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

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 223

RIN 0596-AB62

Small Business Timber Sale Set-Aside Program; Appeal Procedures

on Recomputation of Shares

AGENCY: Forest Service, USDA.

ACTION: Final rule.

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[[Page 407]]

SUMMARY: This final rule establishes procedures by which timber

purchasers may comment on an appeal the recomputation of shares and

related decisions made under the Small Business Timber Sale Set-aside

Program. This rule clarifies the kinds of decisions that are subject to

appeal, who may appeal decisions, the procedures for appealing

decisions, the timelines for appeal, and the contents of the notice of

appeal. The intended effect is to provide an opportunity for timber

sale purchasers to appeal small business shares as called for in the

conference report accompanying the Fiscal Year 1997 Omnibus

Appropriations Act. This final rule supersedes the interim rule

published March 24, 1997.

DATES: This final rule is effective January 20, 1999.

FOR FURTHER INFORMATION CONTACT: Rod Sallee, Forest Management Staff,

(202) 205-1766.

SUPPLEMENTARY INFORMATION:

Background

Developed in cooperation with the Small Business Administration,

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

designed to ensure that qualifying small business timber purchasers

have the opportunity to purchase a fair proportion of National Forest

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

adopted July 26, 1990 (55 FR 30485).

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

timber sales to be set aside for qualifying small businesses every 5

years on the actual volume of sawtimber that has been purchased and/or

harvested by small business. Also, shares must be recomputed if there

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

changes, or if certain purchasers discontinue operations. Direction to

guide employees in administering the Small Business Timber Sale Set-

aside Program is issued in the Forest Service Manual, Chapter 2430, and

Chapter 90 of the Forest Service Timber Sale Preparation Handbook (FSH

2409.18).

In 1992, the agency adopted new administrative appeal procedures at

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

apply to certain National Forest System project-level decisions for

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

been prepared. Because the recomputation of shares under the Small

Business Timber Sale Set-aside Program is not subject to documentation

in an EA or EIS, the decisions on the 1996-2000 Forest Service

recomputation of small business shares were not subject to the new

appeal procedures. However, since the agency had accepted appeals of

recomputation decisions under 36 CFR part 217 prior to adoption of part

215, the agency decided to establish procedures for providing notice to

affected purchasers with opportunity to comment on the recomputation of

shares. Notice of these procedures was published in the Federal

Register on February 28, 1996 (61 FR 7468).

The Conference Report accompanying the 1997 Omnibus Appropriation

Act (Pub. L. 104-208) found the Forest Service decision to eliminate an

administrative appeals opportunity for the Small Business Timber Sale

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

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

Report required that the agency establish a process by which purchasers

may appeal decisions concerning recomputations of Small Business Set-

Aside (SBA) shares, structural recomputations of SBA shares, or changes

in policies impacting the Small Business Timber Sale Set-Aside Program.

It also provided that, as in the past, decisions related to the

designation of the sales to be set aside are not subject to appeal. An

interim rule published March 24, 1997 (62 FR 13826), went into effect

immediately to comply with the Conference Report accompanying the FY

1997 Omnibus Appropriations Act. However, the agency also requested

comment on the interim rule.

Response to Comments Received

Fifteen responses were received on the interim rule. Comments were

received from 13 purchasers, one timber industry representative

reflecting the joint views of four industry associations, and the Small

Business Administration. A summary of the comments and the Department's

response follows:

General Comments

Comment: Fairness and balance of the rule. One timber industry

reviewer remarked that the rules were not fair or balanced and should

be rejected.

Response. This respondent did not specify what is unfair or

unbalanced in the interim rule and did not provide suggestions for

modifying or improving the regulations. Therefore, the Department is

unable to address the respondent's concerns directly. Nevertheless, the

Department believes the final rule is fair and balanced with regard to

both the decisions that can be appealed and who may participate in

appeals.

