[Federal Register Volume 85, Number 244 (Friday, December 18, 2020)]
[Rules and Regulations]
[Pages 82359-82375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27580]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Parts 5000, 5400, 5420, 5440, 5450, 5460, 5470 and 5500
[LLHQ200000 L63000000 PH0000 21X]
RIN 1004-AE61
Forest Management Decision Protest Process and Timber Sale
Administration
AGENCY: Bureau of Land Management, Interior.
ACTION: Final rule.
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SUMMARY: Through this final rule, the Bureau of Land Management (BLM)
is amending its regulations governing protests of forest management
decisions and administration of the timber sale process. This final
rule will streamline the process for active forest management by the
BLM. The BLM has promulgated this final rule to address poorly defined,
repetitive, and burdensome regulatory requirements. This final rule
will improve the BLM's ability to conduct active forest management,
while reducing burdens to the public and the administration of BLM-
managed lands.
DATES: This final rule is effective on January 19, 2021.
Information Collection Requirements: If you wish to comment on the
information collection requirements in this final rule, please note
that the Office of Management and Budget (OMB) is required to make a
decision concerning the collection of information contained in this
final rule between 30 and 60 days after publication in the Federal
Register. Therefore, comments should be submitted to OMB by January 19,
2021.
ADDRESSES: Information Collection Requirements: Written comments and
recommendations for this information collection should be sent within
30 days of publication of this document to www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting
``Currently under 30-day Review--Open for Public Comments'' or by using
the search function. Please provide a copy of your comments to Darrin
King, Information Collection Clearance Officer, Attention PRA Office,
Bureau of Land Management, 440 W 200 S #500, Salt Lake City, UT 84101
or by email to BLM_HQ_PRA_Comments@blm.gov. Please reference OMB
Control Number 1004-0058 and RIN 1004-AE61 in the subject line of your
comments. Please note that due to COVID-19, electronic submission of
comments is recommended.
FOR FURTHER INFORMATION CONTACT: Marlo Draper, Division Chief of
Forest, Rangeland, and Vegetation Resources, HQ-220, 208-373-3812.
Persons who use a telecommunications device for the deaf (TDD) may call
the Federal Relay Service (FRS) at 1-800-877-8339, 24 hours a day,7
days a week, to leave a message or question with the above individuals.
You will receive a reply during normal business hours.
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion of the Changes to the Existing Forest Management Rule
and Changes From the Proposed Rule to Final Rule
III. Procedural Matters
I. Background
The BLM initiated this rulemaking on June 8, 2020, through
publication of a notice of proposed rulemaking in the Federal Register
seeking public comment for 60 days (85 FR 35049). The comment period
closed on August 7, 2020, and the BLM received a total of 2,760
comments. The BLM received comments from individuals, organizations,
business, county, state, and Federal entities or representatives. The
BLM has provided a summary of substantive comments and its response to
the comments in the discussion section of this final rule.
This final rule revises the BLM's regulations addressing its forest
management decision process, sales of forest products, preparation for
sale, award of contract, contract modifications, and non-sale disposal.
Pursuant to the Oregon and California Grant Lands Act (O&C Act) and
the Coos Bay Wagon Road Grant Lands Act (CBWR Act) (43 U.S.C. 2601 et
seq.), jointly referred to as the O&C Act, the BLM is required to
manage approximately 2.4 million acres of lands in Western Oregon for
forest production in conformity with the principle of sustained yield.
In accordance with the O&C Act, the BLM declares the allowable sale
quantity (ASQ) of timber for each sustained yield unit in its Resource
Management Plans (RMPs) for western Oregon and then offers for sale a
volume of timber equal to the declared ASQ on an annual basis. See
Swanson v. Bernhardt, No. 1:15-cv-01419 (D.D.C.) (September 30, 2019
Order). The O&C Act is a dominant use statute for sustained yield
timber production. Under the Materials Act of 1947 (30 U.S.C. 601 et
seq.); and other legal authorities, the BLM is authorized to convey
timber and other vegetative materials on other lands that the BLM
[[Page 82360]]
administers. The Federal Land Policy and Management Act (FLPMA) (43
U.S.C. 1701 et seq.) charges the BLM with managing public lands on the
basis of multiple use and sustained yield, unless otherwise specified
by law.
The regulations pertaining to the Administration of Forest
Management Decisions (43 CFR part 5000) were promulgated in 1984 (49 FR
28561 (July 13, 1984)), and 43 CFR part 5400 pertaining to the Sale of
Forest Products were promulgated beginning in 1970 (35 FR 9785, June
13, 1970). These regulations were adopted to implement the Materials
Act and the O&C Act. The BLM has amended these regulations since their
original promulgation to expedite implementation of decisions relating
to forest management, to improve agency procedures, and to update the
regulations for consistency with statutory changes.
In 1984, the BLM proposed to add a 15-day public-protest process to
certain forest management decisions, including advertised timber sales.
This measure was expected to ``expedite implementation of decisions
relating to timber management'' and ``increase the probability that
private businesses dependent upon the Bureau of Land Management's
timber management contracts would be able to accomplish their regularly
scheduled activities'' (49 FR 3884, Jan. 31, 1984). The BLM issued a
final rule adopting a 15-day protest period and establishing that
filing a notice of appeal with the Interior Board of Land Appeals under
43 CFR part 4 does not automatically suspend the effect of forest
management decisions that are posted and protested as described under
43 CFR 5003.2 and 5003.3 later that year. The BLM has not revised the
protest process since the final rule was issued in 1984, although the
way that the BLM plans forest management projects and completes the
environmental review of these projects has changed significantly since
that time.
When the forest management rules were promulgated in 1984, the BLM
designed individual timber sales that were based on the location and
extent of the forest management activity. Over time, the BLM has
changed the way it designs its timber sales and other forest management
projects and often conducts its environmental review on multiple
projects in a single watershed or on a biologically relevant scale,
such as wildlife habitat for a particular species. Moreover, the BLM
promotes collaboration and information-sharing during the National
Environmental Policy Act (NEPA) process and concurrent RMP process, and
today more interested individuals and parties participate in the public
involvement opportunities during the decision-making process when their
input is most helpful. While the protest process was originally
proposed to ``expedite implementation of decisions relating to timber
management,'' in some cases today individuals and organizations that
are not satisfied with the final forest management decision are using
the protest process to delay implementation by filing lengthy protests
with the same comments that were previously raised during the NEPA
process and with no explanation of how the BLM failed to address these
previously submitted comments. Responding to these protests can be
costly to the BLM in terms of time and other resources, and in many
cases may not improve the agency decision or reduce appeals and
litigation.
The final rule eliminates the current administrative protest
process after a forest management decision is issued. This change will
facilitate expeditious development and implementation of forest
management decisions while encouraging the BLM to consider relevant
information earlier in its decision-making process, including in
comments on any RMP or NEPA documents that the BLM circulates for
public review. Under the existing regulations, the BLM regularly issued
forest management decisions that could not be protested until the BLM
issued a notice of an advertised timber sale, which, in many cases,
occurred long after the completion of environmental review. The final
rule streamlines the procedures governing forest management decisions
by allowing a single forest management decision to cover all forest
management activities covered in an environmental review document. This
change allows the public to identify any resource conflicts or other
issues of concern earlier in the BLM's forest management process and
enhances the BLM's ability to resolve those issues before it advertises
a timber sale or implements other forest management activities. The
final rule also improves administrative efficiencies by allowing the
BLM to simultaneously address issues associated with multiple
individual sales and other forest management activities in a single
decision. In addition, many of the BLM's decisions are time sensitive
in nature, such as fire resilience thinning, thinning for insect and
disease resilience, or post-fire salvage sales. The changes will help
the BLM be more responsive to developing forest health issues and
identified wildfire risks. In western Oregon, the final rule will help
the BLM to more expeditiously offer timber sales on O&C lands in order
to achieve the declared ASQ in accordance with the O&C Act.
The final rule will facilitate the BLM's use of communications
technology by requiring the BLM to make decisions available online on a
designated agency website, in addition to other means of notification.
These changes will increase efficiency for both the public and the BLM.
Additionally, the final rule contains multiple updates and
revisions to part 5400 Sale of Forest Products. This rule amends the
regulations to conform to statutes prohibiting the export of
unprocessed Federal timber and makes changes that will allow the BLM to
be more innovative and more effectively administer scale sales. In
general, the final rule provides better clarity of the terms and
conditions the BLM may include in future sale contracts and gives the
BLM greater flexibility to conduct sales efficiently.
II. Discussion of the Final Rule and Comments on the Proposed Rule
Part 5000 Administration of Forest Management Decisions
While a protest process for forest management decisions is not
required by statute, the BLM's existing regulations at 43 CFR 5003.3
included a discretionary protest process available for certain
authorizations relating to forest management. This discretionary
protest process was largely duplicative of other opportunities for
public involvement, including through the NEPA process. In general, the
best opportunity to influence management of resources is during the
early stages of decision-making and not after the issuance of a
decision or the publication of a notice of decision. At least in some
instances, the protest process added time and expense to the decision-
making process, contrary to the express purpose of the 1984 rulemaking;
did not avert administrative appeals and judicial litigation as
evidenced by the numerous appeals and multiple lawsuits since 1984;
and, most importantly, cannot be shown to have produced better BLM
decisions and resource management outcomes than could have otherwise
occurred. For example, the BLM reviewed 1,560 timber sale decisions
from 2002 to 2017 that showed that 26 percent of the total volume those
sales represented was protested. The average time between advertisement
(also the beginning of the protest period) and award of those protested
sales was 251 days. In
[[Page 82361]]
addition, a significant number of timber sales are developed to reduce
the potential for high-severity wildfire. Prolonged decision-making
processes under the existing regulations delayed implementation of
critical wildfire mitigation treatments that often had the objective of
protecting human health and safety, and which may need to be
implemented during a narrow window to take advantage of favorable
weather. To address these issues, the BLM's final rule eliminates the
protest process. The final rule maintains the public's ability to
appeal those decisions to the Interior Board of Land Appeals (IBLA) or
challenge them in Federal court.
The final rule adds a definition of ``forest management activity,''
and specifies how the BLM must provide notice of forest management
decisions.
Section 5003.1 Effect of Decisions; General
The revision to 43 CFR 5003.1(a) clarifies that forest management
decisions issued under Sec. 5003.2 may, at the discretion of the
authorized officer, be implemented immediately or at a different date
specified in the decision. Under existing regulations, the BLM could
make decisions effective immediately after denial of protest in Sec.
5003.3(f). The revision also clarifies that forest management decisions
are not automatically stayed under 43 CFR 4.21(a) if notice of appeal
or a petition for a stay pending appeal is filed with the IBLA which is
the same as in the existing rule. The BLM did not make changes to Sec.
5003.1 between the proposed and final rule.
Comment: The BLM received comments suggesting that removal of the
administrative protest process, allowing the BLM to implement a forest
management decision immediately, and specifying that filing a notice of
appeal and a petition for a stay pending appeal under 43 CFR part 4
does not automatically suspend the effect of a forest management
decision, would not allow for an effective administrative review
process for decisions and may result in increased litigation in Federal
district court.
Response: The final rule eliminates the administrative protest
process because the BLM found it to be redundant considering that under
the existing rule the BLM allows for public comment on most proposed
forest management decisions during the NEPA and RMP process. The final
rule does not eliminate the public's opportunity to seek administrative
appeal to the IBLA, nor does it prevent the IBLA from issuing a stay
pending appeal where appropriate. Additionally, parties can continue to
challenge forest management decisions in Federal court.
