[Title 36 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2020 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 36
Parks, Forests, and Public Property
________________________
Parts 200 to 299
Revised as of July 1, 2020
Containing a codification of documents of general
applicability and future effect
As of July 1, 2020
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[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........................ 513
Alphabetical List of Agencies Appearing in the CFR...... 533
List of CFR Sections Affected........................... 543
[[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
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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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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
July 1, 2020
[[Page ix]]
THIS TITLE
Title 36--Parks, Forests, and Public Property is composed of three
volumes. The parts in these volumes are arranged in the following order:
Parts 1-199, parts 200-299, and part 300 to end. The contents of these
volumes represent all current regulations codified under this title of
the CFR as of July 1, 2020.
For this volume, Gabrielle E. Burns was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY
(This book contains parts 200 to 299)
--------------------------------------------------------------------
Part
chapter ii--Forest Service, Department of Agriculture....... 200
Abbreviations Used in This Chapter:
A.O. = Administrative order. P.L.O. = Public Land order.
[[Page 3]]
CHAPTER II--FOREST SERVICE, DEPARTMENT OF AGRICULTURE
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Part Page
200 Organization, functions, and procedures..... 5
211 Administration.............................. 13
212 Travel management........................... 14
213 Administration of lands under Title III of
the Bankhead-Jones Farm Tenant Act by
the Forest Service...................... 28
214 Postdecisional administrative review process
for occupancy or use of National Forest
System lands and resources.............. 29
215
[Reserved]
216 Public notice and comment for standards,
criteria, and guidance applicable to
Forest Service programs................. 38
218 Project-level predecisional administrative
review process.......................... 39
219 Planning.................................... 51
220 National Environmental Policy Act (NEPA)
compliance.............................. 80
221 Timber management planning.................. 92
222 Range management............................ 92
223 Sale and disposal of National Forest System
timber, special forest products, and
forest botanical products............... 111
228 Minerals.................................... 185
230 State and private forestry assistance....... 218
241 Fish and wildlife........................... 226
242 Subsistence management regulations for
public lands in Alaska.................. 229
251 Land uses................................... 342
254 Landownership adjustments................... 382
261 Prohibitions................................ 400
262 Law enforcement support activities.......... 414
264 Property management......................... 418
271 Use of ``Smokey Bear'' symbol............... 419
272 Use of ``Woodsy Owl'' symbol................ 420
[[Page 4]]
290 Cave resources management................... 422
291 Paleontological resources preservation...... 424
292 National recreation areas................... 439
293 Wilderness--primitive areas................. 465
294 Special areas............................... 470
296 Protection of archaeological resources:
Uniform regulations..................... 495
297 Wild and scenic rivers...................... 508
298-299
[Reserved]
[[Page 5]]
PART 200_ORGANIZATION, FUNCTIONS, AND PROCEDURES--Table of Contents
Subpart A_Organization
Sec.
200.1 Central organization
200.2 Field organization.
Subpart B_Functions and Procedures
200.3 Forest Service functions.
200.4 Administrative issuances.
200.5 Indexes.
200.6 Information available; inspection, copying, and charges.
200.7 Request for records.
200.8 Appeals.
200.12 Land status and title records.
Authority: 5 U.S.C. 552; 7 U.S.C. 6706; 16 U.S.C. 472, 521, 1603,
and 2101 et seq.
Subpart A_Organization
Sec. 200.1 Central organization.
(a) Central office. The national office of the Forest Service, U.S.
Department of Agriculture, is located in the Auditors Building, 14th and
Independence Avenue, SW. Washington, DC. It consists of the Office of
the Chief and Associate Chief, and a Deputy Chief for each of the
following five activities: Programs and Legislation, National Forest
System, Research, State and Private Forestry, and Administration. All
communications should be addressed to the Forest Service, Department of
Agriculture, P.O. Box 96090, Washington, DC 20090-6090.
(b) Chief of the Forest Service. The Chief of the Forest Service,
under the direction of the Secretary of Agriculture, administers the
formulation, direction, and execution of Forest Service policies,
programs, and activities.
(c) Deputy Chiefs. The major activities of the Forest Service at the
headquarters level are divided into five Deputy Chief areas with each
further divided into staff units. The programs and functions of staff
units are directed by staff directors and may be subdivided into groups
headed by group leaders. A description of the major activities of each
Deputy Chief follows:
(1) Programs and legislation. Overall planning of Forest Service
programs, policy formulation and analysis, budgeting, legislative
development, reporting and liaison, and environmental coordination.
(2) National Forest System. Administration of National Forest System
lands and management of natural resources within the principle of
multiple use and sustained yield. Management includes planning,
coordinating, and directing the national resource programs of timber,
range, wildlife, recreation, watershed, and mineral areas; and support
activities of fire, engineering, lands, aviation, and computer systems.
The National Forest System includes:
155 Proclaimed or designated National Forests
20 National Grasslands
51 Purchase Units
8 Land Utilization Projects
20 Research and Experimental Areas
33 Other Areas
The first four classifications listed above are administered as 121
Forest Service Administrative Units, each headed by a Forest Supervisor.
National Recreation Areas, National Forest Wildernesses, and Primitive
Areas are included in the above land classifications.
(3) Research. Plan, coordinate, and direct research programs to
learn how man can best use and protect the plant, animal, soil, water,
and esthetic resources of nonagricultural rural and exurban lands for
his well-being and enjoyment. These programs include research on timber
management, forest products and engineering, forest economics and
marketing, watersheds, wildlife and fish habitat, range, recreation and
other environmental concerns, forest insects and disease, forest fire
and atmospheric science. Plans and directs international forestry
activities and disseminates forestry research information throughout the
world.
(4) State and private forestry. Coordinate and provide leadership
for intergovernmental resource programs for technical and financial
assistance to improve and protect State and privately-owned forest
resources and urban and community forestry. Carries out this action
through cooperative forestry, area planning and development, cooperative
fire protection, forest insect and disease management, cooperative tree
planting, and overall
[[Page 6]]
Forest Service participation in rural development and environmental
concern, including civil defense and other emergency activities.
(5) Administration. Provide support for Forest Service programs
through management improvement, fiscal and accounting, administrative
services, personnel management, manpower and youth conservation,
antipoverty programs, communication and electronics, internal review
system, external audits, coordination of civil rights activities, public
information, and Service-wide management of systems and computer
applications.
[41 FR 24350, June 16, 1976, as amended at 42 FR 32230, June 24, 1977;
43 FR 27190, June 23, 1978; 44 FR 5660, Jan. 29, 1979; 62 FR 33366, June
19, 1997]
Sec. 200.2 Field organization.
The field organization of the Forest Service consists of regions,
stations, and areas as described below:
(a) Regions of the National Forest System. For the purpose of
managing the lands administered by the Forest Service, the United States
is divided into nine geographic regions of the National Forest System.
Each region has a headquarters office and is supervised by a Regional
Forester who is responsible to the Chief for the activities assigned to
that region. Within each region are located national forests and other
lands of the Forest Service.
(1) National Forests. Each Forest has a headquarters office and is
supervised by a Forest Supervisor who is responsible to the Regional
Forester. Two or more proclaimed or designated National Forests, or all
of the Forests in a State, may be combined into one Forest Service
Administrative Unit headed by one Forest Supervisor. Each Forest is
divided into Ranger Districts. The Alaska Region is composed of two
National Forests without Ranger Districts; with one Forest divided into
three areas, each administered by a Forest Supervisor.
(2) Ranger districts. Each district may include a portion of a
national forest, a national grassland or portion thereof, a national
recreation area, a wilderness or primitive area, and other lands
administered by the Forest Service. Each district has a headquarters
office and is supervised by a District Ranger (or Area Ranger in some
cases) who is responsible to the Forest Supervisor.
(b) Forest and rangeland research coordination. The field research
program is coordinated by six research stations, the national Forest
Products Laboratory, and the International Institute of Tropical
Forestry. Each has a headquarters office and a Director who is
responsible to the Chief for all research activities within a
geographical area of the United States or its territories. Scientists
are based at Research Work Units with laboratories located in 36 lower
States, Hawaii, Alaska, and Puerto Rico. Scientists primarily conduct
their work within a given geographical area, but due to the integrated
and cooperative nature of the research program, they make work
nationwide and internationally.
(c) State and private forestry cooperation. Field level cooperation
between the Forest Service, States, and the private sector on forestry
activities is accomplished by the Northeastern Area State and Private
Forestry for the Northeastern States; and by the National Forest
Regional Offices in the Southeastern and Western States. The
Northeastern Area is supervised by an Area Director who is responsible
to the Chief for State and private forestry activities within the Area.
Regional Foresters in Regions 1 through 8 and Region 10 are responsible
for State and private forestry activities within those regions.
(d) International Institute of Tropical Forestry. The Institute is
managed by a Director who is the senior Forest Service official in
Puerto Rico. The Director is responsible to the Chief for planning and
directing research, science and technology exchange, technical
assistance to the Commonwealth of Puerto Rico, and international
cooperation on natural resources concerning tropical forestry.
(e) Field addresses. The addresses of Regional Foresters, Station
Directors, and Area Directors are given below. Under each Regional
Office address is a list of National Forest Administrative Units by
States with locations of Forest Supervisor headquarters. Headquarters
locations for Ranger Districts, National Grasslands, and National
[[Page 7]]
Recreation Areas are not listed but may be obtained from Forest
Supervisors or Regional Foresters.
National Forests by Region
------------------------------------------------------------------------
Headquarters
State in which forest is National forest location of
located administration unit forest
supervisor
------------------------------------------------------------------------
Region 1, Northern Region
(Regional Forester, Federal
Bldg., P.O. Box 7669,
Missoula, MT 59807):
Idaho........................ Clearwater........... Orofino.
Idaho Panhandle Coeur d'Alene.
National Forests
(Kaniksu-Coeur
'dAlene-St. Joe.
Nezperce............. Grangeville.
Montana...................... Beaverhead........... Dillon.
Bitterroot........... Hamilton.
Custer............... Billings.
Deerlodge............ Butte.
Flathead............. Kalispell.
Gallatin............. Bozeman.
Helena............... Helena.
Kootenai............. Libby.
Lewis and Clark...... Great Falls.
Lolo................. Missoula.
Region 2, Rocky Mountain Region
(Regional Forester, 740 Simms
Street, P. O. Box 25127,
Lakewood, CO 80225):
Colorado..................... Arapaho-Roosevelt.... Fort Collins.
Grand Mesa- Delta.
Uncompahgre and
Gunnison.
Pike-San Isabel...... Pueblo.
San Juan-Rio Grande.. Monte Vista.
White River.......... Glenwood
Springs.
Nebraska..................... Nebraska (Samuel R. Chadron.
McKelvie).
South Dakota................. Black Hills.......... Custer.
Wyoming...................... Bighorn.............. Sheridan.
Medicine Bow-Routt... Laramie.
Shoshone............. Cody.
Region 3, Southwestern Region
(Regional Forester, Federal
Bldg., 517 Gold Ave. SW.,
Albuquerque, NM 87102):
Arizona...................... Apache-Sitgreaves.... Springerville.
Coconino............. Flagstaff.
Coronado............. Tucson.
Kaibab............... Williams.
Prescott............. Prescott.
Tonto................ Phoenix.
New Mexico................... Carson............... Taos.
Cibola............... Albuquerque.
Gila................. Silver City.
Lincoln.............. Alamogordo.
Santa Fe............. Santa Fe.
Region 4, Intermountain Region
(Regional Forester, 324 25th
St., Ogden, UT 84401):
Idaho........................ Boise................ Boise.
Caribou (Cache-Idaho Pocatello.
portion).
Challis.............. Challis.
Payette.............. McCall.
Salmon............... Salmon.
Sawtooth............. Twin Falls.
Targhee.............. St. Anthony.
Nevada....................... Humboldt............. Elko.
Toiyabe, except the Sparks.
Lake Tahoe basin
management unit.
Utah......................... Ashley............... Vernal.
Dixie................ Cedar City.
Fishlake............. Richfield.
Manti-La Sal......... Price.
Uinta................ Provo.
Wasatch (Cache-Utah Salt Lake City.
portion).
Wyoming...................... Bridger-Teton........ Jackson.
Region 5, Pacific Southwest
Region (Regional Forester, 630
Sansome St., San Francisco, CA
94111):
California................... Angeles.............. Arcadia.
Cleveland............ San Diego.
Eldorado, except the Placerville.
Lake Tahoe basin
management unit.
[[Page 8]]
Inyo................. Bishop.
Klamath.............. Yreka.
Lassen............... Susanville.
Los Padres........... Goleta.
Mendocino............ Willows.
Modoc................ Alturas.
Plumas............... Quincy.
San Bernardino....... San Bernardino.
Sequoia.............. Porterville.
Shasta-Trinity....... Redding.
Sierra............... Fresno.
Six Rivers........... Eureka.
Stanislaus (Calaveras Sonora.
Bigtree).
Tahoe, except the Nevada City.
Lake Tahoe basin
management unit.
Lake Tahoe basin South Lake Tahoe
management unit (headed by an
(portions of administrator).
Toiyabe, Eldorado,
and Tahoe National
Forests).
Region 6, Pacific Northwest
Region (Regional Forester, 333
S.W. 1st Avenue, P.O. Box
3623, Portland, OR 97208):
Oregon....................... Deschutes............ Bend
Fremont.............. Lakeview.
Malheur.............. John Day.
Mount Hood........... Gresham.
Ochoco............... Prineville.
Rogue River.......... Medford.
Siskiyou............. Grants Pass.
Siuslaw.............. Corvallis.
Umatilla............. Pendleton.
Umpqua............... Roseburg.
Wallowa-Whitman...... Baker.
Willamette........... Eugene.
Winema............... Klamath Falls.
Washington................... Colville............. Colville.
Gifford Pinchot...... Vancouver.
Mount Baker- Mountain
Snoqualmie. Terrace.
Okanogan............. Okanogan.
Olympic.............. Olympia.
Wenatchee............ Wenatchee.
Region 8, Southern Region
(Regional Forester, 1720
Peachtree Rd. NW., Atlanta, GA
30367):
Alabama...................... National forests in Montgomery.
Alabama (William B.
Bankhead, Conecuh,
Talladega, Tuskegee).
Arkansas..................... Ouachita............. Hot Springs.
Ozark-St. Francis.... Russellville.
Florida...................... National forests in Tallahassee.
Florida
(Apalachicola,
Ocala, Osceola).
Georgia...................... Chattahoochee-Oconee. Gainesville.
Kentucky..................... Daniel Boone......... Winchester.
Louisiana.................... Kisatchie............ Pineville.
Mississippi.................. National Forests in Jackson.
Mississippi
(Bienville, Delta,
De Soto, Holly
Springs, Homochitto,
Tombigbee).
North Carolina............... National forests in Asheville.
North Carolina
(Croatan, Nantahala,
Pisgah, Uwharrie).
Puerto Rico.................. Caribbean............ Rio Piedras, PR.
South Carolina............... Francis Marion and Columbia.
Sumter.
Tennessee.................... Cherokee............. Cleveland.
Texas........................ National forests in Lufkin.
Texas (Angelina,
Davy Crockett,
Sabine, Sam Houston).
Virginia..................... George Washington- Roanoke.
Jefferson.
Region 9, Eastern Region
(Regional Forester, 310 West
Wisconsin Ave., Milwaukee, WI
53203):
Illinois..................... Shawnee.............. Harrisburg.
Indiana and Ohio............. Wayne-Hoosier........ Bedford, IN.
Michigan..................... Hiawatha............. Escanaba.
Huron-Manistee....... Cadillac.
[[Page 9]]
Ottawa............... Ironwood.
Minnesota.................... Chippewa............. Cass Lake.
Superior............. Duluth.
Missouri..................... Mark Twain........... Rolla.
New Hampshire and Maine...... White Mountain....... Laconia, NH.
Pennsylvania................. Allegheny............ Warren.
Vermont...................... Green Mountain....... Rutland.
West Virginia................ Monongahela.......... Elkins.
Wisconsin.................... Chequamegon.......... Park Falls.
Nicolet.............. Rhinelander.
Region 10, Alaska Region
(Regional Forester, Federal
Office Bldg., P.O. Box 21628,
Juneau, AK 99802-1628):
Alaska....................... Chugach.............. Anchorage.
Tongass:.............
Chatham area........ Sitka.
Ketchikan area...... Ketchikan.
Sitkine area........ Petersburg.
------------------------------------------------------------------------
Forest and Range Experiment Stations, Laboratories, and Institutes Name
of Unit and Headquarters of Director
North Central Research Station--1995 Folwell Avenue, St. Paul, MN 55108.
Northeastern Research Station--100 Matsonford Road, 5 Radnor Corporate
Center, Suite 200, P.O. Box 6775, Radnor, PA 19087-4585.
Pacific Northwest Research Station--333 S.W. 1st Avenue, P.O. Box 3890,
Portland, OR 97208-3890.
Pacific Southwest Research Station--800 Buchanan Street, West Building,
Albany, CA 94710-0011.
Rocky Mountain Research Station--240 West Prospect Street, Fort Collins,
CO 80526-2098.
Southern Research Station--200 Weaver Boulevard, P.O. Box 2680,
Asheville, NC 28802.
Laboratory
Forest Products Laboratory--One Gifford Pinchot Drive, Madison, WI
53705-2398.
Institute
International Institute of Tropical Forestry--Call Box 25000, UPR
Experimental Station Grounds, Rio Piedras, Puerto Rico 00928-2500.
State and Private Forestry Area Office
Director, Northeastern Area--100 Matsonford Road, P.O. Box 6775, Radnor,
PA 19087-4585.
Note: In Regions 1 through 8 and 10, State and Private Forestry
activities are directed from Regional headquarters.
[41 FR 24350, June 16, 1976, as amended at 42 FR 32230, June 24, 1977;
42 FR 40438, Aug. 10, 1977; 43 FR 27190, June 23, 1978; 44 FR 5660, Jan.
29, 1979; 62 FR 33366, 33367, June 19, 1997]
Subpart B_Functions and Procedures
Sec. 200.3 Forest Service functions.
(a) Legislative authority. The basic laws authorizing activities of
the Forest Service are set forth in the U.S.C. in title 7 (Agriculture),
chapters 14, 17, 33, 55, 59, and 61; title 16 (Conservation), chapters
2, 3, 4, 5C, 6, 23, 27, 28, 30, 36, and 37; title 29 (Labor), chapter
17; and title 43 (Public Lands), chapters 22 and 35.
(b) Work of the Forest Service. Under delegated authority from the
Secretary of Agriculture, the broad responsibilities of the Forest
Service are:
(1) Leadership in forestry. The Forest Service provides overall
leadership in forest and forest-range conservation, development, and
use. This involves determination of forestry conditions and
requirements, and recommendations of policies and programs needed to
keep the Nation's private and public lands fully productive.
(2) National Forest System administration. (i) The Forest Service
administers and manages the National Forest System lands in accordance
with the Multiple-Use Sustained-Yield Act of June 12, 1960 (16 U.S.C.
528-531); the Forest and Rangeland Renewable Resources Planning Act of
August 17, 1974 (16 U.S.C. 1600-1614); and the National Forest
Management Act of October 22, 1976 (16 U.S.C. 472a, 476, 500, 513-516,
521b; 576b, 1600-1602, 1604, 1606, 1608-1614).
[[Page 10]]
(ii) The National Forest System comprises about 188 million acres of
land in the National Forests, National Grasslands, and other areas which
have been transferred to the Forest Service for administration. On these
public lands:
(A) Forestry methods are applied in growing and harvesting timber,
(B) Forage is scientifically managed for the use of domestic
livestock whose numbers are kept in balance with the carrying capacity
of the range,
(C) Wildlife habitat and species are managed,
(D) Watersheds are managed to safeguard the water supply and
stabilize streamflow,
(E) Recreation resources are managed for public enjoyment and
benefit,
(F) Many forms of land and resource use are granted under permit or
lease, and
(G) Physical and resource improvements needed to develop, protect,
and use all resources are built and maintained.
(3) Cooperative forestry. The Forest Service carries out cooperative
forestry programs for public benefit through programs initiated by
State, county, and other Federal agencies in accordance with the
Cooperative Forestry Assistance Act of July 1, 1978 (16 U.S.C. 2101-
2111). These programs are directed at the protection, development, and
sustained production of all forestry resources, both public and private.
(4) Forest research. The Forest Service conducts research on
problems involving protection, development, management, renewal, and
continuous use of all resources, products, values, and services of
forest lands in accordance with the Forest and Rangeland Renewable
Resources Research Act of June 30, 1978 (16 U.S.C. 1641-1647). Research
is conducted on:
(i) Forest and range management, including the five basic resources
of timber, forest soil and water, range forage, wildlife and fish
habitat, and forest recreation,
(ii) Forest protection from fire, insects, and disease,
(iii) Forest products and engineering, and
(iv) Forest resource economics including forest survey, forest
economics, and forest products marketing.
[44 FR 37505, June 27, 1979]
Sec. 200.4 Administrative issuances.
(a) The regulations of the Secretary of Agriculture governing the
protection and administration of National Forest System lands and other
programs of the Forest Service are set forth in Chapter 2 of Title 36 of
the Code of Federal Regulations.
(b) Administrative policy, procedure, and guidance to Forest Service
employees for the conduct of Forest Service activities are issued as
directives, or through correspondence, by the office of the Chief of the
Forest Service and by the field officers listed in Sec. 200.2.
(1) Directives are issued through the Forest Service Directive
System, which is comprised of the Forest Service Manual and related
Forest Service Handbooks. The Directive System codifies the agency's
policy, practice, and procedure affecting more than one unit and the
delegations of continuing authority and assignment of continuing
responsibilities; serves as the primary administrative basis for the
internal management and control of all programs; and is the primary
source of administrative direction to Forest Service employees.
(2) In contrast to direction issued through the Directive System,
guidance issued to one or more organizational units through letters and
memoranda relate to decisions or interpretations on specific activities,
cases, or incidents or to other matters of agency business, especially
those matters of short-term duration or immediate interest.
(c) Forest Service Directive System issuances are published under
delegated authority as follows:
(1) The Forest Service Manual and Forest Service Handbook issuances
to all Forest Service units are published by the Office of the Chief.
(2) Forest Service Manual and Forest Service Handbook issuances may
be supplemented as needed for field office use by a Regional Forester, a
Regional
[[Page 11]]
Special Agent in Charge of Law Enforcement and Investigations, a
Research Station Director, the International Institute for Tropical
Forestry Director, the Area Director, or a Forest Supervisor.
(d) Guidance issued through letters and memoranda must be issued in
accordance with signing authorities delegated through issuances to the
Forest Service Directive System.
(e) An alphabetical index of the contents of the Forest Service
Manual and related Forest Service Handbooks is published in Forest
Service Handbook 1109.12, Directive System Handbook. The index contains
a listing of all Series, Titles, and Chapters in the Forest Service
Manual and a listing of all Forest Service Handbooks in the Directive
System.
(f) Forest Service Handbook 6209.11, Records Management Handbook,
outlines and indexes the filing system for all correspondence and other
records.
(g) Forms and reports used by the agency are listed in, and
instructions for their use are issued throughout, the Forest Service
Directive System and are collated in Forest Service Handbook 1309.14,
Information Requirements Handbook.
[62 FR 33367, June 19, 1997, as amended at 74 FR 19143, Apr. 28, 2009]
Sec. 200.5 Indexes.
Publication of the indexes described in Sec. 200.4 is deemed both
unnecessary and impractical because of the large volume of material
involved. However, copies of the indexes are available for public review
in the Forest Service headquarters office in Washington, DC, and at
field offices listed under Sec. 200.2(d). The Forest Service will
provide copies of any index upon request at a cost not to exceed the
direct cost of duplication.
[40 FR 12790, Mar. 21, 1975. Redesignated at 62 FR 13540, Mar. 21, 1997]
Sec. 200.6 Information available; inspection, copying, and charges.
(a) In accordance with 5 U.S.C. 552(a) and 7 CFR 1.2, the Forest
Service shall make available for public inspection and copying all
published or unpublished directives, forms, records, and final opinions,
including concurring or dissenting opinions and orders made in the
adjudication of cases. Charges for information requested from the Forest
Service are set out in paragraph (d) of this section and vary according
to the type of information requested.
(b) Information made available pursuant to paragraph (a) of this
section may be obtained at the Office of the Chief, or the office of any
Regional Forester, Research Station Director, Area Director, Institute
Director, Forest Supervisor, or District Ranger. The addresses of these
offices are set forth in Sec. Sec. 200.1 and 200.2. Forest Service
personnel at these offices will assist members of the public seeking
Forest Service records. However, Research Station and Institute
Directors and District Rangers may not have all volumes of the Forest
Service Manual and Handbooks. When the information requested is not
available at a given location, the personnel where the request is
received will direct the requester to another office where the
information may be obtained.
(c) Inspection and copying availability is as follows:
(1) Facilities for inspection and copying are available at the
offices listed in Sec. Sec. 200.1 and 200.2, during established office
hours for the particular location, usually 8 a.m. to 5 p.m., Monday
through Friday. Copying facilities may not be available at all Forest
Service offices.
(2) Requesters for information may make copies of available
information without charge if they elect to bring their own copy
equipment to the appropriate offices listed in Sec. Sec. 200.1 and
200.2.
(3) Requesters should make prior arrangements for using agency
copying facilities or for bringing in copying equipment and, in the
later case, should get advance approval from the office.
(d) Any request for information pursuant to the provisions of the
Freedom of Information Act must be submitted in accordance with
Sec. Sec. 200.7 and 200.8. The Forest Service charges a fee for copies
of records not generally made available to the public but released
pursuant to a FOIA request in accordance with a schedule of fees
established by the Department of Agriculture at 7
[[Page 12]]
CFR Part 1, Subpart A, Appendix A. These fees do not apply to
information that is generally and routinely made available to the public
upon request, such as recreational brochures, pamphlets, maps, and
technical guides as well as agency directive issuances. Separate charges
for such general information are established in the agency's Directive
System (Sec. 200.4). For example, some pamphlets and small segments of
the Forest Service Manual and Handbook may be provided at no cost, but
maps of the National Forest System and larger sections of the Manual and
Handbook are available for a charge. Current charges are explained at
the time the request is made.
[62 FR 13540, Mar. 21, 1997]
Sec. 200.7 Request for records.
Requests for records and the processing of those records are
governed by the rules at 7 CFR 1.6. Agency officials are authorized to
receive and act on requests for records as follows:
(a) The Regional Forester, Regional Special Agent in charge,
Research Station Director, Area Director, and Institute Director at the
field locations and addresses listed in Sec. 200.2; the Director of Law
Enforcement and Investigations, other Staff Directors, or other
officials whom the Chief may authorize, located in the Washington
Office, are authorized to receive requests for such records, to make
determinations regarding whether records exist, and to grant or deny
requests for records exempt from disclosure under the provisions of 5
U.S.C. 552(b).
(b) Each of the officials listed in paragraph (a) of this section
also is authorized to take the following actions:
(1) Extend the 10-day administrative deadline for reply pursuant to
7 CFR 1.14;
(2) Make discretionary releases pursuant to 7 CFR 1.17(b) of records
exempt from mandatory disclosure;
(3) Deny records pursuant to 5 U.S.C. 552(b); and
(4) Make determinations regarding the charges of fees pursuant to 7
CFR 1.8(a).
[62 FR 33368, June 19, 1997, as amended at 63 FR 53811, Oct. 7, 1998]
Sec. 200.8 Appeals.
(a) Appeals from denials of requests submitted under Sec. 200.7
shall be submitted in accordance with U.S. Department of Agriculture
rules at 7 CFR part 1, subpart A, and the appendix to subpart A to the
Chief, Forest Service, U.S. Department of Agriculture, Auditors
Building, 14th and Independence Avenue, S.W., P.O. Box 96090,
Washington, DC 20090-6090.
(b) The Chief, or other official to whom such authority is
delegated, shall determine whether to grant or deny the appeal and make
all necessary determinations relating to an extension of the 20-day
administrative deadline for reply, discretionary release of records
exempt from mandatory disclosure under 5 U.S.C. 552(b), and charging the
appropriate fees, pursuant to U.S. Department of Agriculture rules at 7
CFR part 1, subpart A, and the appendix to subpart A.
(c) The Forest Service Freedom of Information Act/Privacy Act
Officer must review all proposed responses to appeals prior to
signature.
[63 FR 53812, Oct. 7, 1998, as amended at 63 FR 60049, Nov. 6, 1998]
Sec. 200.12 Land status and title records.
(a) Land Status Records System. The Land Status Records System is
the official, permanent repository for all agency realty records and
land title documents for National Forest System lands. It includes an
automated database which contains an accurate account of: acreage,
condition of title, administrative jurisdiction, rights held by the
United States, administrative and legal use restrictions, encumbrances,
and access rights on land or interests in land in the National Forest
System.
(1) Components. The system shall include, but is not limited to, the
following components:
(i) A current and accurate Land Status Atlas for each National
Forest, National Grassland, and other proclaimed or designated
administrative unit, which shall graphically portray on maps keyed to a
tabular summary the following categories of information:
[[Page 13]]
(A) Jurisdiction of and condition of title to lands administered as
part of the National Forest System.
(B) All encumbrances on National Forest System lands.
(C) All partial interests administered by the Forest Service on
other lands.
(D) All use restrictions, withdrawals, and special designated areas
on National Forest System lands.
(E) The acreage of National Forest System lands, including riparian
lands.
(ii) A master Land Status File, from which the agency data for the
Atlas is derived and which includes the following:
(A) Discrete title files of each landownership adjustment.
(B) The original authorizing documents establishing or adjusting
National Forest System lands and interests therein.
(C) Withdrawals, use restrictions, and special designated areas on
National Forest System lands.
(D) Other information as deemed necessary.
(iii) Such reporting systems as are needed to provide title or
status reports.
(2) Display of Information. Information in the system may be
collected and maintained in narrative, graphic, tabular, or other form
and may be entered into and maintained in automated systems as well as
produced in paper form in accordance with such administrative direction
as the Chief of the Forest Service or Regional Foresters may establish.
(b) Availability. A Land Status Atlas shall be maintained at each
National Forest administrative unit or subunit, such as Ranger Districts
or National Recreation Area offices. Each Regional Office shall maintain
copies of the Atlas for all National Forests within that Region. Related
land title and realty records for each National Forest System unit shall
be maintained at the administrative headquarters of that unit. The Land
Status Atlas and such title and realty records as are held at an
administrative unit shall be available for public inspection.
[56 FR 29181, June 26, 1991, as amended at 59 FR 2987, Jan. 20, 1994]
PART 211_ADMINISTRATION--Table of Contents
Subpart A_Cooperation
Sec.
211.1-211.2 [Reserved]
211.3 Cooperation with State officers.
211.4 Cooperation for fire prevention and control.
211.5 Emergency fire suppression assistance.
211.6 Cooperation in forest investigations or the protection,
management, and improvement of the National Forest System.
Subpart B [Reserved]
Authority: 16 U.S.C. 472, 498, 551.
Subpart A_Cooperation
Sec. Sec. 211.1-211.2 [Reserved]
Sec. 211.3 Cooperation with State officers.
All forest officers will cooperate with State officials, insofar as
practicable, to enforce State fire, game, and health laws. They are
authorized to accept appointments, without compensation, as deputy State
fire wardens, game wardens, and/or health officers whenever in the
judgment of the Chief of the Forest Service the performance of the
duties required by these offices will not interfere with their duties as
Federal forest officers.
[1 FR 1261, Aug. 15, 1936]
Sec. 211.4 Cooperation for fire prevention and control.
The Forest Service shall, whenever possible, and is hereby
authorized to enter into such agreements with private owners of timber,
with railroads, and with other industrial concerns operating in or near
the national forests as will result in mutual benefit in the prevention
and suppression of forest fires: Provided, That the service required of
each party by such agreements shall be in proportion to the benefits
conferred.
[1 FR 1261, Aug. 15, 1936]
Sec. 211.5 Emergency fire suppression assistance.
(a) Definitions. For the purpose of this subpart these definitions
apply:
(1) Prescribed fire means a fire burning under a set of specified
conditions
[[Page 14]]
which will accomplish certain planned resource management objectives.
(2) Escaped prescribed fire means a prescribed fire which has either
exceeded the prescription or has rekindled after it has been declared to
be out.
(b) In the absence of a written reciprocal agreement with any fire
organization or in situations outside the scope of an agreement, the
Forest Service is authorized to render emergency assistance in
suppressing fires and in preserving life and property from the threat of
fire within the vicinity of Forest Service fire protection facilities
under the following conditions:
(1) If a prescribed fire initiated on lands administered by the
Forest Service escapes onto lands not administered by the Forest
Service, the Forest Service may commit personnel, materials, and
equipment without reimbursement or consideration of the fire's
continuing threat to National Forest System lands or resources.
(2) When requested, the Forest Service may commit personnel,
materials, and equipment on a reimbursable basis on lands not
administered by the Forest Service without regard to the fire's threat
to National Forest System lands or resources.
[48 FR 44537, Sept. 29, 1983]
Sec. 211.6 Cooperation in forest investigations or the protection,
management, and improvement of the National Forest System.
(a) Purpose and scope. Forest Service officers, when engaged in
cooperative activities otherwise authorized, may receive monies from
cooperators only for cooperative work in forest investigations or for
the protection, management, and improvement of the National Forest
System and only in accordance with written cooperative agreements.
Management of the National Forest System may include such work as
planning, analysis, and related studies, as well as resource activities.
(b) Reimbursements. Agency expenditures for work undertaken in
accordance with this section may be made from Forest Service
appropriations available for such work, with subsequent reimbursement
from the cooperator, in accordance with established written agreements.
Forest Service officers shall issue written bills for collection for
cooperator reimbursement payments within the same fiscal year as Forest
Service expenditures.
(c) Bonding. Each written agreement involving a non-Government
cooperator's total contribution of $25,000 or more to the Forest Service
on a reimbursable basis, must include a provision requiring a payment
bond to guarantee the cooperator's reimbursement payment. Acceptable
security for a payment bond includes Department of the Treasury approved
corporate sureties, Federal Government obligations, and irrevocable
letters of credit. For the purposes of this section, a non-Government
cooperator is an entity that is not a member, division, or affiliate of
a Federal, State, local government, a federally recognized Indian Tribe
(as defined by the Federally Recognized Indian Tribe List Act of 1994
[25 U.S.C. 479a]), or other organizations funding a Forest Service
agreement with pass through funding from an entity that is a member,
division, or affiliate of a Federal, State, local government, or
federally recognized Indian Tribe.
(d) Avoiding conflict of interest. Forest Service officers shall
avoid acceptance of contributions from cooperators when such
contributions would reflect unfavorably upon the ability of the Forest
Service to carry out its responsibilities and duties. Forest Service
officers shall be guided by the provisions of 18 U.S.C. parts 201-209, 5
CFR part 2635, and applicable Department of Agriculture regulations, in
determining if a conflict of interest or potential conflict of interest
exists in a proposed cooperative effort. Forest Service ethics officials
or the designated Department of Agriculture ethics official should be
consulted on conflict of interest issues.
[64 FR 60678, Nov. 8, 1999, as amended at 73 FR 62443, Oct. 21, 2008]
Subpart B [Reserved]
PART 212_TRAVEL MANAGEMENT--Table of Contents
Subpart A_Administration of the Forest Transportation System
Sec.
212.1 Definitions.
[[Page 15]]
212.2 Forest development transportation program.
212.3 Cooperative work.
212.4 Construction and maintenance.
212.5 Road system management.
212.6 Ingress and egress.
212.7 Access procurement by the United States.
212.8 Permission to cross lands and easements owned by the United States
and administered by the Forest Service.
212.9 Principles for sharing use of roads.
212.10 Maximum economy National Forest System roads.
212.11-212.20 [Reserved]
212.21 Pacific Crest National Scenic Trail.
Subpart B_Designation of Roads, Trails, and Areas for Motor Vehicle Use
212.50 Purpose, scope, and definitions.
212.51 Designation of roads, trails, and areas.
212.52 Public involvement.
212.53 Coordination with Federal, State, county, and other local
governmental entities and tribal governments.
212.54 Revision of designations.
212.55 Criteria for designation of roads, trails, and areas.
212.56 Identification of designated roads, trails, and areas.
212.57 Monitoring of effects of motor vehicle use on designated roads
and trails and in designated areas.
Subpart C_Over-Snow Vehicle Use
212.80 Purpose, scope, and definitions.
212.81 Over-snow vehicle use.
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, except for over-snow vehicle use, 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.
Designation of over-snow vehicle use. Designation of a National
Forest System road, a National Forest System trail, or an area on
National Forest System lands where over-snow vehicle use is allowed
pursuant to Sec. 212.81.
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,
[[Page 16]]
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
(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.
Over-snow vehicle use map. A map reflecting roads, trails, and areas
designated for over-snow vehicle use on an administrative unit or a
Ranger District of the National Forest System.
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.
[[Page 17]]
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; 80 FR 4511, Jan. 28, 2015]
Sec. 212.2 Forest transportation program.
(a) Travel management atlas. For each administrative unit of the
National Forest System, the responsible official must develop and
maintain a travel management atlas, which is to be available to the
public at the headquarters of that administrative unit.
(b) Forest transportation atlas. A forest transportation atlas may
be updated to reflect new information on the existence and condition of
roads, trails, and airfields of the administrative unit. A forest
transportation atlas does not contain inventories of temporary roads,
which are tracked by the project or activity authorizing the temporary
road. The content and maintenance requirements for a forest
transportation atlas are identified in the Forest Service directives
system.
(c) Program of work for the forest transportation system. A program
of work for the forest transportation system shall be developed each
fiscal year in accordance with procedures prescribed by the Chief.
[62 FR 58654, Oct. 30, 1997, as amended at 66 FR 3216, 3217, Jan. 12,
2001; 70 FR 68288, Nov. 9, 2005; 73 FR 74613, Dec. 9, 2008]
Sec. 212.3 Cooperative work.
(a) Cooperative agreements for all projects which involve financial
contributions from cooperators shall be negotiated, approved, and
executed in accordance with procedures prescribed by the Chief.
(b) Cooperative funds contributed in advance shall be deposited in
the United States Treasury to the credit of the Forest Service
Cooperative Fund authorized by the Act of June 30, 1914 (38 Stat. 430),
as amended; 16 U.S.C. 498, or the Act of March 3, 1925 (43 Stat. 1132),
as amended; 16 U.S.C. 572, which deposits will be made available for
expenditure from the appropriation ``Cooperative Work, Forest Service.''
If a State, county or other governmental agency is unable to contribute
funds under the Act of March 3, 1925, as amended, in advance but is able
to pay its share subsequent to performance of the work, the subsequent
payment of such funds will be deposited to the credit of the Forest
Service appropriation from which the expenditures were made or to
appropriations for similar purposes currently available at the time of
deposit.
[25 FR 6360, July 7, 1960. Redesignated at 62 FR 58654, Oct. 30, 1997]
Sec. 212.4 Construction and maintenance.
(a) Construction and maintenance work on forest transportation
facilities with appropriated funds shall be directed to what is
necessary and economically justified for protection, administration,
development, and multiple-use management of the federally owned lands
and resources served.
(b) Preliminary engineering and the construction and maintenance of
forest transportation facilities shall be performed by force account or
let to contract, unless otherwise approved by the Chief. The contract
method shall be employed for roads and trails in accordance with section
205(c) of the Act of August 27, 1958 (72 Stat. 907); 23 U.S.C. 205, and
for all other facilities when it is advantageous and in the interest of
the Government.
(c) No construction work shall be started by force account or let to
contract until all necessary rights of way have been secured, and
approved by the Attorney General, if required, and cooperative
agreements, if any, approved and executed.
[24 FR 10256, Dec. 18, 1959, as amended at 25 FR 6360, July 7, 1960.
Redesignated at 62 FR 58654, Oct. 30, 1997; 66 FR 3216, Jan. 12, 2001]
Sec. 212.5 Road system management.
(a) Traffic rules. Rules set forth under 36 CFR part 261 and this
section shall
[[Page 18]]
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.
(2) Specific. The following specific traffic rules shall apply
unless different rules are established in 36 CFR part 261.
(i) The load, weight, length, height, and width limitations of
vehicles shall be in accordance with the laws of the States wherein the
road is located. Greater or lesser limits may be imposed and these
greater or lesser limits shall be established as provided in 36 CFR part
261.
(ii) Roads, or segments thereof, may be restricted to use by certain
classes of vehicles or types of traffic as provided in 36 CFR part 261.
Classes of vehicles may include but are not limited to distinguishable
groupings such as passenger cars, buses, trucks, motorcycles, all-
terrain vehicles, 4-wheel drive vehicles, off-highway vehicles, and
trailers. Types of traffic may include but are not limited to groupings
such as commercial hauling, recreation, and administrative.
(iii) Roads, or segments thereof, may be closed to all vehicle use
as provided in 36 CFR part 261.
(iv) Additional rules may be imposed as provided in 36 CFR part 261.
(b) Road system--(1) Identification of road system. For each
national forest, national grassland, experimental forest, and any other
units of the National Forest System (Sec. 212.1), the responsible
official must identify the minimum road system needed for safe and
efficient travel and for administration, utilization, and protection of
National Forest System lands. In determining the minimum road system,
the responsible official must incorporate a science-based roads analysis
at the appropriate scale and, to the degree practicable, involve a broad
spectrum of interested and affected citizens, other state and federal
agencies, and tribal governments. The minimum system is the road system
determined to be needed to meet resource and other management objectives
adopted in the relevant land and resource management plan (36 CFR part
219), to meet applicable statutory and regulatory requirements, to
reflect long-term funding expectations, to ensure that the identified
system minimizes adverse environmental impacts associated with road
construction, reconstruction, decommissioning, and maintenance.
(2) Identification of unneeded roads. Responsible officials must
review the road system on each National Forest and Grassland and
identify the roads on lands under Forest Service jurisdiction that are
no longer needed to meet forest resource management objectives and that,
therefore, should be decommissioned or considered for other uses, such
as for trails. Decommissioning roads involves restoring roads to a more
natural state. Activities used to decommission a road include, but are
not limited to, the following: reestablishing former drainage patterns,
stabilizing slopes, restoring vegetation, blocking the entrance to the
road, installing water bars, removing culverts, reestablishing drainage-
ways, removing unstable fills, pulling back road shoulders, scattering
slash on the roadbed, completely eliminating the roadbed by restoring
natural contours and slopes, or other methods designed to meet the
specific conditions associated with the unneeded road. Forest officials
should give priority to decommissioning those unneeded roads that pose
the greatest risk to public safety or to environmental degradation.
(c) Cost recovery on National Forest System roads. The Chief may
determine that a share of the cost of acquisition, construction,
reconstruction, improvement, or maintenance of a road, or segment
thereof, used or to be used for commercial hauling of non-Federal
forests products and other non-Federal products, commodities and
materials, should be borne by the owners or haulers thereof. The Chief
may condition the permission to use a road, or segment thereof, upon
payment to the United States of the proportionate share of the cost and
bearing proportionate maintenance as determined to be attributable to
the owner's or hauler's use in accordance with Sec. 212.9. This
[[Page 19]]
condition to use roads would apply where the owners or haulers:
(1) Have not shared in the cost of acquisition, construction,
reconstruction, or improvements, and
(2) Have not made contributions to pay their proportionate share of
the costs.
(d) Maintenance and reconstruction of National Forest System roads
by users--(1) Maintenance. The Chief may require, but not in conflict
with an existing permit, easement, contract, or other agreement, the
user or users of a road, including purchasers of Government timber and
other products, to maintain the roads in a satisfactory condition
commensurate with the particular use requirements of each. The
maintenance to be borne by each user shall be proportionate to total use
and no individual user shall be required to perform or bear the costs of
maintenance other than that commensurate with his use.
(2) Reconstruction. The Chief may require, but not in conflict with
an existing permit, easement, contract, or other agreement, the user or
users of a road to reconstruct it when, at the time the use is
requested, reconstruction is determined to be necessary to accommodate
his use.
(3) Deposits in lieu of performance. If the maintenance or
reconstruction cannot be so provided or if the Chief determines that
maintenance or reconstruction by a user would not be practical, the
Chief may require that sufficient funds be deposited by the user to
provide his portion of the total maintenance or reconstruction costs.
Deposits made to cover maintenance or reconstruction of roads shall be
used for the purposes deposited, except that:
(i) Deposits received for work on adjacent and overlapping areas may
be combined when it is the most practicable and efficient manner of
performing the work, and cost thereof may be determined by estimates,
and
(ii) Unexpended balances upon accomplishment of the purposes for
which deposited shall be transferred to miscellaneous receipts or
refunded.
(e) Deposits for making delayed payments to cooperator. Any fees or
other collections received by the Chief under the terms of an agreement
or other document providing for delayed payments to the Government's
cooperator for use of a road shall be placed in a fund available for
making these payments.
[39 FR 27649, July 31, 1974, as amended at 42 FR 2957, Jan. 14, 1977; 43
FR 20007, May 10, 1978; 62 FR 58654, Oct. 30, 1997. Redesignated and
amended at 62 FR 58654, Oct. 30, 1997; 66 FR 3217, Jan. 12, 2001; 70 FR
68288, Nov. 9, 2005]
Sec. 212.6 Ingress and egress.
(a) Policy in acquiring and granting access. To assure effective
protection, management, and utilization of lands administered by the
Forest Service and intermingled and adjacent private and public lands,
and for the use and development of the resources upon which communities
within or adjacent to the National Forests are dependent, the Chief
shall as promptly as is feasible obtain needed access thereto and shall
grant appropriate access across National Forest and other lands and
easements administered by the Forest Service to intermingled or adjacent
landowners. Construction, reconstruction or maintenance of a road or
highway requires written authorization.
(b) Actual settlers and other persons residing within the National
Forests and other areas administered by the Forest Service. Actual
settlers and other persons residing within the National Forests and
other areas administered by the Forest Service shall be permitted
ingress and egress over the same and use of existing National Forest
System roads and trails in order to reach their homes and to utilize
their property: Provided, such ingress and egress or use shall conform
to rules and regulations governing the protection and administration of
the lands and the roads or trails to be used.
(c) Others. Entering upon the National Forests and other lands
administered by the Forest Service and use of existing National Forest
System roads and trails shall be permitted for all proper and lawful
purposes subject to compliance with rules and regulations
[[Page 20]]
governing the lands and the roads or trails to be used.
