[Federal Register Volume 64, Number 2 (Tuesday, January 5, 1999)]
[Rules and Regulations]
[Pages 406-413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-68]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 223
RIN 0596-AB62
Small Business Timber Sale Set-Aside Program; Appeal Procedures
on Recomputation of Shares
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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[[Page 407]]
SUMMARY: This final rule establishes procedures by which timber
purchasers may comment on an appeal the recomputation of shares and
related decisions made under the Small Business Timber Sale Set-aside
Program. This rule clarifies the kinds of decisions that are subject to
appeal, who may appeal decisions, the procedures for appealing
decisions, the timelines for appeal, and the contents of the notice of
appeal. The intended effect is to provide an opportunity for timber
sale purchasers to appeal small business shares as called for in the
conference report accompanying the Fiscal Year 1997 Omnibus
Appropriations Act. This final rule supersedes the interim rule
published March 24, 1997.
DATES: This final rule is effective January 20, 1999.
FOR FURTHER INFORMATION CONTACT: Rod Sallee, Forest Management Staff,
(202) 205-1766.
SUPPLEMENTARY INFORMATION:
Background
Developed in cooperation with the Small Business Administration,
the Forest Service Small Business Timber Sale Set-aside Program is
designed to ensure that qualifying small business timber purchasers
have the opportunity to purchase a fair proportion of National Forest
System timber offered for sale. The current set-aside program was
adopted July 26, 1990 (55 FR 30485).
Under the program, the Forest Service must recompute the shares of
timber sales to be set aside for qualifying small businesses every 5
years on the actual volume of sawtimber that has been purchased and/or
harvested by small business. Also, shares must be recomputed if there
is a change in manufacturing capability, if the purchaser size class
changes, or if certain purchasers discontinue operations. Direction to
guide employees in administering the Small Business Timber Sale Set-
aside Program is issued in the Forest Service Manual, Chapter 2430, and
Chapter 90 of the Forest Service Timber Sale Preparation Handbook (FSH
2409.18).
In 1992, the agency adopted new administrative appeal procedures at
36 CFR part 215 in response to new statutory direction. These rules
apply to certain National Forest System project-level decisions for
which an environmental assessment (EA) or impact statement (EIS) has
been prepared. Because the recomputation of shares under the Small
Business Timber Sale Set-aside Program is not subject to documentation
in an EA or EIS, the decisions on the 1996-2000 Forest Service
recomputation of small business shares were not subject to the new
appeal procedures. However, since the agency had accepted appeals of
recomputation decisions under 36 CFR part 217 prior to adoption of part
215, the agency decided to establish procedures for providing notice to
affected purchasers with opportunity to comment on the recomputation of
shares. Notice of these procedures was published in the Federal
Register on February 28, 1996 (61 FR 7468).
The Conference Report accompanying the 1997 Omnibus Appropriation
Act (Pub. L. 104-208) found the Forest Service decision to eliminate an
administrative appeals opportunity for the Small Business Timber Sale
Set-Aside Program ``unacceptable'' and directed the Forest Service to
reinstate an appeals process before December 31, 1996. The Conference
Report required that the agency establish a process by which purchasers
may appeal decisions concerning recomputations of Small Business Set-
Aside (SBA) shares, structural recomputations of SBA shares, or changes
in policies impacting the Small Business Timber Sale Set-Aside Program.
It also provided that, as in the past, decisions related to the
designation of the sales to be set aside are not subject to appeal. An
interim rule published March 24, 1997 (62 FR 13826), went into effect
immediately to comply with the Conference Report accompanying the FY
1997 Omnibus Appropriations Act. However, the agency also requested
comment on the interim rule.
Response to Comments Received
Fifteen responses were received on the interim rule. Comments were
received from 13 purchasers, one timber industry representative
reflecting the joint views of four industry associations, and the Small
Business Administration. A summary of the comments and the Department's
response follows:
General Comments
Comment: Fairness and balance of the rule. One timber industry
reviewer remarked that the rules were not fair or balanced and should
be rejected.
Response. This respondent did not specify what is unfair or
unbalanced in the interim rule and did not provide suggestions for
modifying or improving the regulations. Therefore, the Department is
unable to address the respondent's concerns directly. Nevertheless, the
Department believes the final rule is fair and balanced with regard to
both the decisions that can be appealed and who may participate in
appeals.