In general, the best opportunity to influence management of
resources is during the early stages of public comment periods provided
during the NEPA process and prior to the formulation of a decision. The
final rule does not require the BLM to issue all forest management
decisions in full force and effect when forest management decisions are
issued. Instead, under the final rule the BLM authorized officer has
discretion to determine, on a case-by-case basis, whether to identify a
period of time before a decision can be implemented or whether the
decision can be implemented immediately, which may be appropriate when
authorizing critical wildfire mitigation treatments or help the BLM to
more expeditiously offer timber sales on O&C lands in order to achieve
the declared ASQ in accordance with the O&C Act. Moreover, under the
final rule, once the BLM issues a forest management decision, there are
typically additional processes that must occur before any actual on-
the-ground work begins, such as advertising and conducting a timber
sale auction and awarding a contract. The final rule does not change
the ability of the IBLA to issue a stay and does not change any IBLA
procedures. Changes to IBLA procedures to expedite cases are outside
the scope of this rulemaking.
The final rule revises Sec. 5003.2(a) to include a reference to a
new definition for a forest management activity in Sec. 5003.4 and
clarifies that the BLM authorizes certain forest management activities
by issuing forest management decisions. The BLM added text to Sec.
5003.2 to clarify that to be effective under Sec. 5003.1, the BLM must
publish notice of a forest management decision and post the decision on
the BLM's website.
The BLM received multiple comments that it does not have authority
under the existing regulations to issue forest management decisions in
full force and effect. The final rule clarifies the BLM's authority in
this regard. The comments also indicated the changes in the proposed
rule were not clear.
Under existing Sec. 5003.1(a), the BLM may make those forest
management decisions where the BLM provided a protest process effective
immediately upon issuance of the protest response. Filing an appeal
under 43 CFR part 4, including an appeal with a stay request does not
suspend the effectiveness of the decision under the existing
regulations. Currently the BLM determines on a case-by-case basis
whether to implement the decision immediately.
The final rule retains the BLM's ability in Sec. 5003.1(a) to make
certain decisions effective immediately. The BLM also retains the
discretion that currently exists whether to go full force and effect on
a case-by-case basis. Moreover, to ensure the public has adequate
notice that the BLM may use its full force and effect authority under
Sec. 5003.1, the BLM has made changes in the final rule to Sec.
5003.2(a) that require the BLM to post all forest management decisions
that it may make effective immediately to ensure the public has notice
of the activity. Only those decisions that are to be effective under
Sec. 5003.1 are required to be posted as described by Sec. 5003.2.
Section 5003.2 Notice of Forest Management Decisions
Revisions in the final rule to Sec. 5003.2(a) change the primary
medium of public notice from publication in a newspaper of general
circulation in the area where the lands affected by the decision are
located to posting the decision on a designated agency website. In
general, web-based communication is now more convenient and accessible
than print newspapers. In many areas, print newspapers have
transitioned to news websites, which makes the notice requirements in
the existing regulations impractical in areas that lack print
newspapers.
The final rule adopts those changes proposed to Sec. 5003.2(a),
which require the authorized officer to post forest management
decisions on an agency website and provide notice of a forest
management decision by publishing notice in a newspaper of general
circulation in the area, sending notice to interested parties directly,
or notifying the general public through various means, such as social
media, email, or other mass-media. This change is intended to further
facilitate notice reaching interested parties, including those who may
not have internet access. Section 5003.2(b) also clarifies that the
posting and publication of a forest management decision establishes the
official date of the decision and not the notice of an advertised
timber sale, as is the case under the existing regulations.
Section 5003.3 Reserved
The proposed rule proposed removing the public protest process in
existing Sec. 5003.3. The proposed rule, also indicated the BLM was
considering replacing the public protest process with a 10-day public
comment period, requesting comments on this potential change and other
opportunities to foster
[[Page 82362]]
public involvement in forest management decisions, such as through the
NEPA process. The BLM has elected not to include a 10-day public
comment process and is continuing with the elimination of the protest
process in the final rule. The protest process is duplicative of the
IBLA appeals process and most forest management decisions undergo a
NEPA scoping and comment process that allow the public to participate.
The original protest period was created administratively to expedite
the timber sale process. It has not met its intent as established. As
such, the BLM is removing this administratively-created provision to
improve the expediency of the process.
Comment: The BLM received comments claiming that eliminating the
protest process would violate section 309(e) of FLPMA, and that
eliminating the protest process is arbitrary and capricious under the
Administrative Procedure Act (5 U.S.C. 706(2)(A)) because the BLM
failed to adequately explain the reasons for this change.
Response: The commenters describe how the timber sale protest
process is an opportunity for public involvement and suggest that
removal of the protest process would be contrary to Section 309(e) of
FLPMA. The BLM disagrees.
Section 309(e) of FLPMA states that the Secretary, by regulation,
shall establish procedures, including public hearings where
appropriate, to give the Federal, State, and local governments and the
public adequate notice and an opportunity to comment upon the
formulation of standards and criteria for, and to participate in, the
preparation and execution of plans and programs for, and the management
of, the public lands.
This rule does not change this process. This section vests the
Secretary with broad discretion to identify appropriate public
participation procedures when promulgating rules relating to the
management of public lands. When exercising this authority, the
Secretary accounts for the degree to which public participation is
appropriate for the preparation and execution of specific BLM plans and
programs. Section 309(e) of FLPMA, however, does not require public
participation for every BLM implementation decision. Instead, it
authorizes the Secretary to identify, through regulation, the
appropriate public participation procedures, if any, that should apply
to each type of BLM plan, program, and implementation decision.
This final rule does not change in any way the ability for public
comment in the resource management process. BLM decisions to conduct
timber sales often have their beginnings in an RMP that sets the
general governance of the land-use over a specified area, in accordance
with the Federal Land Policy and Management Act of 1976 (FLPMA).
In developing a viable resource management plan, the BLM starts
first with a notice of intent, which begins a formal public scoping
period during which time the public may submit input on issues that
should be considered in the land management plan. At this time, the
public may submit their input on forest management, or any number of
issues that the resource management plan will address.
After the scoping process, the BLM next will issue a Draft RMP and
draft Environmental Impact Statement (EIS), which initiates a 90-day
public comment period. After all comments have been reviewed and
evaluated, the BLM then revises the draft RMP as necessary and
publishes a proposed RMP and final EIS. This publication initiates a
30-day protest period during which time the public may again protest
resource management decisions included in the RMP. Concurrently, the
BLM provides the proposed plan to the Governor's of those states
included in the RMP, at which time a 60-day Governor's Consistency
Review is initiated. The BLM may use this time to consider
inconsistences with state and local plans and has the discretion to
resolve them to the extent practical. After this period is up, the BLM
then may issue a Record of Decision which acts as a final management
direction, and may include any changes resulting from protests, the
Governor's Consistency Reviews, or other considerations.
From this RMP, the BLM then tiers subsequent decision making on
smaller parcels of the land from the RMP in order to conduct a timber
sale. For instance, the BLM Grants Pass Interagency Office issued a
Decision Record for hazardous fuels reduction maintenance treatments
for the Picket West Forest Management Project--which included in its
decision record citations to several resource management plans and
their associated NEPA documents, all of which included several of the
public comment opportunities outlined above. For this particular
project, these forest management projects, which included timber sales,
also tiered from a subsequent Environmental Assessment document, which
re-analyzed smaller portions of the same acreage included in the
relevant RMPs, and provided another public comment period (in this
case, 48 days).
This rulemaking does not adjust in any material way BLM's
regulations that establish procedures for preparation, revision, or
amendment of land use plans pursuant to FLPMA, and the important
opportunities for continued public comment contained therein. Instead,
this rule removes an administratively burdensome process that has been
found to not meet its original intent to expedite timber management
decisions.
Individual forest management decisions are generally localized
projects that concern local impacts and the advisability of uses for
particular parcels of land; they tend not to be major management
decisions that involve sweeping policy decisions affecting vast tracts
of land.
Moreover, the existing Forest Management regulations provide an
opportunity to protest some, but not all, forest management decisions.
For forest management decisions that are not subject to protest, it has
long been the BLM's practice to provide for public participation
through a combination of land use planning, project-specific NEPA
documents, opportunities for administrative appeal to the IBLA, and
other public involvement opportunities. The final rule continues this
approach. In addition to public participation opportunities during the
planning process, most individual forest management projects would
still have opportunities for public participation during the project-
specific NEPA process, which may include scoping, public meetings, an
opportunity for comment on draft analysis, and other opportunities that
the BLM may provide.
Additionally, for those BLM lands in western Oregon managed under
the O&C Act, the BLM develops annual timber sale plans that generally
indicate the various tracts of timber that will be offered for sale. In
the case of the lands that fall under the specific management of the
O&C Act, the underlying RMPs for those areas must be guided by the
statutory mandate under the O&C Act which states that: ``[t]he annual
productive capacity for [O&C] lands shall be determined and declared .
. . [and] timber from said lands in an amount not less than one-half
billion feet board measure, or not less than the annual sustained yield
capacity when the same has been determined and declared, shall be sold
annually, or so much thereof as can be sold at reasonable prices on a
normal market.'' [43 U.S.C. 2601]. This textual direction has been
determined by the courts to ``[convey] a clear requirement.'' Swanson
Group Mfg, LLC v. Salazar,
[[Page 82363]]
951.F. Supp.2d 75, 81 (D.D.C. 2013), vacated on other grounds Swanson
Group Mfg., LLC v. Jewell, 790 F.3d 235 (D.C. Cir. 2015). These plans
are typically posted on the BLM's website and suggestions from
prospective purchasers may be received to assist in the development of
the plan. See 43 CFR 5410.0-6.
Finally, the final rule preserves the public's ability to appeal
forest management decisions to the IBLA.
Comment: The BLM received comments suggesting the protest process
delays BLM timber sales on O&C lands which contributes to the BLM not
meeting its obligations under the O&C Act, and therefore the process
should be eliminated.
Response: The BLM acknowledges that the protest process is one of
many factors that affect workloads and BLM's capacity to fulfill its
obligations under the O&C Act in western Oregon. As discussed above,
eliminating the process will help the BLM achieve the declared ASQ in
accordance with the O&C Act with more certainty.
Comment: The BLM received comments that support eliminating the
protest process and not replacing it with a comment period. Commenters
pointed out that the public already has multiple opportunities to
provide input on the management of BLM-managed public lands during the
Land Use Planning process and its associated NEPA process and the
public would still have an opportunity to challenge BLM forest
management decisions through available IBLA and judicial review if the
protest process is eliminated. These commenters also noted that it
would allow the BLM to more efficiently implement RMPs, prevent delay
of certain forest thinning projects to reduce fire hazard, reduce
delays of county payments derived from timber sale revenues; remove a
duplicative process, and improve certainty to the forest products
sector and local economy by reducing long delays. Some commenters
stated the protest process was being abused to cause multi-year delays
of projects that clearly conformed to activities described in RMPs and
met the requirements of the O&C Act.
