[Federal Register Volume 62, Number 56 (Monday, March 24, 1997)]
[Rules and Regulations]
[Pages 13826-13830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7274]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 223


Small Business Timber Sale Set-Aside Program; Appeal Procedures 
on Recomputation of Shares

AGENCY: Forest Service, USDA.

ACTION: Interim rule; request for comment.

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SUMMARY: This interim rule provides an opportunity for timber 
purchasers to appeal the recomputation of the small business share of 
National Forest System Timber sales. The rule is necessary to implement 
a legislative requirement to provide timber purchasers the opportunity 
to comment on and appeal recomputation of shares and related decisions 
made under the Small Business Timber Sale Set-Aside Program.

DATES: Effective Dates: This rule is effective March 24, 1997, except 
for Sec. 223.18 paragraph (f) which contains information collection 
requirements that have not been approved by the Office of Management 
and Budget. The Forest Service will publish a subsequent notice in the 
Federal Register announcing the effective date of the information 
collection requirements.
    Comment Date: Comments on this interim rule must be received by May 
23, 1997.

ADDRESSES: Send written comments to Director, Timber Management, MAIL 
STOP 1105, Forest Service, USDA, P.O. Box 96090, Washington, DC 20090-
6090. Comments received, including name and address where provided, 
shall be placed in the record of the rulemaking and made available for 
copying and public inspection.

FOR FURTHER INFORMATION CONTACT:
Rod Sallee, Timber Management Staff, (202) 205-1766.

SUPPLEMENTARY INFORMATION:

Background

    Developed in cooperation with the Small Business Administration, 
the Forest Service Small Business Timber Sale Set-Aside Program is 
designed to ensure that qualifying small business timber purchasers 
have the opportunity to purchase a fair proportion of National Forest 
System timber offered for sale. The current set-aside program was 
adopted July 26, 1990 (55 FR 30485).
    Under the program, the Forest Service must recompute the shares of 
timber sales to be set-aside for qualifying small businesses every five 
years based on the actual volume of sawtimber that has been purchased 
and/or harvested by small businesses. Also, shares must be recomputed 
if there is a change in manufacturing capability, if the purchaser size 
class changes, or if certain purchasers discontinue operations. 
Direction to guide employees in administering the Small Business Timber 
Sale Set-Aside Program is issued in the Forest Service Manual, Chapter 
2430, and Chapter 90 of the Forest Service Timber Sale Preparation 
Handbook (FSH) 2409.18.
    In 1992, the agency adopted new administrative appeal procedures at 
36 CFR part 215 in response to new statutory direction. These rules 
apply to all National Forest System project-level decisions for which 
an environmental assessment (EA) or impact statement (EIS) has been 
prepared. Because the recomputation of shares under the Small Business 
Set-Aside Program is not subject to documentation in an EA or EIS, the 
decisions on the 1996-2000 Forest Service recomputation of small 
business shares were not subject to the appeal procedures. However, 
since the agency had accepted appeals of recomputation decisions under 
36 CFR part 217 prior to adoption of part 215, the agency decided to 
establish procedures for providing notice to affected purchasers with 
opportunity to comment on the recomputation of shares. Notice of these 
procedures was published in the Federal Register on February 28, 1996 
(61 FR 7468).
    The Conference Report accompanying the 1997 Omnibus Appropriation 
Act (Public Law 104-208) found the Forest Service decision to eliminate 
an administrative appeals opportunity for the Small Business Timber 
Sale Set-Aside Program ``unacceptable'' and directed the Forest Service 
to reinstate an appeals process before December 31, 1996. The 
Conference Report requires that the agency establish a process by which 
purchasers may appeal decisions concerning recomputations of SBA 
shares, structural recomputations of SBA shares, or changes in policies 
impacting the timber sale set-aside program. It also provides that, as 
in the past, decisions related to the designation of the sales to be 
set aside will not be open for appeal.

Good Cause Exemption

    The Conference Report accompanying the FY 1997 Omnibus 
Appropriation Act directed reinstatement of the appeals process by 
December 31, 1996. The Department has determined that such 
reinstatement can occur only through informal rulemaking (5 U.S.C. 
552). Regrettably, the Department was not able to meet the December 
deadline

[[Page 13827]]

because of the press of other business, but it is trying to implement 
the direction as expeditiously as possible. Given that the 
congressional intent can be met only through rulemaking, that in the 
conference report Congress set a specific date, and that it would be 
impracticable to give notice and obtain comment, good cause exists to 
adopt an interim rule without prior public comment. However, while the 
rule is immediately effective to comply with congressional intent, the 
Department is requesting comment on the provisions set out in this 
interim rule for consideration in adoption of a final rule.