Comment: Large purchasers influence. One respondent stated that the
interim rule gives ``undue influence to non-small business timber
purchasers'' and, as a result, limits the small business community's
opportunity to purchase a fair proportion of National Forest System
timber offered for sale.
Response. It appears that this respondent does not understand that
the interim rule applies both to small and large businesses. The
interim rule limits neither party's opportunity to purchase National
Forest System timber and gives all purchasers within the area,
regardless of size, equal opportunity to comment on and appeal the
market share computations. Because the respondent was not specific
about how the rule gives ``undue influence to non-small business timber
purchasers,'' the Department is unable to address this comment in more
depth.
Comment: Include appeals under 36 CFR part 251, subpart C. Several
respondents suggested placing the Small Business Timber Sale Set-Aside
Program appeal rule under 36 CFR part 251, subpart C, Appeal of
Decisions Relating to Occupancy and Use of National Forest Systems
Lands. In particular, an organization representing timber purchasers
asserted that the Forest Service had never explained why timber
purchasers are not afforded the same appeal procedures as other
National Forest System commercial users, such as holders of grazing,
mining, and special use permits.
Response. Regulations at 36 CFR part 251, subpart C, set our
procedures for appealing decisions related to occupancy and use of
National Forest System lands through the issuance of written
authorizations. By contrast, timber sales are governed by contracts,
and contracts disputes are governed by the Contract Disputes Act of
1978 (41 U.S.C. 601 et seq.) settled by the Agriculture Board of
Contract Appeals under 7 CFR part 24. Moreover, the nature of the timer
sale set-aside decisions which are subject to appeal under 36 CFR
223.118 are more limited than those decision appealable under 36 CFR
part 251, subpart C, and the set-aside decisions precede the request
for bids and award of contracts, a prerequisite for appeal under 36 CFR
part 251. The Small Business Timber Sale Set-Aside Appeal process gives
purchasers the opportunity to appeal discrepancies in data related to
the share of timber to be made available for bidding by large and small
businesses, as well as other decisions about the recomputation process.
The Department believes trying to intermingle the set-aside sale
decisions and appeal
[[Page 408]]
procedures in part 251, subpart C, would unnecessarily complicate the
appeal process and prove burdensome to the appellant and the agency.
However to the extent possible, the Department has made the Small
Business Timber Sale Set-Aside Appeal regulations consistent with the
procedural rules governing the appeal of other Forest Service decisions
under 36 CFR parts 215 and 217 in the belief that providing similar
appeal procedures for recomputation of shares and related decisions at
36 CFR part 223 should facilitate appellant understanding and use.
Comments on Specific Provisions of the Interim Rule
Section 223.118(a) Decisions subject to appeal. Paragraph (a) of
Sec. 223.118 specifies that only those decisions leading to
recomputation of shares in the Small Business Timber Sale Set-Aside
Program are subject to appeal. Decisions leading to the recomputation
of shares include structural change, special change, and market change
decisions as well as the scheduled 5-year recomputations of the small
business share of timer sales.
Comment. Five respondents suggested that the range of decisions
subject to appeal should be expanded to include other critical
decisions, such as changes in delineation of market areas and decisions
to initiate a Small Business Timber Sale Set-Aside Program within the
market area (trigger decisions). By contrast, the Small Business
Administration (SBA) indicated that they would like to make certain
that the types of decisions subject to appeal in paragraph (a) of the
interim rule remain restricted to those listed in the interim rule as
structural, special, market change, or the scheduled 5-year
recomputation of the small business share of timber sales. The SBA
specifically disagreed with suggestions by some small purchasers that
decisions selecting the sales to be designated as timber set-aside
sales should also be appealable.
Response. Because the SBA has the key responsibility for
administering the overall Small Business programs, the Department
concurs with SBA's recommendation not to expand the appeal categories.
However, having considered industry comments, the Department
believes some clarification of the intended range and type of decisions
that are subject to appeal would be helpful. Some changes in the Small
Business Timber Sale Set-Aside Program require decisions to be made at
two different times; for example, structural changes have two decision
points--the first is the decision that a structural change is needed.
This is followed by a later decision that recomputes and establishes a
new small business share recomputation. Other unique situations, such
as carryover volume, may require two decisions, first, determining the
next recomputation period and, secondly, recomputing the shares. In
both cases, decisions made at the earlier stage as well as the later
stage are appealable. Paragraph (a) of the final rule has been revised
to clarify which decisions are appealable.
