[Federal Register Volume 73, Number 249 (Monday, December 29, 2008)]
[Rules and Regulations]
[Pages 79367-79392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30672]
[[Page 79367]]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Parts 223 and 261
RIN 0596-AB81
Sale and Disposal of National Forest System Timber; Special
Forest Products and Forest Botanical Products
AGENCY: Forest Service, USDA.
ACTION: Final Rule.
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SUMMARY: The Department is issuing this final rule to regulate the
sustainable free use, commercial harvest, and sale of special forest
products and forest botanical products from National Forest System
lands. The rule is needed to promote sustainability in light of the
increased public demands for both timber and non-timber special forest
products and forest botanical products over the past 10 years. In many
cases, these demands are challenging sustainability, particularly in
the most heavily used parts of the National Forest System. This rule
will help ensure the continued sustainability of special forest
products and forest botanical products.
The rule also revises 36 CFR 261.6 to reflect new free use and
personal use authorizations for special forest products and forest
botanical products and to specify the types of contractual documents
currently used by the Forest Service. In addition, the Forest Service
made minor textual clarifications to section 261.6.
DATES: This rule is effective January 28, 2009.
ADDRESSES: The public may inspect comments received at USDA Forest
Service--Forest Management, Yates Federal Building, 3rd floor SW wing,
1400 Independence Avenue, SW., Washington, DC. Visitors are encouraged
to call ahead to 202-205-1766 to facilitate entry into the building.
The public may also inspect comments received via the Internet at
http://wwwnotes.fs.fed.us:81/wo/wospecialproducts.nsf.
FOR FURTHER INFORMATION CONTACT: Richard Fitzgerald, Forest Service,
Forest Management Staff, (202) 205-1753. Individuals who use
telecommunication devices for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8
p.m., Eastern Standard Time, Monday through Friday.
SUPPLEMENTARY INFORMATION: The following section outlines the contents
of the preamble.
Introduction
Background
Special Forest Products: Commercial Harvest and Sale and
Free Use.
Commercial Harvest and Sale
Free Use
Forest Botanical Products: Commercial Harvest and Sale and
Personal Use.
Commercial Harvest and Sale
Personal Use
36 CFR 261.6--Timber and other forest products.
Tribal Impact Summary.
Comments on the Proposed Rule and Changes Made in Response Regulatory
Certifications
Introduction
This final rule regulates the sustainable free use, sale, and
commercial harvest of special forest products and forest botanical
products from National Forest System lands. Special forest products
include, but are not limited to, firewood, post and poles, wildflowers,
mushrooms, moss, nuts, seeds, and Christmas trees. Forest botanical
products are naturally occurring special forest products including, but
not limited to, bark, berries, boughs, cones, grasses, seeds, nuts,
mushrooms. Definitions for special forest products and forest botanical
products are found in sections 223.216 and 223.277.
The rule is needed to account for increased demand, which threatens
the continued sustainability of these products. Given this growing
demand and the need to ensure sustainability, the Forest Service
determined that regulations dealing solely with special forest products
and forest botanicals were required. Under the final rule, the Forest
Service will help ensure sustainability by establishing, monitoring,
revising, and enforcing sustainable harvest levels for special forest
products and forest botanical products. The final rule also governs the
appraisal, pricing, advertisement, bidding, and award of special forest
product and forest botanical product sales. In addition, the rule
provides the types of contracts and permits the Forest Service will use
to administer the commercial harvest and free use of special forest
products and forest botanical products. This framework, along with
direction in Forest Service Handbook 2409.18, chapter 80, will regulate
special forest products and forest botanical products.
The final rule adds Subparts G and H to 36 CFR Part 223. Subpart G
regulates the commercial harvest and limited free use of special forest
products. Authority for subpart G is found 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.
Subpart H implements a pilot program for the commercial harvest and
limited personal use 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 (``pilot program law'').
Subject to certain exceptions, the pilot program law requires that the
Forest Service sell forest botanical products for an amount that
includes at least a portion of a product's fair market value and a
portion of certain costs associated with administering the pilot
program (see 16 U.S.C. 528(c)). Subpart H will apply for the duration
of the pilot program, which is currently scheduled to terminate on
September 30, 2009, unless extended or made permanent by Congress.
The final rule respects treaty and other reserved rights retained
by Tribes, and recognizes the importance of traditional and cultural
forest products in the daily lives of Indians. Nothing in this rule
affects the Forest Service's trust responsibilities or continued
government-to-government relations. In fact, the rule will help the
Agency meet its obligations to Tribes. Further, the rule encourages
Tribes and the Agency to collaborate with one another to reach
agreement on specific issues. In addition, the rule provides Forest
Service line officers with a regulatory citation for reference whenever
gathering by Tribal members is questioned or becomes a law enforcement
issue.
The final rule also revises 36 CFR 261.6(f) to include the new free
use and personal use authorizations provided by sections 223.239 and
223.279, to reflect the types of contractual documents currently used
by the Forest Service, and to make minor textual clarifications.
Background
Special Forest Products: Commercial Harvest and Sale and
Free Use.
[[Page 79368]]
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 (NFMA), 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. The Forest Service's annual
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. These products are frequently purchased by
individuals or small businesses, and most sales do not exceed $10,000
in value. Generally, sales valued at less than $10,000 are not sold
through competitive bidding; rather, a prospective purchaser asks to
harvest certain forest products, and either enters into a contract with
the Forest Service, or buys a permit that allows the purchaser to
harvest the products. Consistent with existing regulations at 36 CFR
223.80, the Forest Service follows competitive bidding procedures for
special forest product sales valued at $10,000 or more. The Forest
Service presently uses the following standard documents for simple
sales which are typically less than $10,000, as identified in Forest
Service Handbook (FSH) 2409.18, sec. 53, ex. 01: FS-2400-1, Forest
Product Removal Permit and Cash Receipt; FS-2400-3P, Timber Sale
Contract for pre-measured products; and FS-2400-4, Forest Products
Contract and Cash Receipt. These documents contain standard conditions
and allow the parties to add provisions as may be necessary given sale
specifics. For complex special forest product sales, the Forest Service
uses the standard Timber Sale Contract FS-2400-6. The responsible
forest officer selects the appropriate document in light of the value
of the sale and other circumstances (see FSH 2409.18 sec. 53 ex. 01 for
additional information). The Forest Service will continue to use these
standard documents for special forest products and forest botanical
products.
Historically, the Forest Service used timber sale regulations and
corresponding sections of the Forest Service Manual (FSM) and FSH to
sell special forest products. However, these sources are no longer
sufficient to oversee the sustainable commercial harvest and sale of
these products. Therefore, the Forest Service developed this final
rule, which applies specifically to special forest products.
Free Use
This final rule also regulates the limited free use of special
forest products. Historically, the Agency has granted limited free use
of special forest products to individuals and honored the rights of
Tribes with treaty and other reserved rights related to special forest
products. This rule continues those historical practices while helping
ensure the continued sustainability of special forest products.
Forest Botanical Products: Commercial Harvest and Sale and
Personal Use.
Commercial Harvest and Sale
The pilot program law directed the Secretary to initiate a new
program for forest botanical products. Accordingly, the Forest Service
established subpart H, which will apply for the pilot program's
duration.
The pilot program law provides a mechanism for funding the
environmental analyses and administrative tasks necessary for its
implementation. Generally, the law requires that forest botanical
products be sold for an amount that includes at least a portion of a
product's fair market value and a portion of certain costs associated
with administering the pilot program. The law specifies that retained
funds collected through September 30, 2009, shall be available for
expenditure without further appropriation for activities associated
with the program through September 30, 2010. Subpart H of this final
rule will terminate on September 30, 2009, unless the pilot program is
extended or made permanent.
Personal Use
Section 528(e) of the pilot program law (16 U.S.C. 528) directs the
Secretary of Agriculture to allow free personal use of a forest
botanical product in an amount below that product's personal use
harvest level. Under section 223.279 of the rule, the Forest Service
will establish personal use harvest levels for each forest botanical
product; any personal use below that level will be free. For the
duration of the pilot program, personal use of forest botanical
products will be conducted in accordance with section 223.279.
36 CFR 261.6--Timber and Other Forest Products.
This rule revises 36 CFR 261.6(f) to reflect the new free use and
personal use authorizations contained in subparts G and H. In addition,
the rule specifies the types of contractual documents currently used by
the Forest Service, explains the Forest Service's interpretation of the
term ``other forest products,'' and makes minor textual clarifications.
These changes were made in response to a comment submitted by a Forest
Service law enforcement officer and are a logical outgrowth of the
proposed rule.
First, the Forest Service revised section 261.6(f) to incorporate
36 CFR subparts G and H. Section 261.6(f) contains the Forest Service's
prohibition against selling or exchanging forest products obtained via
free use authorization. Section 261.6(f) required revision to include
the free use and personal use authorizations contained in subparts G
and H, which did not previously exist. In addition, section 261.6(f)
was revised to clarify that ``other forest products'' include special
forest products and forest botanical products.
The Forest Service promulgated subparts G and H to help ensure the
sustainability of special forest products and forest botanical
products. To achieve this objective, subparts G and H, allow, among
other things, for the limited free and personal use of these products
in a sustainable manner. Specifically, section 223.239 allows for free
use of special forest products and section 223.279 allows for free
personal use of forest botanical products. However, subparts G and H do
not contain prohibitions against selling or exchanging forest products
obtained from National Forest System lands at no cost.
Those prohibitions are located at 36 CFR 261.6(f), which this rule
revises to reflect the new free use and personal use authorizations
provided by sections 223.239 and 223.279. Prior to this final rule,
section 261.6(f) prohibited ``[s]elling or exchanging any timber or
other forest product obtained under free use pursuant to Sec. Sec.
223.5 through 223.11.'' This final rule revises section 261.6(f) to
prohibit ``selling or exchanging any timber or other forest product,
including special forest products and forest botanical products,
obtained under free use or personal use pursuant to Sec. Sec. 223.5
through 223.11, Sec. 223.239 or Sec. 223.279.''
The Forest Service can now use section 261.6(f) to prohibit selling
or
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exchanging forest products obtained via free or personal use pursuant
to subparts G and H. Failing to make these revisions could result in
the non-sustainable use of special forest products and forest botanical
products, which is contrary to the public interest. In addition, this
change is a logical outgrowth of the proposed rule. Therefore, there is
no need for notice and comment prior to these changes becoming
effective.
Second, the Forest Service combined section 261.6(a) with section
261.6(h). The old section 261.6(a) prohibited cutting or otherwise
damaging timber, trees, or other forest products, except as authorized
by a special-use authorization, timber sale contract, or Federal law or
regulation. The old section 261.6(h) prohibited the removal of timber,
trees or other forest products, except as authorized by a special-use
authorization, timber sale contract, or Federal law or regulation. The
revisions to this rule combine the prohibitions previously contained in
paragraphs (a) and (h) into one paragraph (a). The combination of
paragraphs (a) and (h) into one paragraph (a) is a non-substantive
technical amendment. Therefore, there is no notice and comment prior to
these changes becoming effective.
Third, section 261.6(a) and (c)-(f) were revised to include the
terms ``special forest products'' and ``botanical forest products.''
Special forest products and Forest Botanical products, as defined in
subparts G and H, are the same products the Forest Service has always
considered to be ``other forest products.'' However, the Agency revised
section 261.6 to make the Agency's interpretation that ``other forest
products'' include special forest products and botanical forest
products explicit. Because the inclusion of the terms ``special forest
products'' and ``forest botanical products'' is both interpretive and a
logical outgrowth of the proposed rule, no opportunity for comment is
available prior to these changes becoming effective.
Fourth, the terms ``permit,'' ``free-use authorization,'' and
``personal-use authorization'' have been inserted into paragraphs (a),
(b), (c), and (e). These revisions are necessary to reflect the new
subparts G and H and the various instruments used to sell or authorize
removal of timber and other forest products, some of which were
developed after issuance of section 261.6. These revisions, which are a
logical outgrowth of the proposed rule, update section 261.6 and make
technical changes to reflect the contractual instruments currently used
by the Forest Service. Consequently, no opportunity for comment is
available prior to these changes becoming effective.
Finally, the Forest Service has replaced the term ``timber sale
contract'' with ``contract'' throughout section 261.6. This change is
necessary to reflect the various instruments the Forest Service uses to
sell timber and other forest products, which include timber sale
contracts, stewardship contracts, and procurement contracts. These
revisions, which are a logical outgrowth of the proposed rule, merely
update section 261.6 and make a technical change to reflect the
multiple instruments currently used by the Forest Service. Therefore,
no opportunity for comment is available prior to these changes becoming
effective.
Tribal Impact Summary.
The Forest Service conducted a preliminary assessment of the impact
of this rule on Tribal governments and determined that the rule does
have tribal implications; therefore, advanced government-to-government
consultation was required.
The Forest Service began consultation efforts prior to publication
of the proposed special forest products and forest botanical products
rule on October 22, 2007. In April 2004, the Deputy Chief of the
National Forest System sent a letter to forest supervisors asking them
to contact federally-recognized Tribes in their area and establish
early consultation with regard to a future special forest products
regulation. The Forest Service provided early consultation regarding
draft regulations and Forest Service handbook changes for the
management of special forest and forest botanical products prior to
publication in the Federal Register. The Agency received a substantial
number of responses to the request and considered the comments in
formulation of the proposed rule.
The proposed rule was published for a 60-day comment period (72 FR
59496) and extended for an additional 30 days based on specific
requests from several Tribes (72 FR 72319). Numerous comments were
received during both the regular comment period and the extended
comment period. All of those comments were considered during
formulation of the final rule, and numerous changes were made as a
result of those comments. A summary and an analysis of the Tribes'
concerns and the changes made to the rule are located in a separate
part of this preamble.
The Agency, working within the parameters of existing laws,
regulations, and policies, made numerous changes to the rule in
response to the concerns expressed by Tribes. However, not all of those
concerns can be satisfied through his rule. In addition, several Tribes
provided conflicting concerns. Nevertheless, the rule encourages Tribes
and the Agency to work in close collaboration with one another to come
to agreement regarding important issues.
Comments on the Proposed Rule and Changes Made in
Response.
A 60-day comment period on the proposed rule was initiated on
October 22, 2007 (72 FR 59496). The comment period was then extended
for an additional 30 days through January 22, 2007 (72 FR 72319).
Respondents submitted 151 comments in response to the proposed rule.
However, duplicate submissions, such as those sent by both fax and
mail, were considered as one response, resulting in 117 total comments.
All documents were reviewed and comments were grouped into applicable
categories. Responses and a summary of any changes made in the final
rule are provided below.
General Comments and Responses for Both Subparts G Special Forest
Products and Subpart H Forest Botanical Products.
Confidential or Proprietary Nature of Special Forest Products/
Forest Botanical Products Information.
Comment: Many commenters expressed concern about the
confidentiality of information provided to the Forest Service in permit
applications and other documents. The fact that permits are public
documents concerns these commenters. Many of the commenters indicated
that they should not be asked to provide information about their
harvesting, and in many cases would not provide that information if
asked. Both gathering locations and materials harvested can be
considered confidential to Tribes and their members, particularly if
the material is to be used for healing and/or in ceremonies. Some of
the commenters indicated that gathering locations and materials may be
closely held, even within families or local communities. Other
commenters fear that site information would be obtained by commercial
interests that would then over harvest in those areas, compromising
both the sacred nature of the places and populations of the plants
being used.
Response: Section 8106 of the Food, Conservation and Energy Act of
2008 (Pub. L. 110-234) allows the Forest Service to protect from
disclosure information concerning the identity, use, or specific
location in the National Forest System of a site or resource used for
traditional and cultural purposes by
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a federally-recognized Indian Tribe. The Forest Service will comply
with all applicable laws concerning disclosure of this type of
information, including the Freedom of Information Act, and Section 8106
of the Food, Conservation and Energy Act.
Consultation
Comment: Several commenters indicated that there was inadequate
consultation or no consultation provided with regard to this rule.
Response: The Forest Service made significant efforts to consult
with federally-recognized Tribes before development of the proposed
regulation. Prior to the publication of any draft regulation on special
forest products and forest botanical products, the Forest Service began
one of its first early consultation efforts as prescribed in FSM 1563.
In April 2004, the Forest Service's Deputy Chief, National Forest
System, sent a letter to forest supervisors asking them to contact
federally-recognized Tribes in their respective areas and establish
early consultation with regard to an early draft regulation and FSH
revision related to the management of special forest products and
forest botanical products. That consultation was one of the first times
the Agency consulted with federally-recognized Tribes prior to a major
revision or development of a regulatory policy.
Although the Forest Service tried to inform all federally-
recognized Tribes about the request for consultation, the Agency cannot
independently verify whether every federally-recognized Tribe was
informed. However, the Agency was pleased to receive a substantial
number of responses to the consultation request and significant
consultation took place.
