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Sale and Disposal of National Forest System Timber; Timber Sale Contracts; Purchaser Elects Government Road Construction
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: March 8, 2006 (Volume 71, Number 45)]
[Rules and Regulations]
[Page 11508-11510]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08mr06-3]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 223
RIN 0596-AC40
Sale and Disposal of National Forest System Timber; Timber Sale
Contracts; Purchaser Elects Government Road Construction
AGENCY: Forest Service, USDA.
ACTION: Direct final rule; correcting amendment.
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SUMMARY: This rule corrects the direct final rule published on January
4, 2006. This final rule amends the current regulation in order to make
it consistent with section 329 of the Omnibus Consolidated and
Emergency Supplemental Appropriations Act, 1999 (``Act'') and section
105 of the Tongass Timber Reform Act (``TTRA''). Section 329 of the Act
placed certain restrictions and requirements upon the Secretary of
Agriculture (``Secretary'') pertaining to the construction of roads for
the sale of National Forest timber and other forest products. As of the
effective date of the section, April 1, 1999, the Forest Service
implemented necessary changes to the timber sale program and revised
the Forest Service Manual and Handbook. However, revisions to relevant
sections of the Code of Federal Regulations were not made. This final
rule makes technical amendments to the subpart to make it consistent
with section 329. Additionally, this final rule revises Subpart B to
make it consistent with section 105 of the TTRA, which eliminated a
restriction applicable to timber sales on National Forest lands in the
State of Alaska.
DATES: This final rule is effective March 8, 2006.
FOR FURTHER INFORMATION CONTACT: Lathrop Smith, Forest Management
Staff, at (202) 205-0858, or Richard Fitzgerald, Forest Management
Staff, (202) 205-1753.
SUPPLEMENTARY INFORMATION: On January 4, 2006, the Forest Service
published a direct final rule making minor, technical changes to 36 CFR
part 223, subpart B (71 FR 522). This publication corrects that rule by
republishing it with the following necessary modifications on page 523,
in the second column: In Sec. 223.41, the word ``will'' is replaced by
``shall.'' In Sec. 223.82, the phrase ``a total estimated value'' is
changed to ``total estimated construction costs.'' In Sec. 223.83,
enumerated paragraph (a)(16) is revised by removing the phrase ``for
each sale described in Sec. 223.82(b)'' and the previous inclusion of
(a)(17)(ii) is removed because there is no change to the prior rule.
The preamble and the regulatory certifications are also revised as
appropriate. Additionally, this publication contains a Good Cause
Statement, which explains the Forest Service's decision to publish this
direct final rule without notice and comment.
Background
The sale of National Forest timber or other forest products often
involves the construction of roads necessary to access the land covered
by the sale. If a particular sale requires road construction, then the
Forest Service specifies this component in the notice of sale and
offers further information to potential bidders in the prospectus. Road
construction costs can be significant, especially for smaller timber
purchasers. Under section 14(i) of the National Forest Management Act
of 1976 (Pub. L. 94-588), a purchaser that qualified as a ``small
business concern'' under the Small Business Act (15 U.S.C. 631, et
seq.) had the right to elect to have the Forest Service build the roads
specified in the notice of sale, if the estimated cost of such roads
exceeded $20,000. Section 329(c) of the Act (16 U.S.C. 535a(c))
essentially re-enacted existing law, but raised the monetary threshold
to $50,000 or more. Because 36 CFR part 223, subpart B reflects the
previous monetary threshold of $20,000, revisions are necessary to make
the regulation consistent with the higher threshold contained in the
Act. Accordingly, this final rule revises 36 CFR 223.41 and 36 CFR
223.82 to reflect construction costs of $50,000 or more.
Under prior law, the foregoing right to elect road construction by
the Forest Service was inapplicable to timber sales on National Forest
lands in the State of Alaska. However, section 105 of the TTRA
eliminated this restriction. Because the existing regulation contains
the obsolete restriction, revision is necessary. This final rule
deletes the restriction from 36 CFR 223.82.
This final rule also revises certain sections of 36 CFR part 223,
subpart B that refer or relate to purchaser credit. Section 329(a) of
the Act (16 U.S.C. 535a(a)) eliminated purchaser credit, prospectively,
by prohibiting the Secretary from providing effective credit for road
construction to any purchaser as of April 1, 1999 (the effective date
of the section). Accordingly, as of April 1, 1999, the Forest Service
discontinued the use of purchaser credit for appraised value
determinations and in timber sale contracts. This was accomplished by
making changes in Forest Service Manual and Handbook procedures and by
eliminating timber sale contract references on all sales after that
date. However, corresponding revisions to 36 CFR part 223, subpart B
were not made. Accordingly, this final rule eliminates references to
purchaser credit contained in 36 CFR 223.82(b) and 36 CFR 223.83(a) and
in the heading of 36 CFR 223.84. Additionally, this final rule revises
36 CFR 223.63 to reflect the Forest Service's method of determining the
appraised value for a sale in light of the elimination of purchaser
credit. (Estimated road construction costs are factored into the
appraised value for the sale.)