The second sentence is paragraph 228.118(a) of the interim rule
described who may appeal recomputation related decisions. Since the
substance of this provision is already set out in paragraph (c), Who
may appeal or file written comments as an interested party, this
sentence is redundant and has been removed from paragraph (a) in the
final rule.
Section 223.118(b)(1) Predecisional notice and comment. No comment
was received on this regulatory provision; therefore, no substantive
changes have been made to the text in the final rule.
Section 223.118(b)(2) Notice of decision. Paragraph (b)(2) requires
the Responsible Official, upon close of the 30-day predecisonal review
period, to consider any comments received, make a decision on the small
business shares or related matters, and give prompt notice to all
parties on the bidders' list for the bid area.
Comment. The Small Business Administration suggested that the
Forest Service and the Small Business Administration make a joint
decision on the small business shares, requiring the signature of
officials from both agencies on the Notice of Decision.
Response. Agency officials ``cooperate fully with Small Business
Administration representatives in meeting the spirit and objectives of
the small business timber sale set-aside programs'' (FSM 2436.03).
Nevertheless, it would be unwieldy and time-consuming the require
approval of both agencies each time a decision on a Small Business
Timber Sale Set-Aside matter is made. Moreover, the administration of
the timber sale set-aside program, including decisions on recomputation
of shares, is ultimately the responsibility of the Forest Service. For
these reasons, the Department has not adopted this recommendation.
Section 223.118(c) Who may appeal or file written comments. This
provision of the interim rule provides that only timber sale purchasers
who are affected by the recomputations of the small business share of
the timber sale program, or their representatives, and who have
submitted predecisional comment may appeal recomputation decisions.
Comment. Several respondents agreed with the interim rule
requirement limiting appeal to timber sale purchasers who are on the
bidders' list for the affected area and who have submitted
predecisional comments. However, one respondent suggested that both
small and large businesses be given the opportunity to provide comment
as an interested party to any appeal submitted and several recommended
allowing interveners.
Response. While the intent of the interim rule was to give both
small and large business the opportunity to participate as appellants
in the appeal process, the interim rule did not provide for interested
parties to participate. In light of the comment on this provision, the
Department has reconsidered and consequently has revised the final rule
at Sec. 223.118(c)(1) through (c)(3) to allow timber sale purchasers
who are affected by recomputation decisions and who submitted
predecisional comment to submit written comment as an interested party
to the Appeal Deciding Officer within 15 days after the close of the
appeal filing period for any filed appeal.
Comment. One respondent remarked that a timber purchasing firm with
legitimate interest in being an appellant might not have filed earlier
comments in the firm's name, because the comments were filed in the
name of an association to which the firm belongs. In this case, if the
association does not wish to pursue an appeal, but one of its members
firms wants to appeal, the respondent felt that the member firm should
not be barred from filing an appeal based on the fact that it was not
an entity that had commended earlier.
Response. The Department disagrees that the member firm should have
the right to appeal without having commented as an individual timber
sale purchaser on the predecisional notice. However, the agency has
reconsidered who may be considered interested parties to an appeal and,
subsequently, has amended the language in the final rule to allow
member firms to file comments on an appeal as an interested party.
Paragraph (c)(2) of Sec. 223.118 clarifies that a timber sale purchaser
is considered an interested party, even if an association of which they
are a member files comments but decides not to appeal. The rule makes
clear that if an association appeals but the individual timber sale
purchaser did not file an individual predecisional
[[Page 409]]
comment, then the purchaser is not eligible to file a separate appeal.
Comment. One respondent suggested that affected purchasers be
defined as small business companies employing less than five hundred
employees.
Response. The Department disagrees that affected purchasers should
be limited to small businesses and that only small businesses should be
able to appeal small business share decisions. The small business set-
aside program is designed to allocate shares among small and large
businesses and, therefore, large and small businesses are equally
eligible to appeal recomputation decisions or file written comments as
interested parties.
Section 223.118(d) Level of appeal. This provision of the interim
rule provides for one level of appeal and notes that the Appeal
Deciding Officer is normally the Regional Forester.
Comment. One respondent suggested that appeals under this rule be
decided by the highest official in the Forest Service.
