[Federal Register Volume 81, Number 14 (Friday, January 22, 2016)]
[Rules and Regulations]
[Pages 3720-3723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01215]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 223

RIN 0596-AD25


Stewardship End Result Contracting Projects

AGENCY: Forest Service, USDA.

ACTION: Final rule.

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SUMMARY: The United States Department of Agriculture (Department) is 
issuing this rule to carry out Stewardship End Result Contracting 
Projects. This authority originated on a limited pilot basis and then 
was expanded through a succession of subsequent amendments and 
continued into Fiscal Year 2014. The enactment of section 8205 of the 
Agricultural Act of 2014 (2014 Act) establishes permanent authority to 
conduct Stewardship End Result Contracting projects by adding a new 
section 604 to the Healthy Forests Restoration Act of 2003 (HFRA). 
Accordingly, this final rule sets forth the regulations implementing 
this permanent authority. These regulations generally follow the Forest 
Service policy and processes that have been in place for some time. The 
regulations revise existing Forest Service policy to provide greater 
uniformity in the administration of the various mechanisms used by the 
Forest Service to implement stewardship projects.

DATES: This rule is effective January 22, 2016.

FOR FURTHER INFORMATION CONTACT: David Lawrence, at 202-205-1269 or 
[email protected].
    Individuals who use telecommunication devices for the deaf may call 
the Federal Information Relay Service at 800-877-8339 between 8 a.m. 
and 8 p.m. Eastern Standard Time, Monday through Friday.

SUPPLEMENTARY INFORMATION:

1. Background

    Beginning in 1998 with the enactment of section 347 of the Omnibus 
Consolidated Appropriations Act, 1999 (Pub. L. 105-277), the Forest 
Service has been authorized to enter into stewardship projects since 
1999 (16 U.S.C. 2104 note); however, this authority was not permanent. 
The 2014 Act makes the authority permanent through an amendment to 
HFRA. With limited exceptions, the permanent authority is identical to 
the temporary authority. Section 604(b) of HFRA provides that the 
Forest Service, ``via agreement or contract as appropriate, may enter 
into stewardship contracting projects with private persons or other 
public or private entities to perform services to achieve land 
management goals for the national forests and the public lands that 
meet local and rural community needs.'' Section 604(d)(1) provides that 
a source for performance of a stewardship agreement or contract must be 
selected on a best value basis. Section 604(d)(4) further provides that 
the Forest Service can apply the value of timber or other forest 
products removed under the project as an offset against the value of 
the services received by the Forest Service. In accordance with section 
604(e), the Forest Service can collect funds received under a 
stewardship project if doing so is a secondary objective of the 
project.
    Pursuant to section 604 of HFRA, the land management goals of a 
stewardship project may include any of the following:
    1. Road and trail maintenance or obliteration to restore or 
maintain water quality;
    2. Soil productivity, habitat for wildlife and fisheries, or other 
resource values;
    3. Setting of prescribed fires to improve the composition, 
structure, condition, and health of stands or to improve wildlife 
habitat;
    4. Removing vegetation or other activities to promote healthy 
forest stands, reduce fire hazards, or achieve other land management 
objectives;
    5. Watershed restoration and maintenance;
    6. Restoration and maintenance of wildlife and fish; and
    7. Control of noxious and exotic weeds and reestablishing native 
plant species.
    The Forest Service has utilized several types of contracts to 
implement the stewardship end result contracting authority. Generally, 
a contract that resulted in the Forest Service's receipt of service 
work in an amount greater than the value of the timber or forest 
product removed by a contractor utilized a contract that resembled a 
procurement of service contract. A contract that resulted in the Forest 
Service's receipt of service work in an amount less than the value of 
the timber or forest product removed by a contractor utilized a 
contract that resembled a timber sale contract.
    Recognizing the unique nature of the use of timber and forest 
products as consideration for the services received under stewardship 
contracts and agreements, section 604(d)(2) provides that the Secretary 
may consider a stewardship contract to be a contract for the sale of 
property under terms prescribed by the Secretary without regard to any 
other provision of law. Accordingly, section 223.301 of this rule 
continues the use of the different types of contracts based on the 
value of the products removed and services received. In order to ensure 
consistency in the operation of these projects to the extent that is 
practicable, sections 223.303 and 223.304 provide for the use of 
existing regulatory provisions. Section 223.303 sets forth the rules 
for contracts that are principally the acquisition of a service and 
rely upon the Federal Acquisition Regulations (FAR) set forth in Title 
48 of the Code of Federal Regulations. Section 223.304 sets forth the 
rules for contracts that are principally sales of property contracts 
and generally rely upon existing Forest Service Timber Sale regulations 
set forth in 36 CFR part 223, subparts A & B, except as provided in 
section 223.304(a).
    The regulations in 2 CFR 200, as adopted and supplemented by the 
USDA in 2 CFR 400, 416 and 422 set forth the general rules that are 
applicable to all grants and cooperative agreements made by the 
Department of Agriculture. Because the Forest Service's use of 
agreements entered into under this part are not financial assistance 
for the benefit of the recipient but instead are entered into for the 
benefit of the Forest Service, the assistance regulations in 2 CFR 200, 
as adopted and supplemented by the USDA in 2 CFR 400, are not 
applicable to such agreements.
    While this final rule generally sets forth the manner in which the 
Forest Service has implemented stewardship projects since 1999, this 
final rule also sets forth with greater clarity the process for 
selecting the appropriate mechanism to implement a stewardship end 
result project. Section 604(d) of HFRA requires that a source for 
performance of a stewardship agreement or contract be selected on a 
best-value basis. A stewardship agreement or contract may also be 
entered into notwithstanding subsections (d) and (g) of section 14 of 
the National Forest Management Act of

