market value may be established for each head of livestock.
    (f) If the livestock are not redeemed on or before the date and time 
fixed for their sale, they shall be sold at public sale to the highest 
bidder, providing this bid is at or above the minimum amount set by the 
Forest Service. If a

[[Page 331]]

bid at or above the minimum amount is not received, the livestock may be 
sold at private sale at or above the minimum amount, reoffered at public 
sale, condemned and destroyed, or otherwise disposed of. When livestock 
are sold pursuant to this regulation, the forest officer making the sale 
shall furnish the purchaser a bill or other written instrument 
evidencing the sale. Agreements may be made with State agencies whereby 
livestock of unknown ownership and livestock of known ownership, which 
are not redeemed by the owner, are released to the agency for disposal 
in accordance with State law, Provided, That remuneration of proceeds 
from the sale of said animals in excess of costs of impoundment and to 
arrange for disposal of livestock of known ownership will be refunded to 
the former owner.

[42 FR 2961, Jan. 14, 1977, as amended at 43 FR 36245, Aug. 16, 1978. 
Redesignated at 48 FR 26605, June 9, 1983]



Sec. 262.11  Impounding of dogs.

    Any dog found running at large in a part of the National Forest 
System, which has been closed to dogs running at large, may be captured 
and impounded by Forest officers. Forest officers will notify the owner 
of the dog, if known, of such impounding, and the owner will be given 
five days to redeem the dog. A dog may be redeemed by the owner 
submitting adequate evidence of ownership and paying all expenses 
incurred by the Forest Service in capturing and impounding it. If the 
owner fails to redeem the dog within five days after notice, or if the 
owner cannot be ascertained within 10 days from the date of impounding, 
the dog may be destroyed or otherwise disposed of at the discretion of 
the Forest officer having possession of it.

[42 FR 2961, Jan. 14, 1977. Redesignated at 48 FR 26605, June 9, 1983]



Sec. 262.12  Impounding of personal property.

    (a) Automobiles or other vehicles, trailers, boats, and camping 
equipment and other inanimate personal property on National Forest 
System lands without the authorization of a Forest officer which are not 
removed therefrom within the prescribed period after a warning notice as 
provided in this regulation may be impounded by a Forest officer. 
Whenever such Forest officer knows the name and address of the owner, 
such impoundment may be effected at any time five days after the date 
that written notice of the trespass is mailed by registered mail or 
delivered to such owner.
    (b) In the event the local Forest officer does not know the name and 
address of the owner, impoundment may be effected at any time 15 days 
after the date a notice of intention to impound the property in trespass 
is first published in a local newspaper and posted at the county 
courthouse and in one or more local post offices. A copy of this notice 
shall also be posted in at least one place on the property or in 
proximity thereto.
    (c) Personal property impounded under this regulation may be 
disposed of at the expiration of 90-days after the date of impoundment. 
The owner may redeem the personal property within the 90-day period by 
submitting proof of ownership and paying all expenses incurred by the 
United States in advertising, gathering, moving, impounding, storing, 
and otherwise caring for the property, and also for the value of the use 
of the site occupied during the period of the trespass.
    (d) If the personal property is not redeemed on or before the date 
fixed for its disposition, it shall be sold by the Forest Service at 
public sale to the highest bidder. If no bid is received, the property, 
or portions thereof, may, in the discretion of the responsible Forest 
officer, be sold at private sale or be condemned and destroyed or 
otherwise disposed of. When personal property is sold pursuant to this 
regulation, the Forest officer making the sale shall furnish the 
purchaser a bill of sale or other written instrument evidencing the 
sale.
    (e) The provisions of this section shall not apply to the 
impoundment or disposal of beached logs in Alaska if deemed abandoned 
under State law.

[42 FR 2961, Jan. 14, 1977, as amended at 46 FR 33521, June 30, 1981. 
Redesignated at 48 FR 26604, June 9, 1983]

[[Page 332]]



Sec. 262.13  Removal of obstructions.

    A Forest officer may remove or cause to be removed, to a more 
suitable place, a vehicle or other object which is an impediment or 
hazard to the safety, convenience, or comfort of other users of an area 
of the National Forest System.

[42 FR 2961, Jan. 14, 1977. Redesignated at 48 FR 26604, June 9, 1983]



PART 264_PROPERTY MANAGEMENT--Table of Contents




               Subpart A_Official Forest Service Insignia

Sec. 
264.1 Definitions.
264.2 Use of insignia.
264.3 Licensing for commercial use.
264.4 Unauthorized use.
264.5 Power to revoke.

      Subpart B_Mount St. Helens National Volcanic Monument Symbol

264.10 Establishment.
264.11 Use of symbol.
264.12 Use without permission.
264.13 Unauthorized use.

    Authority: 5 U.S.C. 301.



               Subpart A_Official Forest Service Insignia

    Source: 49 FR 7367, Feb. 29, 1984, unless otherwise noted.



Sec. 264.1  Definitions.

    (a) The term Insignia means the Official Forest Service Insignia as 
shown here
[GRAPHIC] [TIFF OMITTED] TC21OC91.064


or any likeness thereof, in total or in part, which is used in such a 
manner as to suggest the insignia.
    (b) The term Chief means the Chief of the Forest Service, U.S. 
Department of Agriculture, or a person designated to act for the Chief.



Sec. 264.2  Use of insignia.

    The Forest Service insignia is reserved for the official use of the 
Forest Service. Such use will be primarily for identification purposes. 
The Chief may authorize other uses of the insignia as follows:
    (a) Public service use. The Chief may authorize the use of the 
insignia for non-commercial educational purposes, without charge when 
such use is essentially a public service and will contribute to public 
knowledge and understanding of the Forest Service, its mission, and 
objectives. An example of this would be the use of the insignia on a 
printed program for a dedication ceremony where the Forest Service 
participates but is not the sponsor of the event.
    (b) Commercial use. Through the issuance of licenses, the Chief may 
authorize commercial use of the insignia to (1) contribute to the public 
recognition of the Forest Service, such as a likeness of the insignia on 
a toy forest ranger's truck or (2) promote employee esprit de corps or 
pride in the organization, such as a likeness of the insignia on belt 
buckles. Such use must be consistent with the status of a national 
insignia. Business or calling cards commercially prepared for employees, 
at employee expense, may display the insignia without special license.



Sec. 264.3  Licensing for commercial use.

    (a) Each commercial license granted for the use of the insignia or 
likeness thereof shall contain the following terms and conditions:
    (1) A use charge, royalty payment, or payment in kind which is 
reasonably related to the commercial value of the license must be 
established. This is to be paid by the licensee.
    (2) A definite expiration date shall be specified.
    (3) The license shall be nonexclusive.
    (4) Licensees are not authorized to grant sublicenses, or transfer 
or reassign licenses to another person or company, in connection with 
the manufacture and/or sale of an item, unless and except as approved in 
writing by the Chief.

[[Page 333]]


The Chief may incorporate additional terms and requirements into any 
commercial license issued under this subpart.



Sec. 264.4  Unauthorized use.

    Whoever manufactures, sells, or possesses the insignia, except as 
provided under Sec. 264.2, is subject to criminal penalty under 18 
U.S.C. 701.



Sec. 264.5  Power to revoke.

    All authorities and licenses granted under this subpart shall be 
subject to cancellation by the Chief at any time the Chief finds that 
the use involved is offensive to decency and good taste or injurious to 
the image of the Forest Service. The Chief may also revoke any license 
or authorization when there is a failure to comply with the terms and 
conditions of the license or authorization.



      Subpart B_Mount St. Helens National Volcanic Monument Symbol

    Source: 49 FR 31413, Aug. 7, 1984, unless otherwise noted.



Sec. 264.10  Establishment.

    There is hereby established an official symbol, as depicted herein, 
to designate and represent the Mount St. Helens National Volcanic 
Monument located in the Gifford Pinchot National Forest in the State of 
Washington.
[GRAPHIC] [TIFF OMITTED] TC21OC91.061



Sec. 264.11  Use of symbol.

    Except as provided in Sec. 264.12, use of the Mount St. Helens 
National Volcanic Monument official symbol, including a facsimile 
thereof, in total or in part, is restricted to official signs, 
publications, and other materials of the Forest Service, U.S. Department 
of Agriculture.



Sec. 264.12  Use without permission.

    Business or calling cards commercially prepared at employee expense 
for employees assigned to the Volcanic Monument may depict the official 
Monument symbol without special permission from Forest Service 
officials.



Sec. 264.13  Unauthorized use.

    Except as provided in Secs. 264.11 and 264.12, whoever 
manufactures, sells, or possesses the official symbol of the Mount St. 
Helens National Volcanic Monument may be subject to criminal penalty 
under 18 U.S.C. 701.



PART 271_USE OF ``SMOKEY BEAR'' SYMBOL--Table of Contents




Sec. 
271.1 Definitions.
271.2 Use of official campaign materials.
271.3 Public service use.
271.4 Commercial license.
271.5 [Reserved]
271.6 Review of licenses.
271.7 Power to revoke.
271.8 Consultation with Association of State Foresters and the 
          Advertising Council.

    Authority: 66 Stat. 92 (18 U.S.C. 711).

    Source: 27 FR 6928, July 21, 1962, unless otherwise noted.



Sec. 271.1  Definitions.

    (a) The term Smokey Bear as used in the regulations in this part 
means the character Smokey Bear originated by the Forest Service of the 
United States Department of Agriculture in cooperation with the 
Association of State Foresters and The Advertising Council, or any 
facsimile thereof, or the name Smokey Bear, or any name or designation 
sufficiently similar as to suggest the character Smokey Bear.
    (b) The term Chief means the Chief of the Forest Service, United 
States Department of Agriculture, or person designated to act for him.
    (c) The term Association of State Foresters means the national 
organization of State Foresters.

[[Page 334]]

    (d) The term The Advertising Council is the Advertising Council, 
Inc., organized under the laws of the State of New York.



Sec. 271.2  Use of official campaign materials.

    Official Cooperative Forest Fire Prevention materials may be used 
without express approval where such use is solely for the purpose of 
increasing public information regarding forest fire prevention.



Sec. 271.3  Public service use.

    The Chief may authorize the use of Smokey Bear for non-commercial 
educational purposes, without charge, when such use is essentially as a 
public service, and will, in his judgment, contribute to public 
information and education concerning the prevention of forest fires.



Sec. 271.4  Commercial license.

    (a) The Chief may authorize the commercial manufacture, importation, 
reproduction, or use of Smokey Bear upon the following findings:
    (1) That the use to which the article or published material 
involving Smokey Bear is to be put shall contribute to public 
information concerning the prevention of forest fires.
    (2) That the proposed use is consistent with the status of Smokey 
Bear as the symbol of forest fire prevention and does not in any way 
detract from such status.
    (3) That a use or royalty charge which is reasonably related to the 
commercial enterprise has been established.
    (b) Such other conditions shall be included as the Chief deems 
necessary in particular cases.



Sec. 271.5  [Reserved]



Sec. 271.6  Review of licenses.

    The Chief will cooperate with the Association of State Foresters and 
the Advertising Council, and for this purpose may review with these 
organizations from time to time the nature and status of licenses 
granted under these regulations in this part.



Sec. 271.7  Power to revoke.

    It is the intention of the regulations in this part that the Chief, 
in exercising the authorities delegated hereunder, will at all times 
consider the primary purpose of fostering public information in the 
prevention of forest fires. All authorities and licenses granted under 
the regulations in this part shall be subject to abrogation by the Chief 
at any time he finds that the use involved is injurious to the purpose 
of forest fire prevention, is offensive to decency or good taste, or for 
similar reasons in addition to any other limitations and terms contained 
in the licenses.



Sec. 271.8  Consultation with Association of State Foresters and the Advertising Council.

    These regulations in this part have been issued after consultation 
with the Association of State Foresters and the Advertising Council.



PART 272_USE OF ``WOODSY OWL'' SYMBOL--Table of Contents




Sec. 
272.1 Definitions.
272.2 Use of official campaign materials.
272.3 Public service use.
272.4 Commercial use.
272.5 [Reserved]
272.6 Power to revoke.

    Authority: 7 U.S.C. 2201 and 16 U.S.C. 528-531.



Sec. 272.1  Definitions.

    (a) The term Woodsy Owl means the name and representation of a 
fanciful owl, who wears slacks (forest green when colored), a belt 
(brown when colored), and a Robin Hood style hat (forest green when 
colored) with a feather (red when colored), and who furthers the slogan, 
Give a Hoot, Don't Pollute, originated by the Forest Service of the 
United States Department of Agriculture, or a facsimile or simulation 
thereof, in such a manner as suggests Woodsy Owl.
    (b) The term Chief means the Chief of the Forest Service, U.S. 
Department of Agriculture, or person designated to act for him.

[36 FR 23220, Dec. 7, 1971, as amended at 40 FR 12641, Mar. 20, 1975]

[[Page 335]]



Sec. 272.2  Use of official campaign materials.

    Official materials produced for the Woodsy Owl campaign may be used 
without express approval from the Chief of the Forest Service where such 
use is solely for the purpose of increasing public knowledge about wise 
use of the environment and programs which foster maintenance and 
improvement of environmental quality.

[40 FR 12641, Mar. 20, 1975]



Sec. 272.3  Public service use.

    The Chief of the Forest Service may authorize the use of Woodsy Owl 
for noncommercial educational purposes, without charge, when such use is 
essentially as a public service and will, in his judgment, contribute to 
public information and education concerning wise use of the environment 
and programs which foster maintenance and improvement of environmental 
quality.

[40 FR 12641, Mar. 20, 1975]



Sec. 272.4  Commercial use.

    (a) General. The Chief may authorize the Commercial manufacture, 
importation, reproduction, or use of Woodsy Owl upon the following 
findings:
    (1) That the proposed use of Woodsy Owl will contribute to public 
knowledge about wise use of the environment and programs which foster 
maintenance and improvement of environmental quality.
    (2) That the proposed use is consistent with the status of Woodsy 
Owl as a national symbol for a public service campaign to promote wise 
use of the environment and programs which foster maintenance and 
improvement of environmental quality.
    (3) That a use charge, royalty charge, or payment in kind which is 
reasonably related to the commercial value has been established.
    (4) That the applicant is well qualified to further the goals and 
purposes of the Woodsy Owl campaign.
    (5) That, when an exclusive license is requested, no other qualified 
applicant can be found who will provide comparable campaign support 
under a nonexclusive license.
    (6) That such other conditions as the Chief may deem necessary in 
each case have been established.
    (b) Requirements for exclusive licenses. Exclusive licenses when 
granted, shall conform to the following:
    (1) A definite expiration date shall be specified based on the 
minimum time determined by the Chief to be needed by the licensee to 
introduce or popularize the item licensed and to recover the costs and 
expenses incurred in so doing.
    (2) The Chief shall retain the independent right to use Woodsy Owl 
in any concurrent, noncommercial program, and to allow for the 
manufacture and sale of Woodsy Owl merchandise which, in his judgment, 
would not be in conflict with the licensed item.
    (3) The licensee shall be required to have the licensed item 
available for sale, and promotion within a specified period, or show 
cause why this could not be done.
    (4) The licensee shall be required to invest a specified minimum 
amount of money in the development, production, and promotion of the 
licensed item, as determined by the Chief to be necessary to insure that 
the licensee's use of Woodsy Owl will result in a substantial 
contribution to public information concerning pollution abatement and 
environmental enhancement.
    (5) The Chief shall retain the right to revoke any license for 
failure of the licensee to comply with all the terms and conditions of 
the license.
    (6) The licensee shall be required to submit periodic progress 
reports to apprise the Forest Service of his activities and progress in 
achieving stated objectives.
    (7) The license shall not be subject to transfer or assignment, 
except as approved in writing by the Chief.
    (8) The licensee shall not be authorized to grant sublicenses in 
connection with the manufacture and sale of the item, except as approved 
in writing by the Chief.

[37 FR 5700, Mar. 18, 1972, as amended at 40 FR 12641, Mar. 20, 1975]

[[Page 336]]



Sec. 272.5  [Reserved]



Sec. 272.6  Power to revoke.

    It is the intention of these regulations that the Chief, in 
exercising the authorities delegated hereunder, will at all times 
consider the primary purpose of carrying on a public service campaign to 
promote wise use of the environment and programs which foster 
maintenance and improvement of environmental quality. All authorities 
and licenses granted under these regulations shall be subject to 
abrogation by the Chief at any time he finds that the use involved is 
injurious to the purpose of the Woodsy Owl campaign, is offensive to 
decency or good taste, or for similar reasons, in addition to any other 
limitations and terms contained in the licenses and other authorities.

[40 FR 12641, Mar. 20, 1975]



PART 290_CAVE RESOURCES MANAGEMENT--Table of Contents




Sec. 
290.1 Purpose and scope.
290.2 Definitions.
290.3 Nomination, evaluation, and designation of significant caves.
290.4 Confidentiality of cave location information.
290.5 Collection of information.

    Authority: 16 U.S.C. 4301-4309; 102 Stat. 4546.

    Source: 59 FR 31152, June 17, 1994, unless otherwise noted.



Sec. 290.1  Purpose and scope.

    The rules of this part implement the requirements of the Federal 
Cave Resources Protection Act (16 U.S.C. 4301-4309), hereafter referred 
to as the ``Act''. The rules apply to cave management on National Forest 
System lands. These rules, in conjunction with rules in part 261 of this 
chapter, provide the basis for identifying and managing significant 
caves on National Forest System lands in accordance with the Act. 
National Forest System lands will be managed in a manner which, to the 
extent practical, protects and maintains significant cave resources in 
accordance with the policies outlined in the Forest Service Directive 
System and the management direction contained in the individual forest 
plans.



Sec. 290.2  Definitions.

    For the purposes of this part, the terms listed in this section have 
the following meaning:
    Authorized officer means the Forest Service employee delegated the 
authority to perform the duties described in this part.
    Cave means any naturally occurring void, cavity, recess, or system 
of interconnected passages beneath the surface of the earth or within a 
cliff or ledge and which is large enough to permit a person to enter, 
whether the entrance is excavated or naturally formed. Such term shall 
include any natural pit, sinkhole, or other opening which is an 
extension of a cave entrance or which is an integral part of the cave.
    Cave resources mean any materials or substances occurring in caves 
including, but not limited to, biotic, cultural, mineralogic, 
paleontologic, geologic, and hydrologic resources.
    National Forest System lands means all national forest lands 
reserved or withdrawn from the public domain, acquired through purchase, 
exchange, or donation, national grasslands and land utilization 
projects, and other lands, waters, or interests administered by the 
Forest Service.
    Sec. etary means the Secretary of Agriculture.
    Significant cave means a cave located on National Forest System 
lands that has been determined to meet the criteria in Sec. 290.3 (c) 
or (d) and has been designated in accordance with Sec. 290.3(e).



Sec. 290.3  Nomination, evaluation, and designation of significant caves.

    (a) Nominations for initial and subsequent listings. The authorized 
officer will give governmental agencies and the public, including those 
who utilize caves for scientific, educational, or recreational purposes, 
the opportunity to nominate caves. The authorized officer shall give 
public notice, including a notice published in the Federal Register, 
calling for nominations for the initial listing and setting forth the 
procedures for preparing and submitting the nominations. Nominations for 
subsequent listings will be accepted from

[[Page 337]]

governmental agencies and the public by the Forest Supervisor where the 
cave is located as new cave discoveries are made. Caves nominated but 
not approved for designation may be renominated as additional 
documentation or new information becomes available.
    (b) Evaluation for initial and subsequent listings. The evaluation 
of the nominations for significant caves will be carried out in 
consultation with individuals and organizations interested in the 
management and use of caves and cave resources, within the limits 
imposed by the confidentiality provisions of Sec. 290.4. Nominations 
shall be evaluated using the criteria in Sec. 290.3 (c) and (d).
    (c) Criteria for significant caves. A significant cave on National 
Forest System lands shall possess one or more of the following features, 
characteristics, or values.
    (1) Biota. The cave provides seasonal or yearlong habitat for 
organisms or animals, or contains species or subspecies of flora or 
fauna native to caves, or are sensitive to disturbance, or are found on 
State or Federal sensitive, threatened, or endangered species lists.
    (2) Cultural. The cave contains historic properties or archeological 
resources (as defined in Parts 800.2 and 296.3 of this chapter 
respectively, or in 16 U.S.C. 470, et seq.), or other features included 
in or eligible for inclusion on the National Register of Historic Places 
because of their research importance for history or prehistory, 
historical associations, or other historical or traditional 
significance.
    (3) Geologic/Mineralogic/Paleontologic. The cave possesses one or 
more of the following features:
    (i) Geologic or mineralogic features that are fragile, represent 
formation processes that are of scientific interest, or that are 
otherwise useful for study.
    (ii) Deposits of sediments or features useful for evaluating past 
events.
    (iii) Paleontologic resources with potential to contribute useful 
educational or scientific information.
    (4) Hydrologic. The cave is a part of a hydrologic system or 
contains water which is important to humans, biota, or development of 
cave resources.
    (5) Recreational. The cave provides or could provide recreational 
opportunities or scenic values.
    (6) Educational or scientific. The cave offers opportunities for 
educational or scientific use; or, the cave is virtually in a pristine 
state, lacking evidence of contemporary human disturbance or impact; or, 
the length, volume, total depth, pit depth, height, or similar 
measurements are notable.
    (d) Specially designated areas. All caves located within special 
management areas, such as Special Geologic Areas, Research Natural 
Areas, or National Monuments, that are designated wholly or in part due 
to the cave resources found therein are determined to be significant.
    (e) Designation and documentation. If the authorized officer 
determines that a cave nominated and evaluated under paragraphs (a) and 
(b) of this section meets one or more of the criteria in paragraph (c) 
of this section, the authorized officer shall designate the cave as 
significant. The authorized officer will notify the nominating party of 
the results of the evaluation and designation. Each forest will retain 
appropriate documentation for all significant caves located within its 
administrative boundaries. At a minimum, this documentation shall 
include a statement of finding signed and dated by the authorized 
officer and the information used to make the determination. This 
documentation will be retained as a permanent record in accordance with 
the confidentiality provision in Sec. 290.4.
    (f) Undiscovered passages. If a cave is determined to be 
significant, its entire extent on federal land, including passages not 
mapped or discovered at the time of the determination, is deemed 
significant. This includes caves that extend from lands managed by any 
other Federal agency into National Forest System lands, as well as caves 
initially believed to be separate for which interconnecting passages are 
discovered after significance is determined.
    (g) Decision final. The decision to designate or not designate a 
cave as significant is made at the sole discretion of the authorized 
officer based upon the criteria in paragraphs (c) and (d) of this 
section and is not subject to further

[[Page 338]]

administrative review of appeal under Parts 217 or 251.82 of this 
chapter.



Sec. 290.4  Confidentiality of cave location information.

    (a) Information disclosure. No Forest Service employee shall 
disclose any information that could be used to determine the location of 
a significant cave or a cave nominated for designation, unless the 
authorized officer determines that disclosure will further the purposes 
of the Act and will not create a substantial risk of harm, theft, or 
destruction to cave resources.
    (b) Requesting confidential information. Notwithstanding paragraph 
(a) of this section, the authorized officer may make confidential cave 
information available to Federal or State governmental agencies, bona 
fide educational or research institutes, or individuals or organizations 
assisting the land management agencies with cave management activities. 
To request confidential cave information, such entities shall make a 
written request to the authorized officer which includes the following:
    (1) Name, address, and telephone number of the individual 
responsible for the security of the information received;
    (2) A legal description of the area for which the information is 
sought;
    (3) A statement of the purpose for which the information is sought; 
and,
    (4) Written assurances that the requesting party will maintain the 
confidentiality of the information and protect the cave and its 
resources.
    (c) Decision final. The decision to permit or deny access to 
confidential cave information is made at the sole discretion of the 
authorized officer and is not subject to further administrative review 
or appeal under 5 U.S.C. 552 or parts 217 or 251.82 of this chapter.



Sec. 290.5  Collection of information.

    The collection of information contained in this rule represents new 
information requirements as defined in 5 CFR part 1320, Controlling 
Paperwork Burdens on the Public. In accordance with those rules and the 
Paperwork Reduction Act of 1980 as amended (44 U.S.C. 3507), the Forest 
Service has received approval by the Office of Management and Budget to 
collect cave nomination information under clearance number 0596-0123 and 
confidential information under 0596-0122. The information provided for 
the cave nominations will be used to determine which caves will be 
listed as ``significant'' and the information in the requests to obtain 
confidential cave information will be used to decide whether to grant 
access to this information. Response to the call for cave nominations is 
voluntary. No action may be taken against a person for refusing to 
supply the information requested. Response to the information 
requirements for obtaining confidential cave information is required to 
obtain a benefit in accordance with section 5 of the Federal Cave 
Resources Protection Act of 1988 (16 U.S.C. 4304).



PART 292_NATIONAL RECREATION AREAS--Table of Contents




                            Subpart A_General

Sec. 
292.1-292.10 [Reserved]

      Subpart B_Whiskeytown-Shasta-Trinity National Recreation Area

292.11 Introduction.
292.12 General provisions; procedures.
292.13 Standards.

        Subpart C_Sawtooth National Recreation Area_Private Lands

292.14 Introduction.
292.15 General provisions--procedures.
292.16 Standards.

        Subpart D_Sawtooth National Recreation Area_Federal Lands

292.17 General provisions.
292.18 Mineral resources.

      Subpart E_Hells Canyon National Recreation Area_Private Lands

292.20 Purpose and scope.
292.21 Definitions.
292.22 Land category assignments.
292.23 Standards of compatible land use and development.
292.24 Determination of compliance and noncompliance.
292.25 Information requirements.