Response. The Department disagrees with this suggestion. Share
decisions are located decisions affecting a defined market area. The
land management official who oversees timber sales for the area is best
prepared to make such a decision. Issues can best be understood and
addressed through local dialogue. Also, this provision is consistent
with the general appeal process at 36 CFR part 215, which provides only
one level of appeal.
Section 223.118(e) through (h)(2). No comments were received on
paragraphs Sec. 223.118(e) through (h)(2) of the interim rule;
therefore, these paragraphs are retained as they appeared in the
interim rule, except for minor editorial changes.
Section 223.118(h) Dismissal without decision. The agency
determined that further clarification was needed to specify what
information is required in order to review an appeal and to clarify
that an appeal will be dismissed without decision unless that
information is provided. Therefore, a new paragraph (h)(3) is added to
this section which states that the Appeal Deciding Officer must dismiss
an appeal if the appellant's notice of appeal does not contain the
information required by paragraph (f) of this section. Paragraph (h)(3)
of the interim rule is retained but is redesignated paragraph (h)(4) in
the final rule.
Section 223.118(i) Appeal record. No comments were received on this
provision and, subsequently, no substantive changes are made to this
paragraph in the final rule.
Section 223.118(j) Appeal decision. This provision of the interim
rule states that the Appeal Deciding Officer shall review the decision
and appeal record and issue a written appeal decision to the parties
within 30 days of the close of the appeal period. The Appeal Deciding
Officer may affirm or reverse the Responsible Official's decision, in
whole or in part. The time period for issuing the appeal decision may
not be extended. Additional provisions of this paragraph of the interim
rule state that if a decision is not rendered within the required 30
days, the existing decision is automatically affirmed. The Appeal
Deciding Officer's decision or the failure of the Appeal Deciding
Officer to decide within the required 30 days would constitute a final
administrative decision of the Department of Agriculture.
Comment. Ten respondents suggested requiring a formal response to
an appeal rather than allowing automatic affirmation of the existing
decision if no formal response was made within 30 days.
Response. Upon reconsideration, the Department agrees with this
suggestion. Accordingly, the final rule at Sec. 223.118(j) is revised
to require the Appeal Deciding Officer to issue a written appeal
decision to the parties within 30 days of the close of the appeal
period. The provision in the interim rule at Sec. 223.118(j), which
affirmed the decision under appeal if no formal response is made within
30 days, is not retained in the final rule.
Comment. Several respondents suggested allowing oral presentation
during the appeal process. In addition, one respondent remarked that
Sec. 215.16 of this chapter of the Code of Federal Regulations allows
parties to request a meeting for informal discussions.
Response. The provisions at part 215 of this chapter provide an
informal process for resolving issues concerning National Forest System
projects and activities. The Small Business Timber Sale Set-aside
Appeal process is designed, however, to address discrepancies in data
used to make the recomputation of shares. Because of the factual basis
of the information provided for recomputation appeals, an oral
presentation would not likely be the best medium for presenting data in
an appeal of this type. Furthermore, there is ample opportunity for
informal discussion with he responsible official prior to the decision.
Paragraph (b)(1) of Sec. 223.118 allows 30 days for predecisional
review and comment. However, in response to this comment and to provide
additional opportunity to discuss and clarify factual material, a new
paragraph (j)(2) has been added to permit Appeal Deciding Officers, at
their discretion, to invite an appellant to discuss data relevant to
the appeal.
Comment. Several respondents recommended that responsive statements
be a requirement of the appeals process.
Response. If the Responsible Official and the Appeal Deciding
Officer agree that the information in the appeal records clearly
demonstrates the basis for the decision, then a responsive statement
addressing the points of the appeal is not necessary. If the records do
not adequately demonstrate the basis for the decision, then the
Responsible Official may voluntarily prepare or the Appeal Deciding
Officer may direct that the Responsible Official prepare a responsive
statement. Also, the Appeal Deciding Officer may request additional
information from either the Responsible Official or the appellant for
clarification of appeal issues. The clarifying information must be
based upon information previously documented in the files or in the
appeal. A voluntarily prepared responsive statement or any information
provided as a result of the Appeal Deciding Officer's request for more
information must be made available to both parties. Either party will
have 5 days after the Appeal Deciding Officer receives the additional
information to review and comment on the information, and the appeal
decision period will be extended 5 additional days to accommodate this
review period.