Comment: Large purchasers influence. One respondent stated that the

interim rule gives ``undue influence to non-small business timber

purchasers'' and, as a result, limits the small business community's

opportunity to purchase a fair proportion of National Forest System

timber offered for sale.

Response. It appears that this respondent does not understand that

the interim rule applies both to small and large businesses. The

interim rule limits neither party's opportunity to purchase National

Forest System timber and gives all purchasers within the area,

regardless of size, equal opportunity to comment on and appeal the

market share computations. Because the respondent was not specific

about how the rule gives ``undue influence to non-small business timber

purchasers,'' the Department is unable to address this comment in more

depth.

Comment: Include appeals under 36 CFR part 251, subpart C. Several

respondents suggested placing the Small Business Timber Sale Set-Aside

Program appeal rule under 36 CFR part 251, subpart C, Appeal of

Decisions Relating to Occupancy and Use of National Forest Systems

Lands. In particular, an organization representing timber purchasers

asserted that the Forest Service had never explained why timber

purchasers are not afforded the same appeal procedures as other

National Forest System commercial users, such as holders of grazing,

mining, and special use permits.

Response. Regulations at 36 CFR part 251, subpart C, set our

procedures for appealing decisions related to occupancy and use of

National Forest System lands through the issuance of written

authorizations. By contrast, timber sales are governed by contracts,

and contracts disputes are governed by the Contract Disputes Act of

1978 (41 U.S.C. 601 et seq.) settled by the Agriculture Board of

Contract Appeals under 7 CFR part 24. Moreover, the nature of the timer

sale set-aside decisions which are subject to appeal under 36 CFR

223.118 are more limited than those decision appealable under 36 CFR

part 251, subpart C, and the set-aside decisions precede the request

for bids and award of contracts, a prerequisite for appeal under 36 CFR

part 251. The Small Business Timber Sale Set-Aside Appeal process gives

purchasers the opportunity to appeal discrepancies in data related to

the share of timber to be made available for bidding by large and small

businesses, as well as other decisions about the recomputation process.

The Department believes trying to intermingle the set-aside sale

decisions and appeal

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procedures in part 251, subpart C, would unnecessarily complicate the

appeal process and prove burdensome to the appellant and the agency.

However to the extent possible, the Department has made the Small

Business Timber Sale Set-Aside Appeal regulations consistent with the

procedural rules governing the appeal of other Forest Service decisions

under 36 CFR parts 215 and 217 in the belief that providing similar

appeal procedures for recomputation of shares and related decisions at

36 CFR part 223 should facilitate appellant understanding and use.

Comments on Specific Provisions of the Interim Rule

Section 223.118(a) Decisions subject to appeal. Paragraph (a) of

Sec. 223.118 specifies that only those decisions leading to

recomputation of shares in the Small Business Timber Sale Set-Aside

Program are subject to appeal. Decisions leading to the recomputation

of shares include structural change, special change, and market change

decisions as well as the scheduled 5-year recomputations of the small

business share of timer sales.

Comment. Five respondents suggested that the range of decisions

subject to appeal should be expanded to include other critical

decisions, such as changes in delineation of market areas and decisions

to initiate a Small Business Timber Sale Set-Aside Program within the

market area (trigger decisions). By contrast, the Small Business

Administration (SBA) indicated that they would like to make certain

that the types of decisions subject to appeal in paragraph (a) of the

interim rule remain restricted to those listed in the interim rule as

structural, special, market change, or the scheduled 5-year

recomputation of the small business share of timber sales. The SBA

specifically disagreed with suggestions by some small purchasers that

decisions selecting the sales to be designated as timber set-aside

sales should also be appealable.

Response. Because the SBA has the key responsibility for

administering the overall Small Business programs, the Department

concurs with SBA's recommendation not to expand the appeal categories.

However, having considered industry comments, the Department

believes some clarification of the intended range and type of decisions

that are subject to appeal would be helpful. Some changes in the Small

Business Timber Sale Set-Aside Program require decisions to be made at

two different times; for example, structural changes have two decision

points--the first is the decision that a structural change is needed.