[[Page 339]]

      Subpart F_Hells Canyon National Recreation Area_Federal Lands

292.40 Purpose and scope.
292.41 Definitions.
292.42 Management standards and guidelines.
292.43 Protection and preservation of cultural and paleontological 
          resources.
292.44 Use of motorized and mechanical equipment.
292.45 Use of motorized and non-motorized rivercraft.
292.46 Timber harvesting activities.
292.47 Mining activities.
292.48 Grazing activities.

             Subpart G_Smith River National Recreation Area

292.60 Purpose and scope.
292.61 Definitions.
292.62 Valid existing rights.

                           Locatable Minerals

292.63 Plan of operations--supplementary requirements.
292.64 Plan of operations--approval.
292.65 Plan of operations--suspension.

                       Outstanding Mineral Rights

292.66 Operating plan requirements--outstanding mineral rights.
292.67 Operating plan approval--outstanding mineral rights.

                            Mineral Materials

292.68 Mineral material operations.

                            Other Provisions

292.69 Concurrent reclamation.
292.70 Indemnification.



                            Subpart A_General



Sec. 292.1-292.10  [Reserved]



      Subpart B_Whiskeytown-Shasta-Trinity National Recreation Area

    Authority: Sec.  1, 30 Stat. 35, as amended, 62 Stat. 100, Sec. 1, 33 
Stat. 628; 16 U.S.C. 551, 472.

    Source: 38 FR 5853, Mar. 5, 1973, unless otherwise noted.



Sec. 292.11  Introduction.

    (a) Administration of the Shasta and Clair Engle-Lewiston Units will 
be coordinated with the other purposes of the Central Valley Project of 
the Bureau of Reclamation and of the recreation area as a whole so as to 
provide for: (1) Public outdoor recreation benefits; (2) conservation of 
scenic, scientific, historic, and other values contributing to public 
enjoyment; and (3) the management, utilization, and disposal of 
renewable natural resources which in the judgment of the Sec. etary of 
Agriculture will promote or is compatible with, and does not 
significantly impair, public recreation and conservation of scenic, 
scientific, historic, or other values contributing to public enjoyment.
    (b) The Sec. etary may not acquire without consent of the owner any 
privately owned ``improved property'' or interests therein within the 
boundaries of these units, so long as the appropriate local zoning 
agency shall have in force and applicable to such property a duly 
adopted, valid, zoning ordinance that is approved by the Sec. etary. This 
suspension of the Sec. etary's authority to acquire ``improved property'' 
without the owner's consent would automatically cease: (1) If the 
property is made the subject of a variance or exception to any 
applicable zoning ordinance that does not conform to the applicable 
standards contained in Secs. 292.11 to 292.13; or (2) if such 
property is put to any use which does not conform to any applicable 
zoning ordinance approved by the Sec. etary.
    (c) Improved property as used in Secs. 292.11 to 292.13, means 
any building or group of related buildings, the actual construction of 
which was begun before February 7, 1963, together with not more than 
three acres of land in the same ownership on which the building or group 
of buildings is situated, but the Sec. etary may exclude from such 
``improved property'' any shore or waters, together with so much of the 
land adjoining such shore or waters, as he deems necessary for public 
access thereto.
    (d) Sec. ions 292.11 to 292.13 specify the standards with which local 
zoning ordinances for the Shasta and Clair Engle-Lewiston Units must 
conform if the ``improved property'' or unimproved property proposed for 
development as authorized by the Act within the boundaries of the units 
is to be exempt from acquisition by condemnation. The objectives of 
Secs. 292.11 to 292.13 are to:

[[Page 340]]

    (1) Prohibit new commercial or industrial uses other than those 
which the Sec. etary considers to be consistent with the purposes of the 
act establishing the national recreation area; (2) promote the 
protection and development of properties in keeping with the purposes of 
that Act by means of use, acreage, setback, density, height or other 
requirements; and (3) provide that the Sec. etary receive notice of any 
variance granted under, or any exception made to, the application of the 
zoning ordinance approved by him.
    (e) Following promulgation of Secs. 292.11 to 292.13 of final 
form, the Sec. etary is required to approve any zoning ordinance or any 
amendment to an approved zoning ordinance submitted to him which 
conforms to the standards contained in the regulations in effect at the 
time of adoption of the ordinance or amendment.
    (f) Any owner of unimproved property who proposes to develop his 
property for service to the public may submit to the Sec. etary a 
development plan setting forth the manner in which and the time by which 
the property is to be developed and the use to which it is proposed to 
be put. If the Sec. etary determines that the development and the use of 
the property conforms to approved zoning ordinances, and serves the 
purposes of the National Recreation Area and that the property is not 
needed for easements and rights-of-way for access, utilities, or 
facilities, or for administration sites, campgrounds, or other areas 
needed for use by the United States for visitors, he may in his 
discretion issue to such owner a certification that so long as the 
property is developed, maintained, and used in conformity with approved 
zoning ordinances the Sec. etary's authority to acquire the property 
without the owner's consent is suspended.



Sec. 292.12  General provisions; procedures.

    (a) Approval of zoning ordinance and development plans. (1) All 
validly adopted zoning ordinances and amendments thereto pertaining to 
the Shasta and Clair Engle-Lewiston Units may be submitted by the county 
of origin to the Sec. etary for written approval relative to their 
conformance with the applicable standards of Secs. 292.11 to 
292.13. Within 60 days following submission, the county will be notified 
of the Sec. etary's approval or disapproval of the zoning ordinances or 
amendments thereto. If more than 60 days are required, the county will 
be notified of the expected delay and of the additional time deemed 
necessary to reach a decision. The Sec. etary's approval shall remain 
effective so long as the zoning ordinances or amendments thereto remain 
in effect as approved.
    (2) Development plans pertaining to unimproved property within the 
Shasta and Clair Engle-Lewiston Units may be submitted by the owner to 
the Sec. etary for determination as to whether they conform with approved 
zoning ordinances and whether the planned use and development would 
serve the Act. Within 30 days following submission of such plans the 
Sec. etary will approve or disapprove the plans or, if more than 30 days 
are required, will notify the applicant of the expected delay and of the 
additional time deemed necessary.
    (b) Amendment of ordinances. Amendments of approved ordinances may 
be furnished in advance of their adoption to the Sec. etary for written 
decision as to their conformance with applicable standards of Secs. 
292.11 to 292.13.
    (c) Variances or exceptions to application of ordinances. (1) The 
Sec. etary shall be given written notice of any variance granted under, 
or any exception made to, the application of a zoning ordinance or 
amendment thereto approved by him.
    (2) The County, or private owners of improved property, may submit 
to the Sec. etary proposed variances or exceptions to the application of 
an approved zoning ordinance or amendment thereto for written advice as 
to whether the intended use will make the property subject to 
acquisition without the owner's consent. Within 30 days following his 
receipt of such a request, the Sec. etary will advise the interested 
party or parties as to his determination. If more than 30 days are 
required by the Sec. etary for such determination, he shall so notify the 
interested party or parties stating the additional time required and the 
reasons therefore.
    (d) Certification of property. Where improvements and land use of 
improved

[[Page 341]]

property conform with approved ordinances, or with approved variances 
from such ordinances, certification that the Sec. etary's authority to 
acquire the property without the owner's consent is suspended may be 
obtained by any party in interest upon request to the Sec. etary. Where 
the development and use of unimproved property for service to the public 
is approved by the Sec. etary, certification that the authority to 
acquire the property without the owner's consent is suspended may be 
issued to the owner.
    (e) Effect of noncompliance. Suspension of the Sec. etary's authority 
to acquire any improved property without the owner's consent will 
automatically cease if: (1) Such property is made the subject of 
variance or exception to any applicable zoning ordinance that does not 
conform to the applicable standard in the Sec. etary's regulation, (2) 
such property is put to a use which does not conform to any applicable 
zoning ordinance, or, as to property approved by the Sec. etary for 
development, a use which does not conform to the approved development 
plan or (3) the local zoning agency does not have in force a duly 
adopted, valid zoning ordinance that is approved by the Sec. etary in 
accordance with the standards of Secs. 292.11 to 292.13.
    (f) Nonconforming commercial or industrial uses. Any existing 
commercial or industrial uses not in conformance with approved zoning 
ordinances shall be discontinued within 10 years from the date such 
ordinances are approved: Provided, however, That with the approval of 
the Sec. etary such 10-year period may be extended by the county for a 
prescribed period sufficient to allow the owner reasonable additional 
time to amortize investments made in the property before November 8, 
1965.



Sec. 292.13  Standards.

    (a) The standards set forth in Secs. 292.11-292.13 shall apply 
to the Shasta and Clair Engle-Lewiston Units, which are defined by the 
boundary descriptions in the notice of the Sec. etary of Agriculture of 
July 12, 1966 (31 FR 9469), and to a strip of land outside the National 
Recreation Area on either side of Federal Aid Sec. ndary Highway Numbered 
1089, as more fully described in 2(a) of the act establishing the 
recreation area (79 Stat. 1296).
    (b) New industrial or commercial uses. New industrial or commercial 
uses will be prohibited in any location except under the following 
conditions:
    (1) The industrial use is such that its operation, physical 
structures, or waste byproducts would not have significant adverse 
impacts on surrounding or nearby outdoor recreation, scenic and esthetic 
values. Industrial uses having an adverse impact include, but are not 
limited to, cement production, gravel extraction operations involving 
more than one-fourth acre of surface, smelters, sand, gravel and 
aggregate processing plants, fabricating plants, pulpmills, and 
commercial livestock feeder yards.
    (2)(i) The commercial use is for purposes of providing food, 
lodging, automotive or marine maintenance facilities and services to 
accommodate recreationists and the intended land occupancy and physical 
structures are such that they can be harmonized with adjacent land 
development and surrounding appearances in accordance with approved 
plans and schedules.
    (ii) This standard provides for privately owned and operated 
businesses whose purposes and physical structures are in keeping with 
objectives for use and maintenance of the area's outdoor recreation 
resources. It precludes establishment of drive-in theaters, zoos, and 
similar nonconforming types of commercial entertainment.
    (c) Protection of roadsides. Provisions to protect natural scenic 
qualities and maintain screening along public travel routes will 
include:
    (1) Prohibition of new structural improvements or visible utility 
lines within a strip of land extending back not less than 150 feet from 
both sides of the centerline of any public road or roadway except roads 
within subdivisions or commercial areas. In addition to buildings, this 
prohibition pertains to above-ground power and telephone lines, borrow 
pits, gravel, or earth extraction areas, and quarries.
    (2) Retention of trees and shrubs in the above-prescribed roadside 
strips to the full extent that is compatible with

[[Page 342]]

needs for public safety and road maintenance. Wholesale clearing by 
chemical or other means for fire control and other purposes will not be 
practiced under this standard.
    (d) Protection of shorelines. Provisions to protect scenic qualities 
and reduce potentials for pollution of public reservoirs will include: 
Prohibition of structures within 300 feet horizontal distance from 
highwater lines of reservoirs other than structures the purpose of which 
is to service and accommodate boating or to facilitate picnicking and 
swimming: Provided, That exceptions to this standard may be made upon 
showing satisfactory to the Sec. etary that proposed structures will not 
conflict with scenic and antipollution considerations.
    (e) Property development. Location and development of structures 
will conform with the following minimum standards:
    (1) Commercial development. (i) Stores, restaurants, garages, 
service stations, and comparable business enterprises will be situated 
in centers zoned for this purpose unless they are operated as part of a 
resort or hotel. Commercial centers will be of sufficient size that 
expansion of facilities or service areas is not dependent upon use of 
public land.
    (ii) Sites outside designated commercial centers will be used for 
resort development contingent upon case by case concurrence of the 
responsible county officials and the Sec. etary that such use is, in all 
aspects, compatible with the purposes for establishing the recreation 
area.
    (iii) Structures for commercial purposes, inclusive of isolated 
resorts or motels, will not exceed two stories height at front 
elevation, and will be conventional architecture and will utilize 
colors, nonglare roofing materials, and spacing or layout that 
harmonizes with forested settings. Except for signs, structures designed 
primarily for purposes of calling attention to products or service will 
not be permitted.
    (2) Residential development. (i) Locations approved for residential 
development will be buffered by distance, topography, or forest cover 
from existing or planned public use areas such as trailer parks, 
campgrounds, or organization sites. Separation will be sufficient to 
avoid conflicts resulting from intervisibility, noise, and proximity 
that is conducive to private property trespass.
    (ii) Requirements for approval of residential areas will include: 
(a) Construction of access when main access would otherwise be limited 
to a road constructed by the United States primarily to service publicly 
owned recreation developments; (b) limitation of residences to single-
family units situated at a density not exceeding two per acre, but any 
lot of less than a half-acre may be used for residential purposes if, on 
or before promulgation of Secs. 292.11-292.13, such lot was in 
separate ownership or was delineated in a county-approved plat that 
constitutes part of a duly recorded subdivision; (c) use of set-backs, 
limitations to natural terrain, neutral exterior colors, nonglare 
roofing materials, and limitations of building heights fully adequate to 
harmonize housing development with the objective of the National 
Recreation Area as set forth in the act.
    (3) Signs and signing. Only those signs may be permitted which: (i) 
Do not exceed 1 square foot in area for any residential use; (ii) do not 
exceed 40 square feet in area, 8 feet in length, and 15 feet maximum 
height from ground for any other use, including advertisement of the 
sale or rental of property; and (iii) which are not illuminated by any 
neon or flashing device. Commercial signs may be placed only on the 
property on which the advertised use occurs, or on the property which is 
advertised for sale or rental. Signs shall be subdued in appearance, 
harmonizing in design and color with the surroundings and shall not be 
attached to any tree or shrub. Nonconforming signs may continue for a 
period not to exceed 2 years from the date a zoning ordinance containing 
these limitations is adopted.



        Subpart C_Sawtooth National Recreation Area_Private Lands

    Authority: Sec.  4(a), Act of Aug. 22, 1972 (86 Stat. 613).



Sec. 292.14  Introduction.

    (a) Purpose. In accordance with the provisions of the Act 
establishing the

[[Page 343]]

Sawtooth National Recreation Area (86 Stat. 612), the regulations of 
this subpart establish standards for the use, subdivision and 
development of privately owned property within the boundaries of the 
Sawtooth National Recreation Area. The standards are in furtherance of 
the preservation and protection of the natural, scenic, historic, 
pastoral, and fish and wildlife values and to provide for the 
enhancement of the recreational values of the Recreation Area. Unless, 
in the judgment of the Sec. etary, such property is being used, or is in 
imminent danger of being used, in a manner incompatible with such 
standards, the property or any interest therein may not be acquired by 
condemnation. However, private land or an interest therein, determined 
to be necessary for access to and utilization of public property, and 
for recreation and other facilities, may be condemned without regard to 
this restriction, subject however, to the limitation in Sec. 292.15(j).
    (b) Amendment of regulations. Amendments to these regulations shall 
be made in accordance with the Administrative Procedures Act (60 Stat. 
238, 5 U.S.C. 553), including the publishing of the amendments as a 
notice of proposed rulemaking with final adoption after interested 
persons have been given an opportunity to participate in the rulemaking 
through submission of comments.
    (c) Definitions--(1) Cluster-type development. Planned unit 
development which allows flexibility in neighborhood and subdivision lot 
design by dedicating or reserving the land so saved to open space.
    (2) Community development plan. A narrative plan with maps which 
sets forth specific standards for desirable development of a community.
    (3) Designated community. A populated area divided into lots, blocks 
and streets as platted and recorded in the official records of the 
county, containing residences and commercial establishments providing 
goods and services and retaining the atmosphere of a western frontier 
ranch-type town and so classified in Sec. 292.15(a).
    (4) Dude ranching. Development oriented to furnish an outdoor 
recreational or educational experience related to ranching. Facility 
development is compatible with the pastoral environment, rustic in 
nature and harmoniously colored.
    (5) Mineral operations. All functions, work and activities in 
connection with exploration, development, mining or processing of 
mineral resources except prospecting which will not cause significant 
surface disturbance and will not involve removal of more than a 
reasonable amount of mineral deposit for analysis and study.
    (6) Private property. Lands or interests in lands not owned by 
Federal, State, or local governments but not including unpatented mining 
claims.
    (7) Ranch-type character. A low profile, rambling, well-
proportioned, rustic appearing, rough-sawn wood or wood and stone 
structure or group of structures harmoniously situated within a natural 
environment.
    (8) Residential outbuilding. Nonhabitable building detached from the 
residence, such as a garage, woodshed or storage building.
    (9) Sec. etary. Secretary of Agriculture.
    (10) Area Ranger. The Forest Officer having administrative authority 
for the Sawtooth National Recreation Area.

[39 FR 11544, Mar. 29, 1974]



Sec. 292.15  General provisions--procedures.

    (a) Classification of private property. For the purpose of 
establishing specific standards applicable to the several parcels of 
private land within the boundaries, such properties are classified and 
assigned to land use categories as shown on the Land Use Category Map, 
dated December 15, 1973, as amended July 16, 1976, on file and available 
for public inspection in the office of the Area Ranger, Sawtooth 
National Recreation Area, Ketchum, Idaho. The classification of private 
properties is based on evaluation of scenic, natural, historic, 
pastoral, wildlife, and other values.
    (b) Land use categories. Land use categories shown on the map 
referred to in paragraph (a) of this section are:
    (1) Designated community. All properties inside a designated 
community.

[[Page 344]]

    (2) Residential. Areas for residential development outside 
designated communities.
    (3) Commercial. Areas for commercial development outside designated 
communities.
    (4) Agriculture. All properties outside designated communities not 
placed in a residential or commercial land use category.
    (5) Mineral. Any areas in the land use in paragraphs (b) (1) through 
(4) of this section, used for mineral operations.
    (c) Changes in classification. The Sec. etary may make changes in the 
classification of private lands set forth in paragraph (a) of this 
section by incorporating such changes in an amendment of these 
regulations.
    (d) Certification of compliance with standards--(1) Present use. Any 
owner of property may request in writing the Area Ranger to examine the 
present use of the property and issue a certification that such present 
use conforms to the applicable standards established in Sec. 292.16 for 
the land use category in which the property is placed. If after 
examination the Area Ranger determines that the present use of the 
property does so conform, he will issue a certification to this effect.
    (2) Planned development or change in use. Any owner of property who 
proposes to change the use or develop his property for other than 
agricultural use may submit to the Area Ranger a use or development plan 
setting forth the manner in which and the time by which the property is 
to be developed and the use to which the property is to be put. If the 
Area Ranger determines that the development and use plan conforms to the 
applicable standards established in Sec. 292.16 for the land use 
category in which the property is placed, he will issue a certification 
to this effect.
    (3) Notification of action. Within 45 days after receipt of request 
for certification, the Area Ranger shall:
    (i) Issue the certification.
    (ii) Notify applicant that additional information is needed before 
action can be taken on the application.
    (iii) Notify applicant that certification is denied, and reasons for 
denial.
    (iv) Notify applicant that action on the request is deferred for a 
specified period of time for stated reasons.
    (e) Qualified certifications. (1) Any owner of a property classified 
residential or commercial under paragraph (a) of this section which had 
been improved and was being used for residential or commercial purposes 
on the effective date of these regulations, but which does not conform 
to the standards established for properties in the land use category in 
which the property is placed may nevertheless be issued a certification 
for period not to exceed 10 years so that the improvements may be made 
to conform to the standards. Such certification shall specify that it is 
only effective so long as the property is not subdivided, and is not 
further improved and the improvements existing on the effective date of 
these regulations, are not reconstructed, altered or relocated, except 
to meet standards. The certification shall specify the date on which it 
shall terminate.
    (2) If the Area Ranger determines, prior to certification, that a 
part or all of a property, for which a request for certification is 
made, is needed for access to and utilization of public property or for 
recreation and other facilities, he may except from the certification 
that part of the property needed for these purposes.
    (f) Revocation of certification. The Area Ranger will revoke a 
certification when he finds that the property is being used or developed 
not in conformance with the terms of the certification or the applicable 
standards established in Sec. 292.16 or is in imminent danger of being 
so used or developed. Notice of such revocation will be in writing and 
delivered to the owner in person or by certified mail. A partial 
revocation may be made when a portion of a property covered by a 
certification is determined to be needed for access to and utilization 
of public property or for recreation and other facilities.
    (g) Effect of certification. Property for which a certification is 
held by the owner shall not be acquired by the Sec. etary by 
condemnation.

[[Page 345]]

    (h) Effect of noncompliance with standards. Property for which a 
determination has been made that it is being used or developed not in 
conformance with the applicable standards established in Sec. 292.16 
for the land use category in which the property is placed may be 
acquired by the Sec. etary by condemnation.
    (i) Acquisition by negotiated purchase. (1) Any privately owned land 
or interest in land determined by the Sec. etary to be needed in 
furtherance of the objectives and purposes for which the Sawtooth 
National Recreation Area was established may be acquired by negotiated 
purchase subject only to the limitation in paragraph (j) of this 
section.
    (2) Property which has been developed for use prior to the effective 
date of these regulations, but which is not in conformance with 
applicable standards may be acquired by the Sec. etary through negotiated 
purchase and the Sec. etary may permit the owners, their successors or 
assigns to retain a right of use and occupancy of the improved property 
for a definite term not beyond December 31, 1988.
    (j) Limitation on acquisitions. Acquisitions of lands or interests 
therein for access to and utilization of public property and for 
recreation and other facilities shall not exceed 5 percent of the total 
acreage of all private property within the Sawtooth National Recreation 
Area on August 22, 1972. A land acquisition plan shall be prepared by 
the Area Ranger and approved by the Regional Forester showing those 
properties needed for access to and utilization of public property or 
for recreation and other facilities. Said plan may be revised from time 
to time upon approval by the Regional Forester. Said plan shall be 
available for inspection by the public in the office of the Area Ranger.
    (k) Land exchanges. Some parcels of Federal lands within the 
Sawtooth National Recreation Area are classified or may be subsequently 
classified in the overall general plan for the Recreation Area as 
suitable for selection through land exchange. Using existing land 
exchange authorities, these Federal lands may be made available for 
selection by parties owning land within the boundaries of the National 
Recreation Area to resolve some existing or potential land use 
conflicts. The values of the properties so exchanged shall be 
approximately equal, or, if they are not approximately equal, they shall 
be equalized by the payment of cash. Federal lands which may be located 
within the boundaries of designated communities will be considered for 
exchange only after acceptable community development plans and 
ordinances have been implemented.
    (l) Appeals. Any landowner who is adversely affected by a decision 
of the Area Ranger under these regulations may file an appeal under the 
provisions of 36 CFR part 251, subpart C.
    (m) Judicial review. The United States District Court for the 
District of Idaho shall have jurisdiction to review these regulations 
upon a compliant filed within 6 months after the effective date of these 
regulations, by any affected landowner in an action for a declaratory 
judgment as provided in the Act of August 22, 1972 (86 Stat. 612), 
section 4(a).

[39 FR 11544, Mar. 29, 1974, as amended at 41 FR 29379, July 16, 1976; 
54 FR 3368, Jan. 23, 1989]



Sec. 292.16  Standards.