Response: The BLM citied similar justification for this rule and
considers these comments as supportive of changes in the final rule to
eliminate the protest process. As the BLM has explained, eliminating
the protest process will help reduce delays on all BLM lands in the
implementation of forest resilience treatments to mitigate the effects
of wildfire, insect, disease, and drought and help fulfill BLM's
statutory obligations for sustained yield timber harvest under the O&C
Act on BLM's O&C lands in western Oregon. The impacts of the existing
protest process on the BLM's implementation of forest management is
well known. The 2020 Interior Appropriations committee report provided
the following direction:
the Committee continues to be troubled by the disparity in timber
targets compared with timber awarded and harvested on some
districts. The Bureau is once again directed to prioritize response
to administrative protests on timber sales in a timely manner and to
report timber sale accomplishments in volume of timber sold and
awarded, rather than merely the volume offered for sale, and shall
report to the Committee on its progress.
The BLM has prioritized responding to protests but responding to
lengthy protests that are often similar to comments received during the
NEPA process, comments unrelated to the project at issue, or are
arguments against implementation, are still causing delays. The BLM has
concluded that eliminating the protest process would help address the
Committee's concerns.
Comment: The BLM received comments that claim only IBLA can
establish when a decision becomes effective and what the effects of a
stay petition involve.
Response: The BLM disagrees. 43 CFR 4.21, which governs the
effective date of decisions subject to appeal, explicitly provides that
another ``pertinent regulation'' may provide otherwise. This final rule
is such a regulation. Indeed, the existing regulations allowed the BLM
to implement a forest management decision immediately after resolving
applicable protests, without waiting an additional 30 days as required
for other kinds of BLM decisions under 43 CFR part 4. The existing
regulations further provided that the filing of a notice of appeal to
the IBLA did not automatically suspend the effect of a forest
management decision. The final rule maintains the BLM's ability to
issue forest management decisions in full force and effect while
clarifying that the effect of any such decision would be suspended if
the IBLA or a court issues a stay or other applicable injunctive
relief, which is the current practice.
Comment: Some comments requested the BLM include changes to adopt a
public review process similar to the U.S. Forest Service pre-decisional
objection process.
Response: The proposed rule discussed how the BLM considered
requiring a public comment period on a proposed decision for proposed
forest management decisions, which is similar to the U.S. Forest
Service objection process. The BLM has determined, however, that public
participation can otherwise be integrated into the BLM's decision-
making process, including into the project-specific NEPA process for
most forest management decisions, and that an additional comment period
would be redundant and unlikely to raise new issues or lead to
different outcomes.
Comment: One commenter suggested that if the BLM replaces the
existing protest process with a comment process, then the comment
process should be for 15 days instead of 10 days, so it is the same
duration as the existing protest process. Other commenters supported
removing the protest process and opposed replacing that process with a
10-day public comment period because the comment process would be
redundant of the NEPA comment period.
Response: In the final rule, the BLM has elected to eliminate the
protest process without requiring a comment period as discussed in the
proposed rule. As explained, this change does not diminish the BLM's
obligations to comply with NEPA, including the need to provide
opportunities for public involvement through the NEPA process, nor does
this change the BLM's discretion to offer other opportunities for
public involvement on a case-by-case basis. These changes allow the
Authorized Officer, who is most familiar with the local circumstances
surrounding each decision, to determine if offering additional public
participation opportunities would be beneficial for a particular
project. The BLM expects a significant proportion of forest management
decisions will be supported by an EA with public review and comment.
The BLM also agrees that in instances where the public has an
opportunity to comment on a proposed forest management action through
the NEPA process, a separate public comment period would generally be
redundant and has determined not to include a 10-day public comment
period in the final rule.
Comment: The BLM received comments that the protest process and
IBLA appeals process are often duplicative, addressing objections and
issues already considered during NEPA review. The comments supported
eliminating the protest process and maintaining an appeal to IBLA for
forest management decisions.
Response: The BLM agrees with these commenters that the purpose of
a post-decision review process is to provide an opportunity for the
affected and interested parties to request review when a decision
allegedly violates law, regulation, or policy, and that both the
protest process under the existing
[[Page 82364]]
regulations and the IBLA appeal process provide this opportunity. The
BLM also agrees that over time these processes have become duplicative,
and that the BLM receives protests that identify issues that the BLM
has already addressed during the NEPA process for the decision. The BLM
has also found that protests generally result only in minimal changes
to a small number of the total decisions that are protested. As such,
the final rule amends section 5003.3 to remove the existing protest
process.
Section 5003.4 Definitions: General
The existing regulations address forest management decisions for
forest management activities, but they do not define a forest
management activity. Section 5003.4 of the proposed rule included a
definition of forest management activity. The final rule adopts the
definition in the proposed rule. This change clarifies the type of
activities that will fall under the scope of this section of the
regulations. The definition emphasizes that a forest management
activity has a silvicultural or forest-protection objective. These
activities result in changes to forest or forest adjacent vegetation
that have an explicit forest output or ecological condition as the
outcome of the activity and may include other activities that
facilitate or complement the forest management activity. Examples of
forest management activities may include: Cutting of trees and
vegetation; harvesting; tree planting; seedling protection; vegetation
type conversions; fuels reduction; fire pre-suppression; and road
construction and maintenance, when these activities are intended to
provide, for example, a commercial forest product, improve tree and
forest heath, reduce fire risk, increase forest resiliency to
environmental stressors, or address insect or disease infestations. A
forest management activity would not include, for example, clearing
trees for the construction of a power line in a right of way.
Comment: The BLM received a comment that the definition of Forest
Management Activity should add the terms fuel reduction, non-commercial
thinning, prescribed burning, vegetation reduction, and wildfire hazard
reduction.
Response: The BLM did not make any changes in the final rule to
address this comment because it believes the terms silviculture and
forest protection in the rule encompass these described activities. The
BLM considered providing an exhaustive list of terms in the regulations
that silviculture and forest protection encompass, but determined it
unnecessary since these terms are already defined in the professional
Dictionary of Forestry published by the Society of American Foresters,
and scientific literature and are well understood.
Section 5003.5 Severability
This new section would describe the legal principle of
``severability'' and apply it to the regulations in Group 5000. Under
severability, if any portion of these regulations were found invalid or
unenforceable as to a particular set of circumstances or particular
people, the remaining portions of the regulations would remain valid
and BLM could enforce them separately and legitimately. This principle
has always applied to the regulations but is stated here for
information and clarity.
Other Comments Related to Part 5000
The BLM received other comments related to aspects of the rule text
in prior sections but which are more general and address the BLM's or
the DOI's administrative processes, NEPA, other statutes, and other
issues related to forest management. Those comments are addressed
below.
Comment: The BLM received a comment that participation in the
protest process is the only way to be a party for the purposes of an
appeal to IBLA and removing the process from the regulations will
eliminate a party's ability to appeal a forest management decision.
Response: It is not the intent of these changes to eliminate the
ability to appeal forest management decisions to the IBLA. Separate
regulations governing IBLA appeals, which are not amended by this final
rule, provide that ``any party to a case who is adversely affected by a
decision of the Bureau'' may appeal to the IBLA (see 43 CFR 4.410(a)).
This includes any party ``that is the subject of the decision on
appeal, is the object of that decision, or has otherwise participated
in the process leading to the decision under appeal,'' (43 CFR
4.410(b)), including by commenting on an environmental document. As
discussed, in most cases a party would still have the opportunity to
comment about a proposed forest management decision during the NEPA
process, which is unaffected by the final rule.
Comment: The BLM received a comment asking whether the commenter
must file an appeal to IBLA challenging the promulgation of this rule
to exhaust administrative remedies before challenging this rule in
Federal district court.
Response: This rulemaking is not appealable to the IBLA.
Comment: The BLM received a comment that the BLM failed to conduct
adequate NEPA analysis on the environmental effects of the proposed
rule.
Response: The BLM's adoption of the final rule complies with NEPA.
The BLM does not believe this rule constitutes a major Federal action
significantly affecting the quality of the human environment, and has
prepared documentation to this effect, explaining that a detailed
statement under the National Environmental Policy Act (NEPA) is not
required because the rule is categorically excluded from NEPA review.
Specifically, the BLM relied on 43 CFR 46.210(i), which provides for
use of a Categorical Exclusion for policies, directives, regulations,
and guidelines that are of an administrative, financial, legal,
technical, or procedural nature; or whose environmental effects are too
broad, speculative, or conjectural to lend themselves to meaningful
analysis and will later be subject to the NEPA process, either
collectively or case-by-case. The final rule changes the BLM's
administrative procedures for forest management activities as well as
some of the procedures to administer a timber sale. The rule does not
authorize any on-the-ground actions or constrain the BLM's ability to
exercise its substantive discretion when making future forest
management decisions. Future forest management decisions will be
subject to the NEPA process, as appropriate. The BLM has also
determined that the rule does not involve any of the extraordinary
circumstances listed in 43 CFR 46.215 that would require further
analysis under NEPA. Documentation of the reliance upon a categorical
exclusion has been prepared with other supporting documents for this
final rule.
Comment: The BLM received comments suggesting that the existing
protest process ensures the BLM uses best available science in decision
making.
Response: The protest process in the existing regulations is an
administrative review process and does not address the use of science
in the decision-making process. The final rule does not change the
existing obligations under law, regulation or policy that address the
use of science, including the BLM's obligations under the Information
Quality Act, section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554, H.R. 5658),
and
[[Page 82365]]
implementing guidelines of OMB,\1\ DOI,\2\ and the BLM \3\ for ''
ensuring and maximizing the quality, objectivity, utility, and
integrity of information (including statistical information)
disseminated by Federal agencies'' and direction in Secretary's Order
3369 Promoting Open Science.\4\ The BLM will also continue to adhere to
NEPA requirements for using ``high quality'' information and
``[a]ccurate scientific analysis'' (40 CFR 1500.1(b)), and for ensuring
the ``professional integrity including scientific integrity of the
discussions and analysis in [EISs]'' (40 CFR 1502.24).
---------------------------------------------------------------------------
\1\ Office of Management and Budget, ``OMB Guidelines for
Ensuring and Maximizing the Quality, Objectivity, Utility, and
Integrity of Information Disseminated by Federal Agencies;
Republication,'' (67 FR 8452, February 22, 2002).
\2\ U.S. Department of the Interior, ``Information Quality
Guidelines Pursuant To Section 515 Of The Treasury And General
Government Appropriations Act For Fiscal Year 2001,' https://www.doi.gov/sites/doi.gov/files/migrated/ocio/information_management/upload/515Guides.pdf.
\3\ Bureau of Land Management, ``Information Quality
Guidelines--Guidelines for Ensuring and Maximizing the Quality,
Objectivity, Utility, and Integrity of Information Disseminated by
the Bureau of Land Management,'' (April 2, 2018) https://www.blm.gov/documents/national-office/public-room/guidebook/blm-information-quality-guidelines.
\4\ Secretarial Order 3369 A1 ``Promoting Open Science'' https://www.doi.gov/sites/doi.gov/files/elips/documents/so_3369a1_-_promoting_open_science.pdf.
---------------------------------------------------------------------------
Comment: The BLM received comments that the proposed rule affects
the NEPA process and the ability of the BLM to conduct environmental
analysis on forest management activities.
