[Federal Register Volume 72, Number 203 (Monday, October 22, 2007)]
[Proposed Rules]
[Pages 59496-59506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20658]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 223

RIN 0596-AB81


Sale and Disposal of National Forest System Timber; Special 
Forest Products and Forest Botanical Products

AGENCY: Forest Service, USDA.

ACTION: Proposed rule; request for comment.

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

SUMMARY: The Department is issuing this proposed rule governing the 
disposal of special forest products from National Forest System lands. 
Special forest products include, but are not limited to, wildflowers, 
mushrooms, moss, nuts, seeds, tree sap, and Christmas trees. This 
proposed rule also formally establishes a pilot program to charge and 
collect fees for the harvest and sale of forest botanical products on 
National Forest System lands. This proposed rule is intended to 
facilitate sustainable harvest of special forest products and forest 
botanical products. Public comment is invited and will be considered in 
the development of the final rule.

DATES: Comments must be received in writing by December 21, 2007.

ADDRESSES: Send written comments to Director, Forest Management Staff, 
USDA Forest Service, Mail Stop 1105, 1400 Independence Avenue, SW., 
Washington, DC 20250-1105, or by e-mail to [email protected]. 
Comments also may be submitted via the world wide web/Internet at 
http://www.regulations.gov. All comments, including names and addresses 
when provided, are placed in the record and are available for public 
inspection and copying at the Office of the Director, Forest Management 
Staff Third Floor NW., Yates Building, 201 14th Street, SW., 
Washington, DC. Persons wishing to inspect the comments are encouraged 
to call ahead (202) 205-1766 to facilitate entrance into the building.

FOR FURTHER INFORMATION CONTACT: Richard Fitzgerald, Forest Service, 
Forest Management Staff, (202) 205-1753.

SUPPLEMENTARY INFORMATION:

I. Introduction

    This proposed rule adds Subparts G and H to 36 CFR part 223. 
Subpart G governs the commercial harvest and sale of special forest 
products and also establishes regulations for limited free use of these 
products. Subpart H, in turn, implements a pilot program for the 
harvest and sale of forest botanical products, as authorized by the 
Department of the Interior and Related Agencies Appropriations Act of 
2000, (Pub. L. 106-113, Div. B, sec. 1000(a)(3), 113 Stat. 135 
(enacting into law sec. 339 of Title III of H.R. 3423)), as amended in 
2004 by section 335 of Public Law 108-108 (``the pilot program law''). 
Subpart H also contains regulations governing free, personal use of 
forest botanical products, as authorized under the pilot program law.

II. Background

A. Special Forest Products: Commercial Harvest and Sale and Free Use

1. Commercial Harvest and Sale
    The Forest Service presently sells special forest products from 
National Forest System lands under the authorities contained in the 
Multiple-Use Sustained-Yield Act of 1960, as amended (16 U.S.C. 528-
531); the National Forest Management Act of 1976, as amended (16 U.S.C. 
472a et seq.), the Forest and Rangeland Renewable Resources Planning 
Act of 1974, as amended (16 U.S.C. 1600-1614); and the timber sale 
regulations at 36 CFR part 223. Historically, timber-related products, 
such as firewood, posts, poles, and Christmas trees, have comprised 
most of the sales. However, the Forest Service also sells smaller 
amounts of non-timber special forest products, such as boughs, 
mushrooms, berries, and floral greeneries. On an annual basis, the 
total revenue from the sale of special forest products sold from 
National Forest System lands is approximately $3 million.
    Sales of special forest products are relatively small-scale in 
comparison to timber sales. Purchasers are frequently individuals or 
small business, and most special forest product sales do not exceed 
$10,000 in value. Generally, these smaller sales are not sold through 
competitive bidding; rather, a prospective purchaser asks to harvest 
certain forest products, and either enters into a simplified contract 
with the Forest Service, or buys a permit that allows the purchaser to 
conduct operations. Consistent with existing regulations, the Forest 
Service follows competitive bidding procedures for sales of special 
forest products valued at $10,000, or more. The Forest Service 
presently uses the following standard documents for smaller sales: 
Permit FS-2400-1, Forest Products Removal Permit; Contract Forest 
Products FS-2400-3P for pre-measured products, and Contract FS-2400-4, 
Forest Products Contract. These documents contain

[[Page 59497]]

standard conditions and allow the parties to add provisions, as may be 
necessary given the conditions of the sale. For larger sales of special 
forest products, the Forest Service uses the standard timber sale 
contract, Contract FS-2400-6. The responsible Forest Officer selects 
the appropriate document in light of the value of the sale and other 
circumstances. The Forest Service anticipates that it will continue to 
use these standard documents after issuance of this proposed rule.
    Over the past 10 years, public demand for both timber and non-
timber special forest products has increased. Given this growing demand 
and the related need to ensure resource sustainability, the Forest 
Service has determined that it is impractical to continue to rely on 
the timber sale regulations and corresponding sections of the Forest 
Service Manual (FSM) and Handbook (FSH) to facilitate the sale of 
special forest products. Thus, the Forest Service has developed 
regulations specifically applicable to these products. The Forest 
Service is issuing this proposed rule to establish a new subpart G to 
36 CFR part 223 to address fees, bidding, sustainability, and other 
issues associated with the commercial harvest and sale of special 
forest products. This framework, along with direction in the Forest 
Service Handbook 2409.18, Chapter 80 will govern commercial disposal of 
special forest products.
2. Free Use of Special Forest Products
    This proposed rule also contains measures allowing for free use of 
special forest products. Historically, the agency has granted limited 
free use of these products to individuals and to members of federally-
recognized Indian tribes holding reserved treaty gathering rights. The 
regulations will ensure that responsible Forest Officers administer 
free use of forest products uniformly across National Forest System 
lands and will provide greater transparency to the public. The Forest 
Service relies upon its broad multi-use mandate under the Multiple-Use 
Sustained-Yield Act of 1960, as amended, as authority for allowing free 
use of special forest products.

B. Forest Botanical Products: Commercial Harvest and Sale and Personal 
Use

1. Commercial Harvest and Sale
    In recent years, bio-prospecting activities on National Forest 
System lands have increased. Bio-prospecting generally refers to 
gathering of natural products that have innate nutritional or medicinal 
properties for commercial development and sale. Historically, the 
Forest Service has addressed bio-prospecting activities under the same 
authority and regulations that it has applied to special forest 
products. However, in the pilot program law, Congress directed the 
Secretary to initiate a pilot program for charging and collecting fees 
for the harvest and sale of forest botanical products--such as mosses, 
fungi, bryophytes, roots, bulbs, berries, seeds, and wildflowers--which 
are often the focus of bio-prospecting activities. Accordingly, the 
Forest Service is establishing in this proposed rule a new subpart H to 
36 CFR part 223 to formally govern the pilot program. For the duration 
of the program, these regulations will apply to the sale of this subset 
of special forest products.
    The pilot program law provides a mechanism for funding the 
environmental analyses and administrative tasks necessary for its 
implementation. Generally, the law requires the agency to charge and 
collect a fee covering at least a portion of the fair market value of 
the products and a portion of the costs incurred by the agency in 
administering the program. The law specifies that retained funds shall 
be available for expenditure without further appropriation for 
activities associated with the program, through September 30, 2010.
    Subpart H of this proposed rule will terminate on September 30, 
2010, unless Congress extends the pilot program, or makes it permanent.
2. Personal Use of Forest Botanical Products
    Section (e) of the pilot program law directs the Forest Service to 
permit limited, free use of forest botanical products. It mandates that 
the Forest Service establish a ``personal use harvest level'' for each 
product and directs that a person's harvest of a product below that 
level shall be exempt from otherwise applicable fees. Additionally, the 
law authorizes the Secretary to waive fees ``pursuant to such 
regulations as the Secretary may prescribe.'' For the duration of the 
pilot program, free use of forest botanical products shall be conducted 
under this mandate, and under additional waivers, as established by the 
Secretary.

