Title 36—Parks, Forests, and Public Property--Volume 1
PART 223—SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER
§ 223.192   Procedures for a non-manufacturer.
(a) Persons who do not own or operate a manufacturing facility (non-manufacturer) are not eligible to apply for or be granted a sourcing area.
(b) The prohibition against the purchase of Federal timber for a person who has exported unprocessed timber originating from private lands within the preceding 24-month period shall not apply, if the person certified in writing to the Regional Forester of the region(s) in which the person purchases National Forest System timber by November 20, 1990, that the person would cease exporting unprocessed timber originating from private lands by February 20, 1991, for a period of three (3) years, and the exporting did cease in accordance with such certification.
(c) To obtain an exemption from the prohibition against export within the preceding 24-month period for purchasing Federal timber described in § 223.189 (a) and (b) of this subpart, a person must have applied in writing to the applicable Regional Forester on or before November 20, 1990. The application was required to be on company letterhead and, in the case of a corporation, with its corporate seal affixed, and must have included:
(1) An agreement to retain records of all transactions involving acquisition and disposition of unprocessed timber from both private and Federal lands within the area(s) involved in the certification, for a period of three (3) years beginning November 20, 1990, and to make such records available for inspection upon the request of the Regional Forester, or other official to whom such authority has been delegated.
(2) A signed certification which reads as follows:
“I have engaged in the exporting of unprocessed timber originating from private lands located west of the 100th meridian in the contiguous 48 States during the preceding 24 months. I desire to purchase directly from a department or agency of the United States, unprocessed timber originating from Federal lands located in such area of the United States. I make this certification for the exemption from the prohibition against export within the preceding 24-month period for purchasing Federal timber required by the Forest Resources Conservation and Shortage Relief Act of 1990 (Pub. L. No. 101-382, August 20, 1990, 16 U.S.C. 620, et seq. ) (Act). I hereby certify that I will cease all exporting of such unprocessed private timber from west of the 100th meridian in the contiguous 48 States of the United States by February 20, 1991. I make this certification with full knowledge and understanding of the requirements of this Act and do fully understand that failure to cease such exporting as certified will be a violation of this Act (16 U.S.C. 620d) and the False Statements Act (18 U.S.C. 1001), and may subject me to the penalties and remedies provided for such violation.”
(3) The certification must have been signed by the person making such certification or, in the case of a corporation, by its Chief Executive Officer. The certificate must have been notarized.
§ 223.193   Procedures for reporting acquisition and disposition of unprocessed Federal timber.
(a) Annual report. Each person who directly or indirectly acquires or possesses unprocessed timber originating from National Forest System lands located west of the 100th meridian in the 48 contiguous States shall submit an annual report on a form provided by the Forest Service on the acquisition and disposition of such timber. Such report shall be on a calendar year basis and shall be sent to the Regional Forester, or other official to whom such authority is delegated, who administers the National Forest System lands from which the majority of timber originated, not later than March 1 of each year, beginning March 1, 1997. The form shall include:
(1) A summary for the calendar year listing, by company, from whom the timber was acquired; the date of acquisition; the origin of National Forest System timber acquired; the sale name; the contract number(s); brand registration number(s) of brands registered by a state or agency or a pictorial representation of sale brand(s) if brands not registered by a state or agency; to whom the timber was sold, transferred or otherwise conveyed to another person; and the date of disposal;
(2) An accounting by origin, in net board feet Scribner or cubic feet, of the volume of National Forest System timber acquired, the volume domestically processed by the purchaser or affiliates, and the volume sold or transferred for domestic processing;
(3) The volume by species of National Forest System surplus species timber acquired and exported or sold for export;
(4) The volume (MBF Net Scribner or cubic) of the unprocessed timber originating from private lands west of the 100th meridian in the contiguous 48 States that was exported, and
(5) A certificate stating that:
(i) The certifier has read and understands the form;
(ii) The certifier is eligible to acquire unprocessed timber originating from Federal lands in accordance with the Act;
(iii) The information supplied is a true, accurate, current, and complete statement of the receipt and disposition of unprocessed timber originating from National Forest System lands to the best of the certifier's knowledge;
(iv) The certifier agrees to retain a copy of the form and records of all transactions involving unprocessed Federal timber and to make such records available for inspection upon request of an authorized official of the United States for three (3) years from the date of disposal by manufacture or transfer; and
(v) The certifier acknowledges that failure to report completely and accurately the receipt and disposition of timber will subject the certifier to the penalties and remedies in the Act and the penalties in the False Statements Act (18 U.S.C. 1001).
