[Federal Register Volume 69, Number 166 (Friday, August 27, 2004)]
[Rules and Regulations]
[Pages 52607-52609]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19592]


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DEPARTMENT OF THE INTERIOR

48 CFR Part 1437

RIN 1084-AA00


Woody Biomass Utilization

AGENCY: Assistant Secretary--Policy, Management and Budget, Interior.

ACTION: Interim final rule with request for comments.

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SUMMARY: The Department of the Interior is including an option to allow 
service contractors to remove woody biomass generated as a result of 
land management service contracts wherever ecologically appropriate and 
in accordance with the law. A new provision added to the Department's 
acquisition regulations specifies a contract clause to be used for this 
purpose. This rule does not make any other changes.

DATES: This rule is efffective August 27, 2004. We must receive all 
comments on this rule by October 26, 2004.

ADDRESSES: You may submit comments, identified by the number 1084-AA00 
by any of the following methods:
--Federal rulemaking portal: http://www.regulations.gov Follow the 
instruction for submitting comments
--E-mail: [email protected] Include the number 1084-AA00 in the 
subject line of the message
--Fax: (202) 606-3150
--Mail: Office of Wildland Fire Coordination, Department of the 
Interior, MS-3060 1849 C Street NW., Washington, DC 20240
--Hand delivery: Office of Wildland Fire Coordination, MS-3060, 
Department of the Interior, 1849 C Street NW., Washington, DC 20240

FOR FURTHER INFORMATION CONTACT: Wiley Horsley, Office of Acquisition 
and Property Management, Department of the Interior at (202) 208-3347, 
or e-mail at [email protected]. Individuals who use 
telecommunications devices for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 1-800-877-8339 twenty-four hours a 
day, 7 days a week.

SUPPLEMENTARY INFORMATION: This action establishes consistent and 
efficient procedures to allow contractors the option to remove woody 
biomass by-products from Department of the Interior land management 
activities. This option, where ecologically appropriate, will provide 
economic and social benefits by creating jobs and conserving natural 
resources. Removal or use of woody biomass will reduce smoke and 
emissions from prescribed and natural fires; preserve landfill 
capacities; reduce the threat of catastrophic wildfires to communities 
and public/private utilities; improve watershed and wildlife habitat 
protection; and improve forest, woodland, and rangeland health. The 
Forest Service, U.S. Department of Agriculture, has in place provisions 
in timber sale, service and stewardship contracts that provide 
opportunities to utilize the type of materials included in this rule.
    Because this revision to existing regulations is necessary to 
enable immediate use of forest product biomass for beneficial purposes, 
we are publishing this revision as an interim final rule. In accordance 
with the ``good cause'' exemption found at the 5 U.S.C. 553(b)(B), we 
have determined that publishing a proposed rule would be impracticable 
because the extra time necessary to publish a proposed rule would delay 
the many benefits accruing from biomass utilization. Moreover, this 
rule provides a benefit rather than imposing a burden or penalty of any 
kind upon applicable persons. Immediate implementation of this rule is 
necessary to treat hazardous fuels and forest health by-products in a 
timely and cost-efficient manner and thereby reduce the threat of 
catastrophic wildfire and forest health threats, such as, insects, 
disease, and invasive plant and animal species. For the same reasons, 
pursuant to 5 U.S.C. 553(d), it is determined that there is good cause 
for this interim final rule to become effective immediately upon 
publication.

[[Page 52608]]

    All comments received on or before the comment closing date will be 
considered before taking final action on this rulemaking. The 
provisions of this interim rule may be changed in light of comments 
received.

1. Regulatory Planning and Review (E.O. 12866)

    This document is not a significant rule and the Office of 
Management and Budget has not reviewed this rule under Executive Order 
12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. The contractors and the general public are not required to 
perform services or process materials; woody products will be removed 
and compensated, if appropriate, at fair market value as agreed upon.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. This 
policy only applies to Department of the Interior Bureaus; other 
agencies and governments could positively benefit from the development 
of small-wood markets and any tax or economic rewards.
    (3) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients. The contractor will be provided a new option, if 
executed, which is exclusive of other rights and benefits.
    (4) This rule does not raise novel legal or policy issues. This 
policy uses existing authorities within existing policies.

2. Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The scope of the action is minor (less than $100 million in economic 
impact); the benefits of the rule are to the contractor and may be 
exercised at their discretion.

3. Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more. The woody by-products have limited economic value (small 
diameter, low value trees and woody material), are unused or 
underutilized in current market conditions, and/or are by nature, 
incidental by-products.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. The quantities are small in size and 
amount, are widely scattered across the nation, and are low-value 
products.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. The 
policy would increase U.S-based economic opportunities, employment, 
innovation, and conservation of energy and resources.

4. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

5. Takings (E.O. 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. No rights, property or compensation 
has been, or will be taken. A takings implication assessment is not 
required.

6. Federalism (E.O. 13132)

    In accordance with Executive Order 13132, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. The rule grants optional rights and increased 
economic opportunities to individuals, States, local governments, and 
Tribes, in furtherance of Section 2(h) of E.O. 13132. A Federalism 
Assessment is not required.

7. Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

8. Consultation With Indian tribes (E.O. 13175)

    In accordance with Executive Order 13175, we have evaluated this 
rule and determined that it has no potential negative effects on 
federally recognized Indian tribes. We will fully consider tribal views 
in the final rule. We have consulted with the appropriate bureaus and 
offices of the Department about the potential effects of this rule on 
Indian tribes, including the Bureau of Indian Affairs.

9. Paperwork Reduction Act

    This regulation does not require an information collection from 10 
or more parties and a submission under the Paperwork Reduction Act is 
not required. An OMB form 83-I is not required.

10. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. Federal agencies should 
consider the environmental effects of woody biomass utilization in each 
project where woody biomass utilization is appropriate and make a 
determination of significance for that project.

11. Public Comment Solicitation

    If you wish to comment on this interim rule, you may submit your 
comments by any one of several methods.
    (1) You may mail comments to Office of Wildland Fire Coordination, 
Department of the Interior, MS-3060 1849 C Street NW., Washington, DC 
20240.
    (2) You may submit comments electronically by visiting the 
regulations.gov web site and submitting comments under the entry for 
this regulation.
    (3) You may comment via the Internet to [email protected]. 
Please submit Internet comments as an ASCII file avoiding the use of 
special characters and any form of encryption. Please also include 
``Attn: 1084-AA00'' and your name and return address in your Internet 
message. If you do not receive a confirmation from the system that we 
have received your Internet message, contact us directly at John 
Stewart, Office of Wildland Fire Coordination, Department of the 
Interior at (202) 606-0504, or Robert Heaton, Bureau of Land Management 
at (503) 808-6216.
    (4) You may hand-deliver comments to Office of Wildland Fire 
Coordination, MS-3060, Department of the Interior, 1849 C Street NW., 
Washington, DC 20240.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from

[[Page 52609]]

the rulemaking record. We will honor the request to the extent 
allowable by law.
    There may be circumstances in which we would withhold from the 
rulemaking record a respondent's identity, as allowable by law. If you 
wish us to withhold your name and/or address, you must state this 
prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety.

List of Subjects in 48 CFR Part 1437

    Forests and forest products, Government procurement.

    Dated: August 17, 2004.
P. Lynn Scarlett,
Assistant Secretary--Policy, Management and Budget.

0
For the reasons set forth in the preamble, the Department of the 
Interior adds a new part 1437 to 48 CFR chapter 14, subchapter F, 
reading as follows:

PART 1437--UTILIZATION OF WOODY BIOMASS

Sec.
1437.100 General.
1437.101 When can woody biomass be removed?
1437.102 When is the biomass clause required?
1437.103 Format of woody biomass utilization clause.
1437.104 Definitions.

    Authority: 30 U.S.C. 601-604, 611, as amended; 16 U.S.C. 668dd; 
16 U.S.C. 1; 25 U.S.C. 3101 et seq.; 43 U.S.C. 1701 et seq.


