[Federal Register Volume 70, Number 221 (Thursday, November 17, 2005)]
[Proposed Rules]
[Pages 69714-69717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22779]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 5420

[WO-270-1820-00-24 1A]
RIN 1004-AD70


Preparation for Sale

AGENCY: Bureau of Land Management, Interior.

ACTION: Proposed rule.

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SUMMARY: The Bureau of Land Management (BLM) proposes to amend its 
regulations on preparation for timber sales to allow third party 
scaling on density management sales with an upper limit on the 
quadratic mean diameter at breast height (DBH) of the trees to be 
harvested of 20 inches. Third party scaling would be limited to the 
situations described in the amended provision, that is, if a timber 
disaster has occurred and a critical resource loss is imminent, and 
tree cruising and BLM scaling are inadequate to permit orderly disposal 
of the damaged timber, or if BLM is carrying out density management 
timber sales subject to the size limits stated above. Thus, third party 
scaling would generally not be used for sales of higher-value and/or 
larger diameter timber. BLM is amending the regulations in order to 
improve the efficiency of density management timber sales where the 
timber to be harvested may be designated by prescription (a written 
prescription included in the timber sale contract). The regulations 
will no longer require that BLM perform all scaling except in the event 
that a timber disaster is threatening imminent critical resource loss, 
and scaling by BLM would be inadequate to permit orderly disposal of 
the damaged timber. In the case of density management timber sales when 
the quadratic mean DBH of trees to be cut and removed is equal to or 
less than 20 inches, the regulations will only allow third party 
scaling by scalers or scaling bureaus under contract to BLM.

DATES: Comments must be received, postmarked, or electronically dated 
on or before January 17, 2006. BLM will not necessarily consider any 
comments received, postmarked, or electronically dated after the above 
date in making its decision on the final rule.

ADDRESSES: Mail: Director (630), Bureau of Land Management, Eastern 
States Office, 7450 Boston Boulevard, Springfield, Virginia 22153, 
Attention: RIN 1004-AD70.
    Personal or messenger delivery: 1620 L Street NW., Suite 401, 
Washington,

[[Page 69715]]

DC 20036. Internet e-mail: [email protected].
    Federal eRulemaking Portal: http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For technical questions about the 
rule, contact Lyndon Werner at (503) 808-6071 or Scott Lieurance at 
(202) 452-0316. For procedural questions about the rulemaking process, 
contact Ted Hudson at (202) 452-5042. Persons who use a 
telecommunications device for the deaf (TDD) may contact these persons 
through the Federal Information Relay Service (FIRS) at 1-800-877-8339, 
24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures
II. Background
III. Discussion of Proposed Rule
IV. Procedural Matters

I. Public Comment Procedures

Electronic Access and Filing Address

    You may view an electronic version of this proposed rule at BLM's 
Internet home page: http://www.blm.gov. You may also comment via the 
Internet to: [email protected]. Please also include 
``Attention: 1004-AD70'' 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 
(202) 452-5030.
    Federal eRulemaking Portal: http://www.regulations.gov.

Written Comments

    Written comments on the proposed rule should be specific, should be 
confined to issues pertinent to the proposed rule, and should explain 
the reason for any recommended change. Where possible, comments should 
reference the specific section or paragraph of the proposal which the 
commenter is addressing. BLM may not necessarily consider or include in 
the Administrative Record for the final rule comments which BLM 
receives after the close of the comment period (See DATES) or comments 
delivered to an address other than those listed above (See ADDRESSES).
    Comments, including names, street addresses, and other contact 
information of respondents, will be available for public review at 1620 
L Street, NW., Room 401, Washington, DC, during regular business hours 
(7:45 a.m. to 4:15 p.m.), Monday through Friday, except Federal 
holidays. Individual respondents may request confidentiality. If you 
wish to request that BLM consider withholding your name, street 
address, and other contact information (such as: Internet address, FAX 
or phone number) from public review or from disclosure under the 
Freedom of Information Act, you must state this prominently at the 
beginning of your comment. BLM will honor requests for confidentiality 
on a case-by-case basis to the extent allowed by law. BLM will make 
available for public inspection in their entirety all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses.

