AGENCY:

Bureau of Land Management, Interior.

ACTION:

Proposed rule.

SUMMARY:

The Bureau of Land Management (BLM) proposes to revise its regulations for protests of forest management decisions and administration of the timber sale process. This proposed rule would streamline the process for sale of forest products by the BLM. Existing regulatory requirements are poorly defined, repetitive, and burdensome. The proposed rule would improve the BLM's ability to conduct active forest management, while reducing burdens to the public and the administration of BLM lands.

DATES:

Please submit comments on this proposed rule to the BLM on or before August 7, 2020. The BLM is not obligated to consider any comments received after this date in making its decision on the final rule.

Information Collection Requirements: If you wish to comment on the information-collection requirements in this proposed rule, please note that the Office of Management and Budget (OMB) is required to make a decision concerning the collection of information contained in this proposed rule between 30 and 60 days after publication of this proposed rule in the Federal Register. Therefore, comments should be submitted to OMB by July 8, 2020.

ADDRESSES:

You may submit comments on the proposed rule, identified by the number RIN 1004-AE61, by any of the following methods:

—Mail, personal, or messenger delivery: U.S. Department of the Interior, Director (630), Bureau of Land Management, Mail Stop 2134 LM, 1849 C St. NW, Washington, DC 20240, Attention: RIN 1004-AE61.

—Federal eRulemaking portal: http://www.regulations.gov. In the Searchbox, enter “RIN 1004-AE61” and click the “Search” button. Follow the instructions at this website.

Information Collection Requirements: Written comments and suggestions on the information-collection requirements should be submitted within 30 days of publication of this notice to www.reginfo.gov/​public/​do/​PRAMain. Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function. Please provide a copy of your comments to Faith Bremner, Senior Regulatory Analyst, Bureau of Land Management, Mail Stop 2134 LM, 1849 C Street NW, Washington, DC 20240; or by email to fbremner@blm.gov. Please reference OMB Control Number 1004-AE61 in the subject line of your comments.

Comments not pertaining to the proposed rule's information-collection burdens should not be submitted to OMB. The BLM is not obligated to consider or include in the Administrative Record for the final rule any comments that are directed improperly to OMB.

FOR FURTHER INFORMATION CONTACT:

Marlo Draper, Division Chief of Forest, Range, Riparian, and Plant Conservation, WO-220, 202-912-7222. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339, 24 hours a day,7 days a week, to leave a message or question with the above individuals. You will receive a reply during normal business hours.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures

II. Background

III. Discussion of the Proposed Rule

IV. Procedural Matters

I. Public Comment Procedures

You may submit comments on the proposed rule, marked with the number RIN 1004-AE61, by any of the methods described in the ADDRESSES section. If you wish to comment on the information-collection requirements, you should send those comments as outlined under the DATES and ADDRESSES headings. Please make your comments on the proposed rule as specific as possible, confine them to issues pertinent to the proposed rule, and explain the reason for any changes you recommend. Where possible, your comments should reference the specific section or paragraph of the proposal that you are addressing. The comments and recommendations that will be most useful and likely to influence agency decisions are:

1. Those supported by quantitative information or studies; and

2. Those that include citations to, and analyses of, the applicable laws and regulations.

The BLM is not obligated to consider or include in the Administrative Record for the final rule comments that we receive after the close of the comment period (see DATES) or comments delivered to an address other than those listed above (see ADDRESSES).

Comments on the proposed rule, including names and street addresses of respondents, will be available for public review at the address listed under “ADDRESSES: Personal or messenger delivery” during regular business hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except holidays.

Before including your address, telephone number, email address, or other personal identifying information in your comment, be advised that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

II. Background

Pursuant to the Oregon and California Grant Lands Act (O&C Act) and the Coos Bay Wagon Road Grant Lands Act (CBWR Act) (43 U.S.C. 2601 et seq.), jointly referred to as the O&C Act, the BLM is required to manage approximately 2.4 million acres for forest production in conformity with the principle of sustained yield. In accordance with the O&C Act, the BLM declares the allowable sale quantity (ASQ) of timber for each sustained yield unit in its Resource Management Plans (RMPs) for western Oregon and then offers for sale a volume of timber equal to the declared ASQ on an annual basis. See Swanson v. Bernhardt, No. 1:15-cv-01419 (D.D.C) (September 30, 2019 Order). The O&C Act is a dominant use statute for sustained yield timber production. Under the Materials Act of 1947 (30 U.S.C. 601 et seq.); and other legal authorities, the BLM is authorized to convey timber and other vegetative materials on other lands owned by the United States. The Federal Land Policy and Management Act (FLPMA) (43 U.S.C. 1701 et seq.) charges the BLM with managing public lands on the basis of multiple use and sustained yield, unless otherwise specified by law.

