[Federal Register: November 17, 2005 (Volume 70, Number 221)]
[Proposed Rules]
[Page 69714-69717]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17no05-22]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 5420
[WO-270-1820-00-24 1A]
RIN 1004-AD70
Preparation for Sale
AGENCY: Bureau of Land Management, Interior.
ACTION: Proposed rule.
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SUMMARY: The Bureau of Land Management (BLM) proposes to amend its
regulations on preparation for timber sales to allow third party
scaling on density management sales with an upper limit on the
quadratic mean diameter at breast height (DBH) of the trees to be
harvested of 20 inches. Third party scaling would be limited to the
situations described in the amended provision, that is, if a timber
disaster has occurred and a critical resource loss is imminent, and
tree cruising and BLM scaling are inadequate to permit orderly disposal
of the damaged timber, or if BLM is carrying out density management
timber sales subject to the size limits stated above. Thus, third party
scaling would generally not be used for sales of higher-value and/or
larger diameter timber. BLM is amending the regulations in order to
improve the efficiency of density management timber sales where the
timber to be harvested may be designated by prescription (a written
prescription included in the timber sale contract). The regulations
will no longer require that BLM perform all scaling except in the event
that a timber disaster is threatening imminent critical resource loss,
and scaling by BLM would be inadequate to permit orderly disposal of
the damaged timber. In the case of density management timber sales when
the quadratic mean DBH of trees to be cut and removed is equal to or
less than 20 inches, the regulations will only allow third party
scaling by scalers or scaling bureaus under contract to BLM.
DATES: Comments must be received, postmarked, or electronically dated
on or before January 17, 2006. BLM will not necessarily consider any
comments received, postmarked, or electronically dated after the above
date in making its decision on the final rule.
ADDRESSES: Mail: Director (630), Bureau of Land Management, Eastern
States Office, 7450 Boston Boulevard, Springfield, Virginia 22153,
Attention: RIN 1004-AD70.
Personal or messenger delivery: 1620 L Street NW., Suite 401,
Washington,
[[Page 69715]]
DC 20036. Internet e-mail: comments_washington@blm.gov.
Federal eRulemaking Portal: http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For technical questions about the
rule, contact Lyndon Werner at (503) 808-6071 or Scott Lieurance at
(202) 452-0316. For procedural questions about the rulemaking process,
contact Ted Hudson at (202) 452-5042. Persons who use a
telecommunications device for the deaf (TDD) may contact these persons
through the Federal Information Relay Service (FIRS) at 1-800-877-8339,
24 hours a day, 7 days a week.
SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures
II. Background
III. Discussion of Proposed Rule
IV. Procedural Matters
I. Public Comment Procedures
Electronic Access and Filing Address
You may view an electronic version of this proposed rule at BLM's
Internet home page: http://www.blm.gov. You may also comment via the Internet to: Comments--Washington@blm.gov. Please also include
``Attention: 1004-AD70'' and your name and return address in your
Internet message. If you do not receive a confirmation from the system
that we have received your Internet message, contact us directly at
(202) 452-5030.
Federal eRulemaking Portal: http://www.regulations.gov.
Written Comments
Written comments on the proposed rule should be specific, should be
confined to issues pertinent to the proposed rule, and should explain
the reason for any recommended change. Where possible, comments should
reference the specific section or paragraph of the proposal which the
commenter is addressing. BLM may not necessarily consider or include in
the Administrative Record for the final rule comments which BLM
receives after the close of the comment period (See DATES) or comments
delivered to an address other than those listed above (See ADDRESSES).
Comments, including names, street addresses, and other contact
information of respondents, will be available for public review at 1620
L Street, NW., Room 401, Washington, DC, during regular business hours
(7:45 a.m. to 4:15 p.m.), Monday through Friday, except Federal
holidays. Individual respondents may request confidentiality. If you
wish to request that BLM consider withholding your name, street
address, and other contact information (such as: Internet address, FAX
or phone number) from public review or from disclosure under the
Freedom of Information Act, you must state this prominently at the
beginning of your comment. BLM will honor requests for confidentiality
on a case-by-case basis to the extent allowed by law. BLM will make
available for public inspection in their entirety all submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses.
II. Background
BLM Districts have been testing different methods of selling
timber, such as Designation-by-Prescription (DxP), attempting to gain
efficiencies, especially with a program comprised of substantially more
density management and small logs than was historically the case. This
testing has revealed that the gain in efficiency by using such methods
is lost due to the regulatory requirement that BLM personnel conduct
all the scaling if a DxP sale is scale as opposed to lump-sum.
