[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14618-14621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8095]



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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 223

RIN 0596-AB58


Disposal of National Forest System Timber; Modification of Timber 
Sale Contracts in Extraordinary Conditions

AGENCY: Forest Service, USDA.

ACTION: Interim final rule; request for public comment.

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SUMMARY: This interim rule revises the existing regulations regarding 
noncompetitive sale of timber based on the Secretary of Agriculture's 
determination that extraordinary conditions exist. The intended effect 
is to allow forest officers, without advertisement, to make 
modifications to timber sales awarded or released pursuant to section 
2001(k) of the 1995 Rescissions Act, which result in the substitution 
of timber from outside the sale area specified in the contract for 
timber within the timber sale contract area. Good cause exists to adopt 
this interim final rule without prior notice and comment; however, 
public comment is invited and will be considered before adoption of a 
final rule.

DATES: This rule is effective April 3, 1996. Comments must be received 
by May 20, 1996.

ADDRESSES: Send written comments to: Chief (2400), Forest Service, 
USDA, P.O. Box 96090, Washington, DC 20090-6090.
    The public may inspect comments received on this rule in the Office 
of the Director, Timber Management Staff, Forest Service, USDA, 201 
14th Street, SW., Washington, DC 20250. Parties wishing to view 
comments are requested to call ahead ((202) 205-0893) to facilitate 
entry into the building.

FOR FURTHER INFORMATION CONTACT:
Bob Lynn, Timber Management Staff (202) 205-1787; Jay McWhirter, 
Natural Resources Division, Office of the General Counsel (202) 690-
0329.

SUPPLEMENTARY INFORMATION: 

Applicable Contract Law

    The rules at 36 CFR Part 223 govern the sale of National Forest 
System timber. Sections 223.80 and 223.100 address the requirements for 
advertisement and for award of timber sale contracts respectively. 
Title 16 U.S.C. 472a(d) requires the Secretary of Agriculture to 
advertise all sales of forest products unless the value of the sale is 
less than $10,000, or the Secretary determines that extraordinary 
conditions exist, as defined by regulation. Current regulations at 36 
CFR 223.80 require advertisement of a sale for 30 days when its value 
is greater than $10,000. The Secretary has not previously promulgated 
rules to implement section 472a(d)'s authority to dispose of timber 
without advertisement when extraordinary conditions exist.
    The advertising requirement of 16 U.S.C. 472a(d) also limits 
modifications to contracts involving the addition or substitution of 
timber outside a contract's sale area. Since only the timber within the 
contract's sale area was subject to competitive bidding, any timber 
located outside the contract's sale area would theoretically be 
available for sale to other interested purchasers; thus the current 
rules do not permit contract modifications that add or substitute 
timber outside a contract's sale area for timber under contract within 
the sale area. Moreover, the General Accounting Office has held that 
substitution of timber outside a contract's sale area for timber within 
the contract area violated the agency's authority to sell timber. B-
177602 (1973). The Agriculture Board of Contract Appeals has decided 
similarly in several cases. See Appeal of Summit Contractors, AGBCA No. 
81-252-1, AGBCA No. 83-312-1 (Jan. 8, 1986), and Appeal of Jay Rucker, 
AGBCA No. 79-211A CDA (June 11, 1980). In addition, in a recent case 
involving the Bureau of Land Management, the Court of Federal Claims 
stated that modifications to existing timber sales must conform with 
agency status and regulations regarding disposal of timber. Croman 
Corporation v. United States, 31 Fed. Cl. 741, 746-47 (August 16, 
1994).

[[Page 14619]]