(6) The information provided is presumed to be not confidential, unless specifically marked confidential, in which case confidentiality will be evaluated under applicable laws.
(b) Transfer of unprocessed National Forest System timber. Each person who transfers to another person unprocessed timber originating from National Forest System lands shall undertake the following:
(1) Before completing such transfer, provide to such other person a written notice of origin, species, estimated volume or actual volume if the transfer is based on log scale volume, from whom acquired, sale name, contract number, and log brand of unprocessed National Forest System timber being transferred on a form provided by the Forest Service;
(2) Before completing such transfer, certify that the information supplied is a true, accurate, current, and complete statement to the best of his or her knowledge. As part of the certification, the certifier shall:
(i) Agree to send a signed copy of the form required in paragraph (b)(1) of this section within 10 calendar days of such transfer, which shall include all notices, acknowledgments, and agreements, required by this section, to the appropriate Regional Forester who administers the National Forest System lands from which this timber originates, or other official to whom such authority is delegated, and to retain a copy for the certifier's records;
(ii) Acknowledge that the transfer of unprocessed Federal timber to a person for export or to a person who may not purchase timber directly from the Federal government is a violation of the Act;
(iii) Agree to obtain full completed notice of origin form from the transferee;
(iv) Agree to retain records of all transactions involving unprocessed Federal timber for a period of three (3) years from the date of transfer and to make all records involving log transactions available to an appropriate Federal official upon request. Records include all forms and certificates required by these regulations;
(v) Acknowledge that failure to report completely and accurately the receipt and disposition and/or transfer of unprocessed National Forest System timber will subject the certifier to the penalties and remedies in the Act (16 U.S.C. 620, et seq. ) and the penalties in the False Statements Act (18 U.S.C. 1001); and
(vi) Certify that he or she has read and understands the form.
(3) Before completing such transfer, obtain from the person acquiring such timber on the same form provided by the Forest Service.
(i) An agreement to retain for a period of three (3) years from date of transfer the records of all sales, exchanges, or other disposition of such timber, and make such records available for inspection upon the request of an authorized official of the United States;
(ii) An agreement to allow Federal officials access to log storage and processing facilities for the purpose of monitoring compliance with the Act and implementing regulations;
(iii) An agreement to maintain and/or replace all brands and paint identifying the Federal origin of each piece of unprocessed Federal timber as described in § 223.195;
(iv) An agreement to submit, by March 1, the annual report required in § 223.193(a);
(v) An agreement to submit a completed notice of origin form for the Federal timber received and to receive an agreement to comply with the Act and regulations in such form if the person transfers any or all of the timber listed in the document;
(vi) An acknowledgment of the prohibition against acquiring unprocessed Federal timber from a person who is prohibited by the Act from purchasing the timber directly from the United States;
(vii) An acknowledgment of the prohibitions against exporting unprocessed Federal timber and against acquiring such timber in substitution for unprocessed private timber west of the 100th meridian in the contiguous 48 States;
(viii) A declaration of its business size and manufacturing classification, as defined under the Small Business Administration Regulations at 13 CFR part 121; and
(ix) A certificate stating that the certifier has read and understands the form; is eligible to acquire unprocessed timber originating from Federal lands in accordance with the Act; has been notified that some or all of the unprocessed timber included in this transfer is subject to export and substitution restrictions; supplied information is a true, accurate, current, and complete statement of the receipt and disposition of the unprocessed timber originating from National Forest System lands to the best of the certifier's knowledge; and acknowledges that failure to report completely and accurately the transfer of unprocessed Federal timber will subject the certifier to the penalties and remedies in the Act (16 U.S.C. 620, et seq. ) and the penalties in the False Statements Act (18 U.S.C. 1001). The information provided is presumed to be not confidential, unless specifically marked confidential, in which case confidentiality will be evaluated under applicable laws.
(4) Except as otherwise provided by law, a person who transfers unprocessed Federal timber to another person and meets all notice, certification, acknowledgment, reporting and record keeping requirements contained in this section shall be relieved from further liability for such timber pursuant to the Act.
§ 223.194   Procedures for reporting the acquisition and disposition of unprocessed private timber.