This is followed by a later decision that recomputes and establishes a

new small business share recomputation. Other unique situations, such

as carryover volume, may require two decisions, first, determining the

next recomputation period and, secondly, recomputing the shares. In

both cases, decisions made at the earlier stage as well as the later

stage are appealable. Paragraph (a) of the final rule has been revised

to clarify which decisions are appealable.

The second sentence is paragraph 228.118(a) of the interim rule

described who may appeal recomputation related decisions. Since the

substance of this provision is already set out in paragraph (c), Who

may appeal or file written comments as an interested party, this

sentence is redundant and has been removed from paragraph (a) in the

final rule.

Section 223.118(b)(1) Predecisional notice and comment. No comment

was received on this regulatory provision; therefore, no substantive

changes have been made to the text in the final rule.

Section 223.118(b)(2) Notice of decision. Paragraph (b)(2) requires

the Responsible Official, upon close of the 30-day predecisonal review

period, to consider any comments received, make a decision on the small

business shares or related matters, and give prompt notice to all

parties on the bidders' list for the bid area.

Comment. The Small Business Administration suggested that the

Forest Service and the Small Business Administration make a joint

decision on the small business shares, requiring the signature of

officials from both agencies on the Notice of Decision.

Response. Agency officials ``cooperate fully with Small Business

Administration representatives in meeting the spirit and objectives of

the small business timber sale set-aside programs'' (FSM 2436.03).

Nevertheless, it would be unwieldy and time-consuming the require

approval of both agencies each time a decision on a Small Business

Timber Sale Set-Aside matter is made. Moreover, the administration of

the timber sale set-aside program, including decisions on recomputation

of shares, is ultimately the responsibility of the Forest Service. For

these reasons, the Department has not adopted this recommendation.

Section 223.118(c) Who may appeal or file written comments. This

provision of the interim rule provides that only timber sale purchasers

who are affected by the recomputations of the small business share of

the timber sale program, or their representatives, and who have

submitted predecisional comment may appeal recomputation decisions.

Comment. Several respondents agreed with the interim rule

requirement limiting appeal to timber sale purchasers who are on the

bidders' list for the affected area and who have submitted

predecisional comments. However, one respondent suggested that both

small and large businesses be given the opportunity to provide comment

as an interested party to any appeal submitted and several recommended

allowing interveners.

Response. While the intent of the interim rule was to give both

small and large business the opportunity to participate as appellants

in the appeal process, the interim rule did not provide for interested

parties to participate. In light of the comment on this provision, the

Department has reconsidered and consequently has revised the final rule

at Sec. 223.118(c)(1) through (c)(3) to allow timber sale purchasers

who are affected by recomputation decisions and who submitted

predecisional comment to submit written comment as an interested party

to the Appeal Deciding Officer within 15 days after the close of the

appeal filing period for any filed appeal.

Comment. One respondent remarked that a timber purchasing firm with

legitimate interest in being an appellant might not have filed earlier

comments in the firm's name, because the comments were filed in the

name of an association to which the firm belongs. In this case, if the

association does not wish to pursue an appeal, but one of its members

firms wants to appeal, the respondent felt that the member firm should

not be barred from filing an appeal based on the fact that it was not

an entity that had commended earlier.

Response. The Department disagrees that the member firm should have

the right to appeal without having commented as an individual timber

sale purchaser on the predecisional notice. However, the agency has

reconsidered who may be considered interested parties to an appeal and,

subsequently, has amended the language in the final rule to allow

member firms to file comments on an appeal as an interested party.

Paragraph (c)(2) of Sec. 223.118 clarifies that a timber sale purchaser

is considered an interested party, even if an association of which they

are a member files comments but decides not to appeal. The rule makes

clear that if an association appeals but the individual timber sale

purchaser did not file an individual predecisional

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comment, then the purchaser is not eligible to file a separate appeal.

Comment. One respondent suggested that affected purchasers be

defined as small business companies employing less than five hundred

employees.