    The standards established in these regulations are in furtherance of 
the preservation and protection of the natural, scenic, historic, 
pastoral, and fish and wildlife values and to provide for the 
enhancement of the recreation values of the Recreation Area.
    (a) Applicability. The standards set forth in this section for each 
land use category shall apply to the private land in each such land use 
category as classified by the Sec. etary in accordance with Sec.292.15.
    (b) Changes in standards. Changes in and addition to the standards 
may be made from time to time through amendment of these regulations.
    (c) General standards. The following standards apply to properties 
in all land use categories.
    (1) Use and development of the property will be in conformance with 
applicable Federal, State, and local laws, regulations and ordinances.
    (2) Development, improvement and use of the property will not 
materially

[[Page 346]]

detract from the scenic, natural, historic, pastoral, and fish and 
wildlife values of the area.
    (3) There will be adequate provision for disposal of solid and 
liquid waste originating on or resulting from use of the property.
    (4) All new utilities will be underground.
    (5) No structures or other improvements will be constructed in or 
encroaching upon streambeds, banks and flood plains of live or 
intermittent streams. Streambeds, banks, and flood plains will not be 
disturbed, except as may be necessary to construct, operate, and 
maintain irrigation, fisheries, utilities, roads, and similar facilities 
or improvements. Any such necessary encroachment will avoid impeding 
water flow, sedimentation of streams or entrance of deleterious material 
into streams.
    (d) Designated communities. (1) The following standards are 
established until replaced as provided for in paragraph (d)(2) of this 
section.
    (i) No buildings or structures, or part thereof, erected, 
constructed, reconstructed, altered, moved, or used for any purpose, 
except in conformance with the standards established herein.
    (ii) No excavation or topographic change, except that required for 
foundations, utilities, or roads, that would modify or change the scenic 
beauty of natural hillsides or mountain slope lands.
    (iii) Minimum 100-foot frontage on new building sites.
    (iv) All new buildings set in 10 feet from each side of property 
line.
    (v) All new buildings set back 20 feet from front property line.
    (vi) Only one single-family dwelling for each building site or lot.
    (vii) No new building to exceed two stories in height as determined 
from ground level.
    (viii) No building or structure erected with foundation pillars or 
stilts that exceeds 36 inches above ground level. Pillars or stilts, if 
used, must be enclosed.
    (ix) Minimum of 750 square feet for new residences.
    (x) All new buildings constructed of logs, shakes, rough lumber, 
rough wood, and native stone.
    (xi) Mobile or semimobile homes permitted only in existing mobile 
home parks.
    (xii) Nonreflective roofs on new buildings.
    (xiii) All new steps and walks constructed of wood.
    (xiv) Paints or stains to be of earth tones common to the area.
    (xv) All buildings and structures, including fences, to be 
maintained in a useable and servicable condition or removed. Properties 
to be maintained in a clean and orderly condition.
    (xvi) Existing plus new buildings or structures cannot occupy more 
than 30 percent of the land surface on a lot less than 20,000 square 
feet in area. On any lot larger than 20,000 square feet, existing plus 
new buildings cannot occupy more than 6,500 square feet. Existing 
properties exceeding this amount as of the effective date of these 
regulations may not be further developed.
    (xvii) The standards in paragraphs (d)(1) (v), (vi), (ix), and (xvi) 
of this section shall not apply to properties developed for commercial 
purposes.
    (2) The Area Ranger shall cooperate with each designated community 
in the preparation of a community development plan and implementing 
ordinances which will assure that use and development of the private 
properties within the community will be consistent with the purposes for 
which the Sawtooth National Recreation Area was established and with the 
overall general plan of the Recreation Area. The Sec. etary may then, by 
amendment of these regulations, replace the standards adopted pursuant 
to paragraph (d)(1) of this section with the standards set forth in such 
community development plan and implementing ordinances as the standards 
applicable to that designated community.
    (e) Residential. (1) Vegetative cover and screening requirements. 
Any combination of vegetative screening, topography, and structure 
design that renders the residence inconspicuous and not obtrusive as 
seen from main travel routes.
    (2) Buildings. (i) Not more than one residence on each separately 
owned contiguous property as recorded in the records of the appropriate 
county on

[[Page 347]]

date of publication of these regulations.
    (ii) Not more than two outbuildings with each residence. Aggregate 
square foot area of outbuildings not to exceed 850 square feet and to be 
limited to one story not more than 22 feet in height.
    (iii) Dwelling size not less than 750 square feet of floor space.
    (iv) Building architecture compatible with location and the pastoral 
environment, rustic in nature, harmoniously colored or natural wood 
finish or suitable wood substitutes, nonreflective roofs and sidings.
    (v) Height of buildings to be in keeping with site characteristics 
and normally not exceeding on-site tree height, or 30 feet.
    (vi) Sufficient setback of buildings from centerline of public roads 
for safety and unhampered traffic flow.
    (vii) Minimum building setback from property line--10 feet.
    (3) No excavation or topographic change except that required for 
buildings, roads, and utilities.
    (4) Removal of live trees and other vegetation limited to that 
necessary to accommodate buildings and roads to allow installation of 
utilities.
    (5) Roads designed, located, and constructed to minimize adverse 
esthetic impact and soil erosion.
    (6) Owner identification and sale or rental signs not to exceed 2 
square feet in size.
    (7) Buildings and structures, including fences, to be maintained in 
a usable and serviceable condition or removed.
    (8) No further reduction in size of residential ownerships except 
that which will not impair the objectives for which the Sawtooth 
National Recreation Area was established. A certification will be issued 
pursuant to Sec. 292.15(d) upon application in such cases.
    (f) Commercial--(1) General. Service provided must serve a need 
which cannot readily or adequately be provided in a designated 
community, and must be compatible with the purposes for which the 
Sawtooth National Recreation Area was established.
    (2) Buildings. (i) Building architecture to be compatible with the 
pastoral environment, rustic in nature, harmoniously colored or natural 
wood finish or suitable wood substitutes, nonreflective roofs and 
sidings.
    (ii) Building height to be in keeping with building size, scale, 
setback from roads and property boundaries, site size, setting, building 
design and type of use.
    (iii) Sufficient setback of buildings from centerline of public 
roads for safety and unhampered traffic flow.
    (3) Only signs identifying the commercial enterprise being conducted 
on the property. Signs not to exceed 20 square feet in area, 6 feet in 
length and 15 feet maximum height. Signs to be subdued in appearance and 
harmonizing in design and color with the surroundings. Signs not 
complying with the standard may be approved by certifications issued 
pursuant to Sec. 292.15(d) in special cases.
    (4) No flashing lights.
    (5) No new mobile or semimobile homes and mobile home parks except 
where they may be located without substantially impairing or detracting 
from the scenic, natural, historic, pastoral, and fish and wildlife 
values of the area.
    (g) Agriculture. (1) Only structures which do not substantially 
impair or detract from the scenic, natural, historic, pastoral, and fish 
and wildlife values of the area and which are necessary for ranching or 
dude ranching such as dwellings, barns, storage buildings, fences, 
corrals, irrigation facilities, roads, and utilities.
    (2) Buildings to be ranch-type character with log or other rustic 
exterior with harmoniously colored or natural wood finish and 
nonreflective surfaces.
    (3) Fences and other improvements to be in harmony with the western 
ranching atmosphere.
    (4) Minimum setback of new buildings to be 150 feet from public 
roads where determined feasible by the Area Ranger.
    (5) No further reduction in size of agricultural ownerships except 
that which will not impair the objectives for which the Sawtooth 
National Recreation Area was established. A certification will be issued 
pursuant to Sec. 292.15(d) upon application in such cases.

[[Page 348]]

    (6) No signs, billboards or advertising devices except a property 
identification sign and one sale or rental sign not to exceed 2 square 
feet in area, harmonious in design and color with the surroundings. 
Signs not complying with this standard may be approved by certifications 
issued pursuant to Sec. 292.15(d) in special cases.
    (7) Any tree removal and related slash disposal and soil erosion 
prevention measures to be conducted in a manner that will minimize 
detrimental effects to the site and adjoining lands.
    (8) The general topography of the landscape to be unaltered except 
for incidental excavation or topographic change required by ranching 
activities.
    (9) Structures and improvements, including fences, to be maintained 
in usable condition or removed. Those recognized as having historic or 
esthetic value may remain.
    (10) Roads to be designed, located and constructed to minimize 
esthetic impact and soil movement.
    (11) Agricultural practices to be limited to hay production and 
pasture and range grazing in a manner which does not degrade water 
quality or result in accelerated soil erosion.
    (h) Mineral operations. The standards set forth in this paragraph 
shall apply to a private property or portion thereof in any land use 
category which is used for mineral operations. To aid in determining 
whether a planned mineral operation will conform to these standards, the 
owner of the property shall submit to the Area Ranger a proposed plan of 
operations. If the Area Ranger determines that the proposed operation 
conforms to the standards established herein he will approve the plan 
and such approval shall constitute the certification provided for in 
Sec. 292.15(d).
    (1) Operations will be confined to those locations where they may be 
conducted without substantially impairing or detracting from the scenic, 
natural, historic, pastoral, and fish and wildlife values of the area.
    (2) The general standards set forth in paragraph (c) of this section 
shall apply to any mineral operations.
    (3) The operations as described in the plan of operation and as they 
are carried out in accordance with the plan shall:
    (i) Comply with Federal and State air and water quality and waste 
disposal standards.
    (ii) Minimize adverse impacts on scenic values.
    (iii) Provide for prompt stabilization and restoration of areas 
disturbed by the operations.

[39 FR 11544, Mar. 29, 1974, as amended at 69 FR 55094, Sept. 13, 2004]



        Subpart D_Sawtooth National Recreation Area_Federal Lands

    Authority: Sec.  1, 30 Stat. 35, 36, as amended, 16 U.S.C. 478, 551; 
sec. 11, 86 Stat. 612, 16 U.S.C. 460aa-10.



Sec. 292.17  General provisions.

    (a) The use, management and utilization of natural resources on the 
Federal lands in the Sawtooth National Recreation Area (SNRA) are 
subject to the General Management Plan and the laws, rules, and 
regulations pertaining to the National Forests with the exception that 
part 252 of this chapter does not apply to these resources. No use or 
disposal of such resources shall be authorized which will result in 
substantial impairment of the natural values of the Recreation Area.
    (b) Definitions:
    (1) Act means Pub. L. 92-400 (86 Stat. 612), which established the 
SNRA.
    (2) Area Ranger or Superintendent means the Forest Service officer 
having administrative authority for the SNRA.
    (3) General management plan means the document setting forth the 
land allocation and resource decisions for management of the SNRA.
    (4) Letter of authorization means a letter signed by the Area 
Ranger, or his designee, authorizing an operator to conduct operations 
as approved in the operating plan.
    (5) Mineral resources means all locatable minerals.
    (6) Operator means a person conducting or proposing to conduct 
operations.
    (7) Operations means all functions works, and activities in 
connection with exploration, development, mining or processing of 
mineral resources and all uses reasonably incident thereto,

[[Page 349]]

including roads and other means of access on lands, regardless of 
whether said operations take place on or off mining claims.
    (8) Operating plan means a written instrument describing proposed 
operations on Federal lands and containing such information as required 
by Sec. 292.18.
    (9) Person means any individual, partnership, association, 
corporation, or other legal entity.
    (10) Substantial impairment means that level of disturbance of the 
values of the SNRA which is incompatible with the standards of the 
General Management Plan. The proposed activities will be evaluated as 
to:
    (i) The period of impact,
    (ii) The area affected, and
    (iii) The importance of the impact on the SNRA values.
    (11) Unpatented mining claims means any mining claim or millsite 
claim located prior to August 22, 1972, pursuant to the Mining Law of 
1872, but not patented.

[42 FR 39387, Aug. 4, 1977]



Sec. 292.18  Mineral resources.

    (a) Occupancy. No unpatented mining claim may be used or occupied, 
except as otherwise permitted for any purpose other than exploration, 
mining, or processing operations and uses reasonably incident thereto.
    (b) Letter of authorization. A letter of authorization with the 
posting of an appropriate bond is required prior to conducting 
operations in the SNRA.
    (c) Operating plan. A proposed operating plan must be filed with the 
Area Ranger prior to conducting any operations and prior to 
construction, reconstruction, improvement or maintenance of roads and 
trails, bridges, or other facilities for access within the SNRA; 
provided, that an operating plan is not required for--
    (1) Operations which only involve vehicular travel on existing roads 
open to public use;
    (2) Marking and/or reestablishing claims corners;
    (3) Sampling and exploration work which will not cause significant 
damage to surface resources and will not involve the removal of more 
than 100 pounds of material for analysis and study, provided the Area 
Ranger has prior notice of such activities; or
    (4) The evaluation and study of existing underground mine workings 
not involving surface disturbances.
    (d) Operating plan--requirements. Each operating plan shall include:
    (1) The names and mailing addresses of operators and their agents, 
along with a statement of ownership and/or authorization under which the 
operation is to be conducted, and including a copy of the location 
notice(s), proof of assessment labor, and quit claim deeds if ownership 
has changed within the assessment year.
    (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 and 
the approximate location and size of areas where surface resources will 
be disturbed.
    (3) Information describing the nature of operations proposed and how 
they will be conducted, the type and standard of existing and proposed 
roads or access routes, the means of transportation to be used, the 
period during which the proposed operations will take place, and 
measures to be taken for protecting the values of the SNRA and 
reclaiming the lands.
    (e) Operating plan--approval. (1) The Area Ranger shall promptly 
acknowledge receipt of any operating plan to the operator. The Area 
Ranger shall review the environmental effects and conduct a technical 
examination of each proposed operating plan.

The technical examination shall identify the resources and the land uses 
in the area of operations. The Area Ranger shall use the current General 
Management Plan of the SNRA and the Final Environmental Statement as 
guides in determining whether the proposed operations may result in 
substantial impairment of the values of the SNRA. In his review, the 
Area Ranger may solicit comments from the general public and/or other 
government agencies in analysis of environmental effects. In his review, 
the Area Ranger will consider the compatibility of the proposed 
operating plan with the Act and the General Management Plan. The Area 
Ranger may not approve an

[[Page 350]]

operating plan for an identical claimed area to more than one operator.
    (2) Within 30 working days of receipt of a proposed operating plan, 
the Area Ranger shall take one of the following actions:
    (i) Notify the operator that the operating plan has been approved as 
submitted; or,
    (ii) Notify the operator that the operating plan has been approved 
as subject to the operator accepting the changes or conditions deemed 
necessary by the Area Ranger; or,
    (iii) Notify the operator that more time is necessary to review the 
plan because of the need to prepare an environmental impact statement, 
or conduct a cultural resource survey, or other stated reasons; in such 
cases, the operator will be notified of the approximate time needed to 
complete the review; or,
    (iv) Notify the operator of an apparent conflict of ownership and 
that additional proof of ownership is required; or,
    (v) Notify the operator that the operating plan as submitted is 
inadequate to support any conclusion as to substantial impairment, and 
that additional information will be required; or,
    (vi) Notify the operator that the operating plan is not approved 
since such operations as specified in the plan would create substantial 
impairment.
    (f) Operating plans--suspension or modification. The Area Ranger may 
suspend or terminate authorization to operate in whole or in part where 
such operations are causing substantial impairment which cannot be 
mitigated. At any time during operations under an approved operation 
plan, the operator may be required to modify the operating plan in order 
to minimize or avoid substantial impairment of the values of the SNRA.
    (g) Bond requirements. (1) An operator shall furnish a bond, in the 
amount determined by the Area Ranger to be appropriate for reclamation 
of the disturbed surface area, prior to the commencement of operations. 
In lieu of a bond, the operator may deposit into a Federal depository, 
as directed by the Forest Service, 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 or not less 
than the required dollar amount of the bond.
    (2) When the reclamation of the project, or portions thereof, has 
been completed, the operator will notify the Area Ranger who will 
examine the area to determine whether the reclamation is acceptable. 
When the Area Ranger has accepted as completed any portion of the 
reclamation, he shall reduce proportionately the amount of bond 
thereafter to be required with respect to the remaining reclamation. 
However, the operator will not be released from liability under the bond 
for the amount which may be necessary to revegetate each planting area 
for a minimum period of at least 5 years after the first efforts at 
revegetation if those initial efforts are unsuccessful.
    (3) If the Area Ranger determines that revegetation is likely to 
occur before the expiration of such minimum period, he may release the 
operator from the extended liability under the bond for revegetation of 
planting area.
    (h) Access. The operator shall permit free and unrestricted public 
access to and through lands included within an unpatented mining claim 
for all lawful and proper purposes. In areas where such access would 
unduly interfere with authorized operations or would constitute a hazard 
to public health and safety, public use may be restricted with prior 
approval of the Area Ranger.

[42 FR 39387, Aug. 4, 1977]



      Subpart E_Hells Canyon National Recreation Area_Private Lands

    Authority: 89 Stat. 1117; 16 U.S.C. 460gg-460gg-13.

    Source: 59 FR 30497, June 13, 1994, unless otherwise noted.



Sec. 292.20  Purpose and scope.

    (a) Purpose. The Act establishing the Hells Canyon National 
Recreation Area (hereafter referred to as HCNRA) (16 U.S.C. 460gg-460gg-
13) encourages the retention of traditional and valid uses of private 
land within the HCNRA, such as ranching, grazing, farming, timber 
harvesting, and the occupation

[[Page 351]]

of homes and lands associated therewith, as they existed at the time the 
HCNRA was established on December 31, 1975. To this end, the Act directs 
the Sec. etary of Agriculture to promulgate regulations establishing 
standards for the use and development of private land within the HCNRA 
and grants the Sec. etary limited condemnation authority to address 
situations where the standards are not met. The purpose of this subpart 
is to establish standards that would guide the Sec. etary's consideration 
of the use of the limited condemnation authority granted by the Act.
    (b) Scope. The regulations in this subpart establish standards 
applicable to all private property within the boundaries of the HCNRA, 
including that within the boundaries of the Rapid, Snake, and Imnaha 
Wild and Scenic Rivers and the Hells Canyon Wilderness. The regulations 
in this subpart do not operate to restrict the use and development of 
private property; rather, they serve to inform the landowner of those 
uses that are compatible with purposes for which the HCNRA was 
established. Uses not compatible with these standards could result in 
the Sec. etary acquiring land or interests therein without a landowner's 
consent.
    The regulations in this subpart, in and of themselves, do not effect 
a taking of private property, including valid, existing water rights, 
nor do the standards established in this subpart limit or restrict a 
private landowner's property use that is compatible with the purposes of 
the Act. The Responsible Official may use the regulations in this 
subpart solely to determine whether private land uses or developments 
are compatible with the purposes and direction of the Act and, if not, 
to determine whether the Sec. etary should consider initiating 
condemnation proceedings to acquire land or scenic easements.



Sec. 292.21  Definitions.

    For the purposes of this subpart, the following terms are defined:
    Act refers to the act of December 31, 1975, which established the 
Hells Canyon National Recreation Area (89 Stat. 1117; 16 U.S.C. 460gg-
460gg-13).
    Archaeological sites are those sites containing relics, artifacts, 
and other evidence of past human cultures including historic properties 
as defined by the National Historic Preservation Act.
    Commercial land is land within the HCNRA developed for commercial 
purposes as of June 13, 1994 and which is assigned to the commercial 
land category (Sec. 292.22).
    Condemnation is the acquisition of lands or interests therein by the 
Sec. etary without the consent of the owner. In the case of the Act, 
condemnation is a limited authority that may be exercised by the 
Sec. etary only in the event that a standard or standards set forth 
herein are violated for all private land categories except mining lands. 
Where mining lands are involved, the Sec. etary may exercise his or her 
condemnation authority notwithstanding the fact that the mining land 
owner has complied with the relevant standards of this section.
    Conservation easement or Scenic easement as defined in Sec. ion 9(d) 
of the Act ``means the right to control the use of land in order to 
protect aesthetic values for the purposes of this Act, but shall not be 
acquired without the consent of the owner to preclude the continuation 
of any farming or pastoral use exercised by the owner as of the date of 
enactment of this Act.''
    Dude ranching is a business oriented primarily towards furnishing 
small groups with an outdoor recreational and educational experience 
associated with ranching activities and perpetuates the purposes for 
which the HCNRA was established. Dude ranching is subservient to the 
primarily recognized ranching operation.
    Existing uses are those uses of or developments to private land as 
of the date of enactment of the Act on December 31, 1975.
    Farm/Forest/Grazing lands are those lands used for farm, forest, and 
grazing purposes, for maintaining watersheds as fish and wildlife 
habitat, or for providing outdoor recreational activities. All such 
lands are assigned to the Farm/Forest/Grazing land category in Sec. 
292.22.
    Farm/Forest/Grazing Use is any traditional agricultural, 
silvicultural, or

[[Page 352]]

livestock management use or combination thereof on farm/forest/grazing 
lands within the HCNRA. This includes, but is not limited to, truck 
farming, growing and harvesting of timber, grazing of livestock, 
horticultural use, animal husbandry use, horse, cattle, and sheep 
ranching, and preparation and storage of the products raised on farm/
forest/grazing land for on-site use or for disposal by marketing or 
otherwise. Farm/forest/grazing uses may also consist of uses related to 
and in furtherance of the protection of watersheds, maintenance of fish 
and wildlife habitat, and the pursuit of recreational activities.
    Hazardous substance includes any material so classified under the 
Comprehensive Environmental Response, Compensation and Liability Act of 
1980, as amended (42 U.S.C. 9601 et seq.).
    Mining lands are lands primarily used for mining purposes as of June 
13, 1994 and which are assigned to the mining land category in Sec. 
292.22.
    Outdoor recreational activities are activities such as camping, 
picnicking, rafting, boating, hiking, rock climbing, fishing, hunting, 
horseback riding, and the viewing of wildlife or scenery.
    Parcel as used in this subpart refers to contiguous tax lots under 
one ownership. For the purposes of this subpart, rights-of-way do not 
divide parcels into smaller units.
    Partition is the division of land into lots, and which, under county 
planning ordinances, is identified by a map, drawing, or writing which 
contains the descriptions, locations, specifications, and dedications 
for roads, utilities, etc. and which has been properly filed with the 
County recorder.
    Private land is land not in federal, state, or local government 
ownership.
    Proposed uses are those uses of or development to a private land 
parcel within the HCNRA initiated after June 13, 1994.
    Ranger is the HCNRA Area Ranger, Wallowa-Whitman National Forest, 
with offices located in Enterprise, Oregon, Riggins, Idaho, and 
Clarkston, Washington, except for the Rapid Wild and Scenic River where 
the term refers to the Salmon River District Ranger, Nez Perce National 
Forest, located in Whitebird, Idaho.
    Recreational facilities are facilities associated with or required 
for outdoor recreational activities and include, but are not limited to, 
parks, campgrounds, hunting and fishing lodges, and interpretive 
displays.
    Residential lands are lands within the HCNRA developed for 
residential purposes as of June 13, 1994 and which are assigned to the 
Residential land category in Sec. 292.22.
    Scenic Easement. See Conservation Easement.
    Screening is the reduction or elimination of the visual impact of 
any structure or land modification as seen from any public travel route 
within the HCNRA.
    Solid waste is discarded solid materials resulting from mining, 
industrial, commercial, agricultural, silvicultural, and community 
activities. This term does not include domestic sewage or pollutants 
such as silt or dissolved materials in irrigation return flows.
    Structure is any permanent building or facility, or part thereof 
such as barns, outhouses, residences and storage sheds. This includes 
electric transmission line systems, substations, commercial radio 
transmitters, relays or repeater stations, antennas, and other 
electronic sites and associated structures.
    Traditional uses are ranching, grazing, farming, timber harvesting 
and the occupation of homes and land associated therewith within the 
HCNRA, or other activities including outdoor recreational activities and 
facilities, which existed on or before December 31, 1975.
    Travel route is a route, such as a county or National Forest system 
road or river or trail, that is open for use by members of the general 
public.



Sec. 292.22  Land category assignments.

    (a) Land categories. (1) All privately owned lands within the HCNRA 
are to be assigned to one of the following four land categories:
    (i) Farm/forest/grazing land.
    (ii) Mining land.
    (iii) Residential land.
    (iv) Commercial land.
    (2) Not later than August 12, 1994, a map or maps displaying the 
privately owned lands within the HCNRA and the

[[Page 353]]

land categories to which they have been assigned must be on file and 
available for public inspection at the Ranger's office. The Ranger shall 
give notice of the availability of this map or maps in the local 
newspapers of record.
    (b) Changes in land category assignment. Lands assigned to the 
Commercial, Residential, or Mining category may be reclassified as farm/
forest/grazing land so long as the intended use or development is 
consistent with the standards in Sec. 292.23 and the Ranger has given 
public notice of the proposed change in the local newspaper of record 
and has notified adjacent landowners and the affected county government 
at least 30 days prior to any decision on the proposed change.



Sec. 292.23  Standards of compatible land use and development.

    Private land use that conforms to the standards of this section is 
deemed to be compatible with the purpose for which the HCNRA was 
established.
    (a) Standards applicable to all private lands. As of June 13, 1994, 
the use and development of private lands in all land categories within 
the HCNRA is deemed compatible with the purposes for which the HCNRA was 
established, if the use and development of such lands meets the 
following standards:
    (1) Use and development conforms to applicable local, state, and 
federal environmental, natural resource, cultural resource, and land use 
development law.
    (2) All new or replacement structures are screened and/or 
constructed of materials that blend with the natural environment, except 
where structures typify the architectural style and materials of a 
significant historic era such as pre-World War II. Screening is not 
required, however, for new or replacement structures that are associated 
with an existing unscreened structure or structures that were not 
screened at the time this rule became effective.
    (3) No public or commercial solid waste disposal sites or hazardous 
substance disposal sites are located on private lands within the HCNRA.
    (4) All new or replacement utility lines are placed underground 
where ground conditions and topography permit. This standard does not 
prevent or impair routine maintenance of utility lines or related 
structures in existence prior to June 13, 1994.
    (5) No new or replacement structures are developed within the 
boundaries of the Hells Canyon Wilderness, provided that existing 
structures may be repaired and/or maintained.
    (6) Significant historic, archaeologic, or paleontologic sites are 
protected.
    (7) Sites used for the extraction of common mineral materials, such 
as gravel, for construction and maintenance purposes on all except 
designated mining lands, are screened where possible, and are not in 
excess of 2 acres in size.
    (8) New recreational facilities enhance and are compatible with the 
purpose of the Act.
    (b) Farm/forest/grazing lands standards. The following additional 
standards are applicable to farm/forest/grazing lands:
    (1) Except as otherwise provided in this paragraph, the minimum lot 
size for residential development is 160 acres. Only residences 
associated with farm/forest/grazing uses may be developed. Partitions of 
less than 160 acres may be made to provide for the continuation of 
existing commercial agriculture, but such partitions may not be 
developed for residential use. Lots of less than 160 acres existing on 
June 13, 1994, with residences permanently affixed to a foundation or 
basement, are considered to be in compliance.
    (2) Structures are limited to those necessary to conduct farm/
forest/grazing use.
    (3) Dude ranching is permitted provided it is compatible with the 
purpose and direction of the Act and is part of a recognized ranching 
operation.
    (4) New or replacement structures for farm/forest/grazing use are 
not closer than 25 feet from a property line or 55 feet from the center 
line of a travel route.
    (c) Mining Lands. (1) The following standards are applicable to 
mining lands:
    (i) The owner of mining lands must consult with the Ranger 
concerning proposed mineral development activities prior to submitting a 
plan of operations to the relevant state or federal agencies.

[[Page 354]]

    (ii) Operations comply with Federal and State mining, air quality, 
water quality, hazardous waste, water disposal and reclamation 
standards.
    (iii) The type and number of structures, including but not limited 
to residences associated with the mining activity, are limited to the 
minimum necessary for the use and development of the mining lands.
    (iv) No new structures are located closer than 25 feet from a 
property line or 55 feet from the center line of a travel route.
    (v) Mining lands are not partitioned.
    (2) Notwithstanding compliance with the standards of paragraph 
(c)(1) of this section, the Sec. etary may acquire mineral interests in 
the HCNRA without the consent of the owner, if the Sec. etary deems this 
necessary to meet the purposes for which the HCNRA was established.



Sec. 292.24  Determination of compliance and noncompliance.

