Small Business Timber Sale Set-Aside Program; Appeal Procedures on Recomputation of Shares

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 223

Small Business Timber Sale Set-Aside Program; Appeal Procedures

on Recomputation of Shares

AGENCY: Forest Service, USDA.

ACTION: Interim rule; request for comment.

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SUMMARY: This interim rule provides an opportunity for timber

purchasers to appeal the recomputation of the small business share of

National Forest System Timber sales. The rule is necessary to implement

a legislative requirement to provide timber purchasers the opportunity

to comment on and appeal recomputation of shares and related decisions

made under the Small Business Timber Sale Set-Aside Program.

DATES: Effective Dates: This rule is effective March 24, 1997, except

for Sec. 223.18 paragraph (f) which contains information collection

requirements that have not been approved by the Office of Management

and Budget. The Forest Service will publish a subsequent notice in the

Federal Register announcing the effective date of the information

collection requirements.

Comment Date: Comments on this interim rule must be received by May

23, 1997.

ADDRESSES: Send written comments to Director, Timber Management, MAIL

STOP 1105, Forest Service, USDA, P.O. Box 96090, Washington, DC 20090-

6090. Comments received, including name and address where provided,

shall be placed in the record of the rulemaking and made available for

copying and public inspection.

FOR FURTHER INFORMATION CONTACT:

Rod Sallee, Timber Management Staff, (202) 205-1766.

SUPPLEMENTARY INFORMATION:

Background

Developed in cooperation with the Small Business Administration,

the Forest Service Small Business Timber Sale Set-Aside Program is

designed to ensure that qualifying small business timber purchasers

have the opportunity to purchase a fair proportion of National Forest

System timber offered for sale. The current set-aside program was

adopted July 26, 1990 (55 FR 30485).

Under the program, the Forest Service must recompute the shares of

timber sales to be set-aside for qualifying small businesses every five

years based on the actual volume of sawtimber that has been purchased

and/or harvested by small businesses. Also, shares must be recomputed

if there is a change in manufacturing capability, if the purchaser size

class changes, or if certain purchasers discontinue operations.

Direction to guide employees in administering the Small Business Timber

Sale Set-Aside Program is issued in the Forest Service Manual, Chapter

2430, and Chapter 90 of the Forest Service Timber Sale Preparation

Handbook (FSH) 2409.18.

In 1992, the agency adopted new administrative appeal procedures at

36 CFR part 215 in response to new statutory direction. These rules

apply to all National Forest System project-level decisions for which

an environmental assessment (EA) or impact statement (EIS) has been

prepared. Because the recomputation of shares under the Small Business

Set-Aside Program is not subject to documentation in an EA or EIS, the

decisions on the 1996-2000 Forest Service recomputation of small

business shares were not subject to the appeal procedures. However,

since the agency had accepted appeals of recomputation decisions under

36 CFR part 217 prior to adoption of part 215, the agency decided to

establish procedures for providing notice to affected purchasers with

opportunity to comment on the recomputation of shares. Notice of these

procedures was published in the Federal Register on February 28, 1996

(61 FR 7468).

The Conference Report accompanying the 1997 Omnibus Appropriation

Act (Public Law 104-208) found the Forest Service decision to eliminate

an administrative appeals opportunity for the Small Business Timber

Sale Set-Aside Program ``unacceptable'' and directed the Forest Service

to reinstate an appeals process before December 31, 1996. The

Conference Report requires that the agency establish a process by which

purchasers may appeal decisions concerning recomputations of SBA

shares, structural recomputations of SBA shares, or changes in policies

impacting the timber sale set-aside program. It also provides that, as

in the past, decisions related to the designation of the sales to be

set aside will not be open for appeal.

Good Cause Exemption

The Conference Report accompanying the FY 1997 Omnibus

Appropriation Act directed reinstatement of the appeals process by

December 31, 1996. The Department has determined that such

reinstatement can occur only through informal rulemaking (5 U.S.C.

552). Regrettably, the Department was not able to meet the December

deadline

[[Page 13827]]

because of the press of other business, but it is trying to implement

the direction as expeditiously as possible. Given that the

congressional intent can be met only through rulemaking, that in the

conference report Congress set a specific date, and that it would be

impracticable to give notice and obtain comment, good cause exists to

adopt an interim rule without prior public comment. However, while the

rule is immediately effective to comply with congressional intent, the

Department is requesting comment on the provisions set out in this

interim rule for consideration in adoption of a final rule.