Response. The Department disagrees that affected purchasers should

be limited to small businesses and that only small businesses should be

able to appeal small business share decisions. The small business set-

aside program is designed to allocate shares among small and large

businesses and, therefore, large and small businesses are equally

eligible to appeal recomputation decisions or file written comments as

interested parties.

Section 223.118(d) Level of appeal. This provision of the interim

rule provides for one level of appeal and notes that the Appeal

Deciding Officer is normally the Regional Forester.

Comment. One respondent suggested that appeals under this rule be

decided by the highest official in the Forest Service.

Response. The Department disagrees with this suggestion. Share

decisions are located decisions affecting a defined market area. The

land management official who oversees timber sales for the area is best

prepared to make such a decision. Issues can best be understood and

addressed through local dialogue. Also, this provision is consistent

with the general appeal process at 36 CFR part 215, which provides only

one level of appeal.

Section 223.118(e) through (h)(2). No comments were received on

paragraphs Sec. 223.118(e) through (h)(2) of the interim rule;

therefore, these paragraphs are retained as they appeared in the

interim rule, except for minor editorial changes.

Section 223.118(h) Dismissal without decision. The agency

determined that further clarification was needed to specify what

information is required in order to review an appeal and to clarify

that an appeal will be dismissed without decision unless that

information is provided. Therefore, a new paragraph (h)(3) is added to

this section which states that the Appeal Deciding Officer must dismiss

an appeal if the appellant's notice of appeal does not contain the

information required by paragraph (f) of this section. Paragraph (h)(3)

of the interim rule is retained but is redesignated paragraph (h)(4) in

the final rule.

Section 223.118(i) Appeal record. No comments were received on this

provision and, subsequently, no substantive changes are made to this

paragraph in the final rule.

Section 223.118(j) Appeal decision. This provision of the interim

rule states that the Appeal Deciding Officer shall review the decision

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

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

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

whole or in part. The time period for issuing the appeal decision may

not be extended. Additional provisions of this paragraph of the interim

rule state that if a decision is not rendered within the required 30

days, the existing decision is automatically affirmed. The Appeal

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

Officer to decide within the required 30 days would constitute a final

administrative decision of the Department of Agriculture.

Comment. Ten respondents suggested requiring a formal response to

an appeal rather than allowing automatic affirmation of the existing

decision if no formal response was made within 30 days.

Response. Upon reconsideration, the Department agrees with this

suggestion. Accordingly, the final rule at Sec. 223.118(j) is revised

to require the Appeal Deciding Officer to issue a written appeal

decision to the parties within 30 days of the close of the appeal

period. The provision in the interim rule at Sec. 223.118(j), which

affirmed the decision under appeal if no formal response is made within

30 days, is not retained in the final rule.

Comment. Several respondents suggested allowing oral presentation

during the appeal process. In addition, one respondent remarked that

Sec. 215.16 of this chapter of the Code of Federal Regulations allows

parties to request a meeting for informal discussions.

Response. The provisions at part 215 of this chapter provide an

informal process for resolving issues concerning National Forest System

projects and activities. The Small Business Timber Sale Set-aside

Appeal process is designed, however, to address discrepancies in data

used to make the recomputation of shares. Because of the factual basis

of the information provided for recomputation appeals, an oral

presentation would not likely be the best medium for presenting data in

an appeal of this type. Furthermore, there is ample opportunity for

informal discussion with he responsible official prior to the decision.

Paragraph (b)(1) of Sec. 223.118 allows 30 days for predecisional

review and comment. However, in response to this comment and to provide

additional opportunity to discuss and clarify factual material, a new

paragraph (j)(2) has been added to permit Appeal Deciding Officers, at

their discretion, to invite an appellant to discuss data relevant to

the appeal.

Comment. Several respondents recommended that responsive statements

be a requirement of the appeals process.