(a) Notice of domestic processing requirement. Each person who acquires unprocessed timber originating from Federal lands located west of the 100th meridian in the 48 contiguous States, and who also possesses or acquires unprocessed timber from private lands located west of the 100th meridian in the 48 contiguous States that requires domestic processing, including unprocessed timber originating within an approved sourcing area, and in turn sells, trades or otherwise conveys such unprocessed private timber to another person, must include a statement notifying the person acquiring the unprocessed private timber that such private timber must be domestically processed. Unprocessed timber originating from private lands located outside of a sourcing area may be transferred by the holder of the sourcing area, or by persons acquiring such unprocessed timber who are eligible to export such timber, without including such a statement.
(b) The notification statement, pursuant to paragraph (a) of this section, shall accompany each transaction involving unprocessed private timber that requires domestic processing. The statement shall be on a form provided by the Forest Service or a legible copy of such form.
(1) On such form, described in paragraph (b) of this section, the person transferring the timber shall:
(i) Give notice to the person receiving the unprocessed private timber that exporting that timber would violate the Act and its implementing regulations;
(ii) Give notice to the person receiving the unprocessed private timber that the timber has been identified for domestic manufacturing by a spot of highway yellow paint on each log end that must be retained on the timber;
(iii) Agree to send a signed copy of the transaction statement to the Regional Forester within 10 calendar days of the transaction;
(iv) Agree to retain records of all transactions involving the acquisition and disposition of unprocessed timber for a period of three (3) years from the date of disposal by manufacturing or transfer and to make such records available for inspection upon the request of an authorized official of the United States;
(v) Acknowledge that failure to completely and accurately report and identify unprocessed timber is a violation of the Act, and regulations issued under the Act, and the False Statements Act (18 U.S.C. 1001); and
(vi) Certify that the form has been read and understood.
(2) On such form, described in paragraph (b), the person acquiring the timber shall:
(i) Acknowledge receipt of the notice of requirement to domestically process timber originating from private land;
(ii) Certify that a statement pursuant to paragraph (b)(1) will be included in any subsequent transaction documents;
(iii) Agree to maintain yellow paint markings on each log end until the timber is domestically processed or transferred;
(iv) Agree to retain records of all transactions involving the acquisition and disposition of unprocessed timber for a period of three (3) years from the date of disposal by manufacturing or transfer and to make such records available for inspection upon the request of an authorized official of the United States;
(v) Agree to send a signed copy of the transaction statement to the Regional Forester within 10 calendar days of the transaction;
(vi) Agree to allow authorized officials access to log storage and processing facilities for the purpose of monitoring compliance with the Act and its implementing regulations;
(vii) Acknowledge that failure to comply with the domestic manufacturing requirements for unprocessed timber or failure to notify subsequent persons of this requirement may subject the certifier to the civil penalties and administrative remedies provided in the Act and regulations issued under the Act;
(viii) Acknowledge that failure to completely and accurately report and identify unprocessed timber is a violation of the Act, and regulations issued under the Act, and the False Statements Act (18 U.S.C. 1001); and
(ix) Certify that the form has been read and understood.
(c) Except as otherwise provided by law, a person who transfers unprocessed private timber to another person and meets all notice, certification, acknowledgement, distribution, reporting and record keeping requirements contained in this section shall be relieved from further liability for such timber with regard to the export and substitution restrictions pursuant to the Act.
§ 223.195   Procedures for identifying and marking unprocessed timber.
(a) Highway yellow paint. The use of highway yellow paint on unprocessed logs west of the 100th meridian in the contiguous 48 States shall be reserved for identifying logs requiring domestic manufacturing.
(b) Preserving identification. All identifying marks placed on an unprocessed log to identify the National Forest System origin of that log and/or to identify the log as requiring domestic processing shall be retained on the log until the log is domestically processed. If the identifying marks are lost, removed, or become unreadable, they shall be replaced. If the log is cut into two or more segments, each segment shall be identified in the same manner as the original log.
(1) A generic log hammer brand, known as a “catch brand”, used to identify ownership, may be used to replace lost, removed, unreadable or otherwise missing brands where such use is authorized by the Regional Forester and approved by the Contracting Officer. Use of such a catch brand on a log or log segment will signify Federal origin.
(2) The requirement to preserve identification of log pieces shall not apply to logs cut into two or more segments as a part of the mill in-feed process immediately before processing. Log segments that are returned to or placed in storage must be marked on both ends with yellow paint.
