[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14618-14621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8095]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 223
RIN 0596-AB58
Disposal of National Forest System Timber; Modification of Timber
Sale Contracts in Extraordinary Conditions
AGENCY: Forest Service, USDA.
ACTION: Interim final rule; request for public comment.
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SUMMARY: This interim rule revises the existing regulations regarding
noncompetitive sale of timber based on the Secretary of Agriculture's
determination that extraordinary conditions exist. The intended effect
is to allow forest officers, without advertisement, to make
modifications to timber sales awarded or released pursuant to section
2001(k) of the 1995 Rescissions Act, which result in the substitution
of timber from outside the sale area specified in the contract for
timber within the timber sale contract area. Good cause exists to adopt
this interim final rule without prior notice and comment; however,
public comment is invited and will be considered before adoption of a
final rule.
DATES: This rule is effective April 3, 1996. Comments must be received
by May 20, 1996.
ADDRESSES: Send written comments to: Chief (2400), Forest Service,
USDA, P.O. Box 96090, Washington, DC 20090-6090.
The public may inspect comments received on this rule in the Office
of the Director, Timber Management Staff, Forest Service, USDA, 201
14th Street, SW., Washington, DC 20250. Parties wishing to view
comments are requested to call ahead ((202) 205-0893) to facilitate
entry into the building.
FOR FURTHER INFORMATION CONTACT:
Bob Lynn, Timber Management Staff (202) 205-1787; Jay McWhirter,
Natural Resources Division, Office of the General Counsel (202) 690-
0329.
SUPPLEMENTARY INFORMATION:
Applicable Contract Law
The rules at 36 CFR Part 223 govern the sale of National Forest
System timber. Sections 223.80 and 223.100 address the requirements for
advertisement and for award of timber sale contracts respectively.
Title 16 U.S.C. 472a(d) requires the Secretary of Agriculture to
advertise all sales of forest products unless the value of the sale is
less than $10,000, or the Secretary determines that extraordinary
conditions exist, as defined by regulation. Current regulations at 36
CFR 223.80 require advertisement of a sale for 30 days when its value
is greater than $10,000. The Secretary has not previously promulgated
rules to implement section 472a(d)'s authority to dispose of timber
without advertisement when extraordinary conditions exist.
The advertising requirement of 16 U.S.C. 472a(d) also limits
modifications to contracts involving the addition or substitution of
timber outside a contract's sale area. Since only the timber within the
contract's sale area was subject to competitive bidding, any timber
located outside the contract's sale area would theoretically be
available for sale to other interested purchasers; thus the current
rules do not permit contract modifications that add or substitute
timber outside a contract's sale area for timber under contract within
the sale area. Moreover, the General Accounting Office has held that
substitution of timber outside a contract's sale area for timber within
the contract area violated the agency's authority to sell timber. B-
177602 (1973). The Agriculture Board of Contract Appeals has decided
similarly in several cases. See Appeal of Summit Contractors, AGBCA No.
81-252-1, AGBCA No. 83-312-1 (Jan. 8, 1986), and Appeal of Jay Rucker,
AGBCA No. 79-211A CDA (June 11, 1980). In addition, in a recent case
involving the Bureau of Land Management, the Court of Federal Claims
stated that modifications to existing timber sales must conform with
agency status and regulations regarding disposal of timber. Croman
Corporation v. United States, 31 Fed. Cl. 741, 746-47 (August 16,
1994).
[[Page 14619]]
The 1995 Rescissions Act
On July 27, 1995, President Clinton signed into law the 1995
Rescissions Act (Pub. L. 104-19, 109 Stat. 246). Section 2001(k) of the
1995 Rescissions Act directed the release of timber sales subject to
section 318 of the Fiscal Year 1990 Interior and Related Agencies
Appropriations Act (Pub. L. 101-121, 103 Stat. 745). Section 318 has
been the subject of extensive litigation, including a Supreme Court
decision ultimately affirming the constitutionality of the law in
Robertson v. Seattle Audubon Society, 503 U.S.C. 429 (1992). Some
section 318 timber sales were affected by litigation over compliance
with various terms of section 318, such as the requirement to minimize
fragmentation of ecologically-significant old growth. See Seattle
Audubon Society v. Robertson, Civ. No. 89-160 (W.D. Wash.).