Otherwise, scale DxP sales can be more efficient in certain situations
(small diameter density management).
43 CFR 5422.1 states: ``[a]s the general practice, the Bureau will
sell timber on a tree cruise basis,'' which means lump-sum sales.
Section 5422.2(a) states: ``[s]caling by the Bureau will be used from
time to time for administrative reasons.'' Lump-sum is the default, and
there must be an interest-of-the-Government reason to conduct a scale
sale.
43 CFR 5422.2(b) allows third-party scaling when all of three
conditions are met:
(1) A timber disaster has occurred;
(2) A critical resource loss is imminent; and
(3) Lump-sum timber measurement practices are inadequate to permit
orderly disposal of the damaged timber.
Regular commercial density management sales obviously do not meet
these conditions. The definition of third-party scaling found in 43 CFR
5400.0-5 is ``the measurement of logs by a scaling organization, other
than a Government agency, approved by the Bureau.'' This includes the
non-governmental Scaling Bureaus that normally contract with purchasers
to scale in mill yards. BLM does contract with these Scaling Bureaus to
scale for administrative check scales.
Historically, BLM timber sales, particularly in western Oregon,
were clearcuts of high-value large timber. Log accountability was the
principal reason for the aforementioned regulations limiting scale
sales and third-party scaling. These provisions are intended to
minimize the potential for log theft.
Today's sale program, however, has a considerable component of
density management sales in lower-value, smaller-log situations that
meet one or more of the following objectives: Growth enhancement,
habitat restoration, or fuels/fire hazard reduction. Density management
sales are timber sales intended to accomplish these objectives by
removing smaller trees and understory that may inhibit growth or forest
health or contribute to fuel buildup. In addition, density management
sales intended to enhance wildlife habitat may remove some dominant and
co-dominant trees in the forest stand to enhance biological diversity.
Smaller logs cannot be efficiently and effectively truck scaled.
Scaling in the mill yards as trucks are unloaded is faster and more
accurate.
BLM does not intend a major shift to scale sales for density
management. Rather, we seek to have a multifaceted ``tool kit'' of sale
method options in order to maintain as cost effective a program as
possible. It is not in the best interest of the Government to scale all
density management sales. In certain cases, the costs of administering
a lump-sum sale are less than costs of conducting scaling, making the
lump-sum sale the preferred in-the-interest-of-the-Government option.
III. Discussion of Proposed Rule
The proposed rule would add one sentence to section 5422.2 on scale
sales: ``BLM may also order third party scaling, only by scalers or
scaling bureaus under contract to BLM, for the scaling of density
management timber sales when the quadratic mean diameter of the trees
to be cut and removed is equal to or less than 20 inches.'' (The
quadratic mean diameter is a measure used by foresters as an index of
the size of trees in a stand. According to the Dictionary of Forestry,
the quadratic mean diameter is the diameter of the tree corresponding
to the tree of mean basal area. Basal area is the cross-sectional area
of a tree measured at breast height. The basal area of a tree with DBH
equal to the quadratic mean diameter is equal to the mean basal area of
the stand.) This will enable us to conduct density management sales
while taking advantage of the improved economies that third party
scaling may provide, such as by allowing scaling in the mill yards as
trucks are unloaded, which is faster and more accurate.
For the sake of clarity, we also propose to divide section
5422.2(b) into
[[Page 69716]]
three paragraphs, the second of which would comprise this new
provision. Paragraph (b)(1) would consist of the first sentence of
existing paragraph (b), which covers the disaster situation in which
third party scaling is allowed, and paragraph (b)(3) would consist of
the second sentence of existing paragraph (b), which requires that
third party scaling must follow BLM standards in use for timber
depletion computations, so that we can make sure that sales conform
with sustained yield principles. Redesignated paragraph (b)(1) would
also be amended editorially to read in active voice. Neither paragraph
(b)(1) nor (b)(3) would contain substantive changes.
IV. Procedural Matters
Executive Order 12866, Regulatory Planning and Review
This proposed rule is not a significant regulatory action and is
not subject to review by Office of Management and Budget under
Executive Order 12866. The proposed rule will not have an effect of
$100 million or more on the economy. The average cost of contract
scaling is approximately $1.50 per thousand board feet. The approximate
average annual number of sales contracts over the past several years
that would qualify for third party scaling under the proposed rule has
been ten sales. The new provision would enable BLM to prepare and
administer certain contracts (that otherwise qualify to be sold as a
scale sale) more efficiently, saving approximately $90,000 per year.