(c) National Forest System logs. Except as otherwise provided in this subsection, all unprocessed logs originating from National Forest System timber sales west of the 100th meridian in the contiguous 48 States shall, before being removed from the timber sale area, be marked on each end as follows:
(1) Painted on each end with a spot of highway yellow paint not less than three square inches in size; and,
(2) Branded on each end with a hammer brand approved for use by the Forest Supervisor of the National Forest from which the logs originate. The brand pattern may not be used to mark logs from any other source for a period of 24 months after all logs have been removed from the sale area and until such brand pattern is released in writing by the Forest Supervisor.
(d) Private logs. All unprocessed logs originating from private lands west of the 100th meridian in the contiguous 48 States that require domestic manufacturing pursuant to § 223.194 of this subpart, shall be painted on each end with a spot of highway yellow paint not less than three (3) square inches in size before removal from the harvest area. If private logs are acquired by a person who may not export such logs, the logs must be marked by the person acquiring the logs at the time of the acquisition.
(e) Waiver of painting requirements. The log painting requirements pursuant to paragraphs (c)(1) and (d) of this section may be waived if the Chief of the Forest Service determines that alternate methods for identifying logs required to be domestically processed are equal to or better than the procedures required herein.
(f) Waiver of branding requirements. Regional Foresters may waive the branding requirements pursuant to paragraph (c)(2) of this section as follows:
(1) Regions 1, 2, 3, and 4. On an individual timber sale basis, all or a portion of the branding requirements pursuant to paragraph (c)(2) of this section may be waived, if:
(i) Unprocessed logs from any origin are not known to have been exported by any person from the person's area of operations within the previous 5; years.
(ii) The person certifies as follows:
“I hereby request waiver of the requirements to brand each end of individual logs originating from the ____ timber sale, Forest Service contract number ____ pursuant to 36 CFR 223.195. I certify that I have not exported or sold for export unprocessed timber from private lands within my area of operations in five years. I certify that I understand, that if granted, the waiver applies only to unprocessed logs being processed within my area of operations. I certify that any unprocessed logs to which this waiver applies that are transferred, or sold for transfer, outside my area of operations will be branded on both ends in full compliance with 36 CFR 223.195. I make this certification with full knowledge and understanding of the requirement of the Forest Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, et seq. ) (Act) and its implementing regulations at 36 CFR part 223. I fully understand that failure to abide by the terms of the waiver will be a violation of this Act (16 U.S.C. 620, et seq. ) and the False Statements Act (18 U.S.C. 1001) and may subject me to the penalties and remedies provided for such violation.”;
(iii) The person otherwise complies with the regulations relating to transfers of logs between persons.
(iv) If the Regional Forester determines that unprocessed logs from my origin are being exported, or are known to have been exported within the previous 5 years, by any person from the person's area of operations, the Regional Forester shall revoke the waiver.
(2) Regions 5 and 6. On an individual timber sale basis, the branding requirement pursuant to paragraph (c)(2) of this section may be waived for logs ten (10) inches or less in diameter inside bark on the large end may be waived if:
(i) One end of each log is branded;
(ii) The person certifies as follows:
“I hereby request waiver of the requirement to brand each end of individual logs ten (10) inches or less in diameter inside bark on the large end, originating from the ____ timber sale, U.S. contract number ____ pursuant to 36 CFR 223.195. I certify that I understand, if granted, that the waiver applies only to unprocessed logs being processed at ____, and further certify that any and all unprocessed logs to which waiver would apply that are transferred, or sold for transfer, will be branded on both ends in full compliance 36 CFR 223.195. I make this certification with full knowledge and understanding of the requirements of the Forest Resources Conservation and Shortage Relief Act of 1990 (Pub. L. No. 101-382, August 20, 1990; 16 U.S.C. 620, et seq. ) (Act) and its implementing regulations at 36 CFR Part 223. I fully understand that failure to abide by the terms of the waiver will be a violation of this Act (16 U.S.C. 620, et seq. ) and the False Statements Act (18 U.S.C. 1001) and may subject me to the penalties and remedies provided for such violation.”;
(iii) The purchaser otherwise complies with the regulations relating to transfers of logs between persons.
(iv) If the Regional Forester determines that logs ten (10) inches or less in diameter inside bark on the large end are being exported in the Region, the Regional Forester shall revoke the waiver.
(3) The Chief of the Forest Service may authorize the testing of alternative methods of branding for consideration in future amendment of these regulations. Such alternative methods and logs marked under those methods shall be closely monitored.
§ 223.196   Civil penalties for violation.
