[Federal Register Volume 71, Number 102 (Friday, May 26, 2006)]
[Rules and Regulations]
[Pages 30291-30294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-8109]


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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: Final rule.

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SUMMARY: The Bureau of Land Management (BLM) amends 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 will 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 will 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: Effective Date: June 26, 2006.

ADDRESSES: Inquiries or suggestions should be sent to Director (270), 
Bureau of Land Management, Eastern States Office, 7450 Boston 
Boulevard, Springfield, Virginia 22153, Attention: RIN 1004-AD70.

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. Background
II. Discussion of Public Comments
III. Procedural Matters

I. 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 sale is the 
default. 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.

II. Discussion of Public Comments

    We published the proposed rule on November 17, 2005 (70 FR 69714). 
The comment period for the proposed rule closed on January 17, 2006. 
During the comment period, we received 4 public comments on the 
proposed rule.
    One comment expressed general opposition to third party scaling, 
stating that it would be a way to let profiteers cheat U.S. citizens 
who own the public lands even more than they do now. The comment went 
on to criticize the Mining Law of 1872.
    We have not changed the final rule in response to this comment. As 
we stated in the preamble to the proposed rule, third party scaling 
will provide flexibility in marketing and selling small diameter timber 
sales. This will be highly cost-effective for BLM and timber sale 
purchasers alike. The change to allow third party scaling of timber 
sales will lead to a dramatic efficiency improvement for the Bureau and 
timber sale purchasers when timber disasters threaten imminent resource 
loss. Ultimately, with third party scaling, BLM will receive higher 
timber payments for timber sold--as compared to the current regulation 
that precludes third party scaling. The current regulation is 
unnecessarily costly, inefficient, and affords no greater

[[Page 30292]]

government accountability as to timber or logs.
    Three comments expressed general support for the proposed rule. One 
stated that the savings in risk assessment and man hours along with the 
efficiencies of operating a scaled sale, as opposed to a lump-sum sale, 
will be beneficial to both BLM and industry. Another stated that third 
party scaling will allow BLM managers use of both of the two commonly-
accepted practices used by the forest products industry throughout the 
Northwestern United States. The comment went on to express agreement 
with the analysis of the effect of the rule stated in the preamble of 
the proposed rule.
    One of these comments expressed general support for selling timber 
on a ``recovery'' basis (i.e., scale sales) as outlined in the proposed 
rule, so long as implementation is carried out without detriment to the 
purchaser. The comment stated, however, that the proposed rule did not 
provide sufficient assurance or explanation of this.
    The comment addressed several specific concerns in this regard. The 
first related to the particular scaling rules used to measure the 
quantity of timber; the second related to accountability and security; 
the third related to log scaling site approval; and the fourth related 
to opportunities to sample scale. The comment recommended that Westside 
(long log) scaling rules, which it describes as the industry standard, 
be used. (These standards apply in western Oregon and Washington, and 
Alaska.)
    BLM interprets this comment to apply only to the timber sale 
program in western Oregon. Nationally, BLM uses Scribner short log 
board foot rules in order to have a consistent measure across the 
Bureau. In Oregon and Washington, where approximately three-quarters of 
BLM timber volume is offered for sale, BLM follows the Northwest Log 
Rules handbook, and specifically the Scribner short log rule. Northwest 
Log Rules is an association of Federal agencies (BLM, Forest Service, 
and Bureau of Indian Affairs), the States of Oregon and Washington, and 
the local scaling bureaus (non-profit third party scaling 
organizations). The Northwest Log Rules handbook also includes the 
Westside long log scaling rules, the industry standard. These Northwest 
short and long log rules employ consistent log rules and are readily 
converted from one to the other. Industry expressed considerable 
consternation when BLM was using cubic foot rules for lump-sum and 
scale sales, but BLM ceased that policy and returned to board foot 
measure in 2004. BLM believes that, with smaller diameter timber making 
up a substantial part of the total volume offered, a short log rule (as 
opposed to long log) more accurately predicts the actual board foot 
recovery from a given tree or log, since there is more volume not 
accounted for due to the greater amount of taper in a 32-foot log under 
long log rules as opposed to a 16-foot log under short log rules. Board 
feet measurement is made based on a cylinder whose diameter is measured 
at the narrow end of the log.
    The comment's concerns about BLM's procedures for log 
accountability and security measures, and standards for log scaling 
site approval, are important issues for BLM as well when conducting 
scale timber sales. However, BLM believes these issues should be 
matters of policy and not codified in regulation. Policy changes in 
response to changing conditions can be made much more readily than 
changes in regulations. BLM is interested in industry's particular 
concerns, and in effectiveness and efficiency for both parties. 
However, we recommend that industry representatives raise their 
concerns at the semi-annual Federal Timber Purchaser Committee meetings 
held with BLM representatives in western Oregon. Accordingly, we have 
not incorporated scaling procedures and rules in the regulations on 
scale sales, and have not amended the proposed rule in response to the 
comment.
    The final issue raised in the comment was the opportunity to sample 
scale. In Oregon and Washington, virtually all scale timber sales and 
administrative check scales have recently been and will likely continue 
to be sample scale measured. An administrative check scale occurs when 
the BLM, through third party scalers, scales a lump-sum timber sale to 
assess the actual volume removed as a quality control check on the 
original pre-sale estimate of timber volume. This scale volume does not 
affect the volume or value of the lump-sum timber sale contract. The 
uncommon exceptions, where 100 percent of the truck loads of logs are 
scaled, might be sales of less than 500,000 board feet and/or sales of 
large diameter and highly defective and/or otherwise variable timber. 
These kinds of sales may not all be sample scaled and will more likely 
be 100 percent scaled.