III. Section-by-Section Analysis of the Proposed Rule

A. Subpart G--Special Forest Products

    Section 223.215--Applicability. This section establishes that 
subpart G of part 223 governs the disposal of special forest products 
including both commercial operations and free use. However, for the 
duration of the pilot program covering forest botanical products, the 
disposal of this subset of special forest products shall also be 
subject to the requirements set forth in subpart H, which implements 
that program. Upon termination of the pilot program, all special forest 
products, including forest botanical products, shall be disposed of 
pursuant to subpart G.
    Section 223.216--Definitions. This section sets out the definition 
of special forest products as used in this subpart and provides common 
examples of such products. The definition also lists other products 
that do not fall under the definition.
    Section 223.217--Authority to dispose of special forest products. 
This section sets out the Forest Service's statutory authorities for 
the disposal of special forest products on National Forest System 
lands. For commercial harvest and sale, the agency relies upon three 
sources of authority: The Multiple-Use Sustained-Yield Act of 1960, as 
amended (16 U.S.C. 528-531); the National Forest Management Act of 
1976, as amended (16 U.S.C. 472a et seq.), and the Forest and Rangeland 
Renewable Resources Planning Act of 1974, as amended (16 U.S.C. 1600-
1614). For example, the National Forest Management Act, 16 U.S.C. 472a, 
authorizes the Secretary to sell ``at not less than appraised value, 
trees, portions of trees, or forest products on National Forest Systems 
lands.'' In addition, the Multiple-Use Sustained-Yield Act of 1960, 16 
U.S.C. 529, authorizes and directs the Secretary of Agriculture to 
``develop and administer the renewable surface resources of the 
national forests for multiple use and sustained yield of the several 
products and services obtained therefrom.''
    The Multiple-Use Sustained-Yield Act of 1960, as amended, provides 
authority for the agency to permit limited free use of special forest 
products. Under the Act, the Forest Service has expansive authority to 
manage National Forest System lands ``in the combination that will best 
meet the needs of the American people'' (16 U.S.C. 531). The Act 
identifies ``outdoor recreation,'' as one of several Congressional 
objectives that must inform the agency's management (16 U.S.C. 528). 
Thus, while the Forest Service must consider the ``relative values of 
the various resources,'' its multiple-use management is ``not 
necessarily the combination of uses that will give the greatest dollar 
return or the greatest unit output'' (16 U.S.C. 531). Limited free use 
of special forest products, as a

[[Page 59498]]

recreational activity, is fully consistent with the objectives and 
obligations established under the Multiple-Use Sustained-Yield Act of 
1960.
    Section 223.218--Consistency with plans, environmental standards, 
and other management requirements. This section requires the disposal 
of special forest products on National Forest System lands to be 
consistent with applicable land management plans. This section also 
requires contracts, permits, or authorizing instruments to include 
provisions, as appropriate, addressing among other things: fire 
protection and suppression; protection of natural resources; 
regeneration of harvested products; and, minimization of soil erosion.
    Section 223.219--Sustainable harvest of special forest products. 
This section generally requires the Forest Service to determine the 
sustainable harvest level for each naturally occurring special forest 
product prior to offering that product for sale or free use. (The 
requirement would not include ``man-made'' products such as mine props 
and rails.) The sustainable harvest level for a naturally occurring 
special forest product is the aggregate quantity of the product that 
may be disposed of from a National Forest annually in perpetuity on a 
sustained yield basis. Special forest products shall be disposed of in 
a manner that does not exceed the sustainable harvest level for the 
product. In the absence of a determined sustainable harvest level for a 
product, the Forest Service may nevertheless sell, or offer the product 
for free use under measures designed to protect its renewable resource 
values. These measures may include consideration of past harvest levels 
and regular monitoring of the product, the site, and the harvest 
operations. This section prohibits the Forest Service from issuing or 
approving contracts, permits, or instruments for disposal of special 
forest products that are listed as endangered or threatened, or that 
have been proposed or listed under The Endangered Species Act. This 
restriction would not apply when the disposal is authorized by the Fish 
and Wildlife Service for scientific or other purposes related to 
sustainability of species. Under these rare situations a permit from 
the Forest Service is also required. This section also identifies when 
the Forest Service may issue permits authorizing disposal of special 
forest products listed on the Convention on International Trade in 
Endangered Species (CITES), or included on the Regional Forester's 
sensitive plant list, or list of species of concern. Finally, this 
section provides for monitoring and revision of harvest levels.
    Section 223.220--Quantity determination. This section describes the 
acceptable methods for determining the quantity of special forest 
products. The quantity may be determined by scaling, measuring, 
weighing, counting, or other reliable means.
    Section 223.221--Establishing minimum rates. This section provides 
that the Chief of the Forest Service shall issue agency directives in 
Forest Service Handbook 2409.18, Chapter 80, containing approved 
methods for setting minimum rates for sale of special forest products.
    Section 223.222--Appraisal. This section specifies that the Chief 
of the Forest Service shall issue agency directives setting forth 
methods for appraising special forest products to determine their fair 
market value. The directives shall be contained at Forest Service 
Handbook 2409.18, Chapter 80. It also provides that special forest 
products must be sold at minimum rates or appraised value, whichever is 
higher.
    Section 223.223--Advance payment. This section establishes the 
requirement for advance payment or payment guarantee for special forest 
products. It also directs the Forest Service to refund advance payments 
found to be in excess of that needed by the United States, subject to 
obligations established under the Debt Collection Improvement Act.
    Section 223.224--Performance bonds and security fees. This section 
authorizes the Forest Service to require a purchaser to post a 
performance bond or security fee in conjunction with special forest 
products sale contracts, permits, or other instruments.
    Section 223.225--Contract, permit, and instrument term. In 
accordance with section 14(c) of the National Forest Management Act (16 
U.S.C. 472a(c)), this section establishes that the term of any 
contract, permit, or other instrument authorizing the sale of special 
forest products may not exceed 10 years, unless the Chief of the Forest 
Service finds that a longer term is consistent with the Multiple-Use 
Sustained-Yield Act of 1960, as amended (16 U.S.C. 528-531). Any such 
finding by the Chief shall be made in writing.
    Section 223.226--Adjustment of term of contract, permit, or other 
instrument for force majeure delay. This section provides that each 
contract, permit, or other instrument shall contain a provision 
allowing the Forest Service to extend the term in the event that 
circumstances beyond the purchaser's reasonable control delay 
performance. Such circumstances may include, but are not limited to 
acts of God, acts of public enemy, acts of Government, labor disputes, 
fires, insurrections, or floods. Before granting an adjustment, the 
approving officer must find that the purchaser has diligently performed 
in accordance with the contract, permit or other instrument, or that 
the substantial public interest justifies the extension.
    Section 223.227--Sale advertisement. This section generally 
requires the Forest Service to advertise for at least 30 days any sale 
of special forest products which has an appraised value of $10,000, or 
more. For any sale with an appraised value under $10,000, the Forest 
Service may offer the sale without advertisement. Regardless of the 
value of the sale, the agency may sell special forest products without 
advertisement, or in its discretion, advertise for less than 30 days if 
(1) deterioration of the product threatens its value; (2) if the 
products were previously advertised for competitive bidding but were 
not sold because of an absence of satisfactory bids; or, (3) if the 
products remain from expired, cancelled, or abandoned contracts, 
permits, or other instruments. Under this section, if a potential 
purchaser approached the Forest Service and proposed to purchase 
special forest products valued at less than $10,000, then the Forest 
Service could proceed with the sale without advertising if there is 
absence of competitive interest.
    Section 223.228--Contents of advertisement. This section sets forth 
the required contents of advertisements for special forest products 
sales. It requires the agency to provide information about the location 
and the estimated quantities of special forest products offered for 
sale, the time and place at which sealed bids will be opened in public, 
a provision asserting the agency's right to reject any and all bids, 
the place where complete information on the offering may be obtained, 
and notice that a prospectus is available to the public and to 
interested potential bidders.
    Section 223.229--Contents of prospectus. This section establishes 
the minimum contents of a prospectus accompanying the sale of special 
forest products. A prospectus is required for all products which are to 
be advertised for sale.
    Section 223.230--Bid restriction on resale of incomplete contracts, 
permits, or other instruments. This section prohibits the Forest 
Service from considering a bid from any person, or affiliate of such 
person, who failed to complete or defaulted the original contract, 
permit, or other instrument covering the products offered for sale.