The regulations pertaining to the Administration of Forest Management Decisions (43 CFR part 5000) were promulgated in 1984 (49 FR 28561 (July 13, 1984)), and 43 CFR part 5400 pertaining to the Sale of Forest Products were promulgated beginning in 1970 (35 FR 9785, June 13, 1970). These regulations were adopted to implement the Materials Act and the O&C Act. The BLM has amended these regulations since their original promulgation to expedite implementation of decisions relating to forest management, to improve agency procedures, and to update the regulations for consistency with statutory changes.

In 1984, the BLM proposed to add a 15-day public-protest process to certain forest management decisions, including advertised timber sales. This measure was expected to “expedite implementation of decisions relating to timber management” and “increase the probability that private businesses dependent upon the Bureau of Land Management's timber management contracts would be able to accomplish their regularly scheduled activities” (49 FR 3884, Jan. 31, 1984). The BLM issued a final rule adopting a 15-day protest period and establishing that filing a notice of appeal with the Interior Board of Land Appeals under 43 CFR part 4 does not automatically suspend the effect of forest management decisions that are posted and protested as described under 43 CFR 5003.2 and 5003.3 later that year. The BLM has not revised the protest process since the final rule was issued in 1984, although the way that the BLM plans forest management projects and completes the environmental review of these projects has changed significantly since that time.

When the forest management rules were promulgated in 1984, the BLM designed individual timber sales that were based on the location and extent of the forest management activity. Over time, the BLM has changed the way it designs its timber sales and other forest management projects and often conducts its environmental review on multiple projects in a single watershed or on a biologically relevant scale, such as wildlife habitat for a particular species. Moreover, the BLM promotes collaboration and information-sharing during the National Environmental Policy Act (NEPA) process, and today more interested individuals and parties participate in the public involvement opportunities during the decision-making process when their input is most helpful. While the protest process was originally proposed to “expedite implementation of decisions relating to timber management,” in some cases today individuals and organizations that are not satisfied with the final forest management decision are using the protest process to delay implementation by filing lengthy protests with the same comments that were previously raised during the NEPA process and with no explanation of how the BLM failed to address these previously submitted comments. Responding to these protests can be costly to the BLM in terms of time and other resources, and in many cases may not improve the agency decision or reduce appeals and litigation.

The proposed amendments eliminate the protest process after a forest management decision is issued. This change would help the BLM achieve the original purpose of the process, expediting the implementation of timber management decisions, while still providing ample opportunity for public comment and input, including, but not limited to, comment during the NEPA review process.

Under the current regulations, the BLM regularly issues forest management decisions that cannot be protested until the BLM issues a notice of an advertised timber sale, which, in many cases, occurs long after the environmental review has taken place. The proposed amendments streamline the procedures governing forest management decisions by allowing a single forest management decision to cover all forest management activities covered in an environmental review document. This change would allow the public to identify any resource conflicts or other issues of concern earlier in the BLM's forest management process, and enhance the BLM's ability to resolve those issues before it advertises a timber sale or implements other forest management activities. It would also enhance administrative efficiencies by allowing the BLM to simultaneously address issues associated with multiple individual sales and other forest management activities in a single decision. In addition, many of the BLM's decisions are time sensitive in nature, such as fire resilience thinning, thinning for insect and disease resilience, or post-fire salvage sales. The BLM desires to be more responsive to developing forest health issues and identified wildfire risks. Moreover, in western Oregon, streamlining the forest management decision-making process would help the BLM to more expeditiously offer timber sales on O&C lands in order to achieve the declared ASQ in accordance with the O&C Act.

The proposal also seeks to better utilize communications technology by making decisions available online and allowing electronic submission of public comments. These changes would increase efficiency for both the public and the BLM.

Additionally, this proposed rule contains a number of updates and revisions to part 5400 Sale of Forest Products. This rule would update the regulations to conform to statutes prohibiting the export of unprocessed Federal timber, and proposes changes in scale sale procedures that respond to the increased interest in developing innovative methods to administer scale sales. In general, the proposed revisions seek to provide better clarity of sale contract terms and conditions, and to give the BLM greater flexibility to conduct sales efficiently.

III. Discussion of the Proposed Rule

Part 5000 Administration of Forest Management Decisions

While a protest process for forest management decisions is not required by statute, the BLM's current regulations include a discretionary protest process that may be available for certain authorizations relating to forest management. This discretionary protest process is largely duplicative of other opportunities for public involvement, including through the NEPA process. In general, the best opportunity to influence management of resources is during the early stages of public comment periods provided during the NEPA process and prior to the formulation of a decision. At least in some instances, the protest process adds time and expense to the decision-making process, contrary to the express purpose of the 1984 rulemaking; may not avert administrative appeals and judicial litigation; and, most importantly, may not produce better BLM decisions and resource management outcomes. In addition, a significant number of timber sales are developed to reduce the potential for high-severity wildfire. Prolonged decision-making processes delay implementation of critical wildfire mitigation treatments that often have the objective of protecting human health and safety. Consequently, the BLM is proposing to eliminate the protest process. Forest management decisions would still generally be subject to appeal to the Interior Board of Land Appeals (IBLA) or challengeable in Federal court.