[[Page 3721]]

1976 (16 U.S.C. 472a). The timber included in all stewardship contracts 
and agreements is appraised according to standard Forest Service 
appraisal methods, as described in Forest Service Manual 2420.
    With the enactment of section 8205 of the 2014 Act, and the 
corresponding HFRA amendments, the Forest Service's authority to enter 
into Stewardship End Result Contracting Projects is now permanently 
authorized. Since the primary purpose of this rule is to set forth 
contracting procedures that were used to implement the prior statutory 
provisions that were not of a permanent nature, it has been determined 
that this rule should become effective upon publication.

2. Regulatory Certifications

Environmental Impact

    This final rule would revise Part 223 to set forth the regulations 
used in the conduct of Stewardship End Result Contracting Projects. The 
Forest Service has determined that this final 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.

Notice and Comment/Delayed Effective Date

    We are issuing this final rule without prior notice and opportunity 
for comment. The Administrative Procedures Act (APA) exempts rules 
``relating to agency management or personnel or to public property, 
loans, grants, benefits, or contracts'' from the statutory requirement 
for prior notice and opportunity for comment, as well as the statutory 
requirement for 30 days to pass before the action can be effective.

Regulatory Impact

    This final rule has been reviewed under USDA procedures and 
Executive Order 12866 on Regulatory Planning and Review. The Office of 
Management and Budget (OMB) has determined that this is not a 
significant rule. This rule would not have an annual effect of $100 
million or more on the economy, nor would it adversely affect 
productivity, competition, jobs, the environment, public health and 
safety, or State or local governments. This final rule would not 
interfere with an action taken or planned by another agency, nor raise 
new legal or policy issues. Finally, this final rule would not alter 
the budgetary impact of entitlement, grant, user fee, or loan programs 
or the rights and obligations of beneficiaries of such programs. 
Accordingly, this final rule is not subject to Office of Management and 
Budget (OMB) review under Executive Order (E.O.) 12866.