Response: The changes amend the administrative processes in the
BLM's forest management regulations and do not change the laws,
regulations or policies applicable to the BLM's NEPA compliance for
forest management decisions. Over time, since the existing rule was
promulgated, the BLM has changed the way it designs its timber sales
and other forest management decisions and now often conducts
environmental review on multiple projects in a single watershed or on a
biologically relevant scale, such as wildlife habitat for a particular
species. Additionally, the BLM promotes collaboration and information-
sharing during the NEPA process, and today more interested individuals
and parties participate in the public opportunities during the
decision-making process when their input is most helpful. The
amendments update the administrative process in the forestry management
regulations to reflect these changes in forest management projects, but
they do not authorize any forest management activities or change the
BLM's NEPA obligations for future activities.
Comment: The BLM received comments related to the consolidation of
sale decisions stating that this does not allow an opportunity for site
specific comment.
Response: The final rule does not change how the BLM complies with
NEPA for forest management activities. The BLM conducts site specific
NEPA on timber sales and the final rule does not change the BLM's
obligations to comply with NEPA for these and other forest management
activities. Currently, multiple sales are often related in terms of
geography, e.g., watershed or on a biologically relevant scale, such as
wildlife habitat for a particular species, and the BLM evaluates these
sales in one environmental document, which in many cases can lead to
better informed decision-making. While the final rule removes the
protest process for individual sales in 5003.3, the final rule does not
change the public's ability to comment on or otherwise be involved in
these sales during the NEPA process.
Comment: The BLM received comments that suggested the proposed rule
would affect resources such as water quality, wildlife habitat, carbon
storage, potential wildfire behavior, older trees, and other resources
due to an increase in logging.
Response: The final rule addresses the BLM's administrative
procedures for forest management decisions. It does not authorize any
on-the-ground actions or constrain the BLM's substantive decision-
making discretion with respect to harvest methods or the amount of
timber harvest that will occur on public lands. Decisions on harvest
levels, methods and prescriptions, and areas open to or reserved from
harvest, are generally made through land use planning decisions
consistent with the BLM's planning process provided in its planning
regulations at 43 CFR part 1600, subpart 1610. These planning and
forest resource decisions are made through a separate decision-making
process and must comply with NEPA as appropriate.
Part 5400 Sales of Forest Products; General
Section 5400.0-3 Authority
Section 5400.0-3 contains the authority for part 5400. Section
5400.0-3(a) updates the O&C Act citation due to renumbering that took
place in the U.S. Code. Section 5400.0-3(c) references a law related to
the prohibition of exporting unprocessed timber from Federal lands that
was superseded by 16 U.S.C. 620. The final rule contains these updated
references to the BLM's current statutory requirements. The BLM did not
receive any substantive comments on this section and did not make
changes to this section between the proposed and final rule.
Section 5400.0-5 Definitions
Section 5400.0-5 contains the definitions for part 5400. The final
rule adds new definitions for ``lump sum sale'' and ``scale sale,''
which are used, but not defined, in the existing regulations. These two
sale types are the only sale types the BLM uses. These definitions will
ensure a common understanding of the key difference between these sale
types, which relates to how the volume of the forest product is
determined. The BLM did not make changes to this section between the
proposed and final rules. The BLM did not receive substantive comments
related to the change.
In the final rule, the Fair Market Value definition is updated by
deleting the second sentence referencing a BLM Manual that is no longer
effective. This change will have no effect because appraisal guidance
was updated in 1996 to address this change. Changes in Sec. 5400.0-5
add the terms ``export'' and ``sourcing area'' to provide a basis for
determining a violation of the export prohibition. The substitution
definition is also changed to update the time period from 12 months to
24 months to conform to 16 U.S.C. 620, and a reference to a
substitution exception for rights-of-way that is not included in the
statute is deleted in the final rule. The BLM did not make changes to
this section between the proposed and final rule.
Comment: The BLM received a comment on the definition of Fair
Market Value suggesting that the definition should define the extent as
well as methods for determining the fair market value.
Response: The definition for Fair Market Value reflects BLM's
obligation to sell forest products to the highest bidder after
advertisement (30 U.S.C. 601) with limited exception for small
quantities (30 U.S.C. 602). It is generally accepted in commodity
markets that the true value is determined through open competitive
bidding. This is reflected in the changes and no additional changes are
necessary.
Changes to Sec. 5402.0-6(d) delete an exception to substitution
restrictions that is not provided by the Forest Resources Conservation
and Shortage Relief Act of 1990 (16 U.S.C. 620) as amended. This
exception was established in the BLM's regulations
[[Page 82366]]
prior to the passage of the statute. The BLM did not make changes to
this section between the proposed and final rules. The BLM did not
receive substantive comments related to the change.
Section 5402.0-6 Policy
The final rule amends Sec. 5402.0-6(e) to clarify how special
forest product prices will be determined. The BLM sells permits to the
public for special forest products, which include fuelwood, Christmas
trees, edibles, pine nuts, cones, seedlings, and other forest products
other than sawtimber. BLM State Offices generally publish a price list
based on estimated values within a State. The existing Sec. 5420.0-6
requires that all vegetative resources be appraised and in no case sold
at less than appraised value. BLM offices are concerned that selling
products at the published price for the State is not consistent with
subpart 5420, because the value of products across a State can vary.
The addition of Sec. 5402.0-6(e) in the final rule clarifies that
vegetative products can be sold by permit without appraisal after
payment of adequate compensation, which is the standard in the
authorizing statute. This means that price lists developed by the BLM
for special forest product permits can be used, and that individual
appraisals for each permit will not be required. The BLM did not
receive substantive comments related to the change. The BLM did not
make changes to this section between the proposed and final rule.
Part 5420--Preparation for Sale
Section 5420.0-6 Policy
The existing Sec. 5420.0-6 requires appraisal of all timber and
vegetative resources that are sold, and in no case sold for less than
the appraised value. The final rule adds an exemption from appraisal
for special forest products in Sec. 5402.0-6(e) as described in the
previous section. The final rule removes the phrase ``prohibiting the
sale of products at less than appraised value'' to allow the BLM to
award timber sale contracts or vegetative material permits if bids come
in below the appraised value. The Materials Act of 1947 (30 U.S.C. 601)
requires the BLM to advertise timber sales and to award sales to the
highest bidder. The BLM is not required by law to sell timber at or
above the appraised value. Producing highly accurate appraisals is
costly due to factors such as acquiring log price data, labor costs,
and equipment costs, including fuel, maintenance, and depreciation.
This has two potentially negative consequences. First, the BLM could
incur a high cost to produce an appraisal, which is particularly
counterproductive for lower value products. Second, an appraisal could
over-price a sale and result in no bids. No-bid sales result in
increased costs associated with reappraising and reoffering a sale and
are particularly costly for salvage sales where the timber quality
rapidly deteriorates. The changes to this section are intended to
continue the practice of appraising timber as a guide to determining a
reasonable price, but also to allow the BLM to sell products to the
highest bidder at a price below the appraised price if the authorized
officer receives a reasonable bid. This provision recognizes that an
appraisal is an estimate of the market price, but that competitive
bidding through an auction or a sealed bid is generally superior at
identifying the true market price. The BLM anticipates these changes
will decrease costs, increase efficiency and result a reduction in no
bid sales. The BLM did not make changes to this section between the
proposed and final rules.
Comment: The BLM received comments indicating that the removal of
the prohibition on selling a product at less than appraised value (43
CFR part 5420) would lead to the public not receiving fair compensation
for the use of public resources. The BLM also received comments in
support of the changes to use the competitive bidding process to
determine the sale price regardless of the appraisal in order to avoid
no-bid sales.
Response: Accurately appraising forest products can be technically
challenging and costly. The BLM has had many instances where forest
product sales receive no bids because of inaccurate appraisals or the
inability to forecast market changes and the expense of contract
requirements. For example, in 2018 there was a significant and rapid
change in market conditions that led to over 25 percent of western
Oregon timber sales receiving no-bid. Even with the best data and
professional appraisers, appraisals have limitations in determining the
market value and expenses because appraisals are based on retrospective
analysis and markets and expenses can change rapidly. In addition, the
BLM's current sale process does not allow for price adjustments once
the sale is advertised which is a minimum of two weeks before receiving
bids. The final rule will allow the BLM to avoid having to delay sales
and incur additional administrative costs of reappraising and
reoffering sales if no bids are received by allowing the Authorized
Officer the discretion to select a high bid that is below the appraised
value when it is determined that the appraisal overestimated the market
price. This discretion is particularly important for salvage timber
where appraisal accuracy is even more difficult and the effect of a
delay due to a sale going no-bid could result in the need to abandon
the sale due to wood deterioration.
Part 5400--Sales of Forest Products; General
Section 5422.1 Lump-Sum Sales
This final rule changes the title of Sec. 5422.1 from ``Cruise
Sales'' to ``Lump-Sum Sales.'' This section is also revised to say that
a lump-sum sale is most often estimated using a tree cruise method. The
BLM does not use the term ``cruise sale,'' though it is generally
understood to mean lump sum. This revision is intended to clarify that
both sale types are acceptable and may be used by an authorized
officer. The BLM did not make changes to this section between the
proposed and final rule. The BLM did not receive substantive comments
related to the change.
Section 5422.2 Scale Sales
Changes to Sec. 5422.2 revise some of the rules for the use of
scale sales and reorganize the section for clarity. The existing
regulations limit the use of scale sales to events such as timber
disasters or imminent resource loss. Currently other circumstances in
which its use is permitted are ambiguous. Implementation of this
section in the existing rule has generally discouraged scale sales,
despite the fact that it is a standard practice in the logging industry
and its use is common among other sellers of timber, such as State
governments and the U.S. Forest Service. The final rule removes the
existing limitations and permits the use of scale sales at the
discretion of the authorized officer. In the final rule the term
``scale sales'' includes the use of weight scales, including third
party weight scales that are certified by a State government for timber
sold on a per-ton basis. Section 5422.2 in the existing rule does not
mention weight scales, which can lead to the incorrect conclusion that
the term scale sale in the existing rule is only referring to log
scaling using a log rule. The BLM did not make changes to this section
between the proposed and final rule. The BLM did not receive
substantive comments related to the change.
[[Page 82367]]
Section 5424.0-6 Policy
A minor change in Sec. 5424.0-6(d) corrects a typographical error
by replacing the word ``from'' with ``form''.
Section 5424.1 Reporting Provisions for Substitution Determination
Section 5424.1 relates to the enforcement of the export
prohibition. Timber export laws are designed to not only prohibit the
timber cut from Federal land from being exported, but also to prohibit
Federal timber from being used as a substitute for other timber the
purchaser owns and exports. The final rule updates the time period for
tracking and reporting the export of private timber for a purchaser or
an affiliate of a purchaser of Federal timber from 1 year to 2 years.
This revision is intended to bring the rule into conformance with the
Forest Resources Conservation and Shortage Relief Act of 1990, as
amended. The BLM did not receive substantive comments related to these
changes and did not make changes to this section between the proposed
and final rules.
Part 5430--Advertisement
Subpart 5430--Advertisement; General
Section 5430.0-6 Policy
Section 5430.0-6 of the final rule gives the BLM the option to
advertise competitive timber sales on an agency website. The BLM did
not make changes to this section between the proposed and final rules.
The BLM did not receive substantive comments related to these changes.
Part 5440--Conduct of Sales
Section 5441.1 Qualification of Bidders
Section 5441.1 of the final rule establishes the qualifications for
bidders on BLM timber sales. Revisions to this section pertain to the
debarment regulations at 2 CFR part 180. Under proposed Sec.