In the alternative, through this rulemaking, the BLM is also considering and seeks comments from the public about replacing the current public protest process with a 10-day public comment period for proposed decisions, or maintaining a protest process, including by modifying the procedures governing that process.

The BLM proposes modifications to improve and streamline the forest management decision-making process. Specifically, the BLM proposes to add a definition of “forest management activity,” and describe how the BLM would provide notice of forest management decisions.

The proposed revision to 43 CFR 5003.1(a) would clarify that forest management decisions issued under § 5003.2 could, at the discretion of the authorized officer, be implemented immediately or at a different date specified in the decision. The proposed revision would also clarify that forest management decisions would not automatically be stayed under 43 CFR 4.21(a) if notice of appeal or a petition for a stay pending appeal were lodged with the IBLA. The BLM specifically seeks public comment on whether the BLM should have discretion to issue all or some forest management decisions in full force and effect, including whether there should be specific criteria that the BLM should consider.

The proposed revision to § 5003.2(a) now includes a reference to a new definition for a forest management activity in § 5003.4 and clarifies that the BLM authorizes forest management activities by issuing forest management decisions.

Revisions to § 5003.2(a) would change the primary medium of public notice from publication in a newspaper of general circulation in the area where the lands affected by the decision are located to posting it on a designated agency website. In general, web-based communication is more convenient and accessible than print newspapers. In many areas, print newspapers have transitioned to news websites, which makes the notice requirements in the current regulations impractical in areas that lack print newspapers.

Proposed changes to § 5003.2(b) also would require the authorized officer to provide notice of a forest management decision by publishing notice in a newspaper of general circulation in the area, sending notice to interested parties directly, or notifying the general public through various means, such as social media, email, or other mass-media platforms in addition to posting the decision on the agency website. This proposed change is intended to further facilitate notice reaching interested parties, including those who may not have web access.

This proposed rulemaking would eliminate § 5003.3, which governs the protest process. The BLM specifically requests comments about this proposed change, including about other opportunities to foster public involvement in forest management decisions, such as through the NEPA process, or whether, for some or all proposed forest management decisions, the BLM should allow for a protest process or a public comment period.

The current regulations address forest management decisions for forest management activities, but they do not define a forest management activity. Section 5003.4 of the proposed rules includes a definition of forest management activity that would clarify the type of activities that would fall under the scope of this section of the regulations. The proposed definition emphasizes that a forest management activity has a silvicultural or forest-protection objective. These activities result in changes to forest or forest adjacent vegetation that have an explicit forest output or ecological condition as the outcome of the activity, and may include other activities that facilitate or complement the forest management activity. Examples of forest management activities may include: Cutting of trees and vegetation; harvesting; tree planting; seedling protection; vegetation type conversions; fuels reduction; fire pre-suppression; and road construction and maintenance, when these activities are intended to provide, for example, a commercial forest product, improve tree and forest heath, reduce fire risk, increase forest resiliency to environmental stressors, or address insect or disease infestations. A forest management activity would not include, for example, clearing trees for the construction of a power line in a right of way.

The BLM specifically requests comments on the proposed elimination of the public protest procedures in § 5003.3, including comment on alternative procedures that the BLM should consider with respect to comments and protests, such as a discretionary 10-day public comment period to allow for substantive comment on a proposed forest management decision.

Part 5400 Sales of Forest Products; General

Section 5400.0-3 contains the authority for part 5400. Section 5400.0-3(c) references a law related to the prohibition of exporting unprocessed timber from Federal lands that was superseded by 16 U.S.C. 620. The proposed changes to this section would reference the BLM's current statutory requirements.

Section 5400.0-5 contains the definitions for part 5400. The proposed rule would add new definitions for “lump sum sale” and “scale sale,” which are used, but not defined, in the current regulations. These two sale types are the only sale types the BLM uses. These definitions would ensure a common understanding of the key difference between these sale types, which relates to how the volume of the forest product is determined.

The Fair Market Value definition would be updated by deleting the second sentence referencing a BLM Manual that is no longer effective. This change would have no effect because appraisal guidance was updated in 1996 to address this change. Three other proposed changes in § 5400.0-5 relate to the administration of the export provisions of this rule. The terms “export” and “sourcing area” would be added to provide a basis for determining a violation of the export prohibition. The substitution definition would be changed to update the time period from 12 months to 24 months to conform to 16 U.S.C. 620, and to also delete a reference to a substitution exception for rights-of-way that is not included in the statute.

Changes to § 5402.0-6(d) would delete an exception to substitution restrictions that is not provided by statute 16 U.S.C. 620. This exception was established in the BLM's regulations prior to the passage of the statute.