The Appeal Deciding Officer must review the decision and appeal
record and issue a written appeal decision to the parties within 30
days of the close of the appeal period, except, as previously noted,
that period will be extended to 35 days to allow 5 days review by
parties when additional information is requested by the Appeal Deciding
Officer.
Paragraph 223.118(j) of this section has been revised to
incorporate these procedures and timeframes.
Comment. The Small Business Administration suggested that the
regulations include a provision requiring the Appeal Deciding Officer
to consult with the Small Business Administration on appeals of
recomputations.
Response. Forest Service Manual direction already requires
employees to cooperate fully with the Small Business Administration
(FSM 2436.03). In addition, a Forest Service Responsible Official is
required to consult the Small Business Administration when issuing an
initial decision that is subject to appeal (FSH 2409.18, 91).
[[Page 410]]
Administration of the agency's Small Business Administration Program,
including decisions on recomputation of shares, is the responsibility
of the Forest Service; therefore, the Department has not adopted this
recommendation. However, in recognition of the potential value of the
Small Business Administration's participation in the appeals process,
the Department has revised paragraph (c)(2) to include the Small
Business Administration as an interested party to an appeal under this
section.
Section 223.118(k) Implementation of decisions during pendency of
appeal. No comments were received on this provision of the interim
rule; therefore, the paragraph is retained without change in the final
rule.
Section 223.118(l) Timber sale set-aside policy changes. The agency
received no comment on paragraph Sec. 223.118(l) of the interim rule;
therefore, this paragraph is retained without change in the final rule.
As stated in the preamble of the interim rule, timber purchasers are
given an opportunity to review and comment on significant changes in
the Small Business Timber Sale Set-aside program or policy prior to
adoption and implementation. This opportunity is given through Federal
Register notice and is consistent with the agency's treatment of all
other major policy decisions.
Controlling Paperwork Burdens on the Public
In the interim rule, the agency requested comment on the
information collection requirement for the Small Business Timber Sale
Set-aside Program, Office of Management and Budget number 0596-0141.
The information required by paragraph (f) of the interim rule must be
provided by purchasers who object to the decision recomputing timber
sales to be set aside for small timber purchasers and who wish to file
an appeal.
Comment. One respondent commented that the estimates of the time
required to prepare appeals of Small Business Timber Sale Set-aside
decisions were too low. This respondent assumed that an appellant would
have to develop an individual database, and, under this assumption, the
reviewer stated that it would take 4-hours per market area per 6-month
period to collect the Small Business Set-aside decision appeal
information into a data-base. This respondent suggested that the burden
be increased to 8 hours per market area to analyze any proposed change
and 2 hours to write the comments. Another respondent indicated that
the agency's estimate of the burden of the proposed collection is ``way
low.'' This respondent also said that managing the information
collection electronically would reduce the burden of collection.
Response. The requirements in Sec. 223.118 (f) set out the
information that must be provided in a notice of appeal of
recomputations of Small Business Set-aside Timber Sale shares or
related decisions. The agency does not expect that appellants would
need to establish an individual database in order to collect this
information, since commercial databases are already available which
provide easy, fast access to recomputation-related information.
Furthermore, the agency recognizes that the time to prepare a
collection would vary depending on the appeal issue. The estimate of
the burden of the proposed collection is intended to be an average of
the time that might be required to file an appeal under these
regulations. Therefore, the Department does not agree that an
adjustment to the number of hours is needed.
Comment. One respondent thought that the proposed collection of
information appears reasonable except for the requirements of paragraph
(f)(2)(vi) of the rule, which requires the appellant to list specific
references to any law, regulation, or policy that the appellant
believes to have been violated and the basis for such an allegation,
and paragraph (f)(2)(vii), which requires a statement as to whether and
how the appellant has tried to resolve with the Responsible Official
the issue(s) being appealed, including evidence of submission of
written comments at the predecisional stage. The respondent indicated
that listing legal references does not add meaningful information and
remarked that the burden of documenting how issues have been resolved
should be shared between the appellant and the Responsible Official.
Response. The Department agrees that in some circumstances the
requirements of paragraph (f)(2)(vi) may not apply to the decision
being appealed and, accordingly, has edited the provision to indicate
that this information is needed only if the appellant believes a law,
regulation, or order is being violated. Paragraph (f)(2)(vii) is
intended to encourage resolution of the issues in the spirit of an
informal administrative process and, thus, avoid entering into a formal
appeal process. Documenting whether and how such issue resolution
occurred is not intended to be burdensome, but the information is
necessary to provide evidence that the party did submit predecisonal
comments and, therefore, is eligible to appeal. Accordingly, the
Department does not agree that a change in paragraph (f)(2)(vii) is
necessary.