These savings are not directly passed onto purchasers. There may be a
slight saving to a purchaser of a scale sale over a lump sum sale due
to their not having to conduct pre-sale measures of the sale volume to
the same intensity.
For the same reasons, the proposed rule will not adversely affect
in a material way the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities. The rule would impose no requirements on
any governmental entities.
The proposed rule will not create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency.
The approach in the proposed rule is similar to that of the Forest
Service in using third-party scaling.
The proposed rule does not alter the budgetary effects of
entitlements, grants, user fees, or loan programs or the right or
obligations of their recipients, having no effect on any of these
matters; nor do they raise novel legal or policy issues.
Clarity of the Regulations
Executive Order 12866 requires each agency to write regulations
that are simple and easy to understand. We invite your comments on how
to make these proposed regulations easier to understand, including
answers to questions such as the following:
1. Are the requirements in the proposed regulations clearly stated?
2. Do the proposed regulations contain technical language or jargon
that interferes with their clarity?
3. Does the format of the proposed regulations (grouping and order
of sections, use of headings, paragraphing, etc.) aid or reduce their
clarity?
4. Would the regulations be easier to understand if they were
divided into more (but shorter) sections? (A ``section'' appears in
bold type and is preceded by the symbol ``Sec. '' and a numbered
heading, for example ``Sec. 5422.2 Scale sales.'')
5. Is the description of the proposed regulations in the
SUPPLEMENTARY INFORMATION section of this preamble helpful in
understanding the proposed regulations? How could this description be
more helpful in making the proposed regulations easier to understand?
Please send any comments you have on the clarity of the regulations
to the address specified in the ADDRESSES section.
National Environmental Policy Act
BLM has determined that this proposed rule authorizing certain
timber cuts to be scaled by BLM-approved third parties is a regulation
of an administrative and financial nature. Therefore, it is
categorically excluded from environmental review under section
102(2)(C) of the National Environmental Policy Act, pursuant to 516
Departmental Manual (DM), Chapter 2, Appendix 1. In addition, the
proposed rule does not meet any of the 10 criteria for exceptions to
categorical exclusions listed in 516 DM, Chapter 2, Appendix 2.
Pursuant to Council on Environmental Quality regulations (40 CFR
1508.4) and the environmental policies and procedures of the Department
of the Interior, the term ``categorical exclusions'' means a category
of actions which do not individually or cumulatively have a significant
effect on the human environment and that have been found to have no
such effect in procedures adopted by a Federal agency and for which
neither an environmental assessment nor an environmental impact
statement is required.
Regulatory Flexibility Act
Congress enacted the Regulatory Flexibility Act of 1980, as
amended, 5 U.S.C. 601-612, to ensure that Government regulations do not
unnecessarily or disproportionately burden small entities. The RFA
requires a regulatory flexibility analysis if a rule would have a
significant economic impact, either detrimental or beneficial, on a
substantial number of small entities. The proposed rule would likely
provide additional business opportunities to scalers and scaling
bureaus, which are mostly if not all small entities. The average cost
of contract scaling is approximately $1.50 per thousand board feet. The
approximate average annual number of sales contracts over the past
several years that would qualify for third party scaling under the
proposed rule has been ten sales. The new provision would enable BLM to
prepare and administer certain contracts (that otherwise qualify to be
sold as a scale sale) more efficiently, saving approximately $90,000
per year. These savings are not directly passed onto the purchasers.
There may be a slight saving to a purchaser of a scale sale over a lump
sum sale due to their not having to conduct pre-sale measures of the
sale volume to the same intensity. Therefore, BLM has determined under
the RFA that this proposed rule would not have a significant economic
impact on a substantial number of small entities.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This proposed rule is not a ``major rule'' as defined at 5 U.S.C.
804(2). That is, it would not have an annual effect on the economy of
$100 million or more; it would not result in major cost or price
increases for consumers, industries, government agencies, or regions;
and it would 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. It
would merely allow BLM to contract out a management step in timber
volume measurement for some types of timber sales to non-governmental
entities that can operate more efficiently than the Bureau.