(25 Stat. 357, 26 Stat. 1103, 30 Stat. 35-36, 1233 38 Stat. 430, 46
Stat. 1421, 64 Stat. 82, 72 Stat. 885; as amended, 74 Stat. 215, 78
Stat. 1089; 16 U.S.C. 471, 478, 498, 525, 528-531, 532, 538, 551, 572,
23 U.S.C. 101, 205, 40 U.S.C. 257, 258a et seq.; 42 Atty. Gen. Op. No.
7; Comp. Gen. B-65972, May 19, 1947; 40 Comp. Gen. 372; 41 Comp. Gen. 1;
41 Comp. Gen. 576, and 42 Comp. Gen. 590)
[40 FR 52611, Nov. 11, 1975, as amended at 42 FR 2957, Jan. 14, 1977.
Redesignated at 62 FR 58654, Oct. 30, 1997; 66 FR 3217, Jan. 12, 2001]
Sec. 212.7 Access procurement by the United States.
(a) Existing or proposed forest roads that are or will be part of a
transportation system of a State, county, or other local public road
authority. Forest roads that are or will be part of a transportation
system of a State, county, or other local public road authority and are
on rights-of-way held by a State, county, or other local public road
authority may be constructed, reconstructed, improved, or maintained by
the Forest Service when there is an appropriate agreement with the
State, county, or other local public road authority under 23 U.S.C. 205
and the construction, reconstruction, improvement, or maintenance is
essential to provide safe and economical access to National Forest
System lands.
(b) Acquisition of easements and rights of use. Except as otherwise
provided in the regulations of this part, easements for road and trail
construction across non-Federal lands and easements or rights of use
over non-Federal roads and trails will be acquired in the name of the
United States of America and its assigns. The easements or rights of use
may be acquired by purchase, condemnation, donation, or as a reciprocal
for permits or easements for roads or trails to be constructed or for
easements over or permits to use existing roads or trails.
(c) Methods of compensation for easements and rights of use acquired
by the United States. Compensation in negotiated acquisitions may be:
(1) By payment from appropriated funds;
(2) Pursuant to reservation in the grant of easement to the United
States whereby the grantor reserves the right to require haulers of
Federal timber or other Federal products over the road conveyed or
thereafter constructed by the grantor to make payments to the grantor in
accordance with the terms of the reservation;
(3) By granting reciprocal rights; or
(4) By a combination of these methods.
(d) Cooperative construction and use agreements. Where areas, partly
lands administered by the Forest Service and partly private or other
ownership are undeveloped or inadequately developed by roads, the Chief
will, to the extent feasible and advantageous to the United States, join
in planning, constructing, reconstructing, improving, maintaining, and
using an adequate road system on the basis of each party bearing the
proportion of the cost attributable to the anticipated benefits as set
forth in Sec. 212.9.
(e) Condemnation. Where access across non-Federal land or over a
non-Federal road or trail cannot be obtained through negotiations with
reasonable promptness, condemnation will be undertaken.
(f) Access over non-Federal land and use of non-Federal roads or
trails on a temporary basis. The Chief may negotiate a temporary
agreement for access over non-Federal land and for use of an existing
non-Federal road or trail where there is immediate need for temporary
access for limited purposes that can be economically met by such
procedure, or where the foreseeable need does not justify the
expenditures necessary to provide a permanent road or trail.
(g) Use and control of interests in roads, trails, and easements
acquired by the United States. Interests in roads, trails, and easements
acquired by the United States shall be under the control of the United
States, subject to approved reservations, limitations and other
provisions set forth in the easement, permit, or other indenture. This
control by the United States may include restricting or conditioning the
use of the interest owned by the United States in the
[[Page 21]]
road, trail, or easement where necessary.
(25 Stat. 357, 26 Stat. 1103, 30 Stat. 35-36, 1233, 38 Stat. 430, 46
Stat. 1421, 64 Stat. 82, 72 Stat. 885, as amended, 74 Stat. 215, 78
Stat. 1089; 16 U.S.C. 471, 478, 498, 525, 528-531, 532, 551, 572, 23
U.S.C. 101, 205, 40 U.S.C. 257, 258a et seq.; 42 Atty. Gen. Op. No. 7;
Comp. Gen. B-65972, May 19, 1947; 40 Comp. Gen. 372; 41 Comp. Gen. 1; 41
Comp. Gen. 576, and 42 Comp. Gen. 590)
[30 FR 5476, Apr. 16, 1965, as amended at 39 FR 27650, July 31, 1974; 62
FR 58654, Oct. 30, 1997. Redesignated and amended at 62 FR 58654, Oct.
30, 1997; 66 FR 3217, Jan. 12, 2001; 70 FR 68288, Nov. 9, 2005]
Sec. 212.8 Permission to cross lands and easements owned
by the United States and administered by the Forest Service.
(a) Permission to construct or use roads across lands and assignable
easements owned by the United States and administered by the Forest
Service. If a reciprocal benefit is needed by the United States,
permission to construct or use a road across lands and across assignable
easements owned by the United States and administered by the Forest
Service will be conditioned, except as provided in this section, for any
applicant who seeks a permit to construct or use a road across the same,
upon the grant to the United States of a reciprocal benefit. Such
benefit shall bear:
(1) A reasonable relation to the management of lands administered by
the Forest Service; and
(2) A value substantially similar to the value of the estate or
interest in lands or easements applied for. In those instances where the
values of the interests needed by the United States exceed those applied
for by the applicant, the additional interests required by the United
States will be acquired as provided in Sec. 212.7(b) and (c). Where
values needed by the applicant exceed those needed by the United States,
the difference in values will be determined under principles set forth
below and in Sec. Sec. 212.5(c) and 212.9. If a reciprocal benefit is
not needed by the United States, or the applicant shows good cause why
the reciprocal benefit needed by the United States cannot or should not
be granted by him, or the applicant declines to grant the reciprocal
benefit requested by the United States or if a bona fide emergency
exists, permission to construct or use a road across lands owned by the
United States may be conditioned for any applicant upon reasonable
charges and all other terms and conditions required by the Chief to
protect the interests of the United States. Permits for such road
construction or use will be non-exclusive and will be conditioned upon
compliance with their terms and conditions and with the rules and
regulations governing the protection and administration of the lands and
those applicable to such roads.
(b) [Reserved]
(c) Replacement of prior grants. (1) Upon application to the Chief,
an easement under the Act of March 3, 1899 (30 Stat. 1233, 16 U.S.C.
525), shall be replaced by an easement under paragraph (d) of this
section.
(2) Upon application to the Chief, an easement shall be granted
under paragraph (d) of this section as a replacement for any
stipulations for ingress and egress issued under the Act of June 4, 1897
or permit or other document evidencing the applicant's right to use a
road: Provided, The applicant has met the requirements for obtaining
such easement as set forth in paragraph (d) of this section.
(d) Easements for roads crossing lands or easements administered by
the Forest Service. (1) Applications for permanent or temporary
easements for specified periods or otherwise to be granted under the Act
of October 13, 1964 (78 Stat. 1039, 16 U.S.C. 533), over lands or
easements administered by the Forest Service, or over roads thereon will
be approved by the Chief for those applicants who have conveyed or
provided appropriate easements over roads, assignable easements and
lands owned or controlled by them to the United States of America and
its assigns and who have already constructed, or will, as scheduled by
agreement, construct their proportionate share of the road or road
system of which the segments described in the application are parts. The
Chief, after approval of the application and the grant of the easement,
will cause the same to be entered in the records of the Forest Service,
and delivered to the applicant.
[[Page 22]]
(2) Notwithstanding paragraph (d)(1) of this section, the Chief may
grant to the applicant a permanent or temporary easement for specified
periods or otherwise upon such exchange of easements or share-cost
arrangement or other reasonable consideration as he may deem
appropriate.
(3) The Chief may grant to a State or local subdivision thereof;
easements for roads over lands or easements administered by the Forest
Service and over roads thereon, when the roads thereon or roads to be
constructed thereon will serve said lands and are, or will become a part
of the road system maintained by such State or local subdivision for
general public use: Provided, That easements shall not be granted under
authority of this act (78 Stat. 1089), 16 U.S.C. 533 which may be
granted under the Highway Act (72 Stat. 916, 23 U.S.C. 317), as amended.
The easements shall contain such provisions, terms, and conditions as
the Chief may determine are necessary to retain and protect the
interests needed by the United States.
(4) All instruments affecting permanent interests in land executed
pursuant to this paragraph (d) of this section shall be recorded in each
county where the lands are located. Copies of all instruments affecting
interests in lands reserved from public domain shall be furnished by the
Chief to the Secretary of the Interior.
(5)(i) The Chief may revoke any easement granted under the
provisions of the Act of October 13, 1964 (78 Stat. 1089, 16 U.S.C.
534):
(A) By consent of the owner of the easement;
(B) By condemnation; or
(C) Upon abandonment after a 5-year period of nonuse by the owner of
the easement.
(ii) Before any easement is revoked upon abandonment, the owner of
the easement shall be given notice and, upon the owner's request made
within 60 days after receipt of the notice, shall be given an appeal in
accordance with the provisions of 36 CFR part 214.
(25 Stat. 357, 26 Stat. 1103, 30 Stat. 35-36, 1233, 38 Stat. 430, 46
Stat. 1421, 64 Stat. 82, 72 Stat. 885, as amended, 74 Stat. 215, 78
Stat. 1089; 16 U.S.C. 471, 478, 498, 525, 528-531, 532, 538, 551, 572,
23 U.S.C. 101, 205, 40 U.S.C. 257, 258a et seq.; 42 Atty. Gen. Op. No.
7; Comp. Gen. B-65972, May 19, 1947; 40 Comp. Gen. 372; 41 Comp. Gen. 1;
41 Comp. Gen. 576, and 42 Comp. Gen. 590)
[30 FR 5476, Apr. 16, 1965, as amended at 39 FR 27650, July 31, 1974; 48
FR 28638, June 23, 1983. Redesignated and amended at 62 FR 58654, Oct.
30, 1997; 78 FR 33717, June 5, 2013]
Sec. 212.9 Principles for sharing use of roads.
The use of roads under arrangements for sharing costs or performance
shall be in accordance with the following:
(a) Road improvement. Use of a road for commercial hauling, except
occasional or minor amounts, will be conditioned upon improvement or
supplemental construction of the road to safety and economically serve
the contemplated use, unless the Chief determines that the safety and
economy of the established and foreseeable use by the United States, its
users and cooperators will not be impaired by the use for which
application is being made. With the consent of the Chief the applicant
may deposit funds in the estimated amount required for the improvements
or supplemental construction in lieu of performance. Such funds will be
used by the Forest Service to do the planned work. The cost of the
improvements or supplemental construction will be taken into account in
determining any otherwise required contribution to cover the
proportionate share of the cost of road acquisition, construction,
reconstruction or improvement attributable to the use.
(b) Corresponding benefits. Corresponding benefits which may be
accepted by the Chief for sharing road use will be those which bear a
reasonable relation to the management of lands administered by the
Forest Service. They may be in the form of:
(1) Deposit of funds with the Forest Service for use in paying the
cost of road construction, reconstruction, or improvement to be borne by
the user;
[[Page 23]]
(2) The grant of a reciprocal right of substantially similar value
to the road use sought;
(3) Construction, reconstruction, or improvement by applicant of a
road needed for access to and use of lands administered by the Forest
Service; or (4) any combination of these.
(c) Cost determinations for roads cooperatively constructed under
agreements. When roads are constructed under cooperative agreements to
meet mutual needs of the United States and others for access,
determinations of the shares of costs to be borne by the United States
and the cooperating parties will include consideration of:
(1) The standard of road required for the planned hauling;
(2) The share of planned use;
(3) The location and volume of tributary timber owned by each party
and expected to be hauled over the road or roads;
(4) The tributary areas owned or controlled by each party;
(5) Expected use by the public; and
(6) Other appropriate considerations.
(d) Cost recovery by the United States from others. When roads are
used under permit for commercial hauling instead of under cooperative
agreement, any cost to be recovered by the United States will be
calculated in proportion to the planned use of the road. The road cost
used in such calculation will be the amount or estimated amount expended
in the acquisition, construction, reconstruction, and improvement of
that capacity of the road required to serve the use needs of all parties
that are or reasonably can be expected to use the road. The road costs
shall not exceed the replacement value of the road. Such road share-cost
payments will be through deposits in advance of use unless the user
provides a payment bond satisfactory to the Chief guaranteeing that
payments will be made promptly upon billing by the Forest Service.
(e) Cost sharing with a cooperator. The costs to achieve the agreed
upon road or road system may be met by:
(1) Use of appropriated funds;
(2) Construction, reconstruction, or improvement of roads or
segments of roads by purchasers of products from lands administered by
the Forest Service or other users;
(3) Use of deposits made by cooperator with the Forest Service to
cover cooperator's agreed share;
(4) Agreement with cooperator pursuant to which cooperator does more
than his agreed share of constructing, reconstructing, or improving a
road and recovers costs incurred in excess of his agreed share by
charging purchasers of products from lands administered by the Forest
Service an equitable amount within the limits and to the total amount
specified in the agreement; or
(5) A combination of the aforementioned methods.
(f) Road maintenance and resurfacing. Cooperators will share the
road maintenance and resurfacing costs under suitable agreements to
perform, arrange for performance by others, or by making deposits with
the Forest Service which will be used to pay the cost of work necessary
to keep such roads in satisfactory condition commensurate with use
requirements of each cooperator. No cooperator shall be required to
perform or bear such costs other than those occasioned by its individual
use. Other users will bear costs in accordance with Sec. 212.5(d).
(g) Interests to be acquired by the United States in roads or
easements therefor. Where the United States is to bear or share the cost
of constructing or improving, or acquiring a road system, a road, or a
segment thereof, or acquires an easement therefor, the interest acquired
will:
(1) Be for perpetual use unless the road use falls within the
limited classes where temporary roads or roads for limited periods are
acceptable;
(2) Provide adequately for foreseeable management, protection, and
utilization needs of lands administered by the Forest Service and
intermingled and adjacent private and public lands and for the use and
development of the resources upon which communities within or adjacent
to the National Forest are dependent; and
(3) not be subject to conditions, reservations, or convenants
unrelated to the road use, or which seek or might
[[Page 24]]
tend to direct or limit policies and procedures for management of lands
administered by the Forest Service.
(25 Stat. 357, 26 Stat. 1103, 30 Stat. 35-36, 1233, 38 Stat. 430, 46
Stat. 1421, 64 Stat. 82, 72 Stat. 885, as amended, 74 Stat. 215, 78
Stat. 1089; 16 U.S.C. 471, 478, 498, 525, 528-531, 532, 538, 551, 572,
23 U.S.C. 101, 205, 40 U.S.C. 257, 258a et seq.; 42 Atty. Gen. Op. No.
7; Comp. Gen. B-65972, May 19, 1947; 40 Comp. Gen. 372; 41 Comp. Gen. 1;
41 Comp. Gen. 576, and 42 Comp. Gen. 590)
[30 FR 5478, Apr. 16, 1965, as amended at 39 FR 27650, July 31, 1974.
Redesignated and amended at 62 FR 58654, Oct. 30, 1997]
Sec. 212.10 Maximum economy National Forest System roads.
The Chief may acquire, construct, reconstruct, improve, and maintain
National Forest System roads within and near the National Forests and
other lands administered by the Forest Service in locations and
according to specifications which will permit maximum economy in
harvesting timber from such lands tributary to such roads and at the
same time meet the requirements for protection, development, and
management thereof and for utilization of the other resources thereof.
Financing of such roads may be accomplished--
(a) By the Chief utilizing appropriated funds,
(b) By requirements on purchasers of National Forest timber and
other products, including provisions for amortization of road costs in
contracts,
(c) By cooperative financing with other public agencies and with
private agencies or persons, or
(d) By a combination of these methods, provided that where roads are
to be constructed at a higher standard than the standard--consistent
with applicable environmental laws and regulations--that is sufficient
for harvesting and removal of National Forest timber and other products
covered by a particular sale, the purchaser of the timber and other
products shall not be required to bear the part of the cost necessary to
meet the higher standard, and the Chief may make such arrangements to
achieve this end as may be appropriate.
(25 Stat. 357, 26 Stat. 1103, 30 Stat. 35-36, 1233, 38 Stat. 430, 46
Stat. 1421, 64 Stat. 82, 72 Stat. 885, as amended, 74 Stat. 215, 78
Stat. 1089; 16 U.S.C. 471, 478, 498, 525, 528-531, 532, 538, 551, 572,
23 U.S.C. 101, 205, 40 U.S.C. 257, 258a et seq.; 42 Atty. Gen. Op. No.
7; Comp. Gen. B-65972, May 19, 1947; 40 Comp. Gen. 372; 41 Comp. Gen. 1;
41 Comp. Gen. 576, and 42 Comp. Gen. 590)
[30 FR 5479, Apr. 16, 1965. Redesignated at 62 FR 58654, Oct. 30, 1997;
66 FR 3217, Jan. 12, 2001; 70 FR 68288, Nov. 9, 2005]
Sec. Sec. 212.11-212.20 [Reserved]
Sec. 212.21 Pacific Crest National Scenic Trail.
The Pacific Crest National Scenic Trail as defined by the National
Trails Systems Act, 82 Stat. 919, shall be administered primarily as a
footpath and horseback riding trail by the Forest Service in
consultation with the Secretary of the Interior. The use of motorized
vehicles may be authorized by the Federal Agency administering the
segment of trail involved when use of such vehicles is necessary to meet
emergencies or to enable landowners or land users to have reasonable
access to their lands or timber rights.
(82 Stat. 919 (16 U.S.C. 1241 et seq.))
[43 FR 20007, May 10, 1978]
Subpart B_Designation of Roads, Trails, and Areas for Motor Vehicle Use
Authority: 7 U.S.C. 1011(f), 16 U.S.C. 551, E.O. 11644, 11989 (42 FR
26959).
Source: 70 FR 68288, Nov. 9, 2005, unless otherwise noted.
Sec. 212.50 Purpose, scope, and definitions.
(a) Purpose. This subpart provides for a system of National Forest
System roads, National Forest System trails, and areas on National
Forest System lands that are designated for motor vehicle use. After
these roads, trails, and areas are designated, motor vehicle use,
including the class of vehicle and time of year, not in accordance with
these designations is prohibited by 36
[[Page 25]]
CFR 261.13. Motor vehicle use off designated roads and trails and
outside designated areas is prohibited by 36 CFR 261.13.
(b) Scope. The responsible official may incorporate previous
administrative decisions regarding travel management made under other
authorities, including designations and prohibitions of motor vehicle
use, in designating National Forest System roads, National Forest System
trails, and areas on National Forest System lands for motor vehicle use
under this subpart.
(c) For definitions of terms used in this subpart, refer to Sec.
212.1 in subpart A of this part.
Sec. 212.51 Designation of roads, trails, and areas.
(a) General. Motor vehicle use on National Forest System roads, on
National Forest System trails, and in areas on National Forest System
lands shall be designated by vehicle class and, if appropriate, by time
of year by the responsible official on administrative units or Ranger
Districts of the National Forest System, provided that the following
vehicles and uses are exempted from these designations:
(1) Aircraft;
(2) Watercraft;
(3) Over-snow vehicles (see Sec. 212.81);
(4) Limited administrative use by the Forest Service;
(5) Use of any fire, military, emergency, or law enforcement vehicle
for emergency purposes;
(6) Authorized use of any combat or combat support vehicle for
national defense purposes;
(7) Law enforcement response to violations of law, including
pursuit; and
(8) Motor vehicle use that is specifically authorized under a
written authorization issued under Federal law or regulations.
(b) Motor vehicle use for dispersed camping or big game retrieval.
In designating routes, the responsible official may include in the
designation the limited use of motor vehicles within a specified
distance of certain forest roads or trails where motor vehicle use is
allowed, and if appropriate within specified time periods, solely for
the purposes of dispersed camping or retrieval of a downed big game
animal by an individual who has legally taken that animal.
[70 FR 68288, Nov. 9, 2005, as amended at 73 FR 74613, Dec. 9, 2008]
Sec. 212.52 Public involvement.
(a) General. The public shall be allowed to participate in the
designation of National Forest System roads, National Forest System
trails, and areas on National Forest System lands and revising those
designations pursuant to this subpart. Advance notice shall be given to
allow for public comment, consistent with agency procedures under the
National Environmental Policy Act, on proposed designations and
revisions. Public notice with no further public involvement is
sufficient if a National Forest or Ranger District has made previous
administrative decisions, under other authorities and including public
involvement, which restrict motor vehicle use over the entire National
Forest or Ranger District to designated routes and areas, and no change
is proposed to these previous decisions and designations.
(b) Absence of public involvement in temporary, emergency closures--
(1) General. Nothing in this section shall alter or limit the authority
to implement temporary, emergency closures pursuant to 36 CFR part 261,
subpart B, without advance public notice to provide short-term resource
protection or to protect public health and safety.
(2) Temporary, emergency closures based on a determination of
considerable adverse effects. If the responsible official determines
that motor vehicle use on a National Forest System road or National
Forest System trail or in an area on National Forest System lands is
directly causing or will directly cause considerable adverse effects on
public safety or soil, vegetation, wildlife, wildlife habitat, or
cultural resources associated with that road, trail, or area, the
responsible official shall immediately close that road, trail, or area
to motor vehicle use until the official determines that such adverse
effects have been mitigated or eliminated and that measures have been
implemented to prevent future recurrence. The responsible official shall
provide public notice of the closure pursuant to 36 CFR 261.51,
including
[[Page 26]]
reasons for the closure and the estimated duration of the closure, as
soon as practicable following the closure.
Sec. 212.53 Coordination with Federal, State, county, and other
local governmental entities and tribal governments.
The responsible official shall coordinate with appropriate Federal,
State, county, and other local governmental entities and tribal
governments when designating National Forest System roads, National
Forest System trails, and areas on National Forest System lands pursuant
to this subpart.
Sec. 212.54 Revision of designations.
Designations of National Forest System roads, National Forest System
trails, and areas on National Forest System lands pursuant to Sec.
212.51 may be revised as needed to meet changing conditions. Revisions
of designations shall be made in accordance with the requirements for
public involvement in Sec. 212.52, the requirements for coordination
with governmental entities in Sec. 212.53, and the criteria in Sec.
212.55, and shall be reflected on a motor vehicle use map pursuant to
Sec. 212.56.
Sec. 212.55 Criteria for designation of roads, trails, and areas.
(a) General criteria for designation of National Forest System
roads, National Forest System trails, and areas on National Forest
System lands. In designating National Forest System roads, National
Forest System trails, and areas on National Forest System lands for
motor vehicle use, the responsible official shall consider effects on
National Forest System natural and cultural resources, public safety,
provision of recreational opportunities, access needs, conflicts among
uses of National Forest System lands, the need for maintenance and
administration of roads, trails, and areas that would arise if the uses
under consideration are designated; and the availability of resources
for that maintenance and administration.
(b) Specific criteria for designation of trails and areas. In
addition to the criteria in paragraph (a) of this section, in
designating National Forest System trails and areas on National Forest
System lands, the responsible official shall consider effects on the
following, with the objective of minimizing:
(1) Damage to soil, watershed, vegetation, and other forest
resources;
(2) Harassment of wildlife and significant disruption of wildlife
habitats;
(3) Conflicts between motor vehicle use and existing or proposed
recreational uses of National Forest System lands or neighboring Federal
lands; and
(4) Conflicts among different classes of motor vehicle uses of
National Forest System lands or neighboring Federal lands.
In addition, the responsible official shall consider:
(5) Compatibility of motor vehicle use with existing conditions in
populated areas, taking into account sound, emissions, and other
factors.
(c) Specific criteria for designation of roads. In addition to the
criteria in paragraph (a) of this section, in designating National
Forest System roads, the responsible official shall consider:
(1) Speed, volume, composition, and distribution of traffic on
roads; and
(2) Compatibility of vehicle class with road geometry and road
surfacing.
(d) Rights of access. In making designations pursuant to this
subpart, the responsible official shall recognize:
(1) Valid existing rights; and
(2) The rights of use of National Forest System roads and National
Forest System trails under Sec. 212.6(b).
(e) Wilderness areas and primitive areas. National Forest System
roads, National Forest System trails, and areas on National Forest
System lands in wilderness areas or primitive areas shall not be
designated for motor vehicle use pursuant to this section, unless, in
the case of wilderness areas, motor vehicle use is authorized by the
applicable enabling legislation for those areas.
Sec. 212.56 Identification of designated roads, trails, and areas.
Designated roads, trails, and areas shall be identified on a motor
vehicle use map. Motor vehicle use maps shall be made available to the
public at the headquarters of corresponding administrative units and
Ranger Districts of the National Forest System and, as
[[Page 27]]
soon as practicable, on the website of corresponding administrative
units and Ranger Districts. The motor vehicle use maps shall specify the
classes of vehicles and, if appropriate, the times of year for which use
is designated.
Sec. 212.57 Monitoring of effects of motor vehicle use on designated roads
and trails and in designated areas.
For each administrative unit of the National Forest System, the
responsible official shall monitor the effects of motor vehicle use on
designated roads and trails and in designated areas under the
jurisdiction of that responsible official, consistent with the
applicable land management plan, as appropriate and feasible.
Subpart C_Over-Snow Vehicle Use
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.
(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 over-snow vehicle use. After
these roads, trails, and areas are designated, over-snow vehicle use not
in accordance with these designations is prohibited by 36 CFR 261.14.
Over-snow vehicle use off designated roads and trails and outside
designated areas is prohibited by 36 CFR 261.14.
(b) Scope. The Responsible Official may incorporate previous
administrative decisions regarding over-snow vehicle use made under
other authorities in designating National Forest System roads, National
Forest System trails, and areas on National Forest System lands for
over-snow vehicle use under this subpart.
(c) Definitions. For definitions of terms used in this subpart,
refer to Sec. 212.1.
[80 FR 4511, Jan. 28, 2015]
Sec. 212.81 Over-snow vehicle use.
(a) General. Over-snow vehicle use on National Forest System roads,
on National Forest System trails, and in areas on National Forest System
lands shall be designated by the Responsible Official on administrative
units or Ranger Districts, or parts of administrative units or Ranger
Districts, of the National Forest System where snowfall is adequate for
that use to occur, and, if appropriate, shall be designated by class of
vehicle and time of year, provided that the following uses are exempted
from these decisions:
(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) Over-snow vehicle use that is specifically authorized under a
written authorization issued under Federal law or regulations.
(b) Previous over-snow vehicle decisions. Public notice with no
further public involvement is sufficient if an administrative unit or a
Ranger District has made previous administrative decisions, under other
authorities and including public involvement, which restrict over-snow
vehicle use to designated routes and areas over the entire
administrative unit or Ranger District, or parts of the administrative
unit or Ranger District, where snowfall is adequate for OSV use to
occur, and no change is proposed to these previous decisions.
(c) Identification of roads, trails, and areas for over-snow vehicle
use. Designation of National Forest System roads, National Forest System
trails, and areas on National Forest System lands for over-snow vehicle
use shall be reflected on an over-snow vehicle use map. Over-snow
vehicle use maps shall be made available to the public at headquarters
of corresponding administrative units and Ranger Districts of the
National Forest System and, as soon as practicable, on the Web site of
the corresponding administrative units
[[Page 28]]
and Ranger Districts. Over-snow vehicle use maps shall specify the
classes of vehicles and the time of year for which use is designated, if
applicable.
(d) Decision-making process. Except as modified in paragraph (b) of
this section, the requirements governing designation of National Forest
System roads, National Forest System trails, and areas on National
Forest System lands in Sec. Sec. 212.52 (public involvement), 212.53
(coordination), 212.54 (revision), 212.55 (designation criteria
(including minimization)), and 212.57 (monitoring), shall apply to
decisions made under this subpart. In making decisions under this
subpart, 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).
[80 FR 4511, Jan. 28, 2015]
PART 213_ADMINISTRATION OF LANDS UNDER TITLE III OF THE BANKHEAD-JONES FARM
TENANT ACT BY THE FOREST SERVICE--Table of Contents
Sec.
213.1 Designation, administration, and development of National
Grasslands.
213.2 Authority for Chief, Forest Service, to group, define, and name
national grasslands.
213.3 Protection, occupancy, use, administration, and exercise of
reservations.
213.4 Prior rules and regulations superseded.
Authority: 50 Stat. 525, as amended; 7 U.S.C. 1010-1012.
Sec. 213.1 Designation, administration, and development
of National Grasslands.
(a) The land utilization projects administered by Department of
Agriculture designated in paragraph (e) of this section hereafter shall
be named and referred to as National Grasslands.
(b) The National Grasslands shall be a part of the National Forest
system and permanently held by the Department of Agriculture for
administration under the provisions and purposes of title III of the
Bankhead-Jones Farm Tenant Act.
(c) The National Grasslands shall be administered under sound and
progressive principles of land conservation and multiple use, and to
promote development of grassland agriculture and sustained-yield
management of the forage, fish and wildlife, timber, water and
recreational resources in the areas of which the National Grasslands are
a part.
(d) In the administration of the National Grasslands the resources
shall be managed so as to maintain and improve soil and vegetative
cover, and to demonstrate sound and practical principles of land use for
the areas in which they are located. The Chief of the Forest Service
shall, to the extent such action is feasible provide that policies for
management of the Federally-owned lands exert a favorable influence for
securing sound land conservation practices on associated private lands.
(e) National Grasslands in the following States and counties are
hereby grouped and designated as indicated:
------------------------------------------------------------------------
State in which grassland is Counties where
located National grassland located
------------------------------------------------------------------------
California...................... Butte Valley...... Siskiyou.
Colorado........................ Pawnee............ Weld.
Comanche.......... Baca, Los Animas,
Otero.
Idaho........................... Curlew............ Oneida, Power.
Kansas.......................... Cimarron.......... Morton, Stevens.
Nebraska........................ Oglala............ Dawes, Sioux.
New Mexico...................... Kiowa............. Colfax, Harding,
Mora, Union.
North Dakota.................... Cedar River....... Grant, Sioux.
Sheyenne.......... Ransom, Richland.
Little Missouri... Billings, Golden
Valley, McKenzie,
Slope.
Oklahoma........................ Rita Blanca....... Cimarron.
Oklahoma-Texas.................. Black Kettle...... Roger Mills
(Okla.), Hemphill
(Tex.).
Oregon.......................... Crooked River..... Jefferson.
South Dakota.................... Buffalo Gap....... Custer, Fall
River, Jackson,
Pennington.
Grand River....... Corson, Perkins,
Ziebach.
Fort Pierre....... Jones, Lyman,
Stanley.
Texas........................... Lyndon B. Johnson. Montague, Wise.
Rita Blanca....... Dallas.
Caddo............. Fannin.
McClellan Creek... Gray.
Wyoming......................... Thunder Basin..... Campbell,
Converse, Crook,
Niobrara, Weston.
------------------------------------------------------------------------
[25 FR 5845, June 24, 1960, as amended at 27 FR 12217, Dec. 11, 1962; 28
FR 6268, June 19, 1963; 41 FR 38164, Sept. 9, 1976; 56 FR 8280, Feb. 28,
1991]
[[Page 29]]
Sec. 213.2 Authority for Chief, Forest Service, to group, define,
and name national grasslands.
The Chief, Forest Service, is authorized to group the national
grasslands into administrative units, define, change or modify their
boundaries, and to provide such specific designations therefor as he
finds necessary and desirable for effective and economical
administration thereof and for public and official reference thereto.
[33 FR 12370, Sept. 4, 1968]
Sec. 213.3 Protection, occupancy, use, administration,
and exercise of reservations.
(a) The rules and regulations applicable to the national forests as
set forth in title 36, Code of Federal Regulations, or as hereafter
amended, supplemented, or promulgated, are hereby adopted as the rules
and regulations to govern the exercise of reservations in conveyances to
the United States and to prevent trespasses on and otherwise regulate
the protection, use, occupancy, and administration of the National
Grasslands and all other lands administered by the Forest Service under
the provisions of title III of the Bankhead-Jones Farm Tenant Act
insofar as is practical and consistent with said act: Provided, That
Forest Service officers may continue under delegated authority to
acquire lands, to make exchanges, to grant easements and enter into
leases, permits, agreements, contracts and memoranda of understanding
involving such lands under such terms and conditions and for such
consideration, fees or rentals as authorized by title III of the said
Act.
(b) Existing valid rights, reservations easements, leases, permits,
agreements, contracts and memoranda of understanding affecting these
lands shall continue in full force and effect so long as they remain
valid in accordance with the terms thereof.
[27 FR 9217, Sept. 18, 1962]
Sec. 213.4 Prior rules and regulations superseded.
Except as provided in Sec. 213.3, the rules and regulations
heretofore issued for the land utilization projects are hereby
superseded as to all such projects administered by the Forest Service,
but not as to such project lands administered by other agencies.
[27 FR 9217, Sept. 18, 1962]
PART 214_POSTDECISIONAL ADMINISTRATIVE REVIEW PROCESS FOR OCCUPANCY
OR USE OF NATIONAL FOREST SYSTEM LANDS AND RESOURCES--Table of Contents
Sec.
214.1 Purpose and scope.
214.2 Definitions.
214.3 Parties to an appeal.
214.4 Decisions that are appealable.
214.5 Decisions that are not appealable.
214.6 Notice of an appealable decision.
214.7 Levels of review.
214.8 Appeal content.
214.9 Filing of an appeal.
214.10 Dismissal of an appeal.
214.11 Intervention.
214.12 Responsive statement and reply.
214.13 Stays.
214.14 Conduct of an appeal.
214.15 Resolution of issues prior to an appeal decision.
214.16 Oral presentation.
214.17 Appeal record.
214.18 Appeal decision.
214.19 Procedures for discretionary review.
214.20 Exhaustion of administrative remedies.
214.21 Information collection requirements.
214.22 Applicability and effective date.
Authority: 7 U.S.C. 1011(f); 16 U.S.C. 472, 551.
Source: 78 FR 33717, June 5, 2013, unless otherwise noted.
Sec. 214.1 Purpose and scope.
(a) Purpose. This part provides a fair and deliberate process by
which holders, operators, and solicited applicants may appeal certain
written decisions issued by Responsible Officials involving written
instruments authorizing the occupancy or use of National Forest System
lands and resources.
(b) Scope. This part specifies who may appeal, decisions that are
appealable and not appealable, the responsibilities of parties to an
appeal, and the time periods and procedures that govern the conduct of
appeals under this part.
[[Page 30]]
Sec. 214.2 Definitions.
Appeal. A document filed with an Appeal Deciding Officer in which an
individual or entity seeks review of a Forest Service decision under
this part.
Appeal Deciding Officer. The Forest Service line officer who is one
organizational level above the Responsible Official or the respective
Deputy Forest Supervisor, Deputy Regional Forester, or Associate Deputy
Chief with the delegation of authority relevant to the provisions of
this part.
Appeal decision. The final written decision issued by an Appeal
Deciding Officer on an appeal filed under this part which affirms or
reverses a Responsible Official's appealable decision in whole or in
part, explains the basis for the decision, and provides additional
instructions to the parties as necessary.
Appeal record. Documentation and other information filed with the
Appeal Deciding Officer within the relevant time period by parties to
the appeal and upon which review of an appeal is conducted.
Appellant. An individual or entity that has filed an appeal under
this part.
Cancellation. The invalidation, in whole or in part, of a term
grazing permit or an instrument for the disposal of mineral materials.
Discretionary Reviewing Officer. The U.S. Department of Agriculture
(USDA) or Forest Service official authorized to review an appeal
decision by an Appeal Deciding Officer or a decision by the Chief under
this part.
Holder. An individual or entity that holds a valid written
authorization.
Intervenor. An individual or entity whose request to intervene has
been granted by the Appeal Deciding Officer.
Modification. A Responsible Official's written revision of the terms
and conditions of a written authorization.
Operator. An individual or entity conducting or proposing to conduct
mineral operations.
Oral presentation. An informal meeting conducted by the Appeal
Deciding Officer during which parties to an appeal may present
information in support of their position.
Prospectus. An announcement published by the Forest Service
soliciting competitive applications for a written authorization.
Responsible Official. The Forest Service line officer who has the
delegated authority to make and implement a decision that may be
appealed under this part.
Responsive statement. The document filed by the Responsible Official
with the Appeal Deciding Officer that addresses the issues raised and
relief requested in an appeal.
Revocation. The cessation, in whole or in part, of a written
authorization, other than a grazing permit or an instrument for the
disposal of mineral materials, by action of Responsible Official before
the end of the specified period of occupancy or use.
Solicited applicant. An individual or entity that has submitted a
competitive application in response to a prospectus.
Suspension. A temporary revocation or cancellation of a written
authorization.
Termination. The cessation of a written authorization by operation
of law or by operation of a fixed or agreed-upon condition, event, or
time as specified in the authorization, which does not require a
decision by a Responsible Official to take effect.
Written authorization. A term grazing permit, plan of operations,
special use authorization, mineral material contract or permit, or other
type of written instrument issued by the Forest Service or a lease or
permit for leasable minerals issued by the U.S. Department of the
Interior that authorizes the occupancy or use of National Forest System
lands or resources and specifies the terms and conditions under which
the occupancy or use may occur.
Sec. 214.3 Parties to an appeal.
Parties to an appeal under this part are limited to the holder,
operator, or solicited applicants who are directly affected by an
appealable decision, intervenors, and the Responsible Official.
Sec. 214.4 Decisions that are appealable.
To be appealable under this part, a decision must be issued by a
Responsible Official in writing and must fall into one of the following
categories:
[[Page 31]]
(a) Livestock grazing. (1) Modification of a term grazing permit
issued under 36 CFR part 222, subpart A. Issuance of annual operating
instructions does not constitute a permit modification and is not an
appealable decision;
(2) Suspension or cancellation, other than cancellation resulting
from the permittee's waiver to the United States, of a term grazing
permit issued under 36 CFR part 222, subpart A;
(3) Denial of reauthorization of livestock grazing under a term
grazing permit if the holder files an application for a new permit
before the existing permit expires; or
(4) Denial of a term grazing permit to a solicited applicant under
36 CFR part 222, subpart C.
(b) Minerals. (1) Approval or denial of an initial, modified, or
supplemental plan of operations or operating plan; requirement of an
increase in bond coverage; requirement of measures to avoid irreparable
injury, loss, or damage to surface resources pending modification of a
plan of operations or operating plan; or issuance of a notice of
noncompliance pursuant to 36 CFR part 228, subpart A or D, or part 292,
subpart D, F, or G;
(2) Approval or denial of an operating plan, issuance of a notice of
noncompliance, or extension, suspension, or cancellation, other than
cancellation by mutual agreement, for or of contracts, permits, or
prospecting permits for mineral materials issued under 36 CFR part 228,
subpart C;
(3) Approval or denial of a surface use plan of operations, request
to supplement a surface use plan of operations, suspension of oil and
gas operations, or issuance of a notice of noncompliance pursuant to 36
CFR part 228, subpart E;
(4) Consent or denial of consent to the U.S. Department of the
Interior's administration of previously issued leases or permits for
leasable minerals other than oil and gas resources;
(5) Suspension or revocation of an operating plan for Federal lands
within the Sawtooth National Recreation Area pursuant to 36 CFR part
292, subpart D;
(6) Suspension of locatable mineral operations on National Forest
System lands within the Hells Canyon National Recreation Area pursuant
to 36 CFR part 292, subpart F;
(7) Suspension of locatable mineral operations on National Forest
System lands within the Smith River National Recreation Area or approval
of an initial or amended operating plan for exercise of outstanding
mineral rights on National Forest System lands within the Smith River
National Recreation Area pursuant to 36 CFR part 292, subpart G;
(8) Except as provided in paragraph (7), determinations of the
acceptability of an initial or amended operating plan for exercise of
outstanding mineral rights on National Forest System lands; or
(9) Determinations of the acceptability of an initial or amended
operating plan for exercise of reserved mineral rights located on
National Forest System lands.
(c) Special uses. (1) Modification, suspension, or revocation of a
special use authorization, other than acceptance of an operating plan,
including:
(i) A special use authorization issued under 36 CFR part 251,
subpart B or D, other than modification, suspension or revocation of a
noncommercial group use permit, suspension or revocation of an easement
issued pursuant to 36 CFR 251.53(e) or 251.53(l), or revocation with the
consent of the holder;
(ii) A special use authorization issued under 36 CFR part 212,
subpart A, for ingress and egress to private lands that are intermingled
with or adjacent to National Forest System lands;
(iii) A special use authorization issued under 36 CFR part 251,
subpart A, that authorizes the exercise of rights reserved in
conveyances to the United States;
(iv) A permit and occupancy agreement issued under 36 CFR 213.3 for
national grasslands and other lands administered under Title III of the
Bankhead-Jones Farm Tenant Act;
(v) A permit issued under 36 CFR 293.13 for access to valid
occupancies entirely within a wilderness in the National Forest System.
(vi) A permit issued under the Archaeological Resources Protection
Act of 1979 and 36 CFR part 296 for excavation or removal of
archaeological resources; and
[[Page 32]]
(vii) A special use authorization governing surface use associated
with the exercise of outstanding mineral rights;
(2) Denial of a special use authorization to a solicited applicant
based on the process used to select a successful applicant;
(3) Implementation of new land use fees for a special use
authorization, other than:
(i) Revision or replacement of a land use fee system or schedule
that is implemented through public notice and comment; and
(ii) Annual land use fee adjustments based on an inflation factor
that are calculated under an established fee system or schedule in
accordance with the terms and conditions of a written authorization;
(4) Assignment of a performance rating that affects reissuance or
extension of a special use authorization; or
(5) Denial of renewal of a special use authorization if it
specifically provides for renewal and if the holder requests renewal of
the authorization before it expires.
(d) Other land uses. Denial or revocation of a certification of
compliance issued under 36 CFR part 292, subpart C, related to the use,
subdivision, and development of privately owned property within the
boundaries of the Sawtooth National Recreation Area.
(e) Paleontological resources. An authorization or permit issued
under the Paleontological Resources Preservation Act of 2009 and 36 CFR
part 291 for collection of paleontological resources.
[78 FR 33717, June 5, 2013, as amended at 80 FR 21629, Apr. 17, 2015]
Sec. 214.5 Decisions that are not appealable.
Holders, operators, and solicited applicants may not appeal under
this part any decisions issued by a Responsible Official that are not
expressly set forth in Sec. 214.4.
Sec. 214.6 Notice of an appealable decision.
(a) The Responsible Official shall promptly give written notice of
decisions subject to appeal under this part to the affected holder,
operator, or solicited applicants and to any holder of a similar written
authorization who has made a written request to be notified of a
specific decision.
(b) If the decision is appealable, the notice must specify the
contents of an appeal, the name and mailing address of the Appeal
Deciding Officer, and the filing deadline. The notice shall also include
a statement indicating the Responsible Official's willingness to meet
with the affected holder, operator, or solicited applicants to discuss
any issues related to the decision and, where applicable, informing term
grazing permit holders of the opportunity to request mediation in
accordance with 36 CFR 222.20 through 222.26.
(c) If the decision is not appealable, the Responsible Official must
include a statement in the written decision informing the affected
holder, operator, or solicited applicants that further administrative
review of the decision is not available.
Sec. 214.7 Levels of review.
(a) Appeal. (1) One level of appeal is available for appealable
decisions made by District Rangers, Forest or Grassland Supervisors, and
Regional Foresters. If a District Ranger is the Responsible Official,
the appeal is filed with the Forest or Grassland Supervisor. If a Forest
or Grassland Supervisor is the Responsible Official, the appeal is filed
with the Regional Forester. If a Regional Forester is the Responsible
Official, the appeal is filed with the Chief of the Forest Service.
(2) No appeal is available for decisions made by the Chief.
(b) Discretionary review. (1) Appeal decisions issued by Forest or
Grassland Supervisors, Regional Foresters, or the Chief are eligible for
discretionary review. If a Forest or Grassland Supervisor is the Appeal
Deciding Officer, discretionary review is conducted by the Regional
Forester. If a Regional Forester is the Appeal Deciding Officer,
discretionary review is conducted by the Chief. If the Chief is the
Appeal Deciding Officer, discretionary review is conducted by the Under
Secretary for Natural Resources and Environment.
[[Page 33]]
(2) Decisions made by the Chief that fall into one of the categories
enumerated in 36 CFR 214.4 are eligible for discretionary review by the
Under Secretary for Natural Resources and Environment.
Sec. 214.8 Appeal content.
(a) General requirements for the contents of an appeal. All appeals
must include:
(1) The appellant's name, mailing address, daytime telephone number,
and email address, if any;
(2) A brief description of the decision being appealed, including
the name and title of the Responsible Official and the date of the
decision;
(3) The title or type and, if applicable, identification number for
the written authorization and the date of application for or issuance of
the written authorization, if applicable;
(4) A statement of how the appellant is adversely affected by the
decision being appealed;
(5) A statement of the relevant facts underlying the decision being
appealed;
(6) A discussion of issues raised by the decision being appealed,
including identification of any laws, regulations, or policies that were
allegedly violated in reaching the decision being appealed;
(7) A statement as to whether and how the appellant has attempted to
resolve the issues under appeal with the Responsible Official and the
date and outcome of those efforts;
(8) A statement of the relief sought;
(9) Any documents and other information upon which the appellant
relies; and
(10) The appellant's signature and the date.
(b) Specific requirements for the contents of an appeal. In addition
to the general requirements in Sec. 214.8(a), the following specific
requirements must be included in an appeal, where applicable:
(1) A request for an oral presentation under Sec. 214.16;
(2) A request for a stay under Sec. 214.13; and
(3) A request to participate in a state mediation program regarding
certain term grazing permit disputes under 36 CFR part 222, subpart B.
Sec. 214.9 Filing of an appeal.
(a) Timeframe for filing an appeal. An appeal must be filed with the
Appeal Deciding Officer within 45 days of the date of the decision.
(b) Method of filing. Appeal documents may be filed in person or by
courier, by mail or private delivery service, by facsimile, or by
electronic mail. Parties to an appeal are responsible for ensuring
timely filing of appeal documents.
Sec. 214.10 Dismissal of an appeal.
(a) The Appeal Deciding Officer shall dismiss an appeal without
review when one or more of the following applies:
(1) The appeal is not filed within the required time period.