Provisions of the Rule

    The appeal process at issue is limited to the Timber Sale Set-Aside 
Program; therefore, the interim rule is issued to 36 CFR part 223--Sale 
and Disposal of National Forest System Timber, under Subpart B rules 
dealing with contract administration. The Set-Aside Program appeal 
procedures are set out at a new Sec. 223.118. To the extent possible, 
the Department has modeled this very specific appeal procedure on the 
other appeal processes administered by the Forest Service in order to 
foster common interpretation, consistent processing, and public and 
employee understanding.
    Paragraph (a) of Sec. 223.118 specifies that the decisions subject 
to appeal are the various recomputations of small business shares of 
timber sales, namely structural, special, and market change as well as 
the scheduled five-year recomputations.
    Paragraph (b) addresses the manner of giving notice of proposed and 
actual recomputation decisions. Paragraph (b)(1) of the interim rule 
requires the agency to give predecisional notice and opportunity to 
comment on ``draft'' recomputation decisions. Timber sale purchasers in 
the affected area will have 30 days to review the draft decision and 
supporting data and to provide comments. The Responsible Official has 
15 days to review and consider the comments and to make and give notice 
of the recomputation decision. This approach is consistent with the 
predecisional notice and comment procedures of the agency's principal 
appeal rules at 36 CFR part 215.
    Paragraph (b)(2) of the interim rule requires the Responsible 
Official to give written notice of the final decision to all purchasers 
on the timer sale bidders list for the affected area and to advise them 
of appeal rights and filing procedures. This decision notice must 
identify the name of the Appeal Deciding Officer to whom a appeal of 
the decision may be filed, the address, and the deadline for filing.
    Paragraph (c) of Sec. 223.118 specifies that only timber sale 
purchasers on the bidders list for the affected area who have submitted 
predecisional comments pursuant to paragraph (b) may appeal. This 
approach is consistent with that at 36 CFR 215.11, which provides that 
prior participation in the decisionmaking process is a condition of 
appeal. However, unlike the rules at 36 CFR 215.11, this interim rule 
does not permit interested parties (parties other than affected 
purchasers of their representative) to submit views for consideration 
in the appeal process. Since only purchasers are directly affected by 
the recomputation of the small business share of the local timber sale 
program, there is no apparent need to provide for participation of 
interested parties.
    Paragraph (d) of the interim rule provides for one level of appeal 
and notes that generally appeals are conducted by the Regional 
Forester. Consistent with the approach under 36 CFR part 215, only one 
level of appeal is provided.
    Paragraph (e) provides 20 days to file a notice of appeal with the 
Appeal Deciding Officer.
    Paragraph (f) sets out the minimums information that must be 
included in a notice of appeal. The requirements in paragraph (f)(2) 
constitute an information collection as defined by the Paperwork 
Reduction Act and are described in detail later in the preamble under 
the heading ``Controlling Paperwork Burden on the Public.'' This 
provision of the rule is not effective until the Office of Management 
and Budget approves the information requirement. Emergency approval of 
the information required in a notice of appeal has been requested from 
the Office of Management and Budget. The agency will give notice of the 
number assigned to the information required by paragraph (f) along with 
the effective date which will be published in the Federal Register. In 
the meantime, the public is invited to submit comments on this 
collection.
    Paragraph (g) addresses the filing periods, how time periods are 
calculated, and how timeliness is determined. These procedures are 
basically the same as those already in use with other Forest Service 
appeal procedures under 36 CFR parts 215, 217, and 251, subpart C.
    Paragraph (h) sets out the three circumstances under which an 
appeal will be dismissed without a decision. These are consistent with 
dismissal of appeals under part 215.
    Paragraph (i) defines the record on which the Appeal Deciding 
Officer must base the appeal decision. In the interest of an efficient 
and timely appeal process, the record is limited to the written 
decision, supporting documentation, the notice of appeal, and the 
responsive statement, if any. Also, the Responsible Official is given 
only seven days to gather and assemble the record and to transmit it to 
the Appeal Deciding Officer.
    Paragraph (j) requires the Appeal Deciding Officer to issue the 
appeal decision in writing within 30 days of the cost of the appeal 
period.
    Paragraph (k) addresses implementation of recomputation decisions 
during pendency of appeals. It provides that if an appeal is not 
resolved by April 1 following the end of the 5-year recomputation 
period, the Responsible Official will proceed to implement the 
decision. If the appeal decision changes the shares, the necessary 
adjustments will be made in the remaining portion of the 5-year period.
    Paragraph (l) requires that timber purchasers be given an 
opportunity to review and comment on significant changes in the Small 
Business Timber Sale Set-Aside program or policy prior to adoption and 
implementation. This opportunity will be given through Federal Register 
notice and is consistent with the agency's treatment of all other major 
policy decisions.
    The sequence and content of the rules of Sec. 223.118 are modeled 
on those of 36 CFR part 215. The interim rule adopts the same rules of 
procedure with regard to the content of the notice of appeal, timely 
filing, appeal record, dismissal, and timeframe for decisions. These 
rules are well understood by those who have participated in Forest 
Service administrative appeals, including many timber sale purchasers 
or their representatives, and, therefore, should facilitate appellant 
understanding and use of these appeal procedures.