    (a) Compliance. Landowners may request a determination by the Forest 
Service as to whether an existing or a proposed use or development 
complies with the relevant standards set out in this subpart.
    (1) Requests for a determination of compliance must be made in 
writing to the Ranger and include the following information:
    (i) The current land category to which the land is assigned (Sec. 
292.23);
    (ii) The use of development that exists or that is proposed for the 
property;
    (iii) A statement as to whether a change in the land category 
assignment will be necessary to accommodate the proposed use or 
development;
    (iv) The timeframe for implementing the proposed use or development; 
and
    (v) A statement as to how the proposed use or development satisfies 
the relevant standards of Sec. 292.23 of this subpart.
    (2) The Ranger shall review the request and notify the landowner in 
writing within 45 days whether the existing or proposed use or 
development is in compliance with Sec. 292.23 of this subpart. The 
Ranger may extend the time for making a compliance determination by 30 
days if additional information is needed.
    (b) Noncompliance. (1) In the event that the Forest Service 
determines that an existing or proposed use of development is not in 
compliance with the standards of Sec. 292.23 of this subpart, the 
Ranger shall give the landowner written notice of the manner and nature 
of noncompliance. To the extent practicable, the notice will include 
suggestions for achieving compliance. The notice also must include a 
statement that the violation of a standard or standards and the failure 
to cure such violation may result in the initiation of condemnation 
proceedings by the Sec. etary.
    (2) The Forest Service may initiate a noncompliance determination on 
its own without having first received a landowner request.
    (c) Written petition. The landowner may file a written petition with 
the Forest Supervisor for a review of a decision of compliance or 
noncompliance. The Forest Supervisor shall render a decision within 30 
days of the receipt of the petition. A decision by the Forest Supervisor 
constitutes the final administrative determination by the Department of 
Agriculture. Petitions of decisions on lands within the Rapid River Wild 
and Scenic River Corridor should be addressed to the Forest Supervisor, 
Nez Perce National Forest, Route 2, P.O. Box 475, Grangeville, Idaho 
83450. All other petitions should be addressed to the Forest Supervisor, 
Wallowa-Whitman National Forest, P.O. Box 907, Baker City, Oregon 97814.



Sec. 292.25  Information requirements.

    The information required by Sec. 292.24 of this subpart in order 
for a landowner to obtain a determination of compliance constitutes an 
information requirement as defined in the Paperwork Reduction Act (44 
U.S.C. 3507) and has been approved for use by the Office of Management 
and Budget and assigned control number 0596-0135.



      Subpart F_Hells Canyon National Recreation Area_Federal Lands

    Authority: 16 U.S.C. 460gg-7.

[[Page 355]]


    Source: 59 FR 36882, July 19, 1994, unless otherwise noted.



Sec. 292.40  Purpose and scope.

    (a) Purpose. The rules of this subpart establish standards and 
guidelines for the protection and preservation of historic, 
archeological, and paleontological resources, the use of motorized and 
mechanical equipment, the use of motorized and non-motorized rivercraft, 
and the management, utilization, and disposal of natural resources by 
timber harvesting, mining and grazing on National Forest System lands 
that comprise the Hells Canyon National Recreation Area located in the 
Wallowa-Whitman, Nez Perce, and Payette National Forests in the States 
of Idaho and Oregon as established by the Act of December 31, 1975, as 
amended (89 Stat. 1117, 16 U.S.C. 460gg et seq.).
    (b) Scope. Management of National Forest System lands within the 
Hells Canyon National Recreation Area is subject to all laws, rules, and 
regulations applicable to the national Forest System, except as 
otherwise provided in this subpart. In the event of a conflict of 
inconsistency between rules of this subpart and other rules within this 
title, the rules of this subpart shall take precedence to the extent 
permitted by law.



Sec. 292.41  Definitions.

    Special terms used in this subpart are defined as follows:
    ``Act'' means the Act of December 31, 1975, as amended (Pub. L. 94-
199, 89 Stat. 1117) which established the Hells Canyon National 
Recreation Area.
    ``Authorized Officer'' is a Forest Service line officer who has been 
delegated the authority to take certain actions pursuant to the 
provisions of this subpart.
    ``Comprehensive Management Plan'' is the document that establishes 
the array, levels, and manner of resource uses within the HCNRA. It is 
incorporated as part of the Wallowa-Whitman National Forest Land and 
Resource Management Plan.
    ``Cultural resources'' means historic and archeological resources.
    ``HCNRA'' is the abbreviation for the Hells Canyon National 
Recreation Area.
    ``Mechanical equipment'' means any contrivance which travels over 
ground, snow or water on wheels, tracks, skids, or by flotation that is 
powered by a living source. This term does not include non-motorized 
rivercraft which is defined separately herein, wheelchairs, or other 
similar devices used solely to assist persons with disabilities.
    ``Mining'' means any activity related to the discovery, extraction 
and exploitation of minerals under the Mining Act of 1872, 30 U.S.C. 22 
et seq., and the Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., 
through the use of, among other things, hydraulic equipment, pans, 
ground sluicing, sluice boxes, rockers, or suction dredges.
    ``Motorized equipment'' means any machine powered by a nonliving 
source. This term does not include motorized rivercraft which is defined 
separately herein or small, hand-held devices such as flashlights, 
shavers, wristwatches, and Geiger counters.
    ``Motorized rivercraft'' means any boat capable of being 
mechanically propelled by propeller(s) or jet pump(s) upstream through 
rapids.
    ``Non-Motorized rivercraft'' means any boat which is not a motorized 
rivercraft.
    ``Other lands'' means all National Forest System lands in the HCNRA 
except for Wild and Scenic Rivers and Wilderness Lands.
    ``Paleontological resources'' means any remains, trace, or imprint 
of a plant or animal that has been preserved in the Earth's crust prior 
to the Holocene epoch.
    ``Selective cutting'' means single tree or group selection cutting 
and is the periodic removal of trees individually or in small groups 
from an uneven aged forest in order to maintain diverse stands, with the 
sustainability and improvement of the forest using an ecosystem approach 
to management being a primary consideration.
    ``Suitable'' means it is appropriate to apply certain resource 
management practices to a particular area of land, as determined by an 
ecological and environmental analysis of the land. A unit of land may be 
suitable for a variety of individual or combined management practices.

[[Page 356]]

    ``Wild and Scenic Rivers'' means the segments of the Snake, Rapid, 
and Imnaha Rivers designated as components of the National Wild and 
Scenic Rivers System and any other river or segment thereof in the HCNRA 
hereafter designated. Wild and Scenic Rivers include all National Forest 
System lands within the designated Wild and Scenic River corridor.
    ``Wilderness lands'' means the Hells Canyon Wilderness, that portion 
of the Eagle Cap Wilderness in the HCNRA, and any other wilderness in 
the HCNRA hereafter designated as components of the National Wilderness 
Preservation System.



Sec. 292.42  Management standards and guidelines.

    (a) In addition to existing statutory and regulatory authority 
governing administration of National Forest System lands and resources, 
the standards and guidelines in Secs. 292.43 to 292.48 of this 
subpart prescribe the scope and extent of certain activities that may 
occur in the HCNRA. These standards and guidelines are consistent with 
the overall objective of administering the HCNRA to preserve its natural 
beauty, historical and archaeological values and enhance its 
recreational and ecological values and the public's enjoyment. The 
standards and guidelines may vary depending on whether the land where 
the proposed activity is contemplated is within the Wilderness Lands, 
Wild and Scenic Rivers, or the Other Lands.
    (b) The standards and guidelines of this subpart govern the previous 
programmatic direction in the Comprehensive Management Plan that has 
been incorporated into the Wallowa-Whitman National Forest Land and 
Resource Management Plan. Site specific environmental analysis may be 
required even in those situations where a use or activity is permissible 
under the standards and guidelines set forth in this subpart.
    (c) The standards and guidelines of this subpart may be enforced by 
the authorized officer pursuant to 36 CFR part 261.



Sec. 292.43  Protection and preservation of cultural and paleontological resources.

    (a) Other Lands and Wild and Scenic Rivers. The following standards 
and guidelines of this section apply to the protection and preservation 
of cultural and paleontological resources on the Other Lands and the 
Wild and Scenic Rivers in the HCNRA:
    (1) The primary objective of managing cultural resources is the 
protection of the resource from damage or destruction. To the extent 
consistent with protection, cultural resources may also be managed for 
scientific research, public education and enjoyment. Where 
interpretation of these sites for public benefit and knowledge is 
developed, it shall be compatible with the protection of cultural 
resources.
    (2) The authorized officer shall establish priorities for management 
emphasis and protection of cultural resources based, in part, on whether 
the appropriate State Historic Preservation Office has concurred with 
the Forest Service's determination that a cultural resource is 
significant.
    (3) Significant cultural resources are to be protected on-site, 
unless the authorized officer determines that off-site protection is 
preferable because adequate protection cannot be provided on-site, the 
resource is already adequately represented and protected on-site 
elsewhere, protection on-site is not consistent with the administration 
of Wilderness Lands, or for other good cause shown. Information about 
significant cultural resources shall be documented.
    (4) The primary objective of managing paleontological resources is 
scientific research. Paleontological resources may only be disturbed or 
removed in conjunction with scientific research and only upon the 
issuance of prior written authorization of the disturbance or removal 
activity.
    (b) Wilderness Lands. The following standards and guidelines apply 
to the protection and preservation of cultural and paleontological 
resources in the Wilderness Lands category of the HCNRA.

[[Page 357]]

    (1) The standards and guidelines for Other Lands and Wild and Scenic 
Rivers in paragraph (a) of this section also apply to Wilderness Lands.
    (2) Public education and information activities concerning cultural 
resources on Wilderness Lands may not be offered or established inside 
Wilderness Lands.
    (3) New trails and relocations of existing trails may not be 
developed for the sole purpose of providing public access to cultural 
resource sites on Wilderness Lands.



Sec. 292.44  Use of motorized and mechanical equipment.

    The standards and guidelines of this section apply to the use of 
motorized and mechanical equipment in the HCNRA. These standards and 
guidelines shall not be construed to impair or preclude use of such 
equipment in the Forest Service's administration of the HCNRA; 
authorized scientific and other research activities within the HCNRA; 
timber harvesting, mining, or grazing activities as authorized in Sec. 
Sec. 292.46-292.48 of this subpart; responses by the Forest Service or 
any other Federal, state, or local agency to public health or safety 
emergencies; or access to private inholdings within the HCNRA.
    (a) Other Lands. The following standards and guidelines apply to the 
use of motorized and mechanical equipment in the Other Lands category of 
the HCNRA.
    (1) Motorized and mechanical equipment may be used on designated 
Forest Service roads, trails, and airstrips subject to terms and 
conditions deemed necessary by the authorized officer for the safe use 
of such facilities.
    (2) The use of motorized and mechanical equipment is prohibited off 
of designated Forest Service roads, trails, and airstrips unless 
authorized by the authorized officer subject to terms and conditions 
deemed necessary by the authorized officer for the safe use of such 
equipment and to ensure that its use is compatible with the Act.
    (b) Wild and Scenic Rivers. The following standards and guidelines 
apply to the use of motorized and mechanical equipment in the Wild and 
Scenic Rivers category in the HCNRA.
    (1) The use of motorized and mechanical equipment on designated 
Forest Service roads, trails and airstrips is permissible on wild and 
scenic river segments classified ``scenic'' or ``recreational'' subject 
to terms and conditions necessary for safe use of such equipment and to 
ensure its use is compatible with the Wild and Scenic Rivers Act.
    (2) The use of motorized and mechanical equipment on designated 
Forest Service roads, trails, and airstrips is prohibited on wild and 
scenic river segments classified ``wild'' except as provided for by the 
authorized officer upon a determination that such use is necessary for 
the administration of the river or to protect and enhance the values for 
which river was designated.
    (c) Wilderness Lands. Except as provided for in Sec. ions 4 (c) and 
(d) of the Wilderness Act and regulations at 36 CFR parts 261 and 293, 
the use of motorized and mechanical equipment is prohibited on 
Wilderness Lands.



Sec. 292.45  Use of motorized and non-motorized rivercraft.

    The standards and guidelines of this section apply to the use of 
motorized and non-motorized rivercraft on rivers within the HCNRA.
    (a) The use of non-motorized rivercraft may be permitted subject to 
restrictions on size, type of craft, numbers, duration, seasons, or 
other matters which may be deemed by the authorized officer to be 
necessary to ensure the safe use and enjoyment of the rivers: Provided, 
that where wild and scenic rivers are concerned, the authorized officer 
may impose such additional terms and conditions as may be necessary to 
protect and enhance the values for which the river was designated.
    (b) The use of motorized rivercraft is prohibited except on the 
Snake River and that portion of the Salmon River in the HCNRA 
administered by the Forest Service where such activity may be permitted 
subject to restrictions on size, type of craft, numbers, noise limits, 
duration, seasons or other matters which may be deemed by the authorized 
officer necessary for the safe use and enjoyment of the rivers: 
Provided, that where wild and scenic

[[Page 358]]

rivers are involved, the authorized officer may impose such additional 
terms and conditions as may be necessary to protect and enhance the 
values for which the river was designated.
    (c) The use of motorized and non-motorized rivercraft is subject to 
all federal and state boating registration and safety laws.
    (d) The use of motorized or non-motorized rivercraft on the Snake 
River and that portion of the Salmon River in the HCNRA administered by 
the Forest Service requires prior written authorization from the 
authorized officer.
    (e) In authorizing the use of motorized and non-motorized rivercraft 
on the Snake River, the authorized officer must reasonably accommodate 
both private and commercial users of each type of rivercraft.
    (f) In authorizing the use of motorized and non-motorized rivercraft 
on the Snake River, the authorized officer must ensure that the carrying 
capacity of the river is not exceeded.
    (g) In authorizing the use of motorized and non-motorized rivercraft 
on the Snake River, the authorized officer shall seek to minimize, where 
practicable, conflicts between motorized and non-motorized rivercraft 
users and between both types of rivercraft users and all other users of 
the river.



Sec. 292.46  Timber harvesting activities.

    (a) Other Lands. The standards and guidelines of this section apply 
to timber harvesting activities in the Other Lands category of the 
HCNRA.
    (1) Timber may be harvested only to protect and enhance ecosystem 
health, wildlife habitat, or recreational and scenic uses; to reduce the 
risk of harm posed by hazard trees; or to respond to natural events such 
as wildfire, flood, earthquake, volcanic eruption, high winds, and 
disease or insect infestation.
    (2) Where authorized, trees may be harvested by selective cuttings. 
Openings created by the timber harvesting activity must be limited in 
size and number to the minimum necessary to accomplish the purpose of 
the harvest, and must blend with the natural landscape to the extent 
practicable.
    (b) Wild and Scenic Rivers. The following standards and guidelines 
apply to timber harvesting activities in the Wild and Scenic Rivers 
category of the HNCRA.
    (1) Timber may be harvested on river segments classified ``scenic'' 
or ``recreational'' to protect and enhance the values for which the 
river was designated.
    (2) Timber may be harvested on river segments classified ``wild'' 
only when necessary to provide for recreational facilities such as 
trails, to reduce the risk of hazard trees, or to respond to natural 
events provided that the activity is consistent with the Wild and Scenic 
Rivers Act.
    (3) Where authorized, timber harvesting activities on wild and 
scenic rivers may be conducted in accordance with and using the same 
methods as prescribed in section (a)(2) above.
    (c) Wilderness Lands. Except as provided for in Sec. ions 4 (c) and 
(d) of the Wilderness Act and regulations at 36 CFR part 293, timber 
harvesting is prohibited on Wilderness Lands.



Sec. 292.47  Mining activities.

    (a) Other Lands. The standards and guidelines of this section apply 
to mining activities in the Other Lands category of the HCNRA.
    (1) All mining activities are prohibited subject to valid existing 
rights as of December 31, 1975.
    (2) The impact of mining activities including, but not limited to, 
drilling and the development of ingress and egress routes, must be 
minimized and directed away from Wilderness Lands and Wild and Scenic 
Rivers to the extent practicable.
    (3) Mineral materials including, but not limited to common varieties 
of gravel, sand, or stone, may be used only within the HCNRA for the 
purpose of construction and maintenance of facilities including, but not 
limited to, roads, airfields, trails, and recreation developments.
    (4) Sources of mineral materials should be located outside the 
HCNRA. Sources for mineral materials that may be used to benefit the 
HCNRA may be located inside the HCNRA if the cost of obtaining the 
materials outside the HCNRA adds significantly to

[[Page 359]]

the costs of the materials, or the transportation of mineral materials 
from outside the HCNRA presents a safety hazard. When mineral materials 
are obtained from inside the HCNRA, the environmental effects at the 
source of extraction must be mitigated by site reclamation upon the 
termination of the extraction activity. Site reclamation may include 
contouring the land, re-establishing vegetation, and other measures 
deemed appropriate by the authorized officer to blend the site into the 
surrounding environment to the extent practicable. The HCNRA shall not 
be the source of mineral materials for use outside the HCNRA for 
projects that do not directly benefit the HCNRA.
    (b) Wilderness Lands and Wild and Scenic Rivers. The standards and 
guidelines of this section apply to mining activities in the Wilderness 
Lands and Wild and Scenic Rivers categories of the HCNRA.
    (1) The standards and guidelines for Other Lands in paragraphs 
(a)(1) and (2) of this section also apply to Wilderness Lands and Wild 
and Scenic Rivers.
    (2) Extraction of mineral materials is prohibited on Wilderness 
Lands and Wild and Scenic Rivers subject to valid existing rights.



Sec. 292.48  Grazing activities.

    The following standards and guidelines apply to domestic livestock 
grazing activities on Other Lands, Wild and Scenic Rivers, and 
Wilderness Lands in the HCNRA.
    (a) Grazing may be authorized only on rangeland determined by the 
authorized officer to be suitable for grazing and meeting or moving 
towards satisfactory condition and meeting the conditions described in 
paragraph (b) of this section.
    (b) Where domestic livestock grazing is incompatible with the 
protection, restoration, or maintenance of fish and wildlife or their 
habitats; public outdoor recreation; conservation of scenic, wilderness, 
and scientific values; rare combinations of outstanding ecosystems, or 
the protection and enhancement of the values for which a wild and scenic 
river was designated, the livestock use shall be modified as necessary 
to eliminate or avoid the incompatibility. In the event an 
incompatibility persists after the modification or modification is not 
feasible, the livestock use shall be terminated.
    (c) Range improvements must be designed and located to minimize 
their impact on scenic, cultural, fish and wildlife, and other resources 
in the HCNRA.
    (d) The authorization of grazing use, through a grazing permit, must 
provide for terms and conditions which protect and conserve riparian 
areas.



             Subpart G_Smith River National Recreation Area

    Authority: 16 U.S.C. 460bbb et seq.

    Source: 63 FR 15059, Mar. 27, 1998, unless otherwise noted.



Sec. 292.60  Purpose and scope.

    (a) Purpose. The regulations of this subpart set forth the rules and 
procedures by which the Forest Service regulates mineral operations on 
National Forest System lands within the Smith River National Recreation 
Area as established by Congress in the Smith River National Recreation 
Area Act of 1990 (16 U.S.C. 460bbb et seq.).
    (b) Scope. The rules of this subpart apply only to mineral 
operations on National Forest System lands within the Smith River 
National Recreation Area.
    (c) Applicability of other rules. The rules of this subpart 
supplement existing Forest Service regulations concerning the review, 
approval, and administration of mineral operations on National Forest 
System lands including, but not limited to, those set forth at parts 
228, 251, and 261 of this chapter.
    (d) Conflicts. In the event of conflict or inconsistency between the 
rules of this subpart and other parts of this chapter, the rules of this 
subpart take precedence, to the extent allowable by law.



Sec. 292.61  Definitions.

    The special terms used in this subpart have the following meaning:
    Act means the Smith River National Recreation Area Act of 1990 (16 
U.S.C. 460bbb et seq.).
    Authorized officer means the Forest Service officer to whom 
authority has

[[Page 360]]

been delegated to take actions pursuant to the provisions of this 
subpart.
    Hazardous material means any hazardous substance, pollutant, 
contaminant, hazardous waste, and oil or other petroleum products, as 
those terms are defined under any Federal, State, or local law or 
regulation.
    Outstanding mineral rights means the rights owned by a party other 
than the surface owner at the time the surface was conveyed to the 
United States.
    SRNRA is the abbreviation for the Smith River National Recreation 
Area, located within the Six Rivers National Forest, California.



Sec. 292.62  Valid existing rights.

    (a) Definition. For the purposes of this subpart, valid existing 
rights are defined as follows:
    (1) For certain ``Wild'' River segments. The rights associated with 
all mining claims on National Forest System lands within the SRNRA in 
``wild'' segments of the Wild and Scenic Smith River, Middle Fork Smith 
River, North Fork Smith River, Siskiyou Fork Smith River, South Fork 
Smith River, and their designated tributaries, except Peridotite Creek, 
Harrington Creek, and the lower 2.5 miles of Myrtle Creek, which:
    (i) Were properly located prior to January 19, 1981;
    (ii) Were properly maintained thereafter under the applicable law;
    (iii) Were supported by a discovery of a valuable mineral deposit 
within the meaning of the United States mining laws prior to January 19, 
1981, which discovery has been continuously maintained since that date; 
and
    (iv) Continue to be valid.
    (2) For Siskiyou Wilderness. The rights associated with all mining 
claims on National Forest System lands within the SRNRA in the Siskiyou 
Wilderness except, those within the Gasquet-Orleans Corridor addition or 
those rights covered by paragraph (a)(1) of this section which:
    (i) Were properly located prior to September 26, 1984;
    (ii) Were properly maintained thereafter under the applicable law;
    (iii) Were supported by a discovery of a valuable mineral deposit 
within the meaning of the United States mining laws prior to September 
26, 1984, which discovery has been continuously maintained since that 
date; and
    (iv) Continue to be valid.
    (3) For all other lands. The rights associated with all mining 
claims on National Forest System lands in that portion of the SRNRA not 
covered by paragraph (a)(1) or (a)(2) of this section which:
    (i) Were properly located prior to November 16, 1990;
    (ii) Were properly maintained thereafter under the applicable law;
    (iii) Were supported by a discovery of a valuable mineral deposit 
within the meaning of the United States mining laws prior to November 
16, 1990, which discovery has been continuously maintained since that 
date; and
    (iv) Continue to be valid.
    (b) Operations to confirm discovery. The authorized officer shall 
authorize those mineral operations that may be necessary for the purpose 
of gathering information to confirm or otherwise demonstrate the 
discovery of a valuable mineral deposit consistent with the definition 
in paragraph (a) of this section or to obtain evidence for a contest 
hearing regarding the claim's validity, upon receipt of a proposed plan 
of operations as defined in Sec. 292.63 of this subpart to conduct such 
operations and of sufficient information from the operator to show an 
exposure of valuable minerals on a claim that predates the withdrawal of 
the federal land from the operation of the United States mining laws. 
The authorized officer shall authorize only those operations that may be 
necessary to confirm or demonstrate the discovery of a valuable mineral 
deposit prior to the date of withdrawal of the federal land on which the 
claim is situated. Pursuant to this paragraph, the authorized officer 
shall not authorize any operations which would constitute prospecting, 
exploration, or otherwise uncovering or discovering a valuable mineral 
deposit.

[[Page 361]]

                           Locatable Minerals



Sec. 292.63  Plan of operations--supplementary requirements.

    (a) Applicability. In addition to the activities for which a plan of 
operations is required under Sec. 228.4 of this chapter, a plan of 
operations is required when a proposed operation within the SRNRA 
involves mechanical or motorized equipment, including a suction dredge 
and/or sluice.
    (b) Information to support valid existing rights. A proposed plan of 
operations within the SRNRA must include at least the following 
information on the existence of valid existing rights:
    (1) The mining claim recordation serial number assigned by the 
Bureau of Land Management;
    (2) A copy of the original location notice and conveyance deeds, if 
ownership has changed since the date of location;
    (3) A copy of affidavits of assessment work or notices of intention 
to hold the mining claim since the date of recordation with the Bureau 
of Land Management;
    (4) Verification by the Bureau of Land Management that the holding 
or maintenance fees have been paid or have been exempted;
    (5) Sketches or maps showing the location of past and present 
mineral workings on the claims and information sufficient to locate and 
define the mining claim corners and boundaries on the ground;
    (6) An identification of the valuable mineral that has been 
discovered;
    (7) An identification of the site within the claims where the 
deposit has been discovered and exposed;
    (8) Information on the quantity and quality of the deposit including 
copies of assays or test reports, the width, locations of veins, the 
size and extent of any deposit; and
    (9) Existing evidence of past and present sales of the valuable 
mineral.
    (c) Minimum information on proposed operations. In addition to the 
requirements of paragraph (b) of this section, a plan of operations must 
include the information required at Secs. 228.4 (c)(1) through 
(c)(3) of this chapter which includes information about the proponent 
and a detailed description of the proposed operation. In addition, if 
the operator and claim owner are different, the operator must submit a 
copy of the authorization or agreement under which the proposed 
operations are to be conducted. A plan of operations must also address 
the environmental requirements of Sec. 228.8 of this chapter which 
includes reclamation. In addition, a plan of operations also must 
include the following:
    (1) An identification of the hazardous materials and any other toxic 
materials, petroleum products, insecticides, pesticides, and herbicides 
that will be used during the mineral operation, and the proposed means 
for disposing of such substances;
    (2) An identification of the character and composition of the 
mineral wastes that will be used or generated and a proposed method or 
strategy for their placement, control, isolation, or removal; and
    (3) An identification of how public health and safety are to be 
maintained.



Sec. 292.64  Plan of operations--approval.

