[Federal Register Volume 69, Number 69 (Friday, April 9, 2004)]
[Rules and Regulations]
[Pages 18813-18814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8033]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 223
RIN 0596-AC16
Sale and Disposal of National Forest System Timber; Timber Sale
Contracts, Modification of Contracts
AGENCY: Forest Service, USDA.
ACTION: Interim final rule; request for comments.
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SUMMARY: The Forest Service is adopting an interim final rule at part
223, subpart B, of Title 36, Code of Federal Regulations, Sec.
223.112. This interim final rule authorizes timber sale contracting
officers to modify contracts to provide a redetermination of stumpage
rates and deposits to reflect significant timber market declines. This
rule applies to existing timber sale contracts awarded after October 1,
1995, that have been suspended for more than 90 days, during the normal
operating season because of administrative appeals or litigation,
through no fault of the timber purchaser. Comments received on this
interim final rule will be considered in adoption of a final rule.
DATES: This interim final rule is effective April 9, 2004. Comments
must be received in writing by June 8, 2004.
ADDRESSES: Send written comments to the Director of Forest and
Rangeland Management, via the U.S. Postal Service to MAIL STOP 1105,
Forest Service, USDA, 1400 Independence Avenue, SW., Washington, DC
20250-0003; via e-mail to wo timber sale contract rate
[email protected]; or via facsimile to 202-205-1045. Comments
also may be submitted via the World Wide Web/Internet Web site at:
http://www.regulations.gov. All comments, including names and addresses
when provided, are placed in the record and are available for public
inspection and copying. The public may inspect comments received on
this interim final rule in the office of the Director of Forest and
Rangeland Management, Third Floor, Northwest Wing, Yates Building, 201
14th Street, SW., Washington, DC. Visitors are encouraged to call ahead
to (202) 205-0893 to facilitate entry into the building.
FOR FURTHER INFORMATION CONTACT: Richard Fitzgerald, Forest and
Rangeland Management, (202) 205-1753.
SUPPLEMENTARY INFORMATION:
Background
The suspension of a timber sale purchaser's operations because
administrative appeals or litigation, through no fault of the timber
purchaser often can result in economic hardship to the purchaser, if
after a period of time, the timber market decreases substantially. Not
only may the purchaser face economic loss, but the government can be
faced with potential claims or additonal litigation relating to the
delays. When timber markets rise, during the suspension, this problem
does not occur.
The regulations at 36 CFR part 223.33 currently provide for a
stumpage rate redetermination on sales of 7 years duration on a
predetermined schedule. These regulations also provide for stumpage
rate redeterminations when a purchaser has diligently performed a
contract and seeks an extension (36 CFR 223.115) if, at the time of the
scheduled contract termination, at least 75 percent of the contract
volume has been removed, and all specified road construction completed.
However, the current regulations do not give authority to the
contracting officer to provide for a stumpage rate redetermination to
reflect changed market conditions when, at no fault of the purchaser,
an existing timber sale contract was suspended because of
administrative appeals or litigation. A rate redetermination would
provide relief for purchasers in this situation.
Before 1990, very few timber sales were suspended because of
administrative appeals or litigation. Now, with much less timber volume
under contract, purchasers have limited opportunities to adjust
operations to other sales, and thus minimize the economic impact. More
recently, the suspension of sales has led to increased contract claims
and litigation for damages resulting from the delays caused by the
suspension. In the Consolidated Appropriations Act, 2004 (Pub. L. 108-
199), Congress provided economic relief to certain timber contracts in
Alaska that were sold after 1995, because of changed timber market
conditions.
A notice with request for comment on proposed revisions to timber
sale contract Forms FS-2400-6, for scaled sale procedures, and FS-2400-
6T, for tree measurement sale procedures, was published in the Federal
Register on December 19, 2003 (68 FR 70758). That notice included a
proposed contract provision which would provide relief for future
timber sale purchasers by allowing modification of stumpage rates in
contracts suspended for more than 90 days, due to administrative
appeals or environmental litigation. The Forest Service currently is
considering comments received from the public and anticipates issuing
the final revised contracts in the near future.