Response. If the Responsible Official and the Appeal Deciding

Officer agree that the information in the appeal records clearly

demonstrates the basis for the decision, then a responsive statement

addressing the points of the appeal is not necessary. If the records do

not adequately demonstrate the basis for the decision, then the

Responsible Official may voluntarily prepare or the Appeal Deciding

Officer may direct that the Responsible Official prepare a responsive

statement. Also, the Appeal Deciding Officer may request additional

information from either the Responsible Official or the appellant for

clarification of appeal issues. The clarifying information must be

based upon information previously documented in the files or in the

appeal. A voluntarily prepared responsive statement or any information

provided as a result of the Appeal Deciding Officer's request for more

information must be made available to both parties. Either party will

have 5 days after the Appeal Deciding Officer receives the additional

information to review and comment on the information, and the appeal

decision period will be extended 5 additional days to accommodate this

review period.

The Appeal Deciding Officer must review the decision and appeal

record and issue a written appeal decision to the parties within 30

days of the close of the appeal period, except, as previously noted,

that period will be extended to 35 days to allow 5 days review by

parties when additional information is requested by the Appeal Deciding

Officer.

Paragraph 223.118(j) of this section has been revised to

incorporate these procedures and timeframes.

Comment. The Small Business Administration suggested that the

regulations include a provision requiring the Appeal Deciding Officer

to consult with the Small Business Administration on appeals of

recomputations.

Response. Forest Service Manual direction already requires

employees to cooperate fully with the Small Business Administration

(FSM 2436.03). In addition, a Forest Service Responsible Official is

required to consult the Small Business Administration when issuing an

initial decision that is subject to appeal (FSH 2409.18, 91).

[[Page 410]]

Administration of the agency's Small Business Administration Program,

including decisions on recomputation of shares, is the responsibility

of the Forest Service; therefore, the Department has not adopted this

recommendation. However, in recognition of the potential value of the

Small Business Administration's participation in the appeals process,

the Department has revised paragraph (c)(2) to include the Small

Business Administration as an interested party to an appeal under this

section.

Section 223.118(k) Implementation of decisions during pendency of

appeal. No comments were received on this provision of the interim

rule; therefore, the paragraph is retained without change in the final

rule.

Section 223.118(l) Timber sale set-aside policy changes. The agency

received no comment on paragraph Sec. 223.118(l) of the interim rule;

therefore, this paragraph is retained without change in the final rule.

As stated in the preamble of the interim rule, timber purchasers are

given an opportunity to review and comment on significant changes in

the Small Business Timber Sale Set-aside program or policy prior to

adoption and implementation. This opportunity is given through Federal

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

other major policy decisions.

Controlling Paperwork Burdens on the Public

In the interim rule, the agency requested comment on the

information collection requirement for the Small Business Timber Sale

Set-aside Program, Office of Management and Budget number 0596-0141.

The information required by paragraph (f) of the interim rule must be

provided by purchasers who object to the decision recomputing timber

sales to be set aside for small timber purchasers and who wish to file

an appeal.

Comment. One respondent commented that the estimates of the time

required to prepare appeals of Small Business Timber Sale Set-aside

decisions were too low. This respondent assumed that an appellant would

have to develop an individual database, and, under this assumption, the

reviewer stated that it would take 4-hours per market area per 6-month

period to collect the Small Business Set-aside decision appeal

information into a data-base. This respondent suggested that the burden

be increased to 8 hours per market area to analyze any proposed change

and 2 hours to write the comments. Another respondent indicated that

the agency's estimate of the burden of the proposed collection is ``way

low.'' This respondent also said that managing the information

collection electronically would reduce the burden of collection.

Response. The requirements in Sec. 223.118 (f) set out the

information that must be provided in a notice of appeal of

recomputations of Small Business Set-aside Timber Sale shares or

related decisions. The agency does not expect that appellants would

need to establish an individual database in order to collect this

information, since commercial databases are already available which

provide easy, fast access to recomputation-related information.

Furthermore, the agency recognizes that the time to prepare a

collection would vary depending on the appeal issue. The estimate of

the burden of the proposed collection is intended to be an average of

the time that might be required to file an appeal under these

regulations. Therefore, the Department does not agree that an

adjustment to the number of hours is needed.