Many section 318 sales did not go forward as a result of concerns
about significant impacts to species listed under the Endangered
Species Act (ESA). In June 1990, after enactment of section 318, the
United States Fish and Wildlife Service (FWS) listed the northern
spotted owl as a threatened species under the ESA (55 FR 26189; June
26, 1990). Because of the listing of the northern spotted owl as a
threatened species, a number of Forest Service section 318 sales were
``modified, eliminated or held in abeyance.'' See Gifford Pinchot
Alliance v. Butruille, 742 F. Supp. 1077, 1080.
On September 28, 1992, the FWS listed the marbled murrelet as a
threatened species (57 FR 45328; Oct. 1, 1992). As a result of the
listing, the Forest Service reinitiated consultation with the FWS under
section 7(a)(2) of the Endangered Species Act, 16 U.S.C. 1536(a)(2),
regarding the effects of murrelets of continuing to harvest section 318
sales that had already been awarded. In June 1995, the FWS concluded
that further logging of a number of the Forest Service section 318
sales would likely jeopardize the continued existence of the marbled
murrelet. As a result, these section 318 sales were suspended pending
further field survey work.
Some section 318 sales were also affected when the National Marine
Fisheries Service proposed listing several anadromous fish species in
the region as threatened or endangered. These species include the
Umpqua River cutthroat trout (59 FR 35089; July 8, 1994), and the coho
salmon (60 FR 38011; July 25, 1995). As stated in these listings, the
decline of these species is due in part to past timber harvest
practices.
The 1995 Rescissions Act contained a provision directed at these
section 318 sales that were still suspended. Section 2001(k) of the Act
states:
Notwithstanding any other provision of law, within 45 days after
the date of the enactment of this Act, the Secretary concerned shall
act to award, release, and permit to be completed in fiscal years
1995 and 1996, with no change in originally advertised terms,
volumes, and bid prices, all timber sale contracts offered or
awarded before that date in any unit of the National Forest System
or district of the Bureau of Land Management subject to section 318
of Public Law 101-121 (103 Stat. 745). The return of the bid bond of
the higher bidder shall not alter the responsibility of the
Secretary concerned to comply with this paragraph.
Currently the Department is in litigation involving the
implementation of section 2001 of the 1995 Rescissions Act. On
September 13, 1995, the district court in NFRC v. Glickman No. 95-6244-
HO (D. Or.), held that section 2001(k) applies to timber sales
previously offered or awarded in all national forests in Washington and
Oregon and BLM districts in western Oregon up to July 27, 1995. On
October 17, 1995, the district court entered an order which ``compelled
and directed'' the Secretary of Agriculture and the Secretary of the
Interior, ``to award, release and permit to be completed in fiscal
years 1995 and 1996, with no change in originally advertised terms,
volumes, and bid prices, all timber sale contracts offered or awarded
between October 1, 1990 and July 27, 1995, in any national forest in
Oregon and Washington or BLM district in western Oregon, except for
sale units in which a threatened or endangered bird species is known to
be nesting.'' The government has appealed the district court's ruling
(NFRC v. Glickman, 9th Cir. No. 95-36042), and is awaiting a decision.
After the district court's September 13, 1995, ruling, and its
October 17, 1995, injunction, the Forest Service proceeded to release
timber sales to previously identified high bidders. In one category of
sales, however, the high bidders were either unwilling, unable, or
unqualified to take advantage of the renewed offer of the timber sale.
In another category of sales, courts had previously issued injunctions
preventing the award of the sales, or the Forest Service had rejected
bids, suspended, or terminated sales as a result of earlier litigation.
For both categories, the Forest Service decided not to pursue the award
or release of timber sales, and was challenged in district court in the
NFRC v. Glickman case. In a decision dated January 10, 1996 (amended to
address typographical errors on January 17, 1996), the district court
enjoined the Secretary of Agriculture to award, release and permit to
be completed immediately, all timber sales that were subject to section
2001(k). The January 10, 1996, injunction included sales where the
Forest Service had rejected bids, suspended, or terminated sales as a
result of earlier litigation, and those sales where the high bidders
were unwilling, unable, or unqualified to be awarded sales.
In section 2001(k)(2) of the 1995 Rescissions Act, Congress created
a limited exception from the general release requirements imposed by
section 2001(k)(1). Under section 2001(k)(2), ``No sale unit shall be
released or completed under this subsection if any threatened or
endangered bird species is known to be nesting within the acreage that
is the subject of the sale unit.'' Section 2001(k)(3) requires the
Secretary of Agriculture and the Secretary of the Interior to provide
an equal volume of alternative timber ``of like kind and value'' for
timber sales withheld under 2001(k)(2)'s ``known to be nesting''
provision. On August 23, 1995, the Department of Agriculture and the
Department of the Interior issued a joint letter of direction
implementing section 2001(k)(2). The agencies concluded that, based on
the scientific analysis used in a protocol developed by the Pacific
Seabird Group, the protocol's criteria should be utilized in evaluating
whether marbled murrelets are ``known to be nesting'' in timber sales
that are subject to section 2001(k).
