Forest Management Decision Protest Process and Timber Sale Administration

• Published date: 18 December 2020
• Citation: 85 FR 82359
• Record Number: 2020-27580
• Section: Rules and Regulations
• Court: Land Management Bureau

82359

Federal Register / Vol. 85, No. 244 / Friday, December 18, 2020 / Rules and Regulations

GENERAL SERVICES

ADMINISTRATION

41 CFR 102–34

[Notice-MA–2020–13; Docket No. 2020–

0002; Sequence No. 36]

Use of Government-Issued Fleet

Charge Cards Guidance

AGENCY

: Office of Government-wide

Policy (OGP), General Services

Administration (GSA).

ACTION

: Availability of GSA Bulletin

FMR B–53, Motor Vehicle Management.

SUMMARY

: This Federal Management

Regulation (FMR) bulletin recommends

Federal agencies establish policies

addressing Government-issued fleet

charge card compliance with Section

889(a)(1)(B) of the John S. McCain

National Defense Authorization Act

(NDAA) for Fiscal Year (FY) 2019 (Pub.

L. 115–232) and security risks

associated with fleet charge card

transactions.

DATES

: Applicability Date: December 18,

2020.

FOR FURTHER INFORMATION CONTACT

: For

clarification of content, contact Mr.

James Vogelsinger, Director, Vehicle

Policy Division, GSA, at 202–501–1764,

or email vehicle.policy@gsa.gov. Please

cite Notice of FMR Bulletin B–53.

SUPPLEMENTARY INFORMATION

:

Background: Section 889(a)(1)(B) of

the John S. McCain National Defense

Authorization Act (NDAA) for Fiscal

Year (FY) 2019 (Pub. L. 115–232)

prohibits contracting with entities that

use certain telecommunications and

video surveillance services or

equipment. This bulletin makes Federal

agencies aware of this prohibition and

recommends that agencies establish

policies that facilitate compliance when

a Government-issued fleet charge card is

used to acquire fuel or maintenance

services for Government motor vehicles.

This bulletin also recommends

policies and practices agencies and

charge card users may implement to

lessen the security risks associated with

fleet charge card transactions.

This bulletin can be viewed at

www.gsa.gov/reference/gsa-bulletins.

Jessica Salmoiraghi,

Associate Administrator, Office of

Government-wide Policy.

[FR Doc. 2020–26378 Filed 12–17–20; 8:45 am]

BILLING CODE 6820–14–P

DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Parts 5000, 5400, 5420, 5440,

5450, 5460, 5470 and 5500

[LLHQ200000 L63000000 PH0000 21X]

RIN 1004–AE61

Forest Management Decision Protest

Process and Timber Sale

Administration

AGENCY

: Bureau of Land Management,

Interior.

ACTION

: Final rule.

SUMMARY

: Through this final rule, the

Bureau of Land Management (BLM) is

amending its regulations governing

protests of forest management decisions

and administration of the timber sale

process. This final rule will streamline

the process for active forest management

by the BLM. The BLM has promulgated

this final rule to address poorly defined,

repetitive, and burdensome regulatory

requirements. This final rule will

improve the BLM’s ability to conduct

active forest management, while

reducing burdens to the public and the

administration of BLM-managed lands.

DATES

: This final rule is effective on

January 19, 2021.

Information Collection Requirements:

If you wish to comment on the

information collection requirements in

this final rule, please note that the

Office of Management and Budget

(OMB) is required to make a decision

concerning the collection of information

contained in this final rule between 30

and 60 days after publication in the

Federal Register. Therefore, comments

should be submitted to OMB by January

19, 2021.

ADDRESSES

: Information Collection

Requirements: Written comments and

recommendations for this information

collection should be sent within 30 days

of publication of this document to

www.reginfo.gov/public/do/PRAMain.

Find this particular information

collection by selecting ‘‘Currently under

30-day Review—Open for Public

Comments’’ or by using the search

function. Please provide a copy of your

comments to Darrin King, Information

Collection Clearance Officer, Attention

PRA Office, Bureau of Land

Management, 440 W 200 S #500, Salt

Lake City, UT 84101 or by email to

BLM_HQ_PRA_Comments@blm.gov.

Please reference OMB Control Number

1004–0058 and RIN 1004–AE61 in the

subject line of your comments. Please

note that due to COVID–19, electronic

submission of comments is

recommended.

FOR FURTHER INFORMATION CONTACT

:

Marlo Draper, Division Chief of Forest,

Rangeland, and Vegetation Resources,

HQ–220, 208–373–3812. Persons who

use a telecommunications device for the

deaf (TDD) may call the Federal Relay

Service (FRS) at 1–800–877–8339, 24

hours a day,7 days a week, to leave a

message or question with the above

individuals. You will receive a reply

during normal business hours.

SUPPLEMENTARY INFORMATION

:

I. Background

II. Discussion of the Changes to the Existing

Forest Management Rule and Changes

From the Proposed Rule to Final Rule

III. Procedural Matters

I. Background

The BLM initiated this rulemaking on

June 8, 2020, through publication of a

notice of proposed rulemaking in the

Federal Register seeking public

comment for 60 days (85 FR 35049). The

comment period closed on August 7,

2020, and the BLM received a total of

2,760 comments. The BLM received

comments from individuals,

organizations, business, county, state,

and Federal entities or representatives.

The BLM has provided a summary of

substantive comments and its response

to the comments in the discussion

section of this final rule.

This final rule revises the BLM’s

regulations addressing its forest

management decision process, sales of

forest products, preparation for sale,

award of contract, contract

modifications, and non-sale disposal.

Pursuant to the Oregon and California

Grant Lands Act (O&C Act) and the Coos

Bay Wagon Road Grant Lands Act

(CBWR Act) (43 U.S.C. 2601 et seq.),

jointly referred to as the O&C Act, the

BLM is required to manage

approximately 2.4 million acres of lands

in Western Oregon for forest production

in conformity with the principle of

sustained yield. In accordance with the

O&C Act, the BLM declares the

allowable sale quantity (ASQ) of timber

for each sustained yield unit in its

Resource Management Plans (RMPs) for

western Oregon and then offers for sale

a volume of timber equal to the declared

ASQ on an annual basis. See Swanson

v. Bernhardt, No. 1:15–cv–01419

(D.D.C.) (September 30, 2019 Order).

The O&C Act is a dominant use statute

for sustained yield timber production.

Under the Materials Act of 1947 (30

U.S.C. 601 et seq.); and other legal

authorities, the BLM is authorized to

convey timber and other vegetative

materials on other lands that the BLM

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administers. The Federal Land Policy

and Management Act (FLPMA) (43

U.S.C. 1701 et seq.) charges the BLM

with managing public lands on the basis

of multiple use and sustained yield,

unless otherwise specified by law.

The regulations pertaining to the

Administration of Forest Management

Decisions (43 CFR part 5000) were

promulgated in 1984 (49 FR 28561 (July

13, 1984)), and 43 CFR part 5400

pertaining to the Sale of Forest Products

were promulgated beginning in 1970 (35

FR 9785, June 13, 1970). These

regulations were adopted to implement

the Materials Act and the O&C Act. The

BLM has amended these regulations

since their original promulgation to

expedite implementation of decisions

relating to forest management, to

improve agency procedures, and to

update the regulations for consistency

with statutory changes.

In 1984, the BLM proposed to add a

15-day public-protest process to certain

forest management decisions, including

advertised timber sales. This measure

was expected to ‘‘expedite

implementation of decisions relating to

timber management’’ and ‘‘increase the

probability that private businesses

dependent upon the Bureau of Land

Management’s timber management

contracts would be able to accomplish

their regularly scheduled activities’’ (49

FR 3884, Jan. 31, 1984). The BLM issued

a final rule adopting a 15-day protest

period and establishing that filing a

notice of appeal with the Interior Board

of Land Appeals under 43 CFR part 4

does not automatically suspend the

effect of forest management decisions

that are posted and protested as

described under 43 CFR 5003.2 and

5003.3 later that year. The BLM has not

revised the protest process since the

final rule was issued in 1984, although

the way that the BLM plans forest

management projects and completes the

environmental review of these projects

has changed significantly since that

time.