Regulatory Flexibility Act

    The Forest Service has considered this final rule in light of the 
Regulatory Flexibility Act (5 U.S.C. 602 et. seq.) and has determined 
that this rule would not have a significant economic impact on a 
substantial number of small entities as defined by the Act. This final 
rule would not have any effect on small entities, as it would simply 
set forth existing Forest Service process for the conduct of 
Stewardship End Result Contracting Projects which have generally been 
in place for more than 10 years. This rule would not impose record-
keeping requirements on small entities; it would not affect their 
competitive position in relation to large entities; and it would not 
affect their cash flow, liquidity, or ability to remain in the market.

No Takings Implications

    The Forest Service has analyzed this final rule in accordance with 
the principles and criteria contained in E.O. 12630 and determined that 
the rule would not pose the risk of taking private property.

Civil Justice Reform Act

    The Forest Service has reviewed this final rule under E.O. 12988, 
Civil Justice Reform. Under this rule, (1) all State and local laws and 
regulations that conflict with this rule or that impede its full 
implementation would be preempted; (2) no retroactive effect would be 
given to this final rule; and (3) it would require administrative 
proceedings before parties may file suit in court challenging its 
provisions.

Federalism and Consultation and Coordination With Indian Tribal 
Governments

    The Forest Service has considered this final rule under the 
requirements of E.O. 13132 on federalism and has determined that this 
rule conforms with the federalism principles in the E.O.; would not 
impose any compliance costs on the States; and would not have any 
substantial direct effects on the States, the relationship between the 
Federal Government and the States, or the distribution of power and 
responsibilities among the various levels of government. Moreover, this 
final rule does not have tribal implications as defined by E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, and 
therefore advance consultation with tribes is not required.

Energy Effects

    The Forest Service has reviewed this final rule under E.O. 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'', and has determined that this rule would 
not constitute a significant energy action as defined in the E.O.

Unfunded Mandates Reform

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), the Forest Service has assessed the effects of this 
final rule on State, local, and tribal governments and the private 
sector. This rule would 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.

Controlling Paperwork Burdens on the Public

    This final rule does not contain any record-keeping or reporting 
requirements or other information collection requirements as defined in 
5 CFR 1320 that are not already required by law or not already approved 
for use. Accordingly, the review provisions of the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et. seq.) and its implementing regulations 
at 5 CFR part 1320 do not apply.

List of Subjects in 36 CFR Part 223

    Administrative practice and procedure, Exports, Forests and forest 
products, Government contracts, National forests, Reporting and 
recordkeeping requirements.

    Therefore, for the reasons stated in the preamble, the Forest 
Service amends 36 CFR part 223 as follows:

PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER, 
SPECIAL FOREST PRODUCTS, AND FOREST BOTANICAL PRODUCTS

0
1. The authority citation for part 223 is revised to read as follows:

    Authority: 16 U.S.C. 618, 620-620j, 472a, and 6591c.


0
2. Subpart I is added to read as follows:

Subpart I--Stewardship End Result Contracting Projects

Sec.
223.300 Applicability.
223.301 Determination of type of contract or agreement.
223.302 Award of contracts and agreements.
223.303 Procurement of service contacts.

[[Page 3722]]

223.304 Sale of property contracts.
223.305 Agreements.


Sec.  223.300  Applicability.