Cultural Significance of Special Forest Products/Forest Botanical
Products
Comment: Several comments were received that focused on the
importance of special forest products to American Indian culture and
expressed concerns that the proposed regulations will do harm to
traditional cultural practices and jeopardize cultural survival.
Several commenters stated that gathering special forest products has
been a part of their Tribe's or indigenous people's lives and practices
for millennia. Other commenters noted that access to special forest
products on national forests is critical for many Tribes whose land
bases cannot furnish the foods, medicines, and other materials
necessary to sustain their lives and cultures. Further, others noted
Memoranda of Agreement (MOAs) between Tribes and the Forest Service
that contain language acknowledging the cultural importance of special
forest products to the Tribes and their members. A few comments
addressed sacred sites and special places, with one commenter
suggesting that the cultural significance of some locations may be
incompatible with commercial activity of any sort.
Response: The Forest Service recognizes the important role that
special forest products play in the daily lives of many American
Indians and Alaska Natives. As noted in other responses to comments,
Memoranda of Understanding (MOUs) and MOAs that are consistent with
this rule will continue to exist between the Forest Service and Tribes.
These agreements will help maintain traditional cultural practices,
as well as culturally important places. Additionally, the Agency
understands the importance of close working relationships between the
Tribes and local Forest Service line officers. We encourage Tribal
members to take advantage of opportunities to educate line officers and
Forest Service personnel with whom they interact on a regular basis.
In response to concerns over harvesting in sensitive or sacred
areas, this final rule will help ensure the continued sustainability of
special forest products and forest botanical products. In addition,
Tribes and other concerned parties should work with local Forest
Service officers and utilize existing procedures and authorities to
help protect such areas.
Application of Fees to Tribes
Comment: Several commenters expressed the belief that permit fees
should not be imposed on tribal people. Some believe the imposition of
fees would violate treaty laws; others believe the imposition of fees
could impose an economic hardship on individual American Indians.
Response: Under the final rule, there are no fees associated with
free-use and personal-use permits. This rule does not affect any
existing treaty or other reserved rights.
Allocation of Harvest Quantities
Comment: Some commenters stated that tribal harvesting should have
a higher priority over harvesting by non-tribal individuals. Other
commenters stated that the regulations, as written, are unclear as to
whether harvest limits for treaty Tribes would be set at the same
levels as for the general public. Others asserted that treaty rights
cannot be limited in this manner. Three commenters suggested a
hierarchy of priority for harvest of special forest products/forest
botanical products in the following order of importance: Traditional
harvesting by Tribes and their members; personal use harvesting; and
commercial harvesting. One American Indian commenter suggested that
Tribes should be accorded first priority in the distribution of seized
materials. Another commenter identified the problematic nature of
specifying, in advance, quantities to be harvested.
Response: The Forest Service manages the National Forests for
multiple purposes, interests, and users, including Tribes, the general
public, and commercial concerns. The Agency believes that the final
rule strikes the appropriate balance between these purposes and uses,
including all parties with an interest in special forest products and
forest botanical products.
Further, the final rule respects treaty and other reserved rights
retained by Tribes, and recognizes the importance of traditional and
cultural forest products in the daily lives of Indians. Nothing in this
rule affects existing treaty or other reserved rights, the Forest
Service's trust responsibilities or continued government-to-government
relations. The final rule does not take away local forest's flexibility
to work with Tribes; it provides new tools for successfully meeting
resource management objectives, including continued sustainability.
Existing Memoranda of Understanding or Agreement
Comment: Several Tribes who commented on the proposed regulations
indicated they have negotiated, or are in the process of negotiating,
agreements with the Forest Service, including formal MOUs or MOAs.
Several commenters indicated that they enjoy good relationships with
the Forest Service and/or national forests in their area, and expressed
concern that the regulations, as written, will damage those
relationships and effectively extinguish existing agreements. Some said
that they believe existing local agreements and regional policies
between local Forest Service offices and Tribes would be overridden by
this regulation. Nontribal commenters with federal agencies imply that
they believe the regulations as written would over-ride an interagency
agreement in California that is supportive of American Indian
gathering.
Response: The Forest Service agrees that the local flexibility
provided by MOUs and MOAs with Tribes have been valuable tools and
should continue to be
[[Page 79371]]
used to address local tribal concerns regarding the harvest of special
forest products and forest botanical products. As a result of the
comments, language has been added to section 223.242 making it clear
that MOUs and MOAs are allowed under the rule. Such MOU/MOAs must be
consistent with the rule. Further, any existing MOAs and MOUs that are
inconsistent with this final rule must be made consistent within 24
months from the rule's publication date, which provides sufficient time
for any needed revisions.
Permit Requirements for Tribes and American Indians
Comment: Numerous commenters indicated that permits should not be
required for American Indians gathering special forest products. In
some cases, the commenters seek a waiver that encompasses all American
Indians, regardless of federal recognition status. Other commenters
requested that specific groups or members of specific groups already
covered under existing MOUs remain exempt from permit requirements.
In contrast, several Tribes and one organization representing
numerous Tribes supported the issuance of permits as a means of
monitoring natural resources. The Tribes in favor of this policy
requested that they receive copies of all data collected under a permit
program. Another umbrella organization representing Tribes cautioned
that instituting a system of permits based on race may alienate
individuals who cannot prove their indigenous heritage.
Response: Permits are required to gather special forest products
and forest botanical products except for those who qualify under
Section 223.240 of the final rule that states ``Tribes with treaty or
other reserved rights related to special forest products retain their
ability to harvest special forest products in full accordance with
existing rights.'' The Agency revised some of the wording in section
223.240 to better address treaty rights. The original wording was
construed by some commenters to be inaccurate in the way it referred to
rights ``retained'' by Tribes under treaties. The proposed rule stated
that Tribes ``* * * may harvest special forest products in accordance
with the terms of such treaty rights.'' Some commenters interpreted
that language as authorizing the Agency to exercise discretion that
would prohibit gathering in a manner that is inconsistent with
established treaty rights. The language has been revised to make clear
that the Agency recognizes existing treaty and other reserved rights
related to special forest products: Consistent with those rights, the
Agency may place conditions on the harvest of special forest products
to protect the sustainability of the product or to protect the forest.
Sustainability of forest products and protection of the forests are a
priority for Tribes and the Forest Service.
Further, permits are not required for anyone harvesting or
gathering special forest products for personal non-commercial use in
amounts below that product's incidental-use harvest level.
The Agency revised some of the wording in section 223.240 to better
address treaty rights. The original wording was construed by some
commenters to be inaccurate in the way it referred to rights
``retained'' by Tribes under treaties. The proposed rule stated that
Tribes ``* * * may harvest special forest products in accordance with
the terms of such treaty rights.'' Some commenters interpreted that
language as authorizing the Agency to exercise discretion that would
prohibit gathering in a manner that is inconsistent with established
treaty rights. The language has been revised to make clear that the
Agency recognizes existing treaty and other reserved rights related to
special forest products; consistent with those rights, the Agency may
place conditions on the harvest of special forest products to protect
the sustainability of the product or to protect the forest.
Sustainability of forest products and protection of the forests are a
priority for Tribes and the Forest Service.
Tribal free use provisions are found in sections 223.239, 223.240.
Section 223.280 allows national forests to waive fees only for
federally-recognized Tribes and Tribes with treaty or other reserved
rights seeking to harvest forest botanical products for cultural,
ceremonial, and/or traditional purposes. Under certain circumstances,
the Forest Service may agree to issue a permit to a Tribe with treaty
or other reserved rights related to special forest products for the
free use of a specified quantity of special forest products and work
with the Tribe to manage the process and conserve the resources. These
are the types of discussions that can be held during consultation with
regional and/or local officials.
There were a number of commenters representing Tribes without
treaty rights who were concerned that the permit requirement would be
burdensome to them. The Agency has listened closely to Tribes without
treaty rights in the past and will continue to do so in a spirit of
cooperation. Memorandums of Understanding and Memorandums of Agreement
have been developed to address local concerns on the management of
special forest products and forest botanical products. Under Section
223.242, regional foresters may issue supplemental guidance and approve
Memorandums of Agreement and Memorandums of Understanding consistent
with subparts G and H, to promote local cooperation, issue resolution,
and local implementation of these regulations.
The Forest Service understands the concern of the commenter who
expressed concern over a permit system based on race. The Forest
Service does not discriminate on the basis of race and the Forest
Service complies with all laws regarding racial matters.
The Agency encourages Tribes to engage in open dialogue with Forest
Service line officers and law enforcement officers in order to agree
upon ways to mitigate problems that could develop in this area.
Tribes' Sense of Forest Service Disrespect
Comment: Some commenters stated that the proposed regulations and/
or the process through which they were developed display a lack of
respect for Tribes and native peoples. Others spoke very highly of the
close working relationship between their Tribe and local Forest Service
offices. Several commenters suggested that ``respectful consideration''
for Tribes and Indians will be necessary to make these regulations
work.
Response: The proposed regulations were not intended as a sign of
disrespect for American Indians, Alaska Natives, or other native
peoples. The Agency is responsible for managing natural resources on
National Forest System lands in a sustainable way that allows for
multiple uses, including, among other things, the continuation of
cultural and traditional activities of American Indians and Alaska
Natives. Our recent history has shown that competing interests, both
commercial and non-commercial, have the ability to endanger certain
plant and animal species at any given time. There is reason to believe
that these types of pressures will continue and will increase.
Therefore, these regulations are necessary to protect the resources and
to manage them effectively.
The Forest Service intends for these regulations to help develop
stronger relationships with Tribes and to support consultation and
coordination with Tribes. These regulations, and FSH and FSM revisions,
will provide clearer guidance for Forest Service line officers when
responding to requests to harvest special forest products from National
Forest System land by Tribes.
[[Page 79372]]
The Forest Service agrees with the commenters who suggested that
respectful consideration of Tribes and American Indians will be
necessary to make this regulation work effectively. The Agency is
confident that the historically close working relationship between the
local Forest Service offices, Tribes, and American Indians will
continue, and that all will work closely together to protect the
natural resources and traditional cultural practices in their
respective areas.
Tribal Sovereignty
Comment: American Indian commenters assert tribal sovereignty,
including over ancestral lands, and expect that the Forest Service will
honor requirements for government-to-government consultations as it
seeks to manage and regulate special forest products/forest botanical
products. Commenters also emphasized the need for government-to-
government relations.
Response: The Forest Service agrees that government-to-government
relations between the Agency and Tribes will continue as required. The
Forest Service also believes the rule will help meet its obligations to
Tribes.
Legal Status of Tribes
Comment: Some commenters explained the many types of status that
Tribes and individuals may have: Federally-recognized and nonfederally-
recognized Tribes; treaty and non-treaty Tribes; individuals who do not
qualify by blood quantum to hold tribal identity cards even when their
relatives do; and descendants of people who did not enroll as Tribal
members under the Dawes Act (25 U.S.C. 331), but may be as much as 100%
American Indian. Many commenters provided background on the historical
processes that lead to this variety of statuses and protest the manner
in which the regulations appear to place non-treaty Tribes in a
position analogous to that of the non-indigenous public with respect to
access to special forest products. Several commenters also indicated
that they believe the rule takes away the status of official
government-to-government relations with nonfederally-recognized Tribes.
Response: The Forest Service is bound by the statutory direction
provided at 25 U.S.C. 479(a)-1 regarding the status of Tribes. This
rule does not create any new authority or take away any existing
authority with regard to the status of Tribes. Responsible forest
officers may consult with other appropriate parties to determine
sustainable harvest levels based on historical information (223.219).
For example, responsible forest officers may solicit information such
as but not limited to amounts harvested, season of harvesting, and
yearly variances of amounts available from other parties to help
determine sustainable harvest levels.
Traditional Ecological Knowledge & Stewardship Practices
Comment: Some commenters stated that American Indian use and
stewardship of special forest products are based on traditions that are
thousands of years old. Some noted that the traditional ecological
knowledge and stewardship of special forest products by Tribes are
acknowledged in scholarly writings, as well as in agreements between
Tribes and government agencies, including the Forest Service and the
National Park Service. Two commenters suggested that, to the extent
that the proposed regulations would eliminate traditional stewardship
practices, they would lead to negative ecological impacts. Another
stated that this would deprive Tribes of the rights and
responsibilities to manage land and resources. Others asserted that the
Agency should consult with both American Indian land managers and
scientists in management of special forest products on national
forests. These commenters believe that Tribes' traditional ecological
knowledge and stewardship practices provide coherent models of land,
resources, and people's relationships to them that could serve as the
basis for sustainable management of special forest products and the
habitats on which they depend. Other commenters indicated that some
national forests already are actively engaged in managing special
forest products with Tribes with positive results.
Response: The Agency recognizes and values the forest stewardship
practiced by Tribes, and the traditional ecological knowledge possessed
by Tribes. Under 223.219 responsible forest officers are required to
consult with Tribes, to the extent appropriate, to determine
sustainable harvest levels based on historical information. The Agency
intends to ensure that this base of knowledge will be reflected in
regional and local agreements. As stressed elsewhere, the Forest
Service and Tribes may continue to enter into local agreements
consistent with this final rule. Regional Foresters may approve MOUs,
MOAs, or other Agency policy, in compliance with these regulations, to
promote local collaboration, issue resolution, and local implementation
of these regulations.
This rule will not eliminate Tribal stewardship projects nor
deprive Tribes of their land management responsibilities. This rule was
developed to promote sustainable harvest of special forest products.
Accordingly, the Agency welcomes collaboration with holders of
traditional knowledge of the land and resources, as well as scientists.
As traditional knowledge is often local and place-based, holders of
traditional knowledge about special forest products should contact
their local Forest Service line officers and staff, and local Forest
Service officers and staff should likewise reach out to holders of this
knowledge.
Additionally, the National Environmental Policy Act (42 U.S.C. 4321
et seq.) requires the Agency to engage Tribes and the public in
management decisions.
Trade and Commercial Use by Tribes
Comment: Several treaty Tribes expressed a strong belief that the
Forest Service does not have the authority to restrict or otherwise
regulate treaty-protected gathering for trade or commercial purposes.
These Tribes cited case law they believe supports their position.
Several commenters noted that trade and commerce are traditional
activities of American Indian people, and questioned their apparent
exclusion in section 223.240 from the provisions for ``traditional
ceremonial, and/or cultural purposes.''
An additional consideration surfaced by these comments is the
importance of the definition of commercial and non-commercial gathering
in relation to American Indian practices. Commenters noted that
exchange of special forest products for other forest resources or for
purposes such as healing that involves the use of gathered plants is
traditional and wonder if such practices would be deemed to be
commercial activities under the terms of the proposed regulations.
Several comments suggested that the sale of items made from materials
gathered by an individual, for example, a traditional basketweaver's
sale of products made from special forest products gathered pursuant to
a permit under this rule, should not be considered ``commercial
activity.'' Other commenters believe that there are some circumstances
under which it would be appropriate to require Tribes and/or Tribal
members to pay fees if the Tribes or its members harvest special forest
products for commercial purposes (e.g., gathering raw special forest
products for bulk sale).
Response: Decisions regarding what constitutes commercial use will
be made at the regional level. When local
[[Page 79373]]
policies are developed or when consultations are held, regional
foresters will need to consider factors such as the type and amount of
special forest products that are needed to fulfill requests and
sustainability issues.
Treaty Issues
Comment: Some treaty Tribes believe that the regulations as written
violate treaty law. Several of their comments cite court decisions in
support of that assertion. They noted that treaties have been
determined by the courts to be the supreme law of the land, and that
the courts have further ordered that treaties be interpreted in favor
of Tribes whenever possible. Further, they noted that language in the
current regulations suggests a fundamental misunderstanding of treaties
with Tribes. Rather, these commenters asserted treaties were and are
``a grant of rights from them--a reservation of those not granted.'' In
other words the commenter suggested that rights were conveyed to the
United States by Tribes and not the other way around. As a result, the
special status conferred by treaties must be respected and provided for
throughout the regulations. Several commenters also indicated that the
regulations as written eliminate local flexibility to negotiate access
to special forest products/forest botanical products on a government-
to-government basis. Other commenters indicated that the Forest Service
does not recognize in the regulation, that some treaties do not have
specific language regarding special forest products.
Response: Section 223.240 has been revised to make clear that
nothing in this rule conflicts with any treaties. The Forest Service
recognizes that the original proposed wording was construed by
reviewers to be inaccurate and understands that Indian treaties are the
supreme law of the land and that treaty rights are reserved rights that
were negotiated and retained during treaty making through Congressional
action. Further, the Forest Service has taken action to change some of
the language in the rule to clearly reflect Indian Treaty rights.