5441.1(c), an individual or entity could be disqualified as a bidder on
a BLM timber sale if that individual or entity is debarred in the
Federal Government-wide debarment list. In accordance with 2 CFR part
180, there is a process for petitioning for an exception from debarment
which is noted in the proposed Sec. 5441.1(c)(1). The revision to this
section brings it into conformance with 2 CFR part 180. The BLM did not
make changes to this section between the proposed and final rules. The
BLM did not receive substantive comments related to these changes and
did not make changes to this section between the proposed and final
rules.
Section 5441.1-1 Bid Deposits
Section 5441.1-1 sets forth the requirements for a bid deposit that
must accompany a bid on a timber sale. The final rule allows the BLM to
refund up to half of the bid deposit if the award of the sale is
delayed for more than 90 days. This change is to address current
instances in which a sale is conducted, a high bidder is announced, and
then before award of the contract, circumstances, such as a court
injunction, delay the award of the timber sale contract. Given that bid
deposits are 10 percent of the appraised value, a deposit can be
substantial. The BLM recognizes that delays in the award of timber sale
contracts is a burden for purchasers; thus, this revision helps reduce
that burden. The BLM did not receive substantive comments related to
these changes and did not make changes to this section between the
proposed and final rules.
Section 5441.1-2 Special Considerations
Section 5441.1-2 refers to a Small Business Administration road
construction loan program that no longer exists. This section is
deleted because it is obsolete. The BLM did not receive substantive
comments related to these changes and did not make changes to this
section between the proposed and final rules.
Part 5450--Award of Contract
Section 5451.1 Minimum Performance Bond Requirements; Types
Section 5451.1 pertains to performance bonds for timber sale
contracts, which function to protect the government's interest in
Federal lands and resources by helping to ensure the fulfillment of a
purchaser's contract obligations and the BLM's resource objectives.
Performance bonds may be held by the BLM when a purchaser is not in
compliance with contract terms and conditions. The bond can be
forfeited to the BLM to cover costs of remedying unfinished contract
obligations. Currently, a performance bond is required for all
contracts for the sale of products greater than or equal to $2,500, and
for installment contracts of less than $2,500. For cash sales of less
than $2,500, bond requirements are at the discretion of the authorized
officer. The final rule requires a performance bond for all contracts
for the sale of products greater than or equal to $10,000, and impose a
minimum performance bond of not less than $500 or 20 percent of the
contract price, whichever is greater, for all installment contracts of
less than $10,000. For all cash sales less than $10,000, bond
requirements will be at the discretion of the authorized officer. Under
the final rule, the BLM retains discretion to require performance bonds
within the specific limits established in the regulations and
determines the amount of bond required on a case-by-case basis after
site-specific analysis. These changes account for estimated inflation,
since the existing rule was established in 1970 when the amount of
material covered by the bond was four to five times the amount of
material covered at current prices. For example, three to five
truckloads of timber might have been sold for $2,500 in 1970, whereas,
at current dollar valuation, a single truckload of the same quality
timber might exceed the threshold for the bonding requirement. This
change adjusts the BLM's risk exposure to a level that is similar to
when the bond threshold in the existing regulations was originally
published. The BLM did not receive substantive comments related to
these changes and did not make changes to this section between the
proposed and final rules.
Part 5460--Sales Administration
Section 5461.3 Total Payment
The BLM changed the term ``cruise sale'' to ``lump sum sale''
consistent with other changes in the rule. The BLM did not receive
substantive comments related to these changes and did not make changes
to this section between the proposed and final rules.
Section 5463.1 Time for Cutting and Removal
The BLM changed the maximum time for cutting and removal to 48
months in the final rule.
Comment: The BLM received comments requesting additional time for
cutting and removal stating that the current maximum of 36 months (43
CFR 5463.1) is not adequate to complete sales with limited operating
seasons and an increasing number of project design features that are
required in BLM timber sale contracts.
Response: In response to comments on the proposed rule recommending
that the BLM consider opportunities to provide greater flexibility in
the amount of time to complete cutting and removal, the BLM's final
rule revises Sec. 5463.1 to increase the maximum amount of time
allowed for cutting and removal of timber in BLM timber sale contracts.
In the existing rule, the maximum time for the cutting and removal of
timber is 36 months and in the final rule this period is increased to
up to 48 months. Although the BLM did not specifically
[[Page 82368]]
propose this change in the proposed rule, the BLM raised the issue of
contract performance timing in its proposed rule and specifically
proposed changes in Sec. 5473.3 to identify additional circumstances
in which the BLM could extend the period of performance in BLM
contracts. The BLM received no comments opposed to this specific
proposed change, with all comments addressing this section expressing
support. Commenters recommended that the BLM further address this issue
by providing greater flexibility for the BLM to issue contracts with a
longer performance term at the outset. These comments stated that the
existing maximum of 36 months in Sec. 5463.1 is no longer adequate to
complete sales with limited operating seasons and an increasing number
of project design features intended to limit environmental impacts.
The BLM's review of comments it received on the proposed rule to
address the period of performance issue, coupled with a second look
from the BLM at the causes of increased need for contract extensions,
led the BLM to make this change in the final rule. The BLM recognizes
that the 36-month maximum contract term is no longer enough time to
perform the terms of some contracts due to changed conditions since the
existing rule was finalized, including an increasing number of
contracts with additional restrictions to limit environmental impacts,
seasonal restrictions, events such as weather, fire closure and other
related conditions that interrupt operating time. Changed conditions
was the basis for proposing changes to allow additional contract
extensions, and this change has the same effect as the changes to Sec.
5463.1.
Part 5470--Contract Modification--Extension--Assignment
Section 5473.4 Approval of Request
The final rule also changed Sec. 5473.4 to allow the authorized
officer to grant a purchaser's request to extend the amount of
operating time on a timber sale contract without reappraisal in certain
circumstances. The revision to Sec. 5473.4(c) adds unusual weather
conditions and national, state, or local government emergency
declaration such as a pandemic or natural disaster to the list of
reasons the BLM may grant a request for a contract extension. It is the
BLM's experience that some pause in operations occurs due to normal
weather, such as a halt in log hauling during heavy rain events or a
shutdown of yarding due to wet soils during spring melt, which would
not amount to unusual weather conditions. Unusual weather conditions
could be record drought leading to prolonged fire hazard or record
rainfall leading to prolonged wet soil conditions. Although allowing
contract extension for national, state, or local emergency declarations
was not specifically proposed, the BLM did receive a request from the
timber industry to grant blanket contracts extensions to BLM contracts
due to operational disruptions as the result of Federal state and local
restrictions responding to the COVID-19 pandemic. The BLM received
multiple individual requests for extensions for these reasons during
the public comment period for the proposed rule and has decided to
include this additional circumstance as one where the BLM may grant
contract extensions. Neither of these changes to Sec. 5473.4 allow the
BLM to grant blanket extensions for all BLM contracts. The BLM will
continue to evaluate extension requests on a case-by-case basis.
Section 5473.4(d) also contains criteria for contract extension
related to fire and other natural and man-made disasters. The purpose
of this extension is to allow the BLM to extend contracts when a
disaster results in significant salvage timber that needs to be
harvested elsewhere. Timber impacted by a disaster often deteriorates
rapidly and attracts insects and pathogens, and it is prudent that
those sales be prioritized over sales that harvest live timber. The
final revisions to this section expand the BLM's existing authority and
allow the BLM to extend BLM timber contracts in response to disasters
on both Federal and non-Federal lands. The revision also puts a 36-
month limit on the amount of time that a contract can be extended,
which is not in the existing regulations. The BLM recognizes that
disasters can pose a serious hardship on local communities. The changes
allow the BLM to extend the contract terms and provide additional time
for a purchaser to harvest green timber in areas not impacted by the
disaster, which could benefit businesses and land owners by allowing
them to focus their resources on areas impacted by the disaster,
including salvage removal.
Part 5500--Nonsale Disposals; General
Section 5500.0-5 Definitions
Section 5500.0-5(e) revises the definition of public lands to make
it consistent with the definition in FLPMA at 43 U.S.C. 1702(e), and to
clarify that for this part of the regulations, O&C grant lands are
considered public lands. Moreover, this section clarifies that there
are conditions for the free use of vegetative and mineral materials on
O&C grant lands. The BLM did not make changes to this section between
the proposed and final rules. The BLM did not receive substantive
comments related to these changes.
Miscellaneous
Technical Note: The BLM is changing the authority sections to
reflect that the O&C Act, which was previously codified at Title 43,
Chapter 28, Subchapter V, (43 U.S.C. 1181a-j), was transferred to Title
43, Chapter 44, (43 U.S.C. 2601-2634) on July 1, 2017. In the final
rule the BLM also removes the Statute at Large citations that have
already been codified.
Table 1--Abbreviated Descriptions of The Major Changes Made to 43 CFR
Parts 5000, 5400, and 5500 by This Rule
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Subchapter E--Forest Management
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Change between Changes between
43 CFR reference and proposed rule and final rule and
description existing regulation proposed rule
------------------------------------------------------------------------
Part 5000 Adminstration of Forest Management Decisions
------------------------------------------------------------------------
5003.1 Effect of Decisions.. Clarifies that no changes.
decisions may be
effective
immediately when
issued rather than
after a protest
process.
[[Page 82369]]
5003.2 Notice of forest Provides that the In addition to
management decisions. BLM authorizes changes in the
forest management proposed rule, the
activities by BLM added text to
issuing forest clarify that forest
management management
decisions. The decisions that may
Issuance of a be effective
decision immediately under
authorizing forest Sec. 5003.1 must
management be posted.
activities,
including timber
sales, is the
decision for timber
sales instead of
advertisement of
the timber sale
under current
regulations. The
changes also allow
web-based posting
of decisions and
that the posting
date of the
decision is the
effective date for
the decision for
purposes of appeal
under 43 CFR part 4.
5003.3 Protests............. Eliminates the no changes.
protest process.
5003.4 Definition of Forest Provides a no changes.
Management Activity. definition for
decisions that
could be made under
Sec. 5003.2.
5003.5 Severability......... .................... Adds a new section
of severability for
sections in Group
5000.
------------------------------------------------------------------------
Part 5400 Sales of Forest Products General
------------------------------------------------------------------------
5400.0-3(a) and (c) Updates references no changes.
Authority. to BLMs forest
management
authorities
resulting from
changes to the U.S.
Code and passage of
the Forest
Resources
Conservation and
Shortage Relief Act.
5400.0-5 Definitions........ Added various no changes.
definitions for
terms used in the
part 5400 rule.
5402.0-6(d) and (e) Other Deleted export no changes.
than Advertised Sales. exemption for right-
of-way timber to
conform with law
and clarified that
special forest
product permits do
not require
individual
appraisals.
5410.0-6 Annual Timber Sale Adds agency website no changes.
Plan. to the ways BLM
plans can be
published.
5420.0-6 Preparation for Removes prohibition no changes.
Sale. of selling products
at less than
appraised value.
5422.1 Lump-sum sales....... Changes title from no changes.
``Cruise sales'' to
``Lump-sum sales''
to match contract
name and common use
of Lump-sum and
revise to indicate
that Lump-sum and
Scale are both
approved sale types.
5422.2 Scale sales.......... Expands the no changes.
discretion to use
scale sales and
clarifies that sale
by weight is an
approved method.