(a) Exporting Federal timber. If the Secretary of Agriculture finds, on the record and after providing an opportunity for a hearing, that a person, with willful disregard for the prohibition in the Act exporting unprocessed Federal timber, exported or caused to be exported unprocessed timber originating from Federal lands in violation of the Act, the Secretary may assess against such person a civil penalty of not more than $500,000 for each violation, or 3 times the gross value of the unprocessed timber involved in the violation, whichever amount is greater.
(b) Other violations. If the Secretary of Agriculture finds, on the record and after providing an opportunity for a hearing, that a person has violated any provision of the Act, or any regulation issued under the Act relating to National Forest System lands, even though that the violation may not have caused the export of unprocessed Federal timber in violation of such Act, the Secretary may:
(1) Assess against such person a civil penalty of not more than $500,000, if the Secretary determines that the person committed such violation willfully;
(2) Assess against such person a civil penalty of not more than $75,000 for each violation, if the Secretary determines that the person committed such violation in disregard of such provision or regulation; or
(3) Assess against such person a civil penalty of not more than $50,000 for each violation, if the Secretary determines that the person should have known that the action constituted a violation.
(c) Penalties not exclusive and judicial review. A penalty assessed under paragraph (a) or (b) of this section shall not be exclusive of any other penalty provided by law, and shall be subject to review in an appropriate United States district court.
§ 223.197   Civil penalty assessment procedures.
Adjudicatory procedures for hearing alleged violations of this Act and its implementing regulations and assessing penalties shall be conducted under the rules of practice governing formal adjudicatory proceedings instituted by the Secretary. Such procedures are found at 7 CFR 1.130, et seq.
§ 223.198   Administrative remedies.
In addition to possible debarment action provided under subpart C of this part, the Chief of the Forest Service, or other official to whom such authority is delegated, may cancel any timber sale contract entered into with a person found to have violated the Act or regulations issued under the Act. Such a finding shall constitute a serious violation of contract terms pursuant to § 223.116(a)(1) of this part.
§ 223.199   Procedures for cooperating with other agencies.
The Regional Foresters may enter into agreements to cooperate with the Department of the Interior, the Department of Defense, and other Federal, State and local agencies for monitoring, surveillance and enforcing the Act.
§ 223.200   Determinations of surplus species.
(a) Determinations that specific quantities of grades and species are surplus to domestic manufacturing needs and withdrawals of such determinations shall be made in accordance with title 5, United States Code, section 553.
(b) Review of a determination shall be made at least once in every 3-year period. Notice of such review shall be published in the Federal Register. The public shall have no less than 30 days to submit comments on the review.
(c) Alaska yellow cedar and Port Orford cedar, which the Secretary of Agriculture found to be surplus to domestic processing needs pursuant to 36 CFR 223.163, the rules in effect before August 20, 1990, shall continue in that status until new determinations are published.
§ 223.201   Limitations on unprocessed timber harvested in Alaska.
Unprocessed timber from National Forest System lands in Alaska may not be exported from the United States or shipped to other States without prior approval of the Regional Forester. This requirement is necessary to ensure the development and continued existence of adequate wood processing capacity in Alaska for the sustained utilization of timber from the National Forests which are geographically isolated from other processing facilities. In determining whether consent will be given for the export of timber, consideration will be given to, among other things, whether such export will:
(a) Permit more complete utilization on areas being logged primarily for local manufacture,
(b) Prevent loss or serious deterioration of logs unsalable locally because of an unforeseen loss of market,
(c) Permit the salvage of timber damaged by wind, insects, fire or other catastrophe,
(d) Bring into use a minor species of little importance to local industrial development, or
(e) Provide material required to meet urgent and unusual needs of the Nation. (16 U.S.C. 472a; 16 U.S.C. 551; 16 U.S.C. 616)
§ 223.202   Information requirements.
(a) The procedures in §§ 223.189 and 223.192, and some of the procedures in § 223.190 were approved by the Office of Management and Budget (OMB) and assigned Control Number 0596-0114 upon issuance of the interim rule. Control Number 0596-0114 has been reapproved by OMB for use through May 31, 1997. OMB approved the information collection requirements in §§ 223.191 and 223.203 for use through August 31, 1995, and assigned them Control Number 0596-0115. OMB approved the information collection requirements in §§ 223.48 and 223.87 for use through March 31, 1997 and assigned them Control Number 0596-0021; the information collection requirements in §§ 223.48 and 223.87 have been revised. OMB Control Numbers 0596-0114, 0596-0115, and 0596-0021 have been consolidated under OMB Control Number 0596-0114.
