[Federal Register Volume 69, Number 1 (Friday, January 2, 2004)]
[Rules and Regulations]
[Pages 29-33]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 03-32243]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 223
RIN 0596-AB48
Sale and Disposal of National Forest System Timber; Extension of
Timber Sale Contracts To Facilitate Urgent Timber Removal From Other
Lands
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: The Department is adopting regulations to provide authority
for Regional Foresters to authorize Contracting Officers to extend the
contract performance time on certain
[[Page 30]]
National Forest System (NFS) timber sale contracts to facilitate the
harvest of damaged timber from private or other non-National Forest
System (non-NFS) lands. These contract extensions will allow the
expeditious removal of timber from lands in other ownerships damaged by
catastrophic events beyond the landowner's control. Catastrophic events
include, but are not limited to, severe wildfire, flood, insect and
disease infestations, drought, and windthrow. This final rule also
provides for adjustment of future periodic payment determination dates
as an element of these contract extensions.
The intended effects of this final rule are to promote the wise use
and conservation of the Nation's natural resources, to reduce the
threat to public safety and property due to fire and hazardous dead
trees, and to improve protection of NFS lands from fire and disease
that could otherwise develop on the damaged lands. The Forest Service
timber sale contract provides additional contract time on undamaged
(green) NFS timber sales to permit the purchaser to harvest damaged
timber outside the sale area on NFS lands. However, without adoption of
the previously published interim rule and this final rule, the Forest
Service would not have the regulatory authority to provide additional
contract time on NFS timber sales to permit the purchaser to harvest
damaged timber from private or other non-NFS lands. This provides
purchasers of NFS timber sales, who do not have mills, loggers and mill
owners the opportunity to delay harvest of green sales while logging
damaged timber on other ownerships. An urgent removal extension will
not be approved for any NFS timber sale contracts on lands that contain
dead or dying timber subject to rapid deterioration; where delayed
harvesting will cause resource damage; or where extensions would delay
the completion of needed projects, or adversely impact the harvest of
damaged NFS timber, or in any other manner adversely impact the
management of NFS lands.
EFFECTIVE DATE: This final rule is effective February 2, 2004.
FOR FURTHER INFORMATION CONTACT: Rex Baumback, Forests and Rangelands
Management Staff, (202) 205-0855.
SUPPLEMENTARY INFORMATION:
Background
In order to facilitate the expeditious removal of timber in other
ownerships damaged by catastrophic events beyond the landowner's
control, the Forest Service promulgated an interim rule at Sec. Sec.
223.50 and 223.53 of Title 36 of the Code of Federal Regulations and
requested public comment on November 21, 2002 (67 FR 70165). The
comment period ended January 21, 2003. The interim rule provided
authority for Regional Foresters to authorize Contracting Officers to
extend the contract performance time on certain National Forest System
(NFS) timber sale contracts and to delay periodic payments on the
extended contracts. This final rule incorporates revisions to Sec.
223.53 in response to comments received on the interim rule. Section
223.50 of the interim rule is adopted in entirety in the final rule.
Periodically, catastrophic events such as severe drought
conditions, insect and disease outbreaks, wildfires, floods, and
windthrow occur on forested lands within, or near, NFS lands. As a
result of such catastrophic events, substantial amounts of private and
other public timber may be severely damaged. This damaged timber must
be harvested within a relatively short time period to avoid substantial
losses due to deterioration in both the quantity and quality of the
timber. The critical time period for harvesting this damaged timber and
avoiding substantial deterioration varies with the season of the year,
the species of timber, the damaging agent, and the location of the
damaged timber. In most cases, substantial deterioration can be avoided
if the damaged timber is harvested within 1 year of the catastrophic
event. The number of wildfires, and the extent of damage to public and
private forested land experienced in the last few years, has resulted
in renewed requests by forest products companies and forest industry
associations for the Forest Service to adjust its contracting
procedures to support expeditious removal of damaged timber on non-NFS
lands.
Regulatory and Administrative Framework
The National Forest Management Act of 1976 (16 U.S.C. 472a(c))
provides that timber sale contracts with an original term of 2 years or
more shall not be extended unless the Secretary finds that the
purchaser has diligently performed in accordance with an approved plan
of operations or that the substantial overriding public interest
justifies an extension. These related requirements are set out at Sec.
223.115.