    (a) Timeframe for review. Except as provided in paragraph (b) of 
Sec. 292.62 of this subpart, upon receipt of a plan of operations, the 
authorized officer shall review the information related to valid 
existing rights and notify the operator in writing within 60 days of one 
of the following situations:
    (1) That sufficient information on valid existing rights has been 
provided and the anticipated date by which the valid existing rights 
determination will be completed, which shall not be more than 2 years 
after the date of notification; unless the authorized officer, upon 
finding of good cause with written notice and explanation to the 
operator, extends the time period for completion of the valid existing 
rights determination.
    (2) That the operator has failed to provide sufficient information 
to review a claim of valid existing rights and, therefore, the 
authorized officer has no obligation to evaluate whether the operator 
has valid existing rights or to process the operator's proposed plan of 
operations.

[[Page 362]]

    (b)(1) If the authorized officer concludes that there is not 
sufficient evidence of valid existing rights, the officer shall so 
notify the operator in writing of the reasons for the determination, 
inform the operator that the proposed mineral operation cannot be 
conducted, advise the operator that the Forest Service will promptly 
notify the Bureau of Land Management of the determination and request 
the initiation of a mineral contest action against the pertinent mining 
claim, and advise the operator that further consideration of the 
proposed plan of operations is suspended pending final action by the 
Department of the Interior on the operator's claim of valid existing 
rights and any final judicial review thereof.
    (2) If the authorized officer concludes that there is not sufficient 
evidence of valid existing rights, the authorized officer also shall 
notify promptly the Bureau of Land Management of the determination and 
request the initiation of a mineral contest action against the pertinent 
mining claims.
    (c) An authorized officer's decision pursuant to paragraph (b) of 
this section that there is not sufficient evidence of valid existing 
rights is not subject to further agency or Department of Agriculture 
review or administrative appeal.
    (d) The authorized officer shall notify the operator in writing that 
the review of the remainder of the proposed plan will proceed if:
    (1) The authorized officer concludes that there is sufficient 
evidence of valid existing rights;
    (2) Final agency action by the Department of the Interior determines 
that the applicable mining claim constitutes a valid existing right; or
    (3) Final judicial review of final agency action by the Department 
of the Interior finds that the applicable mining claim constitutes a 
valid existing right.
    (e) Upon completion of the review of the plan of operations, the 
authorized officer shall ensure that the minimum information required by 
Sec. 292.63(c) of this subpart has been addressed and, pursuant to 
Sec. 228.5(a) of this chapter, notify the operator in writing whether 
or not the plan of operations is approved.
    (f) If the plan of operations is not approved, the authorized 
officer shall explain in writing why the plan of operations cannot be 
approved.
    (g) If the plan of operations is approved, the authorized officer 
shall establish a time period for the proposed operations which shall be 
for the minimum amount of time reasonably necessary for a prudent 
operator to complete the mineral development activities covered by the 
approved plan of operations.
    (h) An approved plan of operations is subject to review and 
modification as follows:
    (1) To bring the plan into conformance with changes in applicable 
federal law or regulation; or
    (2) To respond to new information not available at the time the 
authorized officer approved the plan, for example, new listings of 
threatened or endangered species; or
    (3) To correct errors or omissions made at the time the plan was 
approved, for example, to ensure compliance with applicable federal law 
or regulation; or
    (4) To permit operations requested by the operator that differ in 
type, scope, or duration from those in an approved plan of operations 
but that are not subject to paragraph (i) of this section.
    (i) If an operator desires to conduct operations that differ in 
type, scope, or duration from those in an approved plan of operations, 
and if those changes will result in resource impacts not anticipated 
when the original plan was approved, the operator must submit a 
supplemental plan or a modification of the plan for review and approval.



Sec. 292.65  Plan of operations--suspension.

    (a) The authorized officer may suspend mineral operations due to an 
operator's noncompliance with applicable statutes, regulations, or terms 
and conditions of the approved plan of operations.
    (1) In those cases that present a threat of imminent harm to public 
health, safety, or the environment, or where such harm is already 
occurring, the authorized officer may take immediate action to stop the 
threat or damage without prior notice. In such case,

[[Page 363]]

written notice and explanation of the action taken shall be given the 
operator as soon as reasonably practicable following the suspension.
    (2) In those cases that do not present a threat of imminent harm to 
public health, safety, or the environment, the authorized officer must 
first notify the operator in writing of the basis for the suspension and 
provide the operator with reasonably sufficient time to respond to the 
notice of the authorized officer or to bring the mineral operations into 
conformance with applicable laws, regulations, or the terms and 
conditions of the approved plan of operations.
    (b) Except as otherwise provided in this section, the authorized 
officer shall notify the operator not less than 30 days prior to the 
date of the proposed suspension.

                       Outstanding Mineral Rights



Sec. 292.66  Operating plan requirements--outstanding mineral rights.

    (a) Proposals for mineral operations involving outstanding mineral 
rights within the SRNRA must be documented in an operating plan and 
submitted in writing to the authorized officer.
    (b) An operating plan for operations involving outstanding mineral 
rights within the SRNRA must include the following:
    (1) The name and legal mailing address of the operator, owner, and 
any lessees, assigns, and designees;
    (2) A copy of the deed or other legal instrument that conveyed the 
outstanding mineral rights;
    (3) Sketches or maps showing the location of the outstanding mineral 
rights, the proposed area of operations, including, but not limited to, 
existing and/or proposed roads or access routes identified for use, any 
new proposed road construction, and the approximate location and size of 
the areas to be disturbed, including existing or proposed structures, 
facilities, and other improvements to be used;
    (4) A description of the type of operations which includes, at a 
minimum, a list of the type, size, location, and number of structures, 
facilities, and other improvements to be used;
    (5) An identification of the hazardous materials and any other toxic 
materials, petroleum products, insecticides, pesticides, and herbicides 
that will be used during the mineral operation and the proposed means 
for disposing of such substances;
    (6) An identification of the character and composition of the 
mineral wastes that will be used or generated and a proposed method or 
strategy for their placement, control, isolation, remediation, or 
removal; and
    (7) A reclamation plan to reduce or control on-site and off-site 
damage to natural resources resulting from mineral operations. The plan 
must:
    (i) Provide reclamation to the extent practicable;
    (ii) Show how public health and safety are maintained;
    (iii) Identify and describe reclamation measures to include, but not 
limited to, the following:
    (A) Reduction and/or control of erosion, landslides, and water 
runoff;
    (B) Rehabilitation of wildlife and fisheries habitat to be disturbed 
by the proposed mineral operation; and
    (C) Protection of water quality.
    (iv) Demonstrate how the area of surface disturbance will be 
reclaimed to a condition or use that is consistent with the Six Rivers 
National Forest Land and Resource Management Plan.



Sec. 292.67  Operating plan approval--outstanding mineral rights.

    (a) Upon receipt of an operating plan, the authorized officer must 
review the information related to the ownership of the outstanding 
mineral rights and notify the operator that:
    (1) Sufficient information on ownership of the outstanding mineral 
rights has been provided; or
    (2) Sufficient information on ownership of outstanding mineral 
rights has not been provided, including an explanation of the specific 
information that still needs to be provided, and that no further action 
on the plan of operations will be taken until the authorized officer's 
receipt of the specified information.
    (b) If the review shows outstanding mineral rights have not been 
verified, the authorized officer must notify the operator in writing 
that outstanding

[[Page 364]]

mineral rights have not been verified, explain the reasons for such a 
finding, and that the proposed mineral operation cannot be conducted.
    (c) If the review shows that outstanding mineral rights have been 
verified, the authorized officer must notify the operator in writing 
that outstanding mineral rights have been verified and that review of 
the proposed operating plan will proceed.
    (d) The authorized officer shall review the operating plan to 
determine if all of the following criteria are met:
    (1) The operating plan is consistent with the rights granted by the 
deed;
    (2) The operating plan is consistent with the Six Rivers National 
Forest Land and Resource Management Plan; and
    (3) The operating plan uses only so much of the surface as is 
necessary for the proposed mineral operations.
    (e) Upon completion of the review of the operating plan, the 
authorized officer shall notify the operator in writing of one of the 
following:
    (1) The operating plan meets all of the criteria of paragraphs 
(d)(1) through (d)(3) of this section and, therefore, is approved;
    (2) The operating plan does not meet one or more of the criteria in 
paragraphs (d)(1) through (d)(3) of this section. Where feasible, the 
authorized officer may indicate changes to the operating plan that would 
satisfy the criteria in paragraphs (d)(1) through (d)(3) of this section 
and, thus, if accepted by the operator, would result in approval of the 
operating plan.
    (f) To conduct mineral operations beyond those described in an 
approved operating plan, the owner or lessee must submit, in writing, an 
amended operating plan to the authorized officer at the earliest 
practicable date. New operations covered by the proposed amendment may 
not begin until the authorized officer has reviewed and responded in 
writing to the proposed amendment. The authorized officer shall review a 
proposed amendment of an approved operating plan to determine that the 
criteria in paragraphs (d)(1) through (d)(3) of this section are met.

                            Mineral Materials



Sec. 292.68  Mineral material operations.

    Subject to the provisions of part 228, subpart C, and part 293 of 
this chapter, the authorized officer may approve contracts and permits 
for the sale or other disposal of mineral materials, including but not 
limited to, common varieties of gravel, sand, or stone. However, such 
contracts and permits may be approved only if the material is not within 
a designated wilderness area and is to be used for the construction and 
maintenance of roads and other facilities within the SRNRA or the four 
excluded areas identified by the Act.

                            Other Provisions



Sec. 292.69  Concurrent reclamation.

    Plans of operations involving locatable minerals, operating plans 
involving outstanding mineral rights, and contracts or permits for 
mineral materials should all provide, to the maximum extent practicable, 
that reclamation proceed concurrently with the mineral operation.



Sec. 292.70  Indemnification.

    The owner and/or operator of mining claims and the owner and/or 
lessee of outstanding mineral rights are jointly and severally liable in 
accordance with Federal and State laws for indemnifying the United 
States for the following:
    (a) Costs, damages, claims, liabilities, judgments, injury and loss, 
including those incurred from fire suppression efforts, and 
environmental response actions and cleanup and abatement costs incurred 
by the United States and arising from past, present, and future acts or 
omissions of the owner, operator, or lessee in connection with the use 
and occupancy of the unpatented mining claim and/or mineral operation. 
This includes acts or omissions covered by Federal, State, and local 
pollution control and environmental statutes and regulations.
    (b) Payments made by the United States in satisfaction of claims, 
demands, or judgments for an injury, loss, damage, or costs, including 
for

[[Page 365]]

fire suppression and environmental response action and cleanup and 
abatement costs, which result from past, present, and future acts or 
omissions of the owner, operator, or lessee in connection with the use 
and occupancy of the unpatented mining claim and/or mineral operations.
    (c) Costs incurred by the United States for any action resulting 
from noncompliance with an approved plan of operations or activities 
outside an approved operating plan.



PART 293_WILDERNESS_PRIMITIVE AREAS--Table of Contents




Sec. 
293.1 Definition.
293.2 Objectives.
293.3 Control of uses.
293.4 Maintenance of records.
293.5 Establishment, modification, or elimination.
293.6 Commercial enterprises, roads, motor vehicles, motorized 
          equipment, motorboats, aircraft, aircraft landing facilities, 
          airdrops, structures, and cutting of trees.
293.7 Grazing of livestock.
293.8 Permanent structures and commercial services.
293.9 [Reserved]
293.10 Jurisdiction over wildlife and fish.
293.11 Water rights.
293.12 Access to surrounded State and private lands.
293.13 Access to valid occupancies.
293.14 Mineral leases and mineral permits.
293.15 Gathering information about resources other than minerals.
293.16 Special provisions governing the Boundary Waters Canoe Area 
          Wilderness, Superior National Forest, Minnesota.
293.17 National Forest Primitive Areas.

    Authority: 16 U.S.C. 551, 1131-1136 and 92 Stat. 1649.

    Source: 38 FR 5855, Mar. 5, 1973, unless otherwise noted.



Sec. 293.1  Definition.

    National Forest Wilderness shall consist of those units of the 
National Wilderness Preservation System which at least 30 days before 
the Wilderness Act of September 3, 1964, were designated as Wilderness 
and Wild under Sec. etary of Agriculture's Regulations U-1 and U-2 
(Secs. 251.20, 251.21), the Boundary Waters Canoe Area as 
designated under Regulation U-3 (Sec. 294.1), and such other areas of 
the National Forests as may later be added to the System by act of 
Congress. Sec. ions 293.1 to 293.15 apply to all National Forest units 
now or hereafter in the National Wilderness Preservation System, 
including the Boundary Waters Canoe Area, Superior National Forest, 
except as that area is subject to Sec. 293.16.



Sec. 293.2  Objectives.

    Except as otherwise provided in the regulations in this part, 
National Forest Wilderness shall be so administered as to meet the 
public purposes of recreational, scenic, scientific, educational, 
conservation, and historical uses; and it shall also be administered for 
such other purposes for which it may have been established in such a 
manner as to preserve and protect its wilderness character. In carrying 
out such purposes, National Forest Wilderness resources shall be managed 
to promote, perpetuate, and, where necessary, restore the wilderness 
character of the land and its specific values of solitude, physical and 
mental challenge, scientific study, inspiration, and primitive 
recreation. To that end:
    (a) Natural ecological succession will be allowed to operate freely 
to the extent feasible.
    (b) Wilderness will be made available for human use to the optimum 
extent consistent with the maintenance of primitive conditions.
    (c) In resolving conflicts in resource use, wilderness values will 
be dominant to the extent not limited by the Wilderness Act, subsequent 
establishing legislation, or the regulations in this part.



Sec. 293.3  Control of uses.

    (a) To the extent not limited by the Wilderness Act, subsequent 
legislation establishing a particular unit, or the regulations in this 
part, the Chief, Forest Service, may prescribe measures necessary to 
control fire, insects, and disease and measures which may be used in 
emergencies involving the health and safety of persons or damage to 
property and may require permits for, or otherwise limit or regulate, 
any use of National Forest land, including, but not limited to, camping, 
campfires, and grazing of recreation livestock.

[[Page 366]]

    (b) For all prohibitions in National Forest Wildernesses, see part 
261 of this chapter.

[38 FR 5855, Mar. 5, 1973, as amended at 42 FR 35959, July 13, 1977]



Sec. 293.4  Maintenance of records.

    The Chief, Forest Service, in accordance with section 3(a)(2) of the 
Wilderness Act, shall establish uniform procedures and standards for the 
maintenance and availability to the public of records pertaining to 
National Forest Wilderness, including maps and legal descriptions; 
copies of regulations governing Wilderness; and copies of public notices 
and reports submitted to Congress regarding pending additions, 
eliminations, or modifications. Copies of such information pertaining to 
National Forest Wilderness within their respective jurisdictions shall 
be available to the public in the appropriate offices of the Regional 
Foresters, Forest Supervisors, and Forest Rangers.



Sec. 293.5  Establishment, modification, or elimination.

    National Forest Wilderness will be established, modified, or 
eliminated in accordance with the provisions of sections 3(b), (d), and 
(e) of the Wilderness Act. The Chief, Forest Service, shall arrange for 
issuing public notices, appointing hearing officers, holding public 
hearings, and notifying the Governors of the States concerned and the 
governing board of each county in which the lands involved are located.
    (a) At least 30 days' public notice shall be given of the proposed 
action and intent to hold a public hearing. Public notice shall include 
publication in the Federal Register and in a newspaper of general 
circulation in the vicinity of the land involved.
    (b) Public hearings shall be held at locations convenient to the 
area affected. If the land involved is in more than one State, at least 
one hearing shall be held in each State in which a portion of the land 
lies.
    (c) A record of the public hearing and the views submitted 
subsequent to public notice and prior to the close of the public hearing 
shall be included with any recommendations to the President and to the 
Congress with respect to any such action.
    (d) At least 30 days before the date of the public hearing, suitable 
advice shall be furnished to the Governor of each State and the 
governing board of each county or, in Alaska, the borough in which the 
lands are located, and Federal departments and agencies concerned; and 
such officers or Federal agencies shall be invited to submit their views 
on the proposed action at the hearing or in writing by not later than 30 
days following the date of the hearing. Any views submitted in response 
to such advice with respect to any proposed Wilderness action shall be 
included with any recommendations to the President and to the Congress 
with respect to any such action.



Sec. 293.6  Commercial enterprises, roads, motor vehicles, motorized equipment,
motorboats, aircraft, aircraft landing facilities, airdrops, structures, and 
          cutting of trees.

    Except as provided in the Wilderness Act, subsequent legislation 
establishing a particular Wilderness unit, or Secs. 294.2(b), 
294.2(c), and 294.2(e), paragraphs (c) and (d) of this section, and 
Secs. 293.7, 293.8, and 293.12 through 293.16, inclusive, and 
subject to existing rights, there shall be in National Forest Wilderness 
no commercial enterprises; no temporary or permanent roads; no aircraft 
landing strips; no heliports or helispots, no use of motor vehicles, 
motorized equipment, motorboats, or other forms of mechanical transport; 
no landing of aircraft; no dropping of materials, supplies, or persons 
from aircraft; no structures or installations; and no cutting of trees 
for nonwilderness purposes.
    (a) Mechanical transport, as herein used, shall include any 
contrivance which travels over ground, snow, or water on wheels, tracks, 
skids, or by floatation and is propelled by a nonliving power source 
contained or carried on or within the device.
    (b) Motorized equipment, as herein used, shall include any machine 
activated by a nonliving power source, except that small battery-
powered, hand-carried devices such as flashlights, shavers, and Geiger 
counters are not classed as motorized equipment.

[[Page 367]]

    (c) The Chief, Forest Service, may authorize occupancy and use of 
National Forest land by officers, employees, agencies, or agents of the 
Federal, State, and county governments to carry out the purposes of the 
Wilderness Act and will prescribe conditions under which motorized 
equipment, mechanical transport, aircraft, aircraft landing strips, 
heliports, helispots, installations, or structures may be used, 
transported, or installed by the Forest Service and its agents and by 
other Federal, State, or county agencies or their agents, to meet the 
minimum requirements for authorized activities to protect and administer 
the Wilderness and its resources. The Chief may also prescribe the 
conditions under which such equipment, transport, aircraft, 
installations, or structures may be used in emergencies involving the 
health and safety of persons, damage to property, or other purposes.
    (d) The Chief, Forest Service, may permit, subject to such 
restrictions as he deems desirable, the landing of aircraft and the use 
of motorboats at places within any Wilderness where these uses were 
established prior to the date the Wilderness was designated by Congress 
as a unit of the National Wilderness Preservation System. The Chief may 
also permit the maintenance of aircraft landing strips, heliports, or 
helispots which existed when the Wilderness was designated by Congress 
as a unit of the National Wilderness Preservation System.



Sec. 293.7  Grazing of livestock.

    (a) The grazing of livestock, where such use was established before 
the date of legislation which includes an area in the National 
Wilderness Preservation System, shall be permitted to continue under the 
general regulations covering grazing of livestock on the National 
Forests and in accordance with special provisions covering grazing use 
in units of National Forest Wilderness which the Chief of the Forest 
Service may prescribe for general application in such units or may 
arrange to have prescribed for individual units.
    (b) The Chief, Forest Service, may permit, subject to such 
conditions as he deems necessary, the maintenance, reconstruction, or 
relocation of those livestock management improvements and structures 
which existed within a Wilderness when it was incorporated into the 
National Wilderness Preservation System. Additional improvements or 
structures may be built when necessary to protect wilderness value.



Sec. 293.8  Permanent structures and commercial services.

    Motels, summer homes, stores, resorts, organization camps, hunting 
and fishing lodges, electronic installations, and similar structures and 
uses are prohibited in National Forest Wilderness. The Chief, Forest 
Service, may permit temporary structures and commercial services within 
National Forest Wilderness to the extent necessary for realizing the 
recreational or other wilderness purposes, which may include, but are 
not limited to, the public services generally offered by packers, 
outfitters, and guides.



Sec. 293.9  [Reserved]



Sec. 293.10  Jurisdiction over wildlife and fish.

    Nothing in the regulations in this part shall be construed as 
affecting the jurisdiction or responsibility of the several States with 
respect to wildlife and fish in the National Forests.



Sec. 293.11  Water rights.

    Nothing in the regulations in this part constitutes an expressed or 
implied claim or denial on the part of the Department of Agriculture as 
to exemption from State water laws.



Sec. 293.12  Access to surrounded State and private lands.

    States or persons, and their successors in interest, who own land 
completely surrounded by National Forest Wilderness shall be given 
access as provided in subpart D of part 251 of this chapter.

[56 FR 27419, June 14, 1991]



Sec. 293.13  Access to valid occupancies.

    Persons with valid occupancies wholly within National Forest 
Wilderness shall be permitted access to such surrounded occupancies by 
means consistent with the preservation of National Forest Wilderness 
which have

[[Page 368]]

been or are being customarily used with respect to other such 
occupancies surrounded by National Forest Wilderness. The Forest Service 
will, when appropriate, issue permits which shall prescribe the routes 
of travel to and from the surrounded occupancies, the mode of travel, 
and other conditions reasonably necessary to preserve the National 
Forest Wilderness.

[39 FR 31321, Aug. 28, 1974]



Sec. 293.14  Mineral leases and mineral permits.

    (a) All laws pertaining to mineral leasing shall extend to each 
National Forest Wilderness for the period specified in the Wilderness 
Act or 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. 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 laws pertaining to mineral 
leasing cease to apply to the specific Wilderness, nor shall any person 
after such date have any preference in applying for a mineral lease, 
license, or permit.
    (b) Mineral leases, permits, and licenses covering lands within 
National Forest Wilderness will contain reasonable stipulations for the 
protection of the wilderness character of the land consistent with the 
use of the land for purposes for which they are leased, permitted, or 
licensed. The Chief, Forest Service, shall specify the conditions to be 
included in such stipulations.
    (c) Permits shall not be issued for the removal of mineral materials 
commonly known as common varieties under the Minerals Act of July 31, 
1947, as amended and supplemented (30 U.S.C. 601-604).

[39 FR 31321, Aug. 28, 1974]



Sec. 293.15  Gathering information about resources other than minerals.

    (a) The Chief, Forest Service, shall allow any activity, for the 
purposes of gathering information about resources, other than 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. Prospecting for minerals 
or any activity for the purpose of gathering information about minerals 
in National Forest Wilderness is subject to the regulations in part 252 
of this chapter.
    (b) [Reserved]
    (c) Any person desiring to use motorized equipment, to land 
aircraft, or to make substantial excavations for the purpose of 
gathering information about resources, other than minerals, shall apply 
in writing to the Office of the Forest Supervisor or District Ranger 
having jurisdiction over the land involved. Excavations shall be 
considered substantial which singularly or collectively exceed 200 cubic 
feet within any area which can be bounded by a rectangle containing 20 
surface acres. Such use or excavation may be authorized by a permit 
issued by the Forest Service. Such permits may provide for the 
protection of National Forest resources, including wilderness values, 
protection of the public, and restoration of disturbed areas, including 
the posting of performance bonds.
    (d) Prospecting for water resources and the establishment of new 
reservoirs, water-conservation works, power projects, transmission 
lines, and other facilities needed in the public interest and the 
subsequent maintenance of such facilities, all pursuant to section 
(4)(d)(4)(1) of the Wilderness Act, will be permitted when and as 
authorized by the President.

[39 FR 31321, Aug. 28, 1974, as amended at 42 FR 35960, July 13, 1977]



Sec. 293.16  Special provisions governing the Boundary Waters Canoe Area
Wilderness, Superior National Forest, Minnesota.

    (a) Motorboat use. (1) For purposes of this section, motorboats 
permitted to operate in the BWCA Wilderness are defined as watercraft 
propelled by a gasoline or electric powered motor with the propeller 
below the waterline.
    (2) Motorboats may operate without restrictions on motor size or 
number of motors on Sand Point Lake, Little Vermilion Lake, Loon Lake, 
Loon

[[Page 369]]

River, and that portion of Lac La Croix which lies south of Snow Bay and 
east of Wilkins Bay, all in Saint Louis County.
    (3) Motorboats with a motor or combination of motors totaling no 
more than 25 horsepower may operate on Trout Lake in Saint Louis County, 
Fall Lake, Moose Lake, Newfound Lake, Newton Lake, Sucker Lake, Snowbank 
Lake, South Farm Lake, and Basswood Lake, except that portion of 
Basswood Lake generally north of the narrows at the north end of 
Jackfish Bay and north of a point on the International Boundary between 
Ottawa Island and Washington Island, all in Lake County, and East 
Bearskin Lake and Saganaga Lake, except that portion west of American 
Point in Cook County.
    (4) Motorboats with a motor or combination of motors totaling no 
more than 10 horsepower may operate on Clearwater Lake, North Fowl Lake, 
South Fowl Lake, Alder Lake, Canoe Lake, Sea Gull Lake, and Island River 
east of Lake Isabella, all in Lake County, except that motorboats may 
not operate--
    (i) After January 1, 1999 on that portion of Sea Gull Lake west of 
Threemile Island, and
    (ii) After January 1, 1994, on Brule Lake in Cook County or until 
the termination of the operation of the resort adjacent to Brule Lake in 
operation as of 1977, whichever occurs first.
    (5) Motorboats with a combination of motors that exceed 25 
horsepower may travel on that portion of Saganaga Lake in Cook County 
described as the Saganaga Corridor extending from the Saganaga Narrows 
north to the International Boundary east of Campers, Clark and Horseshoe 
Islands and west of Oskenonton Island; provided that the motor or motors 
in operation at one time do not exceed 25 horsepower.
    (b) Mechanical and mechanized portages. (1) BWCA visitors may use 
portage wheels and other non-motorized devices to transport watercraft 
over the following routes:
    (i) The portages along the International Boundary.
    (ii) Four Mile Portage from Fall Lake to Hoist Bay of Basswood Lake.
    (iii) The portage from Back Bay to Pipestone Bay of Basswood Lake.
    (iv) The portages from Fall Lake to Newton Lake to Pipestone Bay of 
Basswood Lake.
    (v) The portage from Vermilion Lake to Trout Lake.
    (2) The Forest Service may authorize, by special use permit, the use 
of motor vehicles to transport watercraft over the following portages:
    (i) Four Mile Portage From Fall Lake to Hoist Bay of Basswood Lake.
    (ii) Vermilion Lake to Trout Lake.
    (iii) Prairie Portage from Sucker Lake to Basswood Lake
    (iv) Loon River to Loon Lake and from Loon Lake to Lac La Croix.
    (c) Snowmobile use. (1) A snowmobile is defined as a self-propelled, 
motorized vehicle not exceeding forty inches in width designed to 
operate on ice and snow, having a ski or skiis in contact with the snow 
and driven by a track or tracks.
    (2) The Forest Service permits use of snowmobiles only on the 
following routes:
    (i) The overland portages in Saint Louis County from Crane Lake to 
Little Vermilion Lake in Canada.
    (ii) The route in Cook County from Sea Gull River along the eastern 
portion of Saganage Lake to Canada.
    (3) The Forest Service may issue special-use authorizations to use 
snowmobiles for the grooming of specified cross-country ski trails near 
existing resorts.

