Commercial Harvest and Sale

Free Use

Commercial Harvest and Sale

Personal Use

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 MultipleUse SustainedYield Act of 1960, as amended (16 U.S.C. 528531); 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. 16001614); 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. 106113, 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 108108 (``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 governmenttogovernment 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

Commercial Harvest and Sale

The Forest Service presently sells special forest products from National Forest System lands under the authorities contained in the MultipleUse SustainedYield 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. 16001614); and the timber sale regulations at 36 CFR part 223. Historically, timberrelated products, such as firewood, posts, poles, and Christmas trees, have comprised most of the sales. However, the Forest Service also sells smaller amounts of nontimber 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 smallscale 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: FS24001, Forest Product Removal Permit and Cash Receipt; FS24003P, Timber Sale Contract for premeasured products; and FS24004, 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 FS24006. 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.

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.

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 nonsustainable 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 specialuse 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 specialuse 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 nonsubstantive 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,'' ``freeuse authorization,'' and ``personaluse 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.

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 governmenttogovernment 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 federallyrecognized 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 60day 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.

A 60day 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. 110234) 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 federallyrecognized 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 federallyrecognized 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 federallyrecognized 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 federallyrecognized 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 federallyrecognized 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 freeuse and personaluse 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 nontribal 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 governmenttogovernment 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 override 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
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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 noncommercial use in amounts below that product's incidentaluse 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 federallyrecognized 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 noncommercial, 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.

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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 governmenttogovernment consultations as it seeks to manage and regulate special forest products/forest botanical products. Commenters also emphasized the need for governmentto government relations.

Response: The Forest Service agrees that governmenttogovernment 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: Federallyrecognized and nonfederally recognized Tribes; treaty and nontreaty 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 nontreaty Tribes in a position analogous to that of the nonindigenous public with respect to access to special forest products. Several commenters also indicated that they believe the rule takes away the status of official governmenttogovernment relations with nonfederallyrecognized 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 placebased, 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 treatyprotected 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 noncommercial 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
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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 thema 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 togovernment 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 freeuse harvest without obtaining a freeuse 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.

DecisionMaking Levels

Comment: Several comments discussed including Forest Service organizational levels at which decisionmaking authority should reside. Some commenters stated that decisionmaking 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 decisionmaking within the scope of national guidance. Commenters further asserted that governmenttogovernment 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: Decisionmaking 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
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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 106113 as amended by 108108. 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 150020071, approved July 25, 2007) re: ``regulation of commercial harvests and precedence of personal use over commercial''; (3) North Carolina National Forest (Region 8) supplement r8nc240020051, 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 nontreaty 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 selfemployment 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 productsbased 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 20032005 (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 valueadded process: (1) Harvest by selfemployed 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 selfemployed individuals.

Commenters also identified permit prices and access to sufficient amounts
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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 60day 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.

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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, ``

FOR FURTHER INFORMATION CONTACT

Richard Fitzgerald, Forest Service, Forest Management Staff, (202) 2051753. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 18008778339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.