This information collection has been reviewed by the Office of
Management and Budget according to the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and implementing
regulations at 5 CFR part 1320. The Office of Management and Budget has
approved information requirements and assigned control number 0596-
0141, which expires May 31, 2000.
The preamble to the interim rule stated that when the information
collection was approved by the Office of Management and Budget, a
separate notice would be published in the Federal Register announcing
the effective date of the information requirements. Although the agency
received this approval, due to an oversight, the agency did not publish
notice of that approval prior to publication of this final rule. The
final rule contains a new paragraph (m) which sets forth the
information collection control number.
Other Comments
Several respondents commented on other aspects of the timber sale
set-aside program. Two respondents said the small business appeal
process was not needed. One reviewer commented on the difficulty that
small companies have bidding against large companies. These comments
are beyond the scope of this rulemaking, and, therefore, not addressed
as part of this final rule.
Conclusion
Based on the comments received, the interim rule has been revised
to clarify decisions subject to appeal, to allow interested party
participation, to modify information requirements in an appeal, to
allow the Appeal Deciding Officer to request additional information
from the appellant or a responsive statement from the Responsible
Official, to remove automatic affirmation of the existing decision, and
to clarify the filing procedure, when appeals may be dismissed without
decision, and the appeal decision process. The final rule offers
affected timber purchasers of any size the opportunity to appeal
decisions related to the recomputation of share calculations for the
Timber Sale Set-aside Program.
Environmental Impact
This final rule would establish uniform procedures for providing
qualifying timber purchasers the opportunity to review, comment on, and
[[Page 411]]
appeal decisions on recomputed shares of the Timber Sale Set-aside
Program. 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 final rule falls
within this category of actions and has no direct or indirect
environmental impact, and that no extraordinary circumstances exist
which would require preparation of an environmental assessment or
environmental impact statement. No comments were received to the
contrary.
Unfunded Mandates Reform
Pursuant to Tile 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 final 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.
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 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 final 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 entitlement, grants, user fees, or loan programs or
the rights and obligations of recipients of such programs. Accordingly,
this final rule is not subject to Office of Management and Budget
review under Executive Order 12866.
Pursuant to 5 U.S.C. 605(b), it is hereby certified that this final
rule has been considered in light of the Regulatory Flexibility Act (5
U.S.C. 60 et seq.) and that this action will not have a significant
economic impact on a substantial number of small entities as defined by
that Act. The final rule imposes no additional requirements on small
business timber sale purchasers or other small entities. It merely
implements legislative intent to provide small purchasers an
administrative appeal opportunity. To facilitate the preparation and
process of timber sale set-aside appeals, the agency has kept the
appeal procedures as streamlined and as simple as possible.
No Takings Implications
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12630, and it has been
determined that the rule does not pose the risk of a taking of
Constitutionally-protected private property. This final rule provides
qualifying timber sales purchasers the opportunity to comment on and
appeal the procedures for purchasing a fair proportion of the National
Forest System timber offered for sale and neither abrogates or expands
any rights related to such sales.
Civil Justice Reform Act
This final rule has been reviewed under Executive Order 12788,
Civil Justice Reform, therefore: (1) all state and local laws and
regulations that are in conflict with this final rule or which would
impede its full implementation would be preempted; (2) no retroactive
effect would be given to this final rule; and (3) it would not require
administrative proceedings before parties may file suit in court
challenging its provisions.
List of Subjects in 36 CFR Part 223
Administrative practice and procedure, Exports, Forests and forest
products, Government contracts, National forests, and Reporting and
recordkeeping requirements.
Therefore, for the reasons set forth in the preamble, Subpart B of
Part 223 of Title 36 of the Code of Federal Regulations is hereby
amended as follows:
PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER
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. 620-620h, unless otherwise
noted.
Subpart B--Timber Sale Contracts--[Amended]
2. Revise Sec. 223.118 to subpart B to read as follows:
Sec. 223.118 Appeal process for small business timber sale set-aside
program share recomputation decisions.