[[Page 59499]]

The Forest Service may waive this prohibition when doing so would serve 
the public interest.
    Section 223.231--Bidding methods. This section sets forth bidding 
methods and other requirements for the sale of special forest products 
from National Forest System lands. The Forest Service must use either 
sealed bidding, or sealed bidding followed by oral auction. The method 
used must ensure open and fair competition; that the Government 
receives not less than fair market value for the resource; and 
consistency with the National Forest Management Act and other federal 
laws. The section also requires the Chief of the Forest Service, or 
authorized designee, to use sealed bids, or a mix of bidding methods to 
guard against collusive bidding, if there is a reasonable belief that 
anticompetitive or abnormal bidding practices are occurring.
    Section 223.232--Disclosure of relation to other bidders. This 
section authorizes the Forest Service to require any prospective 
purchaser of special forest products to disclose its relationship to 
other potential purchasers or operators.
    Section 223.233--Award to highest bidder. This section requires the 
Forest Service to award an advertised sale of special forest products 
to the highest bidder whose bid conforms to the conditions of the sale, 
as set forth in the prospectus. If the highest bidder cannot meet the 
requirements under which the special forest products were advertised, 
then the Forest Service may offer the sale to the next highest 
conforming bidder at the high bid level, and so on, until the offer is 
either accepted, or refused by all qualified bidders. In the event of a 
tie between two or more conforming high bidders, the Forest Service 
shall make the award based upon the drawing of lots. This section also 
specifies that if the Forest Service does not accept the highest bid, 
then the Forest Service may reject all bids and readvertise the sale.
    Section 223.234--Determination of purchaser responsibility. This 
section requires the Forest Service to make an affirmative 
determination of purchaser responsibility before awarding a contract, 
permit, or other instrument authorizing the sale of special forest 
products. It sets forth the factors that the Forest Service must 
consider in making this finding, including: That the purchaser has 
adequate financial resources to perform the contract or the ability to 
obtain them; that the purchaser is able to perform the contract within 
the contract term, taking into consideration all existing commercial 
and governmental business commitments; and that the purchaser has a 
satisfactory record of integrity and business ethics.
    Section 223.235--Unilateral delay, suspension and modification of 
contracts, permits, or other instruments authorizing the sale of 
special forest products. This section establishes the conditions under 
which the Forest Service may unilaterally delay, suspend or modify a 
contract, permit, or other instrument governing the sale of special 
forest products. Pursuant to this section, the Forest has broad delay, 
suspension, and modification authority, in particular for circumstances 
related to protection of the environment or compliance with federal 
laws. The section provides that in the event of a delay, suspension, or 
modification, the Forest Service shall compensate a purchaser in 
accordance with the provisions of the relevant contract, permit, or 
instrument. In the absence of such provisions, the Forest Service may 
compensate the purchaser in accordance with agency methods and 
procedures in effect at the time of submission of the claim, but not to 
exceed 5 percent of the contract value of the unharvested permit 
products in which case the appropriate Forest Service officer shall 
give due consideration to the cause, duration, and financial impact of 
the delay, suspension, or modification. Compensation shall be awarded 
only if it is justified under applicable provisions or other relevant 
circumstances. If the provisions of the governing contract, permit, or 
instrument do not address the mechanics/procedure at claim submission, 
the rule provides that a purchaser must make a written submission that 
is fully supported by relevant documents. This requirement will assist 
Forest Service personnel in evaluating the merits of a claim and ensure 
that it is handled promptly. Because most harvests of special forest 
products are relatively small scale operations, the Forest Service 
believes that delays, suspensions, or modifications will arise 
infrequently, and that in such cases, the parties will be able to 
amicably resolve issues pertaining to compensation. The section also 
empowers Contracting Officers and/or their superiors to make decisions 
regarding delays, suspensions, or modifications.
    Section 223.236--Unilateral termination. This section establishes 
the conditions under which the Forest Service may unilaterally 
terminate a contract, permit, or other instrument authorizing the sale 
of special forest products. Pursuant to this section, the agency has 
broad authority to terminate an agreement, in particular for 
circumstances related to protection of the environment, compliance with 
federal laws, or the purchaser's fitness and integrity. The section 
provides that in the event of a termination, the Forest Service shall 
compensate a purchaser in accordance with the provisions of the 
relevant contract, permit, or instrument, or, in the absence of such 
provisions, as described in the preceding section on delay, suspension, 
and modification. Again, compensation shall be awarded only if 
justified under applicable provisions or other relevant circumstances. 
However, compensation shall not be available when the Forest Service 
terminates a contract, permit, or instrument for reasons related to the 
purchaser's fitness, integrity, or breach of contract. The section also 
empowers contracting officers and/or their superiors to make decisions 
regarding terminations.
    Section 223.237--Request by Purchaser for delay, suspension, 
modification, or termination. This section allows a purchaser to 
request delay, suspension, modification, or termination of their 
contract, permit or other authorizing instrument. It is designed 
primarily for smaller sales when the request is not covered by an 
agreement provision and when the circumstances warrant a mutually 
agreed upon resolution. In this case, the Forest Service may address 
the request in light of the supporting reasons offered by the purchaser 
and other relevant circumstances. A purchaser's request should have a 
plausible foundation, such as substantially changed market conditions, 
and should be submitted in writing with a detailed explanation of all 
relevant circumstances supporting the request. The Forest Service may 
deny a request, in whole or in part, in its discretion. When governing 
contract, permit, or instrument provisions would apply to the request, 
the Forest Service shall adhere to those provisions. The responsible 
Forest Officer, or his or her superior, shall have authority to respond 
to any request by the purchaser for delay, modification, suspension, or 
termination.
    Section 223.238--Free use authorization to U.S. Army and Navy. This 
section authorizes Regional Foresters, by delegation from the Chief of 
the Forest Service, to approve the harvest of special forest products 
by the U.S. Army and Navy for the purposes identified at 16 U.S.C. 492.
    Section 223.239--Free use by individuals. This section authorizes 
individuals to harvest special forest products from National Forest 
System