Environmental Impact

    This interim rule would establish uniform procedures for providing 
qualifying timber purchasers the opportunity to review, comment, and 
appeal decisions on recomputed shares of the small business timber sale 
set-aside program. 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

[[Page 13828]]

is that this interim rule falls within this category of actions and has 
no direct or indirect environmental impact, and that no extraordinary 
circumstances exist which would require preparation of an environmental 
assessment or environmental impact statement.
    However, comments are invited and will be considered in making a 
final determination upon adoption of the final rule.

Controlling Paperwork Burdens on the Public

    The information that would be collected from timber sale purchasers 
who appeal recomputation of shares under the Small Business Timber Sale 
Set-Aside Program is the minimum needed for an Appeal Deciding Officer 
to reach informed conclusions about decisions appealed under this rule.

Description of Information Collection

    Title: Small Business Timber Sale Set-Aside Program; Appeal 
Procedures on Recomputations of Shares.
    OMB Number: New.
    Expiraiton Date of Approval: New.
    Type of Request: The following collection requirements are new and 
have not received approval by the Office of Management and Budget.
    Abstract: This collection would consist of information provided by 
purchasers who object to a recomputation decision of timber sales to be 
set aside for small timber purchasers. The information to be provided 
shows why the appellant believes the recomputation decision should be 
overturned.
    Estimate of Burden: The public reporting burden to provide comments 
or prepare a notice of appeal pursuant to the interim rule is estimated 
to average 4 hours per response.
    Respondents: Large and small businesses purchasing National Forest 
System timber sales or their agents.
    Estimated Number of Respondents: 40.
    Estimated Number of Responses per Respondent: 2.
    Estimated Total Annual Burden on Respondents: 320 hours.
    Comments are Invited on: (a) Whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information will have practical 
utility; (b) the accuracy of this agency's estimate of the burden of 
the proposed collection of information, including the validity of the 
methodology and assumptions used; (c) ways to enhance the quality, 
utility, and clarity of the information to be collected; and (d) ways 
to minimize the burden of the collection of information on respondents; 
including the use of automated collection techniques or other forms of 
information technology.

Use of Comments

    All comments received on the information requirements in response 
to this rulemaking notice will be summarized and included in the 
subsequent routine request for OMB approval of the information 
collection. All comments, including names and addresses where provided, 
will also become a matter of public record.

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 interim rule does not compel 
the expenditure of $100 million or more by any State, local, or tribal 
governments or anyone in the private sector. Therefore, a statement 
under section 202 of the Act is not required.

Regulatory Impact

    This interim final rule has been reviewed under USDA procedures and 
Executive Order 12866 on Regulatory Planning and Review. It has been 
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, pubic health 
or safety, nor State or local governments. This interim 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 or recipients of such programs. 
Accordingly, this interim rule is not subject to OMB review under 
Executive Order 12866.
    Pursuant to 5 U.S.C. 605(b), it is hereby certified that this 
interim rule has been considered in light of the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.) and that this action will not have a 
significant economic impact on a substantial number of small entities 
as defined by that Act. The interim rule imposes no additional 
requirements on small business timber sale purchasers or other small 
entities. It merely implements legislative intent to provide small 
purchasers a new administrative appeal opportunity. To facilitate 
preparation and conduct of timber sale set-aside appeals, the agency 
has kept the appeal procedures as streamlined and simple as possible.