[50 FR 16231, Apr. 25, 1985]



Sec. 293.17  National Forest Primitive Areas.

    (a) Within those areas of National Forests classified as Primitive 
on the effective date of the Wilderness Act, September 3, 1964, there 
shall be no roads or other provision for motorized transportation, no 
commercial timber cutting, and no occupancy under special-use permit for 
hotels, stores, resorts, summer homes, organization camps, hunting and 
fishing lodges, or similar uses: Provided, That existing roads over 
National Forest lands reserved from the public domain and roads 
necessary for the exercise of a statutory right of ingress and egress 
may be allowed

[[Page 370]]

under appropriate conditions determined by the Chief, Forest Service.
    (b) Grazing of domestic livestock, development of water storage 
projects which do not involve road construction, and improvements 
necessary for the protection of the National Forests may be permitted, 
subject to such restrictions as the Chief, Forest Service, deems 
desirable. Within Primitive Areas, when the use is for other than 
administrative needs of the Forest Service, use by other Federal 
agencies when authorized by the Chief, and in emergencies, the landing 
of aircraft and the use of motorboats are prohibited on National Forest 
land or water unless such use by aircraft or motorboats has already 
become well established, the use of motor vehicles is prohibited, and 
the use of other motorized equipment is prohibited except as authorized 
by the Chief. These restrictions are not intended as limitations on 
statutory rights of ingress and egress or of prospecting, locating, and 
developing mineral resources.
    (c) All prohibitions for those areas of National Forest classified 
as Primitive on the effective date of the Wilderness Act, September 3, 
1964, are in part 261.

(78 Stat. 890, 16 U.S.C. 1131-1136; 74 Stat. 215, 16 U.S.C. 528-531)

[38 FR 5855, Mar. 5, 1973, as amended at 42 FR 35960, July 13, 1977]



PART 294_SPECIAL AREAS--Table of Contents




Sec. 

                   Subpart A_Miscellaneous Provisions

294.1 Recreation areas.
294.2 Navigation of aircraft within airspace reservation over the 
          Boundary Waters Canoe Area Wilderness, Superior National 
          Forest, Minnesota.
294.3-294.9 [Reserved]

   Subpart B_State Petitions for Inventoried Roadless Area Management

294.10 Purpose.
294.11 Definition.
294.12 State petitions.
294.13 Petition process.
294.14 Petition contents.
294.15 Advisory committee review.
294.16 State-specific rulemaking.
294.17 Scope and applicability.
294.18 Severability.



                   Subpart A_Miscellaneous Provisions

    Authority: 16 U.S.C. 472, 551, and 1131.



Sec. 294.1  Recreation areas.

    Suitable areas of national forest land, other than wilderness or 
wild areas, which should be managed principally for recreation use may 
be given special classification as follows:
    (a) Areas which should be managed principally for recreation use 
substantially in their natural condition and on which, in the discretion 
of the officer making the classification, certain other uses may or may 
not be permitted may be approved and classified by the Chief of the 
Forest Service or by such officers as he may designate if the particular 
area is less than 100,000 acres. Areas of 100,000 acres or more will be 
approved and classified by the Sec. etary of Agriculture.
    (b) Areas which should be managed for public recreation requiring 
development and substantial improvements may be given special 
classification as public recreation areas. Areas in single tracts of not 
more than 160 acres may be approved and classified by the Chief of the 
Forest Service or by such officers as he may designate. Areas in excess 
of 160 acres will be classified by the Sec. etary of Agriculture. 
Classification hereunder may include areas used or selected to be used 
for the development and maintenance as camp grounds, picnic grounds, 
organization camps, resorts, public service sites (such as for 
restaurants, filling stations, stores, horse and boat liveries, garages, 
and similar types of public service accommodations), bathing beaches, 
winter sports areas, lodges, and similar facilities and appurtenant 
structures needed by the public to enjoy the recreation resources of the 
national forests. The boundaries of all areas so classified shall be 
clearly marked on the ground and notices of such classification shall be 
posted at conspicuous places thereon. Areas classified under this 
section shall thereby be set apart and reserved for public recreation 
use and such classification shall constitute a formal closing of the

[[Page 371]]

area to any use or occupancy inconsistent with the classification.

[38 FR 5859, Mar. 5, 1973, as amended at 66 FR 3272, Jan. 12, 2001]



Sec. 294.2  Navigation of aircraft within airspace reservation over the Boundary
Waters Canoe Area Wilderness, Superior National Forest, Minnesota.

    (a) Description of areas. Sec. ions 294.2(b) to 294.2(f), inclusive, 
apply to those areas of land and water in the Counties of Cook, Lake, 
and St. Louis, State of Minnesota, within the exterior boundaries of the 
Superior National Forest, which have heretofore been designated by the 
Sec. etary of Agriculture as the Superior Roadless Area, the Little 
Indian Sioux Roadless Area, and the Caribou Roadless Area, respectively, 
and to the airspace over said areas and below the altitude of 4,000 feet 
above sea level. Said areas are more particularly described in the 
Executive order setting apart said airspace as an airspace reservation 
(E.O. 10092, Dec. 17, 1949; 3 CFR 1949 Supp.). Copies of said Executive 
order may be obtained on request from the Forest Supervisor, Superior 
National Forest, Duluth, Minnesota (hereinafter called Forest 
Supervisor).
    (b) Emergency landing and rescue operations. The pilot of any 
aircraft landing within any of said areas for reasons of emergency or 
for conducting rescue operations, shall inform the Forest Supervisor 
within seven days after the termination of the emergency or the 
completion of the rescue operation as to the date, place, and duration 
of landing, and the type and registration number of the aircraft.
    (c) Low flights. Any person making a flight within said airspace 
reservation for reasons of safety or for conducting rescue operations 
shall inform the Forest Supervisor within seven days after the 
completion of the flight or the rescue operation as to the date, place, 
and duration of flight, and the type and registration number of the 
aircraft.
    (d) Official flights. The provisions of Secs. 294.2(b) and 
294.2(c) do not apply to flights made for conducting or assisting in the 
conduct of official business of the United States, of the State of 
Minnesota or of Cook, St. Louis, or Lake Counties, Minnesota.
    (e) Conformity with law. Nothing in these regulations shall be 
construed as permitting the operation of aircraft contrary to the 
provisions of the Civil Aeronautics Act of 1938 (52 Stat. 973), as 
amended, or any rule, regulation or order issued thereunder.

[38 FR 5859, Mar. 5, 1973, as amended at 50 FR 16232, Apr. 25, 1985; 66 
FR 3272, Jan. 12, 2001]



Sec. 294.3-294.9  [Reserved]



   Subpart B_State Petitions for Inventoried Roadless Area Management

    Authority: 16 U.S.C. 472, 529, 551, 1608, 1613; 23 U.S.C. 201, 205.

    Source: 70 FR 25661, May 13, 2005, unless otherwise noted.



Sec. 294.10  Purpose.

    The purpose of these administrative procedures is to set forth a 
process for State-specific rulemaking to address the management of 
inventoried roadless areas in areas where the Sec. etary determines that 
regulatory direction is appropriate based on a petition from the 
affected Governor.



Sec. 294.11  Definition.

    Inventoried roadless areas--Areas identified in a set of inventoried 
roadless area maps, contained in the Forest Service Roadless Area 
Conservation, Final Environmental Impact Statement, Volume 2, dated 
November 2000, and any subsequent update or revision of those maps 
through the land management planning process.



Sec. 294.12  State petitions.

    The Governor of any State or territory that contains National Forest 
System lands may petition the Sec. etary of Agriculture to promulgate 
regulations establishing management requirements for all or any portion 
of National Forest System inventoried roadless areas within that State 
or territory. Any such petition must be submitted to the Sec. etary of 
Agriculture not later than November 13, 2006.

[[Page 372]]



Sec. 294.13  Petition process.

    (a) Review and consideration of petitions made pursuant to Sec. 
294.12 shall be accomplished as follows:
    (1) Review. The Sec. etary shall review petitions and may request 
additional information from a petitioner before deciding whether to 
accept the petition. If the Sec. etary requests additional information 
from a petitioner, the petition will be considered complete when the 
petitioner provides the additional information.
    (2) Disposition. The Sec. etary or the Secretary's designee shall 
respond to the petition within 180 days of receipt of a completed 
petition. The response shall accept or decline the petition to initiate 
a State-specific rulemaking.



Sec. 294.14  Petition contents.

    (a) Any petition made pursuant to Sec. 294.12 shall provide the 
following:
    (1) The location and description of the particular lands for which 
the petition is being made, including maps and other appropriate 
resources in sufficient detail to enable consideration of the petition;
    (2) The particular management requirements recommended for the lands 
and any exceptions;
    (3) The identification of the circumstances and needs intended to be 
addressed by the petition, including conserving roadless area values and 
characteristics; protecting human health and safety; reducing hazardous 
fuels and restoring essential wildlife habitats; maintaining existing 
facilities such as dams, or providing reasonable access to public and 
private property or public and privately owned facilities; and technical 
corrections to existing maps such as boundary adjustments to remove 
existing roaded areas;
    (4) A description of how the recommended management requirements 
identified in paragraph (a)(2) of this section differ from existing 
applicable land management plan(s) or policies related to inventoried 
roadless area management, and how they would comply with applicable laws 
and regulations;
    (5) A description of how the recommended management requirements 
identified in paragraph (a)(2) of this section compare to existing State 
or local land conservation policies and direction set forth in any 
applicable State or local land and resource management plan(s);
    (6) A description of how the recommended management requirements 
identified in paragraph (a)(2) of this section would affect the fish and 
wildlife that utilize the particular lands in question and their 
habitat;
    (7) A description of any public involvement efforts undertaken by 
the petitioner during development of the petition, including efforts to 
engage Tribal and local governments, and persons with expertise in fish 
and wildlife biology, fish and wildlife management, forest management, 
outdoor recreation, and other important disciplines; and
    (8) A commitment by the petitioner to participate as a cooperating 
agency in any environmental analysis for a rulemaking process.
    (b) The petition contents described in paragraphs (a)(1) through 
(a)(8) of this section constitute an information collection requirement 
as defined by 5 CFR part 1320 and have been assigned Office of 
Management and Budget control number 0596-0178.



Sec. 294.15  Advisory committee review.

    A National Advisory Committee shall review each petition and provide 
advice and recommendations to the Sec. etary within 90 days of receipt of 
a completed petition. The committee will also provide advice and 
recommendations to the Sec. etary on any subsequent State-specific 
rulemakings.



Sec. 294.16  State-specific rulemaking.

    If the Sec. etary or the Secretary's designee accepts a petition, the 
Forest Service shall be directed to initiate notice and comment 
rulemaking to address the petition. The Forest Service shall coordinate 
development of the proposed rule with the petitioner. The Sec. etary or 
the Sec. etary's designee shall make the final decision for any State-
specific inventoried roadless area management rule.



Sec. 294.17  Scope and applicability.

    (a) The provisions of this subpart apply exclusively to the 
development and review of petitions made pursuant to this subpart.

[[Page 373]]

    (b) Nothing in this subpart shall be construed to provide for the 
transfer to, or administration by, a State or local authority of any 
Federally owned lands.
    (c) Nothing in this subpart, nor any regulation promulgated pursuant 
to this petitioning process, shall prohibit the exercise of any valid 
existing rights.



Sec. 294.18  Severability.

    In the event that any provision, section, subsection, or phrase of 
this subpart is determined by a court or body of competent jurisdiction 
to be invalid, unconstitutional, or unenforceable, the remaining 
provisions, sections, subsections, or phrases shall remain in full force 
and effect.



PART 296_PROTECTION OF ARCHAEOLOGICAL RESOURCES:
UNIFORM REGULATIONS--Table of Contents




Sec. 
296.1 Purpose.
296.2 Authority.
296.3 Definitions.
296.4 Prohibited acts and criminal penalties.
296.5 Permit requirements and exceptions.
296.6 Application for permits and information collection.
296.7 Notification to Indian tribes of possible harm to, or destruction 
          of, sites on public lands having religious or cultural 
          importance.
296.8 Issuance of permits.
296.9 Terms and conditions of permits.
296.10 Suspension and revocation of permits.
296.11 Appeals relating to permits.
296.12 Relationship to section 106 of the National Historic Preservation 
          Act.
296.13 Custody of archaeological resources.
296.14 Determination of archaeological or commercial value and cost of 
          restoration and repair.
296.15 Assessment of civil penalties.
296.16 Civil penalty amounts.
296.17 Other penalties and rewards.
296.18 Confidentiality of archaeological resource information.
296.19 Report.
296.20 Public awareness programs.
296.21 Surveys and schedules.

    Authority: Pub. L. 96-95, 93 Stat. 721, as amended, 102 Stat. 2983 
(16 U.S.C. 470aa-mm)(Sec.  10(a). Related Authority: Pub. L. 59-209, 34 
Stat. 225 (16 U.S.C. 432, 433); Pub. L. 86-523, 74 Stat. 220, 221 (16 
U.S.C. 469), as amended, 88 Stat. 174 (1974); Pub. L. 89-665, 80 Stat. 
915 (16 U.S.C. 470a-t), as amended, 84 Stat. 204 (1970), 87 Stat. 139 
(1973), 90 Stat. 1320 (1976), 92 Stat. 3467 (1978), 94 Stat. 2987 
(1980); Pub. L. 95-341, 92 Stat. 469 (42 U.S.C. 1996).

    Source: 49 FR 1027, Jan. 6, 1984, unless otherwise noted.



Sec. 296.1  Purpose.

    (a) The regulations in this part implement provisions of the 
Archaeological Resources Protection Act of 1979, as amended (16 U.S.C. 
470aa-mm) by establishing the uniform definitions, standards, and 
procedures to be followed by all Federal land managers in providing 
protection for archaeological resources, located on public lands and 
Indian lands of the United States. These regulations enable Federal land 
managers to protect archaeological resources, taking into consideration 
provisions of the American Indian Religious Freedom Act (92 Stat. 469; 
42 U.S.C. 1996), through permits authorizing excavation and/or removal 
of archaeological resources, through civil penalties for unauthorized 
excavation and/or removal, through provisions for the preservation of 
archaeological resource collections and data, and through provisions for 
ensuring confidentiality of information about archaeological resources 
when disclosure would threaten the archaeological resources.
    (b) The regulations in this part do not impose any new restrictions 
on activities permitted under other laws, authorities, and regulations 
relating to mining, mineral leasing, reclamation, and other multiple 
uses of the public lands.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995]



Sec. 296.2  Authority.

    (a) The regulations in this part are promulgated pursuant to section 
10(a) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 
470ii), which requires that the Sec. etaries of the Interior, Agriculture 
and Defense and the Chairman of the Board of the Tennessee Valley 
Authority jointly develop uniform rules and regulations for carrying out 
the purposes of the Act.

[[Page 374]]

    (b) In addition to the regulations in this part, section 10(b) of 
the Act (16 U.S.C. 470ii) provides that each Federal land manager shall 
promulgate such rules and regulations, consistent with the uniform rules 
and regulations in this part, as may be necessary for carrying out the 
purposes of the Act.



Sec. 296.3  Definitions.

    As used for purposes of this part:
    (a) Archaeological resource means any material remains of human life 
or activities which are at least 100 years of age, and which are of 
archaeological interest.
    (1) Of archaeological interest means capable of providing scientific 
or humanistic understandings of past human behavior, cultural 
adaptation, and related topics through the application of scientific or 
scholarly techniques such as controlled observation, contextual 
measurement, controlled collection, analysis, interpretation and 
explanation.
    (2) Material remains means physical evidence of human habitation, 
occupation, use, or activity, including the site, location, or context 
in which such evidence is situated.
    (3) The following classes of material remains (and illustrative 
examples), if they are at least 100 years of age, are of archaeological 
interest and shall be considered archaeological resources unless 
determined otherwise pursuant to paragraph (a)(4) or (a)(5) of this 
section:
    (i) Surface or subsurface structures, shelters, facilities, or 
features (including, but not limited to, domestic structures, storage 
structures, cooking structures, ceremonial structures, artificial 
mounds, earthworks, fortifications, canals, reservoirs, horticultural/
agricultural gardens or fields, bedrock mortars or grinding surfaces, 
rock alignments, cairns, trails, borrow pits, cooking pits, refuse pits, 
burial pits or graves, hearths, kilns, post molds, wall trenches, 
middens);
    (ii) Surface or subsurface artifact concentrations or scatters;
    (iii) Whole or fragmentary tools, implements, containers, weapons 
and weapon projectiles, clothing, and ornaments (including, but not 
limited to, pottery and other ceramics, cordage, basketry and other 
weaving, bottles and other glassware, bone, ivory, shell, metal, wood, 
hide, feathers, pigments, and flaked, ground, or pecked stone);
    (iv) By-products, waste products, or debris resulting from 
manufacture or use of human-made or natural materials;
    (v) Organic waste (including, but not limited to, vegetal and animal 
remains, coprolites);
    (vi) Human remains (including, but not limited to, bone, teeth, 
mummified flesh, burials, cremations);
    (vii) Rock carvings, rock paintings, intaglios and other works of 
artistic or symbolic representation;
    (viii) Rockshelters and caves or portions thereof containing any of 
the above material remains;
    (ix) All portions of shipwrecks (including, but not limited to, 
armaments, apparel, tackle, cargo);
    (x) Any portion or piece of any of the foregoing.
    (4) The following material remains shall not be considered of 
archaeological interest, and shall not be considered to be 
archaeological resources for purposes of the Act and this part, unless 
found in a direct physical relationship with archaeological resources as 
defined in this section:
    (i) Paleontological remains;
    (ii) Coins, bullets, and unworked minerals and rocks.
    (5) The Federal land manager may determine that certain material 
remains, in specified areas under the Federal land manager's 
jurisdiction, and under specified circumstances, are not or are no 
longer of archaeological interest and are not to be considered 
archaeological resources under this part. Any determination made 
pursuant to this subparagraph shall be documented. Such determination 
shall in no way affect the Federal land manager's obligations under 
other applicable laws or regulations.
    (6) For the disposition following lawful removal or excavations of 
Native American human remains and ``cultural items'', as defined by the 
Native American Graves Protection and Repatriation Act (NAGPRA; Pub. L. 
101-601; 104 Stat. 3050; 25 U.S.C. 3001-13), the Federal land manager is 
referred to

[[Page 375]]

NAGPRA and its implementing regulations.
    (b) Arrowhead means any projectile point which appears to have been 
designed for use with an arrow.
    (c) Federal land manager means:
    (1) With respect to any public lands, the secretary of the 
department, or the head of any other agency or instrumentality of the 
United States, having primary management authority over such lands, 
including persons to whom such management authority has been officially 
delegated;
    (2) In the case of Indian lands, or any public lands with respect to 
which no department, agency or instrumentality has primary management 
authority, such term means the Sec. etary of the Interior;
    (3) The Sec. etary of the Interior, when the head of any other agency 
or instrumentality has, pursuant to section 3(2) of the Act and with the 
consent of the Sec. etary of the Interior, delegated to the Secretary of 
the Interior the responsibilities (in whole or in part) in this part.
    (d) Public lands means:
    (1) Lands which are owned and administered by the United States as 
part of the national park system, the national wildlife refuge system, 
or the national forest system; and
    (2) All other lands the fee title to which is held by the United 
States, except lands on the Outer Continental Shelf, lands under the 
jurisdiction of the Smithsonian Institution, and Indian lands.
    (e) Indian lands means lands of Indian tribes, or Indian 
individuals, which are either held in trust by the United States or 
subject to a restriction against alienation imposed by the United 
States, except for subsurface interests not owned or controlled by an 
Indian tribe or Indian individual.
    (f) Indian tribe as defined in the Act means any Indian tribe, band, 
nation, or other organized group or community, including any Alaska 
village or regional or village corporation as defined in, or established 
pursuant to, the Alaska Native Claims Settlement Act (85 Stat. 688). In 
order to clarify this statutory definition for purposes of this part, 
Indian tribe means:
    (1) Any tribal entity which is included in the annual list of 
recognized tribes published in the Federal Register by the Sec. etary of 
the Interior pursuant to 25 CFR part 54;
    (2) Any other tribal entity acknowledged by the Sec. etary of the 
Interior pursuant to 25 CFR part 54 since the most recent publication of 
the annual list; and
    (3) Any Alaska Native village or regional or village corporation as 
defined in or established pursuant to the Alaska Native Claims 
Settlement Act (85 Stat. 688), and any Alaska Native village or tribe 
which is recognized by the Sec. etary of the Interior as eligible for 
services provided by the Bureau of Indian Affairs.
    (g) Person means an individual, corporation, partnership, trust, 
institution, association, or any other private entity, or any officer, 
employee, agent, department, or instrumentality of the United States, or 
of any Indian tribe, or of any State or political subdivision thereof.
    (h) State means any of the fifty states, the District of Columbia, 
Puerto Rico, Guam, and the Virgin Islands.
    (i) Act means the Archaeological Resources Protection Act of 1979 
(16 U.S.C. 470aa-mm).

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984; 60 FR 5260, Jan. 
26, 1995]



Sec. 296.4  Prohibited acts and criminal penalties.

    (a) Under section 6(a) of the Act, no person may excavate, remove, 
damage, or otherwise alter or deface, or attempt to excavate, remove, 
damage, or otherwise alter or deface any archaeological resource located 
on public lands or Indian lands unless such activity is pursuant to a 
permit issued under Sec. 296.8 or exempted by Sec.296.5(b) of this 
part.
    (b) No person may sell, purchase, exchange, transport, or receive 
any archaeological resource, if such resource was excavated or removed 
in violation of:
    (1) The prohibitions contained in paragraph (a) of this section; or
    (2) Any provision, rule, regulation, ordinance, or permit in effect 
under any other provision of Federal law.
    (c) Under section (d) of the Act, any person who knowingly violates 
or

[[Page 376]]

counsels, procures, solicits, or employs any other person to violate any 
prohibition contained in section 6 (a), (b), or (c) of the Act will, 
upon conviction, be fined not more than $10,000.00 or imprisoned not 
more than one year, or both: provided, however, that if the commercial 
or archaeological value of the archaeological resources involved and the 
cost of restoration and repair of such resources exceeds the sum of 
$500.00, such person will be fined not more than $20,000.00 or 
imprisoned not more than two years, or both. In the case of a second or 
subsequent such violation upon conviction such person will be fined not 
more than $100,000.00, or imprisoned not more than five years, or both.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995]



Sec. 296.5  Permit requirements and exceptions.

    (a) Any person proposing to excavate and/or remove archaeological 
resources from public lands or Indian lands, and to carry out activities 
associated with such excavation and/or removal, shall apply to the 
Federal land manager for a permit for the proposed work, and shall not 
begin the proposed work until a permit has been issued. The Federal land 
manager may issue a permit to any qualified person, subject to 
appropriate terms and conditions, provided that the person applying for 
a permit meets conditions in Sec. 296.8(a) of this part.
    (b) Exceptions: (1) No permit shall be required under this part for 
any person conducting activities on the public lands under other 
permits, leases, licenses, or entitlements for use, when those 
activities are exclusively for purposes other than the excavation and/or 
removal of archaeological resources, even though those activities might 
incidentally result in the disturbance of archaeological resources. 
General earth-moving excavation conducted under a permit or other 
authorization shall not be construed to mean excavation and/or removal 
as used in this part. This exception does not, however, affect the 
Federal land manager's responsibility to comply with other authorities 
which protect archaeological resources prior to approving permits, 
leases, licenses, or entitlements for use; any excavation and/or removal 
of archaeological resources required for compliance with those 
authorities shall be conducted in accordance with the permit 
requirements of this part.
    (2) No permit shall be required under this part for any person 
collecting for private purposes any rock, coin, bullet, or mineral which 
is not an archaeological resource as defined in this part, provided that 
such collecting does not result in disturbance of any archaeological 
resource.
    (3) No permit shall be required under this part or under section 3 
of the Act of June 8, 1906 (16 U.S.C. 432), for the excavation or 
removal by any Indian tribe or member thereof of any archaeological 
resource located on Indian lands of such Indian tribe, except that in 
the absence of tribal law regulating the excavation or removal or 
archaeological resources on Indian lands, an individual tribal member 
shall be required to obtain a permit under this part;
    (4) No permit shall be required under this part for any person to 
carry out any archaeological activity authorized by a permit issued 
under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), before the 
enactment of the Archaeological Resources Protection Act of 1979. Such 
permit shall remain in effect according to its terms and conditions 
until expiration.
    (5) No permit shall be required under section 3 of the Act of June 
8, 1906 (16 U.S.C. 432) for any archaeological work for which a permit 
is issued under this part.
    (c) Persons carrying out official agency duties under the Federal 
land manager's direction, associated with the management of 
archaeological resources, need not follow the permit application 
procedures of Sec. 296.6. However, the Federal land manager shall 
insure that provisions of Sec. 296.8 and Sec.296.9 have been met by 
other documented means, and that any official duties which might result 
in harm to or destruction of any Indian tribal religious or cultural 
site, as determined by the Federal land manager, have been the subject 
of consideration under Sec. 296.7.
    (d) Upon the written request of the Governor of any State, on behalf 
of the

[[Page 377]]

State or its educational institutions, the Federal land manager shall 
issue a permit, subject to the provisions of Sec. 296.5(b)(5), Sec.
296.7, Sec. 296.8(a) (3), (4), (5), (6), and (7), Sec.296.9, Sec.
296.10, Sec. 296.12, and Sec.296.13(a) to such Governor or to such 
designee as the Governor deems qualified to carry out the intent of the 
Act, for purposes of conducting archaeological research, excavating and/
or removing archaeological resources, and safeguarding and preserving 
any materials and data collected in a university, museum, or other 
scientific or educational institution approved by the Federal land 
manager.
    (e) Under other statutory, regulatory, or administrative authorities 
governing the use of public lands and Indian lands, authorizations may 
be required for activities which do not require a permit under this 
part. Any person wishing to conduct on public lands or Indian lands any 
activities related to but believed to fall outside the scope of this 
part should consult with the Federal land manager, for the purpose of 
determining whether any authorization is required, prior to beginning 
such activities.