[[Page 59500]]

lands without charge. This section is not intended to affect 
subsistence uses implemented under the Alaska National Interest Lands 
Conservation Act, 16 U.S.C. 3101-3126.
    An individual person may obtain authorization to harvest a special 
forest product for personal, non-commercial use in a quantity not to 
exceed the amount allowed by the appropriate Forest Service officer 
pursuant to 36 CFR 223.8. Unless the product is located in an area 
previously designated for free use, a person seeking to harvest a 
special forest product must obtain a ``free use'' permit prior to 
harvesting any such product and must comply with the requirements 
established by the Regional Forester or subordinate officer. A permit 
shall indicate the type, amount, and/or value of the products to be 
harvested and shall contain other related requirements and 
restrictions.
    The permit request may be denied outright to ensure the personal 
safety of the individual, to prevent interference with Forest Service 
and/or commercial operations in the forest, to protect the product as a 
sustainable resource, and to otherwise protect the forest. The issuing 
officer or any superior officer may revoke a permit at any time.
    Section 223.240--Indian tribes and treaty reserved gathering 
rights. This section acknowledges that Indian tribes with reserved 
treaty gathering rights have retained the right to harvest special 
forest products in accordance with the terms of such treaty rights. 
Such harvest by Indian tribes shall not be subject to the application 
and permit requirements pertaining to personal, non-commercial harvest 
by individuals. By this proposed rule, the Forest Service does not 
intend to interfere with Indian tribes' harvest of special forest 
products for traditional, ceremonial, and/or cultural purposes when 
such use is included as a treaty right. Additionally, this section does 
not prevent individual Indians from requesting free use of special 
forest products under section 223.239.
    Section 223.241--Disposal of seized special forest products. This 
section authorizes the Forest Service to dispose of special forest 
products that have been illegally obtained from National Forest System 
lands through commercial sale or by offering such products for free 
use. The Forest Service may not sell such products to the entity that 
took them illegally. Additionally, the Forest Service shall not sell or 
dispose of seized special forest products that are threatened, 
endangered, or candidates for listing under the Endangered Species Act; 
that are listed on the Regional Forester's sensitive plant list or list 
of species of concern or interest; or identified by CITES as being 
prohibited from international sale or trade. Seized special forest 
products that are threatened, endangered, proposed or candidates for 
listing under the Endangered Species Act, that are on the Regional 
Forester's sensitive plant list or list of species of concern, or 
interest, or prohibited from international sale or trade may be donated 
to a recognized scientific institution or university for educational or 
research purposes. In the absence of commercial interest in a seized 
product, the Forest Service may offer the product for free use to 
individuals, to Indian tribes with reserved treaty gathering rights, or 
to other federally-recognized tribes.

B. Subpart H--Forest Botanical Products

    Section 223.275--Establishment of a pilot program. Subpart H to 36 
CFR Part 223 governs the pilot program for the sale and harvest of 
forest botanical products, as required by the Pilot Program Law. This 
subpart also implements the free, personal use mandate contained in the 
pilot program law. Reflecting the limited duration of the program, the 
section indicates that Forest Service may collect fees through fiscal 
year 2009, which ends September 30, 2009.
    Section 223.276--Applicability. This section establishes that the 
pilot program applies to the disposal of forest botanical products from 
National Forest System lands. However, rather than developing and 
implementing redundant procedures applicable solely to disposal of 
forest botanical products for the limited duration of the program, the 
Forest Service shall use the procedures set forth in subpart G. Thus, 
the Forest Service's treatment of forest botanical products will differ 
from its treatment of special forest products only to the extent that 
the pilot program requires segregation of fees and that personal use 
differs from free use practices. Other aspects of the pilot program, 
for example those pertaining to prices, bidding, and sustainability, 
shall be accomplished through forest products regulations and 
associated Forest Service directives.
    Section 223.277--Definitions. This section defines forest botanical 
products and provides examples of products that fall within the 
definition.
    Section 223.278--Collection of fees. This section governs the 
Forest Service's charging and collection of fees for the harvest of 
forest botanical products from National Forest System lands. It directs 
that fees charged for forest botanical products shall cover at least a 
portion of the products' fair market value and a portion of the costs 
associated with administering the program. Thus, when forest botanical 
products are sold through the procedures established under subpart G, 
the selling price shall incorporate the collection requirements of 
section (c)(1) of the Law; a portion of the products' fair market value 
and program administrative costs will be built into the price.
    Despite the Act's requirement that the Forest Service establish 
methods and procedures for the sale of forest botanical products, the 
Forest Service believes that these products may be sold without 
advertisement under the circumstances provided under 36 CFR part 
223.227, which reflects 16 U.S.C. 472a(d).
    Section 223.279--Personal use harvest levels and waiver of fees. 
This section implements the free personal use authority set forth in 
section (e)(1) of the pilot program law. The regulation provides that 
the Forest Service shall not collect fees for a person's harvest of 
forest botanical products at or below established personal use harvest 
levels. Regional Foresters shall establish personal use harvest levels 
by type and quantity, or by value through supplements to the Forest 
Service Directive System. Personal use harvest levels will be 
consistent with sustainable harvest levels. A person seeking free use 
of a forest botanical product subject to personal use harvest levels 
must submit an application to the appropriate Forest Service officer 
and obtain a permit, as provided in section 223.239 of subpart G. For 
the duration of the pilot program, free use of forest botanical 
products shall be limited to personal use harvest levels.
    Additionally, in this section, the Chief of the Forest Service 
employs waiver authority under the section (e)(2) of the Act to waive 
otherwise applicable fees for the harvest of forest botanical products 
by federally recognized Indian tribes. Tribal free use of forest 
botanical products must be non-commercial, and for cultural, ceremonial 
and/or traditional purposes. The regulation also provides that a 
Regional Forester or Forest Supervisor, having proper authorization 
from the Chief of the Forest Service, may waive application of a fee to 
allow harvest of forest botanical products for scientific research or 
for salvage when other management activities will destroy or damage the 
product. The waiver decision must be in writing.
    Section 223.280--Monitoring and revising of harvest levels. This 
section provides that monitoring and revising of harvest levels for 
forest botanical products, as required under the pilot

[[Page 59501]]

program, shall be accomplished pursuant to the regulation at 36 CFR 
part 223.219.
    Section 223.281--Disposition of collected fees. This section 
governs the accounting and expenditure of fees collected under the 
pilot program and follows the requirements set forth in sections (f) 
and (h) of the Act.