When the forest management rules

were promulgated in 1984, the BLM

designed individual timber sales that

were based on the location and extent

of the forest management activity. Over

time, the BLM has changed the way it

designs its timber sales and other forest

management projects and often

conducts its environmental review on

multiple projects in a single watershed

or on a biologically relevant scale, such

as wildlife habitat for a particular

species. Moreover, the BLM promotes

collaboration and information-sharing

during the National Environmental

Policy Act (NEPA) process and

concurrent RMP process, and today

more interested individuals and parties

participate in the public involvement

opportunities during the decision-

making process when their input is

most helpful. While the protest process

was originally proposed to ‘‘expedite

implementation of decisions relating to

timber management,’’ in some cases

today individuals and organizations that

are not satisfied with the final forest

management decision are using the

protest process to delay implementation

by filing lengthy protests with the same

comments that were previously raised

during the NEPA process and with no

explanation of how the BLM failed to

address these previously submitted

comments. Responding to these protests

can be costly to the BLM in terms of

time and other resources, and in many

cases may not improve the agency

decision or reduce appeals and

litigation.

The final rule eliminates the current

administrative protest process after a

forest management decision is issued.

This change will facilitate expeditious

development and implementation of

forest management decisions while

encouraging the BLM to consider

relevant information earlier in its

decision-making process, including in

comments on any RMP or NEPA

documents that the BLM circulates for

public review. Under the existing

regulations, the BLM regularly issued

forest management decisions that could

not be protested until the BLM issued a

notice of an advertised timber sale,

which, in many cases, occurred long

after the completion of environmental

review. The final rule streamlines the

procedures governing forest

management decisions by allowing a

single forest management decision to

cover all forest management activities

covered in an environmental review

document. This change allows the

public to identify any resource conflicts

or other issues of concern earlier in the

BLM’s forest management process and

enhances the BLM’s ability to resolve

those issues before it advertises a timber

sale or implements other forest

management activities. The final rule

also improves administrative

efficiencies by allowing the BLM to

simultaneously address issues

associated with multiple individual

sales and other forest management

activities in a single decision. In

addition, many of the BLM’s decisions

are time sensitive in nature, such as fire

resilience thinning, thinning for insect

and disease resilience, or post-fire

salvage sales. The changes will help the

BLM be more responsive to developing

forest health issues and identified

wildfire risks. In western Oregon, the

final rule will help the BLM to more

expeditiously offer timber sales on O&C

lands in order to achieve the declared

ASQ in accordance with the O&C Act.

The final rule will facilitate the BLM’s

use of communications technology by

requiring the BLM to make decisions

available online on a designated agency

website, in addition to other means of

notification. These changes will

increase efficiency for both the public

and the BLM.

Additionally, the final rule contains

multiple updates and revisions to part

5400 Sale of Forest Products. This rule

amends the regulations to conform to

statutes prohibiting the export of

unprocessed Federal timber and makes

changes that will allow the BLM to be

more innovative and more effectively

administer scale sales. In general, the

final rule provides better clarity of the

terms and conditions the BLM may

include in future sale contracts and

gives the BLM greater flexibility to

conduct sales efficiently.

II. Discussion of the Final Rule and

Comments on the Proposed Rule

Part 5000 Administration of Forest

Management Decisions

While a protest process for forest

management decisions is not required

by statute, the BLM’s existing

regulations at 43 CFR 5003.3 included a

discretionary protest process available

for certain authorizations relating to

forest management. This discretionary

protest process was largely duplicative

of other opportunities for public

involvement, including through the

NEPA process. In general, the best

opportunity to influence management of

resources is during the early stages of

decision-making and not after the

issuance of a decision or the publication

of a notice of decision. At least in some

instances, the protest process added

time and expense to the decision-

making process, contrary to the express

purpose of the 1984 rulemaking; did not

avert administrative appeals and

judicial litigation as evidenced by the

numerous appeals and multiple

lawsuits since 1984; and, most

importantly, cannot be shown to have

produced better BLM decisions and

resource management outcomes than

could have otherwise occurred. For

example, the BLM reviewed 1,560

timber sale decisions from 2002 to 2017

that showed that 26 percent of the total

volume those sales represented was

protested. The average time between

advertisement (also the beginning of the

protest period) and award of those

protested sales was 251 days. In

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addition, a significant number of timber

sales are developed to reduce the

potential for high-severity wildfire.

Prolonged decision-making processes

under the existing regulations delayed

implementation of critical wildfire

mitigation treatments that often had the

objective of protecting human health

and safety, and which may need to be

implemented during a narrow window

to take advantage of favorable weather.

To address these issues, the BLM’s final

rule eliminates the protest process. The

final rule maintains the public’s ability

to appeal those decisions to the Interior

Board of Land Appeals (IBLA) or

challenge them in Federal court.

The final rule adds a definition of

‘‘forest management activity,’’ and

specifies how the BLM must provide

notice of forest management decisions.

Section 5003.1 Effect of Decisions;

General

The revision to 43 CFR 5003.1(a)

clarifies that forest management

decisions issued under § 5003.2 may, at

the discretion of the authorized officer,

be implemented immediately or at a

different date specified in the decision.

Under existing regulations, the BLM

could make decisions effective

immediately after denial of protest in

§ 5003.3(f). The revision also clarifies

that forest management decisions are

not automatically stayed under 43 CFR

4.21(a) if notice of appeal or a petition

for a stay pending appeal is filed with

the IBLA which is the same as in the

existing rule. The BLM did not make

changes to § 5003.1 between the

proposed and final rule.

Comment: The BLM received

comments suggesting that removal of

the administrative protest process,

allowing the BLM to implement a forest

management decision immediately, and

specifying that filing a notice of appeal

and a petition for a stay pending appeal

under 43 CFR part 4 does not

automatically suspend the effect of a

forest management decision, would not

allow for an effective administrative

review process for decisions and may

result in increased litigation in Federal

district court.

Response: The final rule eliminates

the administrative protest process

because the BLM found it to be

redundant considering that under the

existing rule the BLM allows for public

comment on most proposed forest

management decisions during the NEPA

and RMP process. The final rule does

not eliminate the public’s opportunity

to seek administrative appeal to the

IBLA, nor does it prevent the IBLA from

issuing a stay pending appeal where

appropriate. Additionally, parties can

continue to challenge forest

management decisions in Federal court.

In general, the best opportunity to

influence management of resources is

during the early stages of public

comment periods provided during the

NEPA process and prior to the

formulation of a decision. The final rule

does not require the BLM to issue all

forest management decisions in full

force and effect when forest

management decisions are issued.

Instead, under the final rule the BLM

authorized officer has discretion to

determine, on a case-by-case basis,

whether to identify a period of time

before a decision can be implemented or

whether the decision can be

implemented immediately, which may

be appropriate when authorizing critical

wildfire mitigation treatments or help

the BLM to more expeditiously offer

timber sales on O&C lands in order to

achieve the declared ASQ in accordance

with the O&C Act. Moreover, under the

final rule, once the BLM issues a forest

management decision, there are

typically additional processes that must

occur before any actual on-the-ground

work begins, such as advertising and

conducting a timber sale auction and

awarding a contract. The final rule does

not change the ability of the IBLA to

issue a stay and does not change any

IBLA procedures. Changes to IBLA

procedures to expedite cases are outside

the scope of this rulemaking.