1437.100  General.

    This part establishes consistent and efficient procedures to allow 
contractors the option to remove woody biomass by-products from 
Department of the Interior land management activities where 
ecologically appropriate. If the woody biomass has fair market value 
and payment is required, or as required by regulation, Bureau policy or 
the Mineral Materials Disposal Act of 1947 (30 U.S.C. 601 et. seq), a 
separate timber/vegetative sales contract must be executed.


1437.101  When can woody biomass be removed?

    (a) The Department of the Interior allows and encourages 
contractors to remove and use woody biomass from project areas when:
    (1) The biomass is generated during land management service 
contract activity; and
    (2) Removal is ecologically appropriate.
    (b) A contractor removing biomass under this part shall:
    (1) Do so only within legal limits applicable to the contractor, 
including National Environmental Policy Act (NEPA) compliance; and
    (2) If required, comply with the terms, conditions and special 
provisions of the applicable timber/vegetative sales notice.


1437.102  When is the biomass utilization clause required?

    This section applies to any solicitation or contract that is 
expected to generate woody biomass that meets the requirements of Sec.  
1437.101 unless biomass removal is already required in the service 
contract. The agency contracting officer will:
    (a) Insert in the solicitation or contract the clause in Sec.  
1437.103;
    (b) Specify any limitations on types of woody biomass that may not 
be removed; and
    (c) Specify any areas from which woody biomass must not be removed.


1437.103  Format of woody biomass utilization clause.

    The contracting officer must insert a clause reading substantially 
as follows in each solicitation and contract that meets the criteria in 
Sec.  1437.101(a):

Utilization of Woody Biomass

    1. The contractor may remove and utilize woody biomass, if:
    (a) Project work is progressing as scheduled; and
    (b) Removal is completed before contract expiration.
    2. To execute this option, the contractor must submit a written 
request to the Government.
    3. Following receipt of the written request, and if appropriate, 
the Government and the contractor will negotiate and execute a 
separate timber/vegetative sales contract. Payment under this sales 
contract must be at a price equal to or greater than the appraised 
value before the removal of any woody biomass. The contractor must 
make any appropriate payment specified in this timber/vegetative 
sales contract.
    4. If required by law, regulation or Bureau policy, the 
Government will prepare a timber/vegetative sales notice and/or 
prospectus, including volume estimates, appraised value and any 
appropriate special provisions.
    5. The contractor must treat any woody biomass not removed in 
accordance with the specifications in the service contract.
    6. The sales contract and service contract are severable; 
default or termination under either contract does not remove the 
contractor from payment or performance obligations under the other 
contract.

1437.104  Definitions.

    Ecologically appropriate means those situations where the Deciding 
Officer and/or Contracting Officer determine it is not necessary to 
retain specific woody material and/or reserve specific areas from woody 
biomass removal to meet ecological objectives. For example, it may be 
necessary to retain snags or small woody debris to meet wildlife 
habitat objectives, or to create specific prescribed burning conditions 
to stimulate native plant development; therefore it would not be 
appropriate to allow removal of the specified woody biomass.
    Timber/vegetative sales contract and/or notice means the agency-
specific authorized contract instrument for the sale, barter, exchange, 
billing or other compensation for the payment, removal, and/or 
transportation of woody biomass material.
    Woody biomass means the trees and woody plants, including limbs, 
tops, needles, leaves, and other woody parts, grown in a forest, 
woodland, or rangeland environment, that are the by-products of 
management, restoration and/or hazardous fuel reduction treatment.
    Woody biomass utilization or use means the harvest, sale, offer, 
trade, and/or utilization of woody biomass to produce the full range of 
wood products, including timber, engineered lumber, paper and pulp, 
furniture and value-added commodities, and bio-energy and/or bio-based 
products such as plastics, ethanol and diesel.
[FR Doc. 04-19592 Filed 8-26-04; 8:45 am]
BILLING CODE 4310-RF-P