IV. Conclusion

    The regulations contained in this proposed rule will allow the 
Forest Service to manage better its program for the disposal of special 
forest products, through commercial harvest and sale and free use, and 
to implement a pilot program for charging and collecting fees for 
harvest of forest botanical products, pursuant to the pilot program 
law.

Regulatory Certifications

Regulatory Impact
    This proposed rule has been reviewed under USDA procedures and 
Executive Order 12866 on Regulatory Planning and Review as amended by 
13422. OMB has determined that this is not a significant rule. This 
proposed rule will not have an annual effect of $100 million or more on 
the economy nor adversely affect productivity, competition, jobs, the 
environment, public health or safety, nor State or local governments. 
This proposed rule will not interfere with an action taken or planned 
by another agency nor raise new legal or policy issues. Finally, this 
action will not alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
of such programs. Accordingly, this proposed rule is not subject to OMB 
review under Executive Order 12866.
Proper Consideration of Small Entities
    This proposed rule has been considered in light of Executive Order 
13272 regarding consideration of small entities and the Small Business 
Regulatory Enforcement Act of 1996 (SBREFA), which amended the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). It has been 
determined that this action will not have a significant economic impact 
on a substantial number of small entities as defined by the Executive 
Order. The proposed rule will have no adverse impact on small business, 
small not-for-profit organizations, or small units of government.
Environmental Impact
    This proposed rule has no direct or indirect effect on the 
environment. Section 31.1b of Forest Service Handbook 1909.15 (57 FR 
43180; September 18, 1992) excludes from documentation in an 
environmental assessment or impact statement rules, regulations, or 
policies to establish Service-wide administrative procedures, program 
processes, or instructions that do not significantly affect the quality 
of the human environment. The Department's assessment is that this 
proposed rule falls within this category of actions, and that no 
extraordinary circumstances exist that would require preparation of an 
environmental assessment or environmental impact statement.
No Takings Implications
    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12360, and it has 
been determined that this action will not pose the risk of a taking of 
private property.
Civil Justice Reform
    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. When the final rule is adopted, (1) all State and 
local laws and regulations that conflict with the final rule or that 
would impede full implementation of this rule will be preempted, (2) no 
retroactive effect will be given to the final rule; and (3), the 
Department will not require the use of administrative proceedings 
before parties could file suit in court challenging its provisions.
Unfunded Mandates
    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), which the President signed into law on March 22, 
1995, the Department has assessed the effects of this proposed rule on 
State, local, and tribal governments and the private sector. This 
action will not compel the expenditure of $100 million or more by any 
State, local, or tribal government or anyone in the private sector. 
Therefore, a statement under section 202 of the Act is not required.
Federalism
    The Department has considered this proposed rule under the 
requirements of Executive Order 13132, Federalism, and concluded that 
this action will not have substantial direct effects on the States, on 
the relationship between the Federal government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. Therefore, the Department has determined that no further 
assessment of federalism implications is necessary at this time.
Consultation and Coordination With Indian Tribal Governments
    Pursuant to Executive Order 13175, Consultation and Coordination 
With Indian Tribal Governments, the Forest Service conducted a 
preliminary assessment of the impact of this proposed rule on Indian 
Tribal Governments and it determined that the rule does have tribal 
implications. Therefore, advance consultation with Tribes was required.
    Consultation in the form of opportunity to review and comment on 
these regulations and accompanying Forest Service Handbook direction 
was provided to all interested Tribes in all Forest Service Regions. 
Regional Foresters and Forest Supervisors determined which Tribes could 
be affected by these regulations and initiated consultations with 
Tribal representatives. A 60-day comment period was established, 
however many Tribes asked for additional time for consultation, which 
was granted. Recommendations from the Tribes have been incorporated, as 
appropriate, into this proposed rule.
    During consultation, it became apparent that the Tribes were 
concerned about their existing statutory authority, or lack thereof, to 
gather special forest products for cultural, ceremonial, and/or 
traditional purposes at no charge. The Tribes believed that current law 
does not meet their needs. In October 1999, the Chief Operations 
Officer of the Forest Service commissioned a National Tribal Relations 
Program Task Force to develop recommendations to improve working 
relationships with the Tribes. The task force report concluded that 
free use opportunities offered by the Forest Service were inconsistent 
with access provided by other government agencies. The report 
recommended development of legislation that more readily enables the 
Forest Service to provide free use of forest products to Tribes. The 
Chief of the Forest Service accepted the recommendation and efforts are 
underway to advance legislation that would empower the Forest Service 
to provide products free of charge to Tribes for cultural, traditional, 
and customary purposes. The proposed legislation has been drafted and 
is currently in legislative clearance. Tribes may also review and 
comment on this proposed rule.
Controlling Paperwork Burdens on the Public
    This proposed rule does not contain any recordkeeping or reporting 
requirements or other information collection requirements as defined in 
5

[[Page 59502]]

CFR part 1320, and therefore, imposes no paperwork burden on the 
public. Accordingly, the review provisions of the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.) and implementing regulations at 5 
CFR part 1320 do not apply.
Energy Effects
    This proposed rule has been reviewed under Executive Order 13211 of 
May 18, 2001, and it has been determined that it has no effect on the 
supply, distribution, or use of energy. This proposed rule is 
administrative in nature and, therefore, the preparation of a statement 
of energy effects is not required.

List of Subjects 36 CFR Part 223

    Administrative practice and procedure, Exports, Forests and forest 
products, Government contracts, National forests, Reporting and 
recordkeeping requirements.

    For the reasons set forth in the preamble, the Forest Service, U.S. 
Department of Agriculture, proposes to amend 36 CFR part 223 as 
follows:

PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER, 
SPECIAL FOREST PRODUCTS, AND FOREST BOTANICAL PRODUCTS

    1. The authority citation for part 223 is amended to read as 
follows:

    Authority: 90 Stat. 2958, 16 U.S.C. 472a; 98 Stat. 2213, 16 
U.S.C. 618, 104 Stat. 714-726, 16 U.S.C. 620-620j, 113 Stat. 1501a, 
16 U.S.C. 528 note; unless otherwise noted.