No Takings Implications

    This interim 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 
Constitutionally-protected private property. This interim rule gives 
opportunity to qualifying timber sale purchasers to ensure that small 
businesses have the opportunity to purchase a fair proportion of 
National Forest System timber offered for sale.

Civil Justice Reform Act

    This interim rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. If this interim rule were adopted, (1) all state 
and local laws and regulations that are in conflict with this interim 
rule or which would impede its full implementation would be preempted; 
(2) no retroactive effect would be given to this interim rule; and (3) 
it would not require administrative proceedings before parties may file 
suit in court challenging its provisions.

Summary

    This interim rule complies with the congressional intent of the 
conference report on the Fiscal Year 1997 Omnibus Appropriations Act by 
reinstating an administrative appeal opportunity for timber sale 
purchasers of small business timber sale share recomputation decisions 
in a manner consistent with previous appeal procedures and subsequent 
statutory predecisional notice and comment provisions. To enhance both 
employee and purchaser understanding, this interim rule models the 
provisions of other administrative appeal rules already in place (36 
CFR part 215, 217, and 251) to the extent possible. The Department 
invites written comment on this interim final rule. Notice of the final 
rule, including discussion of comments received, will be published in 
the Federal Register.

List of Subjects in 36 CFR Part 223

    Exports, Government contracts, National forests, Reporting 
requirements, Timber sales.

    Therefore, for the reasons set forth in the preamble, Subpart B of 
Part 223 of Title 36 of the Code of Federal Regulations is hereby 
amended as follows:

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

    1. The authority citation for Part 223 continues to read as 
follows:


[[Page 13829]]


    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. 620-620h, unless otherwise 
noted.

    2. Add a new Sec. 223.118 to subpart B to read as follows:


Sec. 223.118  Appeal process for small business timber sale set-aside 
program share recomputations.