On September 1, 1995, a lawsuit was filed challenging the
government's implementation of section 2001(k)(2). Scott Timber Co. v.
Glickman, Civ. No. 95-6267-HO (D. Or.). The district court consolidated
the Scott Timber case with NFRC v. Glickman, Civ. No. 95-6244-HO. On
January 19, 1996, the district court issued a decision rejecting the
government's interpretation of section 2001(k)(2) and use of the
Pacific Seabird Group Protocol criteria to determine whether marbled
murrelets are ``known to be nesting.'' The court stated:
The language and legislative history of section 2001(k)(2)
suggest that Congress intended to allow the agencies some leeway to
determine what types of physical evidence observed within sale unit
boundaries are sufficient to establish a ``known'' nesting site
within the sale unit. Thus an agency may rely on the visual or
auditory observation of a murrelet located sub-canopy within sale
unit boundaries engaging in behavior that the
[[Page 14620]]
agency determines is sufficiently indicative of nesting to establish
a ``known'' nesting site within that sale unit.
The District court then enjoined the Secretary of Agriculture to
release sales that had previously been suspended if the sales did not
satisfy the criteria set forth in the court's January 19, 1996, order.
At a hearing held on January 25, 1996, the district court granted a 60-
day stay of the injunction. The stay expires on March 25, 1996, and
timber purchasers have opposed continuation of the stay order on the
bases that they should be entitled to begin harvesting and any
continuation may preclude them from completing timber sales due to the
expiration of section 2001(k)(1) on September 30, 1996. The government
has appealed both the January 10 and January 19, 1996, rulings of the
district court; oral argument on the appeal is scheduled for the week
of May 6, 1996.
Extraordinary Conditions
The Secretary of Agriculture is under October 17, 1995, January 10,
1996, and January 19, 1996, injunctions by the district court in NFRC
v. Glickman to release sales that the Forest Service had previously
suspended, withdrawn, or canceled. While the United States has taken
appeals from the district court rulings underlying these injunctions,
some sales have already been released, and others may be released in
the future to comply with the district court injunctions.
Timber sales that have been released, or that may be released were
planned and prepared under standards that pre-dated the Record of
Decision for amendments to Forest Service and Bureau of Land Management
planning documents within the range of the northern spotted owl, dated
April 13, 1994 (hereinafter referred to as Northwest Forest Plan). The
release and harvest of some of these sales may cause real harm to
natural resources, including fish and wildlife resources. However, the
opportunity exists to negotiate mutual modifications to these sales
that will minimize environmental harm and bring them more in compliance
with the Northwest Forest Plan's standards and guidelines. However, the
mutual modifications likely to be needed for these sales would require
the Forest Service to substitute timber from outside of the existing
sale areas. Faced with these extraordinary conditions, unless the
agency can immediately implement the authority provided in 16 U.S.C.
472a(d) to dispose of timber without advertisement, the opportunity to
carry out section 2001(k) with a minimum of environmental harm through
modifications to timber sale contracts will be lost.
Good Cause Exemption
Based on the foregoing extraordinary conditions, the Department
finds that there exists good cause to promulgate this rule on an
expedited basis. Because of district court injunctions in NFRC v.
Glickman which require the Forest Service to take immediate action to
award and release these timber sales, the Forest Service has a
compelling need to make modifications to contracts which have been or
will be awarded or released pursuant to section 2001(k) of the 1995
Rescissions Act. Without modification, sales will be awarded or
released which contain provisions that pre-date the implementation of
the timber sale standards and guidelines of the Northwest Forest Plan.
Given the duty to comply with the district court's injunction, and the
urgent need to modify timber sales to avoid environmental harm that
would occur if these timber sales are completed without modification,
the Department finds that notice and comment are impracticable prior to
the issuance of this rule, and thus, that good cause exists to adopt
this interim final rule.
