[Federal Register Volume 71, Number 45 (Wednesday, March 8, 2006)]
[Rules and Regulations]
[Pages 11508-11510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2161]



[[Page 11508]]

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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 223

RIN 0596-AC40


Sale and Disposal of National Forest System Timber; Timber Sale 
Contracts; Purchaser Elects Government Road Construction

AGENCY: Forest Service, USDA.

ACTION: Direct final rule; correcting amendment.

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SUMMARY: This rule corrects the direct final rule published on January 
4, 2006. This final rule amends the current regulation in order to make 
it consistent with section 329 of the Omnibus Consolidated and 
Emergency Supplemental Appropriations Act, 1999 (``Act'') and section 
105 of the Tongass Timber Reform Act (``TTRA''). Section 329 of the Act 
placed certain restrictions and requirements upon the Secretary of 
Agriculture (``Secretary'') pertaining to the construction of roads for 
the sale of National Forest timber and other forest products. As of the 
effective date of the section, April 1, 1999, the Forest Service 
implemented necessary changes to the timber sale program and revised 
the Forest Service Manual and Handbook. However, revisions to relevant 
sections of the Code of Federal Regulations were not made. This final 
rule makes technical amendments to the subpart to make it consistent 
with section 329. Additionally, this final rule revises Subpart B to 
make it consistent with section 105 of the TTRA, which eliminated a 
restriction applicable to timber sales on National Forest lands in the 
State of Alaska.

DATES: This final rule is effective March 8, 2006.

FOR FURTHER INFORMATION CONTACT: Lathrop Smith, Forest Management 
Staff, at (202) 205-0858, or Richard Fitzgerald, Forest Management 
Staff, (202) 205-1753.

SUPPLEMENTARY INFORMATION: On January 4, 2006, the Forest Service 
published a direct final rule making minor, technical changes to 36 CFR 
part 223, subpart B (71 FR 522). This publication corrects that rule by 
republishing it with the following necessary modifications on page 523, 
in the second column: In Sec.  223.41, the word ``will'' is replaced by 
``shall.'' In Sec.  223.82, the phrase ``a total estimated value'' is 
changed to ``total estimated construction costs.'' In Sec.  223.83, 
enumerated paragraph (a)(16) is revised by removing the phrase ``for 
each sale described in Sec.  223.82(b)'' and the previous inclusion of 
(a)(17)(ii) is removed because there is no change to the prior rule. 
The preamble and the regulatory certifications are also revised as 
appropriate. Additionally, this publication contains a Good Cause 
Statement, which explains the Forest Service's decision to publish this 
direct final rule without notice and comment.

Background

    The sale of National Forest timber or other forest products often 
involves the construction of roads necessary to access the land covered 
by the sale. If a particular sale requires road construction, then the 
Forest Service specifies this component in the notice of sale and 
offers further information to potential bidders in the prospectus. Road 
construction costs can be significant, especially for smaller timber 
purchasers. Under section 14(i) of the National Forest Management Act 
of 1976 (Pub. L. 94-588), a purchaser that qualified as a ``small 
business concern'' under the Small Business Act (15 U.S.C. 631, et 
seq.) had the right to elect to have the Forest Service build the roads 
specified in the notice of sale, if the estimated cost of such roads 
exceeded $20,000. Section 329(c) of the Act (16 U.S.C. 535a(c)) 
essentially re-enacted existing law, but raised the monetary threshold 
to $50,000 or more. Because 36 CFR part 223, subpart B reflects the 
previous monetary threshold of $20,000, revisions are necessary to make 
the regulation consistent with the higher threshold contained in the 
Act. Accordingly, this final rule revises 36 CFR 223.41 and 36 CFR 
223.82 to reflect construction costs of $50,000 or more.
    Under prior law, the foregoing right to elect road construction by 
the Forest Service was inapplicable to timber sales on National Forest 
lands in the State of Alaska. However, section 105 of the TTRA 
eliminated this restriction. Because the existing regulation contains 
the obsolete restriction, revision is necessary. This final rule 
deletes the restriction from 36 CFR 223.82.
    This final rule also revises certain sections of 36 CFR part 223, 
subpart B that refer or relate to purchaser credit. Section 329(a) of 
the Act (16 U.S.C. 535a(a)) eliminated purchaser credit, prospectively, 
by prohibiting the Secretary from providing effective credit for road 
construction to any purchaser as of April 1, 1999 (the effective date 
of the section). Accordingly, as of April 1, 1999, the Forest Service 
discontinued the use of purchaser credit for appraised value 
determinations and in timber sale contracts. This was accomplished by 
making changes in Forest Service Manual and Handbook procedures and by 
eliminating timber sale contract references on all sales after that 
date. However, corresponding revisions to 36 CFR part 223, subpart B 
were not made. Accordingly, this final rule eliminates references to 
purchaser credit contained in 36 CFR 223.82(b) and 36 CFR 223.83(a) and 
in the heading of 36 CFR 223.84. Additionally, this final rule revises 
36 CFR 223.63 to reflect the Forest Service's method of determining the 
appraised value for a sale in light of the elimination of purchaser 
credit. (Estimated road construction costs are factored into the 
appraised value for the sale.)
    It is important to note that this final rule intentionally does not 
revise, or eliminate all sections of Subpart B that refer or relate to 
purchaser credit. Because of a savings provision contained at section 
329(g)(2) of the Act (16 U.S.C. 535a(g)(2)), the prohibition of 
purchaser road credit did not eliminate effective credit earned under a 
contract resulting from a sale noticed before the section's effective 
date, or credit otherwise earned before such date. Accordingly, the 
regulation retains references that may be useful for administering 
purchaser credit that exists by virtue of the savings provision.