The 1995 Rescissions Act

    On July 27, 1995, President Clinton signed into law the 1995 
Rescissions Act (Pub. L. 104-19, 109 Stat. 246). Section 2001(k) of the 
1995 Rescissions Act directed the release of timber sales subject to 
section 318 of the Fiscal Year 1990 Interior and Related Agencies 
Appropriations Act (Pub. L. 101-121, 103 Stat. 745). Section 318 has 
been the subject of extensive litigation, including a Supreme Court 
decision ultimately affirming the constitutionality of the law in 
Robertson v. Seattle Audubon Society, 503 U.S.C. 429 (1992). Some 
section 318 timber sales were affected by litigation over compliance 
with various terms of section 318, such as the requirement to minimize 
fragmentation of ecologically-significant old growth. See Seattle 
Audubon Society v. Robertson, Civ. No. 89-160 (W.D. Wash.).
    Many section 318 sales did not go forward as a result of concerns 
about significant impacts to species listed under the Endangered 
Species Act (ESA). In June 1990, after enactment of section 318, the 
United States Fish and Wildlife Service (FWS) listed the northern 
spotted owl as a threatened species under the ESA (55 FR 26189; June 
26, 1990). Because of the listing of the northern spotted owl as a 
threatened species, a number of Forest Service section 318 sales were 
``modified, eliminated or held in abeyance.'' See Gifford Pinchot 
Alliance v. Butruille, 742 F. Supp. 1077, 1080.
    On September 28, 1992, the FWS listed the marbled murrelet as a 
threatened species (57 FR 45328; Oct. 1, 1992). As a result of the 
listing, the Forest Service reinitiated consultation with the FWS under 
section 7(a)(2) of the Endangered Species Act, 16 U.S.C. 1536(a)(2), 
regarding the effects of murrelets of continuing to harvest section 318 
sales that had already been awarded. In June 1995, the FWS concluded 
that further logging of a number of the Forest Service section 318 
sales would likely jeopardize the continued existence of the marbled 
murrelet. As a result, these section 318 sales were suspended pending 
further field survey work.
    Some section 318 sales were also affected when the National Marine 
Fisheries Service proposed listing several anadromous fish species in 
the region as threatened or endangered. These species include the 
Umpqua River cutthroat trout (59 FR 35089; July 8, 1994), and the coho 
salmon (60 FR 38011; July 25, 1995). As stated in these listings, the 
decline of these species is due in part to past timber harvest 
practices.
    The 1995 Rescissions Act contained a provision directed at these 
section 318 sales that were still suspended. Section 2001(k) of the Act 
states:

    Notwithstanding any other provision of law, within 45 days after 
the date of the enactment of this Act, the Secretary concerned shall 
act to award, release, and permit to be completed in fiscal years 
1995 and 1996, with no change in originally advertised terms, 
volumes, and bid prices, all timber sale contracts offered or 
awarded before that date in any unit of the National Forest System 
or district of the Bureau of Land Management subject to section 318 
of Public Law 101-121 (103 Stat. 745). The return of the bid bond of 
the higher bidder shall not alter the responsibility of the 
Secretary concerned to comply with this paragraph.

    Currently the Department is in litigation involving the 
implementation of section 2001 of the 1995 Rescissions Act. On 
September 13, 1995, the district court in NFRC v. Glickman No. 95-6244-
HO (D. Or.), held that section 2001(k) applies to timber sales 
previously offered or awarded in all national forests in Washington and 
Oregon and BLM districts in western Oregon up to July 27, 1995. On 
October 17, 1995, the district court entered an order which ``compelled 
and directed'' the Secretary of Agriculture and the Secretary of the 
Interior, ``to award, release and permit to be completed in fiscal 
years 1995 and 1996, with no change in originally advertised terms, 
volumes, and bid prices, all timber sale contracts offered or awarded 
between October 1, 1990 and July 27, 1995, in any national forest in 
Oregon and Washington or BLM district in western Oregon, except for 
sale units in which a threatened or endangered bird species is known to 
be nesting.'' The government has appealed the district court's ruling 
(NFRC v. Glickman, 9th Cir. No. 95-36042), and is awaiting a decision.
    After the district court's September 13, 1995, ruling, and its 
October 17, 1995, injunction, the Forest Service proceeded to release 
timber sales to previously identified high bidders. In one category of 
sales, however, the high bidders were either unwilling, unable, or 
unqualified to take advantage of the renewed offer of the timber sale. 
In another category of sales, courts had previously issued injunctions 
preventing the award of the sales, or the Forest Service had rejected 
bids, suspended, or terminated sales as a result of earlier litigation. 
For both categories, the Forest Service decided not to pursue the award 
or release of timber sales, and was challenged in district court in the 
NFRC v. Glickman case. In a decision dated January 10, 1996 (amended to 
address typographical errors on January 17, 1996), the district court 
enjoined the Secretary of Agriculture to award, release and permit to 
be completed immediately, all timber sales that were subject to section 
2001(k). The January 10, 1996, injunction included sales where the 
Forest Service had rejected bids, suspended, or terminated sales as a 
result of earlier litigation, and those sales where the high bidders 
were unwilling, unable, or unqualified to be awarded sales.
    In section 2001(k)(2) of the 1995 Rescissions Act, Congress created 
a limited exception from the general release requirements imposed by 
section 2001(k)(1). Under section 2001(k)(2), ``No sale unit shall be 
released or completed under this subsection if any threatened or 
endangered bird species is known to be nesting within the acreage that 
is the subject of the sale unit.'' Section 2001(k)(3) requires the 
Secretary of Agriculture and the Secretary of the Interior to provide 
an equal volume of alternative timber ``of like kind and value'' for 
timber sales withheld under 2001(k)(2)'s ``known to be nesting'' 
provision. On August 23, 1995, the Department of Agriculture and the 
Department of the Interior issued a joint letter of direction 
implementing section 2001(k)(2). The agencies concluded that, based on 
the scientific analysis used in a protocol developed by the Pacific 
Seabird Group, the protocol's criteria should be utilized in evaluating 
whether marbled murrelets are ``known to be nesting'' in timber sales 
that are subject to section 2001(k).
    On September 1, 1995, a lawsuit was filed challenging the 
government's implementation of section 2001(k)(2). Scott Timber Co. v. 
Glickman, Civ. No. 95-6267-HO (D. Or.). The district court consolidated 
the Scott Timber case with NFRC v. Glickman, Civ. No. 95-6244-HO. On 
January 19, 1996, the district court issued a decision rejecting the 
government's interpretation of section 2001(k)(2) and use of the 
Pacific Seabird Group Protocol criteria to determine whether marbled 
murrelets are ``known to be nesting.'' The court stated:

    The language and legislative history of section 2001(k)(2) 
suggest that Congress intended to allow the agencies some leeway to 
determine what types of physical evidence observed within sale unit 
boundaries are sufficient to establish a ``known'' nesting site 
within the sale unit. Thus an agency may rely on the visual or 
auditory observation of a murrelet located sub-canopy within sale 
unit boundaries engaging in behavior that the

[[Page 14620]]
agency determines is sufficiently indicative of nesting to establish 
a ``known'' nesting site within that sale unit.

    The District court then enjoined the Secretary of Agriculture to 
release sales that had previously been suspended if the sales did not 
satisfy the criteria set forth in the court's January 19, 1996, order. 
At a hearing held on January 25, 1996, the district court granted a 60-
day stay of the injunction. The stay expires on March 25, 1996, and 
timber purchasers have opposed continuation of the stay order on the 
bases that they should be entitled to begin harvesting and any 
continuation may preclude them from completing timber sales due to the 
expiration of section 2001(k)(1) on September 30, 1996. The government 
has appealed both the January 10 and January 19, 1996, rulings of the 
district court; oral argument on the appeal is scheduled for the week 
of May 6, 1996.

Extraordinary Conditions

    The Secretary of Agriculture is under October 17, 1995, January 10, 
1996, and January 19, 1996, injunctions by the district court in NFRC 
v. Glickman to release sales that the Forest Service had previously 
suspended, withdrawn, or canceled. While the United States has taken 
appeals from the district court rulings underlying these injunctions, 
some sales have already been released, and others may be released in 
the future to comply with the district court injunctions.
    Timber sales that have been released, or that may be released were 
planned and prepared under standards that pre-dated the Record of 
Decision for amendments to Forest Service and Bureau of Land Management 
planning documents within the range of the northern spotted owl, dated 
April 13, 1994 (hereinafter referred to as Northwest Forest Plan). The 
release and harvest of some of these sales may cause real harm to 
natural resources, including fish and wildlife resources. However, the 
opportunity exists to negotiate mutual modifications to these sales 
that will minimize environmental harm and bring them more in compliance 
with the Northwest Forest Plan's standards and guidelines. However, the 
mutual modifications likely to be needed for these sales would require 
the Forest Service to substitute timber from outside of the existing 
sale areas. Faced with these extraordinary conditions, unless the 
agency can immediately implement the authority provided in 16 U.S.C. 
472a(d) to dispose of timber without advertisement, the opportunity to 
carry out section 2001(k) with a minimum of environmental harm through 
modifications to timber sale contracts will be lost.

Good Cause Exemption

    Based on the foregoing extraordinary conditions, the Department 
finds that there exists good cause to promulgate this rule on an 
expedited basis. Because of district court injunctions in NFRC v. 
Glickman which require the Forest Service to take immediate action to 
award and release these timber sales, the Forest Service has a 
compelling need to make modifications to contracts which have been or 
will be awarded or released pursuant to section 2001(k) of the 1995 
Rescissions Act. Without modification, sales will be awarded or 
released which contain provisions that pre-date the implementation of 
the timber sale standards and guidelines of the Northwest Forest Plan. 
Given the duty to comply with the district court's injunction, and the 
urgent need to modify timber sales to avoid environmental harm that 
would occur if these timber sales are completed without modification, 
the Department finds that notice and comment are impracticable prior to 
the issuance of this rule, and thus, that good cause exists to adopt 
this interim final rule.
    Moreover, the Department finds that it would be contrary to the 
public interest, under these circumstances, to fail to act immediately 
to address the need for modification of these timber contracts. First, 
this rule will have a limited application. It will apply only to those 
sales that have been or will be released pursuant to section 2001(k) of 
the 1995 Rescissions Act. To date, the Forest Service has identified 
approximately 100 timber sales subject to section 2001(k). Second, 
without authority to make contract modifications that include timber 
outside the sale area, the Forest Service cannot provide a reasonable 
alternative to imminent harvest of environmentally harmful timber 
sales. It is the opinion of the Department, based on communications 
with timber contract holders, that failure to expeditiously provide 
alternatives to the timber sales released by section 2001(k) will lead 
to the immediate harvest of released sales. Such environmental harm, 
which may restrict options for future timber harvests, may occur within 
the time otherwise required for notice and public participation by E.O. 
12866. Finally, section 2001(h) of the 1995 Rescissions Act does not 
require the Secretary of Agriculture to adhere to the requirements of 5 
U.S.C. 553 in implementing the 1995 Rescissions Act. To the extent that 
this rule is in furtherance of the duties imposed by the Rescissions 
Act, normal rulemaking procedures would not apply.