    2. Revise the part heading as shown above.
    3. Add subparts G and H to read as follows:
Subpart G--Special Forest Products
Sec.
223.215 Applicability.
223.216 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 fees.
223.225 Contract, permit, and instrument term.
223.226 Adjustment of term of contract, permit, or other instrument 
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 Instruments

223.233 Award to highest bidder.
223.234 Determination of purchaser 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 by Purchaser 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 Indian tribes and treaty reserved gathering rights.
223.241 Disposal of seized special forest products.
Subpart H--Forest Botanical Products
223.275 Establishment of a pilot program.
223.276 Applicability.
223.277 Definitions.
223.278 Collection of fees.
223.279 Personal use harvest levels and waiver of fees.
223.280 Monitoring and revising of harvest levels.
223.281 Disposition of collected fees.

Subpart G--Special Forest Products


Sec.  223.215  Applicability.

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


Sec.  223.216  Definitions.

    As used in this subpart, the following term shall mean:
    Special forest products: Products collected from National Forest 
System lands for commercial, personal, tribal, educational, or 
scientific purposes, including without limitation: bark, berries, 
boughs, bryophytes, bulbs, burls, Christmas trees, cones, ferns, 
firewood, forbs, fungi (including mushrooms), grasses, mosses, nuts, 
pine straw, roots, sedges, seeds, transplants, tree sap, wildflowers, 
fence material, mine props, posts and poles, shingle and shake bolts, 
and rails. The term special forest products does not include sawtimber, 
pulpwood, non-sawlog material removed in log form, cull logs, small 
roundwood, house logs, telephone poles, derrick poles, minerals, 
animals, animal parts, insects, worms, rocks, water, and soil.


Sec.  223.217  Authority to dispose of special forest products.

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


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

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


Sec.  223.219  Sustainable harvest of special forest products.

    (a) Sustainable harvest levels. Prior to offering special forest 
product for sale or free use, the responsible officer shall determine 
the sustainable harvest level for the product. The sustainable harvest

[[Page 59503]]

level for a special forest product is the total quantity of the product 
that can be harvested annually in perpetuity on a sustained yield 
basis. Responsible officers shall not authorize harvest of special 
forest products in an amount exceeding known sustainable harvest 
levels. In determining a sustainable harvest level, the responsible 
officer may consider harvest levels of the product for the previous 
three years, if such information is available.
    (b) Harvest of protected species. No contract, permit, or other 
authorizing instrument may be issued or approved under this subpart for 
a species listed by the U.S. Fish and Wildlife Service as endangered or 
threatened, or that has been proposed for listing under the Endangered 
Species Act, except as authorized by that Service. Moreover, Regional 
guidelines will identify the conditions when a contract, permit, or 
instrument may be issued or approved for any product listed on the 
Regional Forester's sensitive plant list, species of concern list, or 
species of interest list, or that is protected under the Convention on 
International Trade in Endangered Species.
    (c) Monitoring of established harvest levels. At least once every 
three fiscal years, or as otherwise established by the Regional 
Forester, the Forest Service shall monitor the effects of harvesting a 
product on its sustainability. Such monitoring may include on-site 
examination of the product, including both harvested and non-harvested 
areas, and a review of past and projected harvest levels to the extent 
such information is available.
    (d) Revision of harvest levels. The sustainable harvest level for a 
special forest product may be increased or decreased, as appropriate, 
based on monitoring.


Sec.  223.220  Quantity determination.

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

Appraisal and Pricing


Sec.  223.221  Establishing minimum rates.

    The Chief of the Forest Service shall establish methods for setting 
minimum rates for sale of special forest products.


Sec.  223.222  Appraisal.

    The Chief of the Forest Service shall set forth methods for 
appraising special forest products to determine their fair market 
value. 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. Special forest products must be sold at minimum rates or 
appraised value, whichever is higher.

Contract and Permit Conditions and Provisions


Sec.  223.223  Advance payment.

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


Sec.  223.224  Performance bonds and security fees.

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


Sec.  223.225  Contract, permit, and instrument term.

    The term of any contract, permit, or other authorizing instrument 
for the sale of special forest products shall not exceed 10 years, 
unless the Chief of the Forest Service finds that a longer term is 
consistent with the Multiple-Use Sustained-Yield Act of 1960, as 
amended (16 U.S.C. 528-531). Any such finding by the Chief shall be 
made in writing.


Sec.  223.226  Adjustment of term of contract, permit, or other 
instrument for force majeure delay.

    A contract, permit, or other instrument authorizing the harvest and 
sale of special forest products shall allow for the adjustment of its 
term to provide additional time to the purchaser in the event that 
circumstances beyond the purchaser's reasonable control delay 
performance. Such circumstances may include, but are not limited to 
acts of God, acts of the public enemy, acts of the Government, labor 
disputes, fires, insurrections, and floods. The approving officer may 
grant an extension upon finding that the purchaser has diligently 
performed in accordance with the contract, permit or other instrument, 
or that the substantial public interest justifies the extension.

Advertisement and Bids


Sec.  223.227  Sale advertisement.

    (a) The Forest Service shall advertise for a period of 30 days any 
sale of special forest products for which the appraised value of the 
sale is equal to, or greater than $10,000, except as provided in 
paragraph (c) of this section.
    (b) In any instance when the appraised value of the sale is less 
than $10,000, the Forest Service may sell the products without 
advertisement; however, if there is competitive interest in a sale 
valued at less than $10,000, the Forest Service shall advertise for not 
less than 7 days.
    (c) Regardless of the requirement set forth in paragraph (a) of 
this section, above, the Forest Service may sell special forest 
products without advertisement, or at the Agency's discretion, 
advertise the sale for a period less than 30 days if
    (1) Deterioration of a special forest product threatens its value;
    (2) If the products were previously advertised for competitive 
bidding but were not sold because of an absence of satisfactory bids; 
or
    (3) If the products are remaining from expired, cancelled, or 
abandoned contracts, permits, or other instruments.


Sec.  223.228  Contents of advertisement.

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


Sec.  223.229  Contents of prospectus.

    The prospectus for the sale of special forest products shall 
include the following:
    (a) The minimum acceptable value or unit price and the amount or 
rate of any additional required deposits;
    (b) The amount of the bid guarantee that must accompany each bid;
    (c) The amount of the deposit or downpayment to be made by the 
successful bidder and the time-frame for making such deposit or 
downpayment;
    (d) The location and area of the sale, including acreage;

[[Page 59504]]

    (e) The estimated volumes, quality, size, or other appropriate 
measure for the special forest products;
    (f) A description of any special harvest and removal requirements 
for the sale;
    (g) The method of bidding that the Forest Service will employ; 
sealed bid or sealed bid followed by oral auction;
    (h) The type of contract, permit, or other instrument to be used 
for the sale;
    (i) The termination date of the contract, permit, or other 
instrument and the normal operating period;
    (j) The amount of performance bond required; and
    (k) If circumstances warrant, such additional information about the 
sale as the Forest Service deems appropriate in order to notify 
purchasers that an on-site investigation of the products may be 
prudent.


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

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


Sec.  223.231  Bidding methods.