    (a) This part sets forth the regulations applicable to the 
implementation of section 604 of the Healthy Forest Restoration Act of 
2003, ``Stewardship End Result Contracting Projects'' 16 U.S.C. 6591c. 
This section provides for the use of contracts and agreements to 
achieve land management goals for the national forests and the public 
lands that meet local and rural community needs. In the fulfillment of 
these activities, the Forest Service may apply the value of timber or 
other forest products removed from the project site as an offset 
against the cost of services received under such contracts or 
agreements.
    (b)(1) Procurement of service contracts. If the Forest Service 
makes a determination as provided under section 223.301(b)(1) of this 
subpart that a stewardship contract is a contract for the procurement 
of services, the Forest Service will utilize the contracting procedures 
set forth in the Federal Acquisition Regulations, Title 48 of the Code 
of Federal Regulations including the regulations issued by the 
Department of Agriculture set forth in Chapter 4 of Title 48 as well as 
requirements included in Sec.  223.303.
    (2) Sale of property contracts. If the Forest Service makes a 
determination under Sec.  223.301(b)(2) of this subpart that a 
stewardship contract is to be a contract for the sale of property, the 
regulations set forth in subparts A and B of this part are generally 
applicable, except as provided in Sec.  223.304.
    (3) Agreements. Agreements entered into under this subpart are not 
subject to grant regulations found in 2 CFR part 200 as adopted and 
supplemented by the USDA in 2 CFR parts 400, 416, and 422.
    (4) Other provisions. Additional terms and conditions for contracts 
and agreements may be added to a contract or agreement entered into 
under this subpart, in accordance with applicable law and to the extent 
determined to be necessary by the Forest Service.
    (c) Parties to contracts and agreements. The Forest Service may 
enter into contracts and agreements under this part with private 
persons, private entities and public entities.


Sec.  223.301  Determination of type of contract or agreement.

    (a) Use of a contract or agreement. When the Forest Service 
initiates a project under this subpart, a determination will be made 
whether to use a contract or an agreement to implement the project.
    (b) Type of contract. If the Forest Service determines that a 
contract will be utilized:
    (1) Procurement of service contracts. When the value of timber or 
other forest products removed through the contract will be less than 
the total value of the service work items received by the Forest 
Service, the activity shall be considered a procurement of a service 
and a contract, for a period not to exceed 10 years, will be utilized 
as provided in Sec.  223.303 or
    (2) Sale of property contracts. When the value of timber or other 
forest products removed through the contract is equal to or exceeds the 
total value of the service work items received by the Forest Service, 
the activity shall be considered a sale of property and a contract, for 
a period not to exceed 10 years, will be utilized as provided in Sec.  
223.304.
    (c) Best interest of the government determination. The Forest 
Service official who makes a determination under paragraph (b) of this 
section shall document in the contract file the basis for the 
determination that:
    (1) It is in the best interest of the government that a sale of 
property contract is more suitable for a contract that would otherwise 
be subject to paragraph (b)(1) of this section; or
    (2) It is in the best interest of the government that a procurement 
of service contract is more suitable for a contract that would 
otherwise be subject to paragraph (b)(2) of this section.


Sec.  223.302  Award of contracts and agreements.

    Section 604(d) of HFRA requires that a source for performance of a 
stewardship agreement or contract be selected on a best-value basis. A 
stewardship agreement or contract may also be entered into 
notwithstanding subsections (d) and (g) of section 14 of the National 
Forest Management Act of 1976 (16 U.S.C. 472a).


Sec.  223.303  Procurement of service contacts.

    All contracts determined under Sec.  223.301(b)(1) to be a contract 
for receipt of a service shall:
    (a) Be administered under the Federal Acquisition Regulations, 
Title 48 of the Code of Federal Regulations including the regulations 
issued by the Department of Agriculture set forth in Chapter 4 of Title 
48; and
    (b) Provide for a fire liability provision. All contracts under 
this section shall contain a fire liability provision that is in 
substantially the same form as the fire liability provision contained 
in integrated resource timber contracts, as described in Forest Service 
contract numbered 2400-13, part H, section 4.
    (c) Utilize the following provisions of subparts A and B of this 
part:
    (1) Section 223.1 Authority to sell timber.
    (2) Section 223.3 Sale of seized material.
    (3) Section 223.14 Where timber may be cut.
    (4) Section 223.30 Consistency with plans, environmental standards, 
and other management requirements.
    (5) Section 223.34 Advance payment.
    (6) Section 223.36 Volume determination.
    (7) Section 223.37 Revegetation of temporary roads.
    (8) Section 223.38 Standards for road design and construction.
    (9) Section 223.40 Cancellation for environmental protection or 
inconsistency with plans.
    (10) Section 223.48 Restrictions on export and substitution of 
unprocessed timber.
    (11) Section 223.60 Determining fair market value.
    (12) Section 223.61 Establishing minimum stumpage rates.
    (13) Section 223.87 Requirements of bidders concerning exports.
    (14) Section 223.113 Modification of contracts to prevent 
environmental damage or to conform to forest plans.
    (d) Products may be valued on a per acre basis.
    (e) Such other provisions as are necessary to carry out the 
provisions of section 604 of the Healthy Forest Restoration Act of 2003 
(16 U.S.C. 6591c).