Moreover, the Department finds that it would be contrary to the
public interest, under these circumstances, to fail to act immediately
to address the need for modification of these timber contracts. First,
this rule will have a limited application. It will apply only to those
sales that have been or will be released pursuant to section 2001(k) of
the 1995 Rescissions Act. To date, the Forest Service has identified
approximately 100 timber sales subject to section 2001(k). Second,
without authority to make contract modifications that include timber
outside the sale area, the Forest Service cannot provide a reasonable
alternative to imminent harvest of environmentally harmful timber
sales. It is the opinion of the Department, based on communications
with timber contract holders, that failure to expeditiously provide
alternatives to the timber sales released by section 2001(k) will lead
to the immediate harvest of released sales. Such environmental harm,
which may restrict options for future timber harvests, may occur within
the time otherwise required for notice and public participation by E.O.
12866. Finally, section 2001(h) of the 1995 Rescissions Act does not
require the Secretary of Agriculture to adhere to the requirements of 5
U.S.C. 553 in implementing the 1995 Rescissions Act. To the extent that
this rule is in furtherance of the duties imposed by the Rescissions
Act, normal rulemaking procedures would not apply.
Intended Effects
This interim final rule redesignates the existing text in 36 CFR
223.85 as paragraph (a) and adds a new paragraph (b) to define
``extraordinary conditions'' to allow forest officers, without
advertisement, to make modifications to timber sales awarded or
released pursuant to section 2001(k) of Public Law 104-19 (109 Stat.
246), which result in the substitution of timber from outside the sale
area specified in the contract for timber within the sale area. It
should be noted, however, that this rule change does not compel a
timber purchaser to accept a timber sale modification offered under the
interim final rule. The rule authorizes the Forest Service to propose
modifications and to enter into discussions with purchasers on such
modifications, but, as with all mutual transactions, purchasers are not
obligated to accept any proposed modifications.
Regulatory Impact
This rule has been reviewed under USDA procedures and Executive
Order 12866 on Regulatory Planning and Review. While it has been
determined that this is not an economically significant rule, this rule
has been determined to be significant because this rule implements a
statutory authority for noncompetitive modification of timber sale
contracts. Heretofore, there have been no rules on this subject. Given
the wide interest in the timber sales and the statutory direction that
gives rise to the extraordinary conditions which are the subject of
this rulemaking, this rule has been reviewed by the Office of
Management and Budget prior to publication.
Moreover, this 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 action will not have a significant economic impact on a
substantial number of small entities as defined by that act.
Environmental Impact
This rulemaking action falls within a category of actions excluded
from documentation in an Environmental Impact Statement or an
Environmental Assessment. 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
[[Page 14621]]
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 for this rule.
Controlling Paperwork Burdens on the Public
This rule does not require any recordkeeping or reporting
requirements or other information collection requirements as defined in
5 CFR 1320 not already approved for use and, therefore, imposes no
additional 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 1320 do not apply.
List of Subjects in 36 CFR Part 223
Exports, Government contracts, National forest, Reporting and
recordkeeping requirements, Timber sales.
Therefore, for the reasons set forth in the preamble, it is
proposed to amend part 223 of title 36 of the Code of Federal
Regulations 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, unless otherwise noted.
Subpart B--Timber Sale Contracts
2. Section 223.85 is revised to read as follows:
Sec. 223.85 Noncompetitive sale of timber.
(a) Forest officers may sell, within their authorization, without
further advertisement, at not less than appraised value, any timber
previously advertised for competitive bids but not sold because of lack
of bids and any timber on uncut areas included in a contract which has
been terminated by abandonment, cancellation, contract period
expiration, or otherwise if such timber would have been cut under the
contract. This authority shall not be utilized if there is evidence of
competitive interest in the product.
(b) Extraordinary conditions, as provided for in 16 U.S.C. 472(d),
are defined to include the potential harm to natural resources,
including fish and wildlife, and related circumstances arising as a
result of the award or release of timber sale contracts pursuant to
section 2001(k) of Public Law 104-19 (109 Stat. 246). Notwithstanding
the provisions of paragraph (a) or any other regulation in this part,
for timber sale contracts that have been or will be awarded or released
pursuant to section 2001(k) of Public Law 104-19 (109 Stat. 246), the
Secretary of Agriculture may allow forest officers to, without
advertisement, modify those timber sale contracts by substituting
timber from outside the sale area specified in the contract for timber
within the timber sale contract area.
Dated: March 28, 1996.
Dan Glickman,
Secretary of Agriculture.
[FR Doc. 96-8095 Filed 4-2-96; 8:45 am]
BILLING CODE 3410-11-M