II. Background

    BLM Districts have been testing different methods of selling 
timber, such as Designation-by-Prescription (DxP), attempting to gain 
efficiencies, especially with a program comprised of substantially more 
density management and small logs than was historically the case. This 
testing has revealed that the gain in efficiency by using such methods 
is lost due to the regulatory requirement that BLM personnel conduct 
all the scaling if a DxP sale is scale as opposed to lump-sum. 
Otherwise, scale DxP sales can be more efficient in certain situations 
(small diameter density management).
    43 CFR 5422.1 states: ``[a]s the general practice, the Bureau will 
sell timber on a tree cruise basis,'' which means lump-sum sales. 
Section 5422.2(a) states: ``[s]caling by the Bureau will be used from 
time to time for administrative reasons.'' Lump-sum is the default, and 
there must be an interest-of-the-Government reason to conduct a scale 
sale.
    43 CFR 5422.2(b) allows third-party scaling when all of three 
conditions are met:
    (1) A timber disaster has occurred;
    (2) A critical resource loss is imminent; and
    (3) Lump-sum timber measurement practices are inadequate to permit 
orderly disposal of the damaged timber.
    Regular commercial density management sales obviously do not meet 
these conditions. The definition of third-party scaling found in 43 CFR 
5400.0-5 is ``the measurement of logs by a scaling organization, other 
than a Government agency, approved by the Bureau.'' This includes the 
non-governmental Scaling Bureaus that normally contract with purchasers 
to scale in mill yards. BLM does contract with these Scaling Bureaus to 
scale for administrative check scales.
    Historically, BLM timber sales, particularly in western Oregon, 
were clearcuts of high-value large timber. Log accountability was the 
principal reason for the aforementioned regulations limiting scale 
sales and third-party scaling. These provisions are intended to 
minimize the potential for log theft.
    Today's sale program, however, has a considerable component of 
density management sales in lower-value, smaller-log situations that 
meet one or more of the following objectives: Growth enhancement, 
habitat restoration, or fuels/fire hazard reduction. Density management 
sales are timber sales intended to accomplish these objectives by 
removing smaller trees and understory that may inhibit growth or forest 
health or contribute to fuel buildup. In addition, density management 
sales intended to enhance wildlife habitat may remove some dominant and 
co-dominant trees in the forest stand to enhance biological diversity. 
Smaller logs cannot be efficiently and effectively truck scaled. 
Scaling in the mill yards as trucks are unloaded is faster and more 
accurate.
    BLM does not intend a major shift to scale sales for density 
management. Rather, we seek to have a multifaceted ``tool kit'' of sale 
method options in order to maintain as cost effective a program as 
possible. It is not in the best interest of the Government to scale all 
density management sales. In certain cases, the costs of administering 
a lump-sum sale are less than costs of conducting scaling, making the 
lump-sum sale the preferred in-the-interest-of-the-Government option.

III. Discussion of Proposed Rule

    The proposed rule would add one sentence to section 5422.2 on scale 
sales: ``BLM may also order third party scaling, only by scalers or 
scaling bureaus under contract to BLM, for the scaling of density 
management timber sales when the quadratic mean diameter of the trees 
to be cut and removed is equal to or less than 20 inches.'' (The 
quadratic mean diameter is a measure used by foresters as an index of 
the size of trees in a stand. According to the Dictionary of Forestry, 
the quadratic mean diameter is the diameter of the tree corresponding 
to the tree of mean basal area. Basal area is the cross-sectional area 
of a tree measured at breast height. The basal area of a tree with DBH 
equal to the quadratic mean diameter is equal to the mean basal area of 
the stand.) This will enable us to conduct density management sales 
while taking advantage of the improved economies that third party 
scaling may provide, such as by allowing scaling in the mill yards as 
trucks are unloaded, which is faster and more accurate.
    For the sake of clarity, we also propose to divide section 
5422.2(b) into

[[Page 69716]]

three paragraphs, the second of which would comprise this new 
provision. Paragraph (b)(1) would consist of the first sentence of 
existing paragraph (b), which covers the disaster situation in which 
third party scaling is allowed, and paragraph (b)(3) would consist of 
the second sentence of existing paragraph (b), which requires that 
third party scaling must follow BLM standards in use for timber 
depletion computations, so that we can make sure that sales conform 
with sustained yield principles. Redesignated paragraph (b)(1) would 
also be amended editorially to read in active voice. Neither paragraph 
(b)(1) nor (b)(3) would contain substantive changes.