Good Cause Statement

    The Administrative Procedure Act (``APA'') exempts certain 
rulemakings from its public notice and comment requirements. For 
example, the APA allows agencies to promulgate rules without public 
notice and comment when an agency, for good cause, finds that notice 
and public comment are ``impracticable, unnecessary, or contrary to the 
public interest.'' (5 U.S.C. 553(b)(3)(B)).
    The Department finds that good cause exists to exempt this 
rulemaking from public notice and comment pursuant to 5 U.S.C. 
553(b)(3)(B). First, this action makes only minor and purely technical 
changes to existing regulations. Second, the modifications made in this 
final rule are mandated by enactment of section 329 of the Act and 
section 105 of the TTRA and the Department has no discretion in 
implementing them. This final rule merely updates 36 CFR part 223, 
subpart B to comply with the terms of law and removes certain obsolete 
references to purchaser credit. Accordingly, the Department finds that 
good cause exists and that public notice and comment are unnecessary 
pursuant to 5 U.S.C. 553(b)(3)(B).

[[Page 11509]]

Regulatory Certifications

Regulatory Impact

    This final rule has been reviewed under USDA procedures and 
Executive Order 12866 on Regulatory Planning and Review. It has been 
determined that this rule is not a significant regulatory action and is 
not subject to Office of Management and Budget (``OMB'') review. The 
technical revisions of 36 CFR part 223, subpart B accomplished through 
this rule will not have an annual effect of $100 million or more on the 
economy. This rule will not adversely affect the economy, a sector of 
the economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities. 
This rule will not interfere with an action taken or planned by another 
agency, but could raise new legal or policy issues; however, these 
legal and policy issues are not likely to be significant. Financial 
relationships between the Government and timber sale purchasers will 
not be changed by this rule and benefits from timber sale harvests to 
State and local governments will not change. Finally, this action will 
not alter the budgetary impact of entitlements, grants, user fees, or 
loan programs or the rights and obligations of recipients of such 
programs. As noted above, this rule makes only minor, technical changes 
to achieve consistency with section 329 of the Act, section 105 of the 
TTRA, and current Forest Service Handbook and Manual procedures that 
were implemented as of April 1, 1999 and that did not, at that time, 
require OMB review. Accordingly, this final rule is not subject to OMB 
review under Executive Order 12866.

Regulatory Flexibility Act

    This final rule has been considered in light of the Regulatory 
Flexibility Act (5 U.S.C. 601, et seq.), and it is hereby certified 
that this action will not have a significant economic impact on a 
substantial number of small entities, as defined by that Act. Under 
Forest Service Manual and Handbook procedures implemented in response 
to section 329 of the Act, timber purchasers finance permanent road 
construction prior to the harvest (except in the case where a qualified 
small business concern elects Forest Service construction). Because 
road construction costs are factored into the appraised value for the 
sale, purchasers recover their road construction expenditures as they 
pay for harvested timber. This rule makes only technical changes to 
achieve consistency with section 329 of the Act, section 105 of the 
TTRA, and current Forest Service procedures.

Unfunded Mandates Reform

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), which the President signed into law on March 22, 
1995, the Department has assessed the effects of this final rule on 
State, local, and tribal governments and the private sector. This rule 
does not compel the expenditure of $100 million or more by any State, 
local, or tribal government or anyone in the private sector. Therefore, 
a statement under section 202 of the Act is not required.

Environmental Impact

    This final rule accomplishes minor, technical changes to 36 CFR 
part 223, subpart B to make the regulation consistent with section 329 
of the Act, section 105 of the TTRA, and current Forest Service 
procedures. Thus, it has no direct effect on the amount, manner, or 
location of timber sale road construction. 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 is that this rule falls within this category of 
actions and that no extraordinary circumstances exist which would 
require preparation of an environmental assessment or environmental 
impact statement.