(2) The person or entity that filed the appeal is not a holder, an
operator, or a solicited applicant of a written authorization that is
the subject of the appealable decision.
(3) The decision is not appealable under this part.
(4) The appeal does not meet the content requirements specified in
Sec. 214.8(a), provided that an appeal may not be dismissed for failure
to include an appraisal report which has not been completed by the
filing deadline.
(5) The appellant withdraws the appeal.
(6) The Responsible Official withdraws the written decision that was
appealed.
(7) An informal resolution of the dispute is reached pursuant to
Sec. 214.15 or a mediated agreement of a term grazing dispute is
achieved pursuant to 36 CFR part 222, subpart B.
(8) The requested relief cannot be granted under applicable facts,
laws, regulations, or policies.
(b) The Appeal Deciding Officer shall give written notice of the
dismissal of an appeal and shall set forth the reasons for dismissal.
Sec. 214.11 Intervention.
(a) Eligibility to intervene. To participate as an intervenor in
appeals under this part, a party must:
(1) Be a holder, an operator, or a solicited applicant who claims an
interest relating to the subject matter of the decision being appealed
and is so
[[Page 34]]
situated that disposition of the appeal may impair that interest; and
(2) File a written request to intervene with the Appeal Deciding
Officer within 15 days after an appeal has been filed.
(b) Request to intervene. A request to intervene must include:
(1) The requester's name, mailing address, daytime telephone number,
and email address, if any;
(2) A brief description of the decision being appealed, including
the name and title of the Responsible Official and the date of the
decision;
(3) The title or type and, if applicable, identification number for
the written authorization and the date of application for or issuance of
the written authorization, if applicable;
(4) A description of the requester's interest in the appeal and how
disposition of the appeal may impair that interest;
(5) A discussion of the factual and legal allegations in the appeal
with which the requester agrees or disagrees;
(6) A description of additional facts and issues that are not raised
in the appeal that the requester believes are relevant and should be
considered;
(7) A description of the relief sought, particularly as it differs
from the relief sought by the appellant;
(8) Where applicable, a response to the appellant's request for a
stay of the decision being appealed;
(9) Where applicable, a response to the appellant's request for an
oral presentation;
(10) Where applicable, a response to the appellant's request for
mediation of a term grazing permit dispute under 36 CFR part 222,
subpart B; and
(11) The requester's signature and the date.
(c) Response to a request to intervene. The appellant and
Responsible Official shall have 5 days from receipt of a request to
intervene to file a written response with the Appeal Deciding Officer.
(d) Intervention decision. The Appeal Deciding Officer shall have 5
days after the date a response to a request to intervene is due to issue
a decision granting or denying the request. The Appeal Deciding
Officer's decision shall be in writing and shall briefly explain the
basis for granting or denying the request. The Appeal Deciding Officer
shall deny a request to intervene or shall withdraw a decision granting
intervenor status as moot if the corresponding appeal is dismissed under
Sec. 214.10.
Sec. 214.12 Responsive statement and reply.
(a) Responsive statement. The Responsible Official shall prepare a
responsive statement addressing the factual and legal allegations in the
appeal. The responsive statement and any supporting documentation shall
be filed with the Appeal Deciding Officer within 20 days of receipt of
the appeal or the unsuccessful conclusion of mediation conducted
pursuant to 36 CFR part 222, subpart B, whichever is later.
(b) Reply. Within 10 days of receipt of the responsive statement,
the appellant and intervenors, if any, may file a reply with the Appeal
Deciding Officer addressing the contentions in the responsive statement.
Sec. 214.13 Stays.
(a) Implementation. An appealable decision shall be implemented
unless an authorized stay is granted under Sec. 214.13(b) or an
automatic stay goes into effect under Sec. 214.13(c).
(b) Authorized stays. Except where a stay automatically goes into
effect under Sec. 214.13(c), the Appeal Deciding Officer may grant a
written request to stay the decision that is the subject of an appeal
under this part.
(1) Stay request. To obtain a stay, an appellant must include a
request for a stay in the appeal pursuant to Sec. 214.8(b)(2) and a
statement explaining the need for a stay. The statement must include, at
a minimum:
(i) A description of the adverse impact on the appellant if a stay
is not granted;
(ii) A description of the adverse impact on National Forest System
lands and resources if a stay is not granted; or
(iii) An explanation as to how a meaningful decision on the merits
of the appeal could not be achieved if a stay is not granted.
[[Page 35]]
(2) Stay response. The Responsible Official may support, oppose, or
take no position in the responsive statement regarding the appellant's
stay request. Intervenors may support, oppose, or take no position in
the intervention request regarding the appellant's stay request.
(3) Stay decision. The Appeal Deciding Officer shall issue a
decision granting or denying a stay request within 10 days after a
responsive statement or an intervention request is filed, whichever is
later. The stay decision shall be in writing and shall briefly explain
the basis for granting or denying the stay request.
(c) Automatic stays. The following decisions are automatically
stayed once an appeal is filed by a holder, operator, or solicited
applicant:
(1) Decisions to issue a written authorization pursuant to a
prospectus;
(2) Decisions to recalculate revenue-based land use fees for a
special use authorization pursuant to an audit issued after June 5,
2013; and
(3) Decisions to cancel or suspend a term grazing permit subject to
mediation under 36 CFR 222.20 and for which mediation is requested in
accordance with that provision.
(d) Stay duration. Authorized stays and automatic stays under Sec.
214.13(c)(1) and (c)(2) shall remain in effect until a final
administrative decision is issued in the appeal, unless they are
modified or lifted in accordance with Sec. 214.13(e). Automatic stays
under Sec. 214.13(c)(3) shall remain in effect for the duration of the
mediation period as provided in 36 CFR 222.22.
(e) Modification or lifting of a stay. The Appeal Deciding Officer
or a Discretionary Reviewing Officer may modify or lift an authorized
stay based upon a written request by a party to the appeal who
demonstrates that the circumstances have changed since the stay was
granted and that it is unduly burdensome or unfair to maintain the stay.
Sec. 214.14 Conduct of an appeal.
(a) Evidence of timely filing. The Appeal Deciding Officer shall
determine the timeliness of an appeal by the following indicators:
(1) The date of the U.S. Postal Service postmark for an appeal
received before the close of the fifth business day after the appeal
filing date;
(2) The electronically generated posted date and time for email and
facsimiles;
(3) The shipping date for delivery by private carrier for an appeal
received before the close of the fifth business day after the appeal
filing date; or
(4) The official agency date stamp showing receipt of hand delivery.
(b) Computation of time. (1) A time period in this part begins on
the first day following the event or action triggering the time period.
(2) All time periods shall be computed using calendar days,
including Saturdays, Sundays, and Federal holidays. However, if a time
period ends on a Saturday, Sunday, or Federal holiday, the time period
is extended to the end of the next Federal business day.
(c) Extensions of time--(1) In general. Parties to an appeal, Appeal
Deciding Officers, and Discretionary Reviewing Officers shall meet the
time periods specified in this part, unless an extension of time has
been granted under paragraph (c)(3) of this section. Extension requests
from parties to an appeal shall be made in writing, shall explain the
need for the extension, and shall be transmitted to the Appeal Deciding
Officer.
(2) Time periods that may not be extended. The following time
periods may not be extended:
(i) The time period for filing an appeal;
(ii) The time period to decide whether to conduct discretionary
review of an appeal decision or a Chief's decision; and
(iii) The time period to issue a discretionary review decision.
(3) Time periods that may be extended. Except as provided in
paragraph (c)(2) of this section, all time periods in this part may be
extended upon written request by a party to an appeal and a finding of
good cause for the extension by the Appeal Deciding Officer. Written
requests for extensions of time will be automatically granted by the
Appeal Deciding Officer where the parties to an appeal represent that
they are working in good faith to resolve the
[[Page 36]]
dispute and that additional time would facilitate negotiation of a
mutually agreeable resolution.
(4) Decision. The Appeal Deciding Officer shall have 10 days to
issue a decision granting or denying the extension request. The decision
shall be in writing and shall briefly explain the basis for granting or
denying the request.
(5) Duration. Ordinarily, extensions that add more than 60 days to
the appeal period should not be granted.
(d) Procedural orders. The Appeal Deciding Officer may issue
procedural orders as necessary for the orderly, expeditious, and fair
conduct of an appeal under this part.
(e) Consolidation of appeals. (1) The Appeal Deciding Officer may
consolidate multiple appeals of the same decision or of similar
decisions involving common issues of fact and law and issue one appeal
decision.
(2) The Responsible Official may prepare one responsive statement
for consolidated appeals.
(f) Requests for additional information. The Appeal Deciding Officer
may ask parties to an appeal for additional information to clarify
appeal issues. If necessary, the Appeal Deciding Officer may extend
appeal time periods per paragraph (c)(3) of this section to allow for
submission of the additional information and to give the other parties
an opportunity to review and comment on it.
(g) Service of documents. (1) Parties to an appeal shall send a copy
of all documents filed in the appeal to all other parties, including the
appellant's sending a copy of the appeal to the Responsible Official, at
the same time the original is filed with the Appeal Deciding Officer.
All filings in an appeal must be accompanied by a signed and dated
certificate of service attesting that all other parties have been
served. Prospective intervenors shall send a copy of their request to
intervene to all parties to the appeal at the same time the original is
filed with the Appeal Deciding Officer. Each party and prospective
intervenor is responsible for identifying the parties to the appeal and
may contact the Appeal Deciding Officer for assistance regarding their
names and addresses. Filings in an appeal shall not be considered by the
Appeal Deciding Officer unless they are accompanied by a certificate of
service.
(2) All decisions and orders issued by the Appeal Deciding Officer
and the Discretionary Reviewing Officer related to the appeal shall be
in writing and shall be sent to all parties to the appeal.
(h) Posting of final decisions. Once a final appeal decision or
discretionary review decision has been issued, its availability shall be
posted on the Web site of the national forest or national grassland or
region that issued the appealable decision or on the Web site of the
Washington Office for Chief's decisions.
(i) Expenses. Each party to an appeal shall bear its own expenses,
including costs associated with preparing the appeal, participating in
an oral presentation, obtaining information regarding the appeal, and
retaining professional consultants or counsel.
Sec. 214.15 Resolution of issues prior to an appeal decision.
(a) The Responsible Official may discuss an appeal with a party or
parties to narrow issues, agree on facts, and explore opportunities to
resolve one or more of the issues in dispute by means other than
issuance of an appeal decision.
(b) The Responsible Official who issued a decision under appeal may
withdraw the decision, in whole or in part, during an appeal to resolve
one or more issues in dispute. The Responsible Official shall notify the
parties to the appeal and the Appeal Deciding Officer of the withdrawal.
If the withdrawal of the decision eliminates all the issues in dispute
in the appeal, the Appeal Deciding Officer shall dismiss the appeal
under Sec. 214.10.
Sec. 214.16 Oral presentation.
(a) Purpose. The purpose of an oral presentation is to provide
parties to an appeal with an opportunity to discuss their concerns
regarding the appealable decision with the Appeal Deciding Officer.
(b) Procedure. Oral presentations are not evidentiary proceedings
involving examination and cross-examination of witnesses and are not
subject to formal rules of procedure.
[[Page 37]]
(c) Scope. Oral presentations shall be conducted in an informal
manner and shall be limited to clarifying or elaborating upon
information that has already been filed with the Appeal Deciding
Officer. New information may be presented only if it could not have been
raised earlier in the appeal and if it would be unfair and prejudicial
to exclude it.
(d) Requests. A request for an oral presentation included in an
appeal shall be granted by the Appeal Deciding Officer unless the appeal
has been dismissed under Sec. 214.10.
(e) Availability. Oral presentations may be conducted during appeal
of a decision, but not during discretionary review.
(f) Scheduling and rules. The Appeal Deciding Officer shall conduct
the oral presentation within 10 days of the date a reply to the
responsive statement is due. The Appeal Deciding Officer shall notify
the parties of the date, time, and location of the oral presentation and
the procedures to be followed.
(g) Participation. All parties to an appeal are eligible to
participate in the oral presentation. At the discretion of the Appeal
Deciding Officer, non-parties may observe the oral presentation, but are
not eligible to participate.
(h) Summaries and transcripts. A summary of an oral presentation may
be included in the appeal record only if it is submitted to the Appeal
Deciding Officer by a party to the appeal at the end of the oral
presentation. A transcript of an oral presentation prepared by a
certified court reporter may be included in the appeal record if the
transcript is filed with the Appeal Deciding Officer within 10 days of
the date of the oral presentation and if the transcript is paid for by
those who requested it.
Sec. 214.17 Appeal record.
(a) Location. The Appeal Deciding Officer shall maintain the appeal
record in one location.
(b) Contents. The appeal record shall consist of information filed
with the Appeal Deciding Officer, including the appealable decision,
appeal, intervention request, responsive statement, reply, oral
presentation summary or transcript, procedural orders and other rulings,
and any correspondence or other documentation related to the appeal as
determined by the Appeal Deciding Officer.
(c) Closing of the record. (1) The Appeal Deciding Officer shall
close the appeal record on:
(i) The day after the date the reply to the responsive statement is
due if no oral presentation is conducted;
(ii) The day after the oral presentation is conducted if no
transcript of the oral presentation is being prepared; or
(iii) The day after the date a transcript of the oral presentation
is due if one is being prepared.
(2) The Appeal Deciding Officer shall notify all parties to the
appeal of closing of the record.
(d) Inspection by the public. The appeal record is open for public
inspection in accordance with the Freedom of Information Act, the
Privacy Act, and 7 CFR part 1.
Sec. 214.18 Appeal decision.
(a) Appeal decisions made by the Appeal Deciding Officer shall be
issued within 30 days of the date the appeal record is closed.
(b) The appeal decision shall be based solely on the appeal record
and oral presentation, if one is conducted.
(c) The appeal decision shall conform to all applicable laws,
regulations, policies, and procedures.
(d) The appeal decision may affirm or reverse the appealable
decision, in whole or in part. The appeal decision must specify the
basis for affirmation or reversal and may include instructions for
further action by the Responsible Official.
(e) Except where a decision to conduct discretionary review has been
made and a discretionary review decision has been issued, the appeal
decision shall constitute USDA's final administrative decision.
Sec. 214.19 Procedures for discretionary review.
(a) Initiation. (1) One day after issuance of an appeal decision,
the Appeal Deciding Officer shall send a copy of the appeal decision,
appeal, and appealable decision to the Discretionary
[[Page 38]]
Reviewing Officer to determine whether discretionary review of the
appeal decision should be conducted.
(2) One day after issuance of a Chief's decision that is eligible
for discretionary review under Sec. 214.7(b)(2), the Chief shall send
the decision to the Discretionary Reviewing Officer to determine whether
discretionary review should be conducted.
(b) Criteria for determining whether to conduct discretionary
review. In deciding whether to conduct discretionary review, the
Discretionary Reviewing Officer should, at a minimum, consider the
degree of controversy surrounding the decision, the potential for
litigation, and the extent to which the decision establishes precedent
or new policy.
(c) Time period. Upon receipt of the appeal decision, appeal, and
appealable decision or Chief's decision, the Discretionary Reviewing
Officer shall have 30 days to determine whether to conduct discretionary
review and may request the appeal record or the record related to the
Chief's decision during that time to assist in making that
determination. If a request for the record is made, it must be
transmitted to the Discretionary Reviewing Officer within 5 days.
(d) Notification. The Discretionary Reviewing Officer shall notify
the parties and the Appeal Deciding Officer in writing of a decision to
conduct discretionary review. The Discretionary Reviewing Officer may
notify the parties and the Appeal Deciding Officer of a decision not to
conduct discretionary review within 30 days. If the Discretionary
Reviewing Officer takes no action within 30 days of receipt of the
appeal decision, appeal, and appealable decision or Chief's decision,
the appeal decision or Chief's decision shall constitute USDA's final
administrative decision.
(e) Scope of discretionary review and issuance of a discretionary
review decision. Discretionary review shall be limited to the record. No
additional information shall be considered by the Discretionary
Reviewing Officer. The Discretionary Reviewing Officer shall have 30
days to issue a discretionary review decision after notification of the
parties and Appeal Deciding Officer has occurred pursuant to Sec.
214.19(d). The Discretionary Reviewing Officer's decision shall
constitute USDA's final administrative decision. If a discretionary
review decision is not issued within 30 days following the notification
of the decision to conduct discretionary review, the appeal decision or
Chief's decision shall constitute USDA's final administrative decision.
Sec. 214.20 Exhaustion of administrative remedies.
Per 7 U.S.C. 6912(e), judicial review of a decision that is
appealable under this part is premature unless the plaintiff has
exhausted the administrative remedies under this part.
Sec. 214.21 Information collection requirements.
The rules of this part governing appeal of decisions relating to
occupancy or use of National Forest System lands and resources specify
the information that an appellant must provide in an appeal. Therefore,
these rules contain information collection requirements as defined in 5
CFR part 1320. These information collection requirements are assigned
Office of Management and Budget Control Number 0596-0231.
Sec. 214.22 Applicability and effective date.
This part prescribes the procedure for administrative review of
appealable decisions and Chief's decisions set forth in Sec. 214.4
issued on or after June 5, 2013.
PART 215 [RESERVED]
PART 216_PUBLIC NOTICE AND COMMENT FOR STANDARDS, CRITERIA,
AND GUIDANCE APPLICABLE TO FOREST SERVICE PROGRAMS--Table of Contents
Sec.
216.1 Purpose and scope.
216.2 Definition.
216.3 Notice and opportunity for public comment.
216.4 Interim directives.
Authority: 16 U.S.C. 1612(a).
Source: 83 FR 13649, March 30, 2018, unless otherwise noted.
[[Page 39]]
Sec. 216.1 Purpose and scope.
(a) This part sets forth the process that the Forest Service will
use to ensure adequate notice and an opportunity for comment from the
public, Tribal, State and local governments, and other Federal agencies
with respect to the formulation in Forest Service directives of
standards, criteria, and guidelines applicable to Forest Service
programs. Nothing in this Part restricts the Forest Service from
providing additional public participation opportunities, including
public hearings, where appropriate.
(b) This part applies to the formulation in Forest Service
directives of standards, criteria, and guidelines applicable to Forest
Service programs. This part does not apply to Forest Service directives
pertaining to law enforcement and investigations; personnel matters;
procurement; administrative support activities such as budget and
finance; business operations; and activities undertaken by the Forest
Service on behalf of other Federal agencies. To the extent that any
other part in this chapter of the Code of Federal Regulations requires
greater opportunities for the public to participate with respect to
policymaking or the issuance of directives than are required by this
part, the other Part shall be controlling.
Sec. 216.2 Definition.
Directive means the contents of the Forest Service Manual and Forest
Service Handbooks issued as described at 36 CFR 200.4(c).
[85 FR 2864, Jan. 16, 2020]
Sec. 216.3 Notice and an opportunity for public comment.
(a) Prior to issuing a final directive subject to this part, the
Forest Service shall:
(1) Provide notice to the public of a proposed directive or interim
directive and provide an opportunity to submit comments during a comment
period of not less than 30 days in accordance with the requirements this
section; and,
(2) Review, consider and respond to timely comments received.
(b) Notices required by paragraph (a) of this section shall:
(1) Be published on a schedule for proposed directives and interim
directives maintained by the Forest Service in a centralized repository
on the Forest Service website.
(2) Provide a physical mailing address and an internet address or
similar online resource for submitting comments.
(c) Notices of final directives shall be published on a schedule on
the Forest Service website.
[83 FR 13649, March 30, 2018, as amended at 85 FR 2864, Jan. 16, 2020]
Sec. 216.4 Interim directives.
Upon a finding of good cause that an exigency exists, an interim
directive may be effective in advance of providing notice and an
opportunity for public comment. As described in Sec. 216.3, opportunity
will be given for public comment before the interim directive is made
final. The basis for the determination that good cause exists for the
issuance of an interim directive shall be published at the time the
directive is issued.
PART 218_PROJECT-LEVEL PREDECISIONAL ADMINISTRATIVE REVIEW PROCESS--
Table of Contents
Subpart A_General Provisions
Sec.
218.1 Purpose and scope.
218.2 Definitions.
218.3 Reviewing officer.
218.4 Proposed projects and activities not subject to objection.
218.5 Who may file an objection.
218.6 Computation of time periods.
218.7 Giving notice of objection process for proposed projects and
activities subject to objection.
218.8 Filing an objection.
218.9 Evidence of timely filing.
218.10 Objections set aside from review.
218.11 Resolution of objections.
218.12 Timing of project decision.
218.13 Secretary's authority.
218.14 Judicial proceedings.
218.15 Information collection requirements.
[[Page 40]]
218.16 Effective dates.
Subpart B_Provisions Specific to Project-Level Proposals Not Authorized
Under the Healthy Forests Restoration Act
218.20 Applicability and scope.
218.21 Emergency situations.
218.22 Proposed projects and activities subject to legal notice and
opportunity to comment.
218.23 Proposed projects and activities not subject to legal notice and
opportunity to comment.
218.24 Notification of opportunity to comment on proposed projects and
activities.
218.25 Comments on proposed projects and activities.
218.26 Objection time periods.
Subpart C_Provisions Specific to Proposed Projects Authorized Under the
Healthy Forests Restoration Act
218.30 Applicability and scope.
218.31 Authorized hazardous fuel reduction projects subject to
objection.
218.32 Objection time periods.
Authority: Pub. L. 108-148, 117 Stat 1887 (16 U.S.C. 6515 note);
Sec. 428, Pub. L. 112-74 125 Stat 1046; Sec. 431, Pub. L. 113-76; Sec.
8006, Pub. L. 113-79.
Source: 78 FR 18497, Mar. 27, 2013, unless otherwise noted.
Subpart A_General Provisions
Sec. 218.1 Purpose and scope.
This subpart establishes a predecisional administrative review
(hereinafter referred to as ``objection'') process for proposed actions
of the Forest Service concerning projects and activities implementing
land and resource management plans documented with a Record of Decision
or Decision Notice, including proposed authorized hazardous fuel
reduction projects as defined in the Healthy Forests Restoration Act of
2003 (HFRA). The objection process is the sole means by which
administrative review of qualifying projects.
(a) This subpart A provides the general provisions of the objection
process, including who may file objections to proposed projects and
activities, the responsibilities of the participants in an objection,
and the procedures that apply for review of the objection.
(b) Subpart B of this part includes provisions that are specific to
proposed projects and activities implementing land and resource
management plans documented with a Record of Decision or Decision
Notice, except those authorized under the HFRA.
(c) Subpart C of this part includes provisions that are specific to
proposed hazardous fuel reduction projects authorized under the HFRA.
Sec. 218.2 Definitions.
The following definitions apply to this part:
Address. An individual's or organization's current physical mailing
address. An email address alone is not sufficient.
Authorized hazardous fuel reduction project. A hazardous fuel
reduction project authorized by the Healthy Forests Restoration Act of
2003 (HFRA).
Decision notice (DN). A concise written record of a responsible
official's decision when an environmental assessment and a finding of no
significant impact (FONSI) have been prepared (36 CFR 220.3). The draft
decision notice made available pursuant to Sec. 218.7(b) will include a
draft FONSI unless an environmental impact statement is expected to be
prepared.
Entity. For purposes of eligibility to file an objection (Sec.
218.5), an entity includes non-governmental organizations, businesses,
partnerships, state and local governments, Alaska Native Corporations,
and Indian Tribes.
Environmental assessment (EA). A concise public document for which a
Federal agency is responsible that provides sufficient evidence and
analysis for determining whether to prepare an environmental impact
statement (EIS) or a finding of no significant impact (FONSI), aids an
agency's compliance with the National Environmental Policy Act (NEPA)
when no EIS is necessary, and facilitates preparation of a statement
when one is necessary (40 CFR 1508.9(a)).
Environmental impact statement (EIS). A detailed written statement
as required by Section 102(2)(C) of the National Environmental Policy
Act (NEPA) of 1969 (40 CFR 1508.11).
Forest Service line officer. The Chief of the Forest Service or a
Forest Service official who serves in the direct line of command from
the Chief.
[[Page 41]]
Lead objector. For an objection submitted with multiple individuals
and/or entities listed, the individual or entity identified to represent
all other objectors for the purposes of communication, written or
otherwise, regarding the objection.
Name. The first and last name of an individual or the complete name
of an entity. An electronic username is insufficient for identification
of an individual or entity.
National Forest System land. All lands, waters, or interests therein
administered by the Forest Service (36 CFR 251.51).
Newspaper(s) of record. Those principal newspapers of general
circulation annually identified in a list and published in the Federal
Register by each regional forester to be used for publishing notices of
projects and activities implementing land management plans.
Objection. The written document filed with a reviewing officer by an
individual or entity seeking predecisional administrative review of a
proposed project or activity implementing a land management plan,
including proposed HFRA-authorized hazardous fuel reduction projects,
and documented with an environmental assessment or environmental impact
statement.
Objection filing period. The period following publication of the
legal notice in the newspaper of record of an environmental assessment
and draft Decision Notice, or final environmental impact statement and
draft Record of Decision, for a proposed project or activity during
which an objection may be filed with the reviewing officer (Sec.
218.7(c)(2)(iii) and Sec. 218.6(a) and (b)). When the Chief is the
responsible official the objection period begins following publication
of a notice in the Federal Register (Sec. 218.7(c)(2)(iii)). The
objection filing period closes at 11:59 p.m. in the time zone of the
receiving office on the last day of the filing period (Sec. 218.6(a)).
Objection process. The procedures established in this subpart for
predecisional administrative review of proposed projects or activities
implementing land management plans, including proposed HFRA-authorized
hazardous fuel reduction projects.
Objector. An individual or entity filing an objection who submitted
written comments specific to the proposed project or activity during
scoping or other opportunity for public comment. The use of the term
``objector'' applies to all persons or entities who meet eligibility
requirements associated with the filed objection (Sec. 218.5).
Record of decision (ROD). A document signed by a responsible
official recording a decision that was preceded by preparation of an
environmental impact statement (EIS) (see 40 CFR 1505.2).
Responsible official. The Agency employee who has the authority to
make and implement a decision on a proposed action subject to this part.
Specific written comments. Written comments are those submitted to
the responsible official or designee during a designated opportunity for
public participation (Sec. 218.5(a)) provided for a proposed project.
Written comments can include submission of transcriptions or other notes
from oral statements or presentation. For the purposes of this rule,
specific written comments should be within the scope of the proposed
action, have a direct relationship to the proposed action, and must
include supporting reasons for the responsible official to consider.
Sec. 218.3 Reviewing officer.
(a) The reviewing officer is the U.S. Department of Agriculture
(USDA) or Forest Service official having the delegated authority and
responsibility to review an objection filed under this part. For project
or activity proposals made below the level of the Chief, the reviewing
officer is the Forest Service line officer at the next higher
administrative level above the responsible official, or the respective
Associate Deputy Chief, Deputy Regional Forester, or Deputy Forest
Supervisor with the delegation of authority relevant to the provisions
of this part. When a project or activity proposal is made by the Chief,
the Secretary of Agriculture or Under Secretary, Natural Resources and
Environment is the reviewing officer.
(b) The reviewing officer determines procedures to be used for
processing objections when the procedures are not
[[Page 42]]
specifically described in this part, including, to the extent
practicable, such procedures as needed to be compatible with the
administrative review processes of other Federal agencies, when projects
are proposed jointly. Such determinations are not subject to further
administrative review.
Sec. 218.4 Proposed projects and activities not subject to objection.
Proposed projects and activities are not subject to objection when
no timely, specific written comments regarding the proposed project or
activity (see Sec. 218.2) are received during any designated
opportunity for public comment (see Sec. 218.5(a)). The responsible
official must issue a statement in the Record of Decision or Decision
Notice that the project or activity was not subject to objection.
Sec. 218.5 Who may file an objection.
(a) Individuals and entities as defined in Sec. 218.2 who have
submitted timely, specific written comments regarding a proposed project
or activity that is subject to these regulations during any designated
opportunity for public comment may file an objection. Opportunity for
public comment on a draft EIS includes request for comments during
scoping, the 40 CFR 1506.10 comment period, or other public involvement
opportunity where written comments are requested by the responsible
official. Opportunity for public comment on an EA includes during
scoping or any other instance where the responsible official seeks
written comments.
(b) Federally-recognized Indian Tribes and Alaska Native
Corporations are also eligible to file an objection when specific
written comments as defined in Sec. 218.2 are provided during Federal-
Tribal consultations.
(c) Comments received from an authorized representative(s) of an
entity are considered those of the entity only. Individual members of
that entity do not meet objection eligibility requirements solely on the
basis of membership in an entity. A member or an individual must submit
timely, specific written comments independently in order to be eligible
to file an objection in an individual capacity.
(d) When an objection lists multiple individuals or entities, each
individual or entity must meet the requirements of paragraph (a) of this
section. If the objection does not identify a lead objector as required
at Sec. 218.8(d)(3), the reviewing officer will delegate the first
eligible objector on the list as the lead objector. Individuals or
entities listed on an objection that do not meet eligibility
requirements will not be considered objectors. Objections from
individuals or entities that do not meet the requirements of paragraph
(a) of this section will not be accepted and will be documented as such
in the objection record.
(e) Federal agencies may not file objections.
(f) Federal employees who otherwise meet the requirements of this
subpart for filing objections in a non-official capacity must comply
with Federal conflict of interest statutes at 18 U.S.C. 202-209 and with
employee ethics requirements at 5 CFR part 2635. Specifically, employees
must not be on official duty nor use Government property or equipment in
the preparation or filing of an objection. Further, employees must not
use or otherwise incorporate information unavailable to the public, such
as Federal agency documents that are exempt from disclosure under the
Freedom of Information Act (5 U.S.C. 552(b)).
Sec. 218.6 Computation of time periods.
(a) Computation. All time periods are computed using calendar days,
including Saturdays, Sundays, and Federal holidays. However, when the
time period expires on a Saturday, Sunday, or Federal holiday, the time
is extended to the end of the next Federal working day as stated in the
legal notice (11:59 p.m. in the time zone of the receiving office for
objections filed by electronic means such as email or facsimile).
(b) Starting date. The day after publication of the legal notice
required by Sec. 218.7(c) is the first day of the objection-filing
period.
(c) Publication date. The publication date of the legal notice of
the EA or final EIS in the newspaper of record or, when the Chief is the
responsible official, the Federal Register, is the exclusive means for
calculating the time
[[Page 43]]
to file an objection. Objectors may not rely on dates or timeframe
information provided by any other source.
(d) Extensions. Time extensions are not permitted except as provided
at paragraph (a) of this section, and Sec. 218.26(b).
Sec. 218.7 Giving notice of objection process for proposed projects
and activities subject to objection.
(a) In addition to the notification required in paragraph (c) of
this section, the responsible official must disclose during scoping and
in the EA or EIS that the proposed project or activity is:
(1) A hazardous fuel reduction project as defined by the HFRA,
section 101(2), that is subject to subparts A and C of this part, or
(2) A project or activity implementing a land management plan and
not authorized under the HFRA, that is subject to subparts A and B of
this part.
(b) The responsible official must promptly make available the final
EIS or the EA, and a draft Record of Decision (ROD) or draft Decision
Notice (DN) and Finding of No Significant Impact (FONSI), to those who
have requested the documents or are eligible to file an objection in
accordance with Sec. 218.5(a).
(c) Upon distribution, legal notice of the opportunity to object to
a proposed project or activity must be published in the applicable
newspaper of record identified as defined in Sec. 218.2 for the
National Forest System unit. When the Chief is the responsible official,
notice must be published in the Federal Register. The legal notice or
Federal Register notice must:
(1) Include the name of the proposed project or activity, a concise
description of the draft decision and any proposed land management plan
amendments, name and title of the responsible official, name of the
forest and/or district on which the proposed project or activity will
occur, instructions for obtaining a copy of the final EIS or EA and
draft ROD or DN as defined in Sec. 218.2, and instructions on how to
obtain additional information on the proposed project or activity.
(2) State that the proposed project or activity is subject to the
objection process pursuant to 36 CFR part 218; identify whether the
special procedures of subpart B or subpart C of this part are
applicable; and include the following:
(i) Name and address of the reviewing officer with whom an objection
is to be filed. The notice must specify a street, postal, fax, and email
address, the acceptable format(s) for objections filed electronically,
and the reviewing officer's business hours for those filing hand-
delivered objections.
(ii) A statement that objections will be accepted only from those
who have previously submitted specific written comments regarding the
proposed project during scoping or other designated opportunity for
public comment in accordance with Sec. 218.5(a). The statement must
also specify that issues raised in objections must be based on
previously submitted timely, specific written comments regarding the
proposed project unless based on new information arising after
designated opportunities.
(iii) A statement that the publication date of the legal notice in
the newspaper of record or Federal Register notice is the exclusive
means for calculating the time to file an objection (see Sec. Sec.
218.26(a) and 218.32(a)), and that those wishing to object should not
rely upon dates or timeframe information provided by any other source. A
specific date must not be included in the notice.
(iv) A statement that an objection, including attachments, must be
filed (regular mail, fax, email, hand-delivery, express delivery, or
messenger service) with the appropriate reviewing officer (see
Sec. Sec. 218.3 and 218.8) within 30 days of the date of publication of
the legal notice for the objection process if the proposal is an
authorized hazardous fuel reduction project, or within 45 days if the
proposal is otherwise a project or activity implementing a land
management plan. The statement must also describe the evidence of timely
filing in Sec. 218.9.
(v) A statement describing the minimum content requirements of an
objection (see Sec. 218.8(d)) and identify that incorporation of
documents by reference is permitted only as provided for at Sec.
218.8(b).
[[Page 44]]
(d) Within 4 calendar days of the date of publication of the legal
notice in the newspaper of record or, when applicable, the Federal
Register, a digital image of the legal notice or Federal Register
publication, or the exact text of the notice, must be made available on
the Web. Such postings must clearly indicate the date the notice was
published in the newspaper of record or Federal Register, and the name
of the publication.
(e) Through notice published annually in the Federal Register, each
regional forester must advise the public of the newspaper(s) of record
utilized for publishing legal notice required by this part.
Sec. 218.8 Filing an objection.
(a) Objections must be filed with the reviewing officer in writing.
All objections are available for public inspection during and after the
objection process.
(b) Incorporation of documents by reference is not allowed, except
for the following list of items that may be referenced by including
date, page, and section of the cited document, along with a description
of its content and applicability to the objection. All other documents
must be included with the objection.
(1) All or any part of a Federal law or regulation.
(2) Forest Service directives and land management plans.
(3) Documents referenced by the Forest Service in the proposed
project EA or EIS that is subject to objection.
(4) Comments previously provided to the Forest Service by the
objector during public involvement opportunities for the proposed
project where written comments were requested by the responsible
official.
(c) Issues raised in objections must be based on previously
submitted specific written comments regarding the proposed project or
activity and attributed to the objector, unless the issue is based on
new information that arose after the opportunities for comment. The
burden is on the objector to demonstrate compliance with this
requirement for objection issues (see paragraph (d)(6) of this section).
(d) At a minimum, an objection must include the following:
(1) Objector's name and address as defined in Sec. 218.2, with a
telephone number, if available;
(2) Signature or other verification of authorship upon request (a
scanned signature for electronic mail may be filed with the objection);
(3) When multiple names are listed on an objection, identification
of the lead objector as defined in Sec. 218.2. Verification of the
identity of the lead objector must be provided upon request or the
reviewing officer will designate a lead objector as provided in Sec.
218.5(d);
(4) The name of the proposed project, the name and title of the
responsible official, and the name(s) of the national forest(s) and/or
ranger district(s) on which the proposed project will be implemented;
(5) A description of those aspects of the proposed project addressed
by the objection, including specific issues related to the proposed
project; if applicable, how the objector believes the environmental
analysis or draft decision specifically violates law, regulation, or
policy; suggested remedies that would resolve the objection; supporting
reasons for the reviewing officer to consider; and
(6) A statement that demonstrates the connection between prior
specific written comments on the particular proposed project or activity
and the content of the objection, unless the objection concerns an issue
that arose after the designated opportunity(ies) for comment (see
paragraph (c) of this section).
Sec. 218.9 Evidence of timely filing.
(a) It is the objector's responsibility to ensure timely filing of a
written objection with the reviewing officer. Timeliness must be
determined by the following indicators:
(1) The date of the U.S. Postal Service postmark for an objection
received before the close of the fifth business day after the objection
filing period;
(2) The agency's electronically generated posted date and time for
email and facsimiles;
[[Page 45]]
(3) The shipping date for delivery by private carrier for an
objection received before the close of the fifth business day after the
objection filing period; or
(4) The official agency date stamp showing receipt of hand delivery.
(b) For emailed objections, the sender should receive an automated
electronic acknowledgement from the agency as confirmation of receipt.
If the sender does not receive an automated acknowledgment of receipt of
the objection, it is the sender's responsibility to ensure timely filing
by other means.
Sec. 218.10 Objections set aside from review.
(a) The reviewing officer must set aside and not review an objection
when one or more of the following applies:
(1) Objections are not filed in a timely manner (see Sec. Sec.
218.7(c)(2)(v) and 218.9).
(2) The proposed project is not subject to the objection procedures
in Sec. Sec. 218.1, 218.4, 218.20, and 218.31.
(3) The individual or entity did not submit timely and specific
written comments regarding the proposed project or activity during
scoping or another designated opportunity for public comment (see Sec.
218.5(a)).
(4) Except for issues that arose after the opportunities for
comment, none of the issues included in the objection are based on
previously submitted specific written comments and the objector has not
provided a statement demonstrating a connection between the comments and
objection issues (see Sec. Sec. 218.8(c) and 218.8(d)(6)).
(5) The objection does not provide sufficient information as
required by Sec. 218.8(d)(5) and (6) for the reviewing officer to
review.
(6) The objector withdraws the objection.
(7) An objector's identity is not provided or cannot be determined
from the signature (written or electronically scanned) and a reasonable
means of contact is not provided (see Sec. 218.8(d)(1) and (2)).
(8) The objection is illegible for any reason, including submissions
in an electronic format different from that specified in the legal
notice.
(9) The responsible official cancels the objection process underway
to reinitiate the objection procedures at a later date or withdraw the
proposed project or activity.
(b) The reviewing officer must give prompt written notice to the
objector and the responsible official when an objection is set aside
from review and must state the reasons for not reviewing the objection.
If the objection is set aside from review for reasons of illegibility or
lack of a means of contact, the reasons must be documented and a copy
placed in the objection record.
Sec. 218.11 Resolution of objections.
(a) Meetings. Prior to the issuance of the reviewing officer's
written response, either the reviewing officer or the objector may
request to meet to discuss issues raised in the objection and potential
resolution. The reviewing officer has the discretion to determine
whether adequate time remains in the review period to make a meeting
with the objector practical, the appropriate date, duration, agenda, and
location for any meeting, and how the meeting will be conducted to
facilitate the most beneficial dialogue; e.g., face-to-face office
meeting, project site visit, teleconference, video conference, etc. The
responsible official should be a participant along with the reviewing
officer in any objection resolution meeting. Meetings are not required
to be noticed but are open to attendance by the public, and the
reviewing officer will determine whether those other than objectors may
participate.
(b) Reviewing officer's response to objections. (1) A written
response must set forth the reasons for the response, but need not be a
point-by-point response and may contain instructions to the responsible
official, if necessary. In cases involving more than one objection to a
proposed project or activity, the reviewing officer may consolidate
objections and issue one or more responses.
(2) No further review from any other Forest Service or USDA official
of the reviewing officer's written response to an objection is
available.
[[Page 46]]
Sec. 218.12 Timing of project decision.
(a) The responsible official may not sign a ROD or DN subject to the
provisions of this part until the reviewing officer has responded in
writing to all pending objections (see Sec. 218.11(b)(1)).
(b) The responsible official may not sign a ROD or DN subject to the
provisions of this part until all concerns and instructions identified
by the reviewing officer in the objection response have been addressed.
(c) When no objection is filed within the objection filing period
(see Sec. Sec. 218.26 and 218.32):
(1) The reviewing officer must notify the responsible official.
(2) Approval of the proposed project or activity documented in a ROD
in accordance with 40 CFR 1506.10, or in a DN may occur on, but not
before, the fifth business day following the end of the objection filing
period.
(d) When a proposed project or activity is not subject to objection
because no timely, specific written comments regarding the proposal were
received during a designated opportunity for public comment (see Sec.
218.4), the approval of a proposed project or activity documented in a
ROD must be in accordance with 40 CFR 1506.10 and 36 CFR 220.5(g), and
the approval of a proposed project or activity documented in a DN must
be made in accordance with 36 CFR 220.7(c) and (d).
Sec. 218.13 Secretary's authority.
(a) Nothing in this section shall restrict the Secretary of
Agriculture from exercising any statutory authority regarding the
protection, management, or administration of National Forest System
lands.
(b) Projects and activities proposed by the Secretary of Agriculture
or the Under Secretary, Natural Resources and Environment, are not
subject to the procedures set forth in this part. Approval of projects
and activities by the Secretary or Under Secretary constitutes the final
administrative determination of the U.S. Department of Agriculture.
Sec. 218.14 Judicial proceedings.
(a) The objection process set forth in this subpart fully implements
Congress' design for a predecisional administrative review process.
These procedures present a full and fair opportunity for concerns to be
raised and considered on a project-by-project basis. Individuals and
groups must structure their participation so as to alert the local
agency officials making particular land management decisions of their
positions and contentions.
(b) Any filing for Federal judicial review of a decisions covered by
this subpart is premature and inappropriate unless the plaintiff has
exhausted the administrative review process set forth in this part (see
7 U.S.C. 6912(e) and 16 U.S.C. 6515(c)).
Sec. 218.15 Information collection requirements.
The rules of this part specify the information that objectors must
provide in an objection to a proposed project (see Sec. 218.8). As
such, these rules contain information collection requirements as defined
in 5 CFR part 1320. These information requirements are assigned OMB
Control Number 0596-0172.
Sec. 218.16 Effective dates.
(a) Effective dates for HFRA-authorized projects. (1) Provisions of
this part that are applicable to hazardous fuel reduction projects
authorized under the HFRA are in effect as of March 27, 2013 for
projects where scoping begins on or after this date.
(2) Hazardous fuel reduction project proposals under the HFRA for
which public scoping began prior to March 27, 2013 may use the
predecisional objection procedures posted at http://www.fs.fed.us/
objections.
(3) Hazardous fuel reduction project proposals that are re-scoped
with the public or re-issued for notice and comment after March 27, 2013
are subject to this part.
(b) Effective dates for non-HFRA-authorized projects. (1) Project
proposals with public scoping completed, but that have not had legal
notice published. The applicable provisions of this part are in effect
as of March 27, 2013 where public scoping was previously initiated for
project proposals, but legal notice of the opportunity to comment has
not yet been published; unless scoping or other public notification of
the project (e.g. Schedule of
[[Page 47]]
Proposed Actions) has clearly indicated the project to be under the
former 36 CFR part 215 appeal process.
(2) Project proposals which have legal notice published, but a
Decision Notice or Record of Decision has not been signed. If a Decision
Notice or Record of Decision is signed within 6 months of March 27,
2013, it will be subject to the 36 CFR part 215 appeal process. If the
Decision Notice or Record of Decision is to be signed more than 6 months
beyond March 27, 2013, the project proposal will be subject to the
requirements of this part. In this case, the responsible official will
notify all interested and affected parties who participated during
scoping or provided specific written comment regarding the proposed
project or activity during the comment period initiated with a legal
notice that the project proposal will be subject to the predecisional
objection regulations at 36 CFR part 218. All interested and affected
parties who provided written comment as defined in Sec. 218.2 during
scoping or the comment period will be eligible to participate in the
objection process.
(3) Project proposals are subject to the requirements of this part
when initial public scoping, re-scoping with the public, or re-issuance
of notice and comment begins on or after March 27, 2013.
Subpart B_Provisions Specific to Project-Level Proposals Not Authorized
Under Healthy Forests Restoration Act
Sec. 218.20 Applicability and scope.
This subpart includes provisions that are specific to proposed
projects and activities implementing land and resource management plans
and documented with a Record of Decision or Decision Notice, except
those authorized under the Healthy Forests Restoration Act (HFRA). The
sections of this subpart must be considered in combination with the
general provisions of subpart A of this part for the full complement of
regulatory direction pertaining to predecisional administrative review
of the applicable projects and activities.
Sec. 218.21 Emergency situations.
(a) Authority. The Chief and the Associate Chief of the Forest
Service are authorized to make the determination that an emergency
situation exists as defined in this section.
(b) Emergency situation definition. A situation on National Forest
System (NFS) lands for which immediate implementation of a decision is
necessary to achieve one or more of the following: Relief from hazards
threatening human health and safety; mitigation of threats to natural
resources on NFS or adjacent lands; avoiding a loss of commodity value
sufficient to jeopardize the agency's ability to accomplish project
objectives directly related to resource protection or restoration.
(c) Determination. The determination that an emergency situation
exists shall be based on an examination of the relevant information.
During the consideration by the Chief or Associate Chief, additional
information may be requested from the responsible official. The
determination that an emergency situation does or does not exist is not
subject to administrative review under this part.
(d) Implementation. When it is determined that an emergency
situation exists with respect to all or part of the proposed project or
activity, the proposed action shall not be subject to the predecisional
objection process and implementation may proceed as follows:
(1) Immediately after notification (see 36 CFR 220.7(d)) when the
decision is documented in a Decision Notice (DN).
(2) Immediately after complying with the timeframes and publication
requirements described in 40 CFR 1506.10(b)(2) when the decision is
documented in a Record of Decision (ROD).
(e) Notification. The responsible official shall identify any
emergency situation determination made for a project or activity in the
notification of the decision (see 36 CFR 220.5(g) and 220.7(d)).
Sec. 218.22 Proposed projects and activities subject to legal notice
and opportunity to comment.
The legal notice and opportunity to comment procedures of this
subpart apply only to:
[[Page 48]]
(a) Proposed projects and activities implementing land management
plans for which an environmental assessment (EA) is prepared;
(b) Proposed projects and activities implementing land management
plans for which a draft or supplemental environmental impact statement
(EIS) is prepared and notice and comment procedures are governed by 40
CFR parts 1500 through 1508;
(c) Proposed amendments to a land management plan that are included
as part of a proposed project or activity covered in paragraphs (a) or
(b) of this section which are applicable only to that proposed project
or activity;
(d) A proposed project or activity for which a supplemental or
revised EA or EIS is prepared based on consideration of new information
or changed circumstances; and
(e) Proposed research activities to be conducted on National Forest
System land for which an EA or EIS is prepared.