Section 5402.0-6(e) would amend the rule to clarify how special forest product prices would be determined. The BLM sells permits to the public for special forest products, which include fuelwood, Christmas trees, edibles, pine nuts, cones, seedlings, and other forest products other than sawtimber. BLM State Offices generally publish a price list based on estimated values within a State. Current regulations in § 5420.0-6 require that all vegetative resources be appraised and in no case be sold at less than appraised value. BLM offices are concerned that selling products at the published price for the State is not consistent with subpart 5420, because the value of products across a State can vary. The addition of § 5402.0-6(e) would clarify that vegetative products can be sold by permit without appraisal after payment of adequate compensation, which is the standard in the authorizing statute. This means that price lists developed by BLM managers for special forest product permits could be used, and that individual appraisals for each permit sale would not be required.

Section 5420.0-6 currently requires appraisal of all timber and vegetative resources that are sold, and in no case sold for less than the appraised value. An exemption for special forest products would be added which references § 5402.0-6(e) as described in the previous section. The proposed rule removes the phrase “prohibiting the sale of products at less than appraised value” to allow the BLM to award timber sale contracts or vegetative material permits if bids come in below the appraised value. The Materials Act of 1947 (30 U.S.C 601) requires the BLM to advertise timber sales and to award sales to the highest bidder. The BLM is not required by law to sell timber at or above the appraised value. Producing highly accurate appraisals is costly due to factors such as acquiring log price data, labor costs, and equipment costs, including fuel, maintenance, and depreciation. This has two potentially negative consequences. First, the BLM could incur a high cost to produce an appraisal, which is particularly counterproductive for lower value products. Second, an appraisal could over-price a sale and result in no bids. No-bid sales result in increased costs associated with reappraising and reoffering a sale and are particularly costly for salvage sales where the timber quality rapidly deteriorates. The proposed changes to this section are intended to continue the practice of appraising timber as a guide to determining a reasonable price, but also to allow the BLM to sell products to the highest bidder at a price below the appraised price if the authorized officer receives a reasonable bid. This provision recognizes that an appraisal is an estimate of the market price, but that competitive bidding through an auction or a sealed bid is generally superior at identifying the true market price. The proposed revision anticipates increased efficiency in appraisals and a reduction in no bid sales.

This proposed rule would also change the title of § 5422.1 from “Cruise Sales” to “Lump-Sum Sales.” This section would be revised to say that a lump-sum sale is most often estimated using a tree cruise method. The BLM does not use the term “cruise sale,” though it is generally understood to mean lump sum. This revision is intended to clarify that both sale types are legitimate and available for use based on an authorized officer's discretion.

Changes to § 5422.2 would revise some of the rules for the use of scale sales and reorganize the section for clarity. The current regulations limit the use of scale sales to events such as timber disasters or imminent resource loss. Other circumstances in which its use is permitted are ambiguous. Implementation of this section in the existing rule has generally discouraged scale sales, despite the fact that it is a standard practice in the logging industry and its use is common among other sellers of timber, such as State governments and the U.S. Forest Service. The proposed rule would permit the use of scale sales at the discretion of the authorized officer and would not limit the use of scale sales to events such as timber disasters or imminent resource loss. The term “scale sales” includes the use of weight scales, including third party weight scales that are certified by a State government for timber sold on a per-ton basis. Section 5422.2 currently does not mention weight scales, which can lead to the incorrect conclusion that the term scale sale in the current rule is only referring to log scaling using a log rule.

Section 5424.1 relates to the enforcement of the export prohibition. Timber export laws are designed to not only prohibit the timber cut from Federal land from being exported, but also to prohibit Federal timber from being used as a substitute for other timber the purchaser owns and exports. The revision to this section would update the time period for tracking and reporting the export of private timber for a purchaser or an affiliate of a purchaser of Federal timber from 1 year to 2 years. This proposed revision is intended to bring the rule into conformance with the Forest Resources Conservation and Shortage Relief Act of 1990, as amended.

Section 5430.0-6 would give the BLM the option to advertise competitive timber sales on an agency website.

Section 5441.1 would establish the qualifications for bidders on BLM timber sales. Proposed revisions to this section pertain to the debarment regulations at 2 CFR part 180. Under proposed § 5441.1(c), an individual or entity could be disqualified as a bidder on a BLM timber sale if that individual or entity is debarred in the Federal Government-wide debarment list. In accordance with 2 CFR part 180, there is a process for petitioning for an exception from debarment which is noted in the proposed § 5441.1(c)(1). The revision to this section would bring it into conformance with 2 CFR part 180.

Section 5441.1-1 sets forth the proposed requirements for a bid deposit that must accompany a bid on a timber sale. The proposed rule would allow the BLM to refund up to half of the bid deposit if the award of the sale is delayed for more than 90 days. In some instances in which a sale is conducted, a high bidder is announced, and then before award of the contract, circumstances, such as a court injunction, delay the award of the timber sale contract. Given that bid deposits are 10 percent of the appraised value, a deposit can be substantial. The BLM recognizes that delays in the award of timber sale contracts is a burden for purchasers; thus, this proposed revision would help reduce that burden.

Section 5441.1-2 refers to a Small Business Administration road construction loan program that no longer exists. This section would be deleted because it is obsolete.