It is important to note that this final rule intentionally does not
revise, or eliminate all sections of Subpart B that refer or relate to
purchaser credit. Because of a savings provision contained at section
329(g)(2) of the Act (16 U.S.C. 535a(g)(2)), the prohibition of
purchaser road credit did not eliminate effective credit earned under a
contract resulting from a sale noticed before the section's effective
date, or credit otherwise earned before such date. Accordingly, the
regulation retains references that may be useful for administering
purchaser credit that exists by virtue of the savings provision.
Good Cause Statement
The Administrative Procedure Act (``APA'') exempts certain
rulemakings from its public notice and comment requirements. For
example, the APA allows agencies to promulgate rules without public
notice and comment when an agency, for good cause, finds that notice
and public comment are ``impracticable, unnecessary, or contrary to the
public interest.'' (5 U.S.C. 553(b)(3)(B)).
The Department finds that good cause exists to exempt this
rulemaking from public notice and comment pursuant to 5 U.S.C.
553(b)(3)(B). First, this action makes only minor and purely technical
changes to existing regulations. Second, the modifications made in this
final rule are mandated by enactment of section 329 of the Act and
section 105 of the TTRA and the Department has no discretion in
implementing them. This final rule merely updates 36 CFR part 223,
subpart B to comply with the terms of law and removes certain obsolete
references to purchaser credit. Accordingly, the Department finds that
good cause exists and that public notice and comment are unnecessary
pursuant to 5 U.S.C. 553(b)(3)(B).
[[Page 11509]]
Regulatory Certifications
Regulatory Impact
This final rule has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory Planning and Review. It has been
determined that this rule is not a significant regulatory action and is
not subject to Office of Management and Budget (``OMB'') review. The
technical revisions of 36 CFR part 223, subpart B accomplished through
this rule will not have an annual effect of $100 million or more on the
economy. This rule will not adversely affect the economy, a sector of
the economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities.
This rule will not interfere with an action taken or planned by another
agency, but could raise new legal or policy issues; however, these
legal and policy issues are not likely to be significant. Financial
relationships between the Government and timber sale purchasers will
not be changed by this rule and benefits from timber sale harvests to
State and local governments will not change. Finally, this action will
not alter the budgetary impact of entitlements, grants, user fees, or
loan programs or the rights and obligations of recipients of such
programs. As noted above, this rule makes only minor, technical changes
to achieve consistency with section 329 of the Act, section 105 of the
TTRA, and current Forest Service Handbook and Manual procedures that
were implemented as of April 1, 1999 and that did not, at that time,
require OMB review. Accordingly, this final rule is not subject to OMB
review under Executive Order 12866.
Regulatory Flexibility Act
This final rule has been considered in light of the Regulatory
Flexibility Act (5 U.S.C. 601, et seq.), and it is hereby certified
that this action will not have a significant economic impact on a
substantial number of small entities, as defined by that Act. Under
Forest Service Manual and Handbook procedures implemented in response
to section 329 of the Act, timber purchasers finance permanent road
construction prior to the harvest (except in the case where a qualified
small business concern elects Forest Service construction). Because
road construction costs are factored into the appraised value for the
sale, purchasers recover their road construction expenditures as they
pay for harvested timber. This rule makes only technical changes to
achieve consistency with section 329 of the Act, section 105 of the
TTRA, and current Forest Service procedures.
Unfunded Mandates Reform
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), which the President signed into law on March 22,
1995, the Department has assessed the effects of this final rule on
State, local, and tribal governments and the private sector. This rule
does not compel the expenditure of $100 million or more by any State,
local, or tribal government or anyone in the private sector. Therefore,
a statement under section 202 of the Act is not required.
Environmental Impact
This final rule accomplishes minor, technical changes to 36 CFR
part 223, subpart B to make the regulation consistent with section 329
of the Act, section 105 of the TTRA, and current Forest Service
procedures. Thus, it has no direct effect on the amount, manner, or
location of timber sale road construction. Section 31.1b of Forest
Service Handbook 1909.15 (57 FR 43180; September 18, 1992) excludes
from documentation in an environmental assessment or impact statement
``rules, regulations, or policies to establish Service-wide
administrative procedures, program processes, or instructions.'' The
agency's assessment is that this rule falls within this category of
actions and that no extraordinary circumstances exist which would
require preparation of an environmental assessment or environmental
impact statement.
