[Federal Register: January 4, 2006 (Volume 71, Number 2)]
[Rules and Regulations]
[Page 521-523]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04ja06-18]
[[Page 521]]
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Part IV
Department of Agriculture
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Forest Service
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36 CFR Part 223
Sale and Disposal of National Forest System Timber; Timber Sale
Contracts; Purchaser Elects Government Road Construction; Free Use to
Individuals; Delegation of Authority; Final Rule and Interim Final Rule
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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.
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SUMMARY: This direct final rule raises the total specified road
construction cost threshold for a small business concern road election
from $20,000 to $50,000. Congress raised the limit to $50,000 via the
Supplemental Appropriations Act for Fiscal Year 1999 (Pub. L. 105-277;
Sec. 329(c)). The Supplemental Appropriations Act also eliminated the
restriction, which precluded small business concerns in the State of
Alaska from exercising the road election option. The Forest Service
implemented this change upon passage of the law, and corrected agency
handbook direction, but the CFR references to these minimum values were
not changed. This direct final rule corrects this policy oversight.
Obsolete references to purchaser credit are also being eliminated.
DATES: This direct final rule is effective March 6, 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:
Background
One of the components a timber sale may include is the construction
of new specified roads in order to access areas where timber will be
removed. Road construction can be a significant cost to a small
business timber purchaser. The National Forest Management Act of 1976
(Pub. L. 94-588) section 14(i) allowed small business concerns to elect
to have the Forest Service construct specified roads for a timber sale.
The agency promulgated regulations in 36 CFR part 223. 36 CFR 223.84
allows for small business concerns to elect to have the Forest Service
contract for the construction of new specified roads. 36 CFR 223.41
requires that if a small business concern does elect to have the Forest
Service contract for the road construction, the small business must
reimburse the government for the estimated costs of construction
through higher stumpage payments. 36 CFR 223.82 requires that the
Forest Service include notice of this option in the contents of
advertisements and bid forms for timber sales. A small business concern
can only elect to have the Forest Service build the roads if the
specified road construction was valued at $20,000 or more. 36 CFR
223.41 and 36 CFR 223.82 both included this $20,000 value. On October
21, 1998, the Supplemental Appropriations Act for Fiscal year 1999
(Pub. L. 105-277) became law. Section 329(c) included an increase in
the value of the specified road construction to $50,000 or more before
a small business concern could elect to have the Forest Service
contract for construction of specified roads. It also eliminated an
earlier restriction that precluded small business concerns in the State
of Alaska from the specified road election. This final rule updates 36
CFR 223.41 and 36 CFR 223.82 to include the higher value established by
Congress, and eliminates references to the State of Alaska and
purchaser credit.
The Supplemental Appropriations Act for Fiscal year 1999 (Pub. L.
105-277) also directed the Forest Service to eliminate purchaser credit
procedures by April 1, 1999. The use of purchaser credit for appraised
value determination and the use of purchaser credit in timber sale
contracts were discontinued as of April 1, 1999. This was accomplished
by making changes in Forest Service manual and handbook procedures and
eliminating purchaser credit references on all timber sale contracts
after that date. Purchaser credit on sales existing at that time
remained which means there are still active sales that have purchaser
credit. References that are being eliminated do not affect those sales
or the use of existing purchaser credit.
Regulatory Certifications
Regulatory Impact
This 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 rule is not a significant
regulatory action and is not subject to OMB review. This rule will not
have an annual effect of $100 million or more on the economy.
Implementation of procedures to change how roads are constructed or
financed was accomplished on April 1, 1999. Revision of the regulations
to be consistent with this change will not affect the economy, a sector
of the economy, productivity, competition, jobs, or State or local
governments. This rule will not interfere with an action taken or
planned by another agency, but may 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 sales harvests to State and local governments will not change.
Little or no effect on the national economy will result from this rule.
This action consists of technical, administrative changes to
regulations affecting how permanent timber sale roads are constructed
and financed. 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. Accordingly, this rule is
not subject to OMB review under Executive Order 12866.
Regulatory Flexibility Act
This 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. Current
procedures, implemented April 1, 1999, require that both small and
large businesses finance permanent road construction prior to the
harvest of timber. They recover these expenditures as the timber is
harvested by paying less for the timber. The rule makes only technical
changes to be consistent with the prohibitions in the act. To the
extent that the rule imposes additional financial requirements on small
entities, these requirements are minimal when compared to the total
financing that is necessary to successfully complete a timber sale. The
requirements are within the capability of nearly all small entities to
meet.
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 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 governments or anyone in the private sector. Therefore, a
statement under section 202 of the act is not required.
Environmental Impact
This rule deals with how timber sale contract roads are financed
and, as such, has no direct effect on the amount, location, or manner
of timber sale road
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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 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 private property.
There are no private property rights to be affected, because no changes
in contract provisions are necessary to implement this rule and, in any
case, new contract provisions would be used only prospectively in new
contracts.
Civil Justice Reform Act
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
This rule does not contain any recordkeeping 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 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, Public lands,
Reporting and recordkeeping.
0
For the reasons set forth in the preamble, Part 223 of Title 36 of the
Code of Federal Regulations is amended as follows:
PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER
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.
Subpart B--Timber Sale Contracts
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 will
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. Amend 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 a total estimated value of $50,000 or more, the advertisement
shall also include:
* * * * *
0
5. Amend Sec. 223.83 by revising paragraphs (a)(16) and (a)(17) to
read as follows:
Sec. 223.83 Contents of prospectus.
(a) * * *
(16) The estimated road construction cost for each sale described
in Sec. 223.82(b) 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.
(ii) The amount of Forest Service funds or materials to be used to
offset the deficit.
* * * * *
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: December 28, 2005.
Mark Rey,
Under Secretary, Natural Resources and Environment.
[FR Doc. 06-35 Filed 1-3-06; 8:45 am]
BILLING CODE 3410-11-P