In referring to treaty rights, the original language in the rule
stated that Tribes ``* * * may harvest special forest products in
accordance with the terms of such treaty rights.'' This language was
changed to recognize the fact that these gathering rights were never
relinquished by Tribes. Further, by removing the word ``may'' the
Forest Service is recognizing that the Agency is not in the position of
allowing Tribes to harvest what rightfully belongs to them under their
treaty rights. Section 223.240 now states that ``A member of a Tribe
with treaty or other reserved rights related to special forest products
retains his/her ability to harvest special forest products in full
accordance with existing rights, including free-use harvest without
obtaining a free-use permit.''
Trust Responsibilities
Comment: Commenters believe that the proposed regulations fail to
meet the trust responsibilities of the Forest Service. These commenters
assert that the Forest Service's trust responsibility includes
providing access to special forest products/forest botanical products
for Tribes and Tribal members, and also includes protecting against
excess commercial harvest of traditionally important plants. One Tribe
cited a Forest Service Manual directive it believes supports its
position. Several commenters indicated that gathering and gathering
sites are central to American Indian culture and spiritual practices,
and, therefore, the federal trust responsibility requires the Forest
Service to protect them. Some commenters also believe that the Forest
Service did not consult adequately with Tribes in the development of
the proposed regulations and, in so doing, violated its trust
responsibility. Nontribal commenters with federal agencies imply that
they believe the regulations as written do not constitute a policy that
is supportive of American Indian gathering and would impede the Forest
Service's ability to discharge its trust responsibilities in a
respectful manner.
Response: This final rule is consistent with the Forest Service's
trust responsibilities. Further, as mentioned in the response titled
``Consultation'', the Forest Service consulted with federally-
recognized Tribes on matters related to this rule.
Cultural and Spiritual Uses
Comment: Commenters stated that special forest products/forest
botanical products have important cultural and spiritual uses by
Americans of diverse ethnic backgrounds. One commenter provided
examples of cultural uses, while another provided a statement
indicative of the personal importance of gathering that could be
interpreted as a spiritual experience: ``My time in the forests is the
most meaningful time to me, when I can experience the beauty and
fruitfulness of our world.''
Response: The Agency recognizes the importance of special forest
products and forest botanical products to all users. This rule will
help to increase the Forest Service's ability to meet special forest
product demand, while assuring a sustainable supply.
Decision-Making Levels
Comment: Several comments discussed including Forest Service
organizational levels at which decision-making authority should reside.
Some commenters stated that decision-making concerning implementation
of the special forest products and forest botanical products regulation
should occur at the local or District level. The commenters asserted
that local or district personnel are familiar with the local biological
and cultural conditions and can develop appropriate programs to
safeguard both. Commenters identified several types of decisions they
believe should be made at the local level, including which species and
types of special forest products and forest botanical products should
require active management, harvest limits, and permit information.
Commenters also expressed the belief that decisions, especially on
exemptions from permit and fee requirements, are best made at the local
level. One commenter called for local or regional decision-making
within the scope of national guidance. Commenters further asserted that
government-to-government consultations with Tribes should occur at the
local level. Another commenter provided examples of successful
consultations with local stakeholders, including Tribes, which resulted
in programs that include a permitting program tied to ongoing
monitoring.
In addition, some commenters prefer negotiating specific terms of
agreements at the forest or district level. However, others expressed
strong concerns about ``too much discretion'' at the local or regional
level for interpretation of treaty rights and too much reliance upon
local goodwill providing for the traditional gathering needs of non-
treaty tribes and individuals.
Response: Decision-making authority for special forest products/
forest botanical products has been delegated as follows: (1) The Forest
Service Chief has been delegated authority to act for the Secretary of
Agriculture in the sale and disposal of timber and forest products,
pursuant to 7 CFR 2.60 and (2) FSM 2404.2 delegates the Chief's
authority over the sale and disposal of timber and other forest
products to the Forest Management Director (Washington Office) and
Forest Service line officers (such as regional foresters, forest
supervisors, and district rangers) subject to specified reservations
and limitations (FSM 2404.28, exhibit 01). Depending upon the scope of
the project, responsibility, and/or delegated
[[Page 79374]]
authority, and, except as specified in this rule, decisions are
generally made at the local forest or district level by the forest
supervisor or district ranger, respectively.
Laws and Policies
Comment: The following were cited by commenters as possibly being
in conflict with the proposed regulations: (1) Treaty and trust laws;
(2) the American Indian Religious Freedom Act; (3) the National
Historic Preservation Act; (4) Executive Order 13175; (5) Executive
Order 12898; and (6) Public Law 106-113 as amended by 108-108. In
addition, commenters cited specific Forest Service policy including:
(1) Supplements to the FSM in Region 5 that allow free personal use
with permit for tribal members; (2) FSM 1563.02 for Region 5 (Amendment
1500-2007-1, approved July 25, 2007) re: ``regulation of commercial
harvests and precedence of personal use over commercial''; (3) North
Carolina National Forest (Region 8) supplement r8--nc--2400-2005-1,
document 2467 (April 25, 2005), re: ``calculation that ignores market
values at the point of harvest''; (4) FSM 1563.1 and FSH 1509.13,
Chapter 10, regarding directions on the exercise of regulatory
authority and consultation with tribes and honoring of treaty rights
and trust responsibilities; (5) FSH 2409.18, 87.17 regarding
``consultation with treaty and non-treaty Tribes prior to the adoption
of any harvest plan for areas that include Tribal ancestral ground'';
(6) FSM 1563.01f, re: use of cooperative agreements with Tribe; (7) FSM
1563.01(d), re: interpreting treaties as they would have been by the
tribes signing them at the time; and (8) FSM 1524 and 1563.03, re:
constraints to Forest Service regulation of special forest products/
forest botanical products by treaty rights and trust obligations.
Response: The rule is consistent with all applicable laws and
regulations. The Forest Service will revise any provisions in the
Forest Service Manual or Forest Service Handbook that are inconsistent
with this rule.
Income
Comment: Many comments indicated that special forest products and
forest botanical products are a source of income for individuals and
communities. Some commenters believe the regulations will result in
lower incomes and loss of self-employment for thousands of individuals
in rural communities. One comment stated that the prohibition on
gathering from some national forests already has resulted in ``severe
economic hardship.'' Another commenter stated, ``We are trying to make
a living without public assistance and without cutting down the
trees.'' One commenter does not believe that the scale of the potential
negative impact on incomes in rural communities was adequately
addressed in the preparation of the regulations.
Response: The rule will have little or no impact on the incomes of
those who rely on the gathering of special forest products. The rule
was reviewed under U.S. Department of Agriculture procedures and
Executive Order 12866 on Regulatory Planning and Review as amended by
Executive Order 13422. OMB determined that the rule is not significant
and that it 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.
Implementation of the final rule increases the Forest Service's
ability to meet special forest products demand while assuring a
sustainable supply. Maintaining a sustainable supply of special forest
products should result in members of the public having a better
opportunity to obtain special forest products.
Special Forest Products/Forest Botanical Products Industry
Comment: Commenters described the structure of the special forest
products/forest botanical products-based industry, and expressed
concerns about the rule's effects on the industry. Several commenters
disputed OMB's finding that the regulation's potential impact would be
lower than $100 million. One commenter stated that economists have
estimated the economic value of floral greens and wild mushrooms alone
in just three states at $141 million. The same commenter also stated
it's highly probable that the aggregate economic value of the hundreds
of SFPs harvested commercially in the United States is several billion
dollars and that much of that harvest is taking place on national
forests. Another commenter remarked that the $3 million value of
special forest products revenues from National Forest System lands
appears to be a gross underestimate stating that special forest
products revenues, based upon the Forest Service's own reporting
system, totaled $6,119,947 for Forest Service Region Six.
Another commenter expressed concern regarding the advertisement and
bidding processes, under sections 223.227 to 223.232, for the sale of a
particular forest product for which the appraised value of the sale is
equal to or greater than $10,000 and suggests that the minimum amount
be increased to $100,000. The same commenter was concerned that absent
any clarification on how appraised values will be determined, that the
``sale'' of a forest product could consist of the entire annual
nationwide harvest of a particular forest product, the value of which
would, in many cases, very likely exceed $10,000. The following
industry generated figures were provided to support that assertion: $30
million for maple syrup in 1997; $2.5 million to collectors of black
walnuts in 2002 (estimated); and $340,000--$800,000 to harvesters of
wild black cohosh root in each of the three years 2003-2005 (calculated
at the 2007 value to harvesters of $2.50/pound based on AHPA's tonnage
surveys).
One commenter noted that special forest products/forest botanical
products actually support several industries including food, floral,
horticultural, and dietary supplements. The commenter noted that in
most cases, the supply chain has 3 or 4 steps prior to any significant
value-added process: (1) Harvest by self-employed individuals or small
groups of family and/or friends; (2) Harvesters sell to local buyers
(the point at which the commenter believes fair market value should be
assessed); (3) Local buyers sell to regional consolidators (unless they
have established direct connections farther up the supply chain); and
(4) Regional consolidators sell to a manufacturer. The commenter stated
that the largest price increases tend to occur beyond this point (step
4) in the supply chain and provided an example involving black cohosh
root. The same commenter also offered to share its industry tonnage
survey results with the Forest Service on an ongoing basis as one of
the best available measures of volumes and values for 20 special forest
products/forest botanical products species. The commenter noted,
however, that there is no way to determine what proportion of that
volume was harvested on national forests, although it is assumed to be
more than $10,000.
Commenters fear that implementation of the regulations, as written,
would favor very large businesses, and would result in the industry
being restructured in a way that would present an economic hardship for
rural communities, low income people, and minorities. More than half of
the comments on this specific topic stated that the bidding process
would most likely push out very small businesses and self-employed
individuals.
Commenters also identified permit prices and access to sufficient
amounts
[[Page 79375]]
of special forest products/forest botanical products to supply the
industry as concerns. Comments suggested that permit costs, if not
calculated at a reasonable percentage of the price paid to a
permittee's harvesters, could eliminate the harvesting activity as a
source of income. In addition, commenters asserted that rising permit
prices could ripple upward in the supply chain, resulting in product
prices beyond what consumers are willing to pay. Commenters also
expressed concern that if access to special forest products/forest
botanical products on national forests is shut down, as it has been on
some forests, inability to supply product also would harm the industry.
This comment was couched in terms of closing down access in the absence
of sound scientific information indicating a need to do so. These
commenters indicated general support for sustainable harvesting
measures.
Response: As stated above, the rule fully complies with all
applicable laws, regulations, U.S. Department of Agriculture
procedures, and Executive Order 12866 on Regulatory Planning and
Review, as amended by Executive Order 13422. Further, the OMB has
determined that the rule is not significant, will not have an annual
effect of $100 million or more on the economy, and will not adversely
affect productivity, competition, jobs, the environment, public health
or safety, or state or local governments. The rule itself does not
increase or decrease the supply of special forest products or forest
botanical products thus does not impact the receipts received by the
Forest Service. Further, the rule complies with Executive Order 13272,
``Proper Consideration of Small Entities in Agency Rulemaking'' 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 rule increases the Forest Service's ability to
meet increased demand for special forest products, which benefits
individuals and small businesses.
Many of the commenters provided values of special forest products
based either upon wholesale or retail values of the product. The Forest
Service bases its appraised value that it charges for a permit or a
contract on a fair market value that reflects the cost to a permittee
to collect or cut the product and transport the product to a point that
it could be sold. In response to comments regarding appraised values
and product prices, the Chief of the Forest Service establishes minimum
rates for the sale of special forest products or groups of special
forest products pursuant to section 223.221. In addition, the Chief
determines the appraised value of special forest products pursuant to
section 223.222. Pursuant to sections 223.221 and 223.222, products
must be sold at minimum rates or appraised value, whichever is higher.
Under section 223.227 the Forest Service generally is required to
advertise any sale of special forest products which has an appraised
value of $10,000 or greater rather than $100,000 as suggested by one
commenter. As there is competition for a lot of these special forest
products, advertising them is a fair approach to work with the public.
In the past we have used the timber regulations and Forest Service
Forest Management manuals and handbooks as the basis for appraising
special forest products. Each sale is appraised per procedures
identified in FSH 2409.18, sec. 45. Sales are not appraised based on
the nationwide annual value of a particular product, as one commenter
suggested. Sales are appraised individually, within each forest. One
individual sale may include multiple products. Appraised values,
including appraisal points, are determined in accordance with Forest
Service policy.
The Forest Service has a minimum charge of $20 for a permit or
contract except for the minimum charge for an individual Christmas tree
permit. As an example, if the minimum rate for a special forest product
is $5 for a particular unit of measure, a permit would allow up to 4
units of that particular product.
Regarding the comments about closing down access to forest product
harvesting in the absence of sound scientific information based upon
historical and other information, the Forest Service will only close
down access to special forest products for reasons including but not
limited to: (1) Ensuring public safety; (2) preventing interference
with Forest Service and/or commercial operations; (3) ensuring the
sustainability of a special forest product; or (4) otherwise protecting
National Forest System land. Whenever possible, the Agency will
consider scientific information in making determinations about whether
to close down access.
Development Process of Proposed Regulations
Comment: Some comments referred to the process used to develop the
proposed regulations. Several commenters believe that the regulations
as written should be abandoned and a new process should be commenced
that involves a substantive public involvement process. Many of these
individuals also contend that the regulations should be rewritten to
include a requirement for stakeholders to be involved in establishing
harvest limits, identifying fair market values, setting permit prices,
etc., with some calling for the Forest Service to require training for
its personnel on how to conduct such processes effectively. One
commenter offered the example of a successful collaborative process
that was used by a national forest to develop agreements for managing
special forest products/forest botanical products.
Response: The proposed rule included a 60-day comment period, which
was extended for an additional 30 days. Over 150 comments were
received. All comments received were considered in development of the
final rule. Further opportunities for collaboration and participation
will occur at the regional, forest, and local level, including, but not
limited to, during project planning, environmental analysis, and
implementation.
Regulatory Impact Determination
Comment: Commenters believe that there was inadequate review for
regulatory impact prior to the proposed regulation's publication. Read
together, the comments asserted that a regulatory impact review is
required based on at least three of the following reasons:
1. The annual national value of special forest products/forest
botanical products exceeds the monetary threshold necessary to trigger
the requirement for a regulatory impact review. Some of these comments
cite values for the annual harvest of products to support their
assertion.
2. The regulations as written would have a substantial impact on
incomes in rural communities, which have not been considered.
3. Potential impacts on small businesses, particularly from the
proposed bidding process, would be substantial and would effectively
restructure the industry.
Many commenters also stated that a NEPA review is required because
they believe the regulations are likely to have cultural and ecological
impacts. Some requested public release of the data OMB used to
determine that there would be no significant impacts. Other commenters
stated that the requirement for free or personal use permits would be
burdensome for both the public and the Agency and could expose the
Forest Service to risk of litigation.
[[Page 79376]]
Response: The rule was reviewed under U.S. Department of
Agriculture procedures and Executive Order 12866 on Regulatory Planning
and Review, as amended by Executive Order 13422. OMB determined that
the rule was not significant, would not have an annual effect of $100
million or more on the economy, and would not adversely affect
productivity, competition, jobs, the environment, public health and
safety, or state and local governments.
The Agency believes the rule actually increases the Forest
Service's ability to meet special forest products demand, while
assuring a sustainable supply. Maintaining a sustainable supply will
benefit individuals and small businesses.
After consideration of the rule under Executive Order 13272,
``Proper Consideration of Small Entities in Agency Rulemaking,'' and
the Small Business Regulatory Enforcement Act of 1996 (SBREFA), which
amended the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Forest Service determined that this action will not have a significant
economic impact on a substantial number of small entities as defined by
the Executive Order. Further, the proposed rule will have no adverse
impact on small business, small not-for-profit organizations, or small
units of government.
The Forest Service also determined that the rule would have no
direct or indirect effect on the environment. 36 CFR 220.6(d)(2)
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 the 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.
Pursuant to FSH 2409.18 section 87.13, the approving officer for
the harvest and sale of special forest products must ensure that the
actions are consistent with applicable land and resource management
plans, including environmental quality standards.
Regarding the comment that the requirement for permits would be
burdensome and could expose the Agency to litigation, in the proposed
rule, the Agency unintentionally omitted disclosure of a current Office
of Management and Budget (OMB) approved information collection for
associated permits and contracts; this omission has been corrected and
the information now appears in the Controlling Paperwork Burdens on the
Public section.
Permits and fees are not always required. For example, a person may
harvest a forest botanical product or special forest product up to the
incidental use harvest level without obtaining a permit. In addition,
there are no fees associated with the free and personal use.