Provisions of the Rule

The appeal process at issue is limited to the Timber Sale Set-Aside

Program; therefore, the interim rule is issued to 36 CFR part 223--Sale

and Disposal of National Forest System Timber, under Subpart B rules

dealing with contract administration. The Set-Aside Program appeal

procedures are set out at a new Sec. 223.118. To the extent possible,

the Department has modeled this very specific appeal procedure on the

other appeal processes administered by the Forest Service in order to

foster common interpretation, consistent processing, and public and

employee understanding.

Paragraph (a) of Sec. 223.118 specifies that the decisions subject

to appeal are the various recomputations of small business shares of

timber sales, namely structural, special, and market change as well as

the scheduled five-year recomputations.

Paragraph (b) addresses the manner of giving notice of proposed and

actual recomputation decisions. Paragraph (b)(1) of the interim rule

requires the agency to give predecisional notice and opportunity to

comment on ``draft'' recomputation decisions. Timber sale purchasers in

the affected area will have 30 days to review the draft decision and

supporting data and to provide comments. The Responsible Official has

15 days to review and consider the comments and to make and give notice

of the recomputation decision. This approach is consistent with the

predecisional notice and comment procedures of the agency's principal

appeal rules at 36 CFR part 215.

Paragraph (b)(2) of the interim rule requires the Responsible

Official to give written notice of the final decision to all purchasers

on the timer sale bidders list for the affected area and to advise them

of appeal rights and filing procedures. This decision notice must

identify the name of the Appeal Deciding Officer to whom a appeal of

the decision may be filed, the address, and the deadline for filing.

Paragraph (c) of Sec. 223.118 specifies that only timber sale

purchasers on the bidders list for the affected area who have submitted

predecisional comments pursuant to paragraph (b) may appeal. This

approach is consistent with that at 36 CFR 215.11, which provides that

prior participation in the decisionmaking process is a condition of

appeal. However, unlike the rules at 36 CFR 215.11, this interim rule

does not permit interested parties (parties other than affected

purchasers of their representative) to submit views for consideration

in the appeal process. Since only purchasers are directly affected by

the recomputation of the small business share of the local timber sale

program, there is no apparent need to provide for participation of

interested parties.

Paragraph (d) of the interim rule provides for one level of appeal

and notes that generally appeals are conducted by the Regional

Forester. Consistent with the approach under 36 CFR part 215, only one

level of appeal is provided.

Paragraph (e) provides 20 days to file a notice of appeal with the

Appeal Deciding Officer.

Paragraph (f) sets out the minimums information that must be

included in a notice of appeal. The requirements in paragraph (f)(2)

constitute an information collection as defined by the Paperwork

Reduction Act and are described in detail later in the preamble under

the heading ``Controlling Paperwork Burden on the Public.'' This

provision of the rule is not effective until the Office of Management

and Budget approves the information requirement. Emergency approval of

the information required in a notice of appeal has been requested from

the Office of Management and Budget. The agency will give notice of the

number assigned to the information required by paragraph (f) along with

the effective date which will be published in the Federal Register. In

the meantime, the public is invited to submit comments on this

collection.

Paragraph (g) addresses the filing periods, how time periods are

calculated, and how timeliness is determined. These procedures are

basically the same as those already in use with other Forest Service

appeal procedures under 36 CFR parts 215, 217, and 251, subpart C.

Paragraph (h) sets out the three circumstances under which an

appeal will be dismissed without a decision. These are consistent with

dismissal of appeals under part 215.

Paragraph (i) defines the record on which the Appeal Deciding

Officer must base the appeal decision. In the interest of an efficient

and timely appeal process, the record is limited to the written

decision, supporting documentation, the notice of appeal, and the

responsive statement, if any. Also, the Responsible Official is given

only seven days to gather and assemble the record and to transmit it to

the Appeal Deciding Officer.

Paragraph (j) requires the Appeal Deciding Officer to issue the

appeal decision in writing within 30 days of the cost of the appeal

period.

Paragraph (k) addresses implementation of recomputation decisions

during pendency of appeals. It provides that if an appeal is not

resolved by April 1 following the end of the 5-year recomputation

period, the Responsible Official will proceed to implement the

decision. If the appeal decision changes the shares, the necessary

adjustments will be made in the remaining portion of the 5-year period.