(b) The application and reporting procedures in §§ 223.187, 223.193, 223.194, 223.195, and some of the procedures in § 223.190 of this final rule contain new record keeping and reporting requirements as defined in 5 CFR part 1320 and, therefore, impose additional paperwork burdens on the affected public. The Office of Management and Budget (OMB) has approved these requirements, and assigned them Control Number 0596-0114.
§ 223.203   Indirect substitution exception for National Forest System timber from within Washington State.
(a) Exception limits. A limited amount of unprocessed National Forest System timber originating from within Washington State could have been acquired by a person otherwise covered by the prohibition against indirect substitution, pursuant to § 490(b) of the Act and § 223.189(e) of this subpart.
(1) The amount of such unprocessed timber was limited to whichever is less:
(i) The higher of the applicant's actual purchase receipts for unprocessed timber originating from National Forest System lands within Washington State or the Department's records, during fiscal years 1988, 1989, and 1990, divided by 3; or
(ii) 15 million board feet.
(2) Such limit shall not exceed such person's proportionate share of 50 million board feet.
(b) Application, review and approval process. To obtain a share of the 50 million board feet exempted from the prohibition against indirect substitution in section 490(b) of the Act, a person must have submitted an application. Applications were required to include at least the following:
(1) The amount of volume exception being requested, in thousand board feet (MBF);
(2) A signed certification that reads as follows:
“I certify that, except for an approved share of unprocessed Federal timber, in accordance with 36 CFR 223.203, the prohibition contained in section 490(b) of the Act (16 U.S.C. 620b) applies to me. I have exported unprocessed timber originating from private lands from west of the 100th meridian in the 48 contiguous States and have acquired unprocessed timber from National Forest System lands located within Washington State in 1988, 1989 and/or 1990. I certify that the information provided in support of this application is a true, accurate, current and complete statement, to the best of my knowledge and belief. I agree to retain records of all transactions involving the acquisition and disposition of unprocessed timber from Federal lands within the area involved in this application for a period of 3 years beginning on the date the application is approved, and to make such records available for inspection upon the request of the Regional Forester or other official to whom such authority has been delegated. I make this certification with full knowledge and understanding of the requirements of the Act and do fully understand that if this application is approved, the amount of exception granted under this approval may not be exceeded in any one fiscal year, and do fully understand that if such exception is exceeded I will be in violation of the Act (16 U.S.C. 620, et seq. ), and I may be subject to the penalties and remedies provided for such violation. Further, I do fully understand that such violation may subject me to the penalty of perjury pursuant to the False Statements Act (18 U.S.C. 1001).”;
(3) The application listed under this section must have been signed by the person making such application or, in the case of a corporation, by its Chief Executive Officer. The application must have been on the company's letterhead and must have been notarized.
(4) The application made under this section must have been mailed to the Regional Forester in Portland, Oregon, no later than January 8, 1992. Applicants were notified of the approving official's decision by letter. If approved, the amount of the exception becomes effective upon publication in the Federal Register.
(5) Prospective applicants could review Department records upon request prior to the deadline for submitting applications. An applicant could voluntarily submit information documenting the amount of purchases of unprocessed timber originating from National Forest System lands within Washington State. The Department then determined which amount is higher, verified by either the Department's records or the applicant's records. The Department then determined the applicant's portion of the 50 million board feet by determining the lesser of the amount verified by the records or 15 million board feet. Applicants could submit the information documenting the amount of purchases in the following manner:
(i) Actual receipts for purchasing unprocessed timber from National Forest System lands within Washington State; or
(ii) A statement by a certified public accountant of:
(A) A summary by fiscal year for 1988, 1989 and 1990 of the applicant's acquisitions of timber originating from National Forest System lands in the State of Washington, listing total volume for each of the three fiscal years; and
(B) The average volume for the three fiscal years. The volumes to be reported were the harvest volumes, except in the case of open sales. Advertised volumes had to be reported for open sales.
(C) The certified public accountant must have certified to the following:
“I certify that under the penalties and remedies provided in § 492 of the Act (16 U.S.C. 620d) and the penalty of perjury provided in the False Statements Act (18 U.S.C. 1001) that the information provided in support of this application is, to the best of my knowledge and belief, a true, accurate, current, and complete statement of [applicant's company's name] National Forest System timber acquisitions originating from within the State of Washington for fiscal years 1988, 1989 and/or 1990.”
(D) The certified public accountant's statement and certification must have been on the accountant's company letterhead, must have been notarized, and must have accompanied the applicant's application.