No Takings Implications
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12630. It has been determined
that the rule does not pose the risk of a taking of Constitutionally-
protected private property. There are no Constitutionally-protected
private property rights to be affected because this rule will not alter
or affect existing timber sale contracts. Any new contract provisions
would be used only prospectively in new contracts.
Civil Justice Reform
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. If this rule were adopted: (1) All State and local laws
and regulations that are in conflict with this rule or which would
impede its full implementation would be preempted; (2) no retroactive
effect may be given to this rule; and (3) it does not require
administrative proceedings before parties may file suit in court
challenging its provisions.
Controlling Paperwork Burdens on the Public
The minor, technical revision accomplished through this final rule
does not contain or establish any record keeping or reporting
requirements or other information collection requirements, as defined
in 5 CFR part 1320, and, therefore, imposes no paperwork burden on the
public. Accordingly, the review provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.) and the implementing regulations
at 5 CFR part 1320 do not apply.
Federalism
The Agency has considered this final rule under the requirements of
Executive Order 13132, Federalism, and Executive Order 12875,
Government Partnerships. The Agency has made a preliminary assessment
that the rule conforms with the federalism principles set out in these
Executive orders; would not impose any compliance costs on the States;
and would not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Based on comments received on this rule, the Agency will
consider if any additional consultations will be needed with the State
and local governments.
Energy Effects
This final rule has been reviewed under Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use.'' It has been determined that this rule
does not constitute a significant energy action as defined in the
Executive Order.
Consultation and Coordination With Indian Tribal Governments
This final rule does not have tribal implications as defined by
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments, and, therefore, advance consultation with tribes is not
required.
List of Subjects in 36 CFR Part 223
Administrative practice and procedure, Exports, Forests and forest
products, Government contracts, Highways and roads, National forests,
Public lands, Reporting and record keeping, and Transportation.
? For the reasons set forth in the preamble, part 223 of Title 36 of the
[[Page 11510]]
Code of Federal Regulations is amended as follows:
PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER
Subpart B--Timber Sale Contracts
? 1. The Authority citation for part 223 continues to read as follows:
Authority: 90 Stat. 2958, 16 U.S.C. 472a; 98 Stat. 2213; 16
U.S.C. 618, 104 Stat. 714-726, 16 U.S.C. 620-620j, unless otherwise noted.
? 2. Revise Sec. 223.41 to read as follows:
Sec. 223.41 Payment when purchaser elects government road construction.
Each contract having a provision for construction of specified
roads with total estimated construction costs of $50,000 or more shall
include a provision to ensure that if the purchaser elects government
road construction, the purchaser shall pay, in addition to the price
paid for the timber or other forest products, an amount equal to the
estimated cost of the roads.
? 3. Revise Sec. 223.63 to read as follows:
Sec. 223.63 Advertised rates.
Timber shall be advertised for sale at its appraised value. The
road construction cost used to develop appraised value means the total
estimated cost of constructing all permanent roads specified in the
timber sale contract, estimated as if construction is to be
accomplished by the timber purchaser. The advertised rates shall be not
less than minimum stumpage rates, except that sales of insect-infested,
diseased, dead, or distressed timber may be sold at less than minimum
rates when harvest of such timber is necessary to protect or improve
the forest or prevent waste of usable wood fiber.
? 4. Revise Sec. 223.82 (b) introductory text to read as follows:
Sec. 223.82 Contents of advertisement.
* * * * *
(b) For each timber sale which includes specified road construction
with total estimated construction costs of $50,000 or more, the
advertisement shall also include:
* * * * *
? 5. Amend Sec. 223.83 by revising paragraphs (a)(16) and (a)(17)(i) to
read as follows:
Sec. 223.83 Contents of prospectus.
(a) * * *
(16) The estimated road construction cost and the estimated public
works construction cost.
(17) For deficit sales:
(i) An estimate of the difference between fair market value and
advertised value, that is, the amount by which the advertised value
exceeds the appraised value.
* * * * *
? 6. Amend Sec. 223.84 by revising the section heading to read as follows:
Sec. 223.84 Small business bid form provisions on sales with
specified road construction.
* * * * *
Dated: March 2, 2006.
Dale N. Bosworth,
Chief.
[FR Doc. 06-2161 Filed 3-7-06; 8:45 am]
BILLING CODE 3410-11-P