Stewardship
Comment: One commenter proposed collaborating with the Forest
Service to develop guidelines for good stewardship of special forest
products/forest botanical products. Other commenters stated that in
many cases their practices enhance local populations of special forest
products/forest botanical products. Another commenter believes that the
regulations as written would be a barrier to promoting restoration of
native medicinal species and their positive ecological outcomes. One
commenter asserted that good stewardship is more likely to follow if
harvesters are involved in decision-making processes regarding
regulation of special forest products/forest botanical products and if
they have a long-term stake in these resources. One commenter stated
that in several years of working with tribes on traditional management
of special forest products/forest botanical products, they had never
observed damage by traditional harvesters but have seen ecologically
beneficial effects.
Response: The final rule will result in the good stewardship of
special forest products and forest botanical products and is not a
barrier to promoting restoration of native medicinal species and their
positive ecological outcomes. In addition, the Forest Service
appreciates and welcomes the many opportunities it will have to work
with members of the public throughout the planning, analysis, and
implementation of special forest products and botanical forest products
projects. We believe these opportunities for consultation and
collaboration will ensure sustainability and good stewardship.
Subsistence
Comment: Commenters believe that the rules as written would have a
negative effect on people who rely on special forest products/forest
botanical products for subsistence. Several of the commenters are
concerned that personal use levels set to satisfy what are deemed to be
recreational needs will not be adequate for subsistence gatherers and
ask that subsistence be identified as a separate category for which
harvest limits are set. Some note that this may be an environmental
justice issue that should be considered under the terms of Executive
Order 12898.
One commenter stated that there are people who are dependent upon
subsistence gathering and indicated that special forest products/forest
botanical products are an important aspect of subsistence. One
commenter indicated that tan oak mushrooms have important subsistence
uses in the local community and that its importance and use is not
confined to American Indians. Another noted that subsistence gathering
is recognized in an MOU between the Forest Service and tribes in
several western forests. One individual asserted that the definition of
subsistence in a contemporary context must include trade of traditional
crafts, arts, etc.
Response: The Forest Service has promulgated this rule in order to
promote the sustainable use of special forest products in light of the
increased public demands, for both timber and non-timber special forest
products, over the past 10 years. In many cases, these demands are
challenging sustainability particularly in the most heavily used parts
of the Nation's Forest System.
This rule will not interfere with the established rights of any
group to harvest or use special forest products. It does provide,
however, for the determination and monitoring of sustainable harvest
levels and provides a mechanism for increasing or decreasing harvest
levels as appropriate based on the monitoring results. This rule does
not affect subsistence gathering; it just requires a permit process
above the product's incidental-use harvest level. The rule also
provides for the contracts and permits that will be used by the Agency
to administer the harvest and use of special forest products and forest
botanical products. By maintaining sustainability, this rule helps to
provide for the continuity of all uses, including subsistence.
Responsible forest officers determine personal-use harvest levels
for specific forest botanical products (section 223.279). These levels
shall be equal to the amount or quantity authorized for free use under
section 223.239(a), which references personal, non-commercial use,
rather than recreational needs as one commenter believed.
In response to the commenter asking that subsistence be identified
as a separate category for which harvest limits are set, regardless of
the product's eventual use, prior to offering a special forest product
for sale or free use, the responsible forest officer must determine the
product's sustainable harvest level. The Agency does not feel
[[Page 79377]]
a separate category is needed for subsistence as subsistence is tied to
a product's sustainable harvest level. A special forest product's
sustainable harvest level is the total quantity of the product that can
be harvested annually in perpetuity on a sustained yield basis.
Responsible forest officers are not authorized harvest or free use of
special forest products in an amount exceeding known sustainable
harvest levels.
There are no environmental justice issues under this rule. The rule
provides for free personal, non-commercial use of both special forest
products and forest botanical products, under sections 223.239 and
223.279.
The rule allows for regional foresters to issue MOUs and MOAs,
consistent with subparts G and H, to promote local collaboration, issue
resolution, and local implementation of the rule. The rule also allows
for continuance of existing MOUs and MOAs although they must be made
consistent with the rule within 24 months from December 29, 2008 or
those agreements will terminate.
Subpart G--Special Forest Products
Proposed Section 223 Applicability
Summary of Changes in Proposed Section 223.215 (Final Rule Section
223.215)
No comments were received directly relating to this section.
For clarification purposes, minor wording changes were made to this
section and information regarding permit requirements for free use
above the incidental-use harvest level was added.
Proposed Section 223.216 Definitions
Summary of Changes in Proposed Section 223.216 (Final Rule Section
223.216)
For clarification purposes, the title of section 223.216 was
changed to include special forest products. In response to comments and
for clarification, a definition of ``person'' was added. The term
``purchaser'' was replaced with ``person'' throughout the rule to
reflect the fact that not everyone harvesting forest products will be
purchasing the products through a sale. Some products may be obtained
via permit or free use authorization. For clarification, the definition
of special forest products was refined in the final rule by inserting
the words ``but not limited to'' to clarify that the products
identified in the definition are not all inclusive. Further, the
reasons for collection were struck from the definition because the
Agency did not intend to insert an intent element into the definition.
Comment: Commenters noted that the terms special forest products
and forest botanical products are similar and/or confusing, aren't
distinctive, do not contain certain species of particular importance
(such as, but not limited to, epiphytes, bromeliads, orchids, and
ferns), and include products that should not be regulated (such as
fence material, mine props, post and poles, shingle and shake bolts,
and rails).
Response: The definitions of special forest products and forest
botanical products are very similar because forest botanical products
are a naturally occurring subset of Special Forest Products. Further,
the products mentioned by name in the definitions are not all
inclusive. Regarding the commenters' question as to why certain special
forest products are regulated, the Forest Service considers posts,
poles, rails, shingle and shake bolts, firewood, fence stays, vegas,
mine props, and bow staves as special forest products, but not forest
botanical products because they do not occur naturally. The Agency has
a history of regarding fence material, mine props, post and poles,
shingle and shake bolts, and rails, as special forest products and
plans to continue to do so. The authority for selling these products is
found at 36 CFR 223.1.
Comment: Some commenters expressed the need to define ``fair market
value,'' ``appraised value,'' and ``minimum rates'' and wanted these
definitions written in such a manner that they were determined at the
point of harvest and not on a value added basis. Another commenter
requested a definition for the term ``responsible officer,''
particularly in relationship to where the individual is stationed. One
commenter noted that the terms ``protect the forest'' or for ``purposes
of health and safety'' were not defined and the commenter was concerned
that the regional forester would have unlimited discretion over the
application of treaty-protected gathering rights to Forest Service
lands. Another commenter was concerned that the terms ``threatened'' or
``endangered'' species were not defined and was unclear how or by whom
such threat or danger would be determined.
Response: The Forest Service follows the regulations at 36 CFR
223.222, which set forth authorities for determining appraised value of
special forest products and 36 CFR 223.278 for forest botanical
products. The Forest Service determines fair market value of forest
botanical products under 36 CFR 223.278. Per 26 CFR 223.278, the fair
market value of a forest botanical product is equal to the appraised
value.
The process that the Forest Service has used to determine ``fair
market value,'' appraised value, and minimum rates or standard rates
for special forest products has historically been based upon the same
process noted in the Forest Service manual and handbooks for timber
sales. Special forest products, and now forest botanical products, were
considered the ``other forest products'' identified in NFMA and in the
manual and handbooks.
Minimum rates are the lowest rate that the Forest Service will
accept for a product. Standard rates, based upon historical data, are
set and used as the lowest rate that the Forest Service will accept for
a product when an appraisal is not needed or is not practical for a
product. For some products, minimum rates and standard rates may be the
same.
Appraised rates are developed to provide a fair market value for a
product. Under the rule, valid methods of appraisal include but are not
limited to transaction evidence appraisals, analytical appraisals,
comparison appraisals, and independent estimates based on average
investments. The basic appraisal systems used by the Agency include
residual value appraisals (a type of analytical appraisal) and
transaction evidence appraisals, which are used depending on the
information available. To determine an appraised value, either
appraisal system selects an appraisal or marketing point at which a
product can be further manufactured or sold to a collector or
processor. The appraisal takes into consideration the costs to pick or
produce the product and the cost to transport it to the marketing
point. The rates that the Forest Service charges does not include any
value added to the product after delivery to the appraisal or marketing
point.
The Forest Service uses the term responsible forest officer for the
official responsible for the particular decision being made. This
individual may be stationed at any office (district, forest, regional,
or national) depending upon the decision and/or their delegated
authority.
The Forest Service uses the terms threatened or endangered Species
as defined by the Endangered Species Act of 1973, as amended (16 U.S.C.
1532 et seq.).
Commenters expressed concern that the ambiguity of the terms
``protect the forest'' and ``purposes of health and safety'' gives a
regional forester unlimited discretion over the application of treaty-
protected gathering rights on National Forest System lands. In
response, the Forest Service revised section 223.240 to specify that
the
[[Page 79378]]
Forest Service will only set conditions on the harvest of a special
forest product by a Tribe with treaty or other reserved rights related
to that special forest product to ensure the product's sustainability
or to otherwise protect National Forest System land. In addition,
section 223.240 now states that the Forest Service will only prohibit
Tribes with treaty or other reserved rights related to special forest
products from harvesting that special forest product to protect public
health and safety or to ensure sustainable harvest levels. The
responsible forest officer has the discretion, on a case-by-case basis,
to determine what may be needed to protect public health and safety and
to ensure sustainability on National Forest System lands.
No definitions of ``fair market value,'' ``appraised value,''
``minimum rates,'' ``responsible forest officer,'' ``forest
protection,'' ``health and safety,'' or ``threatened or endangered
species'' will be added to this subpart.
Proposed Section 223.217 Authority To Dispose of Special Forest
Products
Summary of Changes in Proposed Section 223.217 (Final Rule Section
223.217)
No changes were made to this section.
Comment: Some respondents stated that Tribes have vested property
interests in the resources, and that the resources are not solely owned
by the Forest Service.
Response: The regulations at 36 CFR part 223 govern the sale and
disposal of national forest system timber and forest products. This
final rule has been analyzed in accordance with the principles and
criteria contained in Executive Order 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights, and it
has been determined that this action does not take any private
property. Tribes with treaty or other reserved rights retain their
ability to harvest special forest products in full accordance with
existing rights.
Proposed Section 223.218 Consistency With Plans, Environmental
Standards, and Other Management Requirements
Summary of Changes in Proposed Section 223.218 (Final Rule Section
223.218)
Minor changes in wording were made to this section for
clarification.
Comment: A number of commenters asserted that the rule needs to
undergo National Environmental Policy Act (NEPA) evaluation and that
the rule should be consistent with NEPA. Other commenters mentioned
forest plans, environmental standards, and questioned the adequacy of
or further need to consider/study/include other management standards,
including treaty and other tribal rights, Executive Order 12898, the
Regulatory Impact Analysis, the United Nations (UN) Convention on
Biodiversity, the UN Declaration on the Rights of Indigenous Peoples,
and the International Standard for Sustainable Wild Collection of
Medicinal and Aromatic Plants (ISSC-MAP) principles.
Response: Although the rule itself has been determined to not
require NEPA analysis, the harvest and sale of special forest products,
including the subset of forest botanical products, shall be authorized
in accordance with all applicable laws, regulations, and policies,
including NEPA and forest land management plans on National Forest
System lands (reference FSH 1909.15, sec. 31.1b (57 FR 43180; September
18, 1992)).
Responsible forest officers also follow policy found in FSH 1909.15
to determine the level of environmental analysis documentation needed
for disclosing the environmental effects of individual programs or
projects. During the NEPA process for land management plans and site-
specific actions, interdisciplinary team members and the responsible
forest officer may consider many sources of data and information.
Proposed Section 223.219 Sustainable Harvest of Special Forest Products
Summary of Changes in Proposed Section 223.219 (Final Rule Section
223.219)
Minor wording changes were made to this section. In addition
section 223.219 was revised to specify that forest officers may consult
with appropriate parties when determining sustainable harvest levels.
This revision was made in response to comments received by the Forest
Service. In response to comments, factors were added that the
responsible forest officer may consider when making their
sustainability determinations and establishing monitoring timeframes.
Comment: Comments included determining sustainable harvest limits
specific to species and location because of year-to-year and site-to-
site variability, and the need to consider factors including climate
change, and geographic scale. Concerns were expressed doubting the
Forest Service's resources and/or knowledge base to determine
sustainability. Some respondents are concerned that the three-year
baseline is not an adequate measure to set sustainable harvest levels
because of high variability of many species.
Response: A responsible forest officer is charged with determining
the sustainable harvest level for each special forest product prior to
offering them for sale or free use. In doing so, responsible forest
officers may consider all sources of information and expertise
available, including sources outside the Agency, when making their
determination. In response to comments, language was added to reflect
that ``responsible forest officers will consult with Tribes, to the
extent appropriate, to determine sustainable harvest levels based on
historical information.'' In addition, the rule now provides that
``responsible forest officers may consult with other appropriate
parties to determine sustainable harvest levels based on historical
information.'' Regarding commenters' concerns about the Forest
Service's ability to determine sustainable harvest levels, the Forest
Service has the resources to determine sustainability. The Forest
Service has the appropriate knowledge base to comply with the
regulation. Where applicable, the Forest Service considers the
expertise and knowledge available from other parties, including Tribes.
The rule now provides that responsible forest officers may consider
factors such as year-to-year and site-to-site variability, climate,
weather change, geographic scale, and scientific data available prior
to making their sustainability determination and establishing
monitoring timeframes (section 223.219(a)). In addition, the Forest
Service is required to monitor the effects of harvesting on the
sustainability of special forest products, at least once every three
fiscal years, or as otherwise established by a regional forester
(section 223.219(c)). Such monitoring may include, but is not limited
to, on-site examination of the product, including both harvested and
non-harvested areas, and a review of past and projected harvest levels
to the extent such information is available.
Proposed Section 223.220 Quantity Determination
Summary of Changes in Proposed Section 223.220 (Final Rule Section
223.220)
No comments were received specific to this section.
No changes were made to this section.
[[Page 79379]]
Appraisal and Pricing
Proposed Section 223.221 Establishing Minimum Rates
Summary of Changes in Proposed Section 223.221 (Final Rule Section
223.221)
The language was revised to clarify that the Chief establishes
minimum rates in addition to establishing methods for setting minimum
rates. In addition, language was added to explicitly reference the
Forest Service's statutory obligation to sell special forest products
for minimum rates or appraised value, whichever is greater.
Comment: Commenters suggested conducting inventories prior to the
issuance of permits and including the cost of such inventories in the
minimum rate. Others suggested including the full range of
stakeholders, including special forest products and forest botanical
products harvesters and buyers, and involving the best available
science in the process of setting minimum rates (and harvest levels,
prices, and waivers). Some respondents believe that the Forest Service
lacks the necessary expertise to establish sound minimum rates without
the participation of knowledgeable stakeholders. To develop
ecologically and economically sustainable and culturally sensitive
harvesting limits, prices, and monitoring processes, some commenters
believe the Agency will need to include harvesters and buyers in their
decision-making process.
Response: For special forest products, the minimum rates are those
as explained in the response to comments under section 223.216. For
forest botanical products, a fee in addition to the charged rate may be
included that would cover the cost of administering the permit/
contract. In this instance, the fee may be used for administration of
the permit/contract including inventories to determine harvest levels
and sustainability levels of forest botanical products. As noted by the
commenters, the Forest Service will need help from knowledgeable
stakeholders, harvesters, and buyers to provide information relating to
cost to produce products along with information concerning the amount
harvested and/or available for harvesting. This information will be
used in appraisal systems and in the monitoring needs to determine
sustainability levels.
The Forest Service uses the Forest Products Free Use Permit (FS-
2400-8) for the personal use of products above the product's incidental
use harvest level for both special forest products and forest botanical
products. These products obtained under this permit can not be resold.
For charge permits, under which the material can be resold, the Forest
Service uses the Forest Products Removal Permit and Cash Receipt (FS-
2400-1) for values up to $300. For values above this amount, the Forest
Service uses contracts identified earlier.
Proposed Section 223.222 Appraisal
Summary of Changes in Proposed Section 223.222 (Final Rule Section
223.222)
The language was revised to clarify that the Chief establishes
appraised value and establishes methods for determining appraised
value. In addition, the inadvertent use of fair market value was
replaced with appraised value.
Comment: Some commenters believe that fees should be set in
relation to the point of harvest rather than at a later stage in the
market chain and harvesters and buyers should be consulted and involved
in the process of determining fair market value. Several commenters
cautioned that fees should not be set as high as to price products made
from special forest products/forest botanical products out of the
market. One respondent asserted that if fees are set beyond the
financial means of low-income or tribal harvesters, this may result in
non-compliance and constitute an environmental justice issue under the
terms of Executive Order 12898. This individual suggests that the
Forest Service should seek advice from its Office of General Counsel in
this regard.
Response: There are no permit fees for personal use and free use.