5424.1 Reporting provisions Updates the no changes.
for substitution reporting
determination. requirement to
conform with the
Forest Resources
Conservation and
Shortage Relief Act.
5430.0-6 Advertisement...... Allows BLM to no changes.
advertise sales on
an agency website.
5441.1 Qualification of Updates the no changes.
Bidders. qualification of
bidders to conform
with Department of
the Interior
regulation
pertaining to
debarment 2 CFR
part 180.
5441.1-1 Bid Deposits....... Allows BLM to refund no changes.
a portion of the
bid deposit if
award of the sale
is delayed.
5441.1-2 Small business Removes the existing no changes.
administration road loans. section text which
was no longer valid
and redesignates
Sec. 5441.1-3 as
Sec. 5441.1-2.
5451.1 Minimum performance Changes the sale no changes.
bond requirements. value threshold
that triggers a
requirement for a
performance bond
from sales that are
$2,500 and greater
to $10,000 and
greater.
5461.3 Total Payments....... Replaces the term no changes.
``cruise sale''
with ``lump-sum
sale'' to be
consistent with
changes to Sec.
5422.1.
5463.1 Time for cutting and Not in the proposed A change was added
removal. rule but addresses in Sec. 5463.1 to
an underlying issue address issues with
related to the increased use of
purposes for extensions to deal
changes to Sec. with circumstances
5473.4. that interrupt
sales as well as
effects from
increasingly
complex sales.
5473.4 Approval of Requests. Expands the reasons Adds emergency
for approving declarations or
contract extension public orders as
requests. allowable extension
reasons based on
recent government
mandated COVID-19
restrictions and
related issues.
------------------------------------------------------------------------
Part 5500 Nonsale Disposals, General
------------------------------------------------------------------------
5500.0-5 Definitions........ Updates the public no changes.
lands definition to
match the Federal
Lands Policy
Management Act
definition.
------------------------------------------------------------------------
III. Procedural Matters
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs in the Office of Management and
Budget will review all significant rules. The Office of Information and
Regulatory Affairs has determined that this rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the nation's regulatory system to promote
predictability, reduce uncertainty, and use the best, most innovative,
and least burdensome tools for achieving regulatory ends. The E.O.
directs agencies to consider regulatory approaches that reduce burdens
and maintain flexibility and freedom of choice for the public where
these approaches are relevant, feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes further that regulations must be
based on the best available science and that the rule making process
must allow for public participation and an open exchange of ideas. We
have developed this rule in a manner consistent with these
requirements.
The BLM reviewed the requirements of the final rule and determined
that it will not adversely affect in a material
[[Page 82370]]
way the economy, a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
tribal governments or communities. For more detailed information, see
the Regulatory Impact Analysis (``Economic and Threshold Analysis for
Proposed Forest Management Rule'') (RIA) prepared for this rule. The
RIA has been posted in the docket for the proposed rule on the Federal
eRulemaking Portal: https://www.regulations.gov. In the Searchbox,
enter ``RIN 1004-AE61,'' click the ``Search'' button, open the Docket
Folder, and look under Supporting Documents.
Reducing Regulation and Controlling Regulatory Costs (E.O. 13771)
The Office of Information and Regulatory Affairs has determined
that this rule is not a significant regulatory action as defined in
E.O. 12866. Therefore, the rule is not an ``E.O. 13771 regulatory
action'' as defined by Office of Management and Budget (OMB) guidance
implementing E.O. 13771. As such, the rule is not subject to the
requirement for ``regulatory actions'' under E.O. 13771.\5\
---------------------------------------------------------------------------
\5\ Executive Office of the President, OMB Memorandum No. M-17-
21, Guidance Implementing Executive Order 13771, Titled ``Reducing
Regulation and Controlling Regulatory Costs,'' April 5, 2017.
---------------------------------------------------------------------------
Regulatory Flexibility Act
This final rule will not have a significant economic effect on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.) (RFA). The RFA generally requires that
Federal agencies prepare a regulatory flexibility analysis for rules
subject to the notice-and-comment rulemaking requirements under the
Administrative Procedure Act (5 U.S.C. 500 et seq.), if the rule would
have a significant economic impact, whether detrimental or beneficial,
on a substantial number of small entities. See 5 U.S.C. 601-612.
Congress enacted the RFA to ensure that Government regulations do not
unnecessarily or disproportionately burden small entities. Small
entities include small businesses, small governmental jurisdictions,
and small not-for-profit enterprises.
The Small Business Administration (SBA) has developed size
standards to carry out the purposes of the Small Business Act, which
can be found in 13 CFR 121.201. For a specific industry identified by
the North American Industry Classification System (NAICS), small
entities are defined by the SBA as an individual, limited partnership,
or small company considered at ``arm's length'' from the control of any
parent company, which meet certain size standards. The size standards
are expressed either in number of employees or annual receipts. This
rule will most likely affect entities that participate in timber sales
or the related protest process. The industries most likely to be
directly affected are listed in the table below along with the relevant
SBA size standards.
------------------------------------------------------------------------
Size standards Size standards
Industry in millions of in number of
dollars employees
------------------------------------------------------------------------
Timber Tract Operations............. $11.0 ................
Forest Nurseries and Gathering of 11.0 ................
Forest Products....................
Logging............................. ................ 500
Support Activities for Forestry..... 7.5 ................
Environmental Consulting Services... 15.0 ................
Environment, Conservation and 15.0 ................
Wildlife Organizations.............
------------------------------------------------------------------------
BLM timber sales are commonly bid on by, and awarded to, small
businesses. The BLM is also required by the SBA regulations (13 CFR
part 121) to set aside a proportion of BLM timber sales for small
businesses. This final rule does not change this process. Four changes
in the rule to subparts 5422, 5441, 5451, and 5463 will have small
beneficial economic effects to small businesses by lowering financial
requirements to enter into a sale contract and by providing more
flexibility in the timber sale contract. Section 5441.1-2 refers to a
SBA road construction loan program that has expired, and therefore the
deletion of this section will have no effect. The revisions to the
forest management decision process should benefit small entities that
elect to submit comments by more clearly defining the process.
Based on the available information, we conclude that this rule will
not have a ``significant economic impact on a substantial number of
small entities,'' as that phrase is used in 5 U.S.C. 605. Therefore, a
final regulatory flexibility analysis is not required.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
(a) Does not have an annual effect on the economy of $100 million
or more. The total appraised value of all timber offered by the BLM
over the last five years is approximately $48 million per year. To the
extent that the BLM can become more efficient and meet the increased
timber volume offered when authorized in RMPs, this rule could have
positive effects to the economy. Additional details can be found in the
RIA for this rule.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. The primary commodity affected by this
rule is lumber. The BLM does not anticipate that a reduction in timber
production will occur due to this final rule.
(c) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises. The
BLM believes this rule will result in positive effects in each of these
areas. This rule could have a small positive effect on competition by
lowering the financial requirements for entering into a small sale
contract. To the extent that the BLM can become more efficient and meet
the increased timber volume authorized in RMPs, this rule could have
positive effects on employment, investment, and productivity.
Unfunded Mandates Reform Act
This rule will not impose an unfunded mandate on State, local,
tribal governments, or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or tribal governments, or the private sector. This rule will
only affect the BLM's
[[Page 82371]]
administrative process for protest of forest management decisions and
provide minor revisions to enhance flexibility in developing and
administering timber sales. A statement containing the information
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is
not required.
Takings (E.O. 12630)
This rule does not affect a taking of private property or otherwise
have taking implications under E.O. 12630. Section 2(a) of E.O. 12630
identifies policies that do not have takings implications, such as
those that abolish regulations, discontinue governmental programs, or
modify regulations in a manner that lessens interference with the use
of private property. There are no cases where a BLM timber sale or
forest management decision has affected private property rights. The
rule will revise the timber sale and decision protest processes and
will not affect private property rights. A takings implication
assessment is not required.
Federalism (E.O. 13132)
Under the criteria in section 1 of E.O. 13132, this rule does not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement. It does not have substantial
direct effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. The rule
revises processes that have been implemented numerous times over
decades and which have not been found to have effects on the
relationship or distribution of power between the national government
and the States.
Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of E.O. 12988.
Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Consultation With Indian Tribes (E.O. 13175 and Departmental Policy)
The Department of the Interior strives to strengthen its
government-to-government relationships with Indian tribes through a
commitment to consultation with Indian tribes and recognition of their
right to self-governance and tribal sovereignty. We have evaluated this
rule under the Department's consultation policy and under the criteria
in E.O. 13175 and have determined that it has no substantial direct
effects on federally recognized Indian tribes, and that consultation
under the Department's tribal consultation policy is not required. The
BLM consults with tribes at multiple decision support stages, including
the development of RMPs, NEPA scoping, consultation under the National
Historic Preservation Act, as well as in other circumstances identified
in the BLM Tribal Consultation policy. Decisions affected by this rule
are included in all these decision support stages. The rule does not
affect these tribal consultation processes.
Paperwork Reduction Act (44 U.S.C. 3501 et seq.)
This rule contains existing and revised information collections.
All information collections require approval under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The BLM may not conduct
or sponsor and, notwithstanding any other provision of law, you are not
required to respond to a collection of information unless it displays a
currently valid Office of Management and Budget (OMB) control number.
OMB previously reviewed and approved information collection
requirements contained in 43 CFR 5003.3 and 43 CFR 5424.1 under OMB
control number 1004-0058. Revisions to these previously approved
requirements contained in this final rule are explained below. The
following proposed revisions to OMB Control Number 1004-0058 require
OMB approval:
Final revisions to Sec. 5003.3 eliminate the protest process,
thereby eliminating a currently approved but now obsolete requirement
for information collection. Revisions to Sec. 5424.1 update the
regulation in accordance with the Forest Resources Conservation and
Shortage Relief Act of 1990, as amended. The revisions to Sec. Sec.
5003.3 and 5424.1, explained in more detail below require approval by
OMB:
(1) Revisions to Sec. 5003.3 remove the existing protest process:
(a) Section 5003.3(a) currently authorizes protests of a forest
management decision to be filed within 15 days of the publication of a
notice of decision or notice of sale in a newspaper of general
circulation. This discretionary protest process was largely duplicative
of other opportunities for public involvement, including through the
NEPA process. The final rule eliminates the protest process for
activities under Sec. 5003.2 prior to issuing a decision. The
elimination of the protest process results in an estimated reduction of
25 responses and 250 burden hours as currently approved by OMB. The
total burden currently approved by OMB for this OMB control number is
325 annual responses and 550 annual burden hours. As a result of the
final rule, the BLM estimates that there will be 300 annual responses
and 300 annual burden hours.
(2) Revisions to Sec. 5424.1(a)(1) and (2) update the reporting
requirement for purchasers and affiliates to report the export of
private timber from within 1 year to 2 years. The final rule makes no
changes to the information collected pursuant to this reporting
requirement nor is there a change to the reporting burden associated
with collection of information.
Title: Forest Management Log Export and Substitution.
OMB Control Number: 1004-0058.
Form Numbers: 5450-17, 5460-15, and 5460-17.
Type of Review: Revision of a currently approved collection.
Description of Respondents: Purchasers of Federal timber and their
affiliates.
Estimated Number of Annual Respondents: 300.
Estimated Number of Responses: 300.
Estimated Completion Time per Response: 1 hour.
Estimated Total Annual Burden Hours: 300.
