Sale and Disposal of National Forest System Timber; Special Forest Products and Forest Botanical Products, 79367-79392 [E8-30672]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 73, Number 249 (Monday, December 29, 2008)]
[Rules and Regulations]
[Pages 79367-79392]
From the Federal Register Online via the Government Printing 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 
https://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.

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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 tr