The final rule revises § 5003.2(a) to

include a reference to a new definition

for a forest management activity in

§ 5003.4 and clarifies that the BLM

authorizes certain forest management

activities by issuing forest management

decisions. The BLM added text to

§ 5003.2 to clarify that to be effective

under § 5003.1, the BLM must publish

notice of a forest management decision

and post the decision on the BLM’s

website.

The BLM received multiple comments

that it does not have authority under the

existing regulations to issue forest

management decisions in full force and

effect. The final rule clarifies the BLM’s

authority in this regard. The comments

also indicated the changes in the

proposed rule were not clear.

Under existing § 5003.1(a), the BLM

may make those forest management

decisions where the BLM provided a

protest process effective immediately

upon issuance of the protest response.

Filing an appeal under 43 CFR part 4,

including an appeal with a stay request

does not suspend the effectiveness of

the decision under the existing

regulations. Currently the BLM

determines on a case-by-case basis

whether to implement the decision

immediately.

The final rule retains the BLM’s

ability in § 5003.1(a) to make certain

decisions effective immediately. The

BLM also retains the discretion that

currently exists whether to go full force

and effect on a case-by-case basis.

Moreover, to ensure the public has

adequate notice that the BLM may use

its full force and effect authority under

§ 5003.1, the BLM has made changes in

the final rule to § 5003.2(a) that require

the BLM to post all forest management

decisions that it may make effective

immediately to ensure the public has

notice of the activity. Only those

decisions that are to be effective under

§ 5003.1 are required to be posted as

described by § 5003.2.

Section 5003.2 Notice of Forest

Management Decisions

Revisions in the final rule to

§ 5003.2(a) change the primary medium

of public notice from publication in a

newspaper of general circulation in the

area where the lands affected by the

decision are located to posting the

decision on a designated agency

website. In general, web-based

communication is now more convenient

and accessible than print newspapers.

In many areas, print newspapers have

transitioned to news websites, which

makes the notice requirements in the

existing regulations impractical in areas

that lack print newspapers.

The final rule adopts those changes

proposed to § 5003.2(a), which require

the authorized officer to post forest

management decisions on an agency

website and provide notice of a forest

management decision by publishing

notice in a newspaper of general

circulation in the area, sending notice to

interested parties directly, or notifying

the general public through various

means, such as social media, email, or

other mass-media. This change is

intended to further facilitate notice

reaching interested parties, including

those who may not have internet access.

Section 5003.2(b) also clarifies that the

posting and publication of a forest

management decision establishes the

official date of the decision and not the

notice of an advertised timber sale, as is

the case under the existing regulations.

Section 5003.3 Reserved

The proposed rule proposed removing

the public protest process in existing

§ 5003.3. The proposed rule, also

indicated the BLM was considering

replacing the public protest process

with a 10-day public comment period,

requesting comments on this potential

change and other opportunities to foster

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public involvement in forest

management decisions, such as through

the NEPA process. The BLM has elected

not to include a 10-day public comment

process and is continuing with the

elimination of the protest process in the

final rule. The protest process is

duplicative of the IBLA appeals process

and most forest management decisions

undergo a NEPA scoping and comment

process that allow the public to

participate. The original protest period

was created administratively to expedite

the timber sale process. It has not met

its intent as established. As such, the

BLM is removing this administratively-

created provision to improve the

expediency of the process.

Comment: The BLM received

comments claiming that eliminating the

protest process would violate section

309(e) of FLPMA, and that eliminating

the protest process is arbitrary and

capricious under the Administrative

Procedure Act (5 U.S.C. 706(2)(A))

because the BLM failed to adequately

explain the reasons for this change.

Response: The commenters describe

how the timber sale protest process is an

opportunity for public involvement and

suggest that removal of the protest

process would be contrary to Section

309(e) of FLPMA. The BLM disagrees.

Section 309(e) of FLPMA states that

the Secretary, by regulation, shall

establish procedures, including public

hearings where appropriate, to give the

Federal, State, and local governments

and the public adequate notice and an

opportunity to comment upon the

formulation of standards and criteria

for, and to participate in, the

preparation and execution of plans and

programs for, and the management of,

the public lands.

This rule does not change this

process. This section vests the Secretary

with broad discretion to identify

appropriate public participation

procedures when promulgating rules

relating to the management of public

lands. When exercising this authority,

the Secretary accounts for the degree to

which public participation is

appropriate for the preparation and

execution of specific BLM plans and

programs. Section 309(e) of FLPMA,

however, does not require public

participation for every BLM

implementation decision. Instead, it

authorizes the Secretary to identify,

through regulation, the appropriate

public participation procedures, if any,

that should apply to each type of BLM

plan, program, and implementation

decision.

This final rule does not change in any

way the ability for public comment in

the resource management process. BLM

decisions to conduct timber sales often

have their beginnings in an RMP that

sets the general governance of the land-

use over a specified area, in accordance

with the Federal Land Policy and

Management Act of 1976 (FLPMA).

In developing a viable resource

management plan, the BLM starts first

with a notice of intent, which begins a

formal public scoping period during

which time the public may submit input

on issues that should be considered in

the land management plan. At this time,

the public may submit their input on

forest management, or any number of

issues that the resource management

plan will address.

After the scoping process, the BLM

next will issue a Draft RMP and draft

Environmental Impact Statement (EIS),

which initiates a 90-day public

comment period. After all comments

have been reviewed and evaluated, the

BLM then revises the draft RMP as

necessary and publishes a proposed

RMP and final EIS. This publication

initiates a 30-day protest period during

which time the public may again protest

resource management decisions

included in the RMP. Concurrently, the

BLM provides the proposed plan to the

Governor’s of those states included in

the RMP, at which time a 60-day

Governor’s Consistency Review is

initiated. The BLM may use this time to

consider inconsistences with state and

local plans and has the discretion to

resolve them to the extent practical.

After this period is up, the BLM then

may issue a Record of Decision which

acts as a final management direction,

and may include any changes resulting

from protests, the Governor’s

Consistency Reviews, or other

considerations.

From this RMP, the BLM then tiers

subsequent decision making on smaller

parcels of the land from the RMP in

order to conduct a timber sale. For

instance, the BLM Grants Pass

Interagency Office issued a Decision

Record for hazardous fuels reduction

maintenance treatments for the Picket

West Forest Management Project—

which included in its decision record

citations to several resource

management plans and their associated

NEPA documents, all of which included

several of the public comment

opportunities outlined above. For this

particular project, these forest

management projects, which included

timber sales, also tiered from a

subsequent Environmental Assessment

document, which re-analyzed smaller

portions of the same acreage included in

the relevant RMPs, and provided

another public comment period (in this

case, 48 days).

This rulemaking does not adjust in

any material way BLM’s regulations that

establish procedures for preparation,

revision, or amendment of land use

plans pursuant to FLPMA, and the

important opportunities for continued

public comment contained therein.

Instead, this rule removes an

administratively burdensome process

that has been found to not meet its

original intent to expedite timber

management decisions.

Individual forest management

decisions are generally localized

projects that concern local impacts and

the advisability of uses for particular

parcels of land; they tend not to be

major management decisions that

involve sweeping policy decisions

affecting vast tracts of land.

Moreover, the existing Forest

Management regulations provide an

opportunity to protest some, but not all,

forest management decisions. For forest

management decisions that are not

subject to protest, it has long been the

BLM’s practice to provide for public

participation through a combination of

land use planning, project-specific

NEPA documents, opportunities for

administrative appeal to the IBLA, and

other public involvement opportunities.

The final rule continues this approach.

In addition to public participation

opportunities during the planning

process, most individual forest

management projects would still have

opportunities for public participation

during the project-specific NEPA

process, which may include scoping,

public meetings, an opportunity for

comment on draft analysis, and other

opportunities that the BLM may

provide.