IV. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

    This proposed rule is not a significant regulatory action and is 
not subject to review by Office of Management and Budget under 
Executive Order 12866. The proposed rule will not have an effect of 
$100 million or more on the economy. The average cost of contract 
scaling is approximately $1.50 per thousand board feet. The approximate 
average annual number of sales contracts over the past several years 
that would qualify for third party scaling under the proposed rule has 
been ten sales. The new provision would enable BLM to prepare and 
administer certain contracts (that otherwise qualify to be sold as a 
scale sale) more efficiently, saving approximately $90,000 per year. 
These savings are not directly passed onto purchasers. There may be a 
slight saving to a purchaser of a scale sale over a lump sum sale due 
to their not having to conduct pre-sale measures of the sale volume to 
the same intensity.
    For the same reasons, the proposed rule 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 rule would impose no requirements on 
any governmental entities.
    The proposed rule will not create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency. 
The approach in the proposed rule is similar to that of the Forest 
Service in using third-party scaling.
    The proposed rule does not alter the budgetary effects of 
entitlements, grants, user fees, or loan programs or the right or 
obligations of their recipients, having no effect on any of these 
matters; nor do they raise novel legal or policy issues.

Clarity of the Regulations

    Executive Order 12866 requires each agency to write regulations 
that are simple and easy to understand. We invite your comments on how 
to make these proposed regulations easier to understand, including 
answers to questions such as the following:
    1. Are the requirements in the proposed regulations clearly stated?
    2. Do the proposed regulations contain technical language or jargon 
that interferes with their clarity?
    3. Does the format of the proposed regulations (grouping and order 
of sections, use of headings, paragraphing, etc.) aid or reduce their 
clarity?
    4. Would the regulations be easier to understand if they were 
divided into more (but shorter) sections? (A ``section'' appears in 
bold type and is preceded by the symbol ``Sec. '' and a numbered 
heading, for example ``Sec.  5422.2 Scale sales.'')
    5. Is the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble helpful in 
understanding the proposed regulations? How could this description be 
more helpful in making the proposed regulations easier to understand?
    Please send any comments you have on the clarity of the regulations 
to the address specified in the ADDRESSES section.

National Environmental Policy Act

    BLM has determined that this proposed rule authorizing certain 
timber cuts to be scaled by BLM-approved third parties is a regulation 
of an administrative and financial nature. Therefore, it is 
categorically excluded from environmental review under section 
102(2)(C) of the National Environmental Policy Act, pursuant to 516 
Departmental Manual (DM), Chapter 2, Appendix 1. In addition, the 
proposed rule does not meet any of the 10 criteria for exceptions to 
categorical exclusions listed in 516 DM, Chapter 2, Appendix 2. 
Pursuant to Council on Environmental Quality regulations (40 CFR 
1508.4) and the environmental policies and procedures of the Department 
of the Interior, the term ``categorical exclusions'' means a category 
of actions which do not individually or cumulatively have a significant 
effect on the human environment and that have been found to have no 
such effect in procedures adopted by a Federal agency and for which 
neither an environmental assessment nor an environmental impact 
statement is required.

Regulatory Flexibility Act

    Congress enacted the Regulatory Flexibility Act of 1980, as 
amended, 5 U.S.C. 601-612, to ensure that Government regulations do not 
unnecessarily or disproportionately burden small entities. The RFA 
requires a regulatory flexibility analysis if a rule would have a 
significant economic impact, either detrimental or beneficial, on a 
substantial number of small entities. The proposed rule would likely 
provide additional business opportunities to scalers and scaling 
bureaus, which are mostly if not all small entities. The average cost 
of contract scaling is approximately $1.50 per thousand board feet. The 
approximate average annual number of sales contracts over the past 
several years that would qualify for third party scaling under the 
proposed rule has been ten sales. The new provision would enable BLM to 
prepare and administer certain contracts (that otherwise qualify to be 
sold as a scale sale) more efficiently, saving approximately $90,000 
per year. These savings are not directly passed onto the purchasers. 
There may be a slight saving to a purchaser of a scale sale over a lump 
sum sale due to their not having to conduct pre-sale measures of the 
sale volume to the same intensity. Therefore, BLM has determined under 
the RFA that this proposed rule would not have a significant economic 
impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This proposed rule is not a ``major rule'' as defined at 5 U.S.C. 
804(2). That is, it would not have an annual effect on the economy of 
$100 million or more; it would not result in major cost or price 
increases for consumers, industries, government agencies, or regions; 
and it would 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. It 
would merely allow BLM to contract out a management step in timber 
volume measurement for some types of timber sales to non-governmental 
entities that can operate more efficiently than the Bureau.

Unfunded Mandates Reform Act

    These proposed regulations do not impose an unfunded mandate on 
State, local, or tribal governments or the private sector, in the 
aggregate, of $100 million or more per year; nor do these proposed 
regulations have a significant or unique effect on State, local, or 
tribal

[[Page 69717]]

governments. The rule would impose no requirements on any of these 
entities. We have already shown, in the previous paragraphs of this 
section of the preamble, that the change proposed in this rule would 
not have effects approaching $100 million per year on the private 
sector. Therefore, BLM is not required to prepare a statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.)