Respondents' Obligation: Required to obtain or retain a benefit.
Frequency of Collection: On occasion.
Estimated Total Non-Hour Cost: $0.
As part of our continuing effort to reduce paperwork and respondent
burdens, we invite the public and other Federal agencies to comment on
any aspect of this information collection, including:
(1) Whether or not the collection of information is necessary for
the proper performance of the functions of the agency, including
whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology,
[[Page 82372]]
e.g., permitting electronic submission of response.
On June 8, 2020, the BLM published a proposed regulation (RIN 1004-
AE61, ``Forest Management Decision Protest Process and Timber Sale
Administration'' 85 FR 35049). The proposed rule solicited comments on
the proposed changes to the information collections for a period of 30
days, ending on July 8, 2020. The BLM did not receive any comments
related to information collection in response to the proposed rule.
Written comments and recommendations for this information
collection should be sent within 30 days of publication of this
document to www.reginfo.gov/public/do/PRAMain. Find this particular
information collection by selecting ``Currently under 30-day Review--
Open for Public Comments'' or by using the search function. Please
provide a copy of your comments to Darrin King, Information Collection
Clearance Officer, Attention PRA Office, Bureau of Land Management, 440
W 200 S #500, Salt Lake City, UT 84101 or by email to
BLM_HQ_PRA_Comments@blm.gov. Please reference OMB Control Number 1004-
0058 and RIN 1004-AE61 in the subject line of your comments. Please
note that due to COVID-19, electronic submission of comments is
recommended.
National Environmental Policy Act
The BLM has determined that the changes made by this final rule are
administrative or procedural in nature in accordance with 43 CFR
46.210(i), which provides that policies, directives, regulations, and
guidelines: That are of an administrative, financial, legal, technical,
or procedural nature; or whose environmental effects are too broad,
speculative, or conjectural to lend themselves to meaningful analysis
and will later be subject to the NEPA process, either collectively or
case-by-case. Further, the final rule does not involve any of the
extraordinary circumstances listed in 43 CFR 46.215 that would require
further analysis under NEPA. Therefore, this action is categorically
excluded from environmental review under NEPA. Documentation of the
reliance upon a categorical exclusion has been prepared and is
available for public review with the other supporting documents for
this rule.
Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in E.O. 13211. A Statement of Energy Effects is not required.
Author
The principal authors of this rule are: Wade Salverson and
Christian Schumacher, Division of Forest, Rangeland, and Vegetation
Resources; Jennifer Noe, Division of Regulatory Affairs.
List of Subjects
43 CFR Part 5000
Administrative practice and procedure, Forests and forest products,
Public lands.
43 CFR Part 5400
Administrative practice and procedure, Forests and forest products,
Public lands, Reporting and recordkeeping requirements.
43 CFR Part 5420
Forests and forest products, Government contracts, Public lands,
Reporting and recordkeeping requirements.
43 CFR Part 5440
Forests and forest products, Government contracts, Public lands,
Reporting and recordkeeping requirements.
43 CFR Part 5450
Forests and forest products, Government contracts, Public lands,
Reporting and recordkeeping requirements.
Surety bonds.
43 CFR Part 5460
Forests and forest products, Government contracts, Public lands.
43 CFR Part 5470
Forests and forest products, Government contracts, Public lands,
Reporting and recordkeeping requirements.
43 CFR Part 5500
Forests and forest products, Public lands.
Katharine MacGregor,
Deputy Secretary, U.S. Department of the Interior.
43 CFR Chapter II
For the reasons set out in the preamble, the Bureau of Land
Management amends 43 CFR parts 5000, 5400, 5420, 5440, 5450, 5460,
5470, and 5500 as follows:
0
1. Revise part 5000 to read as follows:
PART 5000--ADMINISTRATION OF FOREST MANAGEMENT DECISIONS
Subpart 5003--Administrative Remedies
Sec.
5003.1 Effect of decisions; general.
5003.2 Notice of forest management decisions.
5003.3 [Reserved]
5003.4 Definitions: General.
5003.5 Severability.
Subpart 5004 [Reserved]
Authority: 43 U.S.C. 2601; 30 U.S.C. 601 et seq.; 43 U.S.C.
1701.
Subpart 5003--Administrative Remedies
Sec. 5003.1 Effect of decisions; general.
Notwithstanding the provisions of 43 CFR 4.21(a):
(a) The authorized officer may make a forest management decision,
as described in Sec. 5003.2, effective immediately or on a date
established in the decision. The filing of a petition for a stay
pending appeal under 43 CFR part 4 shall not automatically suspend the
effect of a forest management decision issued under Sec. 5003.2.
(b) Where the Bureau of Land Management (BLM) determines that
vegetation, soil, or other resources on the public lands are at
substantial risk of wildfire due to drought, fuels buildup, or other
reasons, or at immediate risk of erosion or other damage due to
wildfire, BLM may make a wildfire management decision made under this
part and parts 5400 through 5510 of this subchapter effective
immediately or on a date established in the decision. Wildfire
management includes but is not limited to:
(1) Fuel reduction or fuel treatment such as prescribed burns and
mechanical, chemical, and biological thinning methods (with or without
removal of thinned materials); and
(2) Projects to stabilize and rehabilitate lands affected by
wildfire.
(c) The Interior Board of Land Appeals will issue a decision on the
merits of an appeal of a wildfire management decision under paragraph
(b) of this section within the time limits prescribed in 43 CFR 4.416.
Sec. 5003.2 Notice of forest management decisions.
(a) The BLM authorizes forest management activities, which are
defined in Sec. 5003.4, by issuing forest management decisions. Forest
management decisions that the BLM may make effective immediately
pursuant to Sec. 5003.1(a) shall be posted on a designated agency
website while also:
[[Page 82373]]
(1) Publishing a notice in a newspaper of general circulation in
the area;
(2) Sending a notice by direct or electronic mail to a list of
parties requesting direct notification; or
(3) Broadcasting a notice on one or more mass-media platforms.
(b) The posting date of the forest management decision on the
agency website establishes the effective date of the decision for
purposes of an appeal under 43 CFR part 4.
Sec. 5003.3 [Reserved]
Sec. 5003.4 Definitions: General.
Forest management activity generally means activities with a
silvicultural or forest protection objective including associated
actions needed to carry out the silvicultural or forest protection
objective, such as construction and maintenance of roads and
improvements.
Sec. 5003.5 Severability.
If a court holds any provisions of the regulations in this subpart
or their applicability to any person or circumstances invalid, the
remainder of this subpart and its applicability to other people or
circumstances will not be affected.
Subpart 5004 [Reserved]
PART 5400--SALES OF FOREST PRODUCTS; GENERAL
0
2. The authority citation for part 5400 is revised to read as follows:
Authority: 30 U.S.C. 601 et seq., 43 U.S.C. 315, 2601, 16 U.S.C.
607a, and 43 U.S.C. 1701 et seq.
Subpart 5400--Sales of Forest Products; General
0
3. Amend Sec. 5400.0-3 by revising paragraphs (a) and (c) to read as
follows:
Sec. 5400.0-3 Authority.
(a) The Act of August 28, 1937 (43 U.S.C. 2601) authorizes the sale
of timber from the Revested Oregon and California Railroad and
Reconveyed Coos Bay Wagon Road Grant Lands and directs that such lands
shall be managed for permanent forest production and the timber thereon
sold, cut, and removed in conformity with the principle of sustained
yield for the purpose of providing a permanent source of timber supply,
protecting watersheds, regulating streamflow and contributing to the
economic stability of local communities and industries, and providing
recreational facilities.
* * * * *
(c) Public Law 101-382 (104 Stat. 714) Forest Resources
Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620)
restrictions on exports of unprocessed timber originating from Federal
lands.
* * * * *
0
4. Amend Sec. 5400.0-5 by:
0
a. Adding the definition for ``Export'' in alphabetical order;
0
b. Revising the definition of ``Fair Market value;''
0
c. Adding the definitions for ``Lump-sum,'' ``Scale sale,'' and
``Sourcing area'' in alphabetical order; and
0
d. Revising the definitions of ``Substitution'' and ``Third party
scaling.''
The additions and revisions read as follows:
Sec. 5400.0-5 Definitions.
* * * * *
Export means the transporting or causing to be transported, either
directly or through another party, unprocessed timber to a foreign
country. Export occurs on the date that a person enters into an
agreement to sell, trade, or otherwise convey such timber to a person
for delivery to a foreign country. If the date in the preceding
sentence cannot be established, export occurs when unprocessed timber
is placed in an export facility for preparation, including but not
limited to, sorting or bundling, and container loading, for shipment
outside the United States, or when unprocessed timber is placed on
board an oceangoing vessel, rail car, or other conveyance destined for
a foreign country, port, or facility.
Fair Market value means the price forest products will return when
offered for competitive sale on the open market.
* * * * *
Lump-sum means a sale where the total quantity of forest product
that is designated for removal is estimated and established prior to
the sale.
* * * * *
Scale sale means a sale where the total quantity of forest product
that is designated for removal is determined after cutting, but before
its conversion or end use.
* * * * *
Sourcing area means a geographic area approved by the Secretary of
the Interior where prohibitions for direct and indirect substitution
shall not apply with respect to the acquisition of unprocessed timber
originating from Federal lands west of the 100th meridian in the
contiguous 48 States by a person who, in the previous 24 months, has
not exported unprocessed timber originating from private lands within
the sourcing area; and during the period in which such approval is in
effect, does not export unprocessed timber originating from private
lands within the sourcing area.
Substitution means:
(1) The purchase of a greater volume of Federal timber by an
individual purchaser than has been his historic pattern within twenty-
four (24) months of the sale of export by the same purchaser of a
greater volume of his private timber than has been his historic pattern
during the preceding twenty-four (24) months; and
(2) The increase of both the purchase of Federal timber and export
of timber from private lands tributary to the plant for which Bureau of
Land Management timber covered by a specific contract is delivered or
expected to be delivered.
Third party scaling means the measurement of logs by a scaling
organization or weight scale certified by a State, other than a
Government agency, approved by the Bureau.
* * * * *
Subpart 5402--Other Than Advertised Sales; General
0
5. Amend Sec. 5402.0-6 by revising paragraph (d), adding paragraph
(e), and removing the parenthetical authority citation at the end of
the section to read as follows:
Sec. 5402.0-6 Policy.
* * * * *
(d) All negotiated sales shall be subject to the restrictions
relating to the export and substitution from the United States of
unprocessed timber.
(e) Special forest products, including firewood, Christmas trees,
boughs, greenery, mushrooms, and other similar vegetative resources,
may be sold by permit, without appraisal, after payment to the
Government of adequate compensation for the material and may include
the expense of issuance of the permit.
0
6. Revised part 5410 to read as follows:
PART 5410--ANNUAL TIMBER SALE PLAN
Subpart 5410--Annual Timber Sale Plan; General
Sec.
5410.0-6 Policy.
Subpart 5411 [Reserved]
Authority: 30 U.S.C. 601 et seq.; 43 U.S.C. 2604.
[[Page 82374]]
Subpart 5410--Annual Timber Sale Plan; General
Sec. 5410.0-6 Policy.