Sec. 218.23 Proposed projects and activities not subject to legal notice
and opportunity to comment.
The legal notice and opportunity to comment procedures of this
subpart do not apply to:
(a) Any project or activity categorically excluded from
documentation in an environmental assessment or environmental impact
statement.
(b) Proposed land management plans, plan revisions, and plan
amendments that are subject to the objection process set out in 36 CFR
part 219, subpart B;
(c) Proposed plan amendments associated with a project or activity
where the amendment applies not just to the particular project or
activity but to all future projects and activities (see 36 CFR
219.59(b));
(d) Proposed projects and activities not subject to the provisions
of the National Environmental Policy Act and the implementing
regulations at 40 CFR parts 1500 through 1508 and 36 CFR part 220;
(e) Determinations by the responsible official, after consideration
of new information or changed circumstances, that a correction,
supplement, or revision of the EA or EIS is not required;
(f) Rules promulgated in accordance with the Administrative
Procedure Act (5 U.S.C. 551 et seq.) or policies and procedures issued
in the Forest Service Manual and Handbooks (36 CFR part 216); and
(g) Proposed hazardous fuel reduction projects authorized under the
Healthy Forests Restoration Act.
[78 FR 18497, Mar. 27, 2013, as amended at 79 FR 44293, July 31, 2014]
Sec. 218.24 Notification of opportunity to comment on proposed projects
and activities.
(a) Responsible official. The responsible official shall:
(1) Provide legal notice of the opportunity to comment on a proposed
project or activity implementing a land management plan.
(2) Determine the most effective timing and then publish the legal
notice of the opportunity to comment as provided for in paragraph (c)(2)
of this section.
(3) Promptly provide notice about the proposed project or activity
to any individual or entity who has requested it and to those who have
participated in planning for that project.
(4) Accept all written comments on the proposed project or activity
as provided for in Sec. 218.25(a)(4).
(b) Content of legal notice. All legal notices shall include the
following:
(1) The title and brief description of the proposed project or
activity.
(2) A general description of the proposed project or activity's
location with sufficient information to allow the interested public to
identify the location.
(3) When applicable, a statement that the responsible official is
requesting an emergency situation determination or it has been
determined that an emergency situation exists for the proposed project
or activity as provided for in Sec. 218.21.
(4) For a proposed project or activity to be analyzed and documented
in an environmental assessment (EA), a statement that the opportunity to
comment ends 30 days following the date of publication of the legal
notice in the newspaper of record (see Sec. 218.25(a)(2)); as newspaper
publication
[[Page 49]]
dates may vary, legal notices shall not contain the specific date.
(5) For a proposed project or activity that is analyzed and
documented in a draft environmental impact statement (EIS), a statement
that the opportunity to comment ends 45 days following the date of
publication of the notice of availability (NOA) in the Federal Register
(see Sec. 218.25(a)(2)). The legal notice must be published after the
NOA and contain the NOA publication date.
(6) A statement that only those who submit timely and specific
written comments regarding the proposed project or activity during a
public comment period established by the responsible official are
eligible to file an objection.
(7) The responsible official's name, title, telephone number, and
addresses (street, postal, facsimile, and email) to whom comments are to
be submitted and the responsible official's office business hours for
those submitting hand-delivered comments (see Sec. 218.25(a)(4)(ii)).
(8) A statement indicating that for objection eligibility each
individual or representative from each entity submitting timely and
specific written comments regarding the proposed project or activity
must either sign the comments or verify identity upon request.
(9) The acceptable format(s) for electronic comments.
(10) Instructions on how to obtain additional information on the
proposed project or activity.
(c) Publication. (1) Through notice published annually in the
Federal Register, each Regional Forester shall advise the public of the
newspaper(s) of record used for publishing legal notices required by
this part.
(2) Legal notice of the opportunity to comment on a proposed project
or activity shall be published in the applicable newspaper of record
identified in paragraph (c)(1) of this section for each National Forest
System unit. When the Chief is the responsible official, notice shall
also be published in the Federal Register. The publication date of the
legal notice in the newspaper of record is the exclusive means for
calculating the time to submit written comments on a proposed project or
activity to be analyzed and documented in an EA. The publication date of
the NOA in the Federal Register is the exclusive means for calculating
the time to submit written comments on a proposed project or activity
that is analyzed and documented in a draft EIS.
(3) Within 4 calendar days of the date of publication of the legal
notice in the newspaper of record or, when applicable, the Federal
Register, a digital image of the legal notice or Federal Register
publication, or the exact text of the notice, must be made available on
the Web. Such postings must clearly indicate the date the notice was
published in the newspaper of record or Federal Register, and the name
of the publication.
Sec. 218.25 Comments on proposed projects and activities.
(a) Opportunity to comment. (1) Time period for submission of
comments--
(i) Comments on a proposed project or activity to be documented in
an environmental assessment shall be accepted for 30 days beginning on
the first day after the date of publication of the legal notice.
(ii) Comments on a proposed project or activity to be documented in
an environmental impact statement shall be accepted for a minimum of 45
days beginning on the first day after the date of publication in the
Federal Register of the notice of availability of the draft EIS.
(iii) Comments. It is the responsibility of all individuals and
organizations to ensure that their comments are received in a timely
manner as provided for in paragraph (a)(4) of this section.
(iv) Extension. The time period for the opportunity to comment on a
proposed project or activity to be documented with an environmental
assessment shall not be extended.
(2) Computation of the comment period. The time period is computed
using calendar days, including Saturdays, Sundays, and Federal holidays.
However, when the time period expires on a Saturday, Sunday, or Federal
holiday, comments shall be accepted until the end of the next Federal
working day (11:59 p.m. in the time zone of the receiving office for
comments filed by
[[Page 50]]
electronic means such as email or facsimile).
(3) Requirements. To be eligible to submit an objection, individuals
and entities must have provided the following during the comment period:
(i) Name and postal address. Email address in addition is
recommended but not required.
(ii) Title of the proposed project or activity.
(iii) Specific written comments as defined in Sec. 218.2 regarding
the proposed project or activity, along with supporting reasons.
(iv) Signature or other verification of identity upon request and
identification of the individual or entity who authored the comment(s).
For comments listing multiple entities or multiple individuals, a
signature or other means of verification must be provided for the
individual authorized to represent each entity and for each individual
in the case of multiple names. A scanned signature or other means of
verifying the identity of the individual or entity representative may be
used for electronically submitted comments.
(v) Individual members of an entity must submit their own comments
to establish personal eligibility; comments received on behalf of an
entity are considered as those of the entity only.
(4) Evidence of timely submission. When there is a question about
timely submission of comments, timeliness shall be determined as
follows:
(i) Written comments must be postmarked by the Postal Service,
emailed, faxed, or otherwise submitted (for example, express delivery
service) by 11:59 p.m. in the time zone of the receiving office on the
30th calendar day following publication of the legal notice for proposed
projects or activities to be analyzed and documented in an EA or the
45th calendar day following publication of the NOA in the Federal
Register for a draft EIS.
(ii) Hand-delivered comments must be time and date imprinted at the
correct responsible official's office by the close of business on the
30th calendar day following publication of the legal notice for proposed
projects or activities to be analyzed and documented in an EA or the
45th calendar day following publication of the NOA in the Federal
Register for a draft EIS.
(iii) For emailed comments, the sender should normally receive an
automated electronic acknowledgment from the agency as confirmation of
receipt. If the sender does not receive an automated acknowledgment of
the receipt of the comments, it is the sender's responsibility to ensure
timely receipt by other means.
(b) Consideration of comments. (1) The responsible official shall
consider all written comments submitted in compliance with paragraph (a)
of this section.
(2) All written comments received by the responsible official shall
be placed in the project file and shall become a matter of public
record.
Sec. 218.26 Objection time periods.
(a) Time to file an objection. Written objections, including any
attachments, must be filed with the reviewing officer within 45 days
following the publication date of the legal notice of the EA or final
EIS in the newspaper of record or the publication date of the notice in
the Federal Register when the Chief is the responsible official (see
Sec. 218.7(c)). It is the responsibility of objectors to ensure that
their objection is received in a timely manner.
(b) Time for responding to an objection. The reviewing officer must
issue a written response to the objector(s) concerning their
objection(s) within 45 days following the end of the objection filing
period. The reviewing officer has the discretion to extend the time for
up to 30 days when he or she determines that additional time is
necessary to provide adequate response to objections or to participate
in resolution discussions with the objector(s).
Subpart C_Provisions Specific to Proposed Projects Authorized Under the
Healthy Forests Restoration Act
Sec. 218.30 Applicability and scope.
This subpart includes provisions that are specific to proposed
hazardous fuel reduction projects documented with a Record of Decision
or Decision Notice,
[[Page 51]]
and authorized under the Healthy Forests Restoration Act (HFRA). The
sections of this subpart must be considered in combination with the
general provisions of subpart A of this part for the full complement of
regulatory direction pertaining to predecisional administrative review
of the applicable projects and activities.
Sec. 218.31 Authorized hazardous fuel reduction projects
subject to objection.
(a) Only authorized hazardous fuel reduction projects as defined by
the HFRA, section 101(2), occurring on National Forest System land that
have been analyzed in an EA or EIS are subject to this subpart.
Authorized hazardous fuel reduction projects processed under the
provisions of the HFRA are not subject to the requirements in subpart B
of this part.
(b) When authorized hazardous fuel reduction projects are approved
contemporaneously with a plan amendment that applies only to that
project, the objection process of this subpart applies to both the plan
amendment and the project.
Sec. 218.32 Objection time periods.
(a) Time to file an objection. Written objections, including any
attachments, must be filed with the reviewing officer within 30 days
following the publication date of the legal notice of the EA or final
EIS in the newspaper of record or the publication date of the notice in
the Federal Register when the Chief is the responsible official (see
Sec. 218.6(c)). It is the responsibility of objectors to ensure that
their objection is received in a timely manner.
(b) Time for responding to an objection. The reviewing officer must
issue a written response to the objector(s) concerning their
objection(s) within 30 days following the end of the objection filing
period.
PART 219_PLANNING--Table of Contents
Subpart A_National Forest System Land Management Planning
Sec.
219.1 Purpose and applicability.
219.2 Levels of planning and responsible officials.
219.3 Role of science in planning.
219.4 Requirements for public participation.
219.5 Planning framework.
219.6 Assessment.
219.7 New plan development or plan revision.
219.8 Sustainability.
219.9 Diversity of plant and animal communities.
219.10 Multiple use.
219.11 Timber requirements based on the NFMA.
219.12 Monitoring.
219.13 Plan amendment and administrative changes.
219.14 Decision document and planning records.
219.15 Project and activity consistency with the plan.
219.16 Public notifications.
219.17 Effective dates and transition.
219.18 Severability.
219.19 Definitions.
Subpart B_Pre-Decisional Administrative Review Process
219.50 Purpose and scope.
219.51 Plans, plan amendments, or plan revisions not subject to
objection.
219.52 Giving notice of a plan, plan amendment, or plan revision subject
to objection before approval.
219.53 Who may file an objection.
219.54 Filing an objection.
219.55 Objections set aside from review.
219.56 Objection time periods and process.
219.57 Resolution of objections.
219.58 Timing of a plan, plan amendment, or plan revision decision.
219.59 Use of other administrative review processes.
219.60 Secretary's authority.
219.61 Information collection requirements.
219.62 Definitions.
Authority: 5 U.S.C. 301; 16 U.S.C. 1604, 1613.
Source: 77 FR 21260, Apr. 9, 2012, unless otherwise noted.
Subpart A_National Forest System Land Management Planning
Sec. 219.1 Purpose and applicability.
(a) This subpart sets out the planning requirements for developing,
amending, and revising land management plans (also referred to as plans)
for units of the National Forest System (NFS), as required by the Forest
and Rangeland Renewable Resources Planning Act of 1974, as amended by
the National Forest Management Act of 1976 (16 U.S.C. 1600 et seq.)
(NFMA). This subpart also sets out the requirements
[[Page 52]]
for plan components and other content in land management plans. This
part is applicable to all units of the NFS as defined by 16 U.S.C. 1609
or subsequent statute.
(b) Consistent with the Multiple-Use Sustained-Yield Act of 1960 (16
U.S.C. 528-531) (MUSYA), the Forest Service manages the NFS to sustain
the multiple use of its renewable resources in perpetuity while
maintaining the long-term health and productivity of the land. Resources
are managed through a combination of approaches and concepts for the
benefit of human communities and natural resources. Land management
plans guide sustainable, integrated resource management of the resources
within the plan area in the context of the broader landscape, giving due
consideration to the relative values of the various resources in
particular areas.
(c) The purpose of this part is to guide the collaborative and
science-based development, amendment, and revision of land management
plans that promote the ecological integrity of national forests and
grasslands and other administrative units of the NFS. Plans will guide
management of NFS lands so that they are ecologically sustainable and
contribute to social and economic sustainability; consist of ecosystems
and watersheds with ecological integrity and diverse plant and animal
communities; and have the capacity to provide people and communities
with ecosystem services and multiple uses that provide a range of
social, economic, and ecological benefits for the present and into the
future. These benefits include clean air and water; habitat for fish,
wildlife, and plant communities; and opportunities for recreational,
spiritual, educational, and cultural benefits.
(d) This part does not affect treaty rights or valid existing rights
established by statute or legal instruments.
(e) During the planning process, the responsible official shall
comply with Section 8106 of the Food, Conservation, and Energy Act of
2008 (25 U.S.C. 3056), Executive Order 13007 of May 24, 1996, Executive
Order 13175 of November 6, 2000, laws, and other requirements with
respect to disclosing or withholding under the Freedom of Information
Act (5 U.S.C. 552) certain information regarding reburial sites or other
information that is culturally sensitive to an Indian Tribe or Tribes.
(f) Plans must comply with all applicable laws and regulations,
including NFMA, MUSYA, the Clean Air Act, the Clean Water Act, the
Wilderness Act, and the Endangered Species Act.
(g) The responsible official shall ensure that the planning process,
plan components, and other plan content are within Forest Service
authority, the inherent capability of the plan area, and the fiscal
capability of the unit.
Sec. 219.2 Levels of planning and responsible officials.
Forest Service planning occurs at different organizational levels
and geographic scales. Planning occurs at three levels--national
strategic planning, NFS unit planning, and project or activity planning.
(a) National strategic planning. The Chief of the Forest Service is
responsible for national planning, such as preparation of the Forest
Service strategic plan required under the Government Performance and
Results Modernization Act of 2010 (5 U.S.C. 306; 31 U.S.C. 1115-1125; 31
U.S.C. 9703-9704), which is integrated with the requirements of the
Forest and Rangeland Renewable Resources Planning Act of 1974, as
amended by the NFMA. The strategic plan establishes goals, objectives,
performance measures, and strategies for management of the NFS, as well
as the other Forest Service mission areas: Research and Development,
State and Private Forestry, and International Programs.
(b) National Forest System unit planning. (1) NFS unit planning
results in the development, amendment, or revision of a land management
plan. A land management plan provides a framework for integrated
resource management and for guiding project and activity decisionmaking
on a national forest, grassland, prairie, or other administrative unit.
A plan reflects the unit's expected distinctive roles and contributions
to the local area, region, and Nation, and the roles for which the plan
area is best suited, considering the Agency's mission, the unit's unique
[[Page 53]]
capabilities, and the resources and management of other lands in the
vicinity. Through the adaptive planning cycle set forth in this subpart,
a plan can be changed to reflect new information and changing
conditions.
(2) A plan does not authorize projects or activities or commit the
Forest Service to take action. A plan may constrain the Agency from
authorizing or carrying out projects and activities, or the manner in
which they may occur. Projects and activities must be consistent with
the plan (Sec. 219.15). A plan does not regulate uses by the public,
but a project or activity decision that regulates a use by the public
under 36 CFR Part 261, Subpart B, may be made contemporaneously with the
approval of a plan, plan amendment, or plan revision. Plans should not
repeat laws, regulations, or program management policies, practices, and
procedures that are in the Forest Service Directive System.
(3) The supervisor of the national forest, grassland, prairie, or
other comparable administrative unit is the responsible official for
development and approval of a plan, plan amendment, or plan revision for
lands under the responsibility of the supervisor, unless a regional
forester; the Chief; the Under Secretary, Natural Resources and
Environment; or the Secretary acts as the responsible official. Two or
more responsible officials may undertake joint planning over lands under
their respective jurisdictions.
(4) A plan for a unit that contains an experimental area may not be
approved without the concurrence of the appropriate research station
director with respect to the direction applicable to that area, and a
plan amendment applicable to an experimental area may not be approved
without the concurrence of the appropriate research station director.
(5) The Chief is responsible for leadership and direction for
carrying out the NFS land management planning program under this part.
The Chief shall:
(i) Establish planning procedures for this part in the Forest
Service Directive System in Forest Service Manual 1920--Land Management
Planning and in Forest Service Handbook 1909.12--Land Management
Planning Handbook.
(ii) Establish and administer a national oversight process for
accountability and consistency of NFS land management planning under
this part.
(iii) Establish procedures in the Forest Service Directive System
for obtaining inventory data on the various renewable resources, and
soil and water.
(c) Project and activity planning. The supervisor or district ranger
is the responsible official for project and activity decisions, unless a
higher-level official acts as the responsible official. Requirements for
project or activity planning are established in the Forest Service
Directive System. Except as provided in the plan consistency
requirements in Sec. 219.15, none of the requirements of this part
apply to projects or activities.
Sec. 219.3 Role of science in planning.
The responsible official shall use the best available scientific
information to inform the planning process required by this subpart for
assessment; developing, amending, or revising a plan; and monitoring. In
doing so, the responsible official shall determine what information is
the most accurate, reliable, and relevant to the issues being
considered. The responsible official shall document how the best
available scientific information was used to inform the assessment, the
plan or amendment decision, and the monitoring program as required in
Sec. Sec. 219.6(a)(3) and 219.14(a)(3). Such documentation must:
Identify what information was determined to be the best available
scientific information, explain the basis for that determination, and
explain how the information was applied to the issues considered.
[81 FR 90737, Dec. 15, 2016]
Sec. 219.4 Requirements for public participation.
(a) Providing opportunities for participation. The responsible
official shall provide opportunities to the public for participating in
the assessment process; developing a plan proposal, including the
monitoring program; commenting on the proposal and the disclosure of its
environmental impacts in
[[Page 54]]
accompanying National Environmental Policy Act (NEPA) documents; and
reviewing the results of monitoring information. When developing
opportunities for public participation, the responsible official shall
take into account the discrete and diverse roles, jurisdictions,
responsibilities, and skills of interested and affected parties; the
accessibility of the process, opportunities, and information; and the
cost, time, and available staffing. The responsible official should be
proactive and use contemporary tools, such as the Internet, to engage
the public, and should share information in an open way with interested
parties. Subject to the notification requirements in Sec. 219.16, the
responsible official has the discretion to determine the scope, methods,
forum, and timing of those opportunities. The Forest Service retains
decisionmaking authority and responsibility for all decisions throughout
the process.
(1) Outreach. The responsible official shall engage the public--
including Tribes and Alaska Native Corporations, other Federal agencies,
State and local governments, individuals, and public and private
organizations or entities--early and throughout the planning process as
required by this part, using collaborative processes where feasible and
appropriate. In providing opportunities for engagement, the responsible
official shall encourage participation by:
(i) Interested individuals and entities, including those interested
at the local, regional, and national levels.
(ii) Youth, low-income populations, and minority populations.
(iii) Private landowners whose lands are in, adjacent to, or
otherwise affected by, or whose actions may impact, future management
actions in the plan area.
(iv) Federal agencies, States, counties, and local governments,
including State fish and wildlife agencies, State foresters and other
relevant State agencies. Where appropriate, the responsible official
shall encourage States, counties, and other local governments to seek
cooperating agency status in the NEPA process for development,
amendment, or revision of a plan. The responsible official may
participate in planning efforts of States, counties, local governments,
and other Federal agencies, where practicable and appropriate.
(v) Interested or affected federally recognized Indian Tribes or
Alaska Native Corporations. Where appropriate, the responsible official
shall encourage federally recognized Tribes to seek cooperating agency
status in the NEPA process for development, amendment, or revision of a
plan. The responsible official may participate in planning efforts of
federally recognized Indian Tribes and Alaska Native Corporations, where
practicable and appropriate.
(2) Consultation with federally recognized Indian Tribes and Alaska
Native Corporations. The Department recognizes the Federal Government
has certain trust responsibilities and a unique legal relationship with
federally recognized Indian Tribes. The responsible official shall honor
the government-to-government relationship between federally recognized
Indian Tribes and the Federal Government. The responsible official shall
provide to federally recognized Indian Tribes and Alaska Native
Corporations the opportunity to undertake consultation consistent with
Executive Order 13175 of November 6, 2000, and 25 U.S.C. 450 note.
(3) Native knowledge, indigenous ecological knowledge, and land
ethics. As part of tribal participation and consultation as set forth in
paragraphs (a)(1)(v) and (a)(2) of this section, the responsible
official shall request information about native knowledge, land ethics,
cultural issues, and sacred and culturally significant sites.
(b) Coordination with other public planning efforts. (1) The
responsible official shall coordinate land management planning with the
equivalent and related planning efforts of federally recognized Indian
Tribes, Alaska Native Corporations, other Federal agencies, and State
and local governments.
(2) For plan development or revision, the responsible official shall
review the planning and land use policies of federally recognized Indian
Tribes (43 U.S.C. 1712(b)), Alaska Native Corporations, other Federal
agencies, and State and local governments, where relevant to
[[Page 55]]
the plan area. The results of this review shall be displayed in the
environmental impact statement (EIS) for the plan (40 CFR 1502.16(c),
1506.2). The review shall include consideration of:
(i) The objectives of federally recognized Indian Tribes, Alaska
Native Corporations, other Federal agencies, and State and local
governments, as expressed in their plans and policies;
(ii) The compatibility and interrelated impacts of these plans and
policies;
(iii) Opportunities for the plan to address the impacts identified
or to contribute to joint objectives; and
(iv) Opportunities to resolve or reduce conflicts, within the
context of developing the plan's desired conditions or objectives.
(3) Nothing in this section should be read to indicate that the
responsible official will seek to direct or control management of lands
outside of the plan area, nor will the responsible official conform
management to meet non-Forest Service objectives or policies.
[77 FR 21260, Apr. 9, 2012, as amended at 77 FR 44144, July 27, 2012]
Sec. 219.5 Planning framework.
(a) Planning for a national forest, grassland, prairie, or other
comparable administrative unit of the NFS is an iterative process that
includes assessment (Sec. 219.6); developing, amending, or revising a
plan (Sec. Sec. 219.7 and 219.13); and monitoring (Sec. 219.12). These
three phases of the framework are complementary and may overlap. The
intent of this framework is to create a responsive planning process that
informs integrated resource management and allows the Forest Service to
adapt to changing conditions, including climate change, and improve
management based on new information and monitoring.
(1) Assessment. Assessments rapidly evaluate existing information
about relevant ecological, economic, and social conditions, trends, and
sustainability and their relationship to the land management plan within
the context of the broader landscape. The responsible official shall
consider and evaluate existing and possible future conditions and trends
of the plan area, and assess the sustainability of social, economic, and
ecological systems within the plan area, in the context of the broader
landscape (Sec. 219.6).
(2) Plan development, plan amendment, or plan revision.
(i) The process for developing or revising a plan includes:
Assessment, preliminary identification of the need to change the plan
based on the assessment, development of a proposed plan, consideration
of the environmental effects of the proposal, providing an opportunity
to comment on the proposed plan, providing an opportunity to object
before the proposal is approved, and, finally, approval of the plan or
plan revision. A new plan or plan revision requires preparation of an
environmental impact statement.
(ii) The process for amending a plan includes: Preliminary
identification of the need to change the plan, development of a proposed
amendment, consideration of the environmental effects of the proposal,
providing an opportunity to comment on the proposed amendment, providing
an opportunity to object before the proposal is approved, and, finally,
approval of the plan amendment. The appropriate NEPA documentation for
an amendment may be an environmental impact statement, an environmental
assessment, or a categorical exclusion, depending upon the scope and
scale of the amendment and its likely effects.
(3) Monitoring. Monitoring is continuous and provides feedback for
the planning cycle by testing relevant assumptions, tracking relevant
conditions over time, and measuring management effectiveness (Sec.
219.12). The monitoring program includes plan-level and broader-scale
monitoring. The plan-level monitoring program is informed by the
assessment phase; developed during plan development, plan amendment, or
plan revision; and implemented after plan decision. The regional
forester develops broader-scale monitoring strategies. Biennial
monitoring evaluation reports document whether a change to the plan or
change to the monitoring program is warranted based on new information,
whether a new assessment may be needed, or whether there is no need for
change at that time.
[[Page 56]]
(b) Interdisciplinary team(s). The responsible official shall
establish an interdisciplinary team or teams to prepare assessments; new
plans, plan amendments, and plan revisions; and plan monitoring
programs.
Sec. 219.6 Assessment.
The responsible official has the discretion to determine the scope,
scale, and timing of an assessment described in Sec. 219.5(a)(1),
subject to the requirements of this section.
(a) Process for plan development or revision assessments. An
assessment must be completed for the development of a new plan or for a
plan revision. The responsible official shall:
(1) Identify and consider relevant existing information in
governmental or non-governmental assessments, plans, monitoring reports,
studies, and other sources of relevant information. Such sources of
information may include State forest assessments and strategies, the
Resources Planning Act assessment, ecoregional assessments, non-
governmental reports, State comprehensive outdoor recreation plans,
community wildfire protection plans, public transportation plans, State
wildlife data and action plans, and relevant Agency or interagency
reports, resource plans or assessments. Relevant private information,
including relevant land management plans and local knowledge, will be
considered if publicly available or voluntarily provided.
(2) Coordinate with or provide opportunities for the regional
forester, agency staff from State and Private Forestry and Research and
Development, federally recognized Indian Tribes and Alaska Native
Corporations, other governmental and non-governmental parties, and the
public to provide existing information for the assessment.
(3) Document the assessment in a report available to the public. The
report should document information needs relevant to the topics of
paragraph (b) of this section. Document in the report how the best
available scientific information was used to inform the assessment
(Sec. 219.3). Include the report in the planning record (Sec. 219.14).
(b) Content of the assessment for plan development or revision. In
the assessment for plan development or revision, the responsible
official shall identify and evaluate existing information relevant to
the plan area for the following:
(1) Terrestrial ecosystems, aquatic ecosystems, and watersheds;
(2) Air, soil, and water resources and quality;
(3) System drivers, including dominant ecological processes,
disturbance regimes, and stressors, such as natural succession, wildland
fire, invasive species, and climate change; and the ability of
terrestrial and aquatic ecosystems on the plan area to adapt to change;
(4) Baseline assessment of carbon stocks;
(5) Threatened, endangered, proposed and candidate species, and
potential species of conservation concern present in the plan area;
(6) Social, cultural, and economic conditions;
(7) Benefits people obtain from the NFS planning area (ecosystem
services);
(8) Multiple uses and their contributions to local, regional, and
national economies;
(9) Recreation settings, opportunities and access, and scenic
character;
(10) Renewable and nonrenewable energy and mineral resources;
(11) Infrastructure, such as recreational facilities and
transportation and utility corridors;
(12) Areas of tribal importance;
(13) Cultural and historic resources and uses;
(14) Land status and ownership, use, and access patterns; and
(15) Existing designated areas located in the plan area including
wilderness and wild and scenic rivers and potential need and opportunity
for additional designated areas.
(c) Plan amendment assessments. Where the responsible official
determines that a new assessment is needed to inform an amendment, the
responsible official has the discretion to determine the scope, scale,
process, and content for the assessment depending on the topic or topics
to be addressed.
[77 FR 21260, Apr. 9, 2012, as amended at 77 FR 44145, July 27, 2012]
[[Page 57]]
Sec. 219.7 New plan development or plan revision.
(a) Plan revisions. A plan revision creates a new plan for the
entire plan area, whether the plan revision differs from the prior plan
to a small or large extent. A plan must be revised at least every 15
years. But, the responsible official has the discretion to determine at
any time that conditions on a plan area have changed significantly such
that a plan must be revised (16 U.S.C. 1604(f)(5)).
(b) New plan development. New plan development is required for new
NFS units. The process for developing a new plan is the same as the
process for plan revision.
(c) Process for plan development or revision. (1) The process for
developing or revising a plan includes: Public notification and
participation (Sec. Sec. 219.4 and 219.16), assessment (Sec. Sec.
219.5 and 219.6), developing a proposed plan, considering the
environmental effects of the proposal, providing an opportunity to
comment on the proposed plan, providing an opportunity to object before
the proposal is approved (subpart B), and, finally, approving the plan
or plan revision. A new plan or plan revision requires preparation of an
environmental impact statement.
(2) In developing a proposed new plan or proposed plan revision, the
responsible official shall:
(i) Review relevant information from the assessment and monitoring
to identify a preliminary need to change the existing plan and to inform
the development of plan components and other plan content.
(ii) Consider the goals and objectives of the Forest Service
strategic plan (Sec. 219.2(a)).
(iii) Identify the presence and consider the importance of various
physical, biological, social, cultural, and historic resources on the
plan area (Sec. 219.6), with respect to the requirements for plan
components of Sec. Sec. 219.8 through 219.11.
(iv) Consider conditions, trends, and stressors (Sec. 219.6), with
respect to the requirements for plan components of Sec. Sec. 219.8
through 219.11.
(v) Identify and evaluate lands that may be suitable for inclusion
in the National Wilderness Preservation System and determine whether to
recommend any such lands for wilderness designation.
(vi) Identify the eligibility of rivers for inclusion in the
National Wild and Scenic Rivers System, unless a systematic inventory
has been previously completed and documented and there are no changed
circumstances that warrant additional review.
(vii) Identify existing designated areas other than the areas
identified in paragraphs (c)(2)(v) and (c)(2)(vi) of this section, and
determine whether to recommend any additional areas for designation. If
the responsible official has the delegated authority to designate a new
area or modify an existing area, then the responsible official may
designate such area when approving the plan, plan amendment, or plan
revision.
(viii) Identify the suitability of areas for the appropriate
integration of resource management and uses, with respect to the
requirements for plan components of Sec. Sec. 219.8 through 219.11,
including identifying lands that are not suitable for timber production
(Sec. 219.11).
(ix) Identify the maximum quantity of timber that may be removed
from the plan area (Sec. 219.11(d)(6)).
(x) Identify questions and indicators for the plan monitoring
program (Sec. 219.12).
(xi) Identify potential other content in the plan (paragraph (f) of
this section).
(3) The regional forester shall identify the species of conservation
concern for the plan area in coordination with the responsible official.
(d) Management areas or geographic areas. Every plan must have
management areas or geographic areas or both. The plan may identify
designated or recommended designated areas as management areas or
geographic areas.
(e) Plan components. Plan components guide future project and
activity decisionmaking. The plan must indicate whether specific plan
components apply to the entire plan area, to specific management areas
or geographic areas, or to other areas as identified in the plan.
(1) Required plan components. Every plan must include the following
plan components:
[[Page 58]]
(i) Desired conditions. A desired condition is a description of
specific social, economic, and/or ecological characteristics of the plan
area, or a portion of the plan area, toward which management of the land
and resources should be directed. Desired conditions must be described
in terms that are specific enough to allow progress toward their
achievement to be determined, but do not include completion dates.
(ii) Objectives. An objective is a concise, measurable, and time-
specific statement of a desired rate of progress toward a desired
condition or conditions. Objectives should be based on reasonably
foreseeable budgets.
(iii) Standards. A standard is a mandatory constraint on project and
activity decisionmaking, established to help achieve or maintain the
desired condition or conditions, to avoid or mitigate undesirable
effects, or to meet applicable legal requirements.
(iv) Guidelines. A guideline is a constraint on project and activity
decisionmaking that allows for departure from its terms, so long as the
purpose of the guideline is met. (Sec. 219.15(d)(3)). Guidelines are
established to help achieve or maintain a desired condition or
conditions, to avoid or mitigate undesirable effects, or to meet
applicable legal requirements.
(v) Suitability of lands. Specific lands within a plan area will be
identified as suitable for various multiple uses or activities based on
the desired conditions applicable to those lands. The plan will also
identify lands within the plan area as not suitable for uses that are
not compatible with desired conditions for those lands. The suitability
of lands need not be identified for every use or activity. Suitability
identifications may be made after consideration of historic uses and of
issues that have arisen in the planning process. Every plan must
identify those lands that are not suitable for timber production (Sec.
219.11).
(2) Optional plan component: goals. A plan may include goals as plan
components. Goals are broad statements of intent, other than desired
conditions, usually related to process or interaction with the public.
Goals are expressed in broad, general terms, but do not include
completion dates.
(3) Requirements for the set of plan components. The set of plan
components must meet the requirements set forth in this part for
sustainability (Sec. 219.8), plant and animal diversity (Sec. 219.9),
multiple use (Sec. 219.10), and timber (Sec. 219.11).
(f) Other content in the plan. (1) Other required content in the
plan. Every plan must:
(i) Identify watershed(s) that are a priority for maintenance or
restoration;
(ii) Describe the plan area's distinctive roles and contributions
within the broader landscape;
(iii) Include the monitoring program required by Sec. 219.12; and
(iv) Contain information reflecting proposed and possible actions
that may occur on the plan area during the life of the plan, including:
the planned timber sale program; timber harvesting levels; and the
proportion of probable methods of forest vegetation management practices
expected to be used (16 U.S.C. 1604(e)(2) and (f)(2)). Such information
is not a commitment to take any action and is not a ``proposal'' as
defined by the Council on Environmental Quality regulations for
implementing NEPA (40 CFR 1508.23, 42 U.S.C. 4322(2)(C)).
(2) Optional content in the plan. A plan may include additional
content, such as potential management approaches or strategies and
partnership opportunities or coordination activities.
[77 FR 21260, Apr. 9, 2012, as amended at 77 FR 44145, July 27, 2012]
Sec. 219.8 Sustainability.
A plan developed or revised under this part must provide for social,
economic, and ecological sustainability within Forest Service authority
and consistent with the inherent capability of the plan area, as
follows:
(a) Ecological sustainability. (1) Ecosystem Integrity. The plan
must include plan components, including standards or guidelines, to
maintain or restore the ecological integrity of terrestrial and aquatic
ecosystems and watersheds in the plan area, including plan components to
maintain or restore structure, function, composition, and connectivity,
taking into account:
[[Page 59]]
(i) Interdependence of terrestrial and aquatic ecosystems in the
plan area.
(ii) Contributions of the plan area to ecological conditions within
the broader landscape influenced by the plan area.
(iii) Conditions in the broader landscape that may influence the
sustainability of resources and ecosystems within the plan area.
(iv) System drivers, including dominant ecological processes,
disturbance regimes, and stressors, such as natural succession, wildland
fire, invasive species, and climate change; and the ability of
terrestrial and aquatic ecosystems on the plan area to adapt to change.
(v) Wildland fire and opportunities to restore fire adapted
ecosystems.
(vi) Opportunities for landscape scale restoration.
(2) Air, soil, and water. The plan must include plan components,
including standards or guidelines, to maintain or restore:
(i) Air quality.
(ii) Soils and soil productivity, including guidance to reduce soil
erosion and sedimentation.
(iii) Water quality.
(iv) Water resources in the plan area, including lakes, streams, and
wetlands; ground water; public water supplies; sole source aquifers;
source water protection areas; and other sources of drinking water
(including guidance to prevent or mitigate detrimental changes in
quantity, quality, and availability).
(3) Riparian areas. (i) The plan must include plan components,
including standards or guidelines, to maintain or restore the ecological
integrity of riparian areas in the plan area, including plan components
to maintain or restore structure, function, composition, and
connectivity, taking into account:
(A) Water temperature and chemical composition;
(B) Blockages (uncharacteristic and characteristic) of water
courses;
(C) Deposits of sediment;
(D) Aquatic and terrestrial habitats;
(E) Ecological connectivity;
(F) Restoration needs; and
(G) Floodplain values and risk of flood loss.
(ii) Plans must establish width(s) for riparian management zones
around all lakes, perennial and intermittent streams, and open water
wetlands, within which the plan components required by paragraph
(a)(3)(i) of this section will apply, giving special attention to land
and vegetation for approximately 100 feet from the edges of all
perennial streams and lakes.
(A) Riparian management zone width(s) may vary based on ecological
or geomorphic factors or type of water body; and will apply unless
replaced by a site-specific delineation of the riparian area.
(B) Plan components must ensure that no management practices causing
detrimental changes in water temperature or chemical composition,
blockages of water courses, or deposits of sediment that seriously and
adversely affect water conditions or fish habitat shall be permitted
within the riparian management zones or the site-specific delineated
riparian areas.
(4) Best management practices for water quality. The Chief shall
establish requirements for national best management practices for water
quality in the Forest Service Directive System. Plan components must
ensure implementation of these practices.
(b) Social and economic sustainability. The plan must include plan
components, including standards or guidelines, to guide the plan area's
contribution to social and economic sustainability, taking into account:
(1) Social, cultural, and economic conditions relevant to the area
influenced by the plan;
(2) Sustainable recreation; including recreation settings,
opportunities, and access; and scenic character;
(3) Multiple uses that contribute to local, regional, and national
economies in a sustainable manner;
(4) Ecosystem services;
(5) Cultural and historic resources and uses; and
(6) Opportunities to connect people with nature.
[77 FR 21260, Apr. 9, 2012, as amended at 81 FR 90737, Dec. 15, 2016]
[[Page 60]]
Sec. 219.9 Diversity of plant and animal communities.
This section adopts a complementary ecosystem and species-specific
approach to maintaining the diversity of plant and animal communities
and the persistence of native species in the plan area. Compliance with
the ecosystem requirements of paragraph (a) of this section is intended
to provide the ecological conditions to both maintain the diversity of
plant and animal communities and support the persistence of most native
species in the plan area. Compliance with the requirements of paragraph
(b) of this section is intended to provide for additional ecological
conditions not otherwise provided by compliance with paragraph (a) of
this section for individual species as set forth in paragraph (b) of
this section. A plan developed or revised under this part must provide
for the diversity of plant and animal communities, within Forest Service
authority and consistent with the inherent capability of the plan area,
as follows:
(a) Ecosystem plan components. (1) Ecosystem integrity. As required
by Sec. 219.8(a), the plan must include plan components, including
standards or guidelines, to maintain or restore the ecological integrity
of terrestrial and aquatic ecosystems and watersheds in the plan area,
including plan components to maintain or restore their structure,
function, composition, and connectivity.
(2) Ecosystem diversity. The plan must include plan components,
including standards or guidelines, to maintain or restore the diversity
of ecosystems and habitat types throughout the plan area. In doing so,
the plan must include plan components to maintain or restore:
(i) Key characteristics associated with terrestrial and aquatic
ecosystem types;
(ii) Rare aquatic and terrestrial plant and animal communities; and
(iii) The diversity of native tree species similar to that existing
in the plan area.
(b) Additional, species-specific plan components. (1) The
responsible official shall determine whether or not the plan components
required by paragraph (a) of this section provide the ecological
conditions necessary to: contribute to the recovery of federally listed
threatened and endangered species, conserve proposed and candidate
species, and maintain a viable population of each species of
conservation concern within the plan area. If the responsible official
determines that the plan components required in paragraph (a) are
insufficient to provide such ecological conditions, then additional,
species-specific plan components, including standards or guidelines,
must be included in the plan to provide such ecological conditions in
the plan area.
(2) If the responsible official determines that it is beyond the
authority of the Forest Service or not within the inherent capability of
the plan area to maintain or restore the ecological conditions to
maintain a viable population of a species of conservation concern in the
plan area, then the responsible official shall:
(i) Document the basis for that determination (Sec. 219.14(a)); and
(ii) Include plan components, including standards or guidelines, to
maintain or restore ecological conditions within the plan area to
contribute to maintaining a viable population of the species within its
range. In providing such plan components, the responsible official shall
coordinate to the extent practicable with other Federal, State, Tribal,
and private land managers having management authority over lands
relevant to that population.
(c) Species of conservation concern. For purposes of this subpart, a
species of conservation concern is a species, other than federally
recognized threatened, endangered, proposed, or candidate species, that
is known to occur in the plan area and for which the regional forester
has determined that the best available scientific information indicates
substantial concern about the species' capability to persist over the
long-term in the plan area.
[77 FR 21260, Apr. 9, 2012, as amended at 81 FR 90737, Dec. 15, 2016]
Sec. 219.10 Multiple use.
While meeting the requirements of Sec. Sec. 219.8 and 219.9, a plan
developed or revised under this part must provide for ecosystem services
and multiple uses, including outdoor recreation, range,
[[Page 61]]
timber, watershed, wildlife, and fish, within Forest Service authority
and the inherent capability of the plan area as follows:
(a) Integrated resource management for multiple use. The plan must
include plan components, including standards or guidelines, for
integrated resource management to provide for ecosystem services and
multiple uses in the plan area. When developing plan components for
integrated resource management, to the extent relevant to the plan area
and the public participation process and the requirements of Sec. Sec.
219.7, 219.8, 219.9, and 219.11, the responsible official shall
consider:
(1) Aesthetic values, air quality, cultural and heritage resources,
ecosystem services, fish and wildlife species, forage, geologic
features, grazing and rangelands, habitat and habitat connectivity,
recreation settings and opportunities, riparian areas, scenery, soil,
surface and subsurface water quality, timber, trails, vegetation,
viewsheds, wilderness, and other relevant resources and uses.
(2) Renewable and nonrenewable energy and mineral resources.
(3) Appropriate placement and sustainable management of
infrastructure, such as recreational facilities and transportation and
utility corridors.
(4) Opportunities to coordinate with neighboring landowners to link
open spaces and take into account joint management objectives where
feasible and appropriate.
(5) Habitat conditions, subject to the requirements of Sec. 219.9,
for wildlife, fish, and plants commonly enjoyed and used by the public;
for hunting, fishing, trapping, gathering, observing, subsistence, and
other activities (in collaboration with federally recognized Tribes,
Alaska Native Corporations, other Federal agencies, and State and local
governments).
(6) Land status and ownership, use, and access patterns relevant to
the plan area.
(7) Reasonably foreseeable risks to ecological, social, and economic
sustainability.
(8) System drivers, including dominant ecological processes,
disturbance regimes, and stressors, such as natural succession, wildland
fire, invasive species, and climate change; and the ability of the
terrestrial and aquatic ecosystems on the plan area to adapt to change
(Sec. 219.8);
(9) Public water supplies and associated water quality.
(10) Opportunities to connect people with nature.
(b) Requirements for plan components for a new plan or plan
revision. (1) The plan must include plan components, including standards
or guidelines, to provide for:
(i) Sustainable recreation; including recreation settings,
opportunities, and access; and scenic character. Recreation
opportunities may include non-motorized, motorized, developed, and
dispersed recreation on land, water, and in the air.
(ii) Protection of cultural and historic resources.
(iii) Management of areas of tribal importance.
(iv) Protection of congressionally designated wilderness areas as
well as management of areas recommended for wilderness designation to
protect and maintain the ecological and social characteristics that
provide the basis for their suitability for wilderness designation.
(v) Protection of designated wild and scenic rivers as well as
management of rivers found eligible or determined suitable for the
National Wild and Scenic River system to protect the values that provide
the basis for their suitability for inclusion in the system.
(vi) Appropriate management of other designated areas or recommended
designated areas in the plan area, including research natural areas.
(2) Other plan components for integrated resource management to
provide for multiple use as necessary.
[77 FR 21260, Apr. 9, 2012, as amended at 81 FR 90737, Dec. 15, 2016]
Sec. 219.11 Timber requirements based on the NFMA.
While meeting the requirements of Sec. Sec. 219.8 through 219.10, a
plan developed or revised under this part must include plan components,
including standards or guidelines, and other plan content regarding
timber management within
[[Page 62]]
Forest Service authority and the inherent capability of the plan area,
as follows:
(a) Lands not suited for timber production. (1) The responsible
official shall identify lands within the plan area as not suited for
timber production if any one of the following factors applies:
(i) Statute, Executive order, or regulation prohibits timber
production on the land;
(ii) The Secretary of Agriculture or the Chief has withdrawn the
land from timber production;
(iii) Timber production would not be compatible with the achievement
of desired conditions and objectives established by the plan for those
lands;
(iv) The technology is not currently available for conducting timber
harvest without causing irreversible damage to soil, slope, or other
watershed conditions;
(v) There is no reasonable assurance that such lands can be
adequately restocked within 5 years after final regeneration harvest; or
(vi) The land is not forest land.
(2) The responsible official shall review lands identified in the
plan as not suited for timber production at least once every 10 years,
or as otherwise prescribed by law, to determine whether conditions have
changed so that they have become suitable for timber production. As a
result of this 10-year review, the plan may be amended to identify any
such lands as suitable for timber production, if warranted by changed
conditions.
(b) Timber harvest for purposes of timber production. A plan that
identifies lands as suitable for timber production must include plan
components, including standards or guidelines, to guide timber harvest
for timber production or for other multiple use purposes on such lands.
(c) Timber harvest for purposes other than timber production. Except
as provided in paragraph (d) of this section, the plan may include plan
components to allow for timber harvest for purposes other than timber
production throughout the plan area, or portions of the plan area, as a
tool to assist in achieving or maintaining one or more applicable
desired conditions or objectives of the plan in order to protect other
multiple-use values, and for salvage, sanitation, or public health or
safety. Examples of using timber harvest to protect other multiple use
values may include improving wildlife or fish habitat, thinning to
reduce fire risk, or restoring meadow or savanna ecosystems where trees
have invaded.
(d) Limitations on timber harvest. Whether timber harvest would be
for the purposes of timber production or other purposes, plan
components, including standards or guidelines, must ensure the
following:
(1) No timber harvest for the purposes of timber production may
occur on lands not suited for timber production.
(2) Timber harvest would occur only where soil, slope, or other
watershed conditions would not be irreversibly damaged;
(3) Timber harvest would be carried out in a manner consistent with
the protection of soil, watershed, fish, wildlife, recreation, and
aesthetic resources.