Additionally, for those BLM lands in

western Oregon managed under the

O&C Act, the BLM develops annual

timber sale plans that generally indicate

the various tracts of timber that will be

offered for sale. In the case of the lands

that fall under the specific management

of the O&C Act, the underlying RMPs

for those areas must be guided by the

statutory mandate under the O&C Act

which states that: ‘‘[t]he annual

productive capacity for [O&C] lands

shall be determined and declared . . .

[and] timber from said lands in an

amount not less than one-half billion

feet board measure, or not less than the

annual sustained yield capacity when

the same has been determined and

declared, shall be sold annually, or so

much thereof as can be sold at

reasonable prices on a normal market.’’

[43 U.S.C. 2601]. This textual direction

has been determined by the courts to

‘‘[convey] a clear requirement.’’

Swanson Group Mfg, LLC v. Salazar,

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951.F. Supp.2d 75, 81 (D.D.C. 2013),

vacated on other grounds Swanson

Group Mfg., LLC v. Jewell, 790 F.3d 235

(D.C. Cir. 2015). These plans are

typically posted on the BLM’s website

and suggestions from prospective

purchasers may be received to assist in

the development of the plan. See 43

CFR 5410.0–6.

Finally, the final rule preserves the

public’s ability to appeal forest

management decisions to the IBLA.

Comment: The BLM received

comments suggesting the protest process

delays BLM timber sales on O&C lands

which contributes to the BLM not

meeting its obligations under the O&C

Act, and therefore the process should be

eliminated.

Response: The BLM acknowledges

that the protest process is one of many

factors that affect workloads and BLM’s

capacity to fulfill its obligations under

the O&C Act in western Oregon. As

discussed above, eliminating the

process will help the BLM achieve the

declared ASQ in accordance with the

O&C Act with more certainty.

Comment: The BLM received

comments that support eliminating the

protest process and not replacing it with

a comment period. Commenters pointed

out that the public already has multiple

opportunities to provide input on the

management of BLM-managed public

lands during the Land Use Planning

process and its associated NEPA process

and the public would still have an

opportunity to challenge BLM forest

management decisions through

available IBLA and judicial review if the

protest process is eliminated. These

commenters also noted that it would

allow the BLM to more efficiently

implement RMPs, prevent delay of

certain forest thinning projects to reduce

fire hazard, reduce delays of county

payments derived from timber sale

revenues; remove a duplicative process,

and improve certainty to the forest

products sector and local economy by

reducing long delays. Some commenters

stated the protest process was being

abused to cause multi-year delays of

projects that clearly conformed to

activities described in RMPs and met

the requirements of the O&C Act.

Response: The BLM citied similar

justification for this rule and considers

these comments as supportive of

changes in the final rule to eliminate the

protest process. As the BLM has

explained, eliminating the protest

process will help reduce delays on all

BLM lands in the implementation of

forest resilience treatments to mitigate

the effects of wildfire, insect, disease,

and drought and help fulfill BLM’s

statutory obligations for sustained yield

timber harvest under the O&C Act on

BLM’s O&C lands in western Oregon.

The impacts of the existing protest

process on the BLM’s implementation of

forest management is well known. The

2020 Interior Appropriations committee

report provided the following direction:

the Committee continues to be troubled by

the disparity in timber targets compared with

timber awarded and harvested on some

districts. The Bureau is once again directed

to prioritize response to administrative

protests on timber sales in a timely manner

and to report timber sale accomplishments in

volume of timber sold and awarded, rather

than merely the volume offered for sale, and

shall report to the Committee on its progress.

The BLM has prioritized responding

to protests but responding to lengthy

protests that are often similar to

comments received during the NEPA

process, comments unrelated to the

project at issue, or are arguments against

implementation, are still causing delays.

The BLM has concluded that

eliminating the protest process would

help address the Committee’s concerns.

Comment: The BLM received

comments that claim only IBLA can

establish when a decision becomes

effective and what the effects of a stay

petition involve.

Response: The BLM disagrees. 43 CFR

4.21, which governs the effective date of

decisions subject to appeal, explicitly

provides that another ‘‘pertinent

regulation’’ may provide otherwise. This

final rule is such a regulation. Indeed,

the existing regulations allowed the

BLM to implement a forest management

decision immediately after resolving

applicable protests, without waiting an

additional 30 days as required for other

kinds of BLM decisions under 43 CFR

part 4. The existing regulations further

provided that the filing of a notice of

appeal to the IBLA did not

automatically suspend the effect of a

forest management decision. The final

rule maintains the BLM’s ability to issue

forest management decisions in full

force and effect while clarifying that the

effect of any such decision would be

suspended if the IBLA or a court issues

a stay or other applicable injunctive

relief, which is the current practice.

Comment: Some comments requested

the BLM include changes to adopt a

public review process similar to the U.S.

Forest Service pre-decisional objection

process.

Response: The proposed rule

discussed how the BLM considered

requiring a public comment period on a

proposed decision for proposed forest

management decisions, which is similar

to the U.S. Forest Service objection

process. The BLM has determined,

however, that public participation can

otherwise be integrated into the BLM’s

decision-making process, including into

the project-specific NEPA process for

most forest management decisions, and

that an additional comment period

would be redundant and unlikely to

raise new issues or lead to different

outcomes.

Comment: One commenter suggested

that if the BLM replaces the existing

protest process with a comment process,

then the comment process should be for

15 days instead of 10 days, so it is the

same duration as the existing protest

process. Other commenters supported

removing the protest process and

opposed replacing that process with a

10-day public comment period because

the comment process would be

redundant of the NEPA comment

period.

Response: In the final rule, the BLM

has elected to eliminate the protest

process without requiring a comment

period as discussed in the proposed

rule. As explained, this change does not

diminish the BLM’s obligations to

comply with NEPA, including the need

to provide opportunities for public

involvement through the NEPA process,

nor does this change the BLM’s

discretion to offer other opportunities

for public involvement on a case-by-

case basis. These changes allow the

Authorized Officer, who is most familiar

with the local circumstances

surrounding each decision, to determine

if offering additional public

participation opportunities would be

beneficial for a particular project. The

BLM expects a significant proportion of

forest management decisions will be

supported by an EA with public review

and comment. The BLM also agrees that

in instances where the public has an

opportunity to comment on a proposed

forest management action through the

NEPA process, a separate public

comment period would generally be

redundant and has determined not to

include a 10-day public comment

period in the final rule.

Comment: The BLM received

comments that the protest process and

IBLA appeals process are often

duplicative, addressing objections and

issues already considered during NEPA

review. The comments supported

eliminating the protest process and

maintaining an appeal to IBLA for forest

management decisions.

Response: The BLM agrees with these

commenters that the purpose of a post-

decision review process is to provide an

opportunity for the affected and

interested parties to request review

when a decision allegedly violates law,

regulation, or policy, and that both the

protest process under the existing

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regulations and the IBLA appeal process

provide this opportunity. The BLM also

agrees that over time these processes

have become duplicative, and that the

BLM receives protests that identify

issues that the BLM has already

addressed during the NEPA process for

the decision. The BLM has also found

that protests generally result only in

minimal changes to a small number of

the total decisions that are protested. As

such, the final rule amends section

5003.3 to remove the existing protest

process.

Section 5003.4 Definitions: General

The existing regulations address forest

management decisions for forest

management activities, but they do not

define a forest management activity.