III. Discussion of the Final Rule

    The final rule adds one sentence to Sec.  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 divide Sec.  5422.2(b) into three 
paragraphs, the second of which comprises this new provision. Paragraph 
(b)(1) consists of the first sentence of existing paragraph (b), which 
covers the disaster situation in which third party scaling is allowed, 
and paragraph (b)(3) consists 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) is also amended editorially to read in active voice. 
Neither paragraph (b)(1) nor (b)(3) contains substantive changes.
    The final rule does not represent a major shift to scale sales for 
density management. Rather, it provides a multifaceted ``tool kit'' of 
sale method options allowing us 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.

IV. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

    This final rule is not a significant regulatory action and is not 
subject to review by Office of Management and Budget under Executive 
Order 12866. The final 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 
have qualified for third party scaling under the final

[[Page 30293]]

rule has been ten sales. The new provision will 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 savings 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 final 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 will impose no requirements on any 
governmental entities.
    The final rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. The 
approach in the final rule is similar to that of the Forest Service in 
using third party scaling.
    The final 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.

National Environmental Policy Act

    BLM has determined that this final 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 final 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 (RFA), 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 final rule will 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 have qualified for third party scaling under 
the final rule has been ten sales. The new provision will 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 savings 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 final rule will not have a significant economic 
impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This final rule is not a ``major rule'' as defined at 5 U.S.C. 
804(2). That is, it will not have an annual effect on the economy of 
$100 million or more; it will not result in major cost or price 
increases for consumers, industries, government agencies, or regions; 
and it will 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 
merely allows 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

    The final rule does 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 will the final rule have a significant or 
unique effect on state, local, or Tribal governments. The rule imposes 
no requirements on any of these entities. We have already shown, in the 
previous paragraphs of this section of the preamble, that the change in 
this rule will 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 final rule is not a government action capable of interfering 
with constitutionally protected property rights. The rule allows BLM to 
contract out one step in the timber volume measurement process, and 
does 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 will not cause a taking of 
private property or require further discussion of takings implications 
under this Executive Order.

Executive Order 13132, Federalism

    The final 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 does 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 
final rule does not have sufficient Federalism implications to warrant 
preparation of a Federalism Assessment.

Executive Order 12988, Civil Justice Reform

    Under Executive Order 12988, we have determined that this final 
rule will not will 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 
final 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

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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 final 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 final rule is purely administrative and does not affect 
cooperative conservation. This final 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 final rule solely affects a 
Federal responsibility not involving state or local participation, and 
has no impact on public health and safety.

Paperwork Reduction Act

    This final rule does 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 final rule are 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: April 20, 2006.
Johnnie Burton,
Acting Assistant Secretary of the Interior.

0
Accordingly, for the reasons stated in the preamble and under the 
authorities stated below, BLM amends 43 CFR part 5420 as set forth 
below:

PART 5420--PREPARATION FOR SALE

0
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

0
2. Amend Sec.  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. E6-8109 Filed 5-25-06; 8:45 am]
BILLING CODE 4310-84-P