Comment. One respondent thought that the proposed collection of

information appears reasonable except for the requirements of paragraph

(f)(2)(vi) of the rule, which requires the appellant to list specific

references to any law, regulation, or policy that the appellant

believes to have been violated and the basis for such an allegation,

and paragraph (f)(2)(vii), which requires a statement as to whether and

how the appellant has tried to resolve with the Responsible Official

the issue(s) being appealed, including evidence of submission of

written comments at the predecisional stage. The respondent indicated

that listing legal references does not add meaningful information and

remarked that the burden of documenting how issues have been resolved

should be shared between the appellant and the Responsible Official.

Response. The Department agrees that in some circumstances the

requirements of paragraph (f)(2)(vi) may not apply to the decision

being appealed and, accordingly, has edited the provision to indicate

that this information is needed only if the appellant believes a law,

regulation, or order is being violated. Paragraph (f)(2)(vii) is

intended to encourage resolution of the issues in the spirit of an

informal administrative process and, thus, avoid entering into a formal

appeal process. Documenting whether and how such issue resolution

occurred is not intended to be burdensome, but the information is

necessary to provide evidence that the party did submit predecisonal

comments and, therefore, is eligible to appeal. Accordingly, the

Department does not agree that a change in paragraph (f)(2)(vii) is

necessary.

This information collection has been reviewed by the Office of

Management and Budget according to the provisions of the Paperwork

Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and implementing

regulations at 5 CFR part 1320. The Office of Management and Budget has

approved information requirements and assigned control number 0596-

0141, which expires May 31, 2000.

The preamble to the interim rule stated that when the information

collection was approved by the Office of Management and Budget, a

separate notice would be published in the Federal Register announcing

the effective date of the information requirements. Although the agency

received this approval, due to an oversight, the agency did not publish

notice of that approval prior to publication of this final rule. The

final rule contains a new paragraph (m) which sets forth the

information collection control number.

Other Comments

Several respondents commented on other aspects of the timber sale

set-aside program. Two respondents said the small business appeal

process was not needed. One reviewer commented on the difficulty that

small companies have bidding against large companies. These comments

are beyond the scope of this rulemaking, and, therefore, not addressed

as part of this final rule.

Conclusion

Based on the comments received, the interim rule has been revised

to clarify decisions subject to appeal, to allow interested party

participation, to modify information requirements in an appeal, to

allow the Appeal Deciding Officer to request additional information

from the appellant or a responsive statement from the Responsible

Official, to remove automatic affirmation of the existing decision, and

to clarify the filing procedure, when appeals may be dismissed without

decision, and the appeal decision process. The final rule offers

affected timber purchasers of any size the opportunity to appeal

decisions related to the recomputation of share calculations for the

Timber Sale Set-aside Program.

Environmental Impact

This final rule would establish uniform procedures for providing

qualifying timber purchasers the opportunity to review, comment on, and

[[Page 411]]

appeal decisions on recomputed shares of the Timber Sale Set-aside

Program. Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43180;

September 18, 1992) excludes from documentation in an environmental

assessment or impact statement ``rules, regulations, or policies to

establish Service-wide administrative procedures, program processes, or

instructions.'' The agency's assessment is that this final rule falls

within this category of actions and has no direct or indirect

environmental impact, and that no extraordinary circumstances exist

which would require preparation of an environmental assessment or

environmental impact statement. No comments were received to the

contrary.

Unfunded Mandates Reform

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

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

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

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

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

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

under section 202 of the Act is not required.

Regulatory Impact

This final rule has been reviewed under USDA procedures and

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

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

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

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

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

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

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

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

the rights and obligations of recipients of such programs. Accordingly,

this final rule is not subject to Office of Management and Budget

review under Executive Order 12866.