    (a) The Contracting Officer or designated Forest Officer shall 
offer advertised sales of special forest products through sealed bid or 
sealed bid followed by oral auction. The method selected shall:
    (1) Ensure open and fair competition;
    (2) Ensure that the Federal Government receives not less than fair 
market value for the public resource; and
    (3) Be consistent with the National Forest Management Act and other 
applicable federal laws.
    (b) As a prerequisite to participation in an oral auction, a bidder 
shall submit a written sealed bid at least equal to the minimum 
acceptable bid price(s) specified in the prospectus. The Forest Service 
shall not accept a bid at oral auction that is less than the bidder's 
initial sealed bid.
    (c) The Chief, or authorized designee shall specify the use of 
sealed bids or a mix of bidding methods in any area where there is a 
reasonable belief that collusive and/or abnormal bidding practices may 
be occurring.


Sec.  223.232  Disclosure of relation to other bidders.

    The Forest Service may require any prospective purchaser of special 
forest products to disclose its relationship with other potential 
purchasers or operators. Such disclosure may include a certified 
statement of stockholders or members of the firm; officers of the 
corporation or members of the board of directors; or holders of bonds, 
notes, or other evidences of indebtedness.

Award of Contracts, Permits, or Other Instruments


Sec.  223.233  Award to highest bidder.

    (a) The Forest Service shall award contracts, permits, or other 
authorizing instruments for advertised sales as follows:
    (1) The Forest Service will award a sale of special forest products 
to the responsible bidder that submits the highest bid that conforms to 
the conditions of the sale as stated in the prospectus.
    (2) If the highest bidder cannot meet the requirements for the 
sale, as specified in the prospectus or otherwise, then the Forest 
Service may:
    (i) Reject all bids and reoffer the sale, or
    (ii) Offer the award to the next highest qualified, at the high bid 
level, until the award is accepted or refused by all of conforming 
bidders.
    (3) In the event of a tie between two or more responsible high 
bidders submitting conforming bids, the Forest Service shall award the 
sale by drawing of lots.
    (b) If none of the bids meet the specified conditions of the sale, 
or in the event of other irregularities in the bidding process, the 
Forest Service may reject all bids, and, if it so decides, reoffer the 
sale.


Sec.  223.234  Determination of purchaser responsibility.

    (a) A Contracting Officer shall not award a contract, permit, or 
other instrument authorizing the sale of special forest products to a 
prospective purchaser unless that officer makes an affirmative 
determination that the purchaser is responsible. In the absence of 
information clearly establishing that the prospective purchaser is 
responsible, the Contracting Officer shall conclude that the purchaser 
is not responsible.
    (b) In order to make an affirmative determination that a 
prospective purchaser is responsible, the Contracting Officer must find 
that:
    (1) The purchaser has adequate financial resources to perform the 
contract, permit, or other instrument, or the ability to obtain such 
resources;
    (2) The purchaser is able to perform the contract, permit, or 
instrument within the relevant term, taking into consideration all of 
their existing commercial and governmental business commitments;
    (3) The purchaser has a satisfactory record of integrity and 
business ethics;
    (4) The purchaser has or is able to obtain equipment and supplies 
suitable for harvesting the products and for meeting applicable 
resource protection requirements;
    (5) The purchaser is otherwise qualified and eligible to receive an 
award of a contract, permit, or instrument under applicable laws and 
regulations, or
    (6) The purchaser has a satisfactory performance record on 
contracts, permits, or other instruments with the Forest Service. 
Failure to apply sufficient diligence and perseverance to perform a 
contract, permit, or other instrument is strong evidence that a 
purchaser is not responsible. A purchaser that is, or has been 
deficient in performance shall be deemed not responsible, unless the 
purchaser demonstrates that the deficiency arose from circumstances 
beyond their reasonable control.


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

    (a) Reasons for Delay, Suspension or Modification. The Forest 
Service may unilaterally delay, suspend, or modify any contract, 
permit, or instrument authorizing the sale of special forest products 
for any one of the following reasons:
    (1) To prevent actual or potential harm to the environment, 
including without limit harm to land, water, air, habitat, plants, 
animals, cave resources, or cultural resources;
    (2) To ensure consistency with land management plans or other 
management documents;
    (3) To conduct environmental analyses, including without 
limitation, consultation under the Endangered Species Act of 1973, 16 
U.S.C. 1531, et seq.;
    (4) Because of existing or threatened litigation, which might 
affect or implicate the purchaser's harvest of special forest products; 
or
    (5) For any reasons or other conditions as may be set forth in the 
contract, permit, or other instrument governing the sale.
    (b) Compensation. (1) The Forest Service may compensate the 
purchaser

[[Page 59505]]

for unilateral delay, suspension or modification of any contract, 
permit, or other instrument in accordance with the applicable 
provisions set forth in such contract, permit, or instrument, if any, 
or in the absence of such provisions, in accordance with applicable 
Forest Service methods and procedures in effect at the time of claim 
submission, giving due consideration to the cause, duration, and 
financial impact of the delay, suspension or modification.
    (2) A purchaser shall comply with provisions for claim submission 
contained in the governing contract, permit, or instrument, if any, or, 
in the absence of such provisions, shall submit a claim for 
compensation in writing and accompanied by supporting documentation 
that fully substantiates the amount of the claim.
    (c) Authority. The Contracting Officer administrating the sale or 
responsible superior may issue an instruction delaying, suspending, or 
modifying the contract, permit, or instrument. Such instructions shall 
be issued to the purchaser in writing, except when exigent 
circumstances warrant oral communication, in which case the officer 
shall promptly followup in writing.


Sec.  223.236  Unilateral termination.

    (a) Reasons for Termination. The Forest Service may unilaterally 
terminate a contract, permit, or other instrument authorizing the sale 
of special forest products for any of the following reasons:
    (1) For any of the reasons enumerated at Sec.  223.235(a)(1) 
through (5);
    (2) For purchaser's material breach or continued violation of the 
contract or agreement terms;
    (3) In the event purchaser is found to be in violation of any 
Federal or State civil or criminal statute, law, or regulation, when 
such violation relates to obtaining, attempting to obtain, selling, 
trading, or processing special forest products; to obtaining, 
attempting to obtain, or performing a public contract or subcontract; 
harm or damage to public lands or protected species; or, to purchaser's 
business integrity, honesty, or responsibility;
    (b) Compensation. (1) The Forest Service may compensate the 
purchaser for unilateral termination of any contract, permit, or other 
instrument in accordance with the provisions set forth in such 
contract, permit, or instrument, if any, or, in the absence of such 
provisions, in accordance with applicable Forest Service methods and 
procedures in effect at the time of claim submission, giving due 
consideration to the cause, duration, and financial impact of the 
termination.
    (2) A purchaser shall comply with provisions for claim submission 
contained in the governing contract, permit, or instrument, if any, or, 
in the absence of such provisions, shall submit a claim for 
compensation in writing and accompanied by supporting documentation 
that fully substantiates the amount of the claim.
    (3) A purchaser shall not be entitled to compensation if the 
unilateral termination is due in whole or in part to the reasons set 
forth at Sec.  223.236(a)(2) or (3).
    (c) Authority. Any unilateral termination of a contract, permit, or 
instrument for the sale of special forest products shall be made by the 
Chief, or the Chief's designee. Any such instruction shall be issued to 
the purchaser in writing, except when exigent circumstances warrant 
oral communication, in which case a written communication shall follow 
promptly.