Section 5451.1 pertains to performance bonds for timber sale contracts, which function to protect the government's interest in Federal lands and resources by helping to ensure the fulfillment of a purchaser's contract obligations and the BLM's resource objectives. Performance bonds may be held by the BLM when a purchaser is not in compliance with contract terms and conditions. The bond can be forfeited to the BLM to cover costs of remedying unfinished contract obligations. Currently, a performance bond is required for all contracts for the sale of products greater than or equal to $2,500, and for installment contracts of less than $2,500. For cash sales of less than $2,500, bond requirements are at the discretion of the authorized officer. The proposed rule would require a performance bond for all contracts for the sale of products greater than or equal to $10,000, and impose a minimum performance bond of not less than $500 or 20 percent of the contract price, whichever is greater, for all installment contracts of less than $10,000. For all cash sales less than $10,000, bond requirements would be at the discretion of the authorized officer. Under the proposed changes, the BLM would retain discretion to require performance bonds within the specific limits established in the regulations, and would determine the amount of bond required on a case-by-case basis after site-specific analysis. These changes are being proposed to account for estimated inflation, since the rule was established in 1970 when the amount of material covered by the bond was four to five times the amount of material covered at current prices. For example, three to five truckloads of timber might have been sold for $2,500 in 1970, whereas, at current dollar valuation, a single truckload of the same quality timber might exceed the threshold for the bonding requirement. This change would adjust the BLM's risk exposure to a level that is similar to when the bond threshold in the current regulations was originally published.

The BLM is also proposing changes to § 5473.4 that would allow the authorized officer to grant a purchaser's request to extend the amount of operating time on a timber sale contract without reappraisal. The proposed revision to § 5473.4(c) adds unusual weather conditions to the list of reasons the BLM may grant a request for a contract extension. It is the BLM's experience that some pause in operations occurs due to normal weather, such as a halt in log hauling during heavy rain events or a shutdown of yarding due to wet soils during spring melt, which would not amount to unusual weather conditions. Unusual weather conditions could be record drought leading to prolonged fire hazard or record rainfall leading to prolonged wet soil conditions.

Section 5473.4(d) also contains proposed criteria for contract extension related to fire and other natural and man-made disasters. The purpose of this proposed extension is to allow the BLM to extend contracts when a disaster results in significant salvage timber that needs to be harvested elsewhere. Timber impacted by a disaster often deteriorates rapidly and attracts insects and pathogens, and it is prudent that those sales be prioritized over sales that harvest live timber. The proposed revisions to this section would expand the BLM's authority to extend timber contracts in response to disasters on both Federal and non-Federal lands. The revision would also put a 36-month limit on the amount of time that a contract could be extended, which is not in the current regulations. The BLM recognizes that disasters can pose a serious hardship on local communities. The proposed changes would allow the BLM to extend the contract terms and provide additional time for a purchaser to harvest green timber in areas not impacted by the disaster, which could benefit businesses and land owners by allowing them to focus their resources on areas impacted by the disaster, including salvage removal.

Section 5500.0-5(e) (Definitions) would revise the definition of public lands to make it consistent with the definition in FLPMA at 43 U.S.C. 1702(e), and to clarify that for this part of the regulations O&C grant lands are considered public lands. Moreover, this section would clarify that there are conditions for the free use of vegetative and mineral materials on O&C grant lands.

Miscellaneous

Technical Note:

The BLM is proposing changes to the authority sections to reflect that the O&C Act, which was previously codified at Title 43, Chapter 28, Subchapter V, (43 U.S.C. 1181a-j), was transferred to Title 43, Chapter 44, (43 U.S.C. 2601-2634) on July 1, 2017. The BLM is also proposing to remove Statute at Large citations that have already been codified.

IV. Procedural Matters

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this proposed rule is not significant.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, reduce uncertainty, and use the best, most innovative, and least burdensome tools for achieving regulatory ends. The E.O. directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rule making process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

The BLM reviewed the requirements of the proposed rule and determined that it would not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. For more detailed information, see the Regulatory Impact Analysis (“Economic and Threshold Analysis for Proposed Forest Management Rule”) (RIA) prepared for this proposed rule. The RIA has been posted in the docket for the proposed rule on the Federal eRulemaking Portal: https://www.regulations.gov. In the Searchbox, enter “RIN 1004-AE61,” click the “Search” button, open the Docket Folder, and look under Supporting Documents.

Reducing Regulation and Controlling Regulatory Costs (E.O. 13771)

The Office of Information and Regulatory Affairs has determined that this proposed rule is not a significant regulatory action as defined in E.O. 12866. Therefore, the proposed rule is not an “E.O. 13771 regulatory action” as defined by Office of Management and Budget (OMB) guidance implementing E.O. 13771. As such, the proposed rule would not be subject to the requirement for “regulatory actions” under E.O. 13771.^[1]

Regulatory Flexibility Act

This proposed rule would not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA). The RFA generally requires that Federal agencies prepare a regulatory flexibility analysis for rules subject to the notice-and-comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 500 et seq.), if the rule would have a significant economic impact, whether detrimental or beneficial, on a substantial number of small entities. See 5 U.S.C. 601-612. Congress enacted the RFA to ensure that government regulations do not unnecessarily or disproportionately burden small entities. Small entities include small businesses, small governmental jurisdictions, and small not-for-profit enterprises.