There are no environmental justice issues under this rule. Under
section 223.278, the responsible forest officer ensures that the sale
price of any forest botanical product includes a portion of the
product's fair market value and a portion of the costs incurred by the
Department of Agriculture associated with granting, modifying, or
monitoring the authorization for harvest of forest botanical products,
including the costs of any environmental or other analysis. The fair
market value of forest botanical products is equal to the appraised
value determined in accordance with section 223.222. The sum of the
portions of fair market value and costs making up the sale price must
be greater than or equal to the forest botanical product's fair market
value.
Proposed Sections 223.223 Advance Payment; 223.224 Performance Bonds
and Security Fees; 223.225 Contract, Permit, and Instrument Term; and
223.226 Adjustment of Term of Contract, Permit, or Other Instrument for
Force Majeure Delay
Summary of Changes in Proposed Sections 223.223, 223.224, 223.225, and
223.226 (Final Rule Sections 223.223, 223.224, 223.225, and 223.226)
Minor wording changes were made to sections 223.223 for
clarification purposes. The word ``purchaser'' was replaced by
``person'' in section 223.223 for consistency with the definition of
``person'' added to section 223.216. Permits were inadvertently
included in section 223.226 of the proposed rule. However, permits do
not have force majeure. Thus, the word permit was removed from section
223.226 in the final rule. In addition, the finding regarding
substantial public interest was deleted as this finding does not apply
to force majeure extensions. The titles to 36 CFR 223.225 and 223.226
were changed slightly for clarification purposes.
Comment: Some commenters expressed concern that performance bonds
and security fees would be beyond the reach of many native peoples.
Others contend the rule should allow contracts with federally-
recognized tribes to exceed 10 years. Additional commenters expressed a
desire to place some areas within the national forests off limits to
commercial activities, including wilderness areas, roadless areas,
sensitive areas, areas with archaeological resources, and culturally
significant and/or traditional religious areas. One commenter felt that
provisions dealing with sales contracts, sales advertising, and
performance bonds and security fees would be applied to all businesses,
without regard to differences in size class, volumes harvested, or
ecological impacts, and that, as a result, small businesses would
endure a financial burden that may be borne more easily by large
businesses.
Response: Under section 223.224, a contract, permit, or other
authorizing instrument for the sale of special forest products may
require a person to furnish a performance bond or other security for
satisfactory compliance with its terms. Under 223.216, a person is
defined to include any individual, partnership, corporation,
association, Tribe, or other legal entity.
Sale contracts, by law, may not exceed 10 years in duration, unless
there is a finding by the Chief that better utilization of the various
forest resources (consistent with the
[[Page 79380]]
provisions of the Multiple-Use Sustained-Yield Act of 1960) will
result. The disposal of special forest products must be consistent with
applicable land management plans (36 CFR 223.218). Land management
plans consider the effects of various land management activities on all
resources, including, but not limited to, wilderness areas, roadless
areas, sensitive areas, areas with archaeological resources, and
culturally significant and/or traditional religious areas.
Effects on small entities and small business concerns were
considered in light of Executive Order 13272. The Forest Service
determined that the rule will have no adverse impact on small business,
small not-for-profit organizations, or small units of government.
Proposed Sections 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; and 223.232 Disclosure of Relation to Other
Bidders
Summary of Changes in Proposed Sections 223.227, 223.228, 223.229,
223.230, 223.231, and 223.232 (Final Rule Sections 223.227, 223.228,
223.229, 223.230, 223.231, and 223.232)
Minor wording changes were made to sections 223.227, 223.229,
223.230, 223.231 and 223.232 for clarification purposes.
Comment: Commenters expressed objections to a bidding system or
process for special forest products/forest botanical products, and felt
that a bidding system or process would place very small enterprises at
a disadvantage and likely drive them out of business. Others call for
set asides for very small businesses. Additional commenters asserted
that any contracts, advertising, bonds, and security fees should be
structured in relation to market conditions, harvest quantities, and
ecological impacts. A few called for harvesters and buyers to be
involved in developing appropriate sales processes. One commenter
suggested that only very large-scale, potentially damaging harvests
should require the contracting processes set forth in the regulations.
Another commenter felt that the appraised value of $10,000 is too
high a trigger for the advertisement process given the market value of
many of the products that might be sold and that this threshold should
be set at a lower value.
A different commenter believes that the Forest Service ``is
misinterpreting its statutory responsibility under the pilot program
law,'' asserting that the 2004 legislation requires the Agency to use a
bidding process as one means of establishing fair market value for
forest botanical products during the pilot program. The commenter
believes that this does not constitute a mandate to institute a bidding
process for special forest products like that used for timber.
Many comments stressed that where treaties exist, treaty terms
prevail and tribes cannot be subject to the provisions of this section
or any others that contravene guaranteed rights. The award process
should prioritize sales to tribes and/or indigenous people for
commercial harvests let on tribes' ancestral lands. Some respondents
want to be allowed to purchase product sales for conservation purposes,
that is, for the express intent not to harvest.
Provisions regarding allowable harvesting techniques should be
strengthened with allowable techniques specified in contracts. For
example, where appropriate, the contracts should adopt state
prohibitions against certain berry harvesting techniques.
Response: Most special forest products have been sold on permits
and small sales to individuals or small companies. Large business has
not purchased much of the sales for special forest products in the
past. The Small Business Administration sets the size class for
purchasers but to-date a need has not been demonstrated that special
attention is needed to protect the individuals purchasing special
forest products. Market conditions, available harvest quantities, and
ecological impacts all are considered in the appraisal and contracting
processes. Where appropriate, information is obtained from harvesters
and buyers to develop the information needed for the appraisals and for
determining sustainable harvest levels.
One commenter felt that $10,000 is too high a level to trigger the
advertisement process. The Agency agrees and when there is either
competition for a product or the product availability is scarce, the
Forest Service may advertise the product. A commenter noted that
bidding might be one way to determine fair market value. The Agency
agrees and this is part of the transaction appraisal system that the
Agency uses. As to prioritizing sales, this is a local concern that
needs to be determined on a case-by-case basis based upon treaty or
other reserved rights.
Another commenter suggested that a person be able to purchase
special forest products and then not have to harvest the product as a
means for environmental protection. The Forest Service disagrees in
that the intent of the special forest products program is to provide
products to the American public. There are sufficient other means to
protect the sustainability of a product such as harvesting only within
the sustainable harvest levels.
In response to the comment regarding bonding, in accordance with 36
CFR 223.224 and Forest Service policy, sales contracts, permits, or
other authorized instruments may require the purchaser to furnish a
performance bond or other security.
This rule honors and recognizes the historical treaty and reserved
rights retained by Indian tribes, and it recognizes the importance of
traditional and cultural forest products in the daily lives of Indians.
When preparing appropriate contract or permit instruments, forest
officers may add approved special provisions and appropriate other
conditions, regarding proper harvesting techniques, per section
223.239.
Proposed Sections 223.233 Award to Highest Bidder and 223.234
Determination of Purchaser Responsibility
Summary of Changes in Proposed Sections 223.233 and 223.234--(Final
Rule Sections 223.233 and 223.234)
In Section 223.233, minor word changes were made for clarification
purposes. Specifically added the word bidder to 233(a)(2)(ii) so that
it now reads ``* * * next highest qualified bidder'' as the term bidder
was inadvertently left out in the proposed rule. Also clarified
223.233(a)(2)(iii), as the proposed rule referenced ``conditions of the
sale'' and the final rule now references ``conditions in the sale's
prospectus'' to reflect what document these conditions are found in.
In section 223.234, minor word changes were made for clarification
purposes. The word purchaser was dropped from the title as the section
also pertains to persons. The word person was used in 223.234(a) in
place of the term purchaser to reflect the fact that not everyone
harvesting forest products will be purchasing the products through a
sale; some products may be obtained via permit (or even free use under
section 223.239). The term declared high bidder was used throughout the
section in place of the terms purchaser and prospective purchaser, as
appropriate, because the declared high bidder on a contract is a
contractor, but a declared high bidder on a permit is a person.
In section 223.234(6) regarding satisfactory performance, the
agency
[[Page 79381]]
reference was changed from Forest Service to U.S Government, as these
same persons could be currently working on other federal ownerships as
well.
Section 223.234(c) was added to recognize that in some instances
the declared high bidder may be relying on affiliates for financial
backing and thus, the responsible forest officer needs to consider the
affiliates possible past performance and integrity in regards to how
they may affect the declared high bidder's ability to meet the
applicable standards for responsibility.
Comment: The one commenter recommended that the Forest Service
consider the use of best value criteria, rather than highest bidder,
for the sale of special forest products because their experience has
shown that best value criteria leads to more competent contractors and
provides benefits to local communities.
Response: Historically the Forest Service has relied upon the
timber regulations, including authorized bidding methods and award to
highest bidder, for the sale of timber and other forest products
including special forest products. The Forest Service does use best
value awards under the stewardship contracting authority authorized
under Section 323 of Public Law 108-7 (16 U.S.C. 2104 Note, as revised
February 28, 2003 to reflect Sec. 323 of H.J. Res. 2 as enrolled). The
stewardship contracting authority grants the Forest Service authority
until September 30, 2010, to enter into stewardship contracting
projects for up to 10 years with private persons or public or private
entities, by contract or by agreement, to perform services to achieve
land management goals for the national forests or public lands that
meet local and rural community needs. A stewardship contract or
agreement could potentially include timber or special forest products.
Proposed Sections 223.235 Unilateral Delay, Suspension, or Modification
of Contracts, Permits, or Other Instruments Authorizing the Sale of
Special Forest Products; 223.236 Unilateral Termination; and 223.237
Request by Purchaser for Delay, Suspension, Modification, or
Termination
Summary of Changes in Proposed Sections 223.235, 223.236, and 223.237
(Final Rule Sections 223.235, 223.236, and 223.237)
Minor wording changes to sections 223.235 through 223.237. The word
person was used in place of the term purchaser to reflect the fact that
not everyone harvesting forest products will be purchasing the products
through a sale; some products may be obtained via permit. The word
purchaser was dropped from the title of section 223.237, as the section
also pertains to persons.
Comment: One commenter believes the belief that the Forest Service
needs authority to suspend or terminate contracts in order to mitigate
harm that has already been done, or prevent harm that might result
following an unanticipated natural disaster such as a fire. Another
commenter felt that a 10-year term was entirely too long to issue a
commercial permit without the Forest Service having any recourse to
pull a permit if resource damage is being done.
Response: The Forest Service already has the authority to suspend,
modify, or terminate contracts to prevent or mitigate harm including
that from an unanticipated natural disaster, under 36 CFR 223.235 and
223.236.
Proposed Sections 223.238 Free Use Authorization to U.S. Army, Navy,
and Air Force and 223.239 Free Use by Individuals
Summary of Changes in Proposed Sections 223.238 and 223.239 (Final Rule
Sections 223.238 and 223.239)
No changes were made to section 223.238.
Title and minor word and format changes were made to section
223.239, for clarity. The format of section 223.239 was restructured to
provide ease of interpretation and continuity including clarification
regarding when permits are or are not required. In addition 223.239(e)
was added to reflect the treaty or other reserved rights regarding free
use without a permit. Further, 223.239(f) was added to provide
opportunities, upon request of the governing body of a Tribe.
Comment: Some commenters are concerned about the implications of
the free use regulations, as written, on regional and national forest
level relations with tribes. These commenters urge that line officers
at local and regional levels be given the latitude to develop and honor
agreements with local traditional gatherers. One commenter asserted
that the Forest Service should consult with tribes prior to designating
free use areas to avoid culturally sensitive areas. Another commenter
noted that the provision to allow denial of harvest ``to otherwise
protect the forest'' is too broad, although there is support for local
flexibility. One commenter suggested that if free use permits are
required, these should be issued to American Indians on an annual basis
and cover the full range of items harvested.
Many comments focused on the feasibility of addressing all the
species and materials that are harvested in national forests and/or the
capacity of the Agency to do so. These comments implicitly and
explicitly suggested there is a strong distinction between large-scale
commercial harvests and the types of activities that might be included
under the terms of these sections, which is not reflected in the
regulations as written. Commenters expressed strong concerns about the
implications and logistics of implementing these sections. These
commenters believe that a very large number of species and materials
are harvested in national forests, mostly in small quantities and that
the Agency does not have the capacity to write permits for every one of
these species and materials and indicated that requiring regions to do
so would negatively impact their other functions. The commenters also
are concerned about the feasibility or reasonableness of monitoring
every species and the material gathered, given the generally small
harvest quantities. They feel that setting free use harvest levels is
problematic and asked who would make the determination(s).
Another commenter noted that motivations and volumes needed for
recreational collection, subsistence, and cultural observance are all
very different. If free use harvest levels are set at what are
considered to be appropriate levels for recreational collecting, there
will be inadequate material available for subsistence and cultural
observance.
Some commenters felt that subjecting free use permits to the same
requirements as commercial permits would be ``excessive and
unenforceable.''
Another commenter stated that if the regulations are implemented, a
free use permit system and designated free use areas will be essential
to the public's continued ability to engage in traditional gathering.
One commenter wanted to know the frequency with which one would
have to obtain a free use permit, the items and amounts that would be
covered, and where and when one would be required to get a permit.
Another commenter was concerned that exempting American Indians
from free use permit requirements could lead to actions that would
violate the Agency's racial profiling directives.
Response: Regional foresters are encouraged to resolve issues
concerning the granting of permits to tribes, racial profiling, and
implementation of these
[[Page 79382]]
regulations through the use of locally based partnerships, supplemental
guidance and collaborative projects. Further discussion regarding
agreements has already been addressed in the comment section titled
``Existing Memoranda of Understanding or Agreement.'' In addition,
compliance with Executive Order 13175 and Forest Service policy (FSM
1560) regarding consultation and coordination with Tribal Governments
is required. Further discussion regarding consultation that took place
has already been addressed in the background section titled ``Tribal
Impact Summary.''
Special Forest Products must be offered for sale or free use in a
manner that maintains these products on a sustainable basis. An
analysis, prior to the issuance of a contract, permit, or other
authorized instrument, is required to determine the effects on the
sustainability level if a special forest product is harvested and sold,
or provided for free use, and to determine whether there is sufficient
information to establish a sustainable sale or offer level. The
responsible forest officer shall also determine personal use harvest
levels, which shall be consistent with sustainable harvest levels.
Issues concerning amounts to be harvested under a permit, duration of
permits, and the type of products authorized for harvesting under a
permit will be considered when establishing sustainability levels of a
particular product. All such decisions shall be made by the responsible
forest officer under various sections of the rule including sections
223.219, 223.239, and 223.279.
Regarding permit requirements for free use versus commercial use,
under section 223.215, a commercial sale of special forest products
shall be governed by a contract, permit, or other authorizing
instrument. Free use above the incidental-use harvest level shall be
conducted under a permit, unless otherwise provided.
The forest officer may deny harvest of special forest products to
protect public safety, prevent interference with Forest Service and/or
commercial operations on a forest, ensure the sustainability of a
special forest product, and to otherwise protect National Forest System
Land.
It was never our intent to require a permit for every cone, berry,
or nut, and particularly for personal, non-commercial use. Therefore,
section 223.239(b) has been revised to allow free use and personal use
without a permit up to the incidental use harvest level. Incidental use
harvest levels are not recreational harvest levels, as one commenter
suggested. The incidental use harvest level covers small amounts of
special forest products, such as cones, mushrooms, berries, acorns,
black walnuts, or medicinal roots. Any free use of a special forest
product that does not have an incidental-use harvest level is subject
to the permit requirements under section 223.239. Section 223.239(b)
now provides that ``[n]o permit is required for the free use of a
special forest product at or below that product's incidental use
harvest level, which shall be determined at the discretion of the
Regional Forester or a Subordinate Officer.''
The Agency has the capacity to address all the special forest in
the National Forest System. Not every special forest product is found
on every national forest. The regulations provide regional foresters
discretion regarding determining free use without a permit up to the
incidental use harvest levels. Also, the regulations allow forest
officers to set conditions or deny free use harvest of a special forest
product for a number of specified reasons. The free use regulations in
section 223.239 are for personal, non-commercial use rather than large
scale commercial harvests as noted by one commenter. Regarding
feasibility or reasonableness of monitoring special forest products,
although monitoring of established harvest levels is required
(223.219(c)) the required ``at least once every three fiscal years''
time frame may be ``or as otherwise established'' by the regional
forester (223.219(c)).
Finally, nothing in the final rule will result in Forest Service
law enforcement officers engaging in racial profiling.
Comment: One commenter, a law enforcement officer, expressed
concern about the 36 CFR 261.6 regulations. The commenter was concerned
that the existing regulations prohibit the sale or exchange of timber
or other forest products obtained under free use would not have been
interpreted as including special forest products or forest botanical
products.