(a) Decisions subject to appeal. The rules of this section govern
appeal of recomputation decisions related to structural, special, or
market changes or the scheduled 5-year recomputations of the small
business share of National Forest System timber sales. Certain
decisions related to recomputation of shares, such as structural change
and carryover volume, may require two decisions, one to determine that
a recomputation is needed and the other to recompute the shares.
Decisions made both at the earlier stage as well as the later stage are
appealable.
(b) Manner of giving notice. (1) Predecisional notice and comment.
The Responsible Official shall provide qualifying timber sale
purchasers, as defined in paragraph (c)(1) of this section, 30 days for
predecisional review and comment on any draft decision to reallocate
shares, including the data used in making the proposed recomputation
decision.
(2) Notice of decision. Upon close of the 30-day predecisional
review period, the Responsible Official shall consider any comments
received. Within 15 days of the end of the comment period, the
Responsible Official shall make a decision on the small business shares
and shall give prompt written notice to all parties on the national
forest timber sale bidders list for the affected area. The notice of
decision must identify the name of the Appeal Deciding Officer, the
address, the date by which an appeal must be filed, and a source for
obtaining the appeal procedures information.
(c) Who may appeal or file written comments as an interested party.
(1) Only timber sale purchasers, or their representatives, who are
affected by recomputations of the small business share of timber sales
as described in paragraph (a) of this section and who have submitted
predecisional comments pursuant to paragraph (b)(1) of this section,
may appeal recomputation decisions under this section or may file
written comments as an interested party.
(2) Interested parties are defined as the Small Business
Administration and those timber sale purchasers, or their
representatives, who are affected by recomputations of the small
business share of timber sales as described in paragraph (a) of this
section and who have individually, or through an association to which
they belong, submitted predecisional comments pursuant to paragraph
(b)(1) of this section.
(i) A timber sale purchaser may submit comments on an appeal as an
interested party if an association to which the purchaser belongs filed
predecisional comment but later decides
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not to appeal or not to file comments as an interested party.
(ii) A timber sale purchaser, who is a member of an association
that appeals a decision, may not file a separate appeal unless that
purchaser filed separate predecisional comment under paragraph (b)(1).
(3) Interested parties who submit written comments on an appeal
filed by another party may not continue an appeal if the appellant
withdraws the appeal.
(d) Level of appeal. Only one level of review is available for
appeal of decisions pertaining to recomputations under the Small
Business Timber Sale Set-aside Program. The Appeal Deciding Officer is
the official one level above the level of the Responsible Official who
made the recomputation of shares decision. The Responsible Official is
normally the Forest Supervisor; thus, the Appeal Deciding Officer is
normally the Regional Forester. However, when the Regional Forester
makes recomputation decisions, the Appeal Deciding Officer is the Chief
or such officer at the National headquarters level as the Chief may
designate.
(e) Filing procedures. In order to file an appeal under this
section, an appellant must file a notice of appeal, as specified in the
notice of decision, with the Appeal Deciding Officer within 20 days of
the date on the notice of the decision. This date must be specified in
the notice of decision given pursuant to paragraph (b)(2) of this
section. Written comments filed by an interested party in response to
an appeal must be filed within 15 days after the close of the appeal
filing period.
(f) Content of notice of appeal. (1) It is the responsibility of
the appellant to provide sufficient narrative evidence and argument to
show why a recomputation decision by the Responsible Official should be
reversed or changed.
(2) An appellant must include the following information in a notice
of appeal:
(i) The appellant's name, mailing address, and daytime telephone
number;
(ii) The title or type of recomputation decision involved, the date
of the decision, and the name of the Responsible Official;
(iii) A brief description and date of the decision being appealed:
(iv) A statement of how the appellant is adversely affected by the
decision being appealed;
(v) A statement of the facts in dispute regarding the issue(s)
raised by the appeal;
(vi) If relevant, any specific references to any law, regulation,
or policy that the appellant believes to have been violated and the
basis for such an allegation;
(vii) A statement as to whether and how the appellant has tried to
resolve with the Responsible Official the issue(s) being appealed,
including evidence of submission of written comments at the
predecisional stage as provided by paragraph (a) of this section, the
date of any discussion, and the outcome of that meeting or contact; and
(viii) A statement of the relief the appellant seeks.
(g) Time periods and timeliness. (1) All time periods applicable to
this section will begin on the first day following a decision or action
related to the appeal.