(4) Where plan components will allow clearcutting, seed tree
cutting, shelterwood cutting, or other cuts designed to regenerate an
even-aged stand of timber, the plan must include standards limiting the
maximum size for openings that may be cut in one harvest operation,
according to geographic areas, forest types, or other suitable
classifications. Except as provided in paragraphs (d)(4)(i) through
(iii) of this section, this limit may not exceed 60 acres for the
Douglas-fir forest type of California, Oregon, and Washington; 80 acres
for the southern yellow pine types of Alabama, Arkansas, Georgia,
Florida, Louisiana, Mississippi, North Carolina, South Carolina,
Oklahoma, and Texas; 100 acres for the hemlock-Sitka spruce forest type
of coastal Alaska; and 40 acres for all other forest types.
(5) Timber will be harvested from NFS lands only where such harvest
would comply with the resource protections set out in sections
6(g)(3)(E) and (F) of the NFMA (16 U.S.C. 1604(g)(3)(E) and (F)). Some
of these requirements are listed in paragraphs (d)(2) to (d)(4) of this
section.
[[Page 63]]
(6) The quantity of timber that may be sold from the national forest
is limited to an amount equal to or less than that which can be removed
from such forest annually in perpetuity on a sustained yield basis. This
limit may be measured on a decadal basis.
(i) The plan may provide for departures from this limit as provided
by the NFMA when departure would be consistent with the plan's desired
conditions and objectives. Exceptions for departure from this limit on
the quantity sold may be made only after a public review and comment
period of at least 90 days.
(ii) This limit may be based upon increases in harvest levels based
on intensified management practices, such as reforestation, thinning,
and tree improvement if such practices justify increasing the harvests
in accordance with the Multiple-Use Sustained-Yield Act of 1960. The
plan must require that such harvest levels be decreased at the end of
each planning period if such practices cannot be successfully
implemented or funds are not received to permit such practices to
continue substantially as planned.
(iii) The Chief must include in the Forest Service Directive System
procedures for estimating the quantity of timber that can be removed
annually in perpetuity on a sustained-yield basis, and exceptions,
consistent with 16 U.S.C. 1611.
(7) The regeneration harvest of even-aged stands of trees is limited
to stands that generally have reached the culmination of mean annual
increment of growth. This requirement would apply only to regeneration
harvest of even-aged stands on lands identified as suitable for timber
production and where timber production is the primary purpose for the
harvest. Plan components may allow for exceptions, set out in 16 U.S.C.
1604(m), only if such harvest is consistent with the other plan
components of the land management plan.
[77 FR 21260, Apr. 9, 2012, as amended at 77 FR 44145, July 27, 2012; 78
FR 23492, Apr. 19, 2013; 81 FR 90737, Dec. 15, 2016]
Sec. 219.12 Monitoring.
(a) Plan monitoring program. (1) The responsible official shall
develop a monitoring program for the plan area and include it in the
plan. Monitoring information should enable the responsible official to
determine if a change in plan components or other plan content that
guide management of resources on the plan area may be needed. The
development of the plan monitoring program must be coordinated with the
regional forester and Forest Service State and Private Forestry and
Research and Development. Responsible officials for two or more
administrative units may jointly develop their plan monitoring programs.
(2) The plan monitoring program sets out the plan monitoring
questions and associated indicators. Monitoring questions and associated
indicators must be designed to inform the management of resources on the
plan area, including by testing relevant assumptions, tracking relevant
changes, and measuring management effectiveness and progress toward
achieving or maintaining the plan's desired conditions or objectives.
Questions and indicators should be based on one or more desired
conditions, objectives, or other plan components in the plan, but not
every plan component needs to have a corresponding monitoring question.
(3) The plan monitoring program should be coordinated and integrated
with relevant broader-scale monitoring strategies (paragraph (b) of this
section) to ensure that monitoring is complementary and efficient, and
that information is gathered at scales appropriate to the monitoring
questions.
(4) Subject to the requirements of paragraph (a)(5) of this section,
the responsible official has the discretion to set the scope and scale
of the plan monitoring program, after considering:
(i) Information needs identified through the planning process as
most critical for informed management of resources on the plan area; and
(ii) The financial and technical capabilities of the Agency.
(5) Each plan monitoring program must contain one or more monitoring
questions and associated indicators addressing each of the following:
(i) The status of select watershed conditions.
[[Page 64]]
(ii) The status of select ecological conditions including key
characteristics of terrestrial and aquatic ecosystems.
(iii) The status of focal species to assess the ecological
conditions required under Sec. 219.9.
(iv) The status of a select set of the ecological conditions
required under Sec. 219.9 to contribute to the recovery of federally
listed threatened and endangered species, conserve proposed and
candidate species, and maintain a viable population of each species of
conservation concern.
(v) The status of visitor use, visitor satisfaction, and progress
toward meeting recreation objectives.
(vi) Measurable changes on the plan area related to climate change
and other stressors that may be affecting the plan area.
(vii) Progress toward meeting the desired conditions and objectives
in the plan, including for providing multiple use opportunities.
(viii) The effects of each management system to determine that they
do not substantially and permanently impair the productivity of the land
(16 U.S.C. 1604(g)(3)(C)).
(6) A range of monitoring techniques may be used to carry out the
monitoring requirements in paragraph (a)(5) of this section.
(7) This section does not apply to projects or activities. Project
and activity monitoring may be used to gather information for the plan
monitoring program, and information gathered through plan monitoring may
be used to inform development of projects or activities. But, the
monitoring requirements of this section are not a prerequisite for
making a decision to carry out a project or activity.
(b) Broader-scale monitoring strategies. (1) The regional forester
shall develop a broader-scale monitoring strategy for plan monitoring
questions that can best be answered at a geographic scale broader than
one plan area.
(2) When developing a monitoring strategy, the regional forester
shall coordinate with the relevant responsible officials, Forest Service
State and Private Forestry and Research and Development, partners, and
the public. Two or more regional foresters may jointly develop broader-
scale monitoring strategies.
(3) Each regional forester shall ensure that the broader-scale
monitoring strategy is within the financial and technical capabilities
of the region and complements other ongoing monitoring efforts.
(4) Projects and activities may be carried out under plans
developed, amended, or revised under this part before the regional
forester has developed a broader-scale monitoring strategy.
(c) Timing and process for developing the plan monitoring program
and broader-scale strategies. (1) The responsible official shall develop
the plan monitoring program as part of the planning process for a new
plan development or plan revision. Where a plan's monitoring program has
been developed under the provisions of a prior planning regulation and
the unit has not initiated plan revision under this part, the
responsible official shall modify the plan monitoring program within 4
years of the effective date of this part, or as soon as practicable, to
meet the requirements of this section.
(2) The regional forester shall develop a broader-scale monitoring
strategy as soon as practicable.
(3) To the extent practicable, appropriate, and relevant to the
monitoring questions in the plan monitoring program, plan monitoring
programs and broader-scale strategies must be designed to take into
account:
(i) Existing national and regional inventory, monitoring, and
research programs of the Agency, including from the NFS, State and
Private Forestry, and Research and Development, and of other
governmental and non-governmental entities;
(ii) Opportunities to design and carry out multi-party monitoring
with other Forest Service units, Federal, State or local government
agencies, scientists, partners, and members of the public; and
(iii) Opportunities to design and carry out monitoring with
federally recognized Indian Tribes and Alaska Native Corporations.
(d) Biennial evaluation of the monitoring information. (1) The
responsible official shall conduct a biennial evaluation of new
information gathered
[[Page 65]]
through the plan monitoring program and relevant information from the
broader-scale strategy, and shall issue a written report of the
evaluation and make it available to the public.
(i) The first monitoring evaluation for a plan or plan revision
developed in accordance with this subpart must be completed no later
than 2 years from the effective date of plan decision.
(ii) Where the monitoring program developed under the provisions of
a prior planning regulation has been modified to meet the requirements
of paragraph (c)(1) of this section, the first monitoring evaluation
must be completed no later than 2 years from the date the change takes
effect.
(iii) The monitoring evaluation report may be postponed for 1 year
in case of exigencies, but notice of the postponement must be provided
to the public prior to the date the report is due for that year (Sec.
219.16(c)(6)).
(2) The monitoring evaluation report must indicate whether or not a
change to the plan, management activities, or the monitoring program, or
a new assessment, may be warranted based on the new information. The
monitoring evaluation report must be used to inform adaptive management
of the plan area.
(3) The monitoring evaluation report may be incorporated into other
planning documents if the responsible official has initiated a plan
revision or relevant amendment.
(4) The monitoring evaluation report is not a decision document
representing final Agency action, and is not subject to the objection
provisions of subpart B.
Sec. 219.13 Plan amendment and administrative changes.
(a) Plan amendment. A plan may be amended at any time. Plan
amendments may be broad or narrow, depending on the need for change, and
should be used to keep plans current and help units adapt to new
information or changing conditions. The responsible official has the
discretion to determine whether and how to amend the plan and to
determine the scope and scale of any amendment. Except as provided by
paragraph (c) of this section, a plan amendment is required to add,
modify, or remove one or more plan components, or to change how or where
one or more plan components apply to all or part of the plan area
(including management areas or geographic areas).
(b) Amendment requirements. For every plan amendment, the
responsible official shall:
(1) Base an amendment on a preliminary identification of the need to
change the plan. The preliminary identification of the need to change
the plan may be based on a new assessment; a monitoring report; or other
documentation of new information, changed conditions, or changed
circumstances. When a plan amendment is made together with, and only
applies to, a project or activity decision, the analysis prepared for
the project or activity may serve as the documentation for the
preliminary identification of the need to change the plan.
(2) Provide opportunities for public participation as required in
Sec. 219.4 and public notification as required in Sec. 219.16. The
responsible official may combine processes and associated public
notifications where appropriate, considering the scope and scale of the
need to change the plan. The responsible official must include
information in the initial notice for the amendment (Sec. 219.16(a)(1))
about which substantive requirements of Sec. Sec. 219.8 through 219.11
are likely to be directly related to the amendment (Sec. 219.13(b)(5)).
(3) Amend the plan consistent with Forest Service NEPA procedures.
The appropriate NEPA documentation for an amendment may be an
environmental impact statement, an environmental assessment, or a
categorical exclusion, depending upon the scope and scale of the
amendment and its likely effects. Except for an amendment that applies
only to one project or activity, a proposed amendment that may create a
significant environmental effect and thus requires preparation of an
environmental impact statement is considered a significant change in the
plan for the purposes of the NFMA and therefore requires a 90-day
comment period for the proposed plan and draft environmental impact
statement (Sec. 219.16(a)(2)), in addition to meeting the requirements
of this section.
[[Page 66]]
(4) Follow the applicable format for plan components set out at
Sec. 219.7(e) for the plan direction added or modified by the
amendment, except that where an amendment to a plan developed or revised
under a prior planning regulation would simply modify the area to which
existing direction applies, the responsible official may retain the
existing formatting for that direction.
(5) Determine which specific substantive requirement(s) within
Sec. Sec. 219.8 through 219.11 are directly related to the plan
direction being added, modified, or removed by the amendment and apply
such requirement(s) within the scope and scale of the amendment. The
responsible official is not required to apply any substantive
requirements within Sec. Sec. 219.8 through 219.11 that are not
directly related to the amendment.
(i) The responsible official's determination must be based on the
purpose for the amendment and the effects (beneficial or adverse) of the
amendment, and informed by the best available scientific information,
scoping, effects analysis, monitoring data or other rationale.
(ii) When basing the determination on adverse effects:
(A) The responsible official must determine that a specific
substantive requirement is directly related to the amendment when
scoping or NEPA effects analysis for the proposed amendment reveals
substantial adverse effects associated with that requirement, or when
the proposed amendment would substantially lessen protections for a
specific resource or use.
(B) If the appropriate NEPA documentation for an amendment is a
categorical exclusion or an environmental assessment accompanied by a
finding of no significant impact (Sec. 219.13(b)(3)), there is a
rebuttable presumption that the amendment will not have substantial
adverse effects.
(6) For an amendment to a plan developed or revised under a prior
planning regulation, if species of conservation concern (SCC) have not
been identified for the plan area and if scoping or NEPA effects
analysis for the proposed amendment reveals substantial adverse impacts
to a specific species, or if the proposed amendment would substantially
lessen protections for a specific species, the responsible official must
determine whether such species is a potential SCC, and if so, apply
section Sec. 219.9(b) with respect to that species as if it were an
SCC.
(c) Administrative changes. An administrative change is any change
to a plan that is not a plan amendment or plan revision. Administrative
changes include corrections of clerical errors to any part of the plan,
conformance of the plan to new statutory or regulatory requirements, or
changes to other content in the plan (Sec. 219.7(f)).
(1) A substantive change to the monitoring program made outside of
the process for plan revision or amendment may be made only after notice
to the public of the intended change and consideration of public comment
(Sec. 219.16(c)(6)).
(2) All other administrative changes may be made following public
notice (Sec. 219.16(c)(6)).
[77 FR 21260, Apr. 9, 2012, as amended at 81 FR 90738, Dec. 15, 2016]
Sec. 219.14 Decision document and planning records.
(a) Decision document approving a new plan, plan amendment, or
revision. The responsible official shall record approval of a new plan,
plan amendment, or revision in a decision document prepared according to
Forest Service NEPA procedures (36 CFR part 220). The decision document
must include:
(1) The rationale for approval;
(2) A statement of how the plan, plan amendment, or plan revision
applies to approved projects and activities (Sec. 219.15);
(3) The documentation of how the best available scientific
information was used to inform planning, the plan components, and other
plan content, including the plan monitoring program (Sec. 219.3);
(4) The concurrence by the appropriate research station director
with any part of the plan applicable to any experimental forests or
experimental ranges (Sec. 219.2(b)(4)); and
(5) The effective date of the plan, amendment, or revision.
(b) Decision document for a new plan or plan revision. In addition
to meeting the requirements of paragraph (a) of this section, the
decision document
[[Page 67]]
must include an explanation of how the plan components meet the
sustainability requirements of Sec. 219.8, the diversity requirements
of Sec. 219.9, the multiple use requirements of Sec. 219.10, and the
timber requirements of Sec. 219.11.
(c) Decision document for a plan amendment. In addition to meeting
the requirements of paragraph (a) of this section, the decision document
must explain how the responsible official determined:
(1) The scope and scale of the plan amendment; and
(2) Which specific requirements within Sec. Sec. 219.8 through
219.11 apply to the amendment and how they were applied.
(d) Planning records. (1) The responsible official shall keep the
following documents readily accessible to the public by posting them
online and through other means: assessment reports (Sec. 219.6); the
plan, including the monitoring program; the proposed plan, plan
amendment, or plan revision; public notices and environmental documents
associated with a plan; plan decision documents; and monitoring
evaluation reports (Sec. 219.12).
(2) The planning record includes documents that support analytical
conclusions made and alternatives considered throughout the planning
process. The responsible official shall make the planning record
available at the office where the plan, plan amendment, or plan revision
was developed.
[77 FR 21260, Apr. 9, 2012, as amended at 81 FR 90738, Dec. 15, 2016]
Sec. 219.15 Project and activity consistency with the plan.
(a) Application to existing authorizations and approved projects or
activities. Every decision document approving a plan, plan amendment, or
plan revision must state whether authorizations of occupancy and use
made before the decision document may proceed unchanged. If a plan
decision document does not expressly allow such occupancy and use, the
permit, contract, and other authorizing instrument for the use and
occupancy must be made consistent with the plan, plan amendment, or plan
revision as soon as practicable, as provided in paragraph (d) of this
section, subject to valid existing rights.
(b) Application to projects or activities authorized after plan
decision. Projects and activities authorized after approval of a plan,
plan amendment, or plan revision must be consistent with the plan as
provided in paragraph (d) of this section.
(c) Resolving inconsistency. When a proposed project or activity
would not be consistent with the applicable plan components, the
responsible official shall take one of the following steps, subject to
valid existing rights:
(1) Modify the proposed project or activity to make it consistent
with the applicable plan components;
(2) Reject the proposal or terminate the project or activity;
(3) Amend the plan so that the project or activity will be
consistent with the plan as amended; or
(4) Amend the plan contemporaneously with the approval of the
project or activity so that the project or activity will be consistent
with the plan as amended. This amendment may be limited to apply only to
the project or activity.
(d) Determining consistency. Every project and activity must be
consistent with the applicable plan components. A project or activity
approval document must describe how the project or activity is
consistent with applicable plan components developed or revised in
conformance with this part by meeting the following criteria:
(1) Goals, desired conditions, and objectives. The project or
activity contributes to the maintenance or attainment of one or more
goals, desired conditions, or objectives, or does not foreclose the
opportunity to maintain or achieve any goals, desired conditions, or
objectives, over the long term.
(2) Standards. The project or activity complies with applicable
standards.
(3) Guidelines. The project or activity:
(i) Complies with applicable guidelines as set out in the plan; or
(ii) Is designed in a way that is as effective in achieving the
purpose of the applicable guidelines (Sec. 219.7(e)(1)(iv)).
(4) Suitability. A project or activity would occur in an area:
(i) That the plan identifies as suitable for that type of project or
activity; or
[[Page 68]]
(ii) For which the plan is silent with respect to its suitability
for that type of project or activity.
(e) Consistency of resource plans within the planning area with the
land management plan. Any resource plans (for example, travel management
plans) developed by the Forest Service that apply to the resources or
land areas within the planning area must be consistent with the plan
components. Resource plans developed prior to plan decision must be
evaluated for consistency with the plan and amended if necessary.
Sec. 219.16 Public notifications.
The following public notification requirements apply to plan
development, amendment, or revision. Notifications may be combined where
appropriate.
(a) When formal public notification is required. Public notification
must be provided as follows:
(1) To initiate the development of a proposed plan, plan amendment,
or plan revision;
(2) To invite comments on a proposed plan, plan amendment, or plan
revision, and associated environmental analysis. For a new plan, plan
amendment, or a plan revision for which a draft environmental impact
statement (EIS) is prepared, the comment period is at least 90 days,
except for an amendment that applies only to one project or activity.
For an amendment that applies only to one project or activity for which
a draft EIS is prepared, the comment period is at least 45 days unless a
different time period is required by law or regulation or authorized
pursuant to 40 CFR 1506.10(d). For an amendment for which a draft EIS is
not prepared, the comment period is at least 30 days;
(3) To begin the objection period for a plan, plan amendment, or
plan revision before approval (Sec. 219.52);
(4) To approve a final plan, plan amendment, or plan revision; or
(5) To announce whenever a plan, plan amendment, or plan revision
process initiated under the provisions of a previous planning regulation
will be conformed to meet the provisions of this part (Sec.
219.17(b)(3)).
(b) Project or activity plan amendments. When a plan amendment is
approved in a decision document approving a project or activity and the
amendment applies only to the project or activity, the notification
requirements of 36 CFR part 215 or part 218, subpart A, applies instead
of this section.
(c) How public notice is provided. The responsible official should
use contemporary tools to provide notice to the public. At a minimum,
all public notifications required by this part must be posted online,
and:
(1) When the Chief, the Under Secretary, or the Secretary is the
responsible official, notice must be published in the Federal Register.
(2) For a new plan or plan revision, when an official other than the
Chief, the Under Secretary, or the Secretary is the responsible
official, notice must be published in the Federal Register and the
applicable newspaper(s) of record.
(3) When the notice is for the purpose of inviting comments on a
proposed plan, plan amendment, or plan revision for which a draft EIS is
prepared, the Environmental Protection Agency (EPA) Federal Register
notice of availability of a draft EIS shall serve as the required
Federal Register notice.
(4) For a plan amendment when an official other than the Chief, the
Under Secretary, or the Secretary is the responsible official, and for
which a draft EIS is not prepared, notices must be published in the
newspaper(s) of record.
(5) If a plan, plan amendment, or plan revision applies to two or
more units, notices must be published in the Federal Register and the
newspaper(s) of record for the applicable units.
(6) Additional public notice of administrative changes, changes to
the monitoring program, opportunities to provide information for
assessments, assessment reports, monitoring evaluation reports, or other
notices not listed in paragraph (a) of this section may be made in any
way the responsible official deems appropriate.
(d) Content of public notices. Public notices required by this
section except for notices applicable to paragraph (c)(3) of this
section, must clearly describe the action subject to notice and the
nature and scope of the decisions to
[[Page 69]]
be made; identify the responsible official; describe when, where, and
how the responsible official will provide opportunities for the public
to participate in the planning process; and explain how to obtain
additional information.
[77 FR 21260, Apr. 9, 2012, as amended at 81 FR 90739, Dec. 15, 2016]
Sec. 219.17 Effective dates and transition.
(a) Effective dates. (1) A plan or plan revision is effective 30
days after publication of notice of its approval.
(2) Except as provided in paragraph (a)(3) of this section, a plan
amendment for which an environmental impact statement (EIS) has been
prepared is effective 30 days after publication of notice of its
approval; a plan amendment for which an EIS has not been prepared is
effective immediately.
(3) A plan amendment that applies to only one specific project or
activity is effective on the date the project may be implemented in
accordance with administrative review regulations at 36 CFR parts 215
and 218.
(b) Plan amendment and plan revision transition. For the purposes of
this section, initiation means that the Agency has issued a notice of
intent or other notice announcing the beginning of the process to
develop a proposed plan, plan amendment, or plan revision.
(1) Initiating plan development and plan revisions. Plan development
and plan revisions initiated after May 9, 2012 must conform to the
requirements of this part.
(2) Initiating plan amendments. All plan amendments initiated after
May 9, 2012, are subject to the objection process in subpart B of this
part. With respect to plans approved or revised under a prior planning
regulation, including the transition provisions of the reinstated 2000
rule (36 CFR part 219, published at 36 CFR parts 200 to 299, revised as
of July 1, 2010), plan amendments may be initiated under the provisions
of the prior planning regulation for 3 years after May 9, 2012, and may
be completed and approved under those provisions (except for the
optional appeal procedures of the prior planning regulation); or may be
initiated, completed, and approved under the requirements of this part.
After the 3-year transition period, all plan amendments must be
initiated, completed, and approved under the requirements of this part.
(3) Plan development, plan amendments, or plan revisions initiated
before this part. For plan development, plan amendments, or plan
revisions that were initiated before May 9, 2012, the responsible
official may complete and approve the plan, plan amendment, or plan
revision in conformance with the provisions of the prior planning
regulation, including its transition provisions (36 CFR part 219,
published at 36 CFR parts 200 to 299, revised as of July 1, 2010), or
may conform the plan, plan amendment, or plan revision to the
requirements of this part. If the responsible official chooses to
complete an ongoing planning process under the provisions of the prior
planning regulation, but chooses to allow for an objection rather than
an administrative appeal, the objection process in subpart B of this
part shall apply. When the responsible official chooses to conform an
ongoing planning process to this part, public notice must be made (Sec.
219.16(a)(5)). An objection process may be chosen only if the public is
provided the opportunity to comment on a proposed plan, plan amendment,
or plan revision, and associated environmental analysis.
(c) Plans developed, amended, or revised under a prior planning
regulation. This part supersedes any prior planning regulation. No
obligations remain from any prior planning regulation, except those that
are specifically included in a unit's existing plan. Existing plans will
remain in effect until revised. This part does not compel a change to
any existing plan, except as required in Sec. 219.12(c)(1). None of the
requirements of this part apply to projects or activities on units with
plans developed or revised under a prior planning rule until the plan is
revised under this part, except that projects or activities on such
units must comply with the consistency requirement of Sec. 219.15 with
respect to any amendments that are developed and approved pursuant to
this part.
[77 FR 21260, Apr. 9, 2012, as amended at 77 FR 44145, July 27, 2012]
[[Page 70]]
Sec. 219.18 Severability.
In the event that any specific provision of this part is deemed by a
court to be invalid, the remaining provisions shall remain in effect.
Sec. 219.19 Definitions.
Definitions of the special terms used in this subpart are set out as
follows.
Alaska Native Corporation. One of the regional, urban, and village
native corporations formed under the Alaska Native Claims Settlement Act
of 1971.
Assessment. For the purposes of this subpart, an assessment is the
identification and evaluation of existing information to support land
management planning. Assessments are not decisionmaking documents, but
provide current information on select topics relevant to the plan area,
in the context of the broader landscape.
Best management practices for water quality (BMPs). Methods,
measures, or practices selected by an agency to meet its nonpoint source
control needs. BMPs include but are not limited to structural and
nonstructural controls and operation and maintenance procedures. BMPs
can be applied before, during, and after pollution-producing activities
to reduce or eliminate the introduction of pollutants into receiving
waters.
Candidate species. (1) For U.S. Fish and Wildlife Service candidate
species, a species for which the U.S. Fish and Wildlife Service
possesses sufficient information on vulnerability and threats to support
a proposal to list as endangered or threatened, but for which no
proposed rule has yet been published by the U.S. Fish and Wildlife
Service.
(2) For National Marine Fisheries Service candidate species, a
species that is:
(i) The subject of a petition to list and for which the National
Marine Fisheries Service has determined that listing may be warranted,
pursuant to section 4(b)(3)(A) of the Endangered Species Act (16 U.S.C.
1533(b)(3)(A)), or
(ii) Not the subject of a petition but for which the National Marine
Fisheries Service has announced in the Federal Register the initiation
of a status review.
Collaboration or collaborative process. A structured manner in which
a collection of people with diverse interests share knowledge, ideas,
and resources while working together in an inclusive and cooperative
manner toward a common purpose. Collaboration, in the context of this
part, falls within the full spectrum of public engagement described in
the Council on Environmental Quality's publication of October 2007:
Collaboration in NEPA--A Handbook for NEPA Practitioners.
Connectivity. Ecological conditions that exist at several spatial
and temporal scales that provide landscape linkages that permit the
exchange of flow, sediments, and nutrients; the daily and seasonal
movements of animals within home ranges; the dispersal and genetic
interchange between populations; and the long-distance range shifts of
species, such as in response to climate change.
Conservation. The protection, preservation, management, or
restoration of natural environments, ecological communities, and
species.
Conserve. For purposes of Sec. 219.9, to protect, preserve, manage,
or restore natural environments and ecological communities to
potentially avoid federally listing of proposed and candidate species.
Culmination of mean annual increment of growth. See mean annual
increment of growth.
Designated area. An area or feature identified and managed to
maintain its unique special character or purpose. Some categories of
designated areas may be designated only by statute and some categories
may be established administratively in the land management planning
process or by other administrative processes of the Federal executive
branch. Examples of statutorily designated areas are national heritage
areas, national recreational areas, national scenic trails, wild and
scenic rivers, wilderness areas, and wilderness study areas. Examples of
administratively designated areas are experimental forests, research
natural areas, scenic byways, botanical areas, and significant caves.
Disturbance. Any relatively discrete event in time that disrupts
ecosystem, watershed, community, or species population structure and/or
function and
[[Page 71]]
changes resources, substrate availability, or the physical environment.
Disturbance regime. A description of the characteristic types of
disturbance on a given landscape; the frequency, severity, and size
distribution of these characteristic disturbance types; and their
interactions.
Ecological conditions. The biological and physical environment that
can affect the diversity of plant and animal communities, the
persistence of native species, and the productive capacity of ecological
systems. Ecological conditions include habitat and other influences on
species and the environment. Examples of ecological conditions include
the abundance and distribution of aquatic and terrestrial habitats,
connectivity, roads and other structural developments, human uses, and
invasive species.
Ecological integrity. The quality or condition of an ecosystem when
its dominant ecological characteristics (for example, composition,
structure, function, connectivity, and species composition and
diversity) occur within the natural range of variation and can withstand
and recover from most perturbations imposed by natural environmental
dynamics or human influence.
Ecological sustainability. See sustainability.
Ecological system. See ecosystem.
Economic sustainability. See sustainability.
Ecosystem. A spatially explicit, relatively homogeneous unit of the
Earth that includes all interacting organisms and elements of the
abiotic environment within its boundaries. An ecosystem is commonly
described in terms of its:
(1) Composition. The biological elements within the different levels
of biological organization, from genes and species to communities and
ecosystems.
(2) Structure. The organization and physical arrangement of
biological elements such as, snags and down woody debris, vertical and
horizontal distribution of vegetation, stream habitat complexity,
landscape pattern, and connectivity.
(3) Function. Ecological processes that sustain composition and
structure, such as energy flow, nutrient cycling and retention, soil
development and retention, predation and herbivory, and natural
disturbances such as wind, fire, and floods.
(4) Connectivity. (see connectivity above).
Ecosystem diversity. The variety and relative extent of ecosystems.
Ecosystem services. Benefits people obtain from ecosystems,
including:
(1) Provisioning services, such as clean air and fresh water,
energy, fuel, forage, fiber, and minerals;
(2) Regulating services, such as long term storage of carbon;
climate regulation; water filtration, purification, and storage; soil
stabilization; flood control; and disease regulation;
(3) Supporting services, such as pollination, seed dispersal, soil
formation, and nutrient cycling; and
(4) Cultural services, such as educational, aesthetic, spiritual and
cultural heritage values, recreational experiences, and tourism
opportunities.
Environmental assessment (EA). See definition in Sec. 219.62.
Environmental document. For the purposes of this part: an
environmental assessment, environmental impact statement, finding of no
significant impact, categorical exclusion, and notice of intent to
prepare an environmental impact statement.
Environmental impact statement (EIS). See definition in Sec.
219.62.
Even-aged stand. A stand of trees composed of a single age class.
Federally recognized Indian Tribe. An Indian or Alaska Native Tribe,
band, nation, pueblo, village, or community that the Secretary of the
Interior acknowledges to exist as an Indian Tribe under the Federally
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
Focal species. A small subset of species whose status permits
inference to the integrity of the larger ecological system to which it
belongs and provides meaningful information regarding the effectiveness
of the plan in maintaining or restoring the ecological conditions to
maintain the diversity of plant and animal communities in the plan area.
Focal species would be commonly selected on the basis of their
functional role in ecosystems.
[[Page 72]]
Forest land. Land at least 10 percent occupied by forest trees of
any size or formerly having had such tree cover and not currently
developed for non-forest uses. Lands developed for non-forest use
include areas for crops, improved pasture, residential or administrative
areas, improved roads of any width and adjoining road clearing, and
power line clearings of any width.
Geographic area. A spatially contiguous land area identified within
the planning area. A geographic area may overlap with a management area.
Inherent capability of the plan area. The ecological capacity or
ecological potential of an area characterized by the interrelationship
of its physical elements, its climatic regime, and natural disturbances.
Integrated resource management. Multiple use management that
recognizes the interdependence of ecological resources and is based on
the need for integrated consideration of ecological, social, and
economic factors.
Landscape. A defined area irrespective of ownership or other
artificial boundaries, such as a spatial mosaic of terrestrial and
aquatic ecosystems, landforms, and plant communities, repeated in
similar form throughout such a defined area.
Maintain. In reference to an ecological condition: To keep in
existence or continuance of the desired ecological condition in terms of
its desired composition, structure, and processes. Depending upon the
circumstance, ecological conditions may be maintained by active or
passive management or both.
Management area. A land area identified within the planning area
that has the same set of applicable plan components. A management area
does not have to be spatially contiguous.
Management system. For purposes of this subpart, a timber management
system including even-aged management and uneven-aged management.
Mean annual increment of growth and culmination of mean annual
increment of growth. Mean annual increment of growth is the total
increment of increase of volume of a stand (standing crop plus
thinnings) up to a given age divided by that age. Culmination of mean
annual increment of growth is the age in the growth cycle of an even-
aged stand at which the average annual rate of increase of volume is at
a maximum. In land management plans, mean annual increment is expressed
in cubic measure and is based on the expected growth of stands,
according to intensities and utilization guidelines in the plan.
Monitoring. A systematic process of collecting information to
evaluate effects of actions or changes in conditions or relationships.
Multiple use. The management of all the various renewable surface
resources of the NFS so that they are utilized in the combination that
will best meet the needs of the American people; making the most
judicious use of the land for some or all of these resources or related
services over areas large enough to provide sufficient latitude for
periodic adjustments in use to conform to changing needs and conditions;
that some land will be used for less than all of the resources; and
harmonious and coordinated management of the various resources, each
with the other, without impairment of the productivity of the land, with
consideration being given to the relative values of the various
resources, and not necessarily the combination of uses that will give
the greatest dollar return or the greatest unit output, consistent with
the Multiple-Use Sustained-Yield Act of 1960 (16 U.S.C. 528-531).
National Forest System. See definition in Sec. 219.62.
Native knowledge. A way of knowing or understanding the world,
including traditional ecological and social knowledge of the environment
derived from multiple generations of indigenous peoples' interactions,
observations, and experiences with their ecological systems. Native
knowledge is place-based and culture-based knowledge in which people
learn to live in and adapt to their own environment through
interactions, observations, and experiences with their ecological
system. This knowledge is generally not solely gained, developed by, or
retained by individuals, but is rather accumulated over successive
generations and is expressed through oral traditions, ceremonies,
stories, dances, songs, art,
[[Page 73]]
and other means within a cultural context.
Native species. An organism that was historically or is present in a
particular ecosystem as a result of natural migratory or evolutionary
processes; and not as a result of an accidental or deliberate
introduction into that ecosystem. An organism's presence and evolution
(adaptation) in an area are determined by climate, soil, and other
biotic and abiotic factors.
Newspaper(s) of record. See definition in Sec. 219.62.
Objection. See definition in Sec. 219.62.
Online. See definition in Sec. 219.62.
Participation. Activities that include a wide range of public
involvement tools and processes, such as collaboration, public meetings,
open houses, workshops, and comment periods.
Persistence. Continued existence.
Plan area. The NFS lands covered by a plan.
Plan or land management plan. A document or set of documents that
provide management direction for an administrative unit of the NFS
developed under the requirements of this part or a prior planning rule.
Plant and animal community. A naturally occurring assemblage of
plant and animal species living within a defined area or habitat.
Productivity. The capacity of NFS lands and their ecological systems
to provide the various renewable resources in certain amounts in
perpetuity. For the purposes of this subpart, productivity is an
ecological term, not an economic term.
Project. An organized effort to achieve an outcome on NFS lands
identified by location, tasks, outputs, effects, times, and
responsibilities for execution.
Proposed Species. Any species of fish, wildlife, or plant that is
proposed by the U.S. Fish and Wildlife Service or the National Marine
Fisheries Service in the Federal Register to be listed under Section 4
of the Endangered Species Act.
Recovery. For the purposes of this subpart, and with respect to
threatened or endangered species: The improvement in the status of a
listed species to the point at which listing as federally endangered or
threatened is no longer appropriate.
Recreation. See Sustainable recreation.
Recreation opportunity. An opportunity to participate in a specific
recreation activity in a particular recreation setting to enjoy desired
recreation experiences and other benefits that accrue. Recreation
opportunities include non-motorized, motorized, developed, and dispersed
recreation on land, water, and in the air.
Recreation setting. The social, managerial, and physical attributes
of a place that, when combined, provide a distinct set of recreation
opportunities. The Forest Service uses the recreation opportunity
spectrum to define recreation settings and categorize them into six
distinct classes: primitive, semi-primitive non-motorized, semi-
primitive motorized, roaded natural, rural, and urban.
Responsible official. See definition in Sec. 219.62.
Restoration. The process of assisting the recovery of an ecosystem
that has been degraded, damaged, or destroyed. Ecological restoration
focuses on reestablishing the composition, structure, pattern, and
ecological processes necessary to facilitate terrestrial and aquatic
ecosystems sustainability, resilience, and health under current and
future conditions.
Restore. To renew by the process of restoration (see restoration).
Riparian Areas. Three-dimensional ecotones of interaction that
include terrestrial and aquatic ecosystems that extend down into the
groundwater, up above the canopy, outward across the floodplain, up the
near-slopes that drain to the water, laterally into the terrestrial
ecosystem, and along the water course at variable widths.
Riparian management zone. Portions of a watershed where riparian-
dependent resources receive primary emphasis, and for which plans
include plan components to maintain or restore riparian functions and
ecological functions.
Risk. A combination of the likelihood that a negative outcome will
occur and the severity of the subsequent negative consequences.
[[Page 74]]
Scenic character. A combination of the physical, biological, and
cultural images that gives an area its scenic identity and contributes
to its sense of place. Scenic character provides a frame of reference
from which to determine scenic attractiveness and to measure scenic
integrity.
Social sustainability. See sustainability.
Sole source aquifer. Underground water supply designated by the
Environmental Protection Agency (EPA) as the ``sole or principle''
source of drinking water for an area as established under section
1424(e) of the Safe Drinking Water Act (42 U.S.C. 300h-3(e)).
Source water protection areas. The area delineated by a State or
Tribe for a public water system (PWS) or including numerous PWSs,
whether the source is ground water or surface water or both, as part of
a State or tribal source water assessment and protection program (SWAP)
approved by the Environmental Protection Agency under section 1453 of
the Safe Drinking Water Act (42 U.S.C. 300h-3(e)).
Stressors. For the purposes of this subpart: Factors that may
directly or indirectly degrade or impair ecosystem composition,
structure or ecological process in a manner that may impair its
ecological integrity, such as an invasive species, loss of connectivity,
or the disruption of a natural disturbance regime.
Sustainability. The capability to meet the needs of the present
generation without compromising the ability of future generations to
meet their needs. For purposes of this part, ``ecological
sustainability'' refers to the capability of ecosystems to maintain
ecological integrity; ``economic sustainability'' refers to the
capability of society to produce and consume or otherwise benefit from
goods and services including contributions to jobs and market and
nonmarket benefits; and ``social sustainability'' refers to the
capability of society to support the network of relationships,
traditions, culture, and activities that connect people to the land and
to one another, and support vibrant communities.
Sustainable recreation. The set of recreation settings and
opportunities on the National Forest System that is ecologically,
economically, and socially sustainable for present and future
generations.
Timber harvest. The removal of trees for wood fiber use and other
multiple-use purposes.
Timber production. The purposeful growing, tending, harvesting, and
regeneration of regulated crops of trees to be cut into logs, bolts, or
other round sections for industrial or consumer use.
Viable population. A population of a species that continues to
persist over the long term with sufficient distribution to be resilient
and adaptable to stressors and likely future environments.
Watershed. A region or land area drained by a single stream, river,
or drainage network; a drainage basin.
Watershed condition. The state of a watershed based on physical and
biogeochemical characteristics and processes.
Wild and scenic river. A river designated by Congress as part of the
National Wild and Scenic Rivers System that was established in the Wild
and Scenic Rivers Act of 1968 (16 U.S.C. 1271 (note), 1271-1287).
Wilderness. Any area of land designated by Congress as part of the
National Wilderness Preservation System that was established in the
Wilderness Act of 1964 (16 U.S.C. 1131-1136).
[77 FR 21260, Apr. 9, 2012, as amended at 77 FR 44145, July 27, 2012]
Subpart B_Pre-Decisional Administrative Review Process
Sec. 219.50 Purpose and scope.
This subpart establishes a pre-decisional administrative review
(hereinafter referred to as objection) process for plans, plan
amendments, or plan revisions. This process gives an individual or
entity an opportunity for an independent Forest Service review and
resolution of issues before the approval of a plan, plan amendment, or
plan revision. This subpart identifies who may file objections to a
plan, plan amendment, or plan revision; the responsibilities of the
participants in an objection; and the procedures that apply to the
review of the objection.
[[Page 75]]
Sec. 219.51 Plans, plan amendments, or plan revisions
not subject to objection.
(a) A plan, plan amendment, or plan revision is not subject to
objection when the responsible official receives no substantive formal
comments (Sec. 219.62) on that proposal during the opportunities for
public comment (Sec. 219.53(a)).
(b) Plans, plan amendments, or plan revisions proposed by the
Secretary of Agriculture or the Under Secretary for Natural Resources
and Environment are not subject to the procedures set forth in this
section. A decision by the Secretary or Under Secretary constitutes the
final administrative determination of the U.S. Department of
Agriculture.
(c) A plan, plan amendment, or plan revision is not subject to
objection under this subpart if another administrative review process is
used consistent with Sec. 219.59.
(d) When a plan, plan amendment, or plan revision is not subject to
objection under this subpart, the responsible official shall include an
explanation with the signed decision document.
Sec. 219.52 Giving notice of a plan, plan amendment, or plan revision
subject to objection before approval.
(a) The responsible official shall disclose during the NEPA scoping
process and in the appropriate NEPA documents that the proposed plan,
plan amendment, or plan revision is subject to the objection procedures
in this subpart. This disclosure is in addition to the public notice
that begins the objection filing period, as required at Sec. 219.16.
When a responsible official chooses to use the objection process of this
subpart for a plan, plan amendment, or plan revision process initiated
before the effective date of this rule, notice that the objection
process will be used must be given prior to an opportunity to provide
substantive formal comment on a proposed plan, plan amendment, or
revision and associated environmental analysis.
(b) The responsible official shall make available the public notice
for the beginning of the objection period for a plan, plan amendment, or
plan revision (Sec. 219.16(a)(3)) to those who have requested the
environmental documents or are eligible to file an objection consistent
with Sec. 219.53.
(c) The content of the public notice for the beginning of the
objection period for a plan, plan amendment, or plan revision before
approval (Sec. 219.16(a)(3)) must:
(1) Inform the public of the availability of the plan, plan
amendment, or plan revision, the appropriate final environmental
documents, the draft plan decision document, and any relevant assessment
or monitoring evaluation report; the commencement of the objection
filing period under 36 CFR part 219 Subpart B; and the process for
objecting. The documents in this paragraph will be made available online
at the time of public notice.
(2) Include the name of the plan, plan amendment, or plan revision,
the name and title of the responsible official, and instructions on how
to obtain a copy of the appropriate final environmental documents; the
draft plan decision document; and the plan, plan amendment, or plan
revision.
(3) Include the name and address of the reviewing officer with whom
an objection is to be filed. The notice must specify a street, postal,
fax, and email address; the acceptable format(s) for objections filed
electronically; and the reviewing officer's office business hours for
those filing hand-delivered objections.
(4) Include a statement that objections will be accepted only from
those who have previously submitted substantive formal comments specific
to the proposed plan, plan amendment, or plan revision during any
opportunity for public comment as provided in subpart A.
(5) Include a statement that the publication date of the public
notice in the applicable newspaper of record (or the Federal Register,
if the responsible official is the Chief) is the exclusive means for
calculating the time to file an objection (Sec. 219.56).
(6) Include a statement that an objection, including attachments,
must be filed with the appropriate reviewing officer (Sec. 219.62)
within 60 days, if an environmental impact statement has been prepared,
otherwise within 45 days of
[[Page 76]]
the date of publication of the public notice for the objection process.
(7) Include a statement describing the minimum content requirements
of an objection (Sec. 219.54(c)).
Sec. 219.53 Who may file an objection.
(a) Individuals and entities who have submitted substantive formal
comments related to a plan, plan amendment, or plan revision during the
opportunities for public comment as provided in subpart A during the
planning process for that decision may file an objection. Objections
must be based on previously submitted substantive formal comments
attributed to the objector unless the objection concerns an issue that
arose after the opportunities for formal comment. The burden is on the
objector to demonstrate compliance with requirements for objection.
Objections that do not meet the requirements of this paragraph may not
be accepted; however, objections not accepted must be documented in the
planning record.
(b) Formal comments received from an authorized representative(s) of
an entity are considered those of the entity only. Individual members of
that entity do not meet objection eligibility requirements solely based
on membership in an entity. A member or an individual must submit
substantive formal comments independently to be eligible to file an
objection in an individual capacity.
(c) When an objection lists multiple individuals or entities, each
individual or entity must meet the requirements of paragraph (a) of this
section. Individuals or entities listed on an objection that do not meet
eligibility requirements may not be considered objectors, although an
objection must be accepted (if not otherwise set aside for review under
Sec. 219.55) if at least one listed individual or entity meets the
eligibility requirements.
(d) Federal agencies may not file objections.
(e) Federal employees who otherwise meet the requirements of this
subpart for filing objections in a non-official capacity must comply
with Federal conflict of interest statutes at 18 U.S.C. 202-209 and with
employee ethics requirements at 5 CFR part 2635. Specifically, employees
may not be on official duty nor use government property or equipment in
the preparation or filing of an objection. Further, employees may not
include information unavailable to the public, such as Federal agency
documents that are exempt from disclosure under the Freedom of
Information Act (5 U.S.C. 552(b)).
Sec. 219.54 Filing an objection.
(a) All objections must be filed, in writing, with the reviewing
officer for the plan. All objections must be open to public inspection
during the objection process.
(b) Including documents by reference is not allowed, except for the
following list of items that may be referenced by including the name,
date, page number (where applicable), and relevant section of the cited
document. All other documents or Web links to those documents, or both
must be included with the objection, if referenced in the objection.
(1) All or any part of a Federal law or regulation.
(2) Forest Service Directive System documents and land management
plans or other published Forest Service documents.
(3) Documents referenced by the Forest Service in the planning
documentation related to the proposal subject to objection.
(4) Formal comments previously provided to the Forest Service by the
objector during the proposed plan, plan amendment, or plan revision
comment period.
(c) At a minimum, an objection must include the following:
(1) The objector's name and address (Sec. 219.62), along with a
telephone number or email address if available;
(2) Signature or other verification of authorship upon request (a
scanned signature for electronic mail may be filed with the objection);
(3) Identification of the lead objector, when multiple names are
listed on an objection (Sec. 219.62). Verification of the identity of
the lead objector if requested;
(4) The name of the plan, plan amendment, or plan revision being
objected to, and the name and title of the responsible official;
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(5) A statement of the issues and/or the parts of the plan, plan
amendment, or plan revision to which the objection applies;
(6) A concise statement explaining the objection and suggesting how
the proposed plan decision may be improved. If applicable, the objector
should identify how the objector believes that the plan, plan amendment,
or plan revision is inconsistent with law, regulation, or policy; and
(7) A statement that demonstrates the link between prior substantive
formal comments attributed to the objector and the content of the
objection, unless the objection concerns an issue that arose after the
opportunities for formal comment (Sec. 219.53(a)).
Sec. 219.55 Objections set aside from review.