Intended Effects

    This interim final rule redesignates the existing text in 36 CFR 
223.85 as paragraph (a) and adds a new paragraph (b) to define 
``extraordinary conditions'' to allow forest officers, without 
advertisement, to make modifications to timber sales awarded or 
released pursuant to section 2001(k) of Public Law 104-19 (109 Stat. 
246), which result in the substitution of timber from outside the sale 
area specified in the contract for timber within the sale area. It 
should be noted, however, that this rule change does not compel a 
timber purchaser to accept a timber sale modification offered under the 
interim final rule. The rule authorizes the Forest Service to propose 
modifications and to enter into discussions with purchasers on such 
modifications, but, as with all mutual transactions, purchasers are not 
obligated to accept any proposed modifications.

Regulatory Impact

    This rule has been reviewed under USDA procedures and Executive 
Order 12866 on Regulatory Planning and Review. While it has been 
determined that this is not an economically significant rule, this rule 
has been determined to be significant because this rule implements a 
statutory authority for noncompetitive modification of timber sale 
contracts. Heretofore, there have been no rules on this subject. Given 
the wide interest in the timber sales and the statutory direction that 
gives rise to the extraordinary conditions which are the subject of 
this rulemaking, this rule has been reviewed by the Office of 
Management and Budget prior to publication.
    Moreover, this 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 action will not have a significant economic impact on a 
substantial number of small entities as defined by that act.

Environmental Impact

    This rulemaking action falls within a category of actions excluded 
from documentation in an Environmental Impact Statement or an 
Environmental Assessment. 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

[[Page 14621]]
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 for this rule.

Controlling Paperwork Burdens on the Public

    This rule does not require any recordkeeping or reporting 
requirements or other information collection requirements as defined in 
5 CFR 1320 not already approved for use and, therefore, imposes no 
additional paperwork burden on the public. Accordingly, the review 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et 
seq.) and implementing regulations at 5 CFR 1320 do not apply.

List of Subjects in 36 CFR Part 223

    Exports, Government contracts, National forest, Reporting and 
recordkeeping requirements, Timber sales.

    Therefore, for the reasons set forth in the preamble, it is 
proposed to amend part 223 of title 36 of the Code of Federal 
Regulations as follows:

PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER

    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, unless otherwise noted.

Subpart B--Timber Sale Contracts

    2. Section 223.85 is revised to read as follows:


Sec. 223.85  Noncompetitive sale of timber.

    (a) Forest officers may sell, within their authorization, without 
further advertisement, at not less than appraised value, any timber 
previously advertised for competitive bids but not sold because of lack 
of bids and any timber on uncut areas included in a contract which has 
been terminated by abandonment, cancellation, contract period 
expiration, or otherwise if such timber would have been cut under the 
contract. This authority shall not be utilized if there is evidence of 
competitive interest in the product.
    (b) Extraordinary conditions, as provided for in 16 U.S.C. 472(d), 
are defined to include the potential harm to natural resources, 
including fish and wildlife, and related circumstances arising as a 
result of the award or release of timber sale contracts pursuant to 
section 2001(k) of Public Law 104-19 (109 Stat. 246). Notwithstanding 
the provisions of paragraph (a) or any other regulation in this part, 
for timber sale contracts that have been or will be awarded or released 
pursuant to section 2001(k) of Public Law 104-19 (109 Stat. 246), the 
Secretary of Agriculture may allow forest officers to, without 
advertisement, modify those timber sale contracts by substituting 
timber from outside the sale area specified in the contract for timber 
within the timber sale contract area.

    Dated: March 28, 1996.
Dan Glickman,
Secretary of Agriculture.
[FR Doc. 96-8095 Filed 4-2-96; 8:45 am]
BILLING CODE 3410-11-M