The Forest Service timber sale contract provides additional
contract time on undamaged (green) NFS timber sales to permit the
purchaser to harvest damaged timber outside the sale area on NFS lands.
However, without adoption of the previously published interim rule (67
FR 70165) and this final rule, the Forest Service would not have the
authority to provide additional contract time on NFS timber sales to
permit the purchaser to harvest damaged timber from private or other
non-NFS lands.
Impediments to Timely Harvest
When significant catastrophic events occur on non-NFS lands, timber
sale purchasers often do not have the personnel, equipment, or mill
capacity to take on new contracts because all of their resources are
committed to NFS contracts. Thus, landowners who have suffered from
catastrophic events may be unable to find available loggers, buyers,
and mill capacity to remove damaged timber before it deteriorates.
Risks and Benefits Associated With Removal of Damaged Timber
Damaged timber can provide a source of highly flammable fuel for
future wildfires, with inherent risks to public safety and property as
well as to resource values of any nearby NFS lands. Damaged timber can
also provide a habitat conducive to the development of insect
infestations and subsequent diseases that could threaten nearby
undamaged (green) timber stands on private, NFS, or other public land.
Summary of Public Comments
Comments were received on the interim rule from four timber sale
purchasers, four timber industry associations, one association that
represents State Foresters, and three State governments. All
respondents strongly supported urgent removal extensions, and all but
four recommended clarifications to improve the rule. A summary of the
comments and the Department's response follows:
General comments. Two respondents suggested that guidance be
provided in the rule, or in Forest Service Manual and Handbook
direction, to assure that the Forest Service implements the rule as the
Department intends. Specifically, the respondents were concerned that:
(1) The rule was not specific enough for purchasers to determine with
certainty, in advance of purchasing non-NFS timber sales, the
likelihood of getting needed extensions of Forest Service timber sales;
(2) the Forest Service may not approve urgent removal extensions in a
timely manner, once salvage sales on non-NFS lands are purchased; and
(3) the Forest Service may interpret the provisions of Sec.
223.53(d)(1)-(4) of the interim rule so broadly that few sales will be
eligible for an urgent removal extension.
Response. The Forest Service will address these issues in the
Forest
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Service Handbook (FSH) 2409.15, Timber Sale Administration. The FSH
direction will require the Regional Forester and the Contracting
Officer to act promptly in response to urgent removal extension
requests. The FSH direction will require that the Regional Forester
evaluate the size and scope of an event and the impact on the loggers
and mill capability to be able to log National Forest green sales
without adversely impairing the harvesting of the damaged timber on
private lands. Direction in FSH 2409.15 will also provide that
purchasers who submit the required documentation may request a
determination of whether their sales qualify for urgent removal
extensions prior to purchasing non-NFS timber.
Even though a catastrophic event has occurred and the Regional
Forester has authorized urgent removal extensions, Sec. 223.53(d)(1)
does not entitle a purchaser to an extension unless the harvest of the
NFS timber within the contract term will impede the removal of damaged
non-NFS timber. In response to respondent concerns regarding Sec.
223.53(d)(2)-(4), the Chief has already made an overall determination
at Sec. 223.53(a) that it is in the substantial, overriding public
interest to grant urgent removal extensions where a need exists.
Comments on contract extension length. Seven respondents suggested
that limiting extensions to a maximum of 1 year and allowing only one
urgent removal extension may not be sufficient due to unforeseen
events, such as additional catastrophic damage, poor operating
conditions, and appeals and protests.
Response. The Department agrees that subsequent catastrophic events
may justify additional urgent removal extensions. Other events, such as
interruptions of operations due to appeals and litigation, may justify
additional contract time under existing authorities and contract
provisions. The Department believes that it is clear in Sec. 223.53(b)
that the 1-year limitation applies only to the events that led to the
Regional Forester's determination. Section 223.53(d)(3) of the rule has
been modified to make it clear that additional urgent removal
extensions may be granted if there are subsequent Regional Forester
determinations related to other catastrophic events.
Comments on required documentation. Six respondents stated that the
requirement for purchasers to document that manufacturing facilities or
logging equipment capacity available to a purchaser are insufficient to
provide for both the rapid salvage of damaged non-NFS timber and
continued harvest of undamaged (green) NFS timber under contract with
the Forest Service (Sec. 223.53(c)(2)) is overly burdensome and
redundant with the requirement for the Regional Forester to determine
that there is an adequate cause for urgent removal extensions.