Good Cause Statement
This interim final rule amends the current regulation at 36 CFR
223.112 to authorize redetermination of existing contract stumpage
rates to provide economic relief to timber sale purchasers for
remaining unharvested volume in timber sales awarded after October 1,
1995. This rule will authorize
[[Page 18814]]
redetermination of stumpage rates to reflect significant declines in
timber market conditions during the suspension of timber sales for more
than 90 days because of administrative appeals or litigation, through
no fault of the timber purchaser.
This rule may enable purchasers obtaining stumpage rate
redeterminations to continue existing contracts after the suspension
has been lifted. If purchasers continue to lose money on sales, many
purchasers may go out of business. In the past, timber sale contracts
have not provided for a stumpage rate redetermination to reflect the
economic impact on the purchaser because of contract suspensions.
Authorizing rate redeterminations in limited circumstances results in
claims and damages that could exceed the cost of providing this relief.
There are a significant number of timber sale purchasers whose
contracts have been suspended for more than 90 days due to no fault of
their own, because of litigation or administrative appeals. These
purchasers will have the ability to immediately request rate
redetermination to insure the economic viability of the sale.
Conclusion
By adoption of this interim final rule, the Chief authorizes
contracting officers to modify timber sale contracts, at the timber
sale purchaser's request, to include a rate redetermination when an
existing timber sale has been suspended for more than 90 days, due to
administrative appeals or litigation, through no fault of the timber
purchaser, to reflect significant timber market declines.
Regulatory Certifications
Regulatory Impact
This interim final rule has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory Planning and Review. OMB has
determined that this is not a significant rule. This rule will not have
an annual effect of $100 million or more on the economy nor adversely
affect productivity, competition, jobs, the environment, public health
or safety, nor State or local governments. This rule will not interfere
with an action taken or planned by another agency nor raise new legal
or policy issues. 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 interim final rule is not subject to OMB review under Executive
Order 12866.
Moreover, this interim final rule has been considered in light of
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been
determined that this rule will not have a significant economic impact
on a substantial number of small entities. The interim final rule
imposes no additional requirements on timber purchasers for the purpose
of contract modifications.
Environmental Impact
This interim final rule establishes the opportunity to provide
relief from adverse economic impacts that occur at no fault of a timber
sale purchaser. 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'' * * * that do not significantly
affect the quality of the human environment. The agency's preliminary
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. The intent of this interim final rule is to authorize
stumpage rate redeterminations for existing sales suspended, at no
fault of the purchaser, more than 90 days, during the normal operating
season, as a result of administrative appeals or litigation, through no
fault of the timber purchaser to reflect significant timber market
declines. No change in resources on National Forest System (NFS) land
would occur from implementation of this rule except to defer operations
on an NFS timber sale. A final determination will be made upon adoption
of a final rule.
Controlling Paperwork Burdens on the Public
This interim final rule does not contain any recordkeeping or
information requirement, as defined in 5 CFR Part 1320, Controlling
Paperwork Burdens on the Public. In accordance with those rules and the
Paperwork Reduction Act of 1995, as amended (44 U.S.C. 3501, et seq),
the Forest Service has not requested emergency approval from the Office
of Management and Budget for this interim final rule.
Unfunded Mandates Reform
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
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 interim final 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.
List of Subjects in 36 CFR Part 223
Administrative practices and procedures, Exports, Government
contracts, Forests and forest products, National forests, Reporting and
recordkeeping requirements.
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Therefore, for the reasons set forth in the preamble, Title 36 of the
Code of Federal Regulations, part 223, subpart B, 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
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2. In Sec. 223.112, designate the first paragraph as (a) and add
paragraph (b) as follows:
Sec. 223.112 Modification of Contracts.
(a) * * *
(b) Timber sale contracts awarded after October 1, 1995, that have
been suspended for more than 90 days, during the normal operating
season, at no fault of the purchaser, because of administrative appeals
or litigation, that did not include contract provisions for rate
redeterminations may be modified at the request of the timber sale
purchaser to include a rate redetermination for the remaining
unharvested volume to reflect significant decreases in market value
during the period of delay. Rates in effect at the time of the
suspension will be redetermined in accordance with the standard Forest
Service methods in effect 45 days prior to the rate redetermination.
Dated: April 2, 2004.
David P. Tenny,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 04-8033 Filed 4-8-04; 8:45 am]
BILLING CODE 3410-11-P