(a) The reviewing officer shall set aside and not review an
objection when one or more of the following applies:
(1) Objections are not filed in a timely manner (Sec. 219.56);
(2) The proposed plan, plan amendment, or plan revision is not
subject to the objection procedures of this subpart pursuant to
Sec. Sec. 219.51 and 219.59;
(3) The individual or entity did not submit substantive formal
comments (Sec. 219.53) during opportunities for public comment on the
proposed decision (Sec. 219.16(a)(1) and (a)(2));
(4) None of the issues included in the objection is based on
previously submitted substantive formal comments unless one or more of
those issues arose after the opportunities for formal comment;
(5) The objection does not provide sufficient information as
required by Sec. 219.54(c);
(6) The objector withdraws the objection in writing;
(7) The objector's identity is not provided or cannot be determined
from the signature (written or electronically scanned), and a reasonable
means of contact is not provided (Sec. 219.54(c)); or
(8) The objection is illegible for any reason and a legible copy
cannot easily be obtained.
(b) When an objection includes an issue that is not based on
previously submitted substantive formal comments and did not arise after
the opportunities for formal comment, that issue will be set aside and
not reviewed. Other issues raised in the objection that meet the
requirements of this subpart will be reviewed.
(c) The reviewing officer shall give written notice to the objector
and the responsible official when an objection or part of an objection
is set aside from review and shall state the reasons for not reviewing
the objection in whole or part. If the objection is set aside from
review for reasons of illegibility or lack of a means of contact, the
reasons must be documented in the planning record.
Sec. 219.56 Objection time periods and process.
(a) Time to file an objection. For a new plan, plan amendment, or
plan revision for which an environmental impact statement (EIS) is
prepared, written objections, including any attachments, must be filed
within 60 days following the publication date of the public notice for a
plan, plan amendment, or plan revision before approval (Sec. Sec.
219.16 and 219.52). For an amendment for which an EIS is not prepared,
the time to file an objection is within 45 days. It is the
responsibility of the objector to ensure that the reviewing officer
receives the objection in a timely manner.
(b) Computation of time periods. (1) All time periods are computed
using calendar days, including Saturdays, Sundays, and Federal holidays
in the time zone of the reviewing officer. However, when the time period
expires on a Saturday, Sunday, or Federal holiday, the time is extended
to the end of the next Federal working day (11:59 p.m. for objections
filed by electronic means such as email or facsimile machine).
(2) The day after publication of the public notice for a plan, plan
amendment, or plan revision before approval (Sec. Sec. 219.16 and
219.52), is the first day of the objection filing period.
(3) The publication date of the public notice for a plan, plan
amendment, or plan revision before approval (Sec. Sec. 219.16 and
219.52), is the exclusive means for calculating the time to file an
objection. Objectors may not rely on dates or timeframe information
provided by any other source.
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(c) Evidence of timely filing. The objector is responsible for
filing the objection in a timely manner. Timeliness must be determined
by one of the following indicators:
(1) The date of the U.S. Postal Service postmark for an objection
received before the close of the fifth business day after the objection
filing date;
(2) The electronically generated posted date and time for email and
facsimiles;
(3) The shipping date for delivery by private carrier for an
objection received before the close of the fifth business day after the
objection filing date; or
(4) The official agency date stamp showing receipt of hand delivery.
(d) Extensions. Time extensions for filing are not permitted except
as provided at paragraph (b)(1) of this section.
(e) Reviewing officer role and responsibilities. The reviewing
officer is the U.S. Department of Agriculture (USDA) or Forest Service
official having the delegated authority and responsibility to review an
objection filed under this subpart. The reviewing officer is a line
officer at the next higher administrative level above the responsible
official; except that:
(1) For a plan amendment, that next higher-level line officer may
delegate the reviewing officer authority and responsibility to a line
officer at the same administrative level as the responsible official.
Any plan amendment delegation of reviewing officer responsibilities must
be made prior to the public notification of an objection filing period
(Sec. 219.52).
(2) For an objection or part of an objection specific to the
identification of species of conservation concern, the regional forester
who identified the species of conservation concern for the plan area may
not be the reviewing officer. The Chief may choose to act as the
reviewing officer or may delegate the reviewing officer authority to a
line officer at the same administrative level as the regional forester.
The reviewing officer for the plan will convey any such objections or
parts thereof to the appropriate line officer.
(f) Notice of objections filed. Within 10 days after the close of
the objection period, the responsible official shall publish a notice of
all objections in the applicable newspaper of record and post the notice
online.
(g) Response to objections. The reviewing officer must issue a
written response to the objector(s) concerning their objection(s) within
90 days of the end of the objection-filing period. The reviewing officer
has the discretion to extend the time when it is determined to be
necessary to provide adequate response to objections or to participate
in discussions with the parties. The reviewing officer must notify all
parties (lead objectors and interested persons) in writing of any
extensions.
Sec. 219.57 Resolution of objections.
(a) Meetings. Prior to the issuance of the reviewing officer's
written response, either the reviewing officer or the objector may
request to meet to discuss issues raised in the objection and potential
resolution. The reviewing officer must allow other interested persons to
participate in such meetings. An interested person must file a request
to participate in an objection within 10 days after publication of the
notice of objection by the responsible official (Sec. 219.56(f)). The
responsible official shall be a participant in all meetings involving
the reviewing officer, objectors, and interested persons. During
meetings with objectors and interested persons, the reviewing officer
may choose to use alternative dispute resolution methods to resolve
objections. All meetings are open to observation by the public.
(b) Response to objections. (1) The reviewing officer must render a
written response to the objection(s) within 90 days of the close of the
objection-filing period, unless the allowable time is extended as
provided at Sec. 219.56(g). A written response must set forth the
reasons for the response but need not be a point-by-point response, and
may contain instructions to the responsible official. In cases involving
more than one objection to a plan, plan amendment, or plan revision, the
reviewing officer may consolidate objections and issue one or more
responses. The response must be sent to the objecting party(ies) by
certified mail, return receipt requested, and posted online.
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(2) The reviewing officer's review of and response to the
objection(s) is limited to only those issues and concerns submitted in
the objection(s).
(3) The response of the reviewing officer will be the final decision
of the U.S. Department of Agriculture on the objection.
Sec. 219.58 Timing of a plan, plan amendment, or plan revision decision.
(a) The responsible official may not issue a decision document
concerning a plan, plan amendment, or plan revision subject to the
provisions of this subpart until the reviewing officer has responded in
writing to all objections.
(b) A decision by the responsible official approving a plan, plan
amendment, or plan revision must be consistent with the reviewing
officer's response to objections.
(c) When no objection is filed within the allotted filing period,
the reviewing officer must notify the responsible official. The
responsible official's approval of the plan, plan amendment, or plan
revision in a plan decision document consistent with Sec. 219.14, may
occur on, but not before, the fifth business day following the end of
the objection-filing period.
Sec. 219.59 Use of other administrative review processes.
(a) Where the Forest Service is a participant in a multi-federal
agency effort that would otherwise be subject to objection under this
subpart, the responsible official may waive the objection procedures of
this subpart and instead adopt the administrative review procedure of
another participating Federal agency. As a condition of such a waiver,
the responsible official for the Forest Service must have agreement with
the responsible official of the other agency or agencies that a joint
agency response will be provided to those who file for administrative
review of the multi-agency effort. When such an agreement is reached,
the responsible official for the Forest Service shall ensure public
notice required in Sec. 219.52 sets forth which administrative review
procedure is to be used.
(b) When a plan amendment is approved in a decision document
approving a project or activity and the amendment applies only to the
project or activity, the administrative review process of 36 CFR part
215 or part 218, subpart A, applies instead of the objection process
established in this subpart. When a plan amendment applies to all future
projects or activities, the objection process established in this
subpart applies only to the plan amendment decision; the review process
of 36 CFR part 215 or part 218 would apply to the project or activity
part of the decision.
Sec. 219.60 Secretary's authority.
Nothing in this subpart restricts the Secretary of Agriculture from
exercising any statutory authority regarding the protection, management,
or administration of NFS lands.
Sec. 219.61 Information collection requirements.
This subpart specifies the information that objectors must give in
an objection to a plan, plan amendment, or plan revision (Sec.
219.54(c)). As such, this subpart contains information collection
requirements as defined in 5 CFR part 1320 and have been approved by the
Office of Management and Budget and assigned control number 0596-0158.
Sec. 219.62 Definitions.
Definitions of the special terms used in this subpart are set out as
follows.
Address. An individual's or entity's current mailing address used
for postal service or other delivery services. An email address is not
sufficient.
Decision memo. A concise written record of the responsible
official's decision to implement an action that is categorically
excluded from further analysis and documentation in an environmental
impact statement (EIS) or environmental assessment (EA), where the
action is one of a category of actions which do not individually or
cumulatively have a significant effect on the human environment, and
does not give rise to extraordinary circumstances in which a normally
excluded action may have a significant environmental effect.
Environmental assessment (EA). A public document that provides
sufficient evidence and analysis for determining whether to prepare an
EIS or a finding
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of no significant impact, aids an agency's compliance with the National
Environmental Policy Act (NEPA) when no EIS is necessary, and
facilitates preparation of a statement when one is necessary (40 CFR
1508.9; FSH 1909.15, Chapter 40).
Environmental impact statement (EIS). A detailed written statement
as required by section 102(2)(C) of the National Environmental Policy
Act (NEPA) of 1969 (40 CFR 1508.11; 36 CFR 220).
Formal comments. See substantive formal comments.
Lead objector. For an objection submitted with multiple individuals,
multiple entities, or combination of individuals and entities listed,
the individual or entity identified to represent all other objectors for
the purposes of communication, written or otherwise, regarding the
objection.
Line officer. A Forest Service official who serves in a direct line
of command from the Chief.
Name. The first and last name of an individual or the name of an
entity. An electronic username is insufficient for identification of an
individual or entity.
National Forest System. The National Forest System includes national
forests, national grasslands, and the National Tallgrass Prairie.
Newspaper(s) of record. The newspaper(s) of record is (are) the
principal newspaper(s) of general circulation annually identified and
published in the Federal Register by each regional forester to be used
for publishing notices as required by 36 CFR 215.5. The newspaper(s) of
record for projects in a plan area is (are) the newspaper(s) of record
for notices related to planning.
Objection. The written document filed with a reviewing officer by an
individual or entity seeking pre-decisional administrative review of a
plan, plan amendment, or plan revision.
Objection period. The allotted filing period following publication
of a public notice in the applicable newspaper of record (or the Federal
Register, if the responsible official is the Chief) of the availability
of the appropriate environmental documents and draft decision document,
including a plan, plan amendment, or plan revision during which an
objection may be filed with the reviewing officer.
Objection process. Those procedures established for pre-decisional
administrative review of a plan, plan amendment, or plan revision.
Objector. An individual or entity who meets the requirements of
Sec. 219.53, and files an objection that meets the requirements of
Sec. Sec. 219.54 and 219.56.
Online. Refers to the appropriate Forest Service Web site or future
electronic equivalent.
Responsible official. The official with the authority and
responsibility to oversee the planning process and to approve a plan,
plan amendment, and plan revision.
Reviewing officer. The USDA or Forest Service official having the
delegated authority and responsibility to review an objection filed
under this subpart.
Substantive formal comments. Written comments submitted to, or oral
comments recorded by, the responsible official or his designee during an
opportunity for public participation provided during the planning
process (Sec. Sec. 219.4 and 219.16), and attributed to the individual
or entity providing them. Comments are considered substantive when they
are within the scope of the proposal, are specific to the proposal, have
a direct relationship to the proposal, and include supporting reasons
for the responsible official to consider.
PART 220_NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) COMPLIANCE--
Table of Contents
Sec.
220.1 Purpose and scope.
220.2 Applicability.
220.3 Definitions.
220.4 General requirements.
220.5 Environmental impact statement and record of decision.
220.6 Categorical exclusions.
220.7 Environmental assessment and decision notice.
Authority: 42 U.S.C. 4321 et seq.; E. O. 11514; 40 CFR parts 1500-
1508; 7 CFR part 1b.
Source: 73 FR 43093, July 24, 2008, unless otherwise noted.
[[Page 81]]
Sec. 220.1 Purpose and scope.
(a) Purpose. This part establishes Forest Service, U.S. Department
of Agriculture (USDA) procedures for compliance with the National
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and the
Council on Environmental Quality (CEQ) regulations for implementing the
procedural provisions of NEPA (40 CFR parts 1500 through 1508).
(b) Scope. This part supplements and does not lessen the
applicability of the CEQ regulations, and is to be used in conjunction
with the CEQ regulations and USDA regulations at 7 CFR part 1b.
Sec. 220.2 Applicability.
This part applies to all organizational elements of the Forest
Service. Consistent with 40 CFR 1500.3, no trivial violation of this
part shall give rise to any independent cause of action.
Sec. 220.3 Definitions.
The following definitions supplement, by adding to, the terms
defined at 40 CFR parts 1500-1508.
Adaptive management. A system of management practices based on
clearly identified intended outcomes and monitoring to determine if
management actions are meeting those outcomes; and, if not, to
facilitate management changes that will best ensure that those outcomes
are met or re-evaluated. Adaptive management stems from the recognition
that knowledge about natural resource systems is sometimes uncertain.
Decision document. A record of decision, decision notice or decision
memo.
Decision memo. A concise written record of the responsible
official's decision to implement an action categorically excluded from
further analysis and documentation in an environmental impact statement
(EIS) or environmental assessment (EA).
Decision notice. A concise written record of the responsible
official's decision when an EA and finding of no significant impact
(FONSI) have been prepared.
Environmentally preferable alternative. The environmentally
preferable alternative is the alternative that will best promote the
national environmental policy as expressed in NEPA's section 101 (42
U.S.C. 4321). Ordinarily, the environmentally preferable alternative is
that which causes the least harm to the biological and physical
environment; it also is the alternative which best protects and
preserves historic, cultural, and natural resources. In some situations,
there may be more than one environmentally preferable alternative.
Reasonably foreseeable future actions. Those Federal or non-Federal
activities not yet undertaken, for which there are existing decisions,
funding, or identified proposals. Identified proposals for Forest
Service actions are described in Sec. 220.4(a)(1).
Responsible official. The Agency employee who has the authority to
make and implement a decision on a proposed action.
Schedule of proposed actions (SOPA). A Forest Service document that
informs the public about those proposed and ongoing Forest Service
actions for which a record of decision, decision notice or decision memo
would be or has been prepared. The SOPA also identifies a contact for
additional information on any proposed actions.
Sec. 220.4 General requirements.
(a) Proposed actions subject to the NEPA requirements. As required
by 42 U.S.C. 4321 et seq., a Forest Service proposal is subject to the
NEPA requirements when all of the following apply:
(1) The Forest Service has a goal and is actively preparing to make
a decision on one or more alternative means of accomplishing that goal
and the effects can be meaningfully evaluated (see 40 CFR 1508.23);
(2) The proposed action is subject to Forest Service control and
responsibility (see 40 CFR 1508.18);
(3) The proposed action would cause effects on the natural and
physical environment and the relationship of people with that
environment (see 40 CFR 1508.14); and
(4) The proposed action is not statutorily exempt from the
requirements of section 102(2)(C) of the NEPA (42 U.S.C. 4332(2)(C)).
(b) Emergency responses. When the responsible official determines
that an
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emergency exists that makes it necessary to take urgently needed actions
before preparing a NEPA analysis and any required documentation in
accordance with the provisions in Sec. Sec. 220.5, 220.6, and 220.7 of
this part, then the following provisions apply.
(1) The responsible official may take actions necessary to control
the immediate impacts of the emergency and are urgently needed to
mitigate harm to life, property, or important natural or cultural
resources. When taking such actions, the responsible official shall take
into account the probable environmental consequences of the emergency
action and mitigate foreseeable adverse environmental effects to the
extent practical.
(2) If the responsible official proposes emergency actions other
than those actions described in paragraph (b)(1) of this section, and
such actions are not likely to have significant environmental impacts,
the responsible official shall document that determination in an EA and
FONSI prepared in accord with these regulations. If the responsible
official finds that the nature and scope of proposed emergency actions
are such that they must be undertaken prior to preparing any NEPA
analysis and documentation associated with a CE or an EA and FONSI, the
responsible official shall consult with the Washington Office about
alternative arrangements for NEPA compliance. The Chief or Associate
Chief of the Forest Service may grant emergency alternative arrangements
under NEPA for environmental assessments, findings of no significant
impact and categorical exclusions (FSM 1950.41a). Consultation with the
Washington Office shall be coordinated through the appropriate regional
office.
(3) If the responsible official proposes emergency actions other
than those actions described in paragraph (b)(1) of this section and
such actions are likely to have significant environmental impacts, then
the responsible official shall consult with CEQ, through the appropriate
regional office and the Washington Office, about alternative
arrangements in accordance with CEQ regulations at 40 CFR 1506.11 as
soon as possible.
(c) Agency decisionmaking. For each Forest Service proposal (Sec.
220.4(a)), the responsible official shall coordinate and integrate NEPA
review and relevant environmental documents with agency decisionmaking
by:
(1) Completing the environmental document review before making a
decision on the proposal;
(2) Considering environmental documents, public and agency comments
(if any) on those documents, and agency responses to those comments;
(3) Including environmental documents, comments, and responses in
the administrative record;
(4) Considering the alternatives analyzed in environmental
document(s) before rendering a decision on the proposal; and
(5) Making a decision encompassed within the range of alternatives
analyzed in the environmental documents.
(d) Schedule of proposed actions (SOPA). The responsible official
shall ensure the SOPA is updated and notify the public of the
availability of the SOPA.
(e) Scoping (40 CFR 1501.7). (1) Scoping is required for all Forest
Service proposed actions, including those that would appear to be
categorically excluded from further analysis and documentation in an EA
or an EIS (Sec. 220.6).
(2) Scoping shall be carried out in accordance with the requirements
of 40 CFR 1501.7. Because the nature and complexity of a proposed action
determine the scope and intensity of analysis, no single scoping
technique is required or prescribed.
(3) The SOPA shall not to be used as the sole scoping mechanism for
a proposed action.
(f) Cumulative effects considerations of past actions. Cumulative
effects analysis shall be carried out in accordance with 40 CFR 1508.7
and in accordance with ``The Council on Environmental Quality Guidance
Memorandum on Consideration of Past Actions in Cumulative Effects
Analysis'' dated June 24, 2005. The analysis of cumulative effects
begins with consideration of the direct and indirect effects on the
environment that are expected or likely to result from the alternative
proposals for agency action. Agencies then look for present effects of
past actions that
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are, in the judgment of the agency, relevant and useful because they
have a significant cause-and-effect relationship with the direct and
indirect effects of the proposal for agency action and its alternatives.
CEQ regulations do not require the consideration of the individual
effects of all past actions to determine the present effects of past
actions. Once the agency has identified those present effects of past
actions that warrant consideration, the agency assesses the extent that
the effects of the proposal for agency action or its alternatives will
add to, modify, or mitigate those effects. The final analysis documents
an agency assessment of the cumulative effects of the actions considered
(including past, present, and reasonable foreseeable future actions) on
the affected environment. With respect to past actions, during the
scoping process and subsequent preparation of the analysis, the agency
must determine what information regarding past actions is useful and
relevant to the required analysis of cumulative effects. Cataloging past
actions and specific information about the direct and indirect effects
of their design and implementation could in some contexts be useful to
predict the cumulative effects of the proposal. The CEQ regulations,
however, do not require agencies to catalogue or exhaustively list and
analyze all individual past actions. Simply because information about
past actions may be available or obtained with reasonable effort does
not mean that it is relevant and necessary to inform decisionmaking. (40
CFR 1508.7)
(g) Classified information. To the extent practicable, the
responsible official shall segregate any information that has been
classified pursuant to Executive order or statute. The responsible
official shall maintain the confidentiality of such information in a
manner required for the information involved. Such information may not
be included in any publicly disclosed documents. If such material cannot
be reasonably segregated, or if segregation would leave essentially
meaningless material, the responsible official must withhold the entire
analysis document from the public; however, the responsible official
shall otherwise prepare the analysis documentation in accord with
applicable regulations. (40 CFR 1507.3(c))
(h) Incorporation by reference. Material may be incorporated by
reference into any environmental or decision document. This material
must be reasonably available to the public and its contents briefly
described in the environmental or decision document. (40 CFR 1502.21)
(i) Applicants. The responsible official shall make policies or
staff available to advise potential applicants of studies or other
information foreseeably required for acceptance of their applications.
Upon acceptance of an application as provided by 36 CFR 251.54(g) the
responsible official shall initiate the NEPA process.
Sec. 220.5 Environmental impact statement and record of decision.
(a) Classes of actions normally requiring environmental impact
statements--(1) Class 1: Proposals to carry out or to approve aerial
application of chemical pesticides on an operational basis. Examples
include but are not limited to:
(i) Applying chemical insecticides by helicopter on an area infested
with spruce budworm to prevent serious resource loss.
(ii) Authorizing the application of herbicides by helicopter on a
major utility corridor to control unwanted vegetation.
(iii) Applying herbicides by fixed-wing aircraft on an area to
release trees from competing vegetation.
(2) Class 2: Proposals that would substantially alter the
undeveloped character of an inventoried roadless area or a potential
wilderness area. Examples include but are not limited to:
(i) Constructing roads and harvesting timber in an inventoried
roadless area where the proposed road and harvest units impact a
substantial part of the inventoried roadless area.
(ii) Constructing or reconstructing water reservoir facilities in a
potential wilderness area where flow regimens may be substantially
altered.
(iii) Approving a plan of operations for a mine that would cause
considerable surface disturbance in a potential wilderness area.
(b) Notice of intent. Normally, a notice of intent to prepare an EIS
shall be
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published in the Federal Register as soon as practicable after deciding
that an EIS will be prepared. Where there is a lengthy period between
the agency's decision to prepare an environmental impact statement and
the time of actual preparation, the notice of intent may be published at
a reasonable time in advance of preparation of the draft statement. A
notice must meet the requirements of 40 CFR 1508.22, and in addition,
include the following:
(1) Title of the responsible official(s);
(2) Any permits or licenses required to implement the proposed
action and the issuing authority;
(3) Lead, joint lead, or cooperating agencies if identified; and
(4) Address(es) to which comments may be sent.
(c) Withdrawal notice. A withdrawal notice must be published in the
Federal Register if, after publication of the notice of intent or notice
of availability, an EIS is no longer necessary. A withdrawal notice must
refer to the date and Federal Register page number of the previously
published notice(s).
(d) Environmental impact statement format and content. The
responsible official may use any EIS format and design as long as the
statement is in accord with 40 CFR 1502.10.
(e) Alternative(s). The EIS shall document the examination of
reasonable alternatives to the proposed action. An alternative should
meet the purpose and need and address one or more significant issues
related to the proposed action. Since an alternative may be developed to
address more than one significant issue, no specific number of
alternatives is required or prescribed. The following procedures are
available to the responsible official to develop and analyze
alternatives:
(1) The responsible official may modify the proposed action and
alternative(s) under consideration prior to issuing a draft EIS. In such
cases, the responsible official may consider the incremental changes as
alternatives considered. The documentation of these incremental changes
to a proposed action or alternatives shall be included or incorporated
by reference in accord with 40 CFR 1502.21.
(2) The proposed action and one or more alternatives to the proposed
action may include adaptive management. An adaptive management proposal
or alternative must clearly identify the adjustment(s) that may be made
when monitoring during project implementation indicates that the action
is not having its intended effect, or is causing unintended and
undesirable effects. The EIS must disclose not only the effect of the
proposed action or alternative but also the effect of the adjustment.
Such proposal or alternative must also describe the monitoring that
would take place to inform the responsible official during
implementation whether the action is having its intended effect.
(f) Circulating and filing draft and final environmental impact
statements. (1) The draft and final EISs shall be filed with the
Environmental Protection Agency's Office of Federal Activities in
Washington, DC (see 40 CFR 1506.9).
(2) Requirements at 40 CFR 1506.9 ``Filing requirements,'' 40 CFR
1506.10 ``Timing of agency action,'' and 40 CFR 1502.19 ``Circulation of
the environmental impact statement'' shall only apply to the last draft
and final EIS and not apply to material produced prior to the draft EIS
or between the draft and final EIS which are filed with EPA.
(3) When the responsible official determines that an extension of
the review period on a draft EIS is appropriate, notice shall be given
in the same manner used for inviting comments on the draft.
(g) Distribution of the record of decision. The responsible official
shall notify interested or affected parties of the availability of the
record of decision as soon as practical after signing.
Sec. 220.6 Categorical exclusions.
(a) General. A proposed action may be categorically excluded from
further analysis and documentation in an EIS or EA only if there are no
extraordinary circumstances related to the proposed action and if:
(1) The proposed action is within one of the categories established
by the Secretary at 7 CFR part 1b.3; or
(2) The proposed action is within a category listed in Sec.
220.6(d) and (e).
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(b) Resource conditions. (1) Resource conditions that should be
considered in determining whether extraordinary circumstances related to
a proposed action warrant further analysis and documentation in an EA or
an EIS are:
(i) Federally listed threatened or endangered species or designated
critical habitat, species proposed for Federal listing or proposed
critical habitat, or Forest Service sensitive species;
(ii) Flood plains, wetlands, or municipal watersheds;
(iii) Congressionally designated areas, such as wilderness,
wilderness study areas, or national recreation areas;
(iv) Inventoried roadless area or potential wilderness area;
(v) Research natural areas;
(vi) American Indians and Alaska Native religious or cultural sites;
and
(vii) Archaeological sites, or historic properties or areas.
(2) The mere presence of one or more of these resource conditions
does not preclude use of a categorical exclusion (CE). It is the
existence of a cause-effect relationship between a proposed action and
the potential effect on these resource conditions, and if such a
relationship exists, the degree of the potential effect of a proposed
action on these resource conditions that determines whether
extraordinary circumstances exist.
(c) Scoping. If the responsible official determines, based on
scoping, that it is uncertain whether the proposed action may have a
significant effect on the environment, prepare an EA. If the responsible
official determines, based on scoping, that the proposed action may have
a significant environmental effect, prepare an EIS.
(d) Categories of actions for which a project or case file and
decision memo are not required. A supporting record and a decision memo
are not required, but at the discretion of the responsible official, may
be prepared for the following categories:
(1) Orders issued pursuant to 36 CFR part 261--Prohibitions to
provide short-term resource protection or to protect public health and
safety. Examples include but are not limited to:
(i) Closing a road to protect bighorn sheep during lambing season,
and
(ii) Closing an area during a period of extreme fire danger.
(2) Rules, regulations, or policies to establish servicewide
administrative procedures, program processes, or instructions. Examples
include but are not limited to:
(i) Adjusting special use or recreation fees using an existing
formula;
(ii) Proposing a technical or scientific method or procedure for
screening effects of emissions on air quality related values in Class I
wildernesses;
(iii) Proposing a policy to defer payments on certain permits or
contracts to reduce the risk of default;
(iv) Proposing changes in contract terms and conditions or terms and
conditions of special use authorizations;
(v) Establishing a servicewide process for responding to offers to
exchange land and for agreeing on land values; and
(vi) Establishing procedures for amending or revising forest land
and resource management plans.
(3) Repair and maintenance of administrative sites. Examples include
but are not limited to:
(i) Mowing lawns at a district office;
(ii) Replacing a roof or storage shed;
(iii) Painting a building; and
(iv) Applying registered pesticides for rodent or vegetation
control.
(4) Repair and maintenance of roads, trails, and landline
boundaries. Examples include but are not limited to:
(i) Authorizing a user to grade, resurface, and clean the culverts
of an established NFS road;
(ii) Grading a road and clearing the roadside of brush without the
use of herbicides;
(iii) Resurfacing a road to its original condition;
(iv) Pruning vegetation and cleaning culverts along a trail and
grooming the surface of the trail; and
(v) Surveying, painting, and posting landline boundaries.
(5) Repair and maintenance of recreation sites and facilities.
Examples include but are not limited to:
(i) Applying registered herbicides to control poison ivy on infested
sites in a campground;
(ii) Applying registered insecticides by compressed air sprayer to
control insects at a recreation site complex;
[[Page 86]]
(iii) Repaving a parking lot; and
(iv) Applying registered pesticides for rodent or vegetation
control.
(6) Acquisition of land or interest in land. Examples include but
are not limited to:
(i) Accepting the donation of lands or interests in land to the NFS,
and
(ii) Purchasing fee, conservation easement, reserved interest deed,
or other interests in lands.
(7) Sale or exchange of land or interest in land and resources where
resulting land uses remain essentially the same. Examples include but
are not limited to:
(i) Selling or exchanging land pursuant to the Small Tracts Act;
(ii) Exchanging NFS lands or interests with a State agency, local
government, or other non-Federal party (individual or organization) with
similar resource management objectives and practices;
(iii) Authorizing the Bureau of Land Management to issue leases on
producing wells when mineral rights revert to the United States from
private ownership and there is no change in activity; and
(iv) Exchange of administrative sites involving other than NFS
lands.
(8) Approval, modification, or continuation of minor, short-term (1
year or less) special uses of NFS lands. Examples include, but are not
limited to:
(i) Approving, on an annual basis, the intermittent use and
occupancy by a State-licensed outfitter or guide;
(ii) Approving the use of NFS land for apiaries; and
(iii) Approving the gathering of forest products for personal use.
(9) Issuance of a new permit for up to the maximum tenure allowable
under the National Forest Ski Area Permit Act of 1986 (16 U.S.C. 497b)
for an existing ski area when such issuance is a purely ministerial
action to account for administrative changes, such as a change in
ownership of ski area improvements, expiration of the current permit, or
a change in the statutory authority applicable to the current permit.
Examples include, but are not limited to:
(i) Issuing a permit to a new owner of ski area improvements within
an existing ski area with no changes to the master development plan,
including no changes to the facilities or activities for that ski area;
(ii) Upon expiration of a ski area permit, issuing a new permit to
the holder of the previous permit where the holder is not requesting any
changes to the master development plan, including changes to the
facilities or activities; and
(iii) Issuing a new permit under the National Forest Ski Area Permit
Act of 1986 to the holder of a permit issued under the Term Permit and
Organic Acts, where there are no changes in the type or scope of
activities authorized and no other changes in the master development
plan.
(10) Amendment to or replacement of an existing special use
authorization that involves only administrative changes and does not
involve changes in the authorized facilities or increase in the scope or
intensity of authorized activities, or extensions to the term of
authorization, when the applicant or holder is in full compliance with
the terms and conditions of the special use authorization. Examples
include, but are not limited to:
(i) Amending a special use authorization to reflect administrative
changes such as adjustment to the land use fees, inclusion of non-
discretionary environmental standards or updating a special use
authorization to bring it into conformance with current laws or
regulations (for example, new monitoring required by water quality
standards), and
(ii) Issuance of a new special use authorization to reflect
administrative changes such as, a change of ownership or control of
previously authorized facilities or activities, or conversion of the
existing special use authorization to a new type of special use
authorization (for example, converting a permit to a lease or easement).
(e) Categories of actions for which a project or case file and
decision memo are required. A supporting record is required and the
decision to proceed must be documented in a decision memo for the
categories of action in paragraphs (e)(1) through (17) of this section.
As a minimum, the project or case file should include any records
[[Page 87]]
prepared, such as: The names of interested and affected people, groups,
and agencies contacted; the determination that no extraordinary
circumstances exist; a copy of the decision memo; and a list of the
people notified of the decision. If the proposed action is approval of a
land management plan, plan amendment, or plan revision, the plan
approval document required by 36 CFR part 219 satisfies the decision
memo requirements of this section.
(1) Construction and reconstruction of trails. Examples include, but
are not limited to:
(i) Constructing or reconstructing a trail to a scenic overlook, and
(ii) Reconstructing an existing trail to allow use by handicapped
individuals.
(2) Additional construction or reconstruction of existing telephone
or utility lines in a designated corridor. Examples include, but are not
limited to:
(i) Replacing an underground cable trunk and adding additional phone
lines, and
(ii) Reconstructing a power line by replacing poles and wires.
(3) Approval, modification, or continuation of minor special uses of
NFS lands that require less than five contiguous acres of land. Examples
include, but are not limited to:
(i) Approving the construction of a meteorological sampling site;
(ii) Approving the use of land for a one-time group event;
(iii) Approving the construction of temporary facilities for filming
of staged or natural events or studies of natural or cultural history;
(iv) Approving the use of land for a 40-foot utility corridor that
crosses one mile of a national forest;
(v) Approving the installation of a driveway, mailbox, or other
facilities incidental to use of a residence;
(vi) Approving an additional telecommunication use at a site already
used for such purposes;
(vii) Approving the removal of mineral materials from an existing
community pit or common-use area; and
(viii) Approving the continued use of land where such use has not
changed since authorized and no change in the physical environment or
facilities are proposed.
(4) [Reserved]
(5) Regeneration of an area to native tree species, including site
preparation that does not involve the use of herbicides or result in
vegetation type conversion. Examples include, but are not limited to:
(i) Planting seedlings of superior trees in a progeny test site to
evaluate genetic worth, and
(ii) Planting trees or mechanical seed dispersal of native tree
species following a fire, flood, or landslide.
(6) Timber stand and/or wildlife habitat improvement activities that
do not include the use of herbicides or do not require more than 1 mile
of low standard road construction. Examples include, but are not limited
to:
(i) Girdling trees to create snags;
(ii) Thinning or brush control to improve growth or to reduce fire
hazard including the opening of an existing road to a dense timber
stand;
(iii) Prescribed burning to control understory hardwoods in stands
of southern pine; and
(iv) Prescribed burning to reduce natural fuel build-up and improve
plant vigor.
(7) Modification or maintenance of stream or lake aquatic habitat
improvement structures using native materials or normal practices.
Examples include, but are not limited to:
(i) Reconstructing a gabion with stone from a nearby source;
(ii) Adding brush to lake fish beds; and
(iii) Cleaning and resurfacing a fish ladder at a hydroelectric dam.
(8) Short-term (1 year or less) mineral, energy, or geophysical
investigations and their incidental support activities that may require
cross-country travel by vehicles and equipment, construction of less
than 1 mile of low standard road, or use and minor repair of existing
roads. Examples include, but are not limited to:
(i) Authorizing geophysical investigations which use existing roads
that may require incidental repair to reach sites for drilling core
holes, temperature gradient holes, or seismic shot holes;
(ii) Gathering geophysical data using shot hole, vibroseis, or
surface charge methods;
[[Page 88]]
(iii) Trenching to obtain evidence of mineralization;
(iv) Clearing vegetation for sight paths or from areas used for
investigation or support facilities;
(v) Redesigning or rearranging surface facilities within an approved
site;
(vi) Approving interim and final site restoration measures; and
(vii) Approving a plan for exploration which authorizes repair of an
existing road and the construction of \1/3\ mile of temporary road;
clearing vegetation from an acre of land for trenches, drill pads, or
support facilities.
(9) Implementation or modification of minor management practices to
improve allotment condition or animal distribution when an allotment
management plan is not yet in place. Examples include, but are not
limited to:
(i) Rebuilding a fence to improve animal distribution;
(ii) Adding a stock watering facility to an existing water line; and
(iii) Spot seeding native species of grass or applying lime to
maintain forage condition.
(10) Hazardous fuels reduction activities using prescribed fire, not
to exceed 4,500 acres; and mechanical methods for crushing, piling,
thinning, pruning, cutting, chipping, mulching, and mowing, not to
exceed 1,000 acres. Such activities:
(i) Shall be limited to areas:
(A) In the wildland-urban interface; or
(B) Condition Classes 2 or 3 in Fire Regime Groups I, II, or III,
outside the wildland-urban interface.
(ii) Shall be identified through a collaborative framework as
described in ``A Collaborative Approach for Reducing Wildland Fire Risks
to Communities and Environment 10-Year Comprehensive Strategy
Implementation Plan'';
(iii) Shall be conducted consistent with Agency and Departmental
procedures and applicable land and resource management plans;
(iv) Shall not be conducted in wilderness areas or impair the
suitability of wilderness study areas for preservation as wilderness;
and
(v) Shall not include the use of herbicides or pesticides or the
construction of new permanent roads or other new permanent
infrastructure; and may include the sale of vegetative material if the
primary purpose of the activity is hazardous fuels reduction.
(11) Post-fire rehabilitation activities, not to exceed 4,200 acres
(such as tree planting, fence replacement, habitat restoration, heritage
site restoration, repair of roads and trails, and repair of damage to
minor facilities such as campgrounds), to repair or improve lands
unlikely to recover to a management approved condition from wildland
fire damage, or to repair or replace minor facilities damaged by fire.
Such activities:
(i) Shall be conducted consistent with Agency and Departmental
procedures and applicable land and resource management plans;
(ii) Shall not include the use of herbicides or pesticides or the
construction of new permanent roads or other new permanent
infrastructure; and
(iii) Shall be completed within 3 years following a wildland fire.
(12) Harvest of live trees not to exceed 70 acres, requiring no more
than \1/2\ mile of temporary road construction. Do not use this category
for even-aged regeneration harvest or vegetation type conversion. The
proposed action may include incidental removal of trees for landings,
skid trails, and road clearing. Examples include, but are not limited
to:
(i) Removal of individual trees for sawlogs, specialty products, or
fuelwood, and
(ii) Commercial thinning of overstocked stands to achieve the
desired stocking level to increase health and vigor.
(13) Salvage of dead and/or dying trees not to exceed 250 acres,
requiring no more than \1/2\ mile of temporary road construction. The
proposed action may include incidental removal of live or dead trees for
landings, skid trails, and road clearing. Examples include, but are not
limited to:
(i) Harvest of a portion of a stand damaged by a wind or ice event
and construction of a short temporary road to access the damaged trees,
and
(ii) Harvest of fire-damaged trees.
(14) Commercial and non-commercial sanitation harvest of trees to
control insects or disease not to exceed 250
[[Page 89]]
acres, requiring no more than \1/2\ mile of temporary road construction,
including removal of infested/infected trees and adjacent live
uninfested/uninfected trees as determined necessary to control the
spread of insects or disease. The proposed action may include incidental
removal of live or dead trees for landings, skid trails, and road
clearing. Examples include, but are not limited to:
(i) Felling and harvest of trees infested with southern pine beetles
and immediately adjacent uninfested trees to control expanding spot
infestations, and
(ii) Removal and/or destruction of infested trees affected by a new
exotic insect or disease, such as emerald ash borer, Asian long horned
beetle, and sudden oak death pathogen.
(15) Issuance of a new special use authorization for a new term to
replace an existing or expired special use authorization when the only
changes are administrative, there are not changes to the authorized
facilities or increases in the scope or intensity of authorized
activities, and the applicant or holder is in full compliance with the
terms and conditions of the special use authorization.
(16) Land management plans, plan amendments, and plan revisions
developed in accordance with 36 CFR part 219 et seq. that provide broad
guidance and information for project and activity decisionmaking in a
NFS unit. Proposals for actions that approve projects and activities, or
that command anyone to refrain from undertaking projects and activities,
or that grant, withhold or modify contracts, permits or other formal
legal instruments, are outside the scope of this category and shall be
considered separately under Forest Service NEPA procedures.
(17) Approval of a Surface Use Plan of Operations for oil and
natural gas exploration and initial development activities, associated
with or adjacent to a new oil and/or gas field or area, so long as the
approval will not authorize activities in excess of any of the
following:
(i) One mile of new road construction;
(ii) One mile of road reconstruction;
(iii) Three miles of individual or co-located pipelines and/or
utilities disturbance; or
(iv) Four drill sites.
(18) Restoring wetlands, streams, riparian areas or other water
bodies by removing, replacing, or modifying water control structures
such as, but not limited to, dams, levees, dikes, ditches, culverts,
pipes, drainage tiles, valves, gates, and fencing, to allow waters to
flow into natural channels and floodplains and restore natural flow
regimes to the extent practicable where valid existing rights or special
use authorizations are not unilaterally altered or canceled. Examples
include but are not limited to:
(i) Repairing an existing water control structure that is no longer
functioning properly with minimal dredging, excavation, or placement of
fill, and does not involve releasing hazardous substances;
(ii) Installing a newly-designed structure that replaces an existing
culvert to improve aquatic organism passage and prevent resource and
property damage where the road or trail maintenance level does not
change;
(iii) Removing a culvert and installing a bridge to improve aquatic
and/or terrestrial organism passage or prevent resource or property
damage where the road or trail maintenance level does not change; and
(iv) Removing a small earthen and rock fill dam with a low hazard
potential classification that is no longer needed.
(19) Removing and/or relocating debris and sediment following
disturbance events (such as floods, hurricanes, tornados, mechanical/
engineering failures, etc.) to restore uplands, wetlands, or riparian
systems to pre-disturbance conditions, to the extent practicable, such
that site conditions will not impede or negatively alter natural
processes. Examples include but are not limited to:
(i) Removing an unstable debris jam on a river following a flood
event and relocating it back in the floodplain and stream channel to
restore water flow and local bank stability;
[[Page 90]]
(ii) Clean-up and removal of infrastructure flood debris, such as,
benches, tables, outhouses, concrete, culverts, and asphalt following a
hurricane from a stream reach and adjacent wetland area; and
(iii) Stabilizing stream banks and associated stabilization
structures to reduce erosion through bioengineering techniques following
a flood event, including the use of living and nonliving plant materials
in combination with natural and synthetic support materials, such as
rocks, riprap, geo-textiles, for slope stabilization, erosion reduction,
and vegetative establishment and establishment of appropriate plant
communities (bank shaping and planting, brush mattresses, log, root wad,
and boulder stabilization methods).
(20) Activities that restore, rehabilitate, or stabilize lands
occupied by roads and trails, excluding National Forest System Roads and
National Forest System Trails, to a more natural condition that may
include removing, replacing, or modifying drainage structures and
ditches, reestablishing vegetation, reshaping natural contours and
slopes, reestablishing drainage-ways, or other activities that would
restore site productivity and reduce environmental impacts. Examples
include but are not limited to:
(i) Decommissioning a road that is no longer a National Forest
System Road to a more natural state by restoring natural contours and
removing construction fills, loosening compacted soils, revegetating the
roadbed and removing ditches and culverts to reestablish natural
drainage patterns; (ii) Restoring an unauthorized trail to a natural
state by reestablishing natural drainage patterns, stabilizing slopes,
reestablishing vegetation, and installing water bars; and
(ii) Installing boulders, logs, and berms on an unauthorized road
segment to promote naturally regenerated grass, shrub, and tree growth.
(f) Decision memos. The responsible official shall notify interested
or affected parties of the availability of the decision memo as soon as
practical after signing. While sections may be combined or rearranged in
the interest of clarity and brevity, decision memos must include the
following content:
(1) A heading, which must identify:
(i) Title of document: Decision Memo;
(ii) Agency and administrative unit;
(iii) Title of the proposed action; and
(iv) Location of the proposed action, including administrative unit,
county, and State.
(2) Decision to be implemented and the reasons for categorically
excluding the proposed action including:
(i) The category of the proposed action;
(ii) The rationale for using the category and, if more than one
category could have been used, why the specific category was chosen;
(iii) A finding that no extraordinary circumstances exist;
(3) Any interested and affected agencies, organizations, and persons
contacted;
(4) Findings required by other laws such as, but not limited to
findings of consistency with the forest land and resource management
plan as required by the National Forest Management Act; or a public
interest determination (36 CFR 254.3(c));
(5) The date when the responsible official intends to implement the
decision and any conditions related to implementation;
(6) Whether the decision is subject to review or appeal, the
applicable regulations, and when and where to file a request for review
or appeal;
(7) Name, address, and phone number of a contact person who can
supply further information about the decision; and
(8) The responsible official's signature and date when the decision
is made.
[73 FR 43093, July 24, 2008, as amended at 78 FR 56163, Sept. 12, 2013]
Sec. 220.7 Environmental assessment and decision notice.
(a) Environmental assessment. An environmental assessment (EA) shall
be prepared for proposals as described in Sec. 220.4(a) that are not
categorically excluded from documentation (Sec. 220.6) and for which
the need of an EIS has not been determined (Sec. 220.5). An EA may be
prepared in any format useful to facilitate planning, decisionmaking,
and
[[Page 91]]
public disclosure as long as the requirements of paragraph (b) of this
section are met. The EA may incorporate by reference information that is
reasonably available to the public.
(b) An EA must include the following:
(1) Need for the proposal. The EA must briefly describe the need for
the project.
(2) Proposed action and alternative(s). The EA shall briefly
describe the proposed action and alternative(s) that meet the need for
action. No specific number of alternatives is required or prescribed.
(i) When there are no unresolved conflicts concerning alternative
uses of available resources (NEPA, section 102(2)(E)), the EA need only
analyze the proposed action and proceed without consideration of
additional alternatives.
(ii) The EA may document consideration of a no-action alternative
through the effects analysis by contrasting the impacts of the proposed
action and any alternative(s) with the current condition and expected
future condition if the proposed action were not implemented.
(iii) The description of the proposal and alternative(s) may include
a brief description of modifications and incremental design features
developed through the analysis process to develop the alternatives
considered. The documentation of these incremental changes to a proposed
action or alternatives may be incorporated by reference in accord with
40 CFR 1502.21.
(iv) The proposed action and one or more alternatives to the
proposed action may include adaptive management. An adaptive management
proposal or alternative must clearly identify the adjustment(s) that may
be made when monitoring during project implementation indicates that the
action is not having its intended effect, or is causing unintended and
undesirable effects. The EA must disclose not only the effect of the
proposed action or alternative but also the effect of the adjustment.
Such proposal or alternative must also describe the monitoring that
would take place to inform the responsible official whether the action
is having its intended effect.
(3) Environmental Impacts of the Proposed Action and Alternative(s).
The EA:
(i) Shall briefly provide sufficient evidence and analysis,
including the environmental impacts of the proposed action and
alternative(s), to determine whether to prepare either an EIS or a FONSI
(40 CFR 1508.9);
(ii) Shall disclose the environmental effects of any adaptive
management adjustments;
(iii) Shall describe the impacts of the proposed action and any
alternatives in terms of context and intensity as described in the
definition of ``significantly'' at 40 CFR 1508.27;
(iv) May discuss the direct, indirect, and cumulative impact(s) of
the proposed action and any alternatives together in a comparative
description or describe the impacts of each alternative separately; and
(v) May incorporate by reference data, inventories, other
information and analyses.
(4) Agencies and Persons Consulted.
(c) Decision notice. If an EA and FONSI have been prepared, the
responsible official must document a decision to proceed with an action
in a decision notice unless law or regulation requires another form of
decision documentation (40 CFR 1508.13). A decision notice must document
the conclusions drawn and the decision(s) made based on the supporting
record, including the EA and FONSI. A decision notice must include:
(1) A heading, which identifies the:
(i) Title of document;
(ii) Agency and administrative unit;
(iii) Title of the project; and
(iv) Location of the action, including county and State.