Response. The Department disagrees. The Regional Forester is
required by Sec. 223.53(b) to determine that a significant
catastrophic event has occurred that may justify urgent removal
extensions. Even though a catastrophic event has occurred and the
Regional Forester has authorized urgent removal extensions, a purchaser
is not entitled to an extension unless the harvest of the NFS timber
within the contract term will impede the removal of damaged non-NFS
timber. The Contracting Officer uses the purchaser's documentation to
verify that a specific purchaser needs the urgent removal extension,
based on the purchaser's particular operating requirements. The
Department believes that the documentation required is within the
purchaser's capacity to produce.
Comments on Regional Forester determination. One respondent was
concerned that the requirement for a Regional Forester's determination
may cause delays and other problems, if the catastrophic event and
timber sale needing an extension are in different Regions. The
respondents suggested that this authority should be delegated to Forest
Supervisors.
Response. The authority to make determinations that adequate cause
for urgent removal extensions exists is delegated to the Regional
Forester to assure that there is consistency on a Regional basis. The
FSH 2409.15 direction will require the Regional Forester to promptly
document the need for urgent removal extensions after a significant
catastrophic event. Contracting Officers will be directed to grant
urgent removal extensions based on determinations made by any Regional
Forester.
Comments on notarized statement requirement. Six respondents
commented that the second part of the notarized statement in Sec.
223.53(c)(3) of the interim rule forces purchasers to surrender
contractual rights to compensation, if the contract is suspended or
canceled. The respondents asserted that this is unjustified,
adversarial, and punitive, and a serious disincentive to applying for
urgent removal extensions. One additional respondent stated that, as a
minimum, the statement should be clarified so that the limitation on
damages applies only to the extension period and not to other factors,
which are not related to the extension.
Response. The Department believes that the Government's liability
for damages to the purchaser is limited during the extended contract
length granted by an urgent removal extension. The overriding public
benefits derived from the improved protection of public lands and
public safety outweighs any potential risk to the Government for
granting urgent removal extensions. Therefore, Sec. 223.53(c)(3) of
the interim rule setting out the requirements for a notarized statement
has been removed from the final rule.
Comments on cash payment requirement. Seven respondents stated that
requiring a cash payment, under Sec. 223.53(e)(1) of the interim rule,
is punitive and a disincentive to requesting an urgent removal
extension. The respondents stated that the Chief's finding of
substantial, overriding public interest is sufficient contract
consideration for granting the additional contract term. One additional
respondent suggested the alternative of a flat fee to compensate the
Government for the cost of processing the extension, thus, the
purchaser's decision on whether to request an extension would not be
based on the current value of funds rate.
Response. The Department agrees that the overriding public benefits
and the direct and indirect economic benefits from utilization of the
damaged timber in the form of revenues received and employment created,
and the avoided costs of wildfire suppression, reforestation, and
watershed restoration work compensates the Government for granting the
additional contract term. Therefore, Sec. 223.53(e)(1) of the interim
rule setting out the requirement for a cash payment have been removed
from the final rule.
Comments on stumpage rate adjustment. Five respondents stated that
freezing the floor of the tentative rates on sales subject to stumpage
rate adjustment, as provided in Sec. 223.53(e)(1)-(3), is punitive and
a disincentive to requesting an urgent removal extension and conflicts
with the Chief's finding of substantial, overriding public interest.
One additional respondent stated that freezing the floor of the
tentative rates on sales subject to stumpage rate adjustment should
only apply during the extension period.
Response. The Department agrees that limiting downward adjustments
of tentative rates conflicts with the substantial, overriding public
interest identified by the Chief for granting urgent removal
extensions. The cost to
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the purchaser for an urgent removal extension should be similar to the
cost when a purchaser is granted a contract term adjustment to log NFS
salvage timber sale contracts. Therefore, Sec. 223.53(e)(1)-(3) of the
interim rule setting out this requirement have been removed from the
final rule.
