[Code of Federal Regulations]
[Title 36, Volume 2]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 36CFR223.85]

[Page 95-96]
 
              TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY
 
          CHAPTER II--FOREST SERVICE, DEPARTMENT OF AGRICULTURE
 
PART 223_SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER--
Table of Contents
 
                     Subpart B_Timber Sale Contracts
 
Sec.  223.85  Noncompetitive sale of timber.

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

[[Page 96]]

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

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