Section 5003.4 of the proposed rule

included a definition of forest

management activity. The final rule

adopts the definition in the proposed

rule. This change clarifies the type of

activities that will fall under the scope

of this section of the regulations. The

definition emphasizes that a forest

management activity has a silvicultural

or forest-protection objective. These

activities result in changes to forest or

forest adjacent vegetation that have an

explicit forest output or ecological

condition as the outcome of the activity

and may include other activities that

facilitate or complement the forest

management activity. Examples of forest

management activities may include:

Cutting of trees and vegetation;

harvesting; tree planting; seedling

protection; vegetation type conversions;

fuels reduction; fire pre-suppression;

and road construction and maintenance,

when these activities are intended to

provide, for example, a commercial

forest product, improve tree and forest

heath, reduce fire risk, increase forest

resiliency to environmental stressors, or

address insect or disease infestations. A

forest management activity would not

include, for example, clearing trees for

the construction of a power line in a

right of way.

Comment: The BLM received a

comment that the definition of Forest

Management Activity should add the

terms fuel reduction, non-commercial

thinning, prescribed burning, vegetation

reduction, and wildfire hazard

reduction.

Response: The BLM did not make any

changes in the final rule to address this

comment because it believes the terms

silviculture and forest protection in the

rule encompass these described

activities. The BLM considered

providing an exhaustive list of terms in

the regulations that silviculture and

forest protection encompass, but

determined it unnecessary since these

terms are already defined in the

professional Dictionary of Forestry

published by the Society of American

Foresters, and scientific literature and

are well understood.

Section 5003.5 Severability

This new section would describe the

legal principle of ‘‘severability’’ and

apply it to the regulations in Group

5000. Under severability, if any portion

of these regulations were found invalid

or unenforceable as to a particular set of

circumstances or particular people, the

remaining portions of the regulations

would remain valid and BLM could

enforce them separately and

legitimately. This principle has always

applied to the regulations but is stated

here for information and clarity.

Other Comments Related to Part 5000

The BLM received other comments

related to aspects of the rule text in

prior sections but which are more

general and address the BLM’s or the

DOI’s administrative processes, NEPA,

other statutes, and other issues related

to forest management. Those comments

are addressed below.

Comment: The BLM received a

comment that participation in the

protest process is the only way to be a

party for the purposes of an appeal to

IBLA and removing the process from the

regulations will eliminate a party’s

ability to appeal a forest management

decision.

Response: It is not the intent of these

changes to eliminate the ability to

appeal forest management decisions to

the IBLA. Separate regulations

governing IBLA appeals, which are not

amended by this final rule, provide that

‘‘any party to a case who is adversely

affected by a decision of the Bureau’’

may appeal to the IBLA (see 43 CFR

4.410(a)). This includes any party ‘‘that

is the subject of the decision on appeal,

is the object of that decision, or has

otherwise participated in the process

leading to the decision under appeal,’’

(43 CFR 4.410(b)), including by

commenting on an environmental

document. As discussed, in most cases

a party would still have the opportunity

to comment about a proposed forest

management decision during the NEPA

process, which is unaffected by the final

rule.

Comment: The BLM received a

comment asking whether the

commenter must file an appeal to IBLA

challenging the promulgation of this

rule to exhaust administrative remedies

before challenging this rule in Federal

district court.

Response: This rulemaking is not

appealable to the IBLA.

Comment: The BLM received a

comment that the BLM failed to conduct

adequate NEPA analysis on the

environmental effects of the proposed

rule.

Response: The BLM’s adoption of the

final rule complies with NEPA. The

BLM does not believe this rule

constitutes a major Federal action

significantly affecting the quality of the

human environment, and has prepared

documentation to this effect, explaining

that a detailed statement under the

National Environmental Policy Act

(NEPA) is not required because the rule

is categorically excluded from NEPA

review. Specifically, the BLM relied on

43 CFR 46.210(i), which provides for

use of a Categorical Exclusion for

policies, directives, regulations, and

guidelines that are of an administrative,

financial, legal, technical, or procedural

nature; or whose environmental effects

are too broad, speculative, or conjectural

to lend themselves to meaningful

analysis and will later be subject to the

NEPA process, either collectively or

case-by-case. The final rule changes the

BLM’s administrative procedures for

forest management activities as well as

some of the procedures to administer a

timber sale. The rule does not authorize

any on-the-ground actions or constrain

the BLM’s ability to exercise its

substantive discretion when making

future forest management decisions.

Future forest management decisions

will be subject to the NEPA process, as

appropriate. The BLM has also

determined that the rule does not

involve any of the extraordinary

circumstances listed in 43 CFR 46.215

that would require further analysis

under NEPA. Documentation of the

reliance upon a categorical exclusion

has been prepared with other

supporting documents for this final rule.

Comment: The BLM received

comments suggesting that the existing

protest process ensures the BLM uses

best available science in decision

making.

Response: The protest process in the

existing regulations is an administrative

review process and does not address the

use of science in the decision-making

process. The final rule does not change

the existing obligations under law,

regulation or policy that address the use

of science, including the BLM’s

obligations under the Information

Quality Act, section 515 of the Treasury

and General Government

Appropriations Act for Fiscal Year 2001

(Pub. L. 106–554, H.R. 5658), and

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1

Office of Management and Budget, ‘‘OMB

Guidelines for Ensuring and Maximizing the

Quality, Objectivity, Utility, and Integrity of

Information Disseminated by Federal Agencies;

Republication,’’ (67 FR 8452, February 22, 2002).

2

U.S. Department of the Interior, ‘‘Information

Quality Guidelines Pursuant To Section 515 Of The

Treasury And General Government Appropriations

Act For Fiscal Year 2001,’ https://www.doi.gov/

sites/doi.gov/files/migrated/ocio/information_

management/upload/515Guides.pdf.

3

Bureau of Land Management, ‘‘Information

Quality Guidelines—Guidelines for Ensuring and

Maximizing the Quality, Objectivity, Utility, and

Integrity of Information Disseminated by the Bureau

of Land Management,’’ (April 2, 2018) https://

www.blm.gov/documents/national-office/public-

room/guidebook/blm-information-quality-

guidelines.

4

Secretarial Order 3369 A1 ‘‘Promoting Open

Science’’ https://www.doi.gov/sites/doi.gov/files/

elips/documents/so_3369a1_-_promoting_open_

science.pdf.

implementing guidelines of OMB,

1

DOI,

2

and the BLM

3

for ’’ ensuring and

maximizing the quality, objectivity,

utility, and integrity of information

(including statistical information)

disseminated by Federal agencies’’ and

direction in Secretary’s Order 3369

Promoting Open Science.

4

The BLM

will also continue to adhere to NEPA

requirements for using ‘‘high quality’’

information and ‘‘[a]ccurate scientific

analysis’’ (40 CFR 1500.1(b)), and for

ensuring the ‘‘professional integrity

including scientific integrity of the

discussions and analysis in [EISs]’’ (40

CFR 1502.24).

Comment: The BLM received

comments that the proposed rule affects

the NEPA process and the ability of the

BLM to conduct environmental analysis

on forest management activities.

Response: The changes amend the

administrative processes in the BLM’s

forest management regulations and do

not change the laws, regulations or

policies applicable to the BLM’s NEPA

compliance for forest management

decisions. Over time, since the existing

rule was promulgated, the BLM has

changed the way it designs its timber

sales and other forest management

decisions and now often conducts

environmental review on multiple

projects in a single watershed or on a

biologically relevant scale, such as

wildlife habitat for a particular species.

Additionally, the BLM promotes

collaboration and information-sharing

during the NEPA process, and today

more interested individuals and parties

participate in the public opportunities

during the decision-making process

when their input is most helpful. The

amendments update the administrative

process in the forestry management

regulations to reflect these changes in

forest management projects, but they do

not authorize any forest management

activities or change the BLM’s NEPA

obligations for future activities.

Comment: The BLM received

comments related to the consolidation

of sale decisions stating that this does

not allow an opportunity for site

specific comment.

Response: The final rule does not

change how the BLM complies with

NEPA for forest management activities.