Response: The rule revises 36 CFR 261.6(f) to reflect the new free
use and personal use authorizations contained in subparts G and H. In
addition, the rule specifies the types of contractual documents
currently used by the Forest Service, explains the Forest Service's
interpretation of the term ``other forest products,'' and makes minor
textual clarifications. The final rule makes these changes as discussed
in the preamble section titled ``36 CFR 261.6--Timber and other forest
products.''
Proposed Section 223.240 Indian Tribes and Treaty and Other Reserved
Gathering Rights
Summary of Changes in Proposed Section 223.240 (Final Rule Section
223.240)
Title and minor wording changes for clarification purposes. In
response to comments, we changed the wording that ``any decision
restricting tribal off-reservation treaty rights needs to be well
documented'' to ``Regional Foresters will provide a Tribe with treaty
or other reserved rights related to special forest products that is
prohibited from harvesting a special forest product, with written
documentation supporting the decision.'' This final rule is consistent
with the Forest Service's trust responsibilities. Further, as mentioned
in the response titled ``consultation,'' the Forest Service consulted
with federally-recognized Tribes early on matters related to this rule.
Comment: A commenter objected that the section-by-section
discussion introduced significant elements not included or evident in
the text of the regulations themselves, particularly with regard to
Tribes and tribal access. Another commenter suggested that principles
three and four of the International Standard for Sustainable Wild
Collection of Medicinal and Aromatic Plants (ISSC-MAP) may be useful in
modifying this section. Those principles are: Principle 3--Complying
with Laws, Regulations, and Agreements and Principle 4--Respecting
Customary Rights.
Response: The section-by-section analysis in the proposed rule did
not introduce any new significant elements. The section-by-section
analysis was only intended to further explain the proposed rule. We
appreciate the comment about the ISSC-MAP information.
Proposed Section 223.241 Disposal of Seized Special Forest Products
Summary of Changes in Proposed Section 223.241 (Final Rule Section
223.241)
Minor word and format changes were made to this section. The list
of parties to whom free use of seized products may be made available,
was eliminated. The proposed rule appeared more restrictive and change
was made as the proposed rule language unintentionally limited the
parties to whom disposal of seized special forest products may be made
available and also unintentionally appeared to place a priority order
to the parties listed.
[[Page 79383]]
Comment: Some commenters expressed the sentiment that it is
wasteful to destroy seized special forest products/forest botanical
products. Others indicated that Tribes should be included in the list
of institutions and/or given preference in the disposition of seized
special forest products/forest botanical products. One respondent calls
for the inclusion of provisions for Agency accountability in relation
to seizure of special forest products/forest botanical products,
particularly when it occurs in remote areas. Specifically, the
commenter states that ``identities of the chain of control of evidence
must be made available to defendants, and defendants must be given a
written receipt listing the exact weight and a written description of
the material confiscated, including containers, fasteners, and carrying
devices.'' Another commenter believes that the list of criteria for
seized material that cannot be disposed of is too broad and should be
limited to species listed under the Endangered Species Act list or
listed under the Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES).
Response: The Forest Service may make seized products available for
free use or sale rather than destroy them. The proposed rule appeared
more restrictive and change was made as the proposed rule language
unintentionally limited the parties to whom disposal of seized special
forest products may be made available and also unintentionally appeared
to place a priority order to the parties listed. All parties, other
than the person who collected the products illegally, and in any
priority order may be considered by the Forest Service when making
seized products available. The Forest Service is not authorized to sell
or dispose of seized special forest products that are (1) listed or
proposed for listing as threatened or endangered under the Endangered
Species Act, (2) identified as prohibited for sale or trade under the
Convention on International Trade in Endangered Species (CITES); or (3)
listed on the regional forester's sensitive plant list, species of
concern or interest, or species of interest list.
Regarding the chain of custody comment, products harvested
illegally remain the property of the United States and are recorded in
the Law Enforcement Officer's evidence log.
Proposed Section 223.242 Supplemental Guidance, Memorandum of
Agreements and Memorandum of Understandings
Summary of Changes in Proposed Section 223.242
This section was added to the final rule in response to numerous
comments regarding the potential need for supplemental guidance,
memorandums of understanding, and memorandums of agreement for
effective implementation of the final rule. The Forest Service agrees
that supplemental guidance and other agreements are important tools
that may be helpful to promote local collaboration, issue resolution,
and local implementation of these regulations. Existing Memorandum of
Agreements and Memorandum of Understandings will be allowed to continue
but must be made consistent with subparts G and H within 24 months from
December 29, 2008 or those agreements will terminate. The period of 24
months was chosen to provide sufficient time for review and
consultation with Tribes or discussions with other agreement parties in
the revision process.
Subpart H--Forest Botanical Products
Proposed Sections 223.275; Establishment of a Pilot Program; 223.276
Applicability; and 223.277 Definitions
Summary of Changes in Proposed Sections 223.275, 223.276, and 223.277
(Final Rule Sections 223.275, 223.276, and 223.277)
Minor word changes were made to section 223.275 that clarify the
pilot program's duration. In addition, minor word changes were made in
sections 223.276 and 223.277 for clarity.
Comment: A few commenters asked for clarification regarding the two
dates presented in the discussion of the forest botanical products
pilot program (September 30, 2009 versus September 30, 2010).
Response: The Secretary of Agriculture may collect fees under the
pilot program authority through September 30, 2009, when the program
terminates unless extended or made permanent by Congress. Collected
funds may be spent on items authorized by the pilot program through
September 30, 2010, as identified in section 223.282, and authorized by
16 U.S.C. 528.
Proposed Section 223.278 Collection of Fees
Summary of Changes in Proposed Section 223.278 (Final Rule Section
223.278)
Language was added to this section to clarify that the fair market
value of forest botanical products equals the appraised value
determined in accordance with section 223.222. In addition, the title
of this section was changed for clarity.
Comment: Commenters are generally supportive of charging fees for
commercial harvest of special forest products/forest botanical products
on national forests, but did not agree with fees for personal harvest
or for harvesting by Tribes and American Indian individuals. Commenters
are concerned that if fees are charged, they be set at appropriate
levels. Some commenters suggested that fees be set at 3% of a product's
value at the point of harvest. Many commenters stated that the Forest
Service must or should consult harvesters (in particular), buyers, and/
or their representatives in this and all decision making processes
required by the proposed regulations. Respondents also stated their
``belief that the proposed rule does not reflect the intent of
Congress's 2004 pilot program amendments, which only require the Forest
Service to collect a portion of the fair market value and program
administration costs; the original legislation required collection of
not less than fair market value and all costs.
Response: Per section 223.279 of this rule, a person may harvest a
forest botanical product from National Forest System lands free of
charge for personal, non-commercial use up to the product's personal-
use harvest level. In addition, a permit is not required for personal
use below a product's incidental use harvest level, which shall be
determined at the discretion of the regional forester or a subordinate
officer.
In response to the comment that fees should be set at 3% of the
product value, the standard rate established must equal or exceed the
minimum rates (see section 223.221; FSM 2431.21b; and FSM 2431.31c).
Forest supervisors are directed to set standard rates at the pre-
harvested fair market value of the product, 10 percent (rather than the
3 percent suggested by the commenters) of the wholesale market value,
or the minimum rate, whichever is higher (FSH 2409.18, 87.3).
Fees are required to be charged for all forest botanical products
to recover a portion of the fair market value and a portion of the
costs associated with
[[Page 79384]]
granting, modifying, or monitoring the harvest of forest botanical
products through permits, contracts, or other authorized instruments
issued for such products. However, under section 223.280, the Forest
Service waives the collection of fees otherwise required, pursuant to
section 223.278, for federally-recognized Tribes seeking to harvest
forest botanical products for cultural, ceremonial, and/or traditional
purposes. Such purposes must be non-commercial, and any such harvest
may be conditioned or denied for reasons similar to those provided in
section 223.240 of subpart G. This final rule also waives fees for
Tribes with treaty or other reserved rights seeking to harvest forest
botanical products for cultural, ceremonial, and/or traditional
purposes in accordance with such treaty or other reserved rights. Such
purposes must be non-commercial, and any such harvest may be
conditioned or denied for reasons similar to those provided in section
223.240 of subpart G. Tribes with treaty or other reserved rights were
added to the final rule to recognize their rights to forest botanical
products for cultural, ceremonial, and/or traditional purposes in
accordance with such treaty or other reserved rights.
Regarding the commenter who stated their ``belief that the proposed
rule does not reflect the intent of Congress's 2004 pilot program
amendments, which only require the Forest Service to collect a portion
of the fair market value and program administration costs, the
responsible forest officer ensures that the sale price of any forest
botanical product includes a portion of the product's fair market value
and a portion of the costs incurred by the Department of Agriculture
(section 223.278). The Forest Service determines the costs incurred by
the Department of Agriculture associated with granting, modifying, or
monitoring the authorization for harvest of forest botanical products,
including the costs of any environmental or other analysis (section
223.278). The Forest Service only has to collect the sum of the
portions of fair market value and costs which then make up the sale
price of the forest botanical product and which must be equal to or
greater than the forest botanical product's fair market value (section
223.278). Per Section 223.278, the fair market value of forest
botanical products is equal to the appraised value, and appraised
values of forest botanical products are determined in accordance with
section 223.222.
Proposed Section 223.279 Personal Use Harvest Levels and Waiver of Fees
Summary of Changes in Proposed Section 223.279 (Final Rule Sections
223.279 and 223.280)
For clarification, this section 223.279 was split into section
223.279 Personal use, and section 223.280 Waiver of fees and/or fair
market value, and minor word and format changes were made. In addition,
Tribes with treaty or other reserved rights were added to recognize
their rights to forest botanical products for cultural, ceremonial,
and/or traditional purposes in accordance with such treaty or other
reserved rights.
Comment: Comments included (1) waivers should be provided to all
federally-recognized Tribes (regardless of applicability of treaty and
reserved rights), (2) treaty rights do not limit harvesting to non-
commercial purposes, and (3) permits and fees may not be (or should not
be) required for the exercise of treaty rights. Other commenters
expressed the belief that personal use harvesting by American Indians
is different from that of the general public and should be provided for
differently by the regulations as a whole. Those commenters described
several key aspects of traditional gathering that may not be
accommodated by the current regulations. These aspects include the
frequency of traditional gathering, which, for many species and
materials, can occur year round or spontaneously in conjunction with
other activities, and the inability to predict harvest conditions such
as location and timing in advance. Further, commenters noted that
traditional gathering is often a group activity and because of cultural
norms and roles, ``personal use'' gathering often involves harvesting
amounts to share with others and/or provide for community functions.
At least one commenter is not opposed to requiring free permits for
American Indians. Others suggested (1) issuing American Indians annual
permits, for the entire traditional gathering area that apply to the
full range of species and materials harvested, (2) making tribal,
family and/or group permits available, and (3) ensuring that allowable
harvest levels accommodate American Indian cultural norms.
Several commenters questioned the methods for setting personal use
levels, suggesting that doing so is culturally dependent and requires a
knowledge base that forest Service personnel rarely possess. One
commenter asserted that they should determine what qualifies as
traditional gathering, while another commenter stated that they should
be involved in setting personal use levels for non-treaty harvests. A
commenter expressed concern that personal use harvest limits will be
set for recreational use levels and suggested that subsistence be
established as a separate harvest level category.
Another commenter stated that legislation provides for broad
authority to waive fees under the regulations. They proposed that fees
be waived when gathering is done for: (1) Educational purposes, (2)
non-commercial cultural, ceremonial and/or traditional purposes by
people from any ethnic or cultural background (with examples of such
purposes given), or (3) ``salvage because other management activities
will destroy or damage the product.''
Response: Section 223.279 of the rule references section 223.240
which states, in part, Tribes with treaty or other reserved rights
retain their rights to harvest special forest products in accordance
with the terms of such rights.
It was never the Agency's intent to require issuance of a permit or
charge a fee for every cone, berry, or nut. The rule is being clarified
at 223.239 to allow incidental amounts (those at or below the personal
use harvest level) of free use without a permit, as determined by the
regional forester or a subordinate officer. Section 223.279(c)
references section 223.239 subpart G regarding personal use of a forest
botanical product.
The responsible forest officer is required, per section 223.278, to
ensure that the sale price of any forest botanical product includes at
least a portion of the product's fair market value of the product and a
portion of the costs associated with administering the pilot program.
Section 223.221 requires the Chief to establish minimum rates for the
sale of special forest products or groups of special forest products.
In addition, section 223.222 requires the Chief to determine the
appraised value of special forest products, with valid methods
including, but not limited to, transaction evidence appraisals,
analytical appraisals, comparison appraisals, and independent estimates
based on average investments. Special forest products are required to
be sold at minimum rates or appraised values, whichever is higher.
Fees are required to be charged for all forest botanical products
to recover a portion of the fair market value and a portion of the
costs associated with granting, modifying, or monitoring the harvest of
forest botanical products through permits, contracts, or other
authorized instruments issued for such
[[Page 79385]]
products. However, under section 223.280, the Forest Service waives the
collection of fees required, pursuant to section 223.278, for
federally-recognized Tribes seeking to harvest forest botanical
products for cultural, ceremonial, and/or traditional purposes. Such
purposes must be non-commercial, and any such harvest may be
conditioned or denied for reasons similar to those provided in section
223.240 of subpart G. This final rule also waives fees for Tribes with
treaty or other reserved rights seeking to harvest forest botanical
products for cultural, ceremonial, and/or traditional purposes in
accordance with such treaty or other reserved rights. Such purposes
must also be non-commercial, and any such harvest may be conditioned or
denied for reasons similar to those provided in section 223.240 of
subpart G. The Forest Service also waives the collection of fees
otherwise required, under section 223.280, pursuant to section 223.278
when a regional forester or forest supervisor, having proper
authorization from the Chief, makes a written determination that the
harvest of a specified forest botanical product will facilitate non
commercial scientific research such as species propagation or
sustainability, or a forest botanical product is salvage because other
management activities will destroy or damage the product.
Free use amounts authorized by the designated official should not
exceed amounts under 36 CFR 223.8.
Proposed Section 223.280 Monitoring and Revising of Harvest Levels
Summary of Changes in Proposed Section 223.280 (Final Rule Section
223.281)
This section was renumbered to 223.281. For clarification purposes,
the word ``sustainable'' was added to the title of this section, to
read ``Monitoring and Revising Sustainable Harvest Levels.'' Minor word
changes were also made to this section. Further, the proposed rule
included federally-recognized Tribes seeking to harvest forest
botanical products for cultural, ceremonial, and/or traditional
purposes. Tribes with treaty or other reserved rights are now being
added to recognize their rights to forest botanical products for
cultural, ceremonial, and/or traditional purposes in accordance with
such treaty or other reserved rights.
Comment: About one-fifth of the commenters discussed the 3-year
monitoring cycle required by section 223.280, as set forth in section
223.219. Some stressed that many special forest products/forest
botanical products exhibit high degrees of inter-annual variability,
making a 3-year return cycle too long for some species and too short
for others. These comments suggest adopting species-specific monitoring
cycles that match ``the cycles of the products being harvested.''
Several comments suggested that the Forest Service lacks the
expertise and/or resources to conduct the required monitoring. Nearly
all believe that the proposed regulations should be revised to require
the involvement of commercial harvesters, buyers, and/or non-commercial
local gatherers in the development and implementation of sound
monitoring processes. Many also advocated required training for Forest
Service personnel on special forest product/forest botanical product
monitoring and harvester involvement. One commenter further suggested
that involving harvesters in the monitoring effort would accomplish
needed monitoring with fewer Forest Service resources. Some of these
commenters also noted the importance of using the best available
science for monitoring and revising harvest limits, with one suggesting
that Forest Service and other researchers could provide valuable
assistance in this regard. Two commenters stated that required
monitoring should include monitoring of site conditions.
Some commenters were concerned about the reasonableness and
feasibility of monitoring every species and material harvested on
national forests. A clear distinction was drawn between commercial and
non-commercial harvests in this regard, with the commenter requesting
that they be allowed flexibility to monitor what they known to be
ecologically and/or socially or culturally sensitive. Another stated
that monitoring sustainability will be difficult if free use is not
tracked. One commenter suggested that issuing free use permits to
tribal members and individuals could serve as a monitoring strategy.
Another commenter requested that public gathering not be restricted
unless monitoring indicates a clear need to do so. One commenter
questioned the adequacy of the Forest Service's Timber Information
Manager (TIM) database for monitoring or satisfying the requirement
that the baseline levels be set based on the previous 3 years. Another
commenter believes that the monitoring provisions are inadequate and
calls for at least annual monitoring after sound baselines are
established.
Response: The comments in this section are similar to those in
section 223.219 and have been addressed there.
Proposed Section 223.281 Disposition of Collected Fees
Summary of Changes in Proposed Section 223.281 (Final Rule Section
223.282)
Section was renumbered to 223.282 due to changes made to 223.279
and 223.280. In addition, minor word and format changes were made to
the title and regulatory text for clarification purposes.