Executive Order 12630, Governmental Actions and Interference With 
Constitutionally Protected Property Rights (Takings)

    The proposed rule is not a government action capable of interfering 
with constitutionally protected property rights. The rule would allow 
BLM to contract out one step in the timber volume measurement process, 
and would not provide for the taking or reduction in value of, or any 
other effect on any private property. Therefore, the Department of the 
Interior has determined that the rule would not cause a taking of 
private property or require further discussion of takings implications 
under this Executive Order.

Executive Order 13132, Federalism

    The proposed rule will not have a substantial direct effect on the 
states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. It would not apply to states or local 
governments or state or local governmental entities. Therefore, in 
accordance with Executive Order 13132, BLM has determined that this 
proposed rule does not have sufficient federalism implications to 
warrant preparation of a federalism assessment.

Executive Order 12988, Civil Justice Reform

    Under Executive Order 12988, the Office of the Solicitor has 
determined that this proposed rule would not unduly burden the judicial 
system and that it meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have found that this 
proposed rule does not include policies that have Tribal implications. 
There are no substantial direct effects on one or more Indian Tribes, 
on the relationship between the Federal Government and Indian Tribes, 
or on the distribution of power and responsibilities between the 
Federal Government and Indian Tribes. There will be some small economic 
benefit to scalers and scaling bureaus, and therefore to any American 
Indians that may be employed by or otherwise financially connected to 
such entities. There are, however, no policy implications that require 
consultation with Indian Tribes.

Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    In accordance with Executive Order 13211, BLM has determined that 
the proposed rule will not have substantial direct effects on the 
energy supply, distribution, or use, including a shortfall in supply or 
price increase. The rule does not relate to energy supply, 
distribution, or use in any respect.

Executive Order 13352, Facilitation of Cooperative Conservation

    In accordance with Executive Order 13352, BLM has determined that 
this proposed rule is purely administrative and does not affect 
cooperative conservation. This proposed rule takes appropriate account 
of and considers the interests of persons with ownership or other 
legally recognized interests in land or other natural resources because 
it does not interfere with such interests. The proposed rule solely 
affects a Federal responsibility not involving state or local 
participation, and has no impact on public health and safety.

Paperwork Reduction Act

    These proposed regulations do not contain information collection 
requirements that the Office of Management and Budget must approve 
under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

Author

    The principal authors of this proposed rule are Kenny McDaniel, 
Manager, Gunnison Field Office, Colorado, Scott Lieurance, Forester--
Senior Specialist, Washington Office, and Lyndon Werner, Forester, 
Oregon State Office, assisted by Ted Hudson, Senior Regulatory 
Specialist, Washington Office, Bureau of Land Management.

List of Subjects in 43 CFR Part 5420

    Forests and forest products, Government contracts, Public lands, 
Reporting and recordkeeping requirements.

    Dated: November 3, 2005.
Chad Calvert,
Acting Assistant Secretary, Land and Minerals Management.

    Accordingly, for the reasons stated in the preamble and under the 
authorities stated below, BLM proposes to amend 43 CFR part 5420 as set 
forth below:

PART 5420--PREPARATION FOR SALE

    1. The authority citation for part 5420 continues to read as 
follows:

    Authority: 61 Stat. 681, as amended, 69 Stat. 367; Sec. 5, 50 
Stat. 875; 30 U.S.C. 601 et seq.; 43 U.S.C. 1181e.

Subpart 5422--Volume Measurements

    2. Amend section 5422.2 by revising paragraph (b) to read as 
follows:


Sec.  5422.2  Scale sales.

* * * * *
    (b) (1) BLM may order third party scaling after determining that 
all of the following factors exist:
    (i) A timber disaster has occurred;
    (ii) A critical resource loss is imminent; and
    (iii) Measurement practices listed in Sec.  5422.1 and paragraph 
(a) of this section are inadequate to permit orderly disposal of the 
damaged timber.
    (2) BLM may also order third party scaling, only by scalers or 
scaling bureaus under contract to BLM, for the scaling of density 
management timber sales when the quadratic mean diameter of the trees 
to be cut and removed is equal to or less than 20 inches.
    (3) Third party scaling volumes must be capable of being equated to 
BLM standards in use for timber depletion computations, to insure 
conformance with sustained yield principles.

[FR Doc. 05-22779 Filed 11-16-05; 8:45 am]
BILLING CODE 4310-84-P