Unfunded Mandates Reform Act
These proposed regulations do not impose an unfunded mandate on
State, local, or tribal governments or the private sector, in the
aggregate, of $100 million or more per year; nor do these proposed
regulations have a significant or unique effect on State, local, or
tribal
[[Page 69717]]
governments. The rule would impose no requirements on any of these
entities. We have already shown, in the previous paragraphs of this
section of the preamble, that the change proposed in this rule would
not have effects approaching $100 million per year on the private
sector. Therefore, BLM is not required to prepare a statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.)
Executive Order 12630, Governmental Actions and Interference With
Constitutionally Protected Property Rights (Takings)
The proposed rule is not a government action capable of interfering
with constitutionally protected property rights. The rule would allow
BLM to contract out one step in the timber volume measurement process,
and would not provide for the taking or reduction in value of, or any
other effect on any private property. Therefore, the Department of the
Interior has determined that the rule would not cause a taking of
private property or require further discussion of takings implications
under this Executive Order.
Executive Order 13132, Federalism
The proposed rule will not have a substantial direct effect 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. It would not apply to states or local
governments or state or local governmental entities. Therefore, in
accordance with Executive Order 13132, BLM has determined that this
proposed rule does not have sufficient federalism implications to
warrant preparation of a federalism assessment.
Executive Order 12988, Civil Justice Reform
Under Executive Order 12988, the Office of the Solicitor has
determined that this proposed rule would not unduly burden the judicial
system and that it meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have found that this
proposed rule does not include policies that have Tribal implications.
There are no substantial direct effects on one or more Indian Tribes,
on the relationship between the Federal Government and Indian Tribes,
or on the distribution of power and responsibilities between the
Federal Government and Indian Tribes. There will be some small economic
benefit to scalers and scaling bureaus, and therefore to any American
Indians that may be employed by or otherwise financially connected to
such entities. There are, however, no policy implications that require
consultation with Indian Tribes.
Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
In accordance with Executive Order 13211, BLM has determined that
the proposed rule will not have substantial direct effects on the
energy supply, distribution, or use, including a shortfall in supply or
price increase. The rule does not relate to energy supply,
distribution, or use in any respect.
Executive Order 13352, Facilitation of Cooperative Conservation
In accordance with Executive Order 13352, BLM has determined that
this proposed rule is purely administrative and does not affect
cooperative conservation. This proposed rule takes appropriate account
of and considers the interests of persons with ownership or other
legally recognized interests in land or other natural resources because
it does not interfere with such interests. The proposed rule solely
affects a Federal responsibility not involving state or local
participation, and has no impact on public health and safety.
Paperwork Reduction Act
These proposed regulations do not contain information collection
requirements that the Office of Management and Budget must approve
under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
Author
The principal authors of this proposed rule are Kenny McDaniel,
Manager, Gunnison Field Office, Colorado, Scott Lieurance, Forester--
Senior Specialist, Washington Office, and Lyndon Werner, Forester,
Oregon State Office, assisted by Ted Hudson, Senior Regulatory
Specialist, Washington Office, Bureau of Land Management.
List of Subjects in 43 CFR Part 5420
Forests and forest products, Government contracts, Public lands,
Reporting and recordkeeping requirements.
Dated: November 3, 2005.
Chad Calvert,
Acting Assistant Secretary, Land and Minerals Management.
Accordingly, for the reasons stated in the preamble and under the
authorities stated below, BLM proposes to amend 43 CFR part 5420 as set
forth below:
PART 5420--PREPARATION FOR SALE
1. The authority citation for part 5420 continues to read as
follows:
Authority: 61 Stat. 681, as amended, 69 Stat. 367; Sec. 5, 50
Stat. 875; 30 U.S.C. 601 et seq.; 43 U.S.C. 1181e.
Subpart 5422--Volume Measurements
2. Amend section 5422.2 by revising paragraph (b) to read as
follows:
Sec. 5422.2 Scale sales.
* * * * *
(b) (1) BLM may order third party scaling after determining that
all of the following factors exist:
(i) A timber disaster has occurred;
(ii) A critical resource loss is imminent; and
(iii) Measurement practices listed in Sec. 5422.1 and paragraph
(a) of this section are inadequate to permit orderly disposal of the
damaged timber.
(2) BLM may also order third party scaling, only by scalers or
scaling bureaus under contract to BLM, for the scaling of density
management timber sales when the quadratic mean diameter of the trees
to be cut and removed is equal to or less than 20 inches.
(3) Third party scaling volumes must be capable of being equated to
BLM standards in use for timber depletion computations, to insure
conformance with sustained yield principles.
[FR Doc. 05-22779 Filed 11-16-05; 8:45 am]
BILLING CODE 4310-84-P