The Small Business Administration (SBA) has developed size standards to carry out the purposes of the Small Business Act, which can be found in 13 CFR 121.201. For a specific industry identified by the North American Industry Classification System (NAICS), small entities are defined by the SBA as an individual, limited partnership, or small company considered at “arm's length” from the control of any parent company, which meet certain size standards. The size standards are expressed either in number of employees or annual receipts. The proposed rule would most likely affect entities that participate in timber sales or the related protest process. The industries most likely to be directly affected are listed in the table below along with the relevant SBA size standards.

BLM timber sales are commonly bid on by, and awarded to, small businesses. The BLM is also required by the SBA regulations (13 CFR part 121) to set aside a proportion of BLM timber sales for small businesses. The proposed regulations would not change this process. Four changes in the proposed rule to subparts 5422, 5441, 5451, and 5463 would have small beneficial economic effects to small businesses by lowering financial requirements to enter into a sale contract and by providing more flexibility in the timber sale contract. Section 5441.1-2 refers to a SBA road construction loan program that has expired, and therefore the deletion of this section would have no effect. The proposed revisions to the forest management decision process should benefit small entities that elect to submit comments by more clearly defining the process.

For the purpose of carrying out its review pursuant to the RFA, the BLM believes that the proposed rule would not have a “significant economic impact on a substantial number of small entities,” as that phrase is used in 5 U.S.C. 605. An initial regulatory flexibility analysis is therefore not required.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

This proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

(a) Does not have an annual effect on the economy of $100 million or more. The total appraised value of all timber offered by the BLM over the last five years is approximately $48 million per year. To the extent that the BLM can become more efficient and meet the increased timber volume offered when authorized in Resource Management Plans, this rule could have positive effects to the economy. Additional details can be found in the RIA for this rule.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The primary commodity affected by this rule is lumber. The BLM does not anticipate that a reduction in timber production would occur due to this proposed rule.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. The BLM believes this rule would result in positive effects in each of these areas. This proposed rule could have a small positive effect on competition by lowering the financial requirements for entering into a small sale contract. To the extent that the BLM can become more efficient and meet the increased timber volume authorized in Resource Management Plans, this rule could have positive effects on employment, investment, and productivity.

Unfunded Mandates Reform Act

This proposed rule would not impose an unfunded mandate on State, local, tribal governments, or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments, or the private sector. This proposed rule would only affect the BLM's administrative process for protest of forest management decisions and provide minor revisions to enhance flexibility in developing and administering timber sales. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

Takings (E.O. 12630)

This proposed rule would not effect a taking of private property or otherwise have taking implications under E.O. 12630. Section 2(a) of E.O. 12630 identifies policies that do not have takings implications, such as those that abolish regulations, discontinue governmental programs, or modify regulations in a manner that lessens interference with the use of private property. There are no cases where a BLM timber sale or forest management decision has affected private property rights. The proposed rule would revise the timber sale and decision protest processes and would not affect private property rights. A takings implication assessment is not required.

Federalism (E.O. 13132)

Under the criteria in section 1 of E.O. 13132, this proposed rule would not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. It does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. The proposed rule would revise processes that have been implemented numerous times over decades and which have not been found to have effects on the relationship or distribution of power between the national government and the States.

Civil Justice Reform (E.O. 12988)

This proposed rule complies with the requirements of E.O. 12988. Specifically, this rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

Consultation With Indian Tribes (E.O. 13175 and Departmental Policy)

The Department of the Interior strives to strengthen its government to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in E.O. 13175 and have determined that it has no substantial direct effects on federally recognized Indian tribes and that consultation under the Department's tribal consultation policy is not required. The BLM consults with tribes at multiple decision support stages, including development of Resource Management Plans, NEPA scoping, consultation under the National Historic Preservation Act, as well as in other circumstances identified in the BLM Tribal Consultation policy. Decisions affected by this proposed rule are included in all these decision support stages. The proposed rule would not affect these tribal consultation processes.

Paperwork Reduction Act (44 U.S.C. 3501 et seq.)

This proposed rule would revise existing information collections. All information collections require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. The OMB has reviewed and approved the information collection requirements associated with timber sales and forest management decision making processes under the following OMB control numbers:

• 1004-0058, “Forest Management Decision Protest Process and Log Export and Substitution” (expires 11/30/2022);
• 1004-0001, “Free Use Application and Permit for Vegetative or Mineral Materials (43 CFR parts 3600, 3620, and 5510)” (expires 01/31/2023); and,
• 0596-0085, “Forest Products Removal Permits and Contracts” (expires 12/31/2021).