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

rule has been considered in light of the Regulatory Flexibility Act (5

U.S.C. 60 et seq.) and that this action will not have a significant

economic impact on a substantial number of small entities as defined by

that Act. The final rule imposes no additional requirements on small

business timber sale purchasers or other small entities. It merely

implements legislative intent to provide small purchasers an

administrative appeal opportunity. To facilitate the preparation and

process of timber sale set-aside appeals, the agency has kept the

appeal procedures as streamlined and as simple as possible.

No Takings Implications

This final rule has been analyzed in accordance with the principles

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

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

Constitutionally-protected private property. This final rule provides

qualifying timber sales purchasers the opportunity to comment on and

appeal the procedures for purchasing a fair proportion of the National

Forest System timber offered for sale and neither abrogates or expands

any rights related to such sales.

Civil Justice Reform Act

This final rule has been reviewed under Executive Order 12788,

Civil Justice Reform, therefore: (1) all state and local laws and

regulations that are in conflict with this final rule or which would

impede its full implementation would be preempted; (2) no retroactive

effect would be given to this final rule; and (3) it would not require

administrative proceedings before parties may file suit in court

challenging its provisions.

List of Subjects in 36 CFR Part 223

Administrative practice and procedure, Exports, Forests and forest

products, Government contracts, National forests, and Reporting and

recordkeeping requirements.

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

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

amended as follows:

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

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

follows:

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

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

noted.

Subpart B--Timber Sale Contracts--[Amended]

2. Revise Sec. 223.118 to subpart B to read as follows:

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

program share recomputation decisions.

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

appeal of recomputation decisions related to structural, special, or

market changes or the scheduled 5-year recomputations of the small

business share of National Forest System timber sales. Certain

decisions related to recomputation of shares, such as structural change

and carryover volume, may require two decisions, one to determine that

a recomputation is needed and the other to recompute the shares.

Decisions made both at the earlier stage as well as the later stage are

appealable.

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

The Responsible Official shall provide qualifying timber sale

purchasers, as defined in paragraph (c)(1) of this section, 30 days for

predecisional review and comment on any draft decision to reallocate

shares, including the data used in making the proposed recomputation

decision.

(2) Notice of decision. Upon close of the 30-day predecisional

review period, the Responsible Official shall consider any comments

received. Within 15 days of the end of the comment period, the

Responsible Official shall make a decision on the small business shares

and shall give prompt written notice to all parties on the national

forest timber sale bidders list for the affected area. The notice of

decision must identify the name of the Appeal Deciding Officer, the

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

obtaining the appeal procedures information.

(c) Who may appeal or file written comments as an interested party.

(1) Only timber sale purchasers, or their representatives, who are

affected by recomputations of the small business share of timber sales

as described in paragraph (a) of this section and who have submitted

predecisional comments pursuant to paragraph (b)(1) of this section,

may appeal recomputation decisions under this section or may file

written comments as an interested party.

(2) Interested parties are defined as the Small Business

Administration and those timber sale purchasers, or their

representatives, who are affected by recomputations of the small

business share of timber sales as described in paragraph (a) of this

section and who have individually, or through an association to which

they belong, submitted predecisional comments pursuant to paragraph

(b)(1) of this section.

(i) A timber sale purchaser may submit comments on an appeal as an

interested party if an association to which the purchaser belongs filed

predecisional comment but later decides

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not to appeal or not to file comments as an interested party.

(ii) A timber sale purchaser, who is a member of an association

that appeals a decision, may not file a separate appeal unless that

purchaser filed separate predecisional comment under paragraph (b)(1).

(3) Interested parties who submit written comments on an appeal

filed by another party may not continue an appeal if the appellant

withdraws the appeal.

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

appeal of decisions pertaining to recomputations under the Small

Business Timber Sale Set-aside Program. The Appeal Deciding Officer is

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

made the recomputation of shares decision. The Responsible Official is

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

normally the Regional Forester. However, when the Regional Forester

makes recomputation decisions, the Appeal Deciding Officer is the Chief

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

designate.