Finding of Substantial, Overriding Public Interest
Having considered (1) the potential plight of private and other
non-NFS landowners whose timber may be damaged by wildfire and other
catastrophes in future years; (2) the Forest Service statutory and
regulatory framework for adjusting contracts; (3) the need for
purchasers to plan their operations and to enter into contracts for the
timely removal of damaged timber; (4) the need to improve protection of
NFS lands from loss due to fire and/or insect and disease outbreaks on
nearby non-NFS lands; (5) the need to reduce the threat to public
safety and to property from catastrophic events; (6) the direct and
indirect economic benefits from utilization of the damaged timber in
the form of revenues received and employment created; (7) the avoided
costs of wildfire suppression, reforestation, and watershed restoration
work; and (8) the promotion of wise use and conservation of the natural
resources of the Nation by utilizing rather than wasting damaged
timber; the Chief of the Forest Service finds there is substantial,
overriding public interest in extending certain NFS timber sale
contracts for the harvest of undamaged (green) timber not requiring
expeditious removal, when such an extension will expedite the rapid
harvest of damaged timber requiring expeditious removal from private or
other non-NFS lands. Extensions of undamaged (green) NFS timber sale
contracts will be approved only if the delay of harvesting will not
cause resource damage, delay the completion of needed projects, delay
the harvest of damaged NFS timber, or in any other manner adversely
impact the management of NFS lands. Highest priority consideration will
be given to requests for extensions that involve damaged non-NFS timber
adjacent to NFS lands.
Regulatory Certifications
Regulatory Impact
This final rule has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory Planning and Review. OMB has
determined that this is not a significant rule. This rule 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. This rule will not interfere
with an action taken or planned by another agency nor raise new legal
or policy issues. 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. Accordingly,
this final rule is not subject to OMB review under Executive Order
12866.
Moreover, this final rule has been considered in light of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been
determined that this rule will not have a significant economic impact
on a substantial number of small entities. The final rule imposes
minimal additional requirements on all timber purchasers for the
purpose of validating the need for such extensions and to determine
whether or not to approve the requested extension. The information
required is easily within the capability of small entities to produce.
All businesses that desire an urgent removal extension must show that
the extension is needed in order to harvest and salvage deteriorating
non-NFS timber, while avoiding significant economic hardship or
contract default on NFS timber.
Environmental Impact
This final rule establishes uniform criteria to be followed when
the Forest Service extends an NFS timber sale contract to facilitate
the expeditious removal of damaged timber on non-NFS lands. 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'' that do not significantly affect the quality of the
human environment. The Department's assessment is that this rule falls
within this category of actions and that no extraordinary circumstances
exist which requires preparation of an environmental assessment or
environmental impact statement. The intent of this final rule is to
provide authority to allow additional time for completion of NFS timber
sale contracts in the event the Forest Service authorizes purchasers to
prioritize the harvesting of damaged timber from private or other non-
NFS lands, thus avoiding unnecessary waste of valuable non-NFS
resources due to deterioration. No change in environmental consequences
to NFS lands would occur from implementation of this rule, only a
temporary delay in operations.
Controlling Paperwork Burdens on the Public
The information required of a purchaser to request an extension of
an NFS timber sale contract to facilitate expeditious removal of timber
from non-NFS lands constitutes an information collection requirement,
as defined in 5 CFR part 1320, and has been assigned Office of
Management and Budget control number 0596-0167. This collection
requires a purchaser to provide information to establish that an
extension of a NFS timber sale contract(s) is needed to allow the
harvest of damaged timber, located on private or other public lands, in
need of expeditious removal because of catastrophic events beyond the
control of the landowner.
Unfunded Mandates Reform
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
which the President signed into law on March 22, 1995, the Department
has assessed the effects of this rule on State, local, and tribal
Governments and the private sector. This final 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.
Energy Effects
This final rule has been reviewed under Executive Order 13211 of
May 18, 2001, 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. Procedural in nature, this final rule would allow for
the extension of contract performance time on certain NFS timber sale
contracts to facilitate the harvest of damaged timber from private or
other non-NFS, allowing the expeditious removal of timber from lands in
other ownerships damaged by catastrophic events beyond the landowner's
control.
Federalism
The agency has considered this final rule under the requirements of
Executive Order 13132, Federalism. The agency has made an assessment
that the rule conforms with the Federalism principles set out in this
Executive order; would not impose any compliance costs on the States;
and would not have substantial direct effects
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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.
Consultation With Indian Tribal Governments
This final rule does not have tribal implications as defined in
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, and, therefore, advance consultation with tribes is not
required.
No Takings Implications
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12630, and it has been
determined that the rule does not pose the risk of a taking of private
property. There are no private property rights to be affected, because
the contract provisions that implement this rule will be used only with
contract modifications that are made at the request of the timber sale
purchaser.