(2) Time periods applicable to this section are computed using
calendar days. Saturdays, Sundays, or Federal holidays are included in
computing the time allowed for filing an appeal; however, when the
filing period would expire on a Saturday, Sunday, or Federal holiday,
the filing time is automatically extended to the end of the next
Federal working day.
(3) It is the responsibility of those filing an appeal to file the
notice of appeal by the end of the filing period. In the event of
questions, legible postmarks on a mailed appeal or the time and date
imprint on a facsimile appeal will be considered evidence of timely
filing. Where postmarks or facsimile imprints are illegible, the Appeal
Deciding Officer shall rule on the timeliness of the notice of appeal.
(4) The time period for filing a notice of appeal is not
extendable.
(h) Dismissal without decision. The Appeal Deciding Officer shall
dismiss an appeal and close the record without a decision in any of the
following circumstances:
(1) The appellant is not on the timber sale bidders list for the
area affected by the recomputation decision;
(2) The appellant's notice of appeal is not filed within the
required time period;
(3) The appellant's notice of appeal does not contain responses
required by paragraphs (f)(2)(i) through (f)(2)(viii) of this section;
or
(4) The appellant did not submit written comments on the proposed
decision of the new recomputed shares as described in paragraph (c) of
this section.
(i) Appeal record. The appeal record consists of the written
decision being appealed, any predecisional comments received, any
written comments submitted by interested parties, any other supporting
data used to make the decision, the notice of appeal, and, if prepared,
a responsive statement by the Responsible Official which addresses the
issues raised in the notice of appeal. The Responsible Official must
forward the record to the Appeal Deciding Officer within 7 days of the
date the notice of appeal is received. A copy of the appeal record must
be sent to the appellant at the same time.
(j) Appeal decision. (1) Responsive statement for appeal decision.
The Appeal Deciding Officer may request the Responsible Official to
prepare a responsive statement. However, if the information in the
files clearly demonstrates the rationale for the Responsible Official's
decision, then a responsive statement addressing the points of the
appeal is not necessary.
(2) Appeal issue clarification. For clarification of issues raised
in the appeal, the Appeal Deciding Officer may request additional
information from either the Responsible Official, the appellant, or an
interested party who has submitted comments on the appeal. At the
discretion of the Appeal Deciding Officer, an appellant or interested
party may be invited to discuss data relevant to the appeal.
Information provided to clarify issues or facts in the appeal must be
based upon information previously documented in the file or appeal. Any
information provided as a result of the Appeal Deciding Officer's
request for more information must be made available to all parties,
that is, to the Responsible Official, the appellant, and interested
parties who have submitted comments on the appeal. All parties will
have 5 days after the Appeal Deciding Officer receives the additional
information to review and comment on the information, and the appeal
decision period will be extended 5 additional days.
(3) Issuance of final decision. The Appeal Deciding Officer shall
review the decision and appeal record and issue a written appeal
decision to the parties within 30 days of the close of the appeal
period except that this period must be extended to 35 days when
additional information is requested by the Appeal Deciding Officer. The
Appeal Officer may affirm or reverse the Responsible Official's
decision, in whole or in part. There is no extension of the time period
for rendering an appeal decision.
(k) Implementation of decisions during pendency of appeal.
Recomputation of shares arising from a scheduled 5-year recomputation
are effective on April 1 following the end of the 5-year period being
considered. If an appeal that may affect the shares for the
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next 5-year period is not resolved by the April 1 date, the share
decision announced by the Responsible Official must be implemented. If
an appeal decision results in a change in the shares, the revised total
share of the Small Business Timber Sale Set-aside Program must be
accomplished during the remaining portion of the 5-year period.
(l) Timber sale set-aside policy changes. Timber purchasers shall
receive an opportunity, in accordance with all applicable laws and
regulations, to review and comment on significant changes in the Small
Business Timber Sale Set-aside Program or policy prior to adoption and
implementation.
(m) Information collection requirements. The provisions of
paragraph (f) of this section specify the information that appellants
must provide when appealing decisions pertaining to recomputation of
shares. As such, these rules contain information requirements as
defined in 5 CFR Part 1320. These information requirements have been
approved by the Office of Management and Budget and assigned control
number 0596-0141.
Dated: December 29, 1998.
Anne Kennedy,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 99-68 Filed 1-4-99; 8:45 am]
BILLING CODE 3410-11-M