The BLM conducts site specific NEPA

on timber sales and the final rule does

not change the BLM’s obligations to

comply with NEPA for these and other

forest management activities. Currently,

multiple sales are often related in terms

of geography, e.g., watershed or on a

biologically relevant scale, such as

wildlife habitat for a particular species,

and the BLM evaluates these sales in

one environmental document, which in

many cases can lead to better informed

decision-making. While the final rule

removes the protest process for

individual sales in 5003.3, the final rule

does not change the public’s ability to

comment on or otherwise be involved in

these sales during the NEPA process.

Comment: The BLM received

comments that suggested the proposed

rule would affect resources such as

water quality, wildlife habitat, carbon

storage, potential wildfire behavior,

older trees, and other resources due to

an increase in logging.

Response: The final rule addresses the

BLM’s administrative procedures for

forest management decisions. It does not

authorize any on-the-ground actions or

constrain the BLM’s substantive

decision-making discretion with respect

to harvest methods or the amount of

timber harvest that will occur on public

lands. Decisions on harvest levels,

methods and prescriptions, and areas

open to or reserved from harvest, are

generally made through land use

planning decisions consistent with the

BLM’s planning process provided in its

planning regulations at 43 CFR part

1600, subpart 1610. These planning and

forest resource decisions are made

through a separate decision-making

process and must comply with NEPA as

appropriate.

Part 5400 Sales of Forest Products;

General

Section 5400.0–3 Authority

Section 5400.0–3 contains the

authority for part 5400. Section 5400.0–

3(a) updates the O&C Act citation due

to renumbering that took place in the

U.S. Code. Section 5400.0–3(c)

references a law related to the

prohibition of exporting unprocessed

timber from Federal lands that was

superseded by 16 U.S.C. 620. The final

rule contains these updated references

to the BLM’s current statutory

requirements. The BLM did not receive

any substantive comments on this

section and did not make changes to

this section between the proposed and

final rule.

Section 5400.0–5 Definitions

Section 5400.0–5 contains the

definitions for part 5400. The final rule

adds new definitions for ‘‘lump sum

sale’’ and ‘‘scale sale,’’ which are used,

but not defined, in the existing

regulations. These two sale types are the

only sale types the BLM uses. These

definitions will ensure a common

understanding of the key difference

between these sale types, which relates

to how the volume of the forest product

is determined. The BLM did not make

changes to this section between the

proposed and final rules. The BLM did

not receive substantive comments

related to the change.

In the final rule, the Fair Market

Value definition is updated by deleting

the second sentence referencing a BLM

Manual that is no longer effective. This

change will have no effect because

appraisal guidance was updated in 1996

to address this change. Changes in

§ 5400.0–5 add the terms ‘‘export’’ and

‘‘sourcing area’’ to provide a basis for

determining a violation of the export

prohibition. The substitution definition

is also changed to update the time

period from 12 months to 24 months to

conform to 16 U.S.C. 620, and a

reference to a substitution exception for

rights-of-way that is not included in the

statute is deleted in the final rule. The

BLM did not make changes to this

section between the proposed and final

rule.

Comment: The BLM received a

comment on the definition of Fair

Market Value suggesting that the

definition should define the extent as

well as methods for determining the fair

market value.

Response: The definition for Fair

Market Value reflects BLM’s obligation

to sell forest products to the highest

bidder after advertisement (30 U.S.C.

601) with limited exception for small

quantities (30 U.S.C. 602). It is generally

accepted in commodity markets that the

true value is determined through open

competitive bidding. This is reflected in

the changes and no additional changes

are necessary.

Changes to § 5402.0–6(d) delete an

exception to substitution restrictions

that is not provided by the Forest

Resources Conservation and Shortage

Relief Act of 1990 (16 U.S.C. 620) as

amended. This exception was

established in the BLM’s regulations

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prior to the passage of the statute. The

BLM did not make changes to this

section between the proposed and final

rules. The BLM did not receive

substantive comments related to the

change.

Section 5402.0–6 Policy

The final rule amends § 5402.0–6(e) to

clarify how special forest product prices

will be determined. The BLM sells

permits to the public for special forest

products, which include fuelwood,

Christmas trees, edibles, pine nuts,

cones, seedlings, and other forest

products other than sawtimber. BLM

State Offices generally publish a price

list based on estimated values within a

State. The existing § 5420.0–6 requires

that all vegetative resources be

appraised and in no case sold at less

than appraised value. BLM offices are

concerned that selling products at the

published price for the State is not

consistent with subpart 5420, because

the value of products across a State can

vary. The addition of § 5402.0–6(e) in

the final rule clarifies that vegetative

products can be sold by permit without

appraisal after payment of adequate

compensation, which is the standard in

the authorizing statute. This means that

price lists developed by the BLM for

special forest product permits can be

used, and that individual appraisals for

each permit will not be required. The

BLM did not receive substantive

comments related to the change. The

BLM did not make changes to this

section between the proposed and final

rule.

Part 5420—Preparation for Sale

Section 5420.0–6 Policy

The existing § 5420.0–6 requires

appraisal of all timber and vegetative

resources that are sold, and in no case

sold for less than the appraised value.

The final rule adds an exemption from

appraisal for special forest products in

§ 5402.0–6(e) as described in the

previous section. The final rule removes

the phrase ‘‘prohibiting the sale of

products at less than appraised value’’

to allow the BLM to award timber sale

contracts or vegetative material permits

if bids come in below the appraised

value. The Materials Act of 1947 (30

U.S.C. 601) requires the BLM to

advertise timber sales and to award

sales to the highest bidder. The BLM is

not required by law to sell timber at or

above the appraised value. Producing

highly accurate appraisals is costly due

to factors such as acquiring log price

data, labor costs, and equipment costs,

including fuel, maintenance, and

depreciation. This has two potentially

negative consequences. First, the BLM

could incur a high cost to produce an

appraisal, which is particularly

counterproductive for lower value

products. Second, an appraisal could

over-price a sale and result in no bids.

No-bid sales result in increased costs

associated with reappraising and

reoffering a sale and are particularly

costly for salvage sales where the timber

quality rapidly deteriorates. The

changes to this section are intended to

continue the practice of appraising

timber as a guide to determining a

reasonable price, but also to allow the

BLM to sell products to the highest

bidder at a price below the appraised

price if the authorized officer receives a

reasonable bid. This provision

recognizes that an appraisal is an

estimate of the market price, but that

competitive bidding through an auction

or a sealed bid is generally superior at

identifying the true market price. The

BLM anticipates these changes will

decrease costs, increase efficiency and

result a reduction in no bid sales. The

BLM did not make changes to this

section between the proposed and final

rules.

Comment: The BLM received

comments indicating that the removal of

the prohibition on selling a product at

less than appraised value (43 CFR part

5420) would lead to the public not

receiving fair compensation for the use

of public resources. The BLM also

received comments in support of the

changes to use the competitive bidding

process to determine the sale price

regardless of the appraisal in order to

avoid no-bid sales.

Response: Accurately appraising

forest products can be technically

challenging and costly. The BLM has

had many instances where forest

product sales receive no bids because of

inaccurate appraisals or the inability to

forecast market changes and the expense

of contract requirements. For example,

in 2018 there was a significant and

rapid change in market conditions that

led to over 25 percent of western Oregon

timber sales receiving no-bid. Even with

the best data and professional

appraisers, appraisals have limitations

in determining the market value and

expenses because appraisals are based

on retrospective analysis and markets

and expenses can change rapidly. In

addition, the BLM’s current sale process

does not allow for price adjustments

once the sale is advertised which is a

minimum of two weeks before receiving

bids. The final rule will allow the BLM

to avoid having to delay sales and incur

additional administrative costs of

reappraising and reoffering sales if no

bids are received by allowing the

Authorized Officer the discretion to

select a high bid that is below the

appraised value when it is determined

that the appraisal overestimated the

market price. This discretion is

particularly important for salvage timber

where appraisal accuracy is even more

difficult and the effect of a delay due to

a sale going no-bid could result in the

need to abandon the sale due to wood

deterioration.