Civil Justice Reform Act
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. After adoption of this final rule, (1) all State
and local laws and regulations that conflict with this rule or that
would impede full implementation of this rule will be preempted; (2) no
retroactive effect would be given to this final rule; and (3) this
final rule would not require the use of administrative proceedings
before parties could file suit in court challenging its provisions.
List of Subjects in 36 CFR Part 223
Administrative practices and procedures, Exports, Government
contracts, Forests and forest products, National forests, Reporting and
recordkeeping requirements.
0
Therefore, for the reasons set forth in the preamble, the interim rule
published at 67 FR 70165, November 21, 2002, is adopted as final with
the following changes:
PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER
0
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.
Subpart B--Timber Sale Contracts
0
2. In Sec. 223.53, revise paragraphs (b) through (e) to read as
follows:
Sec. 223.53 Urgent removal contract extensions.
* * * * *
(b) Regional Forester determination. If the Regional Forester
determines that adequate cause for urgent removal extensions exists,
Contracting Officers may extend National Forest System timber sale
contracts, up to a maximum of 1 year, for the estimated amount of time
required to harvest and process the damaged timber on non-National
Forest System lands. Contracting Officers may grant urgent removal
extensions only when the Regional Forester verifies in writing that:
(1) A specific catastrophe occurred for which urgent removal
extensions should be granted;
(2) The manufacturing facilities or logging equipment capacity
available to purchasers are insufficient to provide for both the rapid
harvest of damaged non-National Forest System timber in need of
expeditious removal and the continued harvest of undamaged (green)
timber under contract with the Forest Service; and
(3) Failure to harvest the damaged non-National Forest System
timber promptly could result in the following:
(i) Pose a threat to public safety,
(ii) Create a threat of an insect or disease epidemic to National
Forest System or other lands or resources, or
(iii) Significant private or other public resource loss.
(c) Purchaser request. To obtain an urgent removal extension on a
National Forest System timber sale contract, a purchaser must make a
written request to the Contracting Officer, which includes the
following:
(1) An explanation of why the harvest of undamaged (green) National
Forest System timber within the term of the existing National Forest
System contract(s) will prevent or otherwise impede the removal of
damaged non-National Forest System timber in need of expeditious
removal; and
(2) Documentation that the manufacturing facilities or logging
equipment capacity available to a purchaser would be insufficient to
provide for both the rapid salvage of damaged non-National Forest
System timber in need of expeditious removal and continued harvest of
undamaged (green) National Forest System timber under contract with the
Forest Service.
(d) Contracting Officer determination. To grant an urgent removal
extension, the timber sale Contracting Officer must verify the
following:
(1) That it is likely that the undamaged (green) timber from
National Forest System land would be delivered to the same
manufacturing facilities as are needed to process the damaged non-
National Forest System timber or the National Forest System timber sale
contract would require the use of the same logging equipment as is
needed to remove the damaged non-National Forest System timber from the
area affected by the catastrophe;
(2) That extension of the National Forest System contract will not
be injurious to the United States and will protect, to the extent
possible, the health of the National Forest System lands, including:
(i) That urgent removal extension does not adversely affect other
resource management objectives to be implemented by the National Forest
System timber sale being extended; and
(ii) That the National Forest System timber sale contract to be
extended is not a sale containing damaged, dead, or dying timber
subject to rapid deterioration.
(3) That the purchaser has not been granted a previous urgent
removal extension on the same National Forest System timber sale
contract based on the current catastrophic event. Subsequent urgent
removal extensions may be granted if there are subsequent Regional
Forester determinations on other catastrophic events.
(4) That the revised National Forest System timber sale contract
term will not exceed 10 years from the date the National Forest System
contract was awarded; and
(5) That the purchaser is not in breach of the National Forest
System contract, and all work items, payments, and deposits are
current.
(e) Execution of contract extension. An urgent removal extension of
a National Forest System timber sale contract is executed through a
mutual agreement contract modification pursuant to Sec. 223.112, which
must include specific contract provisions. An agreement to modify a
contract must identify the specific provision(s) of the contract being
modified and must include the requirement that purchasers make cash
payment to cover the costs of remarking timber on the sale area or
reestablishing cutting unit boundaries if the Contracting Officer
determines such work is necessary.
* * * * *
Dated: December 23, 2003.
David P. Tenny,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 03-32243 Filed 12-31-03; 8:45 am]
BILLING CODE 3410-11-P