No Takings Implications

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 12630. It has been determined 
that the rule does not pose the risk of a taking of Constitutionally-
protected private property. There are no Constitutionally-protected 
private property rights to be affected because this rule will not alter 
or affect existing timber sale contracts. Any new contract provisions 
would be used only prospectively in new contracts.

Civil Justice Reform

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. If this rule were adopted: (1) All State and local laws 
and regulations that are in conflict with this rule or which would 
impede its full implementation would be preempted; (2) no retroactive 
effect may be given to this rule; and (3) it does not require 
administrative proceedings before parties may file suit in court 
challenging its provisions.

Controlling Paperwork Burdens on the Public

    The minor, technical revision accomplished through this final rule 
does not contain or establish any record keeping or reporting 
requirements or other information collection requirements, as defined 
in 5 CFR part 1320, and, therefore, imposes no paperwork burden on the 
public. Accordingly, the review provisions of the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.) and the implementing regulations 
at 5 CFR part 1320 do not apply.

Federalism

    The Agency has considered this final rule under the requirements of 
Executive Order 13132, Federalism, and Executive Order 12875, 
Government Partnerships. The Agency has made a preliminary assessment 
that the rule conforms with the federalism principles set out in these 
Executive orders; would not impose any compliance costs on the States; 
and would not have substantial direct effects 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. Based on comments received on this rule, the Agency will 
consider if any additional consultations will be needed with the State 
and local governments.

Energy Effects

    This final rule has been reviewed under Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use.'' It has been determined that this rule 
does not constitute a significant energy action as defined in the 
Executive Order.

Consultation and Coordination With Indian Tribal Governments

    This final rule does not have tribal implications as defined by 
Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments, and, therefore, advance consultation with tribes is not 
required.

List of Subjects in 36 CFR Part 223

    Administrative practice and procedure, Exports, Forests and forest 
products, Government contracts, Highways and roads, National forests, 
Public lands, Reporting and record keeping, and Transportation.

0
For the reasons set forth in the preamble, part 223 of Title 36 of the

[[Page 11510]]

Code of Federal Regulations is amended as follows:

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

Subpart B--Timber Sale Contracts

0
1. The Authority citation for part 223 continues to read as follows:

    Authority: 90 Stat. 2958, 16 U.S.C. 472a; 98 Stat. 2213; 16 
U.S.C. 618, 104 Stat. 714-726, 16 U.S.C. 620-620j, unless otherwise 
noted.

0
2. Revise Sec.  223.41 to read as follows:


Sec.  223.41  Payment when purchaser elects government road 
construction.

    Each contract having a provision for construction of specified 
roads with total estimated construction costs of $50,000 or more shall 
include a provision to ensure that if the purchaser elects government 
road construction, the purchaser shall pay, in addition to the price 
paid for the timber or other forest products, an amount equal to the 
estimated cost of the roads.

0
3. Revise Sec.  223.63 to read as follows:


Sec.  223.63  Advertised rates.

    Timber shall be advertised for sale at its appraised value. The 
road construction cost used to develop appraised value means the total 
estimated cost of constructing all permanent roads specified in the 
timber sale contract, estimated as if construction is to be 
accomplished by the timber purchaser. The advertised rates shall be not 
less than minimum stumpage rates, except that sales of insect-infested, 
diseased, dead, or distressed timber may be sold at less than minimum 
rates when harvest of such timber is necessary to protect or improve 
the forest or prevent waste of usable wood fiber.

0
4. Revise Sec.  223.82 (b) introductory text to read as follows:


Sec.  223.82  Contents of advertisement.

* * * * *
    (b) For each timber sale which includes specified road construction 
with total estimated construction costs of $50,000 or more, the 
advertisement shall also include:
* * * * *

0
5. Amend Sec.  223.83 by revising paragraphs (a)(16) and (a)(17)(i) to 
read as follows:


Sec.  223.83  Contents of prospectus.

    (a) * * *
    (16) The estimated road construction cost and the estimated public 
works construction cost.
    (17) For deficit sales:
    (i) An estimate of the difference between fair market value and 
advertised value, that is, the amount by which the advertised value 
exceeds the appraised value.
* * * * *

0
6. Amend Sec.  223.84 by revising the section heading to read as 
follows:


Sec.  223.84  Small business bid form provisions on sales with 
specified road construction.

* * * * *

    Dated: March 2, 2006.
Dale N. Bosworth,
Chief.
[FR Doc. 06-2161 Filed 3-7-06; 8:45 am]
BILLING CODE 3410-11-P