Part 5400—Sales of Forest Products;

General

Section 5422.1 Lump-Sum Sales

This final rule changes the title of

§ 5422.1 from ‘‘Cruise Sales’’ to ‘‘Lump-

Sum Sales.’’ This section is also revised

to say that a lump-sum sale is most

often estimated using a tree cruise

method. The BLM does not use the term

‘‘cruise sale,’’ though it is generally

understood to mean lump sum. This

revision is intended to clarify that both

sale types are acceptable and may be

used by an authorized officer. The BLM

did not make changes to this section

between the proposed and final rule.

The BLM did not receive substantive

comments related to the change.

Section 5422.2 Scale Sales

Changes to § 5422.2 revise some of the

rules for the use of scale sales and

reorganize the section for clarity. The

existing regulations limit the use of

scale sales to events such as timber

disasters or imminent resource loss.

Currently other circumstances in which

its use is permitted are ambiguous.

Implementation of this section in the

existing rule has generally discouraged

scale sales, despite the fact that it is a

standard practice in the logging industry

and its use is common among other

sellers of timber, such as State

governments and the U.S. Forest

Service. The final rule removes the

existing limitations and permits the use

of scale sales at the discretion of the

authorized officer. In the final rule the

term ‘‘scale sales’’ includes the use of

weight scales, including third party

weight scales that are certified by a State

government for timber sold on a per-ton

basis. Section 5422.2 in the existing rule

does not mention weight scales, which

can lead to the incorrect conclusion that

the term scale sale in the existing rule

is only referring to log scaling using a

log rule. The BLM did not make changes

to this section between the proposed

and final rule. The BLM did not receive

substantive comments related to the

change.

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Section 5424.0–6 Policy

A minor change in § 5424.0–6(d)

corrects a typographical error by

replacing the word ‘‘from’’ with ‘‘form’’.

Section 5424.1 Reporting Provisions

for Substitution Determination

Section 5424.1 relates to the

enforcement of the export prohibition.

Timber export laws are designed to not

only prohibit the timber cut from

Federal land from being exported, but

also to prohibit Federal timber from

being used as a substitute for other

timber the purchaser owns and exports.

The final rule updates the time period

for tracking and reporting the export of

private timber for a purchaser or an

affiliate of a purchaser of Federal timber

from 1 year to 2 years. This revision is

intended to bring the rule into

conformance with the Forest Resources

Conservation and Shortage Relief Act of

1990, as amended. The BLM did not

receive substantive comments related to

these changes and did not make changes

to this section between the proposed

and final rules.

Part 5430—Advertisement

Subpart 5430—Advertisement; General

Section 5430.0–6 Policy

Section 5430.0–6 of the final rule

gives the BLM the option to advertise

competitive timber sales on an agency

website. The BLM did not make changes

to this section between the proposed

and final rules. The BLM did not receive

substantive comments related to these

changes.

Part 5440—Conduct of Sales

Section 5441.1 Qualification of

Bidders

Section 5441.1 of the final rule

establishes the qualifications for bidders

on BLM timber sales. Revisions to this

section pertain to the debarment

regulations at 2 CFR part 180. Under

proposed § 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 brings it into

conformance with 2 CFR part 180. The

BLM did not make changes to this

section between the proposed and final

rules. The BLM did not receive

substantive comments related to these

changes and did not make changes to

this section between the proposed and

final rules.

Section 5441.1–1 Bid Deposits

Section 5441.1–1 sets forth the

requirements for a bid deposit that must

accompany a bid on a timber sale. The

final rule allows the BLM to refund up

to half of the bid deposit if the award

of the sale is delayed for more than 90

days. This change is to address current

instances in which a sale is conducted,

a high bidder is announced, and then

before award of the contract,

circumstances, such as a court

injunction, delay the award of the

timber sale contract. Given that bid

deposits are 10 percent of the appraised

value, a deposit can be substantial. The

BLM recognizes that delays in the award

of timber sale contracts is a burden for

purchasers; thus, this revision helps

reduce that burden. The BLM did not

receive substantive comments related to

these changes and did not make changes

to this section between the proposed

and final rules.

Section 5441.1–2 Special

Considerations

Section 5441.1–2 refers to a Small

Business Administration road

construction loan program that no

longer exists. This section is deleted

because it is obsolete. The BLM did not

receive substantive comments related to

these changes and did not make changes

to this section between the proposed

and final rules.

Part 5450—Award of Contract

Section 5451.1 Minimum Performance

Bond Requirements; Types

Section 5451.1 pertains to

performance bonds for timber sale

contracts, which function to protect the

government’s interest in Federal lands

and resources by helping to ensure the

fulfillment of a purchaser’s contract

obligations and the BLM’s resource

objectives. Performance bonds may be

held by the BLM when a purchaser is

not in compliance with contract terms

and conditions. The bond can be

forfeited to the BLM to cover costs of

remedying unfinished contract

obligations. Currently, a performance

bond is required for all contracts for the

sale of products greater than or equal to

$2,500, and for installment contracts of

less than $2,500. For cash sales of less

than $2,500, bond requirements are at

the discretion of the authorized officer.

The final rule requires a performance

bond for all contracts for the sale of

products greater than or equal to

$10,000, and impose a minimum

performance bond of not less than $500

or 20 percent of the contract price,

whichever is greater, for all installment

contracts of less than $10,000. For all

cash sales less than $10,000, bond

requirements will be at the discretion of

the authorized officer. Under the final

rule, the BLM retains discretion to

require performance bonds within the

specific limits established in the

regulations and determines the amount

of bond required on a case-by-case basis

after site-specific analysis. These

changes account for estimated inflation,

since the existing rule was established

in 1970 when the amount of material

covered by the bond was four to five

times the amount of material covered at

current prices. For example, three to

five truckloads of timber might have

been sold for $2,500 in 1970, whereas,

at current dollar valuation, a single

truckload of the same quality timber

might exceed the threshold for the

bonding requirement. This change

adjusts the BLM’s risk exposure to a

level that is similar to when the bond

threshold in the existing regulations was

originally published. The BLM did not

receive substantive comments related to

these changes and did not make changes

to this section between the proposed

and final rules.

Part 5460—Sales Administration

Section 5461.3 Total Payment

The BLM changed the term ‘‘cruise

sale’’ to ‘‘lump sum sale’’ consistent

with other changes in the rule. The BLM

did not receive substantive comments

related to these changes and did not

make changes to this section between

the proposed and final rules.

Section 5463.1 Time for Cutting and

Removal

The BLM changed the maximum time

for cutting and removal to 48 months in

the final rule.

Comment: The BLM received

comments requesting additional time for

cutting and removal stating that the

current maximum of 36 months (43 CFR

5463.1) is not adequate to complete

sales with limited operating seasons and

an increasing number of project design

features that are required in BLM timber

sale contracts.

Response: In response to comments

on the proposed rule recommending

that the BLM consider opportunities to

provide greater flexibility in the amount

of time to complete cutting and removal,

the BLM’s final rule revises § 5463.1 to

increase the maximum amount of time

allowed for cutting and removal of

timber in BLM timber sale contracts. In

the existing rule, the maximum time for

the cutting and removal of timber is 36

months and in the final rule this period

is increased to up to 48 months.

Although the BLM did not specifically

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propose this change in the proposed

rule, the BLM raised the issue of

contract performance timing in its

proposed rule and specifically proposed

changes in § 5473.3 to identify

additional circumstances in which the

BLM could extend the period of

performance in BLM contracts. The

BLM received no comments opposed to

this specific proposed change, with all

comments addressing this section

expressing support. Commenters

recommended that the BLM further

address this issue by providing greater

flexibility for the BLM to issue contracts

with a longer performance term at the

outset. These comments stated that the

existing maximum of 36 months in

§ 5463.1 is no longer adequate to

complete sales with limited operating

seasons and an increasing number of

project design features intended to limit

environmental impacts.