Paragraph (l) requires that timber purchasers be given an

opportunity to review and comment on significant changes in the Small

Business Timber Sale Set-Aside program or policy prior to adoption and

implementation. This opportunity will be given through Federal Register

notice and is consistent with the agency's treatment of all other major

policy decisions.

The sequence and content of the rules of Sec. 223.118 are modeled

on those of 36 CFR part 215. The interim rule adopts the same rules of

procedure with regard to the content of the notice of appeal, timely

filing, appeal record, dismissal, and timeframe for decisions. These

rules are well understood by those who have participated in Forest

Service administrative appeals, including many timber sale purchasers

or their representatives, and, therefore, should facilitate appellant

understanding and use of these appeal procedures.

Environmental Impact

This interim rule would establish uniform procedures for providing

qualifying timber purchasers the opportunity to review, comment, and

appeal decisions on recomputed shares of the small business timber sale

set-aside program. Section 31.1b of Forest Service Handbook 1909.15 (57

FR 43180; September 18, 1992) excludes from documentation in an

environmental assessment or impact statement ``rules, regulations, or

policies to establish Service-wide administrative procedures, program

processes, or instructions.'' The agency's assessment

[[Page 13828]]

is that this interim rule falls within this category of actions and has

no direct or indirect environmental impact, and that no extraordinary

circumstances exist which would require preparation of an environmental

assessment or environmental impact statement.

However, comments are invited and will be considered in making a

final determination upon adoption of the final rule.

Controlling Paperwork Burdens on the Public

The information that would be collected from timber sale purchasers

who appeal recomputation of shares under the Small Business Timber Sale

Set-Aside Program is the minimum needed for an Appeal Deciding Officer

to reach informed conclusions about decisions appealed under this rule.

Description of Information Collection

Title: Small Business Timber Sale Set-Aside Program; Appeal

Procedures on Recomputations of Shares.

OMB Number: New.

Expiraiton Date of Approval: New.

Type of Request: The following collection requirements are new and

have not received approval by the Office of Management and Budget.

Abstract: This collection would consist of information provided by

purchasers who object to a recomputation decision of timber sales to be

set aside for small timber purchasers. The information to be provided

shows why the appellant believes the recomputation decision should be

overturned.

Estimate of Burden: The public reporting burden to provide comments

or prepare a notice of appeal pursuant to the interim rule is estimated

to average 4 hours per response.

Respondents: Large and small businesses purchasing National Forest

System timber sales or their agents.

Estimated Number of Respondents: 40.

Estimated Number of Responses per Respondent: 2.

Estimated Total Annual Burden on Respondents: 320 hours.

Comments are Invited on: (a) Whether the proposed collection of

information is necessary for the proper performance of the functions of

the agency, including whether the information will have practical

utility; (b) the accuracy of this agency's estimate of the burden of

the proposed collection of information, including the validity of the

methodology and assumptions used; (c) ways to enhance the quality,

utility, and clarity of the information to be collected; and (d) ways

to minimize the burden of the collection of information on respondents;

including the use of automated collection techniques or other forms of

information technology.

Use of Comments

All comments received on the information requirements in response

to this rulemaking notice will be summarized and included in the

subsequent routine request for OMB approval of the information

collection. All comments, including names and addresses where provided,

will also become a matter of public record.

Unfunded Mandates Reform

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,

which the President signed into law on March 22, 1995, the Department

has assessed the effects of this rule on State, local, and tribal

governments and the private sector. This interim rule does not compel

the expenditure of $100 million or more by any State, local, or tribal

governments or anyone in the private sector. Therefore, a statement

under section 202 of the Act is not required.

Regulatory Impact

This interim final rule has been reviewed under USDA procedures and

Executive Order 12866 on Regulatory Planning and Review. It has been

determined that this is not a significant rule. This rule will not have

an annual effect of $100 million or more on the economy nor adversely

affect productivity, competition, jobs, the environment, pubic health

or safety, nor State or local governments. This interim rule will not

interfere with an action taken or planned by another agency nor raise

new legal or policy issues. Finally, this action will not alter the

budgetary impact of entitlements, grants, user fees, or loan programs

or the rights and obligations or recipients of such programs.

Accordingly, this interim rule is not subject to OMB review under

Executive Order 12866.

Pursuant to 5 U.S.C. 605(b), it is hereby certified that this

interim rule has been considered in light of the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.) and that this action will not have a

significant economic impact on a substantial number of small entities

as defined by that Act. The interim rule imposes no additional

requirements on small business timber sale purchasers or other small

entities. It merely implements legislative intent to provide small

purchasers a new administrative appeal opportunity. To facilitate

preparation and conduct of timber sale set-aside appeals, the agency

has kept the appeal procedures as streamlined and simple as possible.

No Takings Implications

This interim rule has been analyzed in accordance with the

principles and criteria contained in Executive Order 12630, and it has

been determined that the rule does not pose the risk of a taking of

Constitutionally-protected private property. This interim rule gives

opportunity to qualifying timber sale purchasers to ensure that small

businesses have the opportunity to purchase a fair proportion of

National Forest System timber offered for sale.

Civil Justice Reform Act

This interim rule has been reviewed under Executive Order 12778,

Civil Justice Reform. If this interim rule were adopted, (1) all state

and local laws and regulations that are in conflict with this interim

rule or which would impede its full implementation would be preempted;

(2) no retroactive effect would be given to this interim rule; and (3)

it would not require administrative proceedings before parties may file

suit in court challenging its provisions.

Summary

This interim rule complies with the congressional intent of the

conference report on the Fiscal Year 1997 Omnibus Appropriations Act by

reinstating an administrative appeal opportunity for timber sale

purchasers of small business timber sale share recomputation decisions

in a manner consistent with previous appeal procedures and subsequent

statutory predecisional notice and comment provisions. To enhance both

employee and purchaser understanding, this interim rule models the

provisions of other administrative appeal rules already in place (36

CFR part 215, 217, and 251) to the extent possible. The Department

invites written comment on this interim final rule. Notice of the final

rule, including discussion of comments received, will be published in

the Federal Register.

List of Subjects in 36 CFR Part 223

Exports, Government contracts, National forests, Reporting

requirements, Timber sales.

Therefore, for the reasons set forth in the preamble, Subpart B of

Part 223 of Title 36 of the Code of Federal Regulations is hereby

amended as follows:

PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER

1. The authority citation for Part 223 continues to read as

follows:

[[Page 13829]]

Authority: 90 Stat. 2958, 16 U.S.C. 472a; 98 Stat. 2213, 16

U.S.C. 618; 104 Stat. 714-726, 16 U.S.C. 620-620h, unless otherwise

noted.

2. Add a new Sec. 223.118 to subpart B to read as follows:

Sec. 223.118 Appeal process for small business timber sale set-aside

program share recomputations.

(a) Decisions subject to appeal. The rules of this section govern

appeal of decisions about structural, special, market change, or the

scheduled five-year recomputations of the small business share of

timber sales. Only those timber sale purchasers who have submitted

written comments to the Responsible Official on the draft recomputed

share decision, or their representatives, are eligible to appeal a

decision.

(b) Manner of giving notice--(1) Predecisional notice and comment.

Qualifying timber sale purchasers that may be affected by

recomputations shall be given 30 days for predecisional review and

comment on any draft decision to reallocate shares, including the data

used in making the proposed recomputation decision.

(2) Notice of Decision. Upon close of the 30-day review period, the

Responsible Official shall consider any comments reviewed. Within 15

days following the end of the comment period, the Responsible Official

shall make the decision on the small business shares and shall give

prompt written notice to all parties on the national forest timber sale

bidders list for the affected area. The notice shall identify the name

of the Appeal Deciding Officer to whom an appeal of the decision may be

filed, the address, the date by which an appeal must be filed, and

where the purchaser may obtain the appeal procedure and requirements.

(c) Who may appeal. Only timber sale purchasers affected by

recomputations of the small business share of timber sales, or their

representatives, who have submitted predecisional comments pursuant to

paragraph (b)(1) of this section may appeal recomputation decisions

under this section. Intervenors are not allowed in appeals under this

section.

(d) Level of appeal. Only one level of review is available for

appeal of decisions pertaining to recomputations under the Small

Business Timber Set-Aside Program. The Appeal Deciding Officer is the

official one level above the level of the Responsible Official who made

the recomputation of shares decision. The Responsible Official is

normally the Forest Supervisor; thus, the Appeal Deciding Officer is

normally the Regional Forester. However, when the Regional Forester

makes recomputation decisions, the Appeal Deciding Officer is the Chief

or such officer at the National headquarters level as the Chief may

designate.