(2) Decision and rationale;
(3) Brief summary of public involvement;
(4) A statement incorporating by reference the EA and FONSI if not
combined with the decision notice;
(5) Findings required by other laws and regulations applicable to
the decision at the time of decision;
(6) Expected implementation date;
(7) Administrative review or appeal opportunities and, when such
opportunities exist, a citation to the applicable regulations and
directions on when
[[Page 92]]
and where to file a request for review or an appeal;
(8) Contact information, including the name, address, and phone
number of a contact person who can supply additional information; and
(9) Responsible Official's signature, and the date the notice is
signed.
(d) Notification. The responsible official shall notify interested
and affected parties of the availability of the EA, FONSI and decision
notice, as soon as practicable after the decision notice is signed.
PART 221_TIMBER MANAGEMENT PLANNING--Table of Contents
Authority: 30 Stat. 34, 44 Stat. 242; 16 U.S.C. 475, 616.
Sec. 221.3 Disposal of national forest timber according to management plans.
(a) Management plans for national forest timber resources shall be
prepared and revised, as needed, for working circles or other
practicable units of national forest. Such plans shall:
(1) Be designed to aid in providing a continuous supply of national
forest timber for the use and necessities of the citizens of the United
States.
(2) Be based on the principle of sustained yield, with due
consideration to the condition of the area and the timber stands covered
by the plan.
(3) Provide, so far as feasible, an even flow of national forest
timber in order to facilitate the stabilization of communities and of
opportunities for employment.
(4) Provide for coordination of timber production and harvesting
with other uses of national forest land in accordance with the
principles of multiple use management.
(5) Establish the allowable cutting rate which is the maximum amount
of timber which may be cut from the national forest lands within the
unit by years or other periods.
(6) Be approved by the Chief, Forest Service, unless authority for
such approval shall be delegated to subordinates by the Chief.
(b) When necessary to promote better utilization of national forest
timber or to facilitate protection and management of the national
forests, a management plan may include provisions for requirements of
purchasers for processing the timber to at least a stated degree within
the working circle, or within a stated area, and, when appropriate, by
machinery of a stated type; and agreements for cutting in accordance
with the plan may so require.
[13 FR 7711, Dec. 14, 1948, as amended at 28 FR 723, Jan. 26, 1963; 34
FR 743, Jan. 17, 1969]
PART 222_RANGE MANAGEMENT--Table of Contents
Subpart A_Grazing and Livestock Use on the National Forest System
Sec.
222.1 Authority and definitions.
222.2 Management of the range environment.
222.3 Issuance of grazing and livestock use permits.
222.4 Changes in grazing permits.
222.6 Compensation for permittees' interest in authorized permanent
improvements.
222.7 Cooperation in management.
222.8 Cooperation in control of estray or unbranded livestock, animal
diseases, noxious farm weeds, and use of pesticides.
222.9 Range improvements.
222.10 Range betterment fund.
222.11 Grazing advisory boards.
Subpart B_Mediation of Term Grazing Permit Disputes
222.20 Decisions subject to mediation.
222.21 Parties.
222.22 Stay of appeal.
222.23 Confidentiality.
222.24 Records.
222.25 Costs.
222.26 Ex parte communications.
Subpart C_Grazing Fees
222.50 General procedures.
222.51 National Forests in 16 Western States.
222.52 National Grasslands.
222.53 Grazing fees in the East--noncompetitive procedures.
222.54 Grazing fees in the East--competitive bidding.
Subpart D_Management of Wild Free-Roaming Horses and Burros
222.60 Authority and definitions.
222.61 Administration of wild free-roaming horses and burros and their
environment.
222.62 Ownership claims.
222.63 Removal of other horses and burros.
[[Page 93]]
222.64 Use of helicopters, fixed-wing aircraft and motor vehicles.
222.65 Protection of wild free-roaming horses and burros when they are
upon other than the National Forest System or public lands.
222.66 Removal of wild free-roaming horses and burros from private
lands.
222.67 Maintenance of wild free-roaming horses and burros on privately-
owned lands.
222.68 Agreements.
222.69 Relocation and disposal of animals.
222.70 Disposal of carcasses.
222.71 Loss of status.
222.72 Use of non-Forest Service personnel.
222.73 Management coordination.
222.74 National Advisory Board.
222.75 Studies.
222.76 Arrest.
Authority: 7 U.S.C. 1010-1012, 5101-5106; 16 U.S.C. 551, 572, 5801;
31 U.S.C. 9701; 43 U.S.C. 1751, 1752, 1901; E.O. 12548 (51 FR 5985).
Subpart A_Grazing and Livestock Use on the National Forest System
Authority: 92 Stat. 1803, as amended (43 U.S.C. 1901), 85 Stat. 649,
as amended (16 U.S.C. 1331-1340); sec. 1, 30 Stat. 35, as amended (18
U.S.C. 551); sec. 32, 50 Stat. 522, as amended (7 U.S.C. 1011).
Source: 42 FR 56732, Oct. 28, 1977, unless otherwise noted.
Sec. 222.1 Authority and definitions.
(a) Authority. The Chief, Forest Service, shall develop, administer
and protect the range resources and permit and regulate the grazing use
of all kinds and classes of livestock on all National Forest System
lands and on other lands under Forest Service control. He may redelegate
this authority.
(b) Definitions. (1) An allotment is a designated area of land
available for livestock grazing.
(2) An allotment management plan is a document that specifies the
program of action designated to reach a given set of objectives. It is
prepared in consultation with the permittee(s) involved and:
(i) Prescribes the manner in and extent to which livestock
operations will be conducted in order to meet the multiple-use,
sustained yield, economic, 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
[[Page 94]]
System lands or other lands under Forest Service control.
(13) On-the-ground expenditure means payment of direct project costs
of implementing an improvement or development, such as survey and
design, equipment, labor and material (or contract) costs, and on-the-
ground supervision.
(14) Other lands under Forest Service control are non-Federal public
and private lands over which the Forest Service has been given control
through lease, agreement, waiver, or otherwise.
(15) Private land grazing permits are permits issued to persons who
control grazing lands adjacent to National Forest System lands and who
waive exclusive grazing use of these lands to the United States for the
full period the permit is to be issued.
(16) Permittee means any person who has been issued a grazing
permit.
(17) Permitted livestock is livestock authorized by a written
permit.
(18) Person means any individual, partnership, corporation,
association, organization, or other private entity, but does not include
Government Agencies.
(19) Range betterment means rehabilitation, protection and
improvement of National Forest System lands to arrest range
deterioration and improve forage conditions, fish and wildlife habitat,
watershed protection, and livestock production.
(20) Range betterment fund means the fund established by title IV,
section 401(b)(1), of the Federal Land Policy and Management Act of
1976. This consists of 50 percent of all monies received by the United
States as fees for grazing livestock on the National Forests in the 16
contiguous western States.
(21) Range Improvement means any activity or program designed to
improve production of forage and includes facilities or treatments
constructed or installed for the purpose of improving the range resource
or the management of livestock and includes the following types:
(i) Non-structural which are practices and treatments undertaken to
improve range not involving construction of improvements.
(ii) Structural which are improvements requiring construction or
installation undertaken to improve the range or to facilitate management
or to control distribution and movement of livestock.
(A) Permanent which are range improvements installed or constructed
and become a part of the land such as: dams, ponds, pipelines, wells,
fences, trails, seeding, etc.
(B) Temporary which are short-lived or portable improvements that
can be removed such as: troughs, pumps and electric fences, including
improvements at authorized places of habitation such as line camps.
(22) Suspend means temporary withholding of a term grazing permit
privilege, in whole or in part.
(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.
[[Page 95]]
(c) Forage producing National Forest System lands will be managed
for livestock grazing and the allotment management plans will be
prepared consistent with land management plans.
(Sec. 1, 30 Stat. 35, as amended (16 U.S.C. 551); sec. 1, 33 Stat. 628
(16 U.S.C. 472); sec. 32, 50 Stat. 525, as amended (7 U.S.C. 1011); sec.
19, 64 Stat. 88 (16 U.S.C. 5801); Title IV, Pub. L. 94, 90 Stat. 2771
(43 U.S.C. 1751, et seq.); 92 Stat. 1803 (43 U.S.C. 1901))
[42 FR 56732, Oct. 28, 1977, as amended at 44 FR 61346, Oct. 25, 1979;
46 FR 42449, Aug. 21, 1981]
Sec. 222.3 Issuance of grazing and livestock use permits.
(a) Unless otherwise specified by the Chief, Forest Service, all
grazing and livestock use on National Forest System lands and on other
lands under Forest Service control must be authorized by a grazing or
livestock use permit.
(b) Grazing permits and livestock use permits convey no right,
title, or interest held by the United States in any lands or resources.
(c) The Chief, Forest Service, is authorized to issue permits for
livestock grazing and other use by livestock of the National Forest
System and on other lands under Forest Service control as follows:
(1) Grazing permits with priority for renewal may be issued as
follows: On National Forests in the 16 contiguous western States 10-year
term permits will be issued unless the land is pending disposal, or will
be devoted to other uses prior to the end of ten years, or it will be in
the best interest of sound land management to specify a shorter term. On
National Forest System lands other than National Forests in the 16
contiguous western States, the permit term shall be for periods of 10
years or less. Term grazing permits for periods of 10 years or less in
the form of grazing agreements may be issued to cooperative grazing
associations or similar organizations incorporated or otherwise
established pursuant to State law. Such an agreement will make National
Forest System lands and improvements available to the association for
grazing in accordance with provisions of the grazing agreement and
Forest Service policies. Term permits authorized in this paragraph may
be in the form of private land or on-and-off grazing permits where the
person is qualified to hold such permits under provisions the Chief may
require. Permits issued under this paragraph are subject to the
following:
(i) Except as provided for by the Chief, Forest Service, paid term
permits will be issued to persons who own livestock to be grazed and
such base property as may be required, provided the land is determined
to be available for grazing purposes by the Chief, Forest Service, and
the capacity exists to graze specified numbers of animals.
(ii) A term permit holder has first priority for receipt of a new
permit at the end of the term period provided he has fully complied with
the terms and conditions of the expiring permit.
(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.
[[Page 96]]
(D) Conditions for the approval of nonuse of permit for specified
periods.
(E) Upper and special limits governing the total number of livestock
for which a person is entitled to hold a permit.
(F) Conditions whereby waiver of grazing privileges may be confirmed
and new applicants recognized.
(2) Permits with no priority for reissuance, subject to terms and
conditions as the Chief, Forest Service, may prescribe, are authorized
as follows:
(i) Temporary grazing permits for periods not to exceed one year,
and on a charge basis, may be issued:
(A) To allow for use of range while a term grazing permit is held in
suspension.
(B) To use forage created by unusually favorable climatic
conditions.
(C) To use the forage available when the permit of the normal user's
livestock is in nonuse status for reasons of personal convenience.
(D) To allow a person to continue to graze livestock for the
remainder of the grazing season where base property has been sold, the
permit waived, and a new term permit issued.
(E) To allow grazing use in the event of drought or other emergency
of National or Regional scope where such use would not result in
permanent resource damage.
(ii) Livestock use permits for not to exceed one year may be issued
under terms and conditions prescribed by the Chief, Forest Service, as
follows:
(A) Paid permits for transportation livestock to persons engaged in
commercial packing, dude ranching, or other commercial enterprises which
involve transportation livestock including mining, ranching, and
logging, activities.
(B) Paid or free permits for research purposes and administrative
studies.
(C) Paid or free permits to trail livestock across National Forest
System lands.
(D) Free permits to persons who reside on ranch or agricultural
lands within or contiguous to National Forest System lands for not to
exceed 10 head of livestock owned or kept and whose products are
consumed or whose services are used directly by the family of the
resident, and who distinctly need such National Forest System lands to
support such animals.
(E) Free permits to campers and travelers for the livestock actually
used during the period of occupancy. This may be authorized without
written permit.
(F) Paid or free permits for horses, mules, or burros to persons who
clearly need National Forest System land to support the management of
permitted livestock.
(G) Free permits for horses, mules, or burros to cooperators who
clearly need National Forest System land to support research,
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.
[[Page 97]]
(3) Cancel or suspend the permit if the permittee fails to pay
grazing fees within established time limit.
(4) Cancel or suspend the permit if the permittee does not comply
with provisions and requirements in the grazing permit or the
regulations of the Secretary of Agriculture on which the permit is
based.
(5) Cancel or suspend the permit if the permittee knowingly and
willfully makes a false statement or representation in the grazing
application or amendments thereto.
(6) Cancel or suspend the permit if the permit holder is convicted
for failing to comply with Federal laws or regulations or State laws
relating to protection of air, water, soil and vegetation, fish and
wildlife, and other environmental values when exercising the grazing use
authorized by the permit.
(7) Modify the terms and conditions of a permit to conform to
current situations brought about by changes in law, regulation,
executive order, development or revision of an allotment management
plan, or other management needs.
(8) Modify the seasons of use, numbers, kind, and class of livestock
allowed or the allotment to be used under the permit, because of
resource condition, or permittee request. One year's notice will be
given of such modification, except in cases of emergency.
(b) Association permits or grazing agreements may be canceled for
noncompliance with title VI of the Civil Rights Act of 1964 and
Department of Agriculture regulation promulgated thereunder.
[42 FR 56732, Oct. 28, 1977, as amended at 46 FR 42449, Aug. 21, 1981]
Sec. 222.6 Compensation for permittees' interest in authorized
permanent improvements.
(a) Whenever a term permit for grazing livestock on National Forest
land in the 16 contiguous western States is canceled in whole or in part
to devote the lands covered by the permit to another public purpose,
including disposal, the permittee shall receive from the United States a
reasonable compensation for the adjusted value of his interest in
authorized permanent improvements placed or constructed by him on the
lands covered by the canceled permit. The adjusted value is to be
determined by the Chief, Forest Service. Compensation received shall not
exceed the fair market value of the terminated portion of the
permittee's interest therein.
(b) In the event a permittee waives his grazing permit in connection
with sale of his base property or permitted 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:
[[Page 98]]
(i) The members of the association must constitute a majority of the
grazing permittees on the range allotment or allotments involved.
(ii) The officers of the association must be elected by a majority
of the association members or of a quorum as specified by the
association's constitution and bylaws.
(iii) The officers other than the Secretary and Treasurer must be
grazing permittees on the range allotment or allotments involved.
(iv) The association's activities must be governed by a constitution
and bylaws acceptable to the Forest Supervisor and approved by him.
(4) Withdrawing recognition. The Forest Supervisor may withdraw his
recognition of the association whenever:
(i) The majority of the grazing permittees request that the
association be dissolved.
(ii) The association becomes inactive, and does not meet in annual
or special meetings during a consecutive 2-year period.
(b) Cooperation with national, State, and county livestock
organizations. The policies and programs of national, State, and county
livestock organizations give direction to, and reflect in, the practices
of their members. Good working relationships with these groups is
conducive to the betterment of range management on both public and
private lands. The Chief, Forest Service, will endeavor to establish and
maintain close working relationships with National livestock
organizations who have an interest in the administration of National
Forest System lands, and direct Forest officers to work cooperatively
with State and county livestock organizations having similar interests.
(c) Interagency cooperation. The Chief, Forest Service, will
cooperate with other Federal agencies which have interest in improving
range management on public and private lands.
(d) Cooperation with others. The Chief, Forest Service, will
cooperate with other agencies, institutions, organizations, and
individuals who have interest in improvement of range management on
public and private lands.
Sec. 222.8 Cooperation in control of estray or unbranded livestock,
animal diseases, noxious farm weeds, and use of pesticides.
(a) Insofar as it involves National Forest System lands and other
lands under Forest Service control or the livestock which graze
thereupon, the Chief, Forest Service, will cooperate with:
(1) State, county, and Federal agencies in the application and
enforcement of all laws and regulations relating to 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
[[Page 99]]
cost for the improvement is borne by the United States.
(4) Title to nonstructural range improvements shall vest in the
United States.
(5) Range improvement work performed by a cooperator or permittee on
National Forest System lands shall not confer the exclusive right to use
the improvement or the land influenced.
(c) A user of the range resource on National Forest System lands and
other lands under Forest Service control may be required by the Chief,
Forest Service, to maintain improvements to specified standards.
(d) Grazing fees or the number of animal months charged shall not be
adjusted to compensate permittees for range improvement work performed
on National Forest System lands: Provided, That, in accordance with
section 32(c), title III, Bankhead-Jones Farm Tenant Act, the cost to
grazing users in complying with requirements of a grazing permit or
agreement may be considered in determining the annual grazing fee on
National Grasslands or land utilization projects if it has not been used
in establishing the grazing base value.
Sec. 222.10 Range betterment fund.
In addition to range development which is accomplished through funds
from the rangeland management budget line item and the Granger-Thye Act,
and deposited and nondeposited cooperative funds, range development may
also be accomplished through use of the range betterment fund as
follows:
(a) On National Forest land within the 16 contiguous western States,
the Chief, Forest Service, shall implement range improvement programs
where necessary to arrest range deterioration and improve forage
conditions with resulting benefits to wildlife, watershed protection,
and livestock production. One-half of the available funds will be
expended on the National Forest where derived. The remaining one-half of
the fund will be allocated for range rehabilitation, protection and
improvements on National Forest lands within the Forest Service Regions
where they were derived. During the planning process there will be
consultation with grazing permittees who will be affected by the range
rehabilitation, protection and improvements, and other interested
persons or organizations.
(b) Range betterment funds shall be utilized only for on-the-ground
expenditure for range land betterment, including, but not limited to,
seeding and reseeding, fence construction, water development, weed and
other plant control, and fish and wildlife habitat enhancement within
allotments.
(Sec. 1, 30 Stat. 35, as amended (16 U.S.C. 551); sec. 1, 33 Stat. 628
(16 U.S.C. 472); sec. 32, 50 Stat. 525, as amended (7 U.S.C. 1011); sec.
19, 64 Stat. 88 (16 U.S.C. 5801); Title IV, Pub. L. 94, 90 Stat. 2771
(43 U.S.C. 1751, et seq.); 92 Stat. 1803 (43 U.S.C. 1901))
[42 FR 56732, Oct. 28, 1977, as amended at 44 FR 61345, Oct. 25, 1979]
Sec. 222.11 Grazing advisory boards.
(a) Establishment. Persons holding term permits to graze livestock
on National Forest System lands with headquarters, office in the 16
contiguous western States having jurisdiction over more than 500,000
acres of land subject to commercial livestock grazing may petition the
Forest Supervisor for establishment of a statutory grazing advisory
board in accordance with provisions of the Federal Land Policy and
Management Act of 1976.
(1) Upon being properly petitioned by a simple majority (more than
50 percent) of term grazing permittees under the jurisdiction of such
headquarters office, the Secretary shall establish and maintain at least
one grazing advisory board.
(2) The Chief, Forest Service, shall determine the number of such
boards, the area to be covered, and the number of advisers on each
board.
(3) Processing Petitions. Upon receiving a proper petition from the
grazing permittees, the Forest Supervisor will request the Chief, Forest
Service, through the Regional Forester, to initiate action to establish
grazing advisory boards in accordance with regulations of the Secretary
of Agriculture. Grazing advisory boards will comply with the provisions
of the Federal Advisory Committee Act.
(b) Membership. Grazing advisory boards established under this
authority shall consist of members who are National Forest System term
permittees
[[Page 100]]
under the jurisdiction of a National Forest headquarters office in the
16 contiguous western States, provided board members shall be elected by
term grazing permittees in the area covered by the board.
(c) Elections. The Forest Supervisor of the headquarters office
shall prescribe and oversee the manner in which permittees are nominated
and board members are elected. Nominations will be made by petition with
all term grazing permittees under the jurisdiction of such headquarters
office being eligible for membership on the board. All members of the
board will be elected by secret ballot with each term grazing permittee
in the area covered by the board being qualified to vote. No person
shall be denied the opportunity to serve as a grazing advisory board
member because of race, color, sex, religion, or national origin. No
board member shall concurrently serve on another USDA advisory
committee. The Forest Supervisor shall determine and announce the
results of the election of the members of the board and shall recognize
the duly elected board as representing National Forest System term
grazing permittees in the areas for which it is established. Board
members will be elected to terms not to exceed 2 years.
(d) Charter and bylaws. (1) The Forest Supervisor will prepare a
charter to be filed with the Department and the Congress as required by
Section 9(c) of the Federal Advisory Committee Act.
(2) A duly recognized grazing advisory board may, with the
concurrence of a majority of its members and the Forest Supervisor,
adopt bylaws to govern its proceedings.
(e) Function. The function of grazing advisory boards will be to
offer advice and make recommendations concerning the development of
allotment management plans and the utilization of range betterment
funds.
(f) Meetings. The Forest Supervisor shall call at least one meeting
of each board annually, and call additional meetings as needed to meet
the needs of the permittees and the Forest Service. Each meeting shall
be conducted in accordance with an agenda approved by the Forest
Supervisor and in the presence of a Forest officer.
(g) Termination. (1) Grazing advisory boards established under the
Federal Land Policy and Management Act of 1976 shall continue until
December 31, 1985, unless terminated earlier.
(2) The Forest Supervisor may withdraw recognition of any board
whenever:
(i) A majority of the term grazing permittees for the area which the
board represents requests that the board be dissolved.
(ii) The board becomes inactive and does not meet at least once each
calendar year.
(86 Stat. 770 (5 U.S.C., App. 1); sec. 1, 30 Stat. 35, as amended (16
U.S.C. 551); sec. 1, 33 Stat. 628 (16 U.S.C. 472); sec. 32, 50 Stat.
525, as amended (7 U.S.C. 1011); sec. 19, 64 Stat. 88 (16 U.S.C. 5801);
Title IV, Pub. L. 94, 90 Stat. 2771 (43 U.S.C. 1751, et seq.); 92 Stat.
1803 (43 U.S.C. 1901))
[42 FR 56732, Oct. 28, 1977, as amended at 43 FR 27532, June 26, 1978;
44 FR 61345, Oct. 25, 1979]
Subpart B_Mediation of Term Grazing Permit Disputes
Authority: 7 U.S.C. 5101-5106; 16 U.S.C. 472, 551.
Source: 78 FR 33723, June 5, 2013, unless otherwise noted.
Sec. 222.20 Decisions subject to mediation.
The holder of a term grazing permit issued in a State with a
mediation program certified by the U.S. Department of Agriculture may
request mediation of a dispute relating to a decision to suspend or
cancel the permit as authorized by 36 CFR 222.4(a)(2)(i), (ii), (iv),
and (v) and (a)(3) through (6). Any request for mediation must be
included in an appeal of the decision to suspend or cancel the permit
filed in accordance with 36 CFR part 214.
Sec. 222.21 Parties.
Only the following may be parties to mediation of a term grazing
permit dispute:
(a) A mediator authorized to mediate under a State mediation program
certified by the U.S. Department of Agriculture;
(b) The Chief, Forest Service, or other Forest Service employee who
[[Page 101]]
made the decision being mediated or his or her designee;
(c) The holder whose term grazing permit is the subject of the
decision and who has requested mediation in an appeal filed in
accordance with the procedures at 36 CFR part 214;
(d) That holder's creditors, if applicable; and
(e) Legal counsel, if retained. The Forest Service will have legal
representation in the mediation only if the holder has legal
representation in the mediation.
Sec. 222.22 Stay of appeal.
If an appellant requests mediation of a decision subject to
mediation under Sec. 222.20 in an appeal filed under 36 CFR part 214,
the Appeal Deciding Officer shall immediately notify all parties to the
appeal that all appeal deadlines are automatically stayed for 45 days to
allow for mediation. If a mediated agreement is not reached in 45 days,
the Appeal Deciding Officer may extend the automatic stay for another 15
days if there is a reasonable possibility that a mediated agreement can
be achieved within that timeframe. If an agreement is not achieved at
the end of the 45- or 60-day mediation process, the Appeal Deciding
Officer shall immediately notify all parties to the appeal that
mediation was unsuccessful, that the stay has expired, and that the time
periods and procedures applicable to an appeal under 36 CFR part 214 are
reinstated.
Sec. 222.23 Confidentiality.
Mediation sessions and dispute resolution communications as defined
in 5 U.S.C. 571(5) shall be confidential. Any mediation agreement signed
by a Forest Service official and the holder of a term grazing permit is
subject to public disclosure.
Sec. 222.24 Records.
Notes taken or factual material shared during mediation sessions
shall not be included in the appeal record prepared in accordance with
the procedures at 36 CFR part 214.
Sec. 222.25 Costs.
The Forest Service shall cover only those costs incurred by its own
employees in mediation sessions.
Sec. 222.26 Ex parte communications.
The Chief of the Forest Service or other Forest Service employee who
made the decision being mediated, or his or her designee, shall not
discuss mediation with the Appeal Deciding Officer, except to request an
extension of time or to communicate the results of mediation.
Subpart C_Grazing Fees
Authority: 16 U.S.C. 551; 31 U.S.C. 9701; 43 U.S.C. 1751, 1752,
1901; E.O. 12548 (51 FR 5985).
Sec. 222.50 General procedures.
(a) Fees shall be charged for all livestock grazing or livestock use
of National Forest system lands, or other lands under Forest Service
control. An exception is livestock authorized free of charge under
provisions of Sec. 222.3(c)(2)(ii) (B) through (G).
(b) Guiding establishment of fees are the law and general
governmental policy as established by Bureau of the Budget (now, Office
of Management and Budget) Circular A-25 of September 23, 1959, which
directs that a fair market value be obtained for all services and
resources provided the public through establishment of a system of
reasonable fee charges, and that the users be afford equitable
treatment. This policy precludes a monetary consideration in the fee
structure for any permit value that may be capitalized into the permit
holder's private ranching operation.
(c) A grazing fee shall be charged for each head month of livestock
grazing or use. A head month is a month's use and occupancy of range by
one animal, except for sheep or goats. A full head month's fee is
charged for a month of grazing by adult animals; if the grazing animal
is weaned or 6 months of age or older at the time of entering National
Forest System lands; or will become 12 months of age during the
permitted period of use. For fee purposes 5 sheep or goats, weaned or
adult, are equivalent
[[Page 102]]
to one cow, bull, steer, heifer, horse, or mule.
(d) No additional charge will be made for the privilege of lambing
upon National Forest System lands, or other lands under Forest Service
control.
(e) Transportation livestock may be charged for at a special rate,
and at a minimum established for such use. Fees for horses, mules, or
burros associated with management of permitted livestock on an
allotment, or for research purposes and administrative studies, and
authorized on a charge basis, are determined under provisions of
paragraph (b) of this section.
(f) The fees for trailing livestock across National Forest System
lands will conform with the rates established for other livestock. Where
practicable, fees for trailing permitted livestock will be covered in
the regular grazing fee and the crossing period covered in the regular
grazing period.
(g) All fees for livestock grazing or livestock use of National
Forest System lands or other lands under Forest Service control are
payable in advance of the opening date of the grazing period, entry, or
livestock use unless otherwise authorized by the Chief, Forest Service.
(h) Unauthorized grazing use rate will be determined by establishing
a base value without giving consideration for those contributions
normally made by the permittee under terms of the grazing permit. The
base will be adjusted annually by the same indexes used to adjust the
regular fee. This rate will also apply to excess number of livestock
grazing by permittees; to livestock grazed outside the permitted grazing
season; or to livestock grazed under an unvalidated permit.
(i) Refunds or credits may be allowed under justifiable conditions
and circumstances as the Chief, Forest Service, may specify.
(j) The fee year for the purpose of charging grazing fees will be
March 1 through the following February.
(k) The data year for the purpose of collecting beef cattle price
data for computing indexes will be November 1 through the following
October and apply to the following fee year.
[44 FR 24843, Apr. 27, 1979, as amended at 46 FR 42450, Aug. 21, 1981;
53 FR 2984, Feb. 2, 1988]
Sec. 222.51 National Forests in 16 Western States.
(a) Grazing fees are established on lands designated National
Forests and Land Utilization Projects in the 16 contiguous Western
States of Arizona, California, Colorado, Idaho, Kansas, Montana,
Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South
Dakota, Utah, Washington, and Wyoming. (National Grasslands are
excluded, see Sec. 222.52.)
(b) Notwithstanding the provisions of Sec. 222.50, paragraph (b),
the calculated grazing fee for 1988 and subsequent grazing fee years
represents the economic value of the use of the land to the user and is
the product of multiplying the base fair market value of $1.23 by the
result of the annual Forage Value Index, added to the sum of the Beef
Cattle Price Index minus the Prices Paid Index and divided by 100;
provided, that the annual increase or decrease in such fee for any given
year 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
[[Page 103]]
Statistics Service) divided by $22.04 per hundred weight and multiplied
by 100; and
(3) Prices Paid Index means the following selected components from
the National Agricultural Statistics Service ``Annual National Index of
Prices Paid by Farmers for Goods and Services'' adjusted by the weights
indicated in parentheses to reflect livestock production costs in the
Western States:
1. Fuels and Energy (14.5);
2. Farm and Motor Supplies (12.0);
3. Autos and Trucks (4.5);
4. Tractors and Self-Propelled Machinery (4.5);
5. Other Machinery (12.0);
6. Building and Fencing Materials (14.5);
7. Interest (6.0);
8. Farm Wage Rates (14.0);
9. Farm Services (18.0).
[44 FR 24843, Apr. 27, 1979, as amended at 53 FR 2984, Feb. 2, 1988]
Sec. 222.52 National Grasslands.
Grazing fees for National Grasslands will be established under
concepts and principles similar to those in Sec. 222.51(b).
[44 FR 24843, Apr. 27, 1979]
Sec. 222.53 Grazing fees in the East--noncompetitive procedures.
(a) Scope. Except as provided in Sec. 222.54 of this subpart, the
fee charged for commercial livestock grazing use and occupancy on
National Forest System (NFS) lands in the States of New York, Missouri,
Vermont, West Virginia, and in the Southern Region shall be determined
through noncompetitive, fair market value procedures. These rules do not
apply to grazing fees on National Forest System lands in Oklahoma or
National Grasslands in Texas. Grazing permits under the noncompetitive
fee method in the East are subject to the rules governing grazing permit
administration in Subpart A of this part.
(b) Applicability. The rules of this section apply to the
establishment of grazing fees for existing permittees in the Eastern and
Southern Regions on National Forest System lands, including grazing
associations in New York and Missouri as of March 1, 1990, to any
livestock on-and-off permits defined in Subpart A of this part; and to
any allotments advertised for competitive bidding which were not bid on
(Sec. 222.54(h)). Noncompetitive permits vacated or terminated by an
existing permittee and any new allotments created after the effective
date of this rule shall be offered on a competitive bid basis as
specified in Sec. 222.54 of this subpart. As provided in subpart A of
this part, holders of term permits have first priority for receipt of a
new permit.
(c) Fee System. The grazing fee charged under this section shall be
based on fair market value, as determined by: Using comparable private
grazing lease rates, adjusted for the difference in the costs of grazing
comparable private leased lands and National Forest System lands, or by
reference to prevailing prices in competitive markets for other Federal
or State leased grazing lands that are the same or substantially similar
to grazing lands offered or administered by the Forest Service in the
East with comparability adjustments as appropriate. Comparable grazing
lease rates shall be adjusted for the difference between the total costs
of operating on leased grazing lands and the total costs (other 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.
[[Page 104]]
(ii) The Chief or authorized officer shall revise or update
estimated market values of grazing use and occupancy, as necessary to
respond to significant changes in the agricultural economy in the East,
and to ensure that fees represent fair market value.
(iii) The Chief, or an authorized officer to whom authority has been
delegated, where sufficient market data exist, may establish the base
grazing value for grazing allotments using comparable, local lease rates
for private grazing lands.
(2) Annual Adjustment of Base Grazing Value. To maintain currency
with the private grazing lease market, the respective base grazing
value(s) established for grazing permits under this section shall be
annually adjusted through a hay price index, by respective subregion.
The hay price index means the weighted average selling price of ``other
baled hay,'' computed by the National Agricultural Statistics Service of
the U.S. Department of Agriculture, by designated State and subregion.
This index shall be based on 3-year average hay prices and annually
reflect the percentage change in the cost of alternative livestock feed.
(3) Computation of Annual Grazing Fee--(i) Annual Fee Basis. The
annual grazing fee shall equal the base grazing value, adjusted by the
current period's hay price index, less the value of any agency required
range improvements.
(ii) Grazing Fee Credits for Range Improvements. Any requirements
for permittee construction or development of range improvements shall be
identified through an agreement and incorporated into the grazing
permit, with credits for such improvements to be allowed toward the
annual grazing fee. Fee credits shall be allowed only for range
improvements which the Forest Service requires an individual permittee
to construct or develop on a specific allotment to meet the management
direction and prescriptions in the relevant forest land and resource
management plan and allotment management plan. These improvements must
involve costs which the permittee would not ordinarily incur under the
grazing permit, must be of tangible public benefit, and must enhance
management of vegetation for resource protection, soil productivity,
riparian, watershed, and wetland values, wildlife and fishery habitat,
or outdoor recreation values. Maintenance of range improvements
specified in allotment management planning documents or the grazing
permit, and other costs incurred by the permittee in the ordinary course
of permitted livestock grazing, do not qualify for grazing fee credits.
(4) Implementation. The grazing fee formula provided by this section
shall be used to calculate fees for the 1990 grazing fee year. Where
implementation would raise fees, the increase shall be phased in over a
5-year period. Full fair market value will be reached in 5 years,
beginning in 1990.
[55 FR 2650, Jan. 26, 1990]
Sec. 222.54 Grazing fees in the East--competitive bidding.
(a) General Procedures--(1) Applicability. The rules of this section
apply to grazing fees for any allotment established or vacated on
National Forest System lands in the Eastern or Southern Regions, as of
February 26, 1990 as well as to grazing fees for existing allotments for
such lands that have already been established under competitive
procedures as of the date of this rule. Permits offered for competitive
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.
[[Page 105]]
(c) Prospectus. (1) At such time as allotments are vacated, as new
allotments are established, or as existing competitively bid permits
expire, the authorized officer shall prepare and advertise a prospectus
for those allotments on which grazing will be permitted.
(2) The prospectus shall include the terms and conditions of
occupancy and use under the grazing permit to be issued, as well as
document existing improvements and their condition. The prospectus shall
also disclose the following:
(i) Estimated market value of the forage per head month of grazing
use;
(ii) The minimum bid price the agency will accept;
(iii) Any required range improvements; and
(iv) The minimum qualifications that applicants must meet to be
eligible for a permit.
(3) Copies of the applicable grazing permit, allotment management
planning documents and allotment maintenance requirements, and the
latest annual permittee instructions shall be made available to all
prospective bidders upon request.
(d) Submission of bid. Each applicant shall submit an application
for the grazing permit, along with a sealed bid for the grazing fee, and
a bid deposit of 10 percent of the total amount of the bid.
(e) Qualifications and Deposit Refunds. Upon opening applicants
bids, the authorized officer shall determine whether each bidder meets
the qualifications to hold a permit as set forth in Subpart A of this
part; and shall refund the deposit to any applicant who is not qualified
or who does not offer the high bid.
(f) Permit Issuance. The authorized officer shall issue the grazing
permit to the qualified high bidder, except as provided in paragraphs
(f)(1) and (2) of this section. The successful bidder receives the
privilege of obtaining or renewing a grazing permit and is billed for
the occupancy offered and forage sold.
(1) Priority for Reissuance. On allotments where a current permit is
expiring and competition has been held on a new grazing permit, the
current grazing permittee shall have priority for retaining the permit.
Accordingly, an applicant who holds the permit on the allotment under
bid, who has a satisfactory record of performance under that permit, and
who is not the higher bidder for the future grazing privileges in the
specified allotment shall be offered the opportunity to match the high
bid and thereby retain the permit. Should there be more than one
existing permittee in the allotment under bid, each shall be offered the
option of meeting the high bid; if only one current permittee opts to
meet the high bid, the remaining allowable grazing use, if any, shall be
awarded to the initial high bidder.
(2) Identical Bids. In cases of identical bids, the selection of the
successful applicant shall be made through a drawing.
(g) Computation of Successful Bidder's Annual Fee--(1) Annual Fee
Basis. The highest bid received shall establish the base grazing value
in the initial year of the grazing permit for each allotment offered.
The annual grazing fee shall equal the base grazing value, adjusted by
the current period's hay price index for the relevant subregion as
described in Sec. 222.53(c)(1), and (c)(3), less the value of any
agency required range improvements. This hay price index shall be based
on 3-year average hay prices and 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
[[Page 106]]
public benefit, and must enhance management of vegetation for resource
protection, soil productivity, riparian, watershed, and wetland values,
wildlife and fishery habitat, or outdoor recreation values. Maintenance
of range improvements specified in allotment management planning
documents or the grazing permit, and other costs incurred by the
permittee in the ordinary course of permitted livestock grazing, do not
qualify for grazing fee credits.
(h) No Bids Received. If qualified sealed bids are not received, the
authorized officer reserves the right to conduct an oral auction using
the minimum bid price established under paragraph (b) of this section or
to establish grazing fees through noncompetitive grazing fee procedures
specified in Sec. 222.53 of this subpart.
[55 FR 2651, Jan. 26, 1990]
Subpart D_Management of Wild Free-Roaming Horses and Burros
Authority: 7 U.S.C. 1011; 16 U.S.C. 551, 1331-1340; 43 U.S.C. 1901
note.
Source: 45 FR 24135, Apr. 9, 1980, unless otherwise noted.
Redesignated at 78 FR 33723, June 5, 2013
Sec. 222.60 Authority and definitions.
(a) Authority. The Chief, Forest Service, shall protect, manage, and
control wild free-roaming horses and burros on lands of the National
Forest System and shall maintain vigilance for the welfare of wild free-
roaming horses and burros that wander or migrate from the National
Forest System. If these animals also use lands administered by the
Bureau of Land Management as a part of their habitat, the Chief, Forest
Service, shall cooperate to the fullest extent with the Department of
the Interior through the Bureau of Land Management in administering the
animals.
(b) Definitions. (1) Act means the Act of December 15, 1971 (85
Stat. 649, as amended, 16 U.S.C. 1331-1340).
(2) Captured animal means a wild free-roaming horse or burro taken
and held in the custody of an authorized officer, his delegate, or
agent. This term does not apply to an animal after it is placed in
private custody through a Private Maintenance and Care agreement.
(3) Excess animals means wild free-roaming horses and burros which
have been removed by authorized personnel pursuant to applicable law or
which must be removed from an area in order to preserve and maintain a
thriving natural ecological balance in coordination with other resources
and activities.
(4) Herd means one or more stallions and their mares, or jacks and
their jennies.
(5) Humane treatment means kind and merciful treatment, without
causing unnecessary stress or suffering to the animal.
(6) Inhumane treatment means causing physical stress to an animal
through any harmful action or omission that is not compatible with
standard animal husbandry practices; causing or allowing an animal to
suffer from a lack of necessary food, water, or shelter; using any
equipment, apparatus, or technique during transportation, domestication,
or handling that causes undue injury to an animal; or failing to treat
or care for a sick or injured animal.
(7) Lame means a wild free-roaming horse or burro with
malfunctioning muscles, ligaments or limbs that impair freedom of
movement.
(8) Malicious harassment means any intentional act demonstrating
deliberate disregard for the well-being of wild free-roaming horses and
burros and which creates a likelihood of injury or is detrimental to
normal behavior pattern of wild free-roaming horses or burros including
feeding, watering, resting, and breeding. Such acts include, but are not
limited to, unauthorized chasing, pursuing, herding, roping, or
attempting to gather wild free-roaming horses or burros. It does not
apply to activities conducted by or on behalf of the Forest Service or
the Bureau of Land Management in implementation or performance of duties
and responsibilities under the Act.
(9) National Advisory Board means the Advisory Board as established
jointly by the Secretary of Agriculture and the Secretary of the
Interior under the provisions of the Act.
[[Page 107]]
(10) National Forest System includes the National Forests, National
Grasslands, and other Federal lands for which the Forest Service has
administrative jurisdiction.
(11) Old means a wild free-roaming horse or burro characterized by
inability to fend for itself because of age, physical deterioration,
suffering or closeness to death.
(12) Sick means a wild free-roaming horse or burro with failing
health, infirmness, or disease from which there is little chance of
recovery.
(13) Wild free-roaming horses and burros mean all unbranded and
unclaimed horses and burros and their progeny that have used lands of
the National Forest System on or after December 15, 1971, or do
hereafter use these lands as all or part of their habitat, but does not
include any horse or burro introduced onto the National Forest System on
or after December 15, 1971, by accident, negligence, or willful
disregard of private ownership. Unbranded, claimed horses and burros for
which the claim is found to be erroneous, are also considered as wild
and free-roaming if they meet the criteria above.
(14) Wild-horse and burro range means an area of National Forest
System specifically so designated by the Chief, Forest Service, from
wild horse and burro territory, for the purpose of sustaining an
existing herd or herds of wild free-roaming horses and burros, provided
the range does not exceed known territorial limits and is devoted
principally, but not necessarily exclusively, to the welfare of the wild
horses and burros, in keeping with the multiple-use management concept
for the National Forest System.
(15) Wild horse and burro territory means lands of the National
Forest System which are identified by the Chief, Forest Service, as
lands which were territorial habitat of wild free-roaming horses and/or
burros at the time of the passage of the Act.
Sec. 222.61 Administration of wild free-roaming horses and burros
and their environment.
(a) The Chief, Forest Service, shall:
(1) Administer wild free-roaming horses and burros and their progeny
on the National Forest System in the areas where they now occur (wild
horse and burro territory) to maintain a thriving ecological balance
considering them an integral component of the multiple use resources,
and regulating 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
[[Page 108]]
other individual or organizations determined to have scientific
expertise or special knowledge of wild horse and burro protection,
wildlife management and animal husbandry as related to range management.
Sec. 222.62 Ownership claims.
(a) Any person claiming ownership under State branding and estray
laws of branded or unbranded horses or burros within a wild horse or
burro territory or range on the National Forest System where such
animals are not authorized must present evidence of ownership to justify
a roundup before permission will be granted to gather such animals.
Claims of ownership with supporting evidence were required to be filed
during a claiming period which expired November 15, 1973. Unauthorized
privately owned horses or burros entering the National Forest System
after November 15, 1973, which become intermingled with wild horses or
burros, may be claimed by filing an application with the District
Ranger. All authorizations to gather claimed animals shall be in writing
in accordance with instructions as the Chief, Forest Service, may
prescribe. After such public notice as an authorized officer deems
appropriate to inform interested parties, gathering operations may be
authorized. The authorization shall provide that the gathering or
roundup be consistent with regulations, and will (1) establish a
specific reasonable period of time to allow the gathering of claimed
animals and (2) stipulate other conditions, including visual observation
by Forest Service personnel deemed necessary to ensure humane treatment
of associated wild free-roaming horses and burros and to protect other
resources involved.
(b) Prior to removal of claimed animals which have been captured
from the National Forest System, claimants shall substantiate their
claim of ownership in accordance with whatever criteria are
cooperatively agreed to between the Forest Service and the State agency
administering the State estray laws. In the absence of an agreement,
ownership claims shall be substantiated in accordance with State law and
subject to approval of the Forest Service.
Sec. 222.63 Removal of other horses and burros.
Horses and burros not within the definition in Sec. 222.20(b)(13)
which are introduced onto Wild Horse and Burro Territories or ranges
after December 15, 1971, by accident, negligence, or willful disregard
of private ownership, and which do not become intermingled with wild
free-roaming horses or burros shall be considered as unauthorized
livestock and treated in accordance with provisions in 36 CFR 261.7 and
262.10.
[61 FR 35959, July 9, 1996]
Sec. 222.64 Use of helicopters, fixed-wing aircraft and motor vehicles.
The Chief, Forest Service, is authorized to use helicopters, fixed-
wing aircraft, and motor vehicles in a manner that will ensure humane
treatment of wild free-roaming horses and burros as provided by the
following paragraphs:
(a) Prior to using helicopters in capture operations and/or using
motor vehicles for the purpose of transporting captured animals, a
public meeting will be held in the proximity of the territory where the
capture operation is proposed.
(b) Helicopters may be used in all phases of the administration of
the Act including, but not limited to, inventory, observation,
surveillance, and capture operations. In capture operations, helicopters
may be used to locate the animals involved to assist ground crews in
moving the animals and for related purposes, such as, to transport
personnel and equipment. The condition of the animals shall be
continuously observed by the authorized officer and, should signs of
harmful stress be noted, the source of stress shall be removed so as to
allow recovery. Helicopters may be used in round-ups or other capture
operations subject to the following procedures.
(1) Helicopters shall be used in such a manner that bands or herds
will tend to remain together.
(2) Horses or burros will not be moved at a rate which exceeds
limitations set by the authorized officer who shall consider terrain,
weather, distance to be traveled, and condition of the animals.
[[Page 109]]
(3) Helicopters shall be used to observe the presence of dangerous
areas and may be used to move animals away from hazards during capture
operations.
(4) During capture operations, animals shall be moved in such a way
as to prevent harmful stress or injury.
(5) The authorized officer shall supervise all helicopter uses as
follows:
(i) Have means to communicate with the pilot and be able to direct
the use of the helicopter; and
(ii) Be able to observe effects of the use of the helicopters on the
well-being of the animals.
(c) Fixed-wing aircraft may be used for inventory, observation, and
surveillance purposes necessary in administering the Act. Such use shall
be consistent with the Act of September 8, 1959, as amended (18 U.S.C.
41 et seq.). Fixed-wing aircraft shall not be used in connection with
capture operations except as support vehicles.
(d) Motor vehicles may be used in the administration of the Act
except that such vehicles shall not be used for driving or chasing wild
horses or burros in capture operations. Motor vehicles may also be used
for the purpose of transporting captured animals subject to the
following humane procedures.
(1) Such transportation shall comply with appropriate State and
Federal laws and regulations applicable to humane transportation of
horses and burros.
(2) Vehicles shall be inspected by an authorized officer prior to
use to ensure vehicles are in good repair and of adequate rate capacity.
(3) Vehicles shall be carefully operated to ensure that captured
animals are transported without undue risk or injury.
(4) Where necessary and practical, animals shall be sorted as to
age, temperament, sex, size, and condition so as to limit, to the extent
possible, injury due to fighting and trampling.
(5) The authorizing officer shall consider the condition of the
animals, weather conditions, type of vehicle, and distance to be
traveled when planning for transportation of captured animals.