Plans for the sale of timber from the O. and C. and public lands
(as defined in Sec. 5400.0-5 of this chapter) will be developed
annually. Suggestions from prospective purchasers of such timber may be
received to assist in the development of a sound annual timber sale
plan. Such plan may be advertised in a newspaper of general circulation
in the area in which the timber is located or an agency website. Such
advertisement shall indicate generally the probable time when the
various tracts of timber included in the plan will be offered for sale,
set-asides if any, and the probable location and anticipated volumes of
such tracts. The authorized officer may subsequently change, alter or
amend the annual timber sale plan.
Subpart 5411 [Reserved]
PART 5420--PREPARATION FOR SALE
0
8. The authority citation for part 5420 is revised to read as follows:
Authority: 30 U.S.C. 601 et seq.; 43 U.S.C. 2604.
Subpart 5420--Preparation for Sale; General
0
9. Revise Sec. 5420.0-6 to read as follows:
Sec. 5420.0-6 Policy.
All timber or other vegetative resources to be sold, except
materials that qualify under Sec. 5402.0-6(e) of this chapter, will be
appraised to estimate fair market value. Measurement shall be by tree
cruise, log scale, weight, or such other form of measurement as may be
determined to be in the public interest.
Subpart 5422--Volume Measurements
0
10. Revise Sec. 5422.1 to read as follows:
Sec. 5422.1 Lump-sum sales.
As the general practice, the Bureau of Land Management (BLM) will
estimate volume for a lump-sum sale using a tree cruise basis.
0
11. Revise Sec. 5422.2 to read as follows:
Sec. 5422.2 Scale sales.
(a) Scaling will be performed by the BLM or third-party scaling
organization approved by the BLM or any operator of a State-certified
weight scale.
(b) The BLM may also order third-party scaling for administrative
reasons. Such reasons would include, but are not limited to, the
following: to improve cruising standards, to check accuracy of cruising
practices, and for volumetric analysis.
Subpart 5424--Preparation of Contract
0
12. Amend Sec. 5424.0-6 by revising paragraph (d) to read as follows:
Sec. 5424.0-6 Policy.
* * * * *
(d) The contract or permit form and any additional provisions shall
be made available for inspection by prospective bidders during the
advertising period. When sales are negotiated, all additional
provisions shall be made part of the contract or permit.
* * * * *
0
13. Amend Sec. 5424.1 by revising paragraphs (a)(1) and (2) to read as
follows:
Sec. 5424.1 Reporting provisions for substitution determination.
(a) * * *
(1) A purchaser who has exported private timber within two years
preceding the purchase date of Federal timber; and/or
(2) An affiliate of a timber purchaser who exported private timber
within two years before the acquisition of Federal timber from the
purchaser.
* * * * *
PART 5430--ADVERTISEMENT
Subpart 5430--Advertisement; General
0
14. The authority citation for part 54030, subpart 5430, is revised to
read as follows:
Authority: 43 U.S.C. 2604, 30 U.S.C. 601 et seq.
0
15. Revise Sec. 5430.0-6 to read as follows:
Sec. 5430.0-6 Policy.
Competitive timber sales shall be advertised in a newspaper of
general circulation or agency website in the area in which the timber
or other vegetative resources are located and a notice of the sale
shall be posted in a conspicuous place in the office where bids are to
be submitted. Such advertisement shall be published on the same day
once a week for two consecutive weeks, except that sales amounting to
less than 500 M board feet, need be published once only. When in the
discretion of the authorized officer longer advertising periods are
desired, such longer periods are permitted.
PART 5440--CONDUCT OF SALES
0
16. The authority citation for part 5440 is revised to read as follows:
Authority: 43 U.S.C. 2604, 30 U.S.C. 601 et seq.
Subpart 5441--Advertised Sales
0
17. Amend Sec. 5441.1 by revising paragraph (c) to read as follows:
Sec. 5441.1 Qualification of bidders.
* * * * *
(c) Timber sale contracts are ``covered transactions'' under the
suspension and debarment rules for discretionary assistance, loan, and
benefit award programs at 2 CFR part 180, implemented as a regulation
by the Department of the Interior (the Department) at 2 CFR part 1400.
See 2 CFR 180.200, 180.210, and 1400.970.
(1) A bidder or purchaser that has been suspended, debarred, or
otherwise determined to be ineligible for award is prohibited from
bidding on a timber sale unless an award specific written compelling
reasons exception determination pursuant to 2 CFR 180.135 and 1400.137
is issued by the Department's Director of the Office of Acquisition and
Property Management to permit an excluded party to participate in the
covered transaction.
(2) A bidder or purchaser suspended, debarred, or otherwise award
ineligible may continue to bid on timber purchase contracts; however,
absent issuance of a written compelling reasons determination under
paragraph (c)(1) of this section, no award shall be made during the
period of award ineligibility.
(3) As required by 2 CFR 180.335, prior to awarding a timber sale
contract, a bidder or purchaser (i.e., a nonprocurement award
participant) shall certify to the Bureau of Land Management (BLM) that
neither the entity nor any of its principals, as defined at 2 CFR
180.995, is suspended, debarred, or otherwise disqualified.
(4) If a participant enters into a covered transaction with another
person at the next lower tier, the participant must verify that the
person with whom they intend to enter into that transaction is not
suspended, debarred, or otherwise award disqualified. See 2 CFR 180.300
and 1400.220.
0
18. Revise Sec. 5441.1-1 to read as follows:
Sec. 5441.1-1 Bid deposits.
Sealed bids shall be accompanied by a deposit of not less than 10
percent of the appraised value of the timber or other vegetative
resources. For offerings at oral auction, bidders shall make a deposit
of not less than 10 percent of the appraised value prior to the opening
of the bidding. The authorized officer may, in his or her discretion,
require larger
[[Page 82375]]
deposits. Deposits may be in the form of cash, money orders, bank
drafts, cashiers or certified checks made payable to BLM, or bid bonds
of a corporate surety shown on the approved list of the United States
Treasury Department or any guaranteed remittance approved by the
authorized officer. Upon conclusion of the bidding, the bid deposits of
all bidders, except the high bidder, will be returned. The deposit of
the successful bidder will be applied to the purchase price at the time
the contract is signed by the authorized officer unless the deposit is
a corporate surety bid bond, in which case the surety bond will be
returned to the purchaser. If BLM fails to award the timber sale within
90 days of the determination of the high bidder, a portion of the bid
deposit may be refunded to the high bidder upon written request to the
authorized officer, such that BLM retains a deposit of at least 5% of
the appraised value. The remainder of the full bid deposit must be
resubmitted to BLM once the high bidder is notified in writing that the
delay of award has been remedied and the authorized officer is prepared
to issue the contract. If the high bidder is unable to provide the full
amount of the bid deposit within 30 days of the written notification,
the sale will be re-auctioned and the high bidder will be barred from
participating in any subsequent auctions for the same tracts.
Sec. 5441.1-2 [Removed]
0
19. Remove Sec. 5441.1-2.
Sec. 5441.1-3 [Redesignated as Sec. 5441.1-2]
0
20. Redesignate Sec. 5441.1-3 as Sec. 5441.1-2.
PART 5450--AWARD OF CONTRACT
0
21. The authority citation for part 5450 is revised to read as follows:
Authority: 43 U.S.C. 2604; 30 U.S.C. 601 et seq.
Subpart 5451--Bonds
0
22. Amend Sec. 5451.1 by revising paragraph (a) introductory text to
read as follows:
Sec. 5451.1 Minimum performance bond requirements; types.
(a) A minimum performance bond of not less than 20 percent of the
total contract price shall be required for all contracts of $10,000 or
more, but the amount of the bond shall not be in excess of $500,000,
except when the purchaser opts to increase the minimum bond as provided
in Sec. 5451.2. A minimum performance bond of not less than $500 or
20% of the contract price, whichever is greater, will be required for
all installment contracts less than $10,000. For cash sales less than
$10,000, bond requirements, if any, will be at the discretion of the
authorized officer. The performance bond may be:
* * * * *
PART 5460--SALES ADMINISTRATION
0
23. The authority citation for part 5460 is revised to read as follows:
Authority: 30 U.S.C. 601 et seq., 43 U.S.C. 2604.
Subpart 5461--Contract Payments
0
24. Revise Sec. 5461.3 to read as follows:
Sec. 5461.3 Total payment.
The total amount of the contract purchase price must be paid prior
to expiration of the time for cutting and removal under the contract.
For a lump sum sale, the purchaser shall not be entitled to a refund
even though the amount of timber cut, removed, or designated for
cutting may be less than the estimated total volume shown in the
contract. For a scale sale, if it is determined after all designated
timber has been cut and measured that the total payments made under the
contract exceed the total sale value of the timber measured, such
excess shall be refunded to the purchaser within 60 days after such
determination is made.
Subpart 5463--Expiration of Time for Cutting and Removal
0
25. Revise Sec. 5463.1 to read as follows:
Sec. 5463.1 Time for cutting and removal.
Time for cutting and removal of timber or other vegetative
resources sold shall not exceed a period of forty-eight months such
time for cutting and removal may be extended as provided in 43 CFR part
5470, subpart 5473.
PART 5470--CONTRACT MODIFICATION--EXTENSION--ASSIGNMENT
0
26. The authority citation for part 5470 is revised to read as follows:
Authority: 30 U.S.C. 601; 43 U.S.C. 2604 and 1740.
Subpart 5473--Extension of Time for Cutting and Removal
0
27. Amend Sec. 5473.4 by:
0
a. Removing the word ``or'' at the end of paragraph (c)(4);
0
b. Revising paragraph (c)(5);
0
c. Adding paragraphs (c)(6) and (7); and
0
d. Revising paragraph (d).
The revisions and additions read as follows:
Sec. 5473.4 Approval of request.
* * * * *
(c) * * *
(5) Closure of operations by Bureau of Land Management (BLM) or
State fire protection agencies due to fire danger;
(6) Closure of operations due to unusual weather, where BLM
restricted operations during periods with specific environmental
conditions, including but not limited to restrictions for low soil
moisture, sustained dry periods, frozen soils, or operations requiring
snow cover of specific depth; or
(7) County, State, or Federal government issuance of an emergency
declaration or public order affecting a purchaser's ability to conduct
operations in a contract area, along a designated haul route or
proximate processing facilities.
(d) Upon written request of the purchaser, the State Director may
extend a contract to harvest green timber to allow that purchaser to
harvest timber as salvage from other Federal or non-Federal lands that
have been damaged by fire or other natural or man-made disaster. The
duration of the extension shall not exceed the time necessary to meet
the salvage objectives, or a maximum of 36 months. The State Director
may also waive reappraisal for such extension.
PART 5500--NONSALE DISPOSALS; GENERAL
Subpart 5500--Nonsale Disposals; General
0
28. The authority citation for part 5500, subpart 5500, is revised to
read as follows:
Authority: 30 U.S.C. 601 et seq., 43 U.S.C. 315, 423.
0
29. Amend Sec. 5500.0-5 by revising paragraph (e) to read as follows:
Sec. 5500.0-5 Definitions.
* * * * *
(e) Public Lands means any land and interest in land owned by the
United States within the several States and administered by the
Secretary of the Interior through the Bureau of Land Management,
including O. and C. Lands, without regard to how the United States
acquired ownership, except:
(1) Lands located on the Outer Continental Shelf; and
(2) Lands held for the benefit of Indians, Aleuts, and Eskimos.
* * * * *
[FR Doc. 2020-27580 Filed 12-17-20; 8:45 am]
BILLING CODE 4310-84-P