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

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


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

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


Sec.  223.239  Free use by individuals.

    (a) Free use. Under a permit, a person may harvest special forest 
products from National Forest System lands free of charge for personal, 
non-commercial use, not in excess of the amount or quantity authorized 
by a designated Forest Service officer, a Forest Supervisor, or a 
Regional Forester under 36 CFR 223.8.
    (b) Permit requirement. A person seeking to harvest a special 
forest product for personal, non-commercial use, must submit an 
application to a Forest Service officer and obtain a free use permit 
prior to harvest, unless these requirements have been waived to allow 
harvesting of a specific product from a designated free use area. The 
permit shall indicate the type, amount, and/or value of the product to 
be harvested, and shall contain other restrictions and requirements. 
The Forest Service officer may set conditions on the proposed harvest, 
or deny the harvest, to ensure the personal safety of the individual; 
to prevent interference with Forest Service and/or commercial 
operations on the forest; to protect the product as a sustainable 
resource; or to otherwise protect the forest. The issuing officer or 
any superior officer may terminate for the convenience of the 
government, without compensation, a free use permit at any time for a 
number of reasons including, but not limited to, resource concerns 
including threatened, endangered or sensitive species; weather factors 
such as fire season or road access; conflicts with other users; or 
violations of permit requirements.
    (c) Subsistence in Alaska. This section is not intended to affect 
subsistence uses implemented under the Alaska National Interest Lands 
Conservation Act, 16 U.S.C. 3101-3126.


Sec.  223.240  Indian tribes and treaty reserved gathering rights.

    Indian tribes with reserved treaty gathering rights or other 
adjudicated rights may harvest special forest products in accordance 
with the terms of such treaty rights. Such harvest by Indian tribes 
shall not be subject to the application and permitting requirements of 
subpart G; however, the Regional Forester may set conditions on the 
harvest, as necessary to protect the product as a sustainable resource, 
or to otherwise protect the forest. The Regional Forester may only deny 
the harvest for purposes of health and safety and in some instances in 
order to

[[Page 59506]]

conserve the species or resources used. Any decision restricting tribal 
off-reservation treaty rights needs to be well documented. Consultation 
with the affected Tribe(s) and local Office of General Counsel on how 
to exercise such regulatory authority is found in FSM 1563.1 and FSH 
1509.13, Chapter 10.


Sec.  223.241  Disposal of seized special forest products.

    The Forest Service may dispose of seized special forest products 
that have been illegally obtained from National Forest System lands. 
Any commercial sale of such products shall be conducted in accordance 
with the requirements of this subpart; however, such products shall not 
be sold to the entity that collected them illegally. The Regional 
Forester may make seized products available for free use to 
individuals, Indian Tribes with reserved treaty gathering rights, and 
other federally recognized tribes. However, the Forest Service shall 
not dispose of a seized product by sale or free use if that product is 
threatened, endangered, or a candidate for listing under the Endangered 
Species Act; identified as prohibited for sale or trade under CITES, or 
listed on the Regional Forester's sensitive plant list, list of species 
of concern, or list of species of interest.

Subpart H--Forest Botanical Products


Sec.  223.275  Establishment of a pilot program.

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


Sec.  223.276  Applicability.

    This subpart applies to the disposal of forest botanical products, 
as defined herein, from National Forest System lands, until September 
30, 2009 of the pilot program. The Forest Service shall dispose forest 
botanical products in accordance with the procedures set forth in 36 
CFR part 223 subpart G, subject to the requirements of this subpart.


Sec.  223.277  Definitions.

    As used in this subpart, the following term shall mean:
    Forest botanical products--naturally occurring special forest 
products, including bark, berries, boughs, bryophytes, bulbs, burls, 
cones, ferns, fungi (including mushrooms), forbs, grasses, mosses, 
nuts, pine straw, roots, sedges, seeds, shrubs, transplants, tree sap, 
and wildflowers. The term excludes animals, animal parts, Christmas 
trees, fence material, firewood, insects, mine props, minerals, posts 
and poles, rails, rocks, shingle and shake bolts, water, worms, and 
soil.


Sec.  223.278  Collection of fees.

    The responsible official shall ensure that the price applicable to 
the harvest and sale of any forest botanical product, as determined in 
accordance with the procedures set forth in 36 CFR part 223 subpart G, 
includes at least a portion of the fair market value of the product and 
a portion of the costs associated with administering the pilot program.


Sec.  223.279  Personal use harvest levels and waiver of fees.

    (a) In conjunction with determining sustainable harvest levels for 
special forest products, including forest botanical products, pursuant 
to Sec.  223.219 of subpart G, the responsible Forest Service officer 
shall also determine personal use harvest levels, which shall be 
consistent with sustainable harvest levels.
    (b) A person may harvest a forest botanical product from National 
Forest system lands, without charge, up to but not exceeding the 
personal use harvest level established for the product. A person 
seeking such personal use of a forest botanical product must comply 
with the procedures set forth in Sec.  223.239 of subpart G.
    (c) Under the following circumstances, the Forest Service waives 
the collection of fees otherwise required pursuant to Sec.  223.278 of 
this subpart:
    (1) For federally recognized Indian tribes seeking to harvest 
forest botanical products for cultural, ceremonial, and/or traditional 
purposes. Such purposes must be non-commercial, and any such harvest 
may be conditioned or denied as provided in Sec.  223.240 of subpart G; 
and,
    (2) On any occasion when a Regional Forester or Forest Supervisor, 
having proper authorization from the Chief, makes a determination in 
writing that the harvest facilitates scientific research or is for 
salvage because other management activities will destroy or damage the 
product.


Sec.  223.280  Monitoring and revising of harvest levels.

    Monitoring and revision of harvest levels for forest botanical 
products for purposes of the pilot program shall be conducted as 
provided at Sec.  223.219 of subpart G.


Sec.  223.281  Disposition of collected fees.

    (a) Funds collected under the pilot program for the harvest and 
sale of forest botanical products shall be deposited into a special 
account in the Treasury of the United States. These funds shall be 
available for expenditure at National Forests or National Grasslands 
where the funds were collected until September 30, 2010.
    (b) Funds deposited into the special account specified in paragraph 
(a) of this section shall be expended at a National Forest or National 
Grassland in proportion to the fees collected at that unit to pay for 
costs of: conducting inventories of forest botanical products; 
determining sustainable harvest levels for each species or type of 
forest botanical product; monitoring and assessing the impact of 
harvest levels and methods; conducting restoration activities, 
including vegetation restoration, necessitated by the collection, 
harvest, or removal of forest botanical products; or administering the 
pilot program, including environmental or other analyses.

    Dated: September 25, 2007.
Abigail R. Kimbell,
Chief, Forest Service.
 [FR Doc. E7-20658 Filed 10-19-07; 8:45 am]
BILLING CODE 3410-11-P