Sec. 296.6  Application for permits and information collection.

    (a) Any person may apply to the appropriate Federal land manager for 
a permit to excavate and/or remove archaeological resources from public 
lands or Indian lands and to carry out activities associated with such 
excavation and/or removal.
    (b) Each application for a permit shall include:
    (1) The nature and extent of the work proposed, including how and 
why it is proposed to be conducted, proposed time of performance, 
locational maps, and proposed outlet for public written dissemination of 
the results.
    (2) The name and address of the individual(s) proposed to be 
responsible for conducting the work, institutional affiliation, if any, 
and evidence of education, training, and experience in accord with the 
minimal qualifications listed in Sec. 296.8(a).
    (3) The name and address of the individual(s), if different from the 
individual(s) named in paragraph (b)(2) of this section, proposed to be 
responsible for carrying out the terms and conditions of the permit.
    (4) Evidence of the applicant's ability to initiate, conduct, and 
complete the proposed work, including evidence of logistical support and 
laboratory facilities.
    (5) Where the application is for the excavation and/or removal of 
archaeological resources on public lands, the names of the university, 
museum, or other scientific or educational institution in which the 
applicant proposes to store all collections, and copies of records, 
data, photographs, and other documents derived from the proposed work. 
Applicants shall submit written certification, signed by an authorized 
official of the institution, of willingness to assume curatorial 
responsibility for the collections, records, data, photographs and other 
documents and to safeguard and preserve these materials as property of 
the United States.
    (6) Where the application is for the excavation and/or removal of 
archaeological resources on Indian lands, the name of the university, 
museum, or other scientific or educational institution in which the 
applicant proposes to store copies of records, data, photographs, and 
other documents derived from the proposed work, and all collections in 
the event the Indian owners do not wish to take custody or otherwise 
dispose of the archaeological resources. Applicants shall submit written 
certification, signed by an authorized official of the institution, or 
willingness to assume curatorial responsibility for the collections, if 
applicable, and/or the records, data, photographs, and other documents 
derived from the proposed work.
    (c) The Federal land manager may require additional information, 
pertinent to land management responsibilities, to be included in the 
application for permit and shall so inform the applicant.
    (d) Paperwork Reduction Act. The information collection requirement 
contained in Sec. 296.6 of these regulations has been approved by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned clearance number 1024-0037. The purpose of the information 
collection is to meet statutory and administrative requirements in the

[[Page 378]]

public interest. The information will be used to assist Federal land 
managers in determining that applicants for permits are qualified, that 
the work proposed would further archaeological knowledge, that 
archaeological resources and associated records and data will be 
properly preserved, and that the permitted activity would not conflict 
with the management of the public lands involved. Response to the 
information requirement is necessary in order for an applicant to obtain 
a benefit.



Sec. 296.7  Notification to Indian tribes of possible harm to, or destruction 
of, sites on public lands having religious or cultural importance.

    (a) If the issuance of a permit under this part may result in harm 
to, or destruction of, any Indian tribal religious or cultural site on 
public lands, as determined by the Federal land manager, at least 30 
days before issuing such a permit the Federal land manager shall notify 
any Indian tribe which may consider the site as having religious or 
cultural importance. Such notice shall not be deemed a disclosure to the 
public for purposes of section 9 of the Act.
    (1) Notice by the Federal land manager to any Indian tribe shall be 
sent to the chief executive officer or other designated official of the 
tribe. Indian tribes are encouraged to designate a tribal official to be 
the focal point for any notification and discussion between the tribe 
and the Federal land manager.
    (2) The Federal land manager may provide notice to any other Native 
American group that is known by the Federal land manager to consider 
sites potentially affected as being of religious or cultural importance.
    (3) Upon request during the 30-day period, the Federal land manager 
may meet with official representatives of any Indian tribe or group to 
discuss their interests, including ways to avoid or mitigate potential 
harm or destruction such as excluding sites from the permit area. Any 
mitigation measures which are adopted shall be incorporated into the 
terms and conditions of the permit under Sec. 296.9.
    (4) When the Federal land manager determines that a permit applied 
for under this part must be issued immediately because of an imminent 
threat of loss or destruction of an archaeological resource, the Federal 
land manager shall so notify the appropriate tribe.
    (b)(1) In order to identify sites of religious or cultural 
importance, the Federal land manager shall seek to identify all Indian 
tribes having aboriginal or historic ties to the lands under the Federal 
land manager's jurisdiction and seek to determine, from the chief 
executive officer or other designated official of any such tribe, the 
location and nature of specific sites of religious or cultural 
importance so that such information may be on file for land management 
purposes. Information on sites eligible for or included in the National 
Register of Historic Places may be withheld from public disclosure 
pursuant to section 304 of the Act of October 15, 1966, as amended (16 
U.S.C. 470w-3).
    (2) If the Federal land manager becomes aware of a Native American 
group that is not an Indian tribe as defined in this part but has 
aboriginal or historic ties to public lands under the Federal land 
manager's jurisdiction, the Federal land manager may seek to communicate 
with official representatives of that group to obtain information on 
sites they may consider to be of religious or cultural importance.
    (3) The Federal land manager may enter into agreement with any 
Indian tribe or other Native American group for determining locations 
for which such tribe or group wishes to receive notice under this 
section.
    (4) The Federal land manager should also seek to determine, in 
consultation with official representatives of Indian tribes or other 
Native American groups, what circumstances should be the subject of 
special notification to the tribe or group after a permit has been 
issued. Circumstances calling for notification might include the 
discovery of human remains. When circumstances for special notification 
have been determined by the Federal land manager, the Federal land 
manager will include a requirement in the terms and conditions of 
permits, under Sec. 296.9(c), for permittees to notify the Federal land 
manger immediately upon the occurrence of such circumstances.

[[Page 379]]

Following the permittee's notification, the Federal land manager will 
notify and consult with the tribe or group as appropriate. In cases 
involving Native American human remains and other ``cultural items'', as 
defined by NAGPRA, the Federal land manager is referred to NAGPRA and 
its implementing regulations.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26, 
1995]



Sec. 296.8  Issuance of permits.

    (a) The Federal land manager may issue a permit, for a specified 
period of time appropriate to the work to be conducted, upon determining 
that:
    (1) The applicant is appropriately qualified, as evidenced by 
training, education, and/or experience, and possesses demonstrable 
competence in archaeological theory and methods, and in collecting, 
handling, analyzing, evaluating, and reporting archaeological data, 
relative to the type and scope of the work proposed, and also meets the 
following minimum qualifications:
    (i) A graduate degree in anthropology or archaeology, or equivalent 
training and experience;
    (ii) The demonstrated ability to plan, equip, staff, organize, and 
supervise activity of the type and scope proposed;
    (iii) The demonstrated ability to carry research to completion, as 
evidenced by timely completion of theses, research reports, or similar 
documents;
    (iv) Completion of at least 16 months of professional experience 
and/or specialized training in archaeological field, laboratory, or 
library research, administration, or management, including at least 4 
months experience and/or specialized training in the kind of activity 
the individual proposes to conduct under authority of a permit; and
    (v) Applicants proposing to engage in historical archaeology should 
have had at least one year of experience in research concerning 
archaeological resources of the historic period. Applicants proposing to 
engage in prehistoric archaeology should have had at least one year of 
experience in research concerning archaeological resources of the 
prehistoric period.
    (2) The proposed work is to be undertaken for the purpose of 
furthering archaeological knowledge in the public interest, which may 
include but need not be limited to, scientific or scholarly research, 
and preservation of archaeological data;
    (3) The proposed work, including time, scope, location, and purpose, 
is not inconsistent with any management plan or established policy, 
objectives, or requirements applicable to the management of the public 
lands concerned;
    (4) Where the proposed work consists of archaeological survey and/or 
data recovery undertaken in accordance with other approved uses of the 
public lands or Indian lands, and the proposed work has been agreed to 
in writing by the Federal land manager pursuant to section 106 of the 
National Historic Preservation Act (16 U.S.C. 470f), paragraphs (a) (2) 
and (3) shall be deemed satisfied by the prior approval.
    (5) Written consent has been obtained, for work proposed on Indian 
lands, from the Indian landowner and the Indian tribe having 
jurisdiction over such lands;
    (6) Evidence is submitted to the Federal land manager that any 
university, museum, or other scientific or educational institution 
proposed in the application as the repository possesses adequate 
curatorial capability for safeguarding and preserving the archaeological 
resources and all associated records; and
    (7) The applicant has certified that, not later than 90 days after 
the date the final report is submitted to the Federal land manager, the 
following will be delivered to the appropriate official of the approved 
university, museum, or other scientific or educational institution, 
which shall be named in the permit:
    (i) All artifacts, samples, collections, and copies of records, 
data, photographs, and other documents resulting from work conducted 
under the requested permit where the permit is for the excavation and/or 
removal of archaeological resources from public lands.
    (ii) All artifacts, samples and collections resulting from work 
under the requested permit for which the custody or disposition is not 
undertaken by the

[[Page 380]]

Indian owners, and copies of records, data, photographs, and other 
documents resulting from work conducted under the requested permit, 
where the permit is for the excavation and/or removal of archaeological 
resources from Indian lands.
    (b) When the area of the proposed work would cross jurisdictional 
boundaries, so that permit applications must be submitted to more than 
one Federal land manager, the Federal land managers shall coordinate the 
review and evaluation of applications and the issuance of permits.

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]



Sec. 296.9  Terms and conditions of permits.

    (a) In all permits issued, the Federal land manager shall specify:
    (1) The nature and extent of work allowed and required under the 
permit, including the time, duration, scope, location, and purpose of 
the work;
    (2) The name of the individual(s) responsible for conducting the 
work and, if different, the name of the individual(s) responsible for 
carrying out the terms and conditions of the permit;
    (3) The name of any university, museum, or other scientific or 
educational institutions in which any collected materials and data shall 
be deposited; and
    (4) Reporting requirements.
    (b) The Federal land manager may specify such terms and conditions 
as deemed necessary, consistent with this part, to protect public safety 
and other values and/or resources, to secure work areas, to safeguard 
other legitimate land uses, and to limit activities incidental to work 
authorized under a permit.
    (c) The Federal land manager shall include in permits issued for 
archaeological work on Indian lands such terms and conditions as may be 
requested by the Indian landowner and the Indian tribe having 
jurisdiction over the lands, and for archaeological work on public lands 
shall include such terms and conditions as may have been developed 
pursuant to Sec. 296.7.
    (d) Initiation of work or other activities under the authority of a 
permit signifies the permittee's acceptance of the terms and conditions 
of the permit.
    (e) The permittee shall not be released from requirements of a 
permit until all outstanding obligations have been satisfied, whether or 
not the term of the permit has expired.
    (f) The permittee may request that the Federal land manager extend 
or modify a permit.
    (g) The permittee's performance under any permit issued for a period 
greater than 1 year shall be subject to review by the Federal land 
manager, at least annually.



Sec. 296.10  Suspension and revocation of permits.

    (a) Suspension or revocation for cause. (1) The Federal land manager 
may suspend a permit issued pursuant to this part upon determining that 
the permittee has failed to meet any of the terms and conditions of the 
permit or has violated any prohibition of the Act or Sec. 296.4. The 
Federal land manager shall provide written notice to the permittee of 
the suspension, the cause thereof, and the requirements which must be 
met before the suspension will be removed.
    (2) The Federal land manager may revoke a permit upon assessment of 
a civil penalty under Sec. 296.15 upon the permittee's conviction under 
section 6 of the Act, or upon determining that the permittee has failed 
after notice under this section to correct the situation which led to 
suspension of the permit.
    (b) Suspension or revocation for management purposes. The Federal 
land manager may suspend or revoke a permit, without liability to the 
United States, its agents, or employees, when continuation of work under 
the permit would be in conflict with management requirements not in 
effect when the permit was issued. The Federal land manager shall 
provide written notice to the permittee stating the nature of and basis 
for the suspension or revocation.

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]



Sec. 296.11  Appeals relating to permits.

    Any affected person may appeal permit issuance, denial of permit 
issuance, suspension, revocation, and terms and conditions of a permit

[[Page 381]]

through existing administrative appeal procedures, or through procedures 
which may be established by the Federal land manager pursuant to section 
10(b) of the Act and this part.



Sec. 296.12  Relationship to Section 106 of the National Historic Preservation Act.

    Issuance of a permit in accordance with the Act and this part does 
not constitute an undertaking requiring compliance with section 106 of 
the Act of October 15, 1966 (16 U.S.C. 470f). However, the mere issuance 
of such a permit does not excuse the Federal land manager from 
compliance with section 106 where otherwise required.



Sec. 296.13  Custody of archaeological resources.

    (a) Archaeological resources excavated or removed from the public 
lands remain the property of the United States.
    (b) Archaeological resources excavated or removed from Indian lands 
remain the property of the Indian or Indian tribe having rights of 
ownership over such resources.
    (c) The Sec. etary of the Interior may promulgate regulations 
providing for the exchange of archaeological resources among suitable 
universities, museums, or other scientific or educational institutions, 
for the ultimate disposition of archaeological resources, and for 
standards by which archaeological resources shall be preserved and 
maintained, when such resources have been excavated or removed from 
public lands and Indian lands.
    (d) In the absence of regulations referenced in paragraph (c) of 
this section, the Federal land manager may provide for the exchange of 
archaeological resources among suitable universities, museums, or other 
scientific or educational institutions, when such resources have been 
excavated or removed from public lands under the authority of a permit 
issued by the Federal land manager.
    (e) Notwithstanding the provisions of paragraphs (a) through (d) of 
this section, the Federal land manager will follow the procedures 
required by NAGPRA and its implementing regulations for determining the 
disposition of Native American human remains and other ``cultural 
items'', as defined by NAGPRA, that have been excavated, removed, or 
discovered on public lands.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26, 
1995]



Sec. 296.14  Determination of archaeological or commercial value and cost of restoration and repair.

    (a) Archaeological value. For purposes of this part, the 
archaeological value of any archaeological resource involved in a 
violation of the prohibitions in Sec. 296.4 of this part or conditions 
of a permit issued pursuant to this part shall be the value of the 
information associated with the archaeological resource. This value 
shall be appraised in terms of the costs of the retrieval of the 
scientific information which would have been obtainable prior to the 
violation. These costs may include, but need not be limited to, the cost 
of preparing a research design, conducting field work, carrying out 
laboratory analysis, and preparing reports as would be necessary to 
realize the information potential.
    (b) Commercial value. For purposes of this part, the commercial 
value of any archaeological resource involved in a violation of the 
prohibitions in Sec. 296.4 of this part or conditions of a permit 
issued pursuant to this part shall be its fair market value. Where the 
violation has resulted in damage to the archaeological resource, the 
fair market value should be determined using the condition of the 
archaeological resource prior to the violation, to the extent that its 
prior condition can be ascertained.
    (c) Cost of restoration and repair. For purposes of this part, the 
cost of restoration and repair of archaeological resources damaged as a 
result of a violation of prohibitions or conditions pursuant to this 
part, shall be the sum of the costs already incurred for emergency 
restoration or repair work, plus those costs projected to be necessary 
to complete restoration and repair, which may include, but need not be 
limited to, the costs of the following:
    (1) Reconstruction of the archaeological resource;
    (2) Stabilization of the archaeological resource;

[[Page 382]]

    (3) Ground contour reconstruction and surface stabilization;
    (4) Research necessary to carry out reconstruction or stabilization;
    (5) Physical barriers or other protective devices, necessitated by 
the disturbance of the archaeological resource, to protect it from 
further disturbance;
    (6) Examination and analysis of the archaeological resource 
including recording remaining archaeological information, where 
necessitated by disturbance, in order to salvage remaining values which 
cannot be otherwise conserved;
    (7) Reinterment of human remains in accordance with religious custom 
and State, local, or tribal law, where appropriate, as determined by the 
Federal land manager.
    (8) Preparation of reports relating to any of the above activities.



Sec. 296.15  Assessment of civil penalties.

    (a) The Federal land manager may assess a civil penalty against any 
person who has violated any prohibition contained in Sec. 296.4 or who 
has violated any term or condition included in a permit issued in 
accordance with the Act and this part.
    (b) Notice of violation. The Federal land manager shall serve a 
notice of violation upon any person believed to be subject to a civil 
penalty, either in person or by registered or certified mail (return 
receipt requested). The Federal land manager shall include in the 
notice:
    (1) A concise statement of the facts believed to show a violation;
    (2) A specific reference to the provision(s) of this part or to a 
permit issued pursuant to this part allegedly violated;
    (3) The amount of penalty proposed to be assessed, including any 
initial proposal to mitigate or remit where appropriate, or a statement 
that notice of a proposed penalty amount will be served after the 
damages associated with the alleged violation have been ascertained;
    (4) Notification of the right to file a petition for relief pursuant 
to paragraph (d) of this section, or to await the Federal land manager's 
notice of assessment, and to request a hearing in accordance with 
paragraph (g) of this section. The notice shall also inform the person 
of the right to seek judicial review of any final administrative 
decision assessing a civil penalty.
    (c) The person served with a notice of violation shall have 45 
calendar days from the date of its service (or the date of service of a 
proposed penalty amount, if later) in which to respond. During this time 
the person may:
    (1) Seek informal discussions with the Federal land manager;
    (2) File a petition for relief in accordance with paragraph (d) of 
this section;
    (3) Take no action and await the Federal land manager's notice of 
assessment;
    (4) Accept in writing or by payment the proposed penalty, or any 
mitigation or remission offered in the notice. Acceptance of the 
proposed penalty or mitigation or remission shall be deemed a waiver of 
the notice of assessment and of the right to request a hearing under 
paragraph (g) of this section.
    (d) Petition for relief. The person served with a notice of 
violation may request that no penalty be assessed or that the amount be 
reduced, by filing a petition for relief with the Federal land manager 
within 45 calendar days of the date of service of the notice of 
violation (or of a proposed penalty amount, if later). The petition 
shall be in writing and signed by the person served with the notice of 
violation. If the person is a corporation, the petition must be signed 
by an officer authorized to sign such documents. The petition shall set 
forth in full the legal or factual basis for the requested relief.
    (e) Assessment of penalty. (1) The Federal land manager shall assess 
a civil penalty upon expiration of the period for filing a petition for 
relief, upon completion of review of any petition filed, or upon 
completion of informal discussions, whichever is later.
    (2) The Federal land manager shall take into consideration all 
available information, including information provided pursuant to 
paragraphs (c) and (d) of this section or furnished upon further request 
by the Federal land manager.
    (3) If the facts warrant a conclusion that no violation has 
occurred, the

[[Page 383]]

Federal land manager shall so notify the person served with a notice of 
violation, and no penalty shall be assessed.
    (4) Where the facts warrant a conclusion that a violation has 
occurred, the Federal land manager shall determine a penalty amount in 
accordance with Sec. 296.16.
    (f) Notice of assessment. The Federal land manager shall notify the 
person served with a notice of violation of the penalty amount assessed 
by serving a written notice of assessment, either in person or by 
registered or certified mail (return receipt requested). The Federal 
land manager shall include in the notice of assessment:
    (1) The facts and conclusions from which it was determined that a 
violation did occur;
    (2) The basis in Sec. 296.16 for determining the penalty amount 
assessed and/or any offer to mitigate or remit the penalty; and
    (3) Notification of the right to request a hearing, including the 
procedures to be followed, and to seek judicial review of any final 
administrative decision assessing a civil penalty.
    (g) Hearings. (1) Except where the right to request a hearing is 
deemed to have been waived as provided in paragraph (c)(4) of this 
section, the person served with a notice of assessment may file a 
written request for a hearing with the adjudicatory body specified in 
the notice. The person shall enclose with the request for hearing a copy 
of the notice of assessment, and shall deliver the request as specified 
in the notice of assessment, personally or by registered or certified 
mail (return receipt requested).
    (2) Failure to deliver a written request for a hearing within 45 
days of the date of service of the notice of assessment shall be deemed 
a waiver of the right to a hearing.
    (3) Any hearing conducted pursuant to this section shall be held in 
accordance with 5 U.S.C. section 554. In any such hearing, the amount of 
civil penalty assessed shall be determined in accordance with this part, 
and shall not be limited by the amount assessed by the Federal land 
manager under paragraph (f) of this section or any offer of mitigation 
or remission made by the Federal land manager.
    (h) Final administrative decision. (1) Where the person served with 
a notice of violation has accepted the penalty pursuant to paragraph 
(c)(4) of this section, the notice of violation shall constitute the 
final administrative decision;
    (2) Where the person served with a notice of assessment has not 
filed a timely request for a hearing pursuant to paragraph (g)(1) of 
this section, the notice of assessment shall constitute the final 
administrative decision;
    (3) Where the person served with a notice of assessment has filed a 
timely request for a hearing pursuant to paragraph (g)(1) of this 
section, the decision resulting from the hearing or any applicable 
administrative appeal therefrom shall constitute the final 
administrative decision.
    (i) Payment of penalty. (1) The person assessed a civil penalty 
shall have 45 calendar days from the date of issuance of the final 
administrative decision in which to make full payment of the penalty 
assessed, unless a timely request for appeal has been filed with a 
United States District Court as provided in section 7(b)(1) of the Act.
    (2) Upon failure to pay the penalty, the Federal land manager may 
request the Attorney General to institute a civil action to collect the 
penalty in a United States District Court for any district in which the 
person assessed a civil penalty is found, resides, or transacts 
business. Where the Federal land manager is not represented by the 
Attorney General, a civil action may be initiated directly by the 
Federal land manager.
    (j) Other remedies not waived. Assessment of a penalty under this 
section shall not be deemed a waiver of the right to pursue other 
available legal or administrative remedies.



Sec. 296.16  Civil penalty amounts.

    (a) Maximum amount of penalty. (1) Where the person being assessed a 
civil penalty has not committed any previous violation of any 
prohibition in Sec. 296.4 or of any term or condition included in a 
permit issued pursuant to this part, the maximum amount of the

[[Page 384]]

penalty shall be the full cost of restoration and repair of 
archaeological resources damaged plus the archaeological or commercial 
value of archaeological resources destroyed or not recovered.
    (2) Where the person being assessed a civil penalty has committed 
any previous violation of any prohibition in Sec. 296.4 or of any term 
or condition included in a permit issued pursuant to this part, the 
maximum amount of the penalty shall be double the cost of restoration 
and repair plus double the archaeological or commercial value of 
archaeological resources destroyed or not recovered.
    (3) Violations limited to the removal of arrowheads located on the 
surface of the ground shall not be subject to the penalties prescribed 
in this section.
    (b) Determination of penalty amount, mitigation, and remission. The 
Federal land manager may assess a penalty amount less than the maximum 
amount of penalty and may offer to mitigate or remit the penalty.
    (1) Determination of the penalty amount and/or a proposal to 
mitigate or remit the penalty may be based upon any of the following 
factors:
    (i) Agreement by the person being assessed a civil penalty to return 
to the Federal land manager archaeological resources removed from public 
lands or Indian lands;
    (ii) Agreement by the person being assessed a civil penalty to 
assist the Federal land manager in activity to preserve, restore, or 
otherwise contribute to the protection and study of archaeological 
resources on public lands or Indian lands;
    (iii) Agreement by the person being assessed a civil penalty to 
provide information which will assist in the detection, prevention, or 
prosecution of violations of the Act or this part;
    (iv) Demonstration of hardship or inability to pay, provided that 
this factor shall only be considered when the person being assessed a 
civil penalty has not been found to have previously violated the 
regulations in this part;
    (v) Determination that the person being assessed a civil penalty did 
not willfully commit the violation;
    (vi) Determination that the proposed penalty would constitute 
excessive punishment under the circumstances;
    (vii) Determination of other mitigating circumstances appropriate to 
consideration in reaching a fair and expeditious assessment.
    (2) When the penalty is for a violation on Indian lands, the Federal 
land manager shall consult with and consider the interests of the Indian 
landowner and the Indian tribe having jurisdiction over the Indian lands 
prior to proposing to mitigate or remit the penalty.
    (3) When the penalty is for a violation which may have had an effect 
on a known Indian tribal religious or cultural site on public lands, the 
Federal land manager should consult with and consider the interests of 
the affected tribe(s) prior to proposing to mitigate or remit the 
penalty.