    (a) Decisions subject to appeal. The rules of this section govern 
appeal of decisions about structural, special, market change, or the 
scheduled five-year recomputations of the small business share of 
timber sales. Only those timber sale purchasers who have submitted 
written comments to the Responsible Official on the draft recomputed 
share decision, or their representatives, are eligible to appeal a 
decision.
    (b) Manner of giving notice--(1) Predecisional notice and comment. 
Qualifying timber sale purchasers that may be affected by 
recomputations shall be given 30 days for predecisional review and 
comment on any draft decision to reallocate shares, including the data 
used in making the proposed recomputation decision.
    (2) Notice of Decision. Upon close of the 30-day review period, the 
Responsible Official shall consider any comments reviewed. Within 15 
days following the end of the comment period, the Responsible Official 
shall make the decision on the small business shares and shall give 
prompt written notice to all parties on the national forest timber sale 
bidders list for the affected area. The notice shall identify the name 
of the Appeal Deciding Officer to whom an appeal of the decision may be 
filed, the address, the date by which an appeal must be filed, and 
where the purchaser may obtain the appeal procedure and requirements.
    (c) Who may appeal. Only timber sale purchasers affected by 
recomputations of the small business share of timber sales, or their 
representatives, who have submitted predecisional comments pursuant to 
paragraph (b)(1) of this section may appeal recomputation decisions 
under this section. Intervenors are not allowed in appeals under this 
section.
    (d) Level of appeal. Only one level of review is available for 
appeal of decisions pertaining to recomputations under the Small 
Business Timber Set-Aside Program. The Appeal Deciding Officer is the 
official one level above the level of the Responsible Official who made 
the recomputation of shares decision. The Responsible Official is 
normally the Forest Supervisor; thus, the Appeal Deciding Officer is 
normally the Regional Forester. However, when the Regional Forester 
makes recomputation decisions, the Appeal Deciding Officer is the Chief 
or such officer at the National headquarters level as the Chief may 
designate.
    (e) Filing procedures. In order to file an appeal under this 
section, an appellant must file a notice of appeal, as specified in the 
notice of decision, with the Appeal Deciding Officer within 20 days of 
the date on the notice of the decision. This date shall be specified in 
the notice of decision given pursuant to paragraph (b)(2) of this 
section.
    (f) Content of notice of appeal. (1) It is the responsibility of 
the appellant to provide sufficient narrative evidence and argument to 
show why a recomputation decision by the Responsible Official should be 
reversed or changed.
    (2) An appellant must include the following information in a notice 
of appeal:
    (i) The appellant's name, mailing address, and daytime telephone 
number;
    (ii) The title or type of recomputation decision involved, the date 
of the decision, and the name of the Responsible Official;
    (iii) A brief description and date of the decision being appealed;
    (iv) A statement of how the appellant is adversely affected by the 
decision being appealed;
    (v) A statement of the facts in dispute in the issue(s) raised by 
the appeal;
    (iv) Specific references to any law, regulation, or policy that the 
appellant believes to have been violated and the basis for such as 
allegation;
    (vii) A statement as to whether and how the appellant has tried to 
resolve with the Responsible Official the issue(s) being appealed, 
including evidence of submission of written comments at the 
predecisional stage as provided by paragraph (a) of this section, the 
date of any discussion, and the outcome of that meeting or contact; and
    (viii) A statement of the relief the appellant seeks.
    (g) Time periods and timeliness. (1) All time periods applicable to 
this section will begin on the first day following a decision or action 
related to the appeal.
    (2) Time periods applicable to this section are computed using 
calendar days. Saturdays, Sundays, or Federal holidays are included in 
computing the time allowed for filing an appeal; however, when the 
filing period would expire on a Saturday, Sunday, or Federal holiday, 
the filing time is automatically extended to the end of the next 
Federal working day.
    (3) It is the responsibility of those filing an appeal to file the 
notice of appeal by the end of the filing period. In the event of 
questions, legible postmarks on a mailed appeal or the time and date 
imprint on a facsimile appeal will be considered evidence of timely 
filing. Where postmarks or facsimile imprints are illegible, the Appeal 
Deciding Officer shall rule on the timeliness of the notice of appeal.
    (4) Time for filing a notice of appeal is not extendable.
    (h) Dismissal without decision. The Appeal Deciding Officer shall 
dismiss an appeal and close the record without a decision in any of the 
following circumstances:
    (1) The appellant is not on the timber sale bidders list for the 
area affected by the recomputation decision;
    (2) Appellant's notice of appeal is not filed within the required 
time period; or
    (3) The appellant did not submit written comments on the proposed 
decision of the new recomputed shares as required by paragraph (c) of 
this section.
    (i) Appeal record. The appeal record consists of the written 
decision being appealed, any predecisional comments received, any other 
supporting data used to make the decision, the notice of appeal, and if 
prepared, a responsive statement by the Responsible Official which 
addresses the issues raised in the notice of appeal. The Responsible 
Official must forward the record within 7 days of the date the notice 
of appeal is received. A copy of the appeal record will be 
simultaneously submitted to the appellant.
    (j) Appeal decision. The Appeal Deciding Officer shall review the 
decision and appeal record and issue a written appeal decision to the 
parties within 30 days of the close of the appeal period. The Appeal 
Officer may affirm or reverse the Responsible Official's decision, in 
whole or in part. There is no extension of the time period for the 
appeal decision. If the decision is not rendered within the required 30 
days, the existing decision is automatically affirmed. The Appeal 
Deciding Officer's decision or the failure of the Appeal Deciding 
Officer to decide within the required 30 days constitutes the final 
administrative decision of the Department of Agriculture.
    (k) Implementation of decisions during pendency of appeal. 
Recomputation of shares arising from a scheduled five-year 
recomputation are effective on April 1 following the end of the five-
year period being considered. If an appeal that may affect the shares 
for the next five-year period is not resolved by the April 1 date, the 
share decision

[[Page 13830]]

announced by the Responsible Official shall be implemented. If an 
appeal decision results in a change in the shares, the revised total 
share of the Small Business Timber Sale Set-Aside Program shall be 
accomplished during the remaining portion of the five-year period.
    (l) Timber sale set-aside policy changes. Timber purchasers shall 
receive an opportunity, in accordance with all applicable laws and 
regulations, to review and comment on significant changes in the Small 
Business Timber Sale Set-Aside program or policy prior to adoption and 
implementation.

    Dated: March 17, 1997.
Brian Eliot Burke,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 97-7274 Filed 3-21-97; 8:45 am]
BILLING CODE 3410-11-M