(e) Filing procedures. In order to file an appeal under this

section, an appellant must file a notice of appeal, as specified in the

notice of decision, with the Appeal Deciding Officer within 20 days of

the date on the notice of the decision. This date shall be specified in

the notice of decision given pursuant to paragraph (b)(2) of this

section.

(f) Content of notice of appeal. (1) It is the responsibility of

the appellant to provide sufficient narrative evidence and argument to

show why a recomputation decision by the Responsible Official should be

reversed or changed.

(2) An appellant must include the following information in a notice

of appeal:

(i) The appellant's name, mailing address, and daytime telephone

number;

(ii) The title or type of recomputation decision involved, the date

of the decision, and the name of the Responsible Official;

(iii) A brief description and date of the decision being appealed;

(iv) A statement of how the appellant is adversely affected by the

decision being appealed;

(v) A statement of the facts in dispute in the issue(s) raised by

the appeal;

(iv) Specific references to any law, regulation, or policy that the

appellant believes to have been violated and the basis for such as

allegation;

(vii) A statement as to whether and how the appellant has tried to

resolve with the Responsible Official the issue(s) being appealed,

including evidence of submission of written comments at the

predecisional stage as provided by paragraph (a) of this section, the

date of any discussion, and the outcome of that meeting or contact; and

(viii) A statement of the relief the appellant seeks.

(g) Time periods and timeliness. (1) All time periods applicable to

this section will begin on the first day following a decision or action

related to the appeal.

(2) Time periods applicable to this section are computed using

calendar days. Saturdays, Sundays, or Federal holidays are included in

computing the time allowed for filing an appeal; however, when the

filing period would expire on a Saturday, Sunday, or Federal holiday,

the filing time is automatically extended to the end of the next

Federal working day.

(3) It is the responsibility of those filing an appeal to file the

notice of appeal by the end of the filing period. In the event of

questions, legible postmarks on a mailed appeal or the time and date

imprint on a facsimile appeal will be considered evidence of timely

filing. Where postmarks or facsimile imprints are illegible, the Appeal

Deciding Officer shall rule on the timeliness of the notice of appeal.

(4) Time for filing a notice of appeal is not extendable.

(h) Dismissal without decision. The Appeal Deciding Officer shall

dismiss an appeal and close the record without a decision in any of the

following circumstances:

(1) The appellant is not on the timber sale bidders list for the

area affected by the recomputation decision;

(2) Appellant's notice of appeal is not filed within the required

time period; or

(3) The appellant did not submit written comments on the proposed

decision of the new recomputed shares as required by paragraph (c) of

this section.

(i) Appeal record. The appeal record consists of the written

decision being appealed, any predecisional comments received, any other

supporting data used to make the decision, the notice of appeal, and if

prepared, a responsive statement by the Responsible Official which

addresses the issues raised in the notice of appeal. The Responsible

Official must forward the record within 7 days of the date the notice

of appeal is received. A copy of the appeal record will be

simultaneously submitted to the appellant.

(j) Appeal decision. The Appeal Deciding Officer shall review the

decision and appeal record and issue a written appeal decision to the

parties within 30 days of the close of the appeal period. The Appeal

Officer may affirm or reverse the Responsible Official's decision, in

whole or in part. There is no extension of the time period for the

appeal decision. If the decision is not rendered within the required 30

days, the existing decision is automatically affirmed. The Appeal

Deciding Officer's decision or the failure of the Appeal Deciding

Officer to decide within the required 30 days constitutes the final

administrative decision of the Department of Agriculture.

(k) Implementation of decisions during pendency of appeal.

Recomputation of shares arising from a scheduled five-year

recomputation are effective on April 1 following the end of the five-

year period being considered. If an appeal that may affect the shares

for the next five-year period is not resolved by the April 1 date, the

share decision

[[Page 13830]]

announced by the Responsible Official shall be implemented. If an

appeal decision results in a change in the shares, the revised total

share of the Small Business Timber Sale Set-Aside Program shall be

accomplished during the remaining portion of the five-year period.

(l) Timber sale set-aside policy changes. Timber purchasers shall

receive an opportunity, in accordance with all applicable laws and

regulations, to review and comment on significant changes in the Small

Business Timber Sale Set-Aside program or policy prior to adoption and

implementation.

Dated: March 17, 1997.

Brian Eliot Burke,

Deputy Under Secretary, Natural Resources and Environment.

[FR Doc. 97-7274 Filed 3-21-97; 8:45 am]

BILLING CODE 3410-11-M