Sec.  223.304  Sale of property contracts.

    All contracts determined under Sec.  223.301(b) to be a contract 
for a sale of property shall:
    (a) Utilize the provisions of subparts A and B of this part, except 
that the following provisions will not be applicable:
    (1) Section 223.4 Exchange of trees or portions of trees.
    (2) Section 223.31 Duration of contracts.
    (3) Section 223.42 Transfer of effective purchaser credits.
    (4) Section 223.43 Limit on amounts of transferred purchaser 
credits.
    (5) Section 223.44 Collection rights on contracts involved in 
transfer of purchaser credit.
    (6) Section 223.44 Collection rights on contracts involved in 
transfer of purchaser credit.
    (7) Section 223.45 Definitions applicable to transfer of purchaser 
credit.

[[Page 3723]]

    (8) Section 223.49 Downpayments. Paragraph (d).
    (9) Section 223.62 Timber purchaser road construction credit.
    (10) Section 223.65 Appraisal of timber for land exchange; right-
of-way, or other authorized use.
    (11) Section 223.80 When advertisement is required.
    (12) Section 223.82 Contents of advertisement.
    (13) Section 223.83 Contents of prospectus.
    (14) Section 223.84 Small business bid form provisions on sales 
with specified road construction.
    (15) Section 223.88 Bidding methods.
    (16) Section 223.100 Award to highest bidder.
    (17) Section 223.102 Procedure when sale is not awarded to highest 
bidder.
    (18) Section 223.103 Award of small business set aside sales.
    (19) Section 223.118 Appeal process for small business timber sale 
set-aside program share recomputation decisions.
    (b) Include the following additional provisions:
    (1) If determined by the Forest Service to be necessary to protect 
the interests of the United States, a performance and payment bond, as 
described on February 7, 2014, in section 28-103-2 and 28-103-3 of Part 
48 of the Code of Federal Regulations, in an amount sufficient to 
protect the investment in receipts by the United States generated by 
the contractor from the estimated value of the forest products to be 
removed under the contract;
    (2) Provide for a fire liability provision.
    (3) Redetermination of stumpage rates and deposits: The cost of 
service work included in stewardship contracts will be evaluated along 
with stumpage values at the time of a rate determination in accordance 
with normal rate determination procedures.
    (4) Products may be valued on a per acre basis.
    (5) Such other provisions as are necessary to carry out the 
provisions of section 604 of the Healthy Forest Restoration Act of 2003 
(16 U.S.C. 6591c).


Sec.  223.305  Agreements.

    The Forest Service may enter into an agreement under this subpart 
in lieu of a contract.
    (a) The regulations governing Federal financial assistance 
relationships are not applicable to such agreements.
    (b) All agreements under this section shall contain a fire 
liability provision that is in substantially the same form as the fire 
liability provision contained in integrated resource timber contracts, 
as described in Forest Service contract numbered 2400-13, part H, 
section 4.

    Dated: January 14, 2016.
Robert Bonnie,
Under Secretary, NRE, U.S. Department of Agriculture.
[FR Doc. 2016-01215 Filed 1-21-16; 8:45 am]
BILLING CODE 3411-15-P