Comment: Some commenters felt that Tribes may be legally entitled
to a portion of the fees collected from the sale of forest botanical
products. Other commenters stated funds should be spent to enforce the
program, conduct inventory and monitoring, manage special forest
products and forest botanical products, and develop and protect
traditional and cultural properties.
Response: Federal ownership of timber and other forest products,
and the Forest Service's authority to administer the products, collect
monies from the sale of such products, as well as the authority to
retain, use, and distribute the monies collected, is derived from a
number of statutes, including the Organic Administration Act of June 4,
1897 (Ch. 2, 30 Stat. 11, as amended: 16 U.S.C. 473-475, 477-482, 551),
NFMA, and the pilot program law. There are no provisions in these
statutes authorizing the Secretary of Agriculture or the Forest Service
to distribute a portion of the fees collected for forest products to
Tribes.
The Agency agrees with the commenters who suggested that fees
collected under the pilot program should be used to pay for costs
associated with conducting inventories of forest botanical products and
management of the products. The funds collected pursuant to the pilot
program law will be used in accordance with section 223.282.
Regulatory Certifications
Regulatory Impact
This final rule has been reviewed under U.S. Department of
Agriculture 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 final 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 final rule will not interfere with an action
taken or planned by another agency nor raise new legal or policy
[[Page 79386]]
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 final
rule is not subject to OMB review under Executive Order 12866.
Proper Consideration of Small Entities
This final 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 final rule will have no adverse impact on small business,
small not-for-profit organizations, or small units of government.
Environmental Impact
This final 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
final 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 final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12630, and it has been
determined that this action will not pose the risk of a taking of
private property.
Civil Justice Reform
This final 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 final 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 final 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 final 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 federally-recognized Tribes in all
Forest Service regions. Regional foresters and forest supervisors
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 final rule.
Controlling Paperwork Burdens on the Public
This final rule does not contain any recordkeeping or reporting
requirements or other information collection requirements as defined in
5 CFR part 1320, other than:
(a) 0596-0085 Forest Products Free Use Permit, Forest Products
Removal Permit/Cash Receipt, Forest Products Sale Permit/Cash Receipt;
(b) 0596-0066 Bid for Advertised Timber; and
(c) 0596-0086 Operating Plans.
Therefore, this final rule 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 final 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 final 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.
36 CFR Part 261
Law enforcement, National forests.
0
Therefore, for the reasons set forth in the preamble, the Forest
Service amends 36 CFR Parts 223 and 261 as follows:
PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER,
SPECIAL FOREST PRODUCTS, AND FOREST BOTANICAL PRODUCTS
0
1. Revise the authority citation for part 223 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.
0
2. Revise the part heading to read as set forth above.
0
3. Add subparts G and H to read as follows:
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.
[[Page 79387]]
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 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 sale
and free use. Pursuant to the Department of the Interior and Related
Agencies Appropriations Act of 2000 (Pub. L. 106-113, Div. B, sec.
1000(a)(3), 113 Stat. 135 (sec. 339 of Title III of H.R. 3423)), as
amended in 2004 by Section 335 of Public Law 108-108, special forest
products that are also forest botanical products shall be sold, or
offered for free use, subject to the requirements of subpart H of this
part, until termination of the forest botanical pilot program. A
commercial sale of special forest products shall be governed by a
contract, permit, or other authorizing instrument. Free use above the
incidental-use harvest level shall be conducted under a permit, unless
otherwise provided.
Sec. 223.216 Special Forest Products definitions.
As used in this subpart:
Person: Any individual, partnership, corporation, association,
Tribe, or other legal entity.
Special forest products: Products collected from National Forest
System lands that include, but are not limited to, bark, berries,
boughs, bryophytes, bulbs, burls, Christmas trees, cones, ferns,
firewood, forbs, fungi (including mushrooms), grasses, mosses, nuts,
pine straw, roots, sedges, seeds, transplants, tree sap, wildflowers,
fence material, mine props, posts and poles, shingle and shake bolts,
and rails. Special forest products do not include sawtimber, pulpwood,
non-sawlog material removed in log form, cull logs, small roundwood,
house logs, telephone poles, derrick poles, minerals, animals, animal
parts, insects, worms, rocks, water, and soil.
Sec. 223.217 Authority to dispose of special forest products.
The Forest Service has authority to dispose of special forest
products located on National Forest System lands pursuant to the
Multiple-Use Sustained-Yield Act of 1960, as amended (16 U.S.C. 528-
531); the National Forest Management Act of 1976, as amended (16 U.S.C.
472a et seq.); and, the Forest and Rangeland Renewable Resources
Planning Act of 1974, as amended (16 U.S.C. 1600-1614).
Sec. 223.218 Consistency with plans, environmental standards, and
other management requirements.
The disposal of special forest products from National Forest System
lands shall be consistent with applicable land management plans. Each
contract, permit, or other authorizing instrument shall include, as
appropriate, provisions requiring the person or user to:
(a) Provide fire protection and suppression;
(b) Protect natural resources;
(c) Regenerate harvested species after harvesting operations;
(d) Minimize soil erosion;
(e) Maintain favorable conditions of water flow and quality;
(f) Minimize adverse effects on, protect, or enhance other national
forest resources, uses, and improvements; and
(g) Deposit voucher specimens with a curator of a nationally
recognized herbarium in North America as identified in the Index
Herbariorum when the permit, contract, or other authorizing instrument
allows bioprospecting.
Sec. 223.219 Sustainable harvest of special forest products.
(a) Sustainable harvest levels. Prior to offering a special forest
product for sale or free use, the responsible forest officer must
determine the product's sustainable harvest level. A special forest
product's sustainable harvest level is the total quantity of the
product that can be harvested annually in perpetuity on a sustained
yield basis. Responsible forest officers shall not authorize harvest or
free use of special forest products in an amount exceeding known
sustainable harvest levels. In determining a sustainable harvest level,
the responsible forest officer may consider harvest levels of the
product for the previous three years, if such information is available.
Responsible forest officers may consider factors such as year-to-year
and site-to-site variability, climate, weather change, geographic
scale, and scientific data available prior to making their
sustainability determination and establishing monitoring time frames
consistent with paragraph (c) of this section. Responsible forest
officers will consult with Tribes, to the extent appropriate, to
determine sustainable harvest levels based on historical information.
In addition, responsible forest officers may consult with other
appropriate parties to determine sustainable harvest levels based on
historical information.
(b) Harvest of protected species. The sale or free use of special
forest products listed or proposed for listing as endangered or
threatened under the Endangered Species Act is prohibited, except as
authorized by the U.S. Fish and Wildlife Service. Moreover, regional
guidelines will identify when the sale or free use of any special
forest product listed on the Regional Forester's sensitive plant list,
species of concern list, species of interest list, or protected under
the Convention on International Trade in Endangered Species may be
authorized.
(c) Monitoring of established harvest levels. At least once every
three fiscal years, or as otherwise established by the Regional
Forester, the Forest Service shall monitor the effects of harvesting on
the sustainability of special forest products. Such monitoring may
include, but is not limited to, on-site examination of the product,
including both harvested and non-harvested areas, and a review of past
and projected harvest levels to the extent such information is
available.
[[Page 79388]]
(d) Revision of harvest levels. The sustainable harvest level for a
special forest product may be increased or decreased, as appropriate,
based on monitoring.
Sec. 223.220 Quantity determination.
Sale contracts, permits, or other authorizing instruments may
provide for determining the quantity of special forest products by
scaling, measuring, weighing, counting, or other reliable means.
Appraisal and Pricing
Sec. 223.221 Establishing minimum rates.
The Chief of the Forest Service shall establish minimum rates for
the sale of special forest products or groups of special forest
products. Products must be sold for appraised value or minimum rates,
whichever is higher. No products may be sold or harvested for less than
minimum rates except to provide for the removal of insect infested,
diseased, dead or distressed products.
Sec. 223.222 Appraisal.
The Chief of the Forest Service shall determine the appraised value
of special forest products. Valid methods to determine appraised value
include, but are not limited to, transaction evidence appraisals,
analytical appraisals, comparison appraisals, and independent estimates
based on average investments. Special forest products must be sold at
minimum rates or appraised value, whichever is higher.
Contract and Permit Conditions and Provisions
Sec. 223.223 Advance payment.
Contracts, permits, or other authorizing instruments for the sale
of special forest products shall require advance payment, unless the
contract, permit, or instrument authorizes the person to furnish a
payment guarantee satisfactory to the Forest Service. Advance payments
found to be in excess of amounts due the United States shall be
refunded to the person or their successor in interest, subject to the
requirements of the Debt Collection Improvement Act.
Sec. 223.224 Performance bonds and security.
A contract, permit, or other authorizing instrument for the sale of
special forest products may require the person to furnish a performance
bond or other security for satisfactory compliance with its terms.
Sec. 223.225 Term.
The term of any contract, permit, or other authorizing instrument
for the sale of special forest products shall not exceed 10 years,
unless the Secretary of Agriculture finds that better utilization of
the various forest resources consistent with the Multiple-Use
Sustained-Yield Act of 1960, as amended (16 U.S.C. 528-531) will
result. Any such finding by the Secretary of Agriculture shall be made
in writing.
Sec. 223.226 Term adjustments for force majeure delay.
Contracts or other authorizing instruments for the sale of special
forest products, excluding permits, may contain a provision allowing
the term to be extended if circumstances beyond the person's reasonable
control delay performance. In determining whether such an extension is
appropriate, responsible forest officers shall consider the value of
the products or species, the length and type of authorizing instrument,
the need for early/accelerated harvest, and any other appropriate
factors. Circumstances beyond a person's reasonable control may
include, but are not limited to, acts of God, acts of the public enemy,
acts of the Government, labor disputes, fires, insurrections, and
floods. The responsible forest officer may grant such an extension upon
finding:
(a) Circumstances beyond the person's reasonable control delayed
performance; and
(b) The person has diligently performed in accordance with the
contract or other authorizing instrument.
Advertisement and Bids
Sec. 223.227 Sale advertisement.
(a) The Forest Service shall advertise any special forest products
sales with an appraised value equal to or greater than $10,000 for at
least 30 days, except as provided in paragraph (c) of this section.
(b) When the sale's appraised value is less than $10,000, the
Forest Service may sell the products without advertisement; however, if
there is competitive interest in a sale valued at less than $10,000,
the Forest Service shall advertise the sale for no less than 7 days.
(c) Notwithstanding paragraphs (a) and (b) of this section, the
Forest Service may, at its discretion, sell any special forest products
without advertisement, or advertise a special forest products sale for
a period less than 30 days if:
(1) Deterioration of a special forest product threatens its value;
or
(2) The products were previously advertised for competitive bidding
and no satisfactory bids were received; or
(3) The products are remaining from expired, cancelled, or
abandoned contracts, permits, or other authorizing instruments.
Sec. 223.228 Contents of advertisement.
The Forest Service shall include the following information in an
advertisement for the sale of special forest products:
(a) The location and estimated quantities of special forest
products offered for sale;
(b) The time and place at which sealed bids will be opened in
public;
(c) A provision asserting the Agency's right to reject any and all
bids;
(d) The place where complete information on the offering may be
obtained; and
(e) Notice that a prospectus is available to the public and to
interested potential bidders.
Sec. 223.229 Contents of prospectus.
The prospectus for the sale of special forest products shall
include the following:
(a) The minimum acceptable value or unit price for a product and
the amount or rate of any deposits required in addition to the unit
price of a product;
(b) The amount of the bid guarantee that must accompany each bid;
(c) The amount of the deposit or downpayment the successful bidder
must make and the time-frame for making such deposit or downpayment;
(d) The location and area of the sale, including acreage;
(e) The estimated volumes, quality, size, or other appropriate
measure for the special forest products;
(f) A description of any special harvest and removal requirements
for the sale;
(g) The method of bidding that the Forest Service will employ;
sealed bid or sealed bid followed by oral auction;
(h) The type of contract, permit, or other authorizing instrument
to be used for the sale;
(i) The termination date and normal operating season, if any, of
the contract, permit, or other authorizing instrument;
(j) The amount of performance bond required; and
(k) Such additional information about the sale as the Forest
Service deems appropriate in order to encourage bidders to perform on-
site investigations.
Sec. 223.230 Bid restriction on resale of incomplete contracts,
permits, or other instruments.
In any resale of special forest products remaining from a previous
sale, the Forest Service shall not consider a bid
[[Page 79389]]
submitted by a person who failed to complete or defaulted the original
contract, permit, or other instrument authorizing the sale, or from any
affiliate of such person, except when such consideration serves the
public interest.
Sec. 223.231 Bidding methods.
The Contracting Officer or designated forest officer shall offer
advertised sales of special forest products through sealed bid or
sealed bid followed by oral auction. The method selected shall:
(a) Ensure open and fair competition;
(b) Ensure that the Federal Government receives minimum rates or
appraised value, whichever is higher;
(c) Be consistent with the National Forest Management Act and other
applicable federal laws;
(d) Require, as a prerequisite to participation in an oral auction,
that a bidder submit a written sealed bid at least equal to the minimum
acceptable bid price(s) specified in the prospectus. The Forest Service
shall not accept a bid at oral auction that is less than the bidder's
initial sealed bid; and
(e) Specify the use of sealed bids or a mix of bidding methods in
the affected area where there is a reasonable belief that collusive
and/or abnormal bidding practices may be occurring.
Sec. 223.232 Disclosure of relation to other bidders.
The Forest Service may require any prospective bidder for special
forest products to disclose its relationship with other potential
bidders or operators. Such disclosure may include a certified statement
listing:
(a) Stockholders or members of the bidder's firm;
(c) Officers;
(d) Members of the board of directors; or
(e) Holders of bonds, notes, or other types of debt.
Award of Contracts, Permits, or Other Authorizing Instruments
Sec. 223.233 Award to highest bidder.
(a) The Forest Service shall award contracts, permits, or other
authorizing instruments for advertised sales as follows:
(1) The Forest Service will award a special forest products sale to
the responsible bidder that submits the highest bid that conforms to
the sale conditions in the prospectus.
(2) If the highest bidder cannot meet the conditions for the sale,
as specified in the prospectus, the Forest Service may:
(i) Reject all bids and reoffer the sale, or
(ii) Offer the award at the high bid level to the next highest
qualified bidder until the award is accepted or refused by all of the
conforming bidders.
(iii) In the event of a tie between two or more responsible high
bidders submitting conforming bids, the Forest Service shall award the
sale by drawing of lots.
(iv) If no bids meet the specified conditions in the sale's
prospectus, or if there are other irregularities in the bidding
process, the Forest Service may reject all bids, and, at its
discretion, reoffer the sale.
(b) [Reserved]
Sec. 223.234 Determination of responsibility.
(a) A Contracting Officer shall not award a contract, permit, or
other instrument authorizing the sale of special forest products to a
declared high bidder unless that officer makes an affirmative
determination that the person is responsible. In the absence of
information clearly establishing that the declared high bidder is
responsible, the Contracting Officer shall conclude that the declared
high bidder is not responsible.
(b) In order to make an affirmative determination of
responsibility, the Contracting Officer must find that:
(1) The declared high bidder has adequate financial resources to
perform the contract, permit, or other authorizing instrument, or the
ability to obtain such resources;
(2) The declared high bidder is able to complete the contract,
permit, or other authorizing instrument within the relevant term,
taking into consideration the declared high bidder's other existing
commercial and governmental obligations;
(3) The declared high bidder has a satisfactory record of integrity
and business ethics;
(4) The declared high bidder has or is able to obtain equipment and
supplies suitable for harvesting the special forest product(s) and for
meeting applicable resource protection requirements;
(5) The declared high bidder is otherwise qualified and eligible to
receive an award of a contract, permit, or other authorizing instrument
under all applicable laws and regulations;
(6) The declared high bidder has a satisfactory performance record
on contracts, permits, and other agreements with the U.S. Government.
Failure to apply sufficient diligence and perseverance to perform a
contract, permit, or other instrument is strong evidence that a
declared high bidder is not responsible. A declared high bidder that
is, or has been deficient in performance shall be deemed not
responsible, unless the declared high bidder demonstrates that the
deficiency arose from circumstances beyond their reasonable control.
(c) Affiliated concerns, as defined in 36 CFR 223.49(a)(5), are
normally considered separate entities in determining whether the
declared high bidder that is to perform the contract meets the
applicable standards for responsibility. However, the responsible
Forest Officer shall consider an affiliate's past performance and
integrity when they may adversely affect the responsibility of the
declared high bidder.
Sec. 223.235 Unilateral delay, suspension, or modification of
contracts, permits, or other instruments authorizing the sale of
special forest products.
