[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