The BLM’s review of comments it

received on the proposed rule to address

the period of performance issue,

coupled with a second look from the

BLM at the causes of increased need for

contract extensions, led the BLM to

make this change in the final rule. The

BLM recognizes that the 36-month

maximum contract term is no longer

enough time to perform the terms of

some contracts due to changed

conditions since the existing rule was

finalized, including an increasing

number of contracts with additional

restrictions to limit environmental

impacts, seasonal restrictions, events

such as weather, fire closure and other

related conditions that interrupt

operating time. Changed conditions was

the basis for proposing changes to allow

additional contract extensions, and this

change has the same effect as the

changes to § 5463.1.

Part 5470—Contract Modification—

Extension—Assignment

Section 5473.4 Approval of Request

The final rule also changed § 5473.4

to allow the authorized officer to grant

a purchaser’s request to extend the

amount of operating time on a timber

sale contract without reappraisal in

certain circumstances. The revision to

§ 5473.4(c) adds unusual weather

conditions and national, state, or local

government emergency declaration such

as a pandemic or natural disaster to the

list of reasons the BLM may grant a

request for a contract extension. It is the

BLM’s experience that some pause in

operations occurs due to normal

weather, such as a halt in log hauling

during heavy rain events or a shutdown

of yarding due to wet soils during spring

melt, which would not amount to

unusual weather conditions. Unusual

weather conditions could be record

drought leading to prolonged fire hazard

or record rainfall leading to prolonged

wet soil conditions. Although allowing

contract extension for national, state, or

local emergency declarations was not

specifically proposed, the BLM did

receive a request from the timber

industry to grant blanket contracts

extensions to BLM contracts due to

operational disruptions as the result of

Federal state and local restrictions

responding to the COVID–19 pandemic.

The BLM received multiple individual

requests for extensions for these reasons

during the public comment period for

the proposed rule and has decided to

include this additional circumstance as

one where the BLM may grant contract

extensions. Neither of these changes to

§ 5473.4 allow the BLM to grant blanket

extensions for all BLM contracts. The

BLM will continue to evaluate extension

requests on a case-by-case basis.

Section 5473.4(d) also contains

criteria for contract extension related to

fire and other natural and man-made

disasters. The purpose of this extension

is to allow the BLM to extend contracts

when a disaster results in significant

salvage timber that needs to be

harvested elsewhere. Timber impacted

by a disaster often deteriorates rapidly

and attracts insects and pathogens, and

it is prudent that those sales be

prioritized over sales that harvest live

timber. The final revisions to this

section expand the BLM’s existing

authority and allow the BLM to extend

BLM timber contracts in response to

disasters on both Federal and non-

Federal lands. The revision also puts a

36-month limit on the amount of time

that a contract can be extended, which

is not in the existing regulations. The

BLM recognizes that disasters can pose

a serious hardship on local

communities. The changes allow the

BLM to extend the contract terms and

provide additional time for a purchaser

to harvest green timber in areas not

impacted by the disaster, which could

benefit businesses and land owners by

allowing them to focus their resources

on areas impacted by the disaster,

including salvage removal.

Part 5500—Nonsale Disposals; General

Section 5500.0–5 Definitions

Section 5500.0–5(e) revises the

definition of public lands to make it

consistent with the definition in FLPMA

at 43 U.S.C. 1702(e), and to clarify that

for this part of the regulations, O&C

grant lands are considered public lands.

Moreover, this section clarifies that

there are conditions for the free use of

vegetative and mineral materials on

O&C grant lands. The BLM did not make

changes to this section between the

proposed and final rules. The BLM did

not receive substantive comments

related to these changes.

Miscellaneous

Technical Note: The BLM is changing

the authority sections to reflect that the

O&C Act, which was previously

codified at Title 43, Chapter 28,

Subchapter V, (43 U.S.C. 1181a–j), was

transferred to Title 43, Chapter 44, (43

U.S.C. 2601–2634) on July 1, 2017. In

the final rule the BLM also removes the

Statute at Large citations that have

already been codified.

T

ABLE

1—A

BBREVIATED

D

ESCRIPTIONS OF

T

HE

M

AJOR

C

HANGES

M

ADE TO

43 CFR P

ARTS

5000, 5400,

AND

5500

BY

T

HIS

R

ULE

Subchapter E—Forest Management

43 CFR reference and descrip-

tion Change between proposed rule and existing regulation Changes between final rule and proposed rule

Part 5000 Adminstration of Forest Management Decisions

5003.1 Effect of Decisions ...... Clarifies that decisions may be effective immediately when

issued rather than after a protest process. no changes.

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T

ABLE

1—A

BBREVIATED

D

ESCRIPTIONS OF

T

HE

M

AJOR

C

HANGES

M

ADE TO

43 CFR P

ARTS

5000, 5400,

AND

5500

BY

T

HIS

R

ULE

—Continued

Subchapter E—Forest Management

43 CFR reference and descrip-

tion Change between proposed rule and existing regulation Changes between final rule and proposed rule

5003.2 Notice of forest man-

agement decisions. Provides that the BLM authorizes forest management activities

by issuing forest management decisions. The Issuance of a

decision authorizing forest management activities, including

timber sales, is the decision for timber sales instead of adver-

tisement of the timber sale under current regulations. The

changes also allow web-based posting of decisions and that

the posting date of the decision is the effective date for the

decision for purposes of appeal under 43 CFR part 4.

In addition to changes in the proposed rule, the BLM added text

to clarify that forest management decisions that may be effec-

tive immediately under §5003.1 must be posted.

5003.3 Protests ....................... Eliminates the protest process ...................................................... no changes.

5003.4 Definition of Forest

Management Activity. Provides a definition for decisions that could be made under

§5003.2. no changes.

5003.5 Severability .................. ........................................................................................................ Adds a new section of severability for sections in Group 5000.

Part 5400 Sales of Forest Products General

5400.0–3(a) and (c) Authority Updates references to BLMs forest management authorities re-

sulting from changes to the U.S. Code and passage of the

Forest Resources Conservation and Shortage Relief Act.

no changes.

5400.0–5 Definitions ............... Added various definitions for terms used in the part 5400 rule ... no changes.

5402.0–6(d) and (e) Other

than Advertised Sales. Deleted export exemption for right-of-way timber to conform with

law and clarified that special forest product permits do not re-

quire individual appraisals.

no changes.

5410.0–6 Annual Timber Sale

Plan. Adds agency website to the ways BLM plans can be published no changes.

5420.0–6 Preparation for Sale Removes prohibition of selling products at less than appraised

value. no changes.

5422.1 Lump-sum sales .......... Changes title from ‘‘Cruise sales’’ to ‘‘Lump-sum sales’’ to

match contract name and common use of Lump-sum and re-

vise to indicate that Lump-sum and Scale are both approved

sale types.

no changes.

5422.2 Scale sales .................. Expands the discretion to use scale sales and clarifies that sale

by weight is an approved method. no changes.

5424.1 Reporting provisions

for substitution determination. Updates the reporting requirement to conform with the Forest

Resources Conservation and Shortage Relief Act. no changes.

5430.0–6 Advertisement ......... Allows BLM to advertise sales on an agency website ................. no changes.

5441.1 Qualification of Bidders Updates the qualification of bidders to conform with Department

of the Interior regulation pertaining to debarment 2 CFR part

180.

no changes.

5441.1–1 Bid Deposits ............ Allows BLM to refund a portion of the bid deposit if award of the

sale is delayed. no changes.

5441.1–2 Small business ad-

ministration road loans. