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The Forest Service issued a proposed final rule on October 22, 2007, that governs the removal of special forest products and botanical products from National Forest System lands (FR Vo. 72, No. 203, Doc. E7-200658).
These regulations will allow the Forest Service to manage special forest products:
• Through commercial harvest and sale;
• Through free use, and;
• By Implementing a pilot program to collect fees for forest botanical products.
Under Public Law 108-108, Title III, Section 335, 117 Stat. 1312 (16 USC 528 Note), Congress directed the Secretary to initiate a pilot program to charge, collect and retain fees for harvesting and selling of forest botanical products. This proposed final rule establishes a new regulation for the pilot project including bio-prospecting activities.
The pilot program also direct the Forest Service to permit limited free use of forest botanical products and establish a "personal use harvest level" for each product. Individual gathering is exempt from fees if below the "personal use harvest levels."
Q & A's:
What is the purpose of the prosposed rule?
To ensure the sustainable harvest of special forest products and forest botanical products.
What are special forest products and what are forest botanical products?
Special forest products are: products collected from National Forest System lands for commercial, personal, tribal, educational, or scientific purposes, including without limitation, bark, berries, bryophytes, bulbs, burls, Christmas trees, cones, ferns, firewood, forbs, fungi (including mushrooms), grasses, mosses, nuts, pine straw, roots, sedges, seeds, shrubs, transplants, tree sap, wildflowers. (Sec 223.216).
Forest botanical products are naturally occurring and a subset of special forest products and include bark, berries, boughs, bulbs, burls, cones, ferns, fungi (including mushrooms), forbs, grasses, mosses, nuts, pine straw, roots, sedges, seeds, shrubs, transplants, tree sap, and wildflowers. (Sec 223.277).
Are permits necessary for non-commercial gathering?
Yes. A person seeking to harvest special forest products or botanical products for such use must submit an application to the Forest Service official and obtain a permit prior to harvest unless these requirements have been waived to allow harvesting of a a specific product for a designated free use area (Sec. 223.239 b). The only exception is for tribes with treaty reserved gathering rights (see Sec. 223.240).
How will the Forest Service determine whether to charge a fee for special forest products for personal use?
Under a Free Use Permit, a person may harvest special forest products from national forests free of charge for personal, non-commercial use, not is excess of the amount of quantity authorized be a designated Forest Service official (Sec. 223.239 a). There may also be instances where management considerations such as health and safety during FS or commercial operations or protection of threatened and endangered species that would necessitate conditions within or denial of a Free Use Permit (Sec. 223.239 b) Contact the local Forest Service for information regarding local "sustainable" and "personal use" levels, designated free use areas, and othe conditions.
Can the Forest Service waive fees for personal use of forest botanical products?
Yes. Individual gathering below the "personal use harvest level" is exempt from fees (Sec. 223.279 b).
How will the proposed rule affect Alaska Native subsistence?
It is not intended to affect Alaska Native subsistence (see Sec 223.239 c)
If a traditional native practitioner wants to go into the forest and pick medicinal plants for a traditional cultural ceremony, do they need to get a permit? Yes. Unless they are a member of a treaty tribe that has retained gathering rights (see Sec 223.240) or designated free use are (Sec 223.240).
How will the rule affect American Indian and Alaska Native gathering rights?
Reserved rights under American Indian treaties must be honored in the management of the special forest products program. Indian tribes with reserved treaty gathering rights or other adjudicated rights may harvest special forest products in accordance with the terms of the treaty or other legal requirements However, the Regional Forester may set conditions for sustainability, health and safety or for conservation (Sec 233.240).
Members of non treaty Tribes and non recognized Tribes are subject to the same procedures as the general public in the proposed rule.
Will tribal consultation take place when Forests establish personal use levels?
Yes, consistent with FS consultation policy and other legal requirements.
How will the Forest Service dispose of Special Forest Products that have been illegally obtained from National Forest System land? The Forest Service can offer them for sale or free use, but may not sell such products to the entity that took them (see Sec 223.241).
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