OMB Control Number 1004-0058, as currently approved, authorizes the collection of information that assists the BLM in enforcing export and substitution prohibitions. This Control Number also provides the public an opportunity to comment on a proposed forest management decision. At present, control number 1004-0058 authorizes four IC activities. Three of these activities assist the BLM in enforcing statutory prohibitions against:

• The export of unprocessed timber harvested from Federal lands; and
• The use of Federal timber in processing facilities while exporting non-Federal unprocessed timber that could have been used in those facilities (i.e., substitution).

The fourth IC activity in this control number provides a process for persons to comment on proposed forest management decisions.

Proposed revisions to § 5003.3 are intended to clarify when comments must be received and to improve the process by providing more instruction to the public about how to comment on proposed forest management decisions and by providing for the submission of comments electronically or by other means rather than exclusively by mail, as is currently required for protests. Proposed revisions to § 5424.1 would update that regulation in accordance with statutory amendments. The proposed revisions to § 5003.3 and § 5424.1, explained in more detail below, would not change our previously approved burden estimates under OMB Control Number 1004-0058, but they do require approval by OMB:

(1) Proposed revisions to §  5003 would remove the current protest process and replace it with a public comment process as described below:

(a) Section 5003.3(a) currently authorizes protests of a forest management decision to be filed within 15 days of the publication of a notice of decision or notice of sale in a newspaper of general circulation. A proposed revision of that provision would change the 15-day deadline for submitting protests to a discretionary 10-day public comment period for a proposed decision and clarify when comments on a proposed decision must be received.

(b) Proposed § 5003.3(b) would require comments to be substantive and allow the authorized officer to disregard non-substantive comments or a repeat of comments already submitted during an environmental-review process.

(c) Proposed § 5003.3(c) would provide that the BLM shall not consider comments on a proposed decision that are not timely filed and would allow comments on a proposed decision to be filed via regular mail, fax, hand-delivery, express delivery, messenger service, or be posted electronically to an agency website, if available.

(d) Proposed § 5003.3(d) would allow a proposed decision to become final upon expiration of the 10-day comment period if no comments are received.

(e) Proposed § 5003.3(e) would allow the authorized officer, at the conclusion of his/her review of submitted comments, to include any responses to comments in the final decision document.

(f) Proposed § 5003.3(f) includes a new provision that would require a final forest management decision to provide instructions to the public describing the process for submitting an appeal under 43 CFR part 4.

(2) Proposed revisions to § 5424.1(a)(1) and (2) update the reporting requirement for purchasers and affiliates to report the export of private timber from within 1 year to 2 years.

Title: Forest Management Decision Protest Process and Log Export and Substitution.

OMB Control Number: 1004-0058.

Form Numbers: 5450-17, 5460-15, and 5460-17.

Type of Review: Revision of a currently approved collection.

Description of Respondents: Purchasers of Federal timber, their affiliates, and any person who wishes to comment on a proposed BLM forest management decision.

Estimated Number of Annual Respondents: 325.

Estimated Number of Responses: 325.

Estimated Completion Time per Response: Completion time varies between 100 hours and 250 hours, depending on activity.

Estimated Total Annual Burden Hours: 550.

Respondents' Obligation: Required to obtain or retain a benefit.

Frequency of Collection: On occasion.

Estimated Total Non-Hour Cost: $0.

As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on any aspect of this information collection, including:

(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;

(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;

(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and

(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of response.

Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to www.reginfo.gov/​public/​do/​PRAMain. Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function. Please provide a copy of your comments to Faith Bremner, Senior Regulatory Analyst, Bureau of Land Management, Mail Stop 2134 LM, 1849 C Street NW, Washington, DC 20240; or by email to fbremner@blm.gov. Please reference OMB Control Number 1004-AE61in the subject line of your comments.

National Environmental Policy Act

The BLM does not believe this rule would constitute a major Federal action

significantly affecting the quality of the human environment, and has prepared preliminary documentation to this effect, explaining that a detailed statement under the National Environmental Policy Act (NEPA) would not be required because the rule is categorically excluded from NEPA review. This rule would be excluded from the requirement to prepare a detailed statement because, as proposed, it would be a regulation entirely procedural in nature. (For further information see 43 CFR 46.210(i)). We have also determined, as a preliminary matter, that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

Documentation of the proposed reliance upon a categorical exclusion has been prepared and is available for public review with the other supporting documents for this proposed rule.

Effects on the Energy Supply (E.O. 13211)

This rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.

Clarity of This Regulation

We are required by E.O. 12866 (section 1(b)(12)), 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use common, everyday words and clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you believe that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

Author

The principal authors of this rule are: Wade Salverson and Christian Schumacher, Division of Forest, Range, Riparian, and Plant Conservation; Jennifer Noe, Division of Regulatory Affairs; assisted by the Office of the Solicitor.