(c) Selling and trading rights. The purchase limit right obtained under this rule may be sold, traded, or otherwise exchanged with any other person subject to the following conditions:
(1) Such rights may not be sold, traded, or otherwise exchanged to persons already in possession of such rights:
(2) Any person selling, trading, or exchanging any or all of the rights obtained under this rule shall advise the Regional Forester of the amount being traded and the name(s) of the person(s) acquiring such rights within 15 days of the transaction; and
(3) No person may have or acquire more than 15 million board feet in one fiscal year.
(d) Information collection. The application procedures in this section constitute information collection requirements as defined in 5 CFR part 1320. These requirements have been approved by the Office of Management and Budget and assigned clearance number 0596-0114.
(e) Persons with approved shares. The application period for shares of the indirect substitution exception for acquiring unprocessed timber originating from National Forest Systems lands within the State of Washington closed on January 8, 1992. Persons with approved shares are responsible for monitoring and controlling their acquisitions of National Forest System timber originating from within the State of Washington to assure approved share amounts are not exceeded in any Federal fiscal year. Unused portions of annual shares may not be “banked” for use in future fiscal years. The acquisition of such National Forest System timber must be reported to the Forest Service in accordance with § 223.193 of this subpart. The following shares are approved as of September 8, 1995:
(1) Cavenham Forest Industries, Portland, OR, 1,048,000 board feet.
(2) Weyerhauser, Tacoma, WA, 15,000,000 board feet.
§ 223.300   Applicability.
(a) This part sets forth the regulations applicable to the implementation of section 604 of the Healthy Forest Restoration Act of 2003, “Stewardship End Result Contracting Projects” 16 U.S.C. 6591c. This section provides for the use of contracts and agreements to achieve land management goals for the national forests and the public lands that meet local and rural community needs. In the fulfillment of these activities, the Forest Service may apply the value of timber or other forest products removed from the project site as an offset against the cost of services received under such contracts or agreements.
(b)(1) Procurement of service contracts. If the Forest Service makes a determination as provided under section 223.301(b)(1) of this subpart that a stewardship contract is a contract for the procurement of services, the Forest Service will utilize the contracting procedures set forth in the Federal Acquisition Regulations, Title 48 of the Code of Federal Regulations including the regulations issued by the Department of Agriculture set forth in Chapter 4 of Title 48 as well as requirements included in § 223.303.
(2) Sale of property contracts. If the Forest Service makes a determination under § 223.301(b)(2) of this subpart that a stewardship contract is to be a contract for the sale of property, the regulations set forth in subparts A and B of this part are generally applicable, except as provided in § 223.304.
(3) Agreements. Agreements entered into under this subpart are not subject to grant regulations found in 2 CFR part 200 as adopted and supplemented by the USDA in 2 CFR parts 400, 416, and 422.
(4) Other provisions. Additional terms and conditions for contracts and agreements may be added to a contract or agreement entered into under this subpart, in accordance with applicable law and to the extent determined to be necessary by the Forest Service.
(c) Parties to contracts and agreements. The Forest Service may enter into contracts and agreements under this part with private persons, private entities and public entities.
§ 223.301   Determination of type of contract or agreement.
(a) Use of a contract or agreement. When the Forest Service initiates a project under this subpart, a determination will be made whether to use a contract or an agreement to implement the project.
(b) Type of contract. If the Forest Service determines that a contract will be utilized:
(1) Procurement of service contracts. When the value of timber or other forest products removed through the contract will be less than the total value of the service work items received by the Forest Service, the activity shall be considered a procurement of a service and a contract, for a period not to exceed 10 years, will be utilized as provided in § 223.303 or
(2) Sale of property contracts. When the value of timber or other forest products removed through the contract is equal to or exceeds the total value of the service work items received by the Forest Service, the activity shall be considered a sale of property and a contract, for a period not to exceed 10 years, will be utilized as provided in § 223.304.
(c) Best interest of the government determination. The Forest Service official who makes a determination under paragraph (b) of this section shall document in the contract file the basis for the determination that:
(1) It is in the best interest of the government that a sale of property contract is more suitable for a contract that would otherwise be subject to paragraph (b)(1) of this section; or
(2) It is in the best interest of the government that a procurement of service contract is more suitable for a contract that would otherwise be subject to paragraph (b)(2) of this section.
§ 223.302   Award of contracts and agreements.