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

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

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

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

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

section. Written comments filed by an interested party in response to

an appeal must be filed within 15 days after the close of the appeal

filing period.

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

the appellant to provide sufficient narrative evidence and argument to

show why a recomputation decision by the Responsible Official should be

reversed or changed.

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

of appeal:

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

number;

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

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

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

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

decision being appealed;

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

raised by the appeal;

(vi) If relevant, any specific references to any law, regulation,

or policy that the appellant believes to have been violated and the

basis for such an allegation;

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

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

including evidence of submission of written comments at the

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

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

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

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

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

related to the appeal.

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

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

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

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

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

Federal working day.

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

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

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

imprint on a facsimile appeal will be considered evidence of timely

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

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

(4) The time period for filing a notice of appeal is not

extendable.

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

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

following circumstances:

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

area affected by the recomputation decision;

(2) The appellant's notice of appeal is not filed within the

required time period;

(3) The appellant's notice of appeal does not contain responses

required by paragraphs (f)(2)(i) through (f)(2)(viii) of this section;

or

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

decision of the new recomputed shares as described in paragraph (c) of

this section.

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

decision being appealed, any predecisional comments received, any

written comments submitted by interested parties, any other supporting

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

a responsive statement by the Responsible Official which addresses the

issues raised in the notice of appeal. The Responsible Official must

forward the record to the Appeal Deciding Officer within 7 days of the

date the notice of appeal is received. A copy of the appeal record must

be sent to the appellant at the same time.

(j) Appeal decision. (1) Responsive statement for appeal decision.

The Appeal Deciding Officer may request the Responsible Official to

prepare a responsive statement. However, if the information in the

files clearly demonstrates the rationale for the Responsible Official's

decision, then a responsive statement addressing the points of the

appeal is not necessary.

(2) Appeal issue clarification. For clarification of issues raised

in the appeal, the Appeal Deciding Officer may request additional

information from either the Responsible Official, the appellant, or an

interested party who has submitted comments on the appeal. At the

discretion of the Appeal Deciding Officer, an appellant or interested

party may be invited to discuss data relevant to the appeal.

Information provided to clarify issues or facts in the appeal must be

based upon information previously documented in the file or appeal. Any

information provided as a result of the Appeal Deciding Officer's

request for more information must be made available to all parties,

that is, to the Responsible Official, the appellant, and interested

parties who have submitted comments on the appeal. All parties will

have 5 days after the Appeal Deciding Officer receives the additional

information to review and comment on the information, and the appeal

decision period will be extended 5 additional days.

(3) Issuance of final decision. The Appeal Deciding Officer shall

review the decision and appeal record and issue a written appeal

decision to the parties within 30 days of the close of the appeal

period except that this period must be extended to 35 days when

additional information is requested by the Appeal Deciding Officer. The

Appeal Officer may affirm or reverse the Responsible Official's

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

for rendering an appeal decision.

(k) Implementation of decisions during pendency of appeal.

Recomputation of shares arising from a scheduled 5-year recomputation

are effective on April 1 following the end of the 5-year period being

considered. If an appeal that may affect the shares for the

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next 5-year period is not resolved by the April 1 date, the share

decision announced by the Responsible Official must be implemented. If

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

share of the Small Business Timber Sale Set-aside Program must be

accomplished during the remaining portion of the 5-year period.

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

receive an opportunity, in accordance with all applicable laws and

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

Business Timber Sale Set-aside Program or policy prior to adoption and

implementation.

(m) Information collection requirements. The provisions of

paragraph (f) of this section specify the information that appellants

must provide when appealing decisions pertaining to recomputation of

shares. As such, these rules contain information requirements as

defined in 5 CFR Part 1320. These information requirements have been

approved by the Office of Management and Budget and assigned control

number 0596-0141.

Dated: December 29, 1998.

Anne Kennedy,

Deputy Under Secretary, Natural Resources and Environment.

[FR Doc. 99-68 Filed 1-4-99; 8:45 am]

BILLING CODE 3410-11-M