List of Subjects

43 CFR Part 5000

• Administrative practice and procedure
• Forests and forest products
• Public lands

43 CFR Part 5400

• Administrative practice and procedure
• Forests and forest products
• Public lands
• Reporting and recordkeeping requirements

43 CFR Part 5420

• Forests and forest products
• Government contracts
• Public lands
• Reporting and recordkeeping requirements

43 CFR Part 5440

• Forests and forest products
• Government contracts
• Public lands
• Reporting and recordkeeping requirements

43 CFR Part 5450

• Forests and forest products
• Government contracts
• Public lands
• Reporting and recordkeeping requirements

• Surety bonds

43 CFR Part 5460

• Forests and forest products
• Government contracts
• Public lands

43 CFR Part 5470

• Forests and forest products
• Government contracts
• Public lands
• Reporting and recordkeeping requirements

43 CFR Part 5500

• Forests and forest products
• Public lands

43 CFR Chapter II

For the reasons set out in the preamble, the Bureau of Land Management proposes to amend 43 CFR parts 5000, 5400, 5410, 5420, 5430, 5440, 5450, 5460, 5470, and 5500 as follows:

PART 5000—ADMINISTRATION OF FOREST MANAGEMENT DECISIONS

1. Revise part 5000 to read as follows:

Authority: 43 U.S.C. 2601; 30 U.S.C. 601 et seq.; 43 U.S.C. 1701.

PART 5400—SALES OF FOREST PRODUCTS; GENERAL

2. The authority citation for part 5400 is revised to read as follows:

Authority: 30 U.S.C. 601 et seq., 43 U.S.C. 315, 2601, 16 U.S.C. 607a, and 43 U.S.C. 1701 et seq.

3. Amend §  5400.0-3 by revising paragraphs (a) and (c) to read as follows:

4. Amend §  5400.0-5 by adding the definitions for “Export,” “Lump sum,” “Scale sale,” and “Sourcing area” in alphabetical order and revising the definitions of “Fair Market value”, “Substitution,” and “Third party scaling,” to read as follows:

5. Amend § 5402.0-6 by revising paragraph (d), adding paragraph (e), and removing the parenthetical authority citation at the end of the section to read as follows:

PART 5410—ANNUAL TIMBER SALE PLAN

6. The authority citation for part 5410 is revised to read as follows:

Authority: 30 U.S.C. 601 et seq.; 43 U.S.C. 2604.

7. Revise § 5410.0-6 to read as follows:

PART 5420—PREPARATION FOR SALE

8. The authority citation for part 5420 is revised to read as follows:

Authority: 30 U.S.C. 601 et seq.; 43 U.S.C. 2604.

9. Revise § 5420.0-6 to read as follows:

10. Revise §  5422.1 to read as follows:

11. Revise §  5422.2 to read as follows:

12. Amend § 5424.0-6 by revising paragraph (d) to read as follows:

13. Amend §  5424.1 by revising paragraphs (a)(1) and (2) to read as follows:

PART 5430—ADVERTISEMENT

Subpart 5430—Advertisement; General

14. The authority citation for subpart 5430, is revised to read as follows:

Authority: 43 U.S.C. 2604, 30 U.S.C. 601 et seq.

15. Revise § 5430.0-6 to read as follows:

PART 5440—CONDUCT OF SALES

16. The authority citation for part 5440 is revised to read as follows:

Authority: 43 U.S.C. 2604, 30 U.S.C. 601 et seq.

17. Amend § 5441.1 by revising paragraph (c) to read as follows:

18. Revise § 5441.1-1 to read as follows:

19. Remove § 5441.1-2.

20. Redesignate § 5441.1-3 as § 5441.1-2.

PART 5450—AWARD OF CONTRACT

21. The authority citation for part 5450 is revised to read as follows:

Authority: 43 U.S.C. 2604; 30 U.S.C. 601 et seq.

22. Amend §  5451.1 by revising paragraph (a) introductory text to read as follows:

PART 5460—SALES ADMINISTRATION

23. The authority citation for part 5460 is revised to read as follows:

Authority: 30 U.S.C. 601 et seq., 43 U.S.C. 2604.

24. Revise §  5461.3 to read as follows:

PART 5470—CONTRACT MODIFICATION—EXTENSION—ASSIGNMENT

25. The authority citation for part 5470 is revised to read as follows:

Authority: 30 U.S.C. 601; 43 U.S.C. 2604 and 1740.

26. Amend § 5473.4 by:

a. Removing the word “or” at the end of paragraph (c)(4);

b. Revising paragraph (c)(5);

c. Adding paragraph (c)(6); and

d. Revising paragraph (d).

The revisions and addition read as follows:

PART 5500—NONSALE DISPOSALS; GENERAL

Subpart 5500—Nonsale Disposals; General

27. The authority citation for part 5500, subpart 5500, continues to read as follows:

Authority: 30 U.S.C. 601 et seq., 43 U.S.C. 315, 423.

28. Amend § 5500.0-5 by revising paragraph (e) to read as follows:

Footnotes