(a) Reasons for delay, suspension or modification. The Forest
Service may unilaterally delay, suspend, or modify any contract,
permit, or instrument authorizing the sale or free use of special
forest products for any of the following reasons:
(1) To prevent actual or potential harm to the environment,
including without limitation, harm to land, water, air, habitat,
plants, animals, cave resources, or cultural resources;
(2) To ensure consistency with land management plans or other
management documents;
(3) To conduct environmental analyses, including, without
limitation, consultation under the Endangered Species Act of 1973, 16
U.S.C. 1531, et seq;
(4) Existing or threatened litigation that might affect or involve
a person's harvest of special forest products; or
(5) For any reasons or other conditions set forth in the contract,
permit, or other authorizing instrument governing the sale.
(b) Compensation. (1) The Forest Service may compensate a person
for the unilateral delay, suspension or modification of a contract,
permit, or other authorizing instrument in accordance with the
applicable provisions set forth in such document or, in the absence of
such provisions, in accordance with applicable Forest Service methods
and procedures in effect when a claim for compensation is submitted,
giving due consideration to the cause, duration, and financial impact
of the delay, suspension or modification.
(2) A person submitting a claim must comply with claim provisions
in the governing contract, permit, or other authorizing instrument, or,
in the absence of such provisions, must submit a written claim for
compensation
[[Page 79390]]
accompanied by supporting documentation that fully substantiates the
claim.
(c) Authority to unilaterally delay, suspend or modify. The
Contracting Officer administering the sale or a responsible superior
officer may delay, suspend, or modify the contract, permit, or other
authorizing instrument by issuing instructions to a person to delay,
suspend, or modify operations. Such instructions to delay, suspend or
modify shall be issued to a person in writing, except when exigent
circumstances warrant oral communication, in which case the officer
shall promptly follow-up in writing.
Sec. 223.236 Unilateral termination.
(a) Reasons for Unilateral Termination. The Forest Service may
unilaterally terminate a contract, permit, or other instrument
authorizing the sale or free use of special forest products for any of
the following reasons:
(1) Any of the reasons provided in Sec. 223.235(a);
(2) Material breach or continued violation of the contract, permit
or other authorizing instrument;
(3) Violation of any Federal or State laws or regulations related
to:
(i) Obtaining, attempting to obtain, selling, trading, or
processing special forest products;
(ii) Obtaining, attempting to obtain, or performing a public
contract or subcontract;
(iii) Harming or damaging public lands or protected species; or
(iv) Business integrity, honesty, or responsibility.
(b) Compensation. (1) The Forest Service may compensate a person
for the unilateral termination of a contract, permit, or other
authorizing instrument in accordance with the applicable provisions set
forth in such document or, in the absence of such provisions, in
accordance with applicable Forest Service methods and procedures in
effect when a claim for compensation is submitted, giving due
consideration to the cause, duration, and financial impact of the
termination.
(2) A person submitting a claim must comply with claim provisions
in the governing contract, permit, or other authorizing instrument, or,
in the absence of such provisions, must submit a written claim for
compensation accompanied by supporting documentation that fully
substantiates the claim.
(3) No compensation shall be provided if the unilateral termination
is due in whole or in part to the reasons set forth at Sec.
223.236(a)(2) or (3).
(c) Authority to unilaterally terminate. The Chief, or the Chief's
designee, has the authority to unilaterally terminate a contract,
permit, or other instrument authorizing the sale or free use of special
forest products. Any such termination shall be issued in writing,
except when exigent circumstances warrant oral communication, in which
case a written communication shall follow promptly.
Sec. 223.237 Request for delay, suspension, modification, or
termination.
(a) Request. A person authorized to harvest special forest products
may request delay, suspension, modification, or termination of their
contract, permit, or other authorizing instrument pursuant to the
provisions set forth in the contract, permit, or instrument, if any, or
for another reasonable cause, including without limitation,
catastrophic damage to the product or substantially changed market
conditions. Any such request must be submitted in writing and include a
detailed explanation of all relevant circumstances supporting the
request.
(b) Response. The Forest Service shall respond to any request for
delay, suspension, modification, or termination in accordance with
applicable provisions in the contract, permit, or other authorizing
instrument, or, in the absence of such provisions, respond in a manner
that is reasonable in light of the request's circumstances. The Forest
Service may deny any request, in whole or in part, in accordance with
the provisions of the relevant contract, permit, or instrument, or, in
the absence of such provisions, at the Agency's discretion.
(c) Authority. The Contracting Officer administering a sale or a
superior officer has the authority to deny or grant any request by a
person authorized to harvest special forest products to delay, modify,
suspend, or terminate a contract, permit, or other authorizing
instrument. The Forest Service's response to a request for delay,
modification, suspension, or termination shall be issued in writing,
except when exigent circumstances warrant oral communication, in which
case a written communication shall follow promptly.
Sec. 223.238 Free use authorization to U.S. Army and Navy.
Subject to delegations of authority by the Chief, Regional
Foresters may approve the harvest of special forest products by the
U.S. Army and Navy for the purposes identified at 16 U.S.C. 492.
Sec. 223.239 Free use by individuals.
(a) Free use. A person may harvest a special forest product from
National Forest System lands free of charge for personal, non-
commercial use up to the amount or quantity authorized by a designated
Forest Service officer, a Forest Supervisor, or a Regional Forester, as
delegated at 36 CFR 223.8.
(b) Free use without a permit up to the incidental use harvest
level. No permit is required for the free use of a special forest
product at or below that product's incidental-use harvest level, which
shall be determined at the discretion of the regional forester or a
subordinate officer. The incidental use harvest level covers small
amounts of special forest products, such as cones, mushrooms, berries,
acorns, black walnuts, or medicinal roots. Any free use of a special
forest product that does not have an incidental-use harvest level is
subject to this section's permit requirements.
(c) Free-use permit requirement. No person seeking free use of a
special forest product, except one identified in Sec. 223.239(e), may
harvest a special forest product above the product's incidental-use
harvest level without submitting an application to a forest officer and
obtaining a free-use permit, unless the permit requirement has been
waived for a specific special forest product in a designated free-use
area.
(d) Contents of the permit. The permit shall indicate the type,
amount, and/or value of the product to be harvested, the permit's
duration, and shall contain other restrictions and requirements as
appropriate.
(e) Free use without a permit for members of Tribes with treaty or
other reserved rights related to special forest products. A member of a
Tribe with treaty or other reserved rights related to special forest
products retains his/her ability to harvest such products in full
accordance with existing rights, including free-use harvest without
obtaining a free-use permit, as specified in treaty or other reserved
rights.
(f) Free use without a permit upon the request of the governing
body of a Tribe. At the Agency's discretion, responsible forest
officers may, upon the request of an authorized representative of the
governing body of a Tribe, issue a permit that would not otherwise be
required under paragraph (e) of this section to a Tribe with treaty or
other reserved rights related to special forest products for the free
use of a specified quantity of special forest products. That Tribe may
then allocate specified quantities of the special forest product(s) to
individual Tribal members, up to the maximum amount specified in the
Tribal free-use permit. Any Tribe issued such a permit must provide the
Forest Service with
[[Page 79391]]
information related to the permitted harvest, upon request.
(g) Free-use restrictions. A Forest Officer may set conditions on
the free-use harvest of a special forest product or deny the free use
of a special forest product. Reasons for denying free-use access or
setting conditions on free use, except as specified in Sec. 223.240,
may include, but are not limited to:
(1) Ensuring public safety;
(2) Preventing interference with Forest Service and/or commercial
operations;
(3) Ensuring the sustainability of a special forest product; or
(4) Otherwise protecting National Forest System land.
(h) Unilateral termination of a free-use permit. The responsible
forest officer, or any superior officer, may terminate a free use
permit without compensation at any time for reasons including, but not
limited to, resource protection, weather factors, fire season, road
access, conflicts with other users, or permit violations.
(i) Subsistence in Alaska. This section does not affect subsistence
uses implemented under Title VIII of the Alaska National Interest Lands
Conservation Act (16 U.S.C. 3101-3126).
Sec. 223.240 Tribes and treaty and other reserved rights.
Tribes with treaty or other reserved rights related to special
forest products retain their ability to harvest special forest products
in full accordance with existing rights. However, consistent with all
applicable rights, Regional Foresters may set conditions on Tribes with
treaty or other reserved rights related to special forest products to
protect the sustainability of special forest products or to otherwise
protect National Forest System land. Regional Foresters may only
prohibit Tribes with treaty or other reserved rights related to special
forest products from harvesting a special forest product to protect
public health and safety or to ensure sustainable harvest levels.
Regional Foresters will provide a Tribe with treaty or other reserved
rights related to special forest products that is prohibited from
harvesting a special forest product with written documentation
supporting the decision.
Sec. 223.241 Disposal of seized special forest products.
The Forest Service may dispose of seized special forest products
that have been illegally obtained from National Forest System lands by
sale or free use. Any sale of such products shall be conducted in
accordance with the requirements of this subpart; however, no seized
special forest products shall be sold to the person who collected them
illegally. The Forest Service shall not dispose of a seized product by
sale or free use if that product is:
(a) Listed or proposed for listing as threatened or endangered
under the Endangered Species Act;
(b) Identified as prohibited for sale or trade under the Convention
on Internal Trade in Endangered Species; or
(c) Listed on the Regional Forester's sensitive plant list, species
of concern list, or species of interest list.
Sec. 223.242 Supplemental guidance, Memorandum of Agreements and
Memorandums of Understanding.
Consistent with subparts G and H of this part, regional foresters
may issue supplemental guidance and approve Memorandums of Agreement
and Memorandums of Understanding to promote local collaboration, issue
resolution, and local implementation of these regulations. Existing
Memorandums of Agreement and Memorandums of Understanding related to
forest products must be made consistent with subparts G and H within 24
months from December 29, 2008 or those agreements will terminate.
Subpart H--Forest Botanical Products
Sec. 223.275 Establishment of a pilot program.
This subpart governs the Forest Service's pilot program for the
disposal of forest botanical products, as authorized by the Department
of the Interior and Related Agencies Appropriations Act of 2000, (Pub.
L. 106-113, Div. B, sec. 1000(a)(3), 113 Stat. 135 (enacting into law
sec. 339 of Title III of H.R. 3423)), as amended in 2004 by Section 335
of Public Law 108-108. The pilot program shall be in effect through
September 30, 2009, unless extended or made permanent by Congress.
Sec. 223.276 Applicability.
This subpart applies to the sale and free use of forest botanical
products, as defined in Sec. 223.277, from National Forest System
lands, until September 30, 2009, unless the pilot program is extended
or made permanent by Congress. The Forest Service shall dispose of
forest botanical products in accordance with the procedures set forth
in 36 CFR part 223 Subpart G, subject to the requirements of this
subpart.
Sec. 223.277 Forest botanical products definition.
As used in this subpart, the following term shall mean:
Forest botanical products are: Naturally occurring special forest
products, including, but not limited to, bark, berries, boughs,
bryophytes, bulbs, burls, cones, ferns, fungi (including mushrooms),
forbs, grasses, mosses, nuts, pine straw, roots, sedges, seeds, shrubs,
transplants, tree sap, and wildflowers. Forest botanical products are
not animals, animal parts, Christmas trees, fence material, firewood,
insects, mine props, minerals, posts and poles, rails, rocks, shingle
and shake bolts, water, worms, and soil.
Sec. 223.278 Sale of forest botanical products and collection of
fees.
The responsible Forest Officer shall ensure that the sale price of
any forest botanical product includes a portion of the product's fair
market value and a portion of the costs incurred by the Department of
Agriculture associated with granting, modifying, or monitoring the
authorization for harvest of forest botanical products, including the
costs of any environmental or other analysis. The fair market value of
forest botanical products shall be equal to the appraised value
determined in accordance with Sec. 223.222. The sum of the portions of
fair market value and costs making up the sale price must be greater
than or equal to the forest botanical product's fair market value. All
other aspects related to the sale of forest botanical products shall be
governed under 36 CFR part 223 Subpart G.
Sec. 223.279 Personal use.
(a) Personal use. A person may harvest forest botanical products
from National Forest Systems lands free of charge for personal, non-
commercial use up to the personal-use harvest level.
(b) Personal use harvest level. In conjunction with determining
sustainable harvest levels under Sec. 223.219, the responsible Forest
Officer shall determine personal-use harvest levels for specific forest
botanical products, which shall be equal to the amount or quantity
authorized for free use under Sec. 223.239(a).
(c) Personal-use permit requirement. A person seeking personal use
of a forest botanical product must comply with the free-use permitting
requirements of Sec. 223.239.
Sec. 223.280 Waiver of fees and/or fair market value.
The Forest Service waives the collection of fees otherwise required
pursuant to Sec. 223.278 of this subpart as follows:
[[Page 79392]]
(a) For all federally-recognized Tribes seeking to harvest forest
botanical products for cultural, ceremonial, and/or traditional
purposes. Such purposes must be non-commercial, and any such harvest
may be conditioned or denied for reasons similar to those provided in
Sec. 223.240 of subpart G; and
(b) For Tribes with treaty or other reserved rights seeking to
harvest forest botanical products for cultural, ceremonial, and/or
traditional purposes in accordance with such treaty or other reserved
rights. Such purposes must be non-commercial, and any such harvest may
be conditioned or denied for reasons similar to those provided in Sec.
223.240 of subpart G; and
(c) When a Regional Forester or Forest Supervisor, having proper
authorization from the Chief, makes a written determination that:
(1) The harvest of a specified forest botanical product will
facilitate non-commercial scientific research such as species
propagation or sustainability: or
(2) A forest botanical product is salvage because other management
activities will destroy or damage the product.
Sec. 223.281 Monitoring and revising sustainable harvest levels.
The Forest Service shall monitor and revise sustainable harvest
levels for forest botanical products in accordance with Sec. 223.219
of subpart G.
Sec. 223.282 Deposit and expenditure of collected fees.
(a) Funds collected under the pilot program for the harvest and
sale of forest botanical products shall be deposited into a special
account in the Treasury of the United States. These funds shall be
available for expenditure at National Forests or National Grasslands
where the funds were collected until September 30, 2010, unless the
program is extended.
(b) Funds deposited into the special account specified in paragraph
(a) of this section shall be expended at a National Forest or National
Grassland in an amount equal to the fees collected at that unit and
shall be used to pay for the costs of:
(1) Conducting inventories of forest botanical products;
(2) Determining, monitoring, and revising sustainable harvest
levels for forest botanical products;
(3) Monitoring and assessing the impact of harvest levels and
methods;
(4) Conducting restoration activities, including vegetation
restoration; and
(5) Administering the pilot program, including environmental or
other analyses.
PART 261--PROHIBITIONS
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4. The authority citation for part 261 continues to read as follows:
Authority: 7 U.S.C. 1011(f); 16 U.S.C. 472, 551, 620(f),
1133(c), (d)(1), 1246(i).
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5. Revise 261.6 to read as follows:
Sec. 261.6 Timber and other forest products.
The following are prohibited:
(a) Cutting, removing, or otherwise damaging any timber, tree, or
other forest product, including special forest products and forest
botanical products, except as authorized by Federal law, regulation,
permit, contract, special use authorization, free-use authorization, or
personal-use authorization.
(b) Cutting any standing tree under any permit or contract before a
Forest Officer has marked it or has otherwise designated it for
cutting.
(c) Unless otherwise provided for in any permit or contract,
removing any timber or other forest product, including special forest
products and forest botanical products, except to a place designated
for scaling, measuring, counting, or other method of accounting by a
forest officer.
(d) Stamping, marking with paint, or otherwise identifying any
tree, or other forest product, including special forest products and
forest botanical products, in a manner similar to that employed by
forest officers to mark or designated a tree or any other forest
product for cutting, or removal.
(e) Loading, removing or hauling timber, or other forest products,
including special forest products and forest botanical products,
acquired under any permit, contract, free-use authorization, memorandum
of agreement, memorandum of understanding, or personal-use
authorization unless such product is designated for loading, removing,
or hauling as required or authorized in such permit, contract, free-use
authorization, memorandum of agreement, memorandum of understanding, or
personal-use authorization
(f) Selling or exchanging any timber or other forest product,
including special forest products and forest botanical products,
obtained under free use or personal use pursuant to Sec. Sec. 223.5
through 223.11, Sec. 223.239 or Sec. 223.279 of this chapter.
(g) Violating any timber export or substitution restriction in
Sec. Sec. 223.160 through 223.164 of this chapter.
(h) Violating the Forest Resources Conservation and Shortage Relief
Act of 1990 (16 U.S.C. 620, et seq.), or its implementing regulations
at Sec. Sec. 223.185 through 223.203 of this chapter.
Dated: December 19, 2008.
Melissa M. Simpson,
Deputy Under Secretary, NRE.
[FR Doc. E8-30672 Filed 12-22-08; 11:15 am]
BILLING CODE 3410-11-P