(6) Unless otherwise approved by the authorized officer, the
transportation of wild free-roaming horses and burros shall be limited
in sequence, to a maximum of 24 hours in transit followed by a minimum
of 5 hours of on-the-ground rest with adequate feed and water.
Sec. 222.65 Protection of wild free-roaming horses and burros
when they are upon other than the National Forest System or public lands.
Individual animals and herds of wild free-roaming horses and burros
will be under the protection of the Chief, Forest Service, even though
they may thereafter move to lands of other ownership or jurisdiction as
a part of their annual territorial habitat pattern or for other reasons.
The Chief will exercise surveillance of these animals through the use of
cooperative agreements and as otherwise authorized by law and act
immediately through appropriate administrative or criminal and civil
judicial procedures to provide them the protective measures of the Act
at any time he has cause to believe its provisions are being violated.
Sec. 222.66 Removal of wild free-roaming horses and burros
from private lands.
Owners of land upon which wild free-roaming horses and burros have
strayed from the National Forest System may request their removal by
calling the nearest office of either the Forest Service or Federal
Marshall.
Sec. 222.67 Maintenance of wild free-roaming horses and burros
on privately-owned lands.
Owners of land who wish to maintain wild free-roaming horses and
burros which have strayed onto their lands from the National Forest
System may do so by notifying the nearest office of the Forest Service
in a timely fashion and providing such information on a continuing basis
as the Chief, Forest Service, may require. Such owners shall protect the
wild free-roaming horses and burros on their lands. They may not, in so
maintaining these animals, impede their return to National Forest System
lands unless authorized by agreement with the Forest Service.
Sec. 222.68 Agreements.
The Chief, Forest Service, may enter into agreements as he deems
necessary
[[Page 110]]
to further the protection, management, and control of wild free-roaming
horses and burros.
Sec. 222.69 Relocation and disposal of animals.
(a) The Chief, Forest Service, shall, when he determines over-
population of wild horses and burros exists and removal is required,
take immediate necessary action to remove excess animals from that
particular territory. Such action shall be taken until all excess
animals have been removed so as to restore a thriving natural ecological
balance to the range, and protect the range from deterioration
associated with over-population.
(b) No person except an authorized Forest Service officer or his
agent shall destroy, remove, or relocate any wild free-roaming horse or
burro located on the National Forest System.
(c) Wild horses and burros shall be relocated or removed in the
following order of priority:
(1) In the most humane manner possible, sick, lame, or old animals
shall be destroyed;
(2) Relocate animals to other National Forest System lands which
were identified as 1971 wild horse or burro territory, providing
suitable habitat exists and relocation of animals will not jeopardize
vegetation condition;
(3) Relocate animals to other federally-owned lands which were
identified as 1971 wild horse or burro occupied lands, providing
suitable habitat exists and relocation of animals will not jeopardize
vegetation condition and animals are requested by the appropriate land
manager having jurisdiction;
(4) Place animals under private maintenance and care agreements
where there is an adoption demand by qualified individuals, groups, or
Government agency, and for which there is assurance of humane treatment
and care, provided not more than four animals are placed under private
maintenance and care agreements per year to any individual,
organization, or government agency unless there is a determination
expressed otherwise in writing, by an authorized Forest Service Officer;
and
(5) Excess animals, for which an adoption demand by qualified
applicants does not exist, shall be destroyed in the most humane manner
possible, and if several methods are equally humane, select the most
cost efficient.
(d) Where excess animals have been placed under private maintenance
and care agreements after December 15, 1971, as provided for in
paragraph (c)(4) of this section, and animals have been provided humane
conditions, treatment, and care, for a period of one year, the Chief,
Forest Service, may grant title to not more than four animals per year
to each individual, organization, or government agency.
(e) The applicants must make written application for title and/or
adoption, must be of legal age in the State in which they reside, and
must pay fees for adoption and transportation as follows:
(1) The application must be accompanied by a nonrefundable advance
payment of $25 by guaranteed remittance. If custody of a wild, free-
roaming horse or burro is granted by the authorized Forest Service
officer, the advance payment shall be applied against the adoption fee
required to be paid at the time the maintenance and care agreement Sec.
222.29(c)(4) is executed.
(2) The Forest Service shall charge an adoption fee of $125 for each
horse and $75 for each burro, except that there shall be no adoption fee
for an unweaned offspring under 6 months of age accompanying its mother.
(3) Any transportation costs incurred for the transportation of the
animal(s) to the point of pickup must be paid before an approved
individual, group, or government agency takes custody of the animal(s).
(f) Humane conditions, treatment, and care must have been provided
for no less that one year preceding the filing of the application for
title. The conveyance of title shall include a written statement by an
authorized officer attesting that the animal is in good condition.
[45 FR 24135, Apr. 9, 1980, as amended at 46 FR 42450, Aug. 21, 1981; 48
FR 25188, June 6, 1983]
Sec. 222.70 Disposal of carcasses.
Carcasses of animals that have lost their status as wild free-
roaming horses or burros may be disposed of in
[[Page 111]]
any customary manner acceptable under applicable State sanitary statutes
including disposal through a rendering plant.
Sec. 222.71 Loss of status.
Wild free-roaming horses and burros or their remains shall lose
their status under the 1971 Wild Horses and Burros Act.
(a) Upon passage of title pursuant to Sec. 222.29 (d) and (e).
(b) Upon transfer to private maintenance and care pursuant to Sec.
222.29(c)(4) and die of natural causes before passage of title;
(c) Upon destruction by an authorized Forest officer pursuant to
Sec. 222.29(c)(5).
(d) Upon death by natural causes or accident on the National Forest
System or on private lands where maintained thereon pursuant to Sec.
222.27 and disposal is authorized by a Forest officer; and
(e) Upon destruction or death for purposes of or incident to the
program authorized in Sec. 222.20(a).
Sec. 222.72 Use of non-Forest Service personnel.
The Chief, Forest Service, may authorize the use of non-Forest
Service personnel to assist in specific situations of short duration.
Sec. 222.73 Management coordination.
All management activities by the Chief, Forest Service, shall be
carried out in consultation with the appropriate agencies of the State
involved. The expert advice of qualified scientists in the fields of
biology and ecology shall also be sought in administering wild free-
roaming horses and burros. The advice and suggestions of agencies,
qualified scientists, and other qualified interest groups shall be made
available to the National Advisory Board for their use and
consideration. Actions taken in connection with private ownership claims
shall be coordinated to the fullest extent possible with the State
agency responsible for livestock estray law administration.
Sec. 222.74 National Advisory Board.
The Chief, Forest Service, shall appoint a representative to attend
meetings of the National Advisory Board for Wild Free-Roaming Horses and
Burros and to function as prescribed by the Memorandum of Agreement
between the Department of the Interior and the Department of Agriculture
and the Joint Charter issued by the Secretary of the Interior and the
Secretary of Agriculture. Policies and guidelines relative to proposals
for the establishment of ranges, adjustments in number, relocation and
disposal of animals, and other matters relating generally to the
protection, management, and control of wild free-roaming horses and
burros shall be presented to the National Advisory Board for
recommendations.
Sec. 222.75 Studies.
The Chief, Forest Service, is authorized and directed to undertake
those studies of the habits and habitat of wild free-roaming horses and
burros that he may deem necessary. In doing so, he shall consult with
the appropriate agencies of the State(s) involved and the National
Academy of Sciences.
Sec. 222.76 Arrest.
Any employee designated by the Chief, Forest Service, shall have the
power to arrest without warrant, any person committing in the presence
of the employee a violation of the Act and to take such person
immediately for examination or trial before an officer or court of
competent jurisdiction. Any employee so designated shall have power to
execute any warrant or other process issued by an officer or court of
competent jurisdiction to enforce the provisions of the Act.
PART 223_SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER,
SPECIAL FOREST PRODUCTS, AND FOREST BOTANICAL PRODUCTS--Table of Contents
Subpart A_General Provisions
Sec.
223.1 Authority to sell timber.
223.2 Disposal of timber for administrative use.
223.3 Sale of seized material.
223.4 Exchange of trees or portions of trees.
223.5 Scope of free use granted to individuals.
[[Page 112]]
223.6 Cutting and removal of timber in free-use areas.
223.7 Permission for free use of timber outside free-use areas.
223.8 Delegations of authority to approve free use by individuals.
223.9 Free use to owners of certain mining claims.
223.10 Free use to Alaskan settlers, miners, residents, and prospectors.
223.11 Free use to other Federal agencies.
223.12 Permission to cut, damage, or destroy trees without
advertisement.
223.13 Compliance.
223.14 Where timber may be cut.
223.15 Provision of trees, portions of trees, or forest products to
Indian tribes for traditional and cultural purposes.
Subpart B_Timber Sale Contracts
Contract Conditions and Provisions
223.30 Consistency with plans, environmental standards, and other
management requirements.
223.31 Duration of contracts.
223.32 Timber sale operating plan.
223.33 Redetermination of stumpage rates and deposits.
223.34 Advance payment.
223.35 Performance bond.
223.36 Volume determination.
223.37 Revegetation of temporary roads.
223.38 Standards for road design and construction.
223.39 [Reserved]
223.40 Cancellation for environmental protection or inconsistency with
plans.
223.41 Payment when purchaser elects government road construction.
223.42 Transfer of effective purchaser credits.
223.43 Limitation on amounts of transferred purchaser credit.
223.44 Collection rights on contracts involved in transfer of purchaser
credit.
223.45 Definitions applicable to transfer of purchaser credit.
223.46 Adjustment of contract termination date.
223.47 Date of completion of permanent road construction.
223.48 Restrictions on export and substitution of unprocessed timber.
223.49 Downpayments.
223.50 Periodic payments.
223.51 Bid monitoring.
223.52 Market-related contract term additions.
223.53 Urgent removal contract extensions.
Appraisal and Pricing
223.60 Determining fair market value.
223.61 Establishing minimum stumpage rates.
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.
[[Page 113]]
223.142 Causes for suspension.
223.143 Procedures for suspension.
223.144 Period of suspension.
223.145 Scope of suspension.
Subpart D_Timber Export and Substitution Restrictions
223.159 Scope and applicability.
223.160 Definitions.
223.161 [Reserved]
223.162 Limitations on timber harvested from all other states.
223.163 [Reserved]
223.164 Penalty for falsification.
Subpart E [Reserved]
Subpart F_The Forest Resources Conservation and Shortage Relief Act of
1990 Program
223.185 Scope and applicability.
223.186 Definitions.
223.187 Determination of unprocessed timber.
223.188 Prohibitions against exporting unprocessed Federal timber.
223.189 Prohibitions against substitution.
223.190 Sourcing area application procedures.
223.191 Sourcing area disapproval and review procedures.
223.192 Procedures for a non-manufacturer.
223.193 Procedures for reporting acquisition and disposition of
unprocessed Federal timber.
223.194 Procedures for reporting the acquisition and disposition of
unprocessed private timber.
223.195 Procedures for identifying and marking unprocessed timber.
223.196 Civil penalties for violation.
223.197 Civil penalty assessment procedures.
223.198 Administrative remedies.
223.199 Procedures for cooperating with other agencies.
223.200 Determinations of surplus species.
223.201 Limitations on unprocessed timber harvested in Alaska.
223.202 Information requirements.
223.203 Indirect substitution exception for National Forest System
timber from within Washington State.
Subpart G_Special Forest Products
223.215 Applicability.
223.216 Special Forest Products definitions.
223.217 Authority to dispose of special forest products.
223.218 Consistency with plans, environmental standards, and other
management requirements.
223.219 Sustainable harvest of special forest products.
223.220 Quantity determination.
Appraisal and Pricing
223.221 Establishing minimum rates.
223.222 Appraisal.
Contract and Permit Conditions and Provisions
223.223 Advance payment.
223.224 Performance bonds and security.
223.225 Term.
223.226 Term adjustment for force majeure delay.
Advertisement and Bids
223.227 Sale advertisement.
223.228 Contents of advertisement.
223.229 Contents of prospectus.
223.230 Bid restriction on resale of incomplete contracts, permits, or
other instruments.
223.231 Bidding methods.
223.232 Disclosure of relation to other bidders.
Award of Contracts, Permits, or Other Authorizing Instruments
223.233 Award to highest bidder.
223.234 Determination of responsibility.
223.235 Unilateral delay, suspension, or modification of contracts,
permits, or other instruments authorizing the sale of special
forest products.
223.236 Unilateral termination.
223.237 Request for delay, suspension, modification, or termination.
223.238 Free use authorization to U.S. Army and Navy.
223.239 Free use by individuals.
223.240 Tribes and treaty and other reserved rights.
223.241 Disposal of seized special forest products.
223.242 Supplemental guidance, memorandums of agreement, and memorandums
of understanding.
Subpart H_Forest Botanical Products
223.275 Establishment of a pilot program.
223.276 Applicability.
223.277 Forest botanical products definition.
223.278 Sale of forest botanical products and collection of fees.
223.279 Personal use.
223.280 Waiver of fees and/or fair market value.
223.281 Monitoring and revising sustainable harvest levels.
223.282 Deposit and expenditure of collected fees.
Subpart I_Stewardship End Result Contracting Projects
223.300 Applicability.
223.301 Determination of type of contract or agreement.
[[Page 114]]
223.302 Award of contracts and agreements.
223.303 Procurement of service contacts.
223.304 Sale of property contracts.
223.305 Agreements.
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, 25 U.S.C. 3055 and 3057, 113
Stat. 1501a, 16 U.S.C. 528 note; unless otherwise noted.
Source: 42 FR 28252, June 2, 1977, unless otherwise noted.
Redesignated at 49 FR 2760, Jan. 23, 1984.
Subpart A_General Provisions
Sec. 223.1 Authority to sell timber.
Trees, portions of trees, and other forest products on National
Forest System lands may be sold for the purpose of achieving the
policies set forth in the Multiple-Use Sustained-Yield Act of 1960, as
amended (74 Stat. 215; 16 U.S.C. 528-531), and the Forest and Rangeland
Renewable Resources Planning Act of 1974, as amended (88 Stat. 476; as
amended, 16 U.S.C. 1600-1614), and the Program thereunder.
Sec. 223.2 Disposal of timber for administrative use.
Trees, portions of trees, or other forest products in any amount on
National Forest System lands may be disposed of for administrative use,
by sale or without charge, as may be most advantageous to the United
States, subject to the maximum cut fixed in accordance with established
policies for management of the National Forests. Such administrative use
shall be limited to the following conditions and purposes:
(a) For construction, maintenance or repair of roads, bridges,
trails, telephone lines, fences, recreation areas or other improvements
of value for the protection or the administration of Federal lands.
(b) For fuel in Federal camps, buildings and recreation areas.
(c) For research and demonstration projects.
(d) For use in disaster relief work conducted by public agencies.
(e) For disposal when removal is desirable to protect or enhance
multiple-use values in a particular area.
Sec. 223.3 Sale of seized material.
Seized material (trees, portions of trees or other forest products
cut in trespass from National Forest System lands) may be sold to the
highest bidder under specific authorization from the Regional Forester.
If advertisement is impractical, sales of material with an appraised
value of less than $10,000 will be made on informal bids.
Sec. 223.4 Exchange of trees or portions of trees.
Trees or portions of trees may be exchanged for land under laws
authorizing the exchange of National Forest timber. Cutting of exchange
timber must comply with the purposes cited in Sec. 223.1.
(42 Stat. 465, 16 U.S.C 485; 43 Stat. 1215, 16 U.S.C. 516)
Sec. 223.5 Scope of free use granted to individuals.
(a) Free use may be granted to individuals for firewood for personal
use, except that such use may be limited to bona fide settlers, miners,
residents and prospectors living within or immediately adjacent to the
National Forest when the available supply is insufficient to meet the
total demand. Free use may be granted to such bona fide settlers,
miners, residents and prospectors for minerals, for fencing, building,
mining, prospecting and domestic purposes.
(Sec. 1, 30 Stat. 35, as amended; 16 U.S.C. 477, 551)
(b) Free use will be granted individuals primarily to aid in the
protection and silvicultural improvement of the forests. Except in
unusual cases, the material will be restricted to dead, insect-infested,
or diseased timber, logging debris, and thinnings. Other material may be
granted in unusual cases where its refusal would cause unwarranted
hardship. Where limited supply or other conditions justify such action,
the free use of green material may be refused.
Sec. 223.6 Cutting and removal of timber in free-use areas.
Supervisors may designate portions or all of a National Forest as
free-use
[[Page 115]]
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, Jan. 23, 1984,
as amended at 71 FR 525, Jan. 4, 2006]
Sec. 223.9 Free use to owners of certain mining claims.
Free use will be granted to an owner of a mining claim located
subsequent to July 23, 1955, or of a mining claim which is otherwise
subject to Section 4 of the Act of July 23, 1955 (69 Stat. 367), if at
any time said claim owner requires more timber for his mining
operations, in connection with that claim, than is available on that
claim because of Forest Service timber disposal therefrom subsequent to
location of that claim. He will be granted, free of charge, timber from
the nearest National Forest land which is ready for harvesting under the
applicable management plan, substantially equivalent in kind and
quantity to that estimated by the Forest Service to have been cut under
Forest Service authorization from the claim subsequent to its location,
Forest officers may be delegated authority to grant amounts of timber
not in excess of those which these officers are authorized to sell in
commercial sales.
(Sec. 4, 69 Stat. 368, 16 U.S.C. 612)
Sec. 223.10 Free use to Alaskan settlers, miners, residents,
and prospectors.
Bona fide settlers, miners, residents, and prospectors for minerals
in Alaska may take free of charge green or dried timber from the
National Forests in Alaska for personal use but not for sale. Permits
will be required for green saw timber. Other material may be taken
without permit. The amount of material granted to any one person in 1
year shall not exceed 10,000 board feet of saw timber and 25 cords of
wood, or an equivalent volume in other forms. Persons obtaining
materials shall, on demand, forward to the supervisor a statement of the
quantity taken and the location from which it was removed.
(Sec. 1, 30 Stat. 35, 16 U.S.C. 477)
Sec. 223.11 Free use to other Federal agencies.
(a) National Forest timber will be granted free of charge to other
branches of the Federal Government when authorized by law. Permits may
be approved by forest officers for
[[Page 116]]
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 Section 5 of that Act, the claimant has failed to file
a verified statement or has failed to establish the validity and
effectiveness of his asserted rights.
(4) Timber on lands identified in land management plans as not
suited for timber production, except that salvage sales or sales
necessitated to protect other multiple-use values may be made.
(b) The cutting of timber on mining claims shall be conducted in
such manner as not to endanger or materially interfere with prospecting,
mining or processing operations.
(c) Timber on an unpatented claim to which the United States does
not otherwise have disposal rights may be disposed of with the written
consent of the claimant, or, in emergencies without the consent of the
claimant.
(d) Timber on an unpatented claim may be cut by the claimant only
for the actual development of the claim or for uses consistent with the
purposes for which the claim was entered. Any severance or removal of
timber, other than severance or removal to provide clearance, shall be
in accordance with plan of operations required by Part 252 of this
chapter, and with sound principles of forest management.
[[Page 117]]
(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.
Sec. 223.15 Provision of trees, portions of trees, or forest products
to Indian tribes for traditional and cultural purposes.
(a) Pursuant to section 8105 of the Food, Conservation, and Energy
Act of 2008 (Pub. L. 110-246, 122 Stat. 1651) [hereinafter the ``2008
Farm Bill''], Regional Foresters or designated Forest Officers may, at
their discretion, provide trees, portions of trees, or forest products
to Indian tribes free of charge for traditional and cultural purposes
provided that:
(1) The trees, portions of trees, or forest products are provided to
tribal officials on behalf of an Indian tribe for traditional and
cultural purposes; and
(2) The trees, portions of trees, or forest products will not be
used for commercial purposes.
(b) The following definitions apply to this section:
Indian tribe. The term ``Indian tribe'' means any Indian or Alaska
Native tribe, band, nation, pueblo, village, or other community the name
of which is included on a list published by the Secretary of the
Interior pursuant to section 104 of the Federally Recognized Indian
Tribe List Act of 1994 (25 U.S.C. 479a-1).
Traditional and cultural purpose. The term ``traditional and
cultural purpose,'' with respect to a definable use, area, or practice,
means that the use, area, or practice is identified by an Indian tribe
as traditional or cultural because of the long-established significance
or ceremonial nature of the use, area, or practice to the Indian tribe.
Tribal officials: The term ``tribal officials'' means elected or
duly appointed officials of Indian tribal governments.
(c) Requests for trees, portions of trees, or forest products made
under this section must be submitted to the local Forest Service
District Ranger's Office(s) in writing. Requests may be made:
(1) Directly by a tribal official(s) who has been authorized by the
Indian tribe to make such requests; or
(2) By providing a copy of a formal resolution approved by the
tribal council or other governing body of the Indian tribe.
(d) Requests for trees, portions of trees, and forest products made
under this section must be directed to the appropriate Forest Service
District Ranger(s)' Office from which the items are being requested.
Tribal officials are encouraged to explain their requests to the
Regional Forester or designated Forest Officer and, if necessary,
describe how the request fits a traditional and cultural purpose. When
an Indian tribe requests forest products located on two or more National
Forests, authorized tribal officials should notify each of the affected
Forest Service District Ranger's Offices of the requests made on other
forests.
(e) Agency Line Officers and managers (who have been authorized by
name through official Forest Service correspondence) are authorized to
provide trees, portions of trees, and forest products under this section
subject to the following limitations:
(1) District Rangers and Forest Officers may provide material not
exceeding $25,000 in value in any one fiscal year to an Indian tribe;
(2) Forest Supervisors may provide material not exceeding $50,000 in
value in any one fiscal year to an Indian tribe;
(3) Regional Foresters may provide material not exceeding $100,000
in value in any one fiscal year to an Indian tribe; and
(4) The Chief of the Forest Service may provide material exceeding
$100,000 in value to an Indian tribe.
[[Page 118]]
(f) A request for trees, portions of trees, or forest products under
this section may be conditioned or denied for reasons including, but not
limited to the following:
(1) Protecting public health and safety;
(2) Preventing interference with Forest Service and/or commercial
operations;
(3) Complying with Federal and State laws and regulations;
(4) Ensuring sustainability; or
(5) Otherwise protecting National Forest System land and resources.
(g) All decisions made under this section must comply with the
National Forest Management Act, relevant land management plans, the
National Environmental Policy Act, the Endangered Species Act, all other
applicable laws and regulations, and are subject to tribal treaty and
other reserved rights and the savings provisions of the Cultural and
Heritage Cooperation Authority (25 U.S.C. 3057(b)).
[81 FR 65896, Sept. 26, 2016]
Subpart B_Timber Sale Contracts
Contract Conditions and Provisions
Sec. 223.30 Consistency with plans, environmental standards,
and other management requirements.
The approving officer will insure that each timber sale contract,
permit or other authorized form of National Forest timber disposal is
consistent with applicable land and resource management plans and
environmental quality standards and includes, as appropriate,
requirements for:
(a) Fire protection and suppression;
(b) Protection of residual timber;
(c) Regeneration of timber as may be made necessary by harvesting
operations;
(d) Minimizing increases in soil erosion;
(e) Providing favorable conditions of water flow and quality;
(f) Utilization of the timber resource to provide for the optimum
practical use of the wood material as may be obtained with available
technology, considering opportunities to promote more efficient wood
utilization, regional conditions and species characteristics;
(g) Reduction of the likelihood of loss to destructive agencies; and
(h) Minimizing adverse effects on, or providing protection for and
enhancing other National Forest resources, uses and improvements.
Sec. 223.31 Duration of contracts.
Sale contracts shall not exceed 10 years in duration, unless there
is a finding by the Chief, Forest Service, that better utilization of
the various forest resources (consistent with the provisions of the
Multiple-Use Sustained-Yield Act of 1960) will result.
Sec. 223.32 Timber sale operating plan.
Sale contracts with a term of 2 years or more shall provide for the
filing of an operating plan as soon as practicable after execution of
the contract, such plan shall be a part of the contract. The plan of
operation shall be general in nature, outlining the expected timing and
order of sale development, including such major operations as road
construction, felling and removal of timber, distribution of timber, and
contractual requirements for erosion prevention and slash disposal. The
plan of operation and revisions thereto shall be subject to concurrence
by the Forest Service.
Sec. 223.33 Redetermination of stumpage rates and deposits.
Sale contracts exceeding 7 years in duration, and those of shorter
duration to the extent found desirable by the approving officer, will
provide for the redetermination of rates for stumpage and for required
deposits at intervals of not more than 5 years, exclusive of any period
allowed for the construction of improvements.
Sec. 223.34 Advance payment.
Sale contracts shall provide that timber and forest products be paid
for in advance of cutting, unless the contract authorizes the purchaser
to furnish a payment guarantee satisfactory to the Forest Service.
Advance payments found to be in excess of amounts due the United States
shall be refunded to the current holder of the contract or
[[Page 119]]
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 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
[[Page 120]]
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]
Sec. 223.45 Definitions applicable to transfer of purchaser credit.
As used in Sec. Sec. 223.42 and 223.43, the term Purchaser includes
any single individual, corporation, company, firm, partnership, joint
venture, or other business entity or the successor in interest of any of
the foregoing business entities having timber sale contracts on the same
National Forest. The term National Forest shall be considered as a unit
of the National Forest System, regardless of how it was established,
which maintains a separate identity with respect to the distribution of
receipts earned thereon to the States and counties. The term Effective
Purchaser Credit means unused purchaser credit which does not exceed
current contract value minus base rate value. The term base rate value
is the sum of the products of base rates and estimated remaining
unscaled (unreported on tree measurement contracts) volumes by species
of timber included in a timber sale contract.
(Pub. L. 94-154, 89 Stat. 823 (16 U.S.C. 535)
[42 FR 63777, Dec. 20, 1977. Redesignated at 49 FR 2761, Jan. 23, 1984]
[[Page 121]]
Sec. 223.46 Adjustment of contract termination date.
Timber sale contracts may provide for adjustment of the termination
date to provide additional time to compensate for delays in road
construction and timber removal due to those causes beyond the
purchaser's control, which may include but are not limited to acts of
God, acts of the public enemy, acts of the Government, labor disputes,
fires, insurrections or floods.
Sec. 223.47 Date of completion of permanent road construction.
(a) The date of completion of permanent road construction
obligations as set forth in the Notice of Sale shall be incorporated
into the timber sale contract.
(b) This date is applicable to construction by both the Forest
Service and the timber purchaser.
(c) The date is not applicable to roads not needed by the purchaser
for timber removal.
(d) The date for completion may be revised, if additional time is
needed, under guidelines provided by the Chief, Forest Service,
including but not limited to (1) default of contractors or (2) design
changes, physical changes, or catastrophic damages which necessitate
modification of specified road construction work.
(e) If Forest Service failure to perform results in delay in road
completion, the termination date shall be adjusted in accordance with
the contract term adjustment provisions of the timber sale contract. If
there is substantial delay in performance by the Forest Service, the
contract shall provide that rates of payment may be redetermined, at the
request of the purchaser, in accordance with guidelines established by
the Chief, Forest Service.
(f) If the purchaser retains responsibility for road construction,
the date of completion for permanent roads may be modified to conform to
the approved plan of operation.
Sec. 223.48 Restrictions on export and substitution of unprocessed timber.
(a) Contracts for the sale of unprocessed timber from National
Forest System lands located west of the 100th meridian in the contiguous
48 States and Alaska, awarded before August 20, 1990, shall include
provisions implementing the Secretary's timber export and substitution
regulations at subpart D of this part in effect prior to that data. Such
contracts shall also require purchasers to:
(1) Submit annually, until all unprocessed timber is accounted for,
a certified report on the disposition of any unprocessed timber
harvested from the sale including a description of unprocessed timber
which is sold, exchanged or otherwise disposed of to another person and
a description of the relationship with the other person;
(2) Submit annually, until all unprocessed timber from the sale is
accounted for, a certified report on the sale of any unprocessed timber
from private lands in the tributary area which is exported or sold for
export; and
(3) Maintain records of all such transactions involving unprocessed
timber and to make such records available for inspection and
verification by the Forest Service for up to three (3) years after the
sale is terminated.
(b) Contracts for the sale of unprocessed timber from National
Forest System lands located west of the 100th meridian in the contiguous
48 States, awarded on or after August 20, 1990, shall include provisions
implementing the requirements of the Forest Resources Conservation and
Shortage Relief Act of 1990 (16 U.S.C. 620 et seq.).
(c) The reporting and recordkeeping procedures in this section
constitute information collection requirements as defined in 5 CFR part
1320. These requirements have been approved by the Office of Management
and Budget and assigned clearance number 0596-0021.
[56 FR 65842, Dec. 19, 1991]
Sec. 223.49 Downpayments.
(a) For the purposes of this section, the terms listed in this
paragraph shall have the following meaning:
(1) Total bid value is the sum of the products obtained by
multiplying the rate the purchaser bid for each species by the estimated
volume listed in the contract.
(2) Bid premium is the amount in excess of the advertised value that
a purchaser bids for timber offered.
[[Page 122]]
(3) Lump sum timber sales are premeasured sales where the entire
value of the sale is paid in one payment at time of release for cutting.
(4) Affiliate. Concerns or individuals are affiliates if directly or
indirectly, either one controls or has the power to control the other,
or a third party controls or has the power to control both. In
determining whether or not affiliation exists, the Forest Service shall
consider all appropriate factors, including, but not limited to, common
ownership, common management, and contractual relationships.
(b) Timber sale contracts shall include provisions that require
purchasers to make a downpayment in cash at the time a timber sale
contract is executed, except that a downpayment is not required for
stewardship contracts unless the contracting officer determines that a
downpayment is needed to ensure the government's financial security.
(c) The minimum downpayment shall be equivalent to 10 percent of the
total advertised value of each sale, plus 20 percent of the bid premium,
except in those geographic areas where the Chief of the Forest Service
determines that it is necessary to increase the amount of the
downpayment in order to deter speculation. The amount of the downpayment
shall be redetermined when contract rates for timber are redetermined
under the terms of the contract for environmental modification;
catastrophic damage; market change; or an emergency rate
redetermination. For the purpose of recalculating the minimum
downpayment, total advertised value shall be replaced with total
redetermined value.
(d) A purchaser cannot apply the amount deposited as a downpayment
to cover other obligations due on that sale until:
(1) On scaled sales, stumpage value representing 25 percent of the
total bid value of the sale has been charged and paid for, or the
estimated value of unscaled timber is equal to or less than the amount
of the downpayment; or
(2) On tree measurement sales, stumpage value representing 25
percent of the total bid value of the sale is shown on the timber sale
statement of account to have been cut, removed, and paid for, or the
estimated value of timber remaining to be cut, removed and paid for as
shown on the timber sale statement of account is equal to or less than
the amount of the downpayment. On lump sum sales, the downpayment amount
may be applied to payment for release of the single payment unit.
(e) A purchaser or any affiliate of that purchaser awarded a Forest
Service timber sale contract must meet the additional downpayment
requirements of paragraph (g) of this section under the following
circumstances:
(1) The purchaser or its affiliate after September 29, 1988, has
failed to perform in accordance with the terms of a Forest Service or
Bureau of Land Management timber sale contract and is notified by a
Contracting Officer that a contract has expired uncompleted or is
terminated for cause; and
(2) The estimated value of the unscaled timber on scaled sales, or
the estimated value of the timber outstanding on tree measurement sales,
included in those terminated or expired contracts exceeds $100,000; and
(3) Unpaid damages claimed by the Government remain outstanding
prior to award of the new sale at issue and corrective action has not
been taken to avoid future deficient performance.
(f) A subsequent final determination by the Contracting Officer or
by a court of competent jurisdiction that a contract was improperly
classified under the criteria in paragraph (e) of this section will
result in the refund or credit of any unobligated portion of the amount
of downpayment exceeding that required by paragraphs (c) and (d) of this
section and the limitations of paragraph (h) of this section on
application of downpayment shall no longer apply.
(g) Notwithstanding the provisions of paragraphs (c) and (d) of this
section, a purchaser meeting the criteria of paragraph (e) of this
section must make a minimum downpayment equal to 20 percent of the total
advertised value of that sale, plus 40 percent of the total bid premium.
This higher downpayment requirement applies throughout the National
Forest System, except in those areas where the Chief of the Forest
Service determines, before advertisement of the sale, that another
[[Page 123]]
downpayment rate is necessary to achieve the management objectives of
the National Forest System. The amount of the downpayment shall be
redetermined in accordance with this paragraph when contract rates for
timber are redetermined under the terms of the contract for
environmental modification; catastrophic damage; market change; or an
emergency rate redetermination. For the purpose of redetermining the
downpayment, total advertised value shall be replaced with total
redetermined value.
(h) A purchaser subject to the additional downpayment requirements
of paragraph (g) of this section cannot apply the amount deposited as a
downpayment to other uses until:
(1) On scaled sales, the estimated value of the unscaled timber is
equal to or less than the amount of the downpayment; or
(2) On tree measurement sales, the estimated value remaining to be
cut and removed as shown on the timber sale statement of account is
equal to or less than the amount of the downpayment.
(i) For the purpose of releasing funds deposited as downpayment by a
purchaser subject to paragraph (f) of this section, the Forest Service
shall compute the estimated value of timber as follows:
(1) On scaled sales, the estimated value of the unscaled timber is
the sum of the products obtained by multiplying the current contract
rate for each species by the difference between the advertised volume
and the volume that has been scaled of that species.
(2) On tree measurement sales, the estimated value of the timber
outstanding (i.e., not shown on the timber sale statement of account as
cut and removed) is the sum of the products obtained by multiplying the
current contract rate for each species by the difference between the
advertised volume and the volume that has been shown on the timber sale
statement to have been cut and removed of the species. The current
contract rate for each species is that specified in the Forest Service
timber sale contract.
(j) In order to deter speculation, the Chief of the Forest Service
may increase the period for retention of the downpayment and/or preclude
temporary reduction of the downpayment under paragraphs (k)(2) and
(k)(3) of this section for future contracts subject to such criteria as
the Chief may adopt after giving the public notice and opportunity to
comment.
(k) The Forest Service may temporarily reduce the downpayment when a
purchaser's scheduled operations are delayed, interrupted, or extended
for 30 or more consecutive days for any of the following reasons:
(1) Forest Service requests or orders purchaser to delay or
interrupt operations for reasons other than breach;
(2) A contract term addition pursuant to purchaser shifting
operations to a sale designated by the Forest Service as in urgent need
of harvesting; or
(3) An extension of the contract term authorized upon a
determination of substantial overriding public interest, including a
market-related contract term addition, or an urgent removal contract
term extension under 36 CFR 223.53.
(l) When purchaser is not cutting or removing timber under contract
during a qualifying period of delay, interruption, or extension listed
in paragraph (k) of this section, the downpayment may be reduced to
$1000 or 2 percent of the downpayment amount stated in the contract,
whichever is greater. The purchaser must restore the downpayment to the
full amount stated in the contract within 15 days from receipt of the
bill for collection and written notice from the contracting officer that
the basis for temporarily reducing the downpayment no longer exists.
Purchaser shall not cut or remove timber on a contract where the
downpayment has been temporarily reduced until the downpayment amount
stated in the contract is fully restored.
[74 FR 40743, Aug. 13, 2009]
Sec. 223.50 Periodic payments.
(a) For the purposes of this section, the following terms have the
meaning given:
(1) Total contract value is the product of the estimated volume of
the sale multiplied by the rates bid by the purchaser. Total contract
value excludes required deposits and is determined at bid date.
[[Page 124]]
(2) Current contract value is the sum of the products of the current
contract rates and, in a scaled sale, estimated remaining unscaled
volume or, in a tree measurement sale, the estimated remaining
quantities by species of included timber meeting utilization standards.
(3) Normal operating season is the period so specified in a timber
sale contract.
(4) Periodic payment(s) is/are amount(s) specified in a timber sale
contract that a purchaser must pay by the periodic payment determination
date(s) unless reduced by amounts paid as stumpage for volume removed.
(5) A periodic payment determination date is a date specified in a
timber sale contract upon which the Forest Service will compare the
payments made by the timber sale purchaser for timber charges
(stumpage), exclusive of required deposits, with the periodic payment
amount required as of that date in the contract.
(b) Except for lump sum sales, each timber sale contract of more
than one full normal operating season shall provide for periodic
payments. The number of periodic payments required will be dependent
upon the number of normal operating seasons within the contract, but
shall not exceed two such payments during the course of the contract.
Periodic payments must be made by the periodic payment determination
date, except that the amount of the periodic payment shall be reduced to
the extent that timber has been removed and paid for by the periodic
payment determination date. Should the payment fall due on a date other
than normal billing dates, the contract shall provide that the payment
date will be extended to coincide with the next timber sale statement of
account billing date.
(1) At a minimum, each such contract shall require an initial
periodic payment at the midpoint between the specified road completion
date and the termination date. If there is no road construction
requirement, payment shall be due at the midpoint between award date and
the termination date.
(2) Contracts exceeding 2 full operating seasons shall require an
additional periodic payment to be due no later than the midpoint of the
last normal operating season or 12 months from the initial periodic
payment whichever date is first.
(3) Notwithstanding this paragraph (b), periodic payments are not
required for stewardship contracts unless the contracting officer
determines that periodic payments are needed to ensure the Government's
financial security.
(c) Each timber sale contract shall require the initial periodic
payment to equal 35 percent of the total contract value or 50 percent of
the bid premium, whichever is greater. The amount of this periodic
payment will be reduced if the payment would result in the purchaser's
credit balance for timber charges exceeding the current contract value.
(d) Where an additional periodic payment is required by the timber
sale contract, this payment will equal 75 percent of the total contract
value. The amount of this periodic payment will be reduced if the
payment would result in the purchaser's credit balance for timber
charges exceeding the current contract value.
(e) Dates for determining future periodic payments shall be adjusted
as follows:
(1) When contract term adjustments are granted under Sec. 223.46,
(2) When market-related contract term additions are granted under
Sec. 223.52,
(3) When urgent removal extensions are granted under Sec. 223.53,
or
(4) When extensions in the substantial overriding public interest
are granted under Sec. 223.115(b). Periodic payment determination dates
shall not be adjusted when a contract term extension is granted under
the general authority of Sec. 223.115(a).
(f) The amount of any periodic payment(s) not yet reached shall be
revised when rates are redetermined under the contract. The revised
periodic payment amounts shall be based on a recalculated total contract
value using the same procedures described in (c) and (d) of this
section. The recalculated total contract value is the current contract
value following the rate redetermination plus:
[[Page 125]]
(1) The total value of timber scaled prior to establishing
redetermined rates in a scaled sale; or
(2) The total value of timber shown on the timber sale statement of
account as having been cut, removed and paid for.
[56 FR 36104, July 31, 1991, as amended at 56 FR 55822, Oct. 30, 1991;
67 FR 70169, Nov. 21, 2002; 74 FR 40744, Aug. 13, 2009]
Sec. 223.51 Bid monitoring.
Each Regional Forester shall monitor bidding patterns on timber
sales to determine if speculative bidding is occurring or if Purchasers
are bidding in such a way that they would be unable to perform their
obligations under the timber sale contract. A Regional Forester shall
propose to the Chief changes in service wide timber sale procedures, as
they appear necessary, to discourage speculative bidding.
[50 FR 41500, Oct. 11, 1985]
Sec. 223.52 Market-related contract term additions.
(a) Contract provision. (1) Except as provided in paragraph (a)(3)
of this section, each timber sale contract exceeding 1 year in length
shall contain a provision for the addition of time to the contract term,
under the following conditions:
(i) The Chief of the Forest Service has determined that adverse wood
products market conditions have resulted in a drastic reduction in wood
product prices applicable to the sale; and
(ii) The purchaser makes a written request for additional time to
perform the contract.
(2) The contract term addition provision of the contract must
specify the index to be applied to each sale. The Forest Supervisor
shall determine and select from paragraph (b) of this section, the index
to be used for each sale based on the species and product
characteristics, by volume, being harvested on the sale. The index
specified shall represent more than one-half of the advertised volume.
If none of the indices in paragraph (b) of this section represent more
than one-half of the advertised volume, the index specified shall
represent the species product combination representing the highest
percentage of volume for which there is an index. When the Forest
Supervisor determines that the species and potential product
characteristics are such that more than one index could be used, the
prospectus will state that the Contracting Officer may, upon the
purchaser's written request, select an alternative index from paragraph
(b) of this section, and may modify the contract by mutual agreement, at
time of contract execution, to include an alternative index that the
Contracting Officer has determined represents the highest percentage of
products the purchaser intends to produce or have produced from the
sale. Purchasers seeking a change of index at time of award must
substantiate the need for an alternative index by providing the
Contracting Officer with a written request that includes a list of
products by volume the purchaser intends to produce or expects will be
produced from the timber on that sale. In the event a mutual agreement
to modify a contract to include an alternative index is not reached at
time of contract execution, the index specified in the sample contract
shall apply.
(3) A market-related contract term addition provision shall not be
included in contracts where the primary management objective requires
prompt removal of the timber, such as, timber is subject to rapid
deterioration, timber is in a wildland-urban interface area, or hazard
trees adjacent to developed sites.
(b) Determination of drastic wood product price reductions. (1) The
Forest Service shall monitor and use Producer Price Indices, as prepared
by the Department of Labor, Bureau of Labor Statistics (BLS), adjusted
to a constant dollar base, to determine if market-related contract term
additions are warranted.
(i) The Forest Service shall monitor and use only the following
indices:
------------------------------------------------------------------------
BLS producer price index Index series Index code
------------------------------------------------------------------------
Hardwood Lumber..................... Commodity............ 0812
Softwood Lumber..................... Commodity............ 0811
Wood Chips.......................... Industry............. 3211135
------------------------------------------------------------------------
(ii) Preliminary index values will be revised when final index
values become
[[Page 126]]
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:
(i) With a required completion date;
(ii) Where the Forest Service determines that the timber is in need
of urgent removal;
(iii) Where timber deterioration or resource damage may result from
delay; or
(iv) Where included timber is designated by diameter and delay may
change the treatment as a result of trees growing into or out of the
specified diameter range(s).
(2) For each additional consecutive quarter in which a contract
qualifies for market-related contract term addition, the Forest Service
will, upon the purchaser's written request, add an additional 3 months
during the normal operating season to the contract, except that no
single 3-month addition shall extend the term of a contract by more than
1 year.
(3) No more than 3 years shall be added to a contract's term by
market-related contract term addition unless the following conditions
are met:
(i) The sale was awarded after December 31, 2006;
(ii) A drastic reduction in wood product prices occurred in at least
ten of twelve consecutive quarters during the contract term, but not
including the quarter in which the contract was awarded; and
(4) For each qualifying quarter meeting the criteria in paragraph
(c)(3)(ii) of this section, the Forest Service will, upon the
purchaser's written request, add an additional 3 months during the
normal operating season to the contract, except no single 3-month
addition shall extend the term of a contract by more than 1 year.
(5) In no event shall a revised contract term exceed 10 years as a
result of market-related contract term addition.
(d) Recalculation of periodic payments. Where a contract is
lengthened as a result of market conditions, any subsequent periodic
payment dates shall be
[[Page 127]]
delayed 1 month for each month added to the contract's term.
[63 FR 24114, May 1, 1998, as amended at 70 FR 37269, June 29, 2005; 71
FR 3411, Jan. 23, 2006; 73 FR 65551, Nov. 4, 2008]
Sec. 223.53 Urgent removal contract extensions.
(a) Finding. There is substantial, overriding public interest in
extending National Forest System timber sale contracts for undamaged
(green) timber not requiring expeditious removal in order to facilitate
the rapid harvest of catastrophically damaged timber requiring
expeditious removal on private or other non-National Forest System
lands. Such an extension may be granted when a specific catastrophic
event beyond the control of the landowner occurs on non-National Forest
System lands that poses a threat to general forest health, public
safety, and property. Catastrophic events include, but are not limited
to, severe wildfire, wind, floods, insects and disease infestation, and
drought.
(b) Regional Forester determination. If the Regional Forester
determines that adequate cause for urgent removal extensions exists,
Contracting Officers may extend National Forest System timber sale
contracts, up to a maximum of 1 year, for the estimated amount of time
required to harvest and process the damaged timber on non-National
Forest System lands. Contracting Officers may grant urgent removal
extensions only when the Regional Forester verifies in writing that:
(1) A specific catastrophe occurred for which urgent removal
extensions should be granted;
(2) The manufacturing facilities or logging equipment capacity
available to purchasers are insufficient to provide for both the rapid
harvest of damaged non-National Forest System timber in need of
expeditious removal and the continued harvest of undamaged (green)
timber under contract with the Forest Service; and
(3) Failure to harvest the damaged non-National Forest System timber
promptly could result in the following:
(i) Pose a threat to public safety,
(ii) Create a threat of an insect or disease epidemic to National
Forest System or other lands or resources, or
(iii) Significant private or other public resource loss.
(c) Purchaser request. To obtain an urgent removal extension on a
National Forest System timber sale contract, a purchaser must make a
written request to the Contracting Officer, which includes the
following:
(1) An explanation of why the harvest of undamaged (green) National
Forest System timber within the term of the existing National Forest
System contract(s) will prevent or otherwise impede the removal of
damaged non-National Forest System timber in need of expeditious
removal; and
(2) Documentation that the manufacturing facilities or logging
equipment capacity available to a purchaser would be insufficient to
provide for both the rapid salvage of damaged non-National Forest System
timber in need of expeditious removal and continued harvest of undamaged
(green) National Forest System timber under contract with the Forest
Service.
(d) Contracting Officer determination. To grant an urgent removal
extension, the timber sale Contracting Officer must verify the
following:
(1) That it is likely that the undamaged (green) timber from
National Forest System land would be delivered to the same manufacturing
facilities as are needed to process the damaged non-National Forest
System timber or the National Forest System timber sale contract would
require the use of the same logging equipment as is needed to remove the
damaged non-National Forest System timber from the area affected by the
catastrophe;
(2) That extension of the National Forest System contract will not
be injurious to the United States and will protect, to the extent
possible, the health of the National Forest System lands, including:
(i) That urgent removal extension does not adversely affect other
resource management objectives to be implemented by the National Forest
System timber sale being extended; and
(ii) That the National Forest System timber sale contract to be
extended is not a sale containing damaged, dead, or dying timber subject
to rapid deterioration.
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(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 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
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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.