[49 FR 1027, Jan. 6, 1984, as amended at 52 FR 47721, Dec. 16, 1987]



Sec. 296.17  Other penalties and rewards.

    (a) Sec. ion 6 of the Act contains criminal prohibitions and 
provisions for criminal penalties. Sec. ion 8(b) of the Act provides that 
archaeological resources, vehicles, or equipment involved in a violation 
may be subject to forfeiture.
    (b) Sec. ion 8(a) of the Act provides for rewards to be made to 
persons who furnish information which leads to conviction for a criminal 
violation or to assessment of a civil penalty. The Federal land manager 
may certify to the Sec. etary of the Treasury that a person is eligible 
to receive payment. Officers and employees of Federal, State, or local 
government who furnish information or render service in the performance 
of their official duties, and persons who have provided information 
under Sec. 296.16(b)(1)(iii) shall not be certified eligible to receive 
payment of rewards.
    (c) In cases involving Indian lands, all civil penalty monies and 
any item forfeited under the provisions of this section shall be 
transferred to the appropriate Indian or Indian tribe.

[[Page 385]]



Sec. 296.18  Confidentiality of archaeological resource information.

    (a) The Federal land manager shall not make available to the public, 
under subchapter II of chapter 5 of title 5 of the United States Code or 
any other provision of law, information concerning the nature and 
location of any archaeological resource, with the following exceptions:
    (1) The Federal land manager may make information available, 
provided that the disclosure will further the purposes of the Act and 
this part, or the Act of June 27, 1960, as amended (16 U.S.C. 469-469c), 
without risking harm to the archaeological resource or to the site in 
which it is located.
    (2) The Federal land manager shall make information available, when 
the Governor of any State has submitted to the Federal land manager a 
written request for information, concerning the archaeological resources 
within the requesting Governor's State, provided that the request 
includes:
    (i) The specific archaeological resource or area about which 
information is sought;
    (ii) The purpose for which the information is sought; and
    (iii) The Governor's written commitment to adequately protect the 
confidentiality of the information.

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]



Sec. 296.19  Report.

    (a) Each Federal land manager, when requested by the Sec. etary of 
the Interior, will submit such information as is necessary to enable the 
Sec. etary to comply with section 13 of the Act and comprehensively 
report on activities carried out under provisions of the Act.
    (b) The Sec. etary of the Interior will include in the annual 
comprehensive report, submitted to the Committee on Interior and Insular 
Affairs of the United States House of Representatives and to the 
Committee on Energy and Natural Resources of the United States Senate 
under section 13 of the Act, information on public awareness programs 
submitted by each Federal land manager under Sec. 296.20(b). Such 
submittal will fulfill the Federal land manager's responsibility under 
section 10(c) of the Act to report on public awareness programs.
    (c) The comprehensive report by the Sec. etary of the Interior also 
will include information on the activities carried out under section 14 
of the Act. Each Federal land manager, when requested by the Sec. etary, 
will submit any available information on surveys and schedules and 
suspected violations in order to enable the Sec. etary to summarize in 
the comprehensive report actions taken pursuant to section 14 of the 
Act.

[60 FR 5260, 5261, Jan. 26, 1995]



Sec. 296.20  Public Awareness Programs.

    (a) Each Federal land manager will establish a program to increase 
public awareness of the need to protect important archaeological 
resources located on public and Indian lands. Educational activities 
required by section 10(c) of the Act should be incorporated into other 
current agency public education and interpretation programs where 
appropriate.
    (b) Each Federal land manager annually will submit to the Sec. etary 
of the Interior the relevant information on public awareness activities 
required by section 10(c) of the Act for inclusion in the comprehensive 
report on activities required by section 13 of the Act.

[60 FR 5260, 5261, Jan. 26, 1995]



Sec. 296.21  Surveys and Schedules.

    (a) The Sec. etaries of the Interior, Agriculture, and Defense and 
the Chairman of the Board of the Tennessee Valley Authority will develop 
plans for surveying lands under each agency's control to determine the 
nature and extent of archaeological resources pursuant to section 14(a) 
of the Act. Such activities should be consistent with Federal agency 
planning policies and other historic preservation program 
responsibilities required by 16 U.S.C. 470 et seq. Survey plans prepared 
under this section will be designed to comply with the purpose of the 
Act regarding the protection of archaeological resources.
    (b) The Sec. etaries of the Interior, Agriculture, and Defense and 
the

[[Page 386]]

Chairman of the Tennessee Valley Authority will prepare schedules for 
surveying lands under each agency's control that are likely to contain 
the most scientifically valuable archaeological resources pursuant to 
section 14(b) of the Act. Such schedules will be developed based on 
objectives and information identified in survey plans described in 
paragraph (a) of this section and implemented systematically to cover 
areas where the most scientifically valuable archaeological resources 
are likely to exist.
    (c) Guidance for the activities undertaken as part of paragraphs (a) 
through (b) of this section is provided by the Sec. etary of the 
Interior's Standards and Guidelines for Archeology and Historic 
Preservation.
    (d) Other Federal land managing agencies are encouraged to develop 
plans for surveying lands under their jurisdictions and prepare 
schedules for surveying to improve protection and management of 
archaeological resources.
    (e) The Sec. etaries of the Interior, Agriculture, and Defense and 
the Chairman of the Tennessee Valley Authority will develop a system for 
documenting and reporting suspected violations of the various provisions 
of the Act. This system will reference a set of procedures for use by 
officers, employees, or agents of Federal agencies to assist them in 
recognizing violations, documenting relevant evidence, and reporting 
assembled information to the appropriate authorities. Methods employed 
to document and report such violations should be compatible with 
existing agency reporting systems for documenting violations of other 
appropriate Federal statutes and regulations. Summary information to be 
included in the Sec. etary's comprehensive report will be based upon the 
system developed by each Federal land manager for documenting suspected 
violations.

[60 FR 5260, 5261, Jan. 26, 1995]



PART 297_WILD AND SCENIC RIVERS--Table of Contents




                   Subpart A_Water Resources Projects

Sec. 
297.1 General.
297.2 Scope and application.
297.3 Definitions.
297.4 Requirements for Federal agencies.
297.5 Determination.
297.6 Environmental analysis requirements.

Subpart B [Reserved]

    Authority: 16 U.S.C. 551, 1278(c), 1281(d).

    Source: 49 FR 1902, Jan. 16, 1984, unless otherwise noted. Correctly 
designated at 49 FR 6896, Feb. 24, 1984.



                   Subpart A_Water Resources Projects



Sec. 297.1  General.

    Sec. ion 7 of the Wild and Scenic Rivers Act (16 U.S.C. 1278), as 
amended, provides for the protection of the free-flowing, scenic, and 
natural values of rivers designated as components or potential 
components of the National Wild and Scenic Rivers System from the 
effects of construction of any water resources project.



Sec. 297.2  Scope and application.

    These rules apply to Federal assistance in the construction of water 
resources projects affecting Wild and Scenic Rivers or Study Rivers 
administered in whole or part by the Sec. etary of Agriculture.



Sec. 297.3  Definitions.

    Act means the Wild and Scenic Rivers Act (82 Stat. 906, as amended; 
16 U.S.C. 1271-1288).
    Construction means any action carried on with Federal assistance 
affecting the free-flowing characteristics or the scenic or natural 
values of a Wild and Scenic River or Study River.
    Federal assistance means any assistance by an authorizing agency 
including, but not limited to, the following:
    (a) A license, permit, preliminary permit, or other authorization 
granted by the Federal Energy Regulatory Commission pursuant to sections 
4(e) and 4(f) of the Federal Power Act, 16 U.S.C. 797;

[[Page 387]]

    (b) A license, permit, or other authorization granted by the Corps 
of Engineers, Department of the Army, pursuant to the Rivers and Harbors 
Act of 1899 (33 U.S.C. 401 et seq.), and section 404 of the Clean Water 
Act (33 U.S.C. 1344); and,
    (c) Any other license, permit, or authorization which may be 
required by an agency or Department of the Federal Government before, 
during, or after construction of a water resources project.
    Free-flowing is defined by section 16(b) of the Act as ``existing or 
flowing in natural condition without impoundment, diversion, 
straightening, riprapping, or other modification of the waterway'' (16 
U.S.C. 1287(b)).
    Study period means the time during which a river is being studied as 
a potential component of the Wild and Scenic Rivers System and such 
additional time as provided in section 7(b)(ii) of the Act not to exceed 
3 additional years during which a report recommending designation is 
before the Congress, or such additional time as may be provided by 
statute.
    Study river means a river and the adjacent area within one quarter 
mile of the banks of the river which is designated for study as a 
potential addition to the National Wild and Scenic Rivers System 
pursuant to section 5(a) of the Act.
    Water resources project means any dam, water conduit, reservoir, 
powerhouse, transmission line, or other project works under the Federal 
Power Act (41 Stat. 1063) as amended, or other construction of 
developments which would affect the free-flowing characteristics of a 
Wild and Scenic River or Study River.
    Wild and scenic river means a river and the adjacent area within the 
boundaries of a component of the National Wild and Scenic Rivers System 
pursuant to section 3(a) or 2(a)(ii) of the Act.



Sec. 297.4  Requirements for Federal agencies.

    (a) No license, permit, or other authorization can be issued for a 
Federally assisted water resources project on any portion of a Wild and 
Scenic River or Study River nor can appropriations be requested to begin 
construction of such projects, without prior notice to the Sec. etary of 
Agriculture, and a determination in accordance with section 7 of the 
Act.
    (b) As soon as practicable, but no less than 60 days prior to the 
date of proposed action, the Federal agency shall provide a notice of 
intent to issue such license, permit, or other authorization to the 
Chief, Forest Service, U.S. Department of Agriculture, P.O. Box 2417, 
Washington, DC 20013. The Sec. etary will, to the extent possible, give 
expedited consideration to a notice of intent for a project needed to 
address an emergency situation.
    (c) The notice shall include the following information:
    (1) Name and location of affected river;
    (2) Location of the project;
    (3) Nature of the permit or other authorization proposed for 
issuance;
    (4) A description of the proposed activity; and
    (5) Any relevant information, such as plans, maps, and environmental 
studies, assessments, or environmental impact statements.



Sec. 297.5  Determination.

    (a) The Sec. etary of Agriculture will consent to the issuance of any 
Federal license, permit, or other authorization if, as a finding of 
fact, it is determined that:
    (1) The water resources project will not have a direct and adverse 
effect on the values for which a Wild and Scenic River or Study River 
was designated, when any portion of the project is within the boundaries 
of said river, or;
    (2) The effects of the water resources project will neither invade 
nor unreasonably diminish the scenic, recreational, and fish wildlife 
values of a Wild and Scenic River, when any portion of the project is 
located above, below, or outside the Wild and Scenic River, or;
    (3) The effects of the water resources project will neither invade 
nor diminish the scenic, recreational, and fish and wildlife values of a 
Study River when the project is located above, below, or outside the 
Study River during the study period.

[[Page 388]]

    (b) If consent is denied, the Sec. etary may recommend measures to 
eliminate adverse effects, and the authorizing agencies may submit 
revised plans for consideration.



Sec. 297.6  Environmental analysis requirements.

    (a) The determination of the effects of a proposed water resources 
project shall be made in compliance with the National Environmental 
Policy Act (NEPA). To the extent possible, authorizing agencies should 
ensure that any environmental studies, assessments, or environmental 
impact statements prepared for a water resources project adequately 
address the environmental effects on resources protected by the Wild and 
Scenic Rivers Act, and that the Department of Agriculture is apprised of 
ongoing analyses so as to facilitate coordination and identification of 
Wild and Scenic River related issues.
    (b) To the extent practicable, impacts on Wild and Scenic River 
values will be considered in the context of other review procedures 
provided by law. Authorizing agencies are encouraged to consult with the 
Forest Service in order to identify measures which could eliminate any 
direct and adverse effects, thereby increasing the likelihood of 
securing consent.

Subpart B [Reserved]

                        PARTS 298	299 [RESERVED]


[[Page 389]]



                              FINDING AIDS




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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 391]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2007)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100-199)
        II  Office of Management and Budget Circulars and Guidance 
                (200-299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Part 376)
        VI  Department of State (Part 601)
      VIII  Department of Veterans Affairs (Part 801)
        IX  Department of Energy (Part 901)
        XI  Department of Defense (Part 1125)
       XIV  Department of the Interior (Part 1400)
        XV  Environmental Protection Agency (Part 1532)
     XVIII  National Aeronautics and Space Administration (Part 
                1880 )
      XXII  Corporation for National and Community Service (Part 
                2200)
       XXV  National Science Foundation (Part 2520)
      XXVI  National Archives and Records Administration (Part 
                2600)
    XXVIII  Department of Justice (Part 2867)
     XXXII  National Endowment for the Arts (Part 3254)
    XXXIII  National Endowment for the Humanities (Part 3369)
      XXXV  Export-Import Bank of the United States (Part 3513)
    XXXVII  Peace Corps (Part 3700)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

[[Page 392]]

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
        LV  National Endowment for the Arts (Part 6501)
       LVI  National Endowment for the Humanities (Part 6601)
      LVII  General Services Administration (Part 6701)

[[Page 393]]

     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
     LXIVV  Merit Systems Protection Board (Part 7401)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
     LXVII  Institute of Museum and Library Services (Part 7701)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
    LXXIII  Department of Agriculture (Part 8301)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Part 
                9701)
      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Part 9901)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)

[[Page 394]]

      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]

[[Page 395]]

      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Part 1800)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)

[[Page 396]]

        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board, Department of 
                Commerce (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board, 
                Department of Commerce (Parts 500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)

[[Page 397]]

        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

[[Page 398]]

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

[[Page 399]]

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

[[Page 400]]

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)

[[Page 401]]

        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)

[[Page 402]]

        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)

[[Page 403]]

        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Part 1501)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)

[[Page 404]]

        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)

[[Page 405]]

        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)

[[Page 406]]

      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  United States Agency for International Development 
                (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)

[[Page 407]]

        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees' 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  [Reserved]
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)

[[Page 408]]

        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 409]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2007)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 410]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 411]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, II
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   5, LIV; 40, I, IV, VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II

[[Page 412]]

  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102

[[Page 413]]

  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Defense Acquisition Regulations System          48, 2
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V; 42, I
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V; 42, I
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
   Archives and Records Administration
[[Page 414]]

Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I, XI; 40, 
                                                  IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50

[[Page 415]]

  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
  Copyright Royalty Board                         37, III
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52

[[Page 416]]

Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII

[[Page 417]]

Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 419]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000'' published in 
11 separate volumes.

                                  2001

36 CFR
                                                                   66 FR
                                                                    Page
Chapter II
211.16--211.18 (Subpart B) Removed.................................43779
212 Heading revised.................................................3216
212.1 Amended.......................................................3216
212.2 Heading, (a), (b) and (c) amended.............................3216
    (a) revised; (c) removed........................................3217
212.4 (a) and (b) amended...........................................3216
212.5 (a) amended; (b) added........................................3217
212.6 (b) and (c) amended...........................................3217
212.7 (a) amended...................................................3217
212.10 Amended......................................................3217
212.13 Removed......................................................3218
212.20 Heading and (a) revised......................................3218
219.35 Appendix A added.............................................1865
    (b) revised; interim...........................................27554
242 Emergency closures and adjustments........32750, 33642, 55092, 56611
242 Temporary regulations...................................54931, 54934
242.1--242.9 (Subpart A) Revised; interim..........................31536
242.10--242.21 (Subpart B) Revised; interim........................31536
242.22 Revised.....................................................31543
242.23 Revised.....................................................31543
242.24 (a)(2) revised..............................................10145
    (a) introductory text and (3) correctly added; (a)(2) 
correctly revised; CFR correction..................................10582
    (a)(1) revised; eff. 7-1-01....................................33748
    (a) introductory text revised..................................31544
242.25 (c) revised; eff. 3-1-01 through 6-30-01....................10148
    Added; eff. 7-1-01.............................................33755
242.26 Added; eff. 7-1-01 through 6-30-02..........................33759
242.27 Added; eff. 3-1-01 through 2-28-02..........................10148
242.28 Added; eff. 3-1-01 through 2-28-02..........................10148
261.1 (a)(1) and (3) amended........................................3218
261.2 Amended.......................................................3218
261.10 (d)(2) amended...............................................3218
261.12 Heading amended..............................................3218
261.13 Introductory text amended....................................3218
261.50 (b) and (f) amended..........................................3218
261.54 Heading amended..............................................3218
261.56 Amended......................................................3218
294.1--294.9 (Subpart A) Added......................................3272
    Regulation at 66 FR 3272 eff. date delayed......................8899
294.1 Authority citation removed....................................3272
294.2 Authority citation removed....................................3272
294.10--294.14 (Subpart B) Added....................................3272
    Regulation at 66 FR 3272 eff. date delayed......................8899
295 Heading revised.................................................3218
295.1 Amended.......................................................3218
295.2 Heading amended...............................................3218
295.5 Heading amended...............................................3218

                                  2002

36 CFR
                                                                   67 FR
                                                                    Page
Chapter II
219.35 (b) revised; interim........................................35434

[[Page 420]]

223.50 (e) revised.................................................70169
223.53 Added.......................................................70169
242 Temporary regulations......................8888, 42185, 54572, 58695
    Emergency closures and adjustments.......................8891, 50597
242.1--242.9 (Subpart A) Revised...................................30563
242.10--242.21 (Subpart B) Revised.................................30563
242.22 Revised.....................................................30570
242.23 Revised.....................................................30570
242.24 (a)(2) revised...............................................5893
    (a) introductory text revised..................................30570
    (a)(1) revised.................................................43714
242.25 Revised.....................................................43722
242.26 Added; eff. through 6-30-03.................................43726
242.27 Added; eff. 3-9-02 through 2-28-03...........................5896
    (i)(11)(xii) and (xiii) correctly added........................36810
242.28 Added; eff. 3-9-02 through 2-28-03...........................5896

                                  2003

36 CFR
                                                                   68 FR
                                                                    Page
Chapter II
215 Revised; eff. in part 7-7-03...................................33595
219.35 (d) revised; interim........................................53297
230 Authority citation revised.....................................34314
230.30-230.46 (Subpart C) Added; interim...........................34314
242 Temporary regulations....................................7298, 38512
    Policy Statement...............................................33403
    Seasonal adjustments.............................55006, 67595, 70712
242.6 (b) revised...................................................7704
    Regulation at 68 FR 7704 confirmed.............................23035
242.11 (b)(1) amended...............................................7704
    Regulation at 68 FR 7704 confirmed.............................23035
242.24 (a)(2) and (3) revised.......................................7279
242.25 Revised.....................................................38475
242.26 Added; eff. through 6-30-04.................................38479
242.27 Added; eff. through 2-29-04..................................7282
    (c)(11), (12) and (13) revised.................................22313
242.28 Added; eff. through 2-29-04..................................7282
251 Techincal correction...........................................37205
251.120--251.126 (Subpart E) Added; eff. 7-11-03...................35121
294.14 (d) revised.................................................75146

                                  2004

36 CFR
                                                                   69 FR
                                                                    Page
Chapter II
215.3 (a) and (b) revised; interim..................................1533
215.4 (f) added; interim............................................1533
215.12 (i) added; interim...........................................1533
218 Added; interim..................................................1533
219.35 Appendix B added............................................58057
223.50 Regulation at 67 FR 70169 confirmed............................33
223.53 Regulation at 67 FR 70169 confirmed; (b) through (e) 
        revised.......................................................33
223.112 Existing text designated as (a); (b) added; interim........18814
228.4 (a) revised; interim.........................................41430
242 Seasonal adjustments...............28847, 33307, 36016, 46999, 70074
242.4 Amended......................................................60962
242.11 (b)(1) revised..............................................60962
242.24 (a)(2) and (3) revised.......................................5022
242.25 Revised.....................................................40185
    (a) amended; (j)(6) and (7) revised............................53012
    (a) amended....................................................60962
242.26 Added; eff. 7-1-04 through 6-30-05..........................40189
    (n)(10) table amended..........................................53012
242.27 Added; eff. 3-1-04 through 3-31-05...........................5025
242.28 Added; eff. 3-1-04 through 3-31-05...........................5025
251.50--251.65 (Subpart B) Authority citation revised..............41964
251.50 Revised.....................................................41964
251.51 Amended.....................................................41965
261 Authority citation revised.....................................41965
261.2 Amended......................................................41965
261.10 (a) revised.................................................41965
261.55 Heading and introductory text revised.......................41965
292.16 (e)(2)(ii) revised..........................................55094
295 Authority citation revised.....................................41966
295 Heading revised................................................41966

[[Page 421]]

                                  2005

36 CFR
                                                                   70 FR
                                                                    Page
Chapter II
212 Heading revised; authority citation removed; Subpart A 
        designated.................................................68287
212.1--212.21 (Subpart A) Designated; authority citation added.....68287
212.1 Amended......................................................68287
212.2 (a) revised; (b) redesignated as (d); new (b) and (c) added 
                                                                   68288
212.5 (a)(1), (2)(ii), (c) introductory text heading and (d) 
        introductory text heading revised..........................68288
212.7 Heading and (a) revised......................................68288
212.10 (d) revised.................................................68288
212.20 Removed.....................................................68288
212.50--212.57 (Subpart B) Added...................................68288
212.80--212.81 (Subpart C) Added...................................68290
219.1--219.36 (Subpart A) Removed...................................1023
219.1--219.16 (Subpart A) Added.....................................1055
223.52 (b)(1)(i) revised; interim..................................37269
228.4 (a) revised; eff. 7-6-05.....................................32731
242 Seasonal adjustments......................35537, 36033, 46768, 50978
242.3 Revised......................................................76407
242.24 (a)(2) and (3) revised......................................13381
    (a)(1) revised.................................................36272
242.25 Revised.....................................................36282
242.26 Added; eff. through 6-30-06.................................36282
242.27 Added; eff. through 3-31-06.................................13384
242.28 Added; eff. through 3-31-06.................................13384
251 Authority citation revised.....................................70498
251.50--251.65 (Subpart B) Authority citation revised..............68290
251.51 Amended.....................................................68290
251.53 (k) revised.................................................70498
261.2 Amended...............................................68290, 70498
261.13 Redesignated as 261.15; new 261.13 added....................68291
261.14 Redesignated as 261.16; new 261.14 added....................68291
261.15 Redesignated as 261.17; new 261.15 redesignated from 261.13
                                                                   68291
    Revised........................................................70498
261.16 Redesignated as 261.18; new 261.16 redesignated from 261.14
                                                                   68291
261.17 Redesignated as 261.19; new 261.17 redesignated from 261.15
                                                                   68291
261.18 Redesignated as 261.20; new 261.18 redesignated from 261.16
                                                                   68291
261.19 Redesignated as 261.21; new 261.19 redesignated from 261.17
                                                                   68291
261.20 Redesignated as 261.22; new 261.20 redesignated from 261.18
                                                                   68291
261.21 Redesignated as 261.23; new 261.21 redesignated from 261.19
                                                                   68291
261.22 Redesignated from 261.20....................................68291
261.23 Redesignated from 261.21....................................68291
261.55 Introductory text revised...................................68291
291 Removed........................................................70498
294.10--294.18 (Subpart B) Revised.................................25661
295 Removed........................................................68291

                                  2006

36 CFR
                                                                   71 FR
                                                                    Page
Chapter II
219.14 (d)(1) revised..............................................10838
223.8 (a) revised; interim...........................................525
223.41 Revised.......................................................523
    Correctly revised..............................................11510
223.52 (b)(2) revised...............................................3411
223.63 Revised.......................................................523
    Correctly revised..............................................11510
223.82 (b) introductory text revised.................................523
    (b) introductory text correctly revised........................11510
223.83 (a)(16) and (17) revised......................................523
    (a)(16) and (17)(i) correctly revised..........................11510
223.84 Heading revised...............................................523
    Heading correctly revised......................................11510
223.85 (b) revised; (c) added; interim.............................34826
242 Seasonal adjustments......................35541, 43368, 51758, 75883
242.3 (b)(5) added.................................................49999
242.22 (a)(10) amended; (a)(11) added..............................46401
    Regulation at 71 FR 46401 withdrawn............................56357
242.24 (a)(2) and (3) revised......................................15573

[[Page 422]]

    (a)(1) revised.................................................37647
242.25 Revised.....................................................37654
242.26 Added; eff. 6-1-06 through 6-30-07..........................37658
242.27 Added; eff. 4-1-06 through 3-31-07..........................15577
242.28 Added; eff. 4-1-06 through 3-31-07..........................15577
251 Authority citation revised.....................................16621
    Policy statement...............................................16622
251.50--251.65 (Subpart B) Authority citation revised...............8913
251.51 Amended...............................................8913, 16621
251.57 (a)(3) and (i) added........................................16621
251.58 Added........................................................8913

                                  2007

    (Regulations published from January 1, 2007 through July 1, 2007)

36 CFR
                                                                   72 FR
                                                                    Page
Chapter II
223.138 (b)(7)(i)(C) and (D) revised; (b)(7)(i)(E) and (8) removed
                                                                   31438
228.105 (a)(1) revised.............................................10328
    Regulation at 72 FR 10328 eff. date corrected..................10608
228.107 (c) revised................................................10328
    Regulation at 72 FR 10328 eff. date corrected..................10608
228.100--228.116 (Subpart E) Appendix A removed....................10328
    Regulation at 72 FR 10328 eff. date corrected..................10608
242.23 Revised.....................................................25697
242.24 (a)(2) and (3) revised......................................12679
242.27 Added; eff. 4-1-07 through 3-31-08..........................12683
242.28 Added; eff. 4-1-07 through 3-31-08..........................12683


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