Section 604(d) of HFRA requires that a source for performance of a stewardship agreement or contract be selected on a best-value basis. A stewardship agreement or contract may also be entered into notwithstanding subsections (d) and (g) of section 14 of the National Forest Management Act of 1976 (16 U.S.C. 472a).
§ 223.303   Procurement of service contacts.
All contracts determined under § 223.301(b)(1) to be a contract for receipt of a service shall:
(a) Be administered under the Federal Acquisition Regulations, Title 48 of the Code of Federal Regulations including the regulations issued by the Department of Agriculture set forth in Chapter 4 of Title 48; and
(b) Provide for a fire liability provision. All contracts under this section shall contain a fire liability provision that is in substantially the same form as the fire liability provision contained in integrated resource timber contracts, as described in Forest Service contract numbered 2400-13, part H, section 4.
(c) Utilize the following provisions of subparts A and B of this part:
(1) Section 223.1 Authority to sell timber.
(2) Section 223.3 Sale of seized material.
(3) Section 223.14 Where timber may be cut.
(4) Section 223.30 Consistency with plans, environmental standards, and other management requirements.
(5) Section 223.34 Advance payment.
(6) Section 223.36 Volume determination.
(7) Section 223.37 Revegetation of temporary roads.
(8) Section 223.38 Standards for road design and construction.
(9) Section 223.40 Cancellation for environmental protection or inconsistency with plans.
(10) Section 223.48 Restrictions on export and substitution of unprocessed timber.
(11) Section 223.60 Determining fair market value.
(12) Section 223.61 Establishing minimum stumpage rates.
(13) Section 223.87 Requirements of bidders concerning exports.
(14) Section 223.113 Modification of contracts to prevent environmental damage or to conform to forest plans.
(d) Products may be valued on a per acre basis.
(e) Such other provisions as are necessary to carry out the provisions of section 604 of the Healthy Forest Restoration Act of 2003 (16 U.S.C. 6591c).
§ 223.304   Sale of property contracts.
All contracts determined under § 223.301(b) to be a contract for a sale of property shall:
(a) Utilize the provisions of subparts A and B of this part, except that the following provisions will not be applicable:
(1) Section 223.4 Exchange of trees or portions of trees.
(2) Section 223.31 Duration of contracts.
(3) Section 223.42 Transfer of effective purchaser credits.
(4) Section 223.43 Limit on amounts of transferred purchaser credits.
(5) Section 223.44 Collection rights on contracts involved in transfer of purchaser credit.
(6) Section 223.44 Collection rights on contracts involved in transfer of purchaser credit.
(7) Section 223.45 Definitions applicable to transfer of purchaser credit.
(8) Section 223.49 Downpayments. Paragraph (d).
(9) Section 223.62 Timber purchaser road construction credit.
(10) Section 223.65 Appraisal of timber for land exchange; right-of-way, or other authorized use.
(11) Section 223.80 When advertisement is required.
(12) Section 223.82 Contents of advertisement.
(13) Section 223.83 Contents of prospectus.
(14) Section 223.84 Small business bid form provisions on sales with specified road construction.
(15) Section 223.88 Bidding methods.
(16) Section 223.100 Award to highest bidder.
(17) Section 223.102 Procedure when sale is not awarded to highest bidder.
(18) Section 223.103 Award of small business set aside sales.
(19) Section 223.118 Appeal process for small business timber sale set-aside program share recomputation decisions.
(b) Include the following additional provisions:
(1) If determined by the Forest Service to be necessary to protect the interests of the United States, a performance and payment bond, as described on February 7, 2014, in section 28-103-2 and 28-103-3 of Part 48 of the Code of Federal Regulations, in an amount sufficient to protect the investment in receipts by the United States generated by the contractor from the estimated value of the forest products to be removed under the contract;
(2) Provide for a fire liability provision.
(3) Redetermination of stumpage rates and deposits: The cost of service work included in stewardship contracts will be evaluated along with stumpage values at the time of a rate determination in accordance with normal rate determination procedures.
(4) Products may be valued on a per acre basis.
(5) Such other provisions as are necessary to carry out the provisions of section 604 of the Healthy Forest Restoration Act of 2003 (16 U.S.C. 6591c).
§ 223.305   Agreements.
The Forest Service may enter into an agreement under this subpart in lieu of a contract.
(a) The regulations governing Federal financial assistance relationships are not applicable to such agreements.
(b) All agreements under this section shall contain a fire liability provision that is in substantially the same form as the fire liability provision contained in integrated resource timber contracts, as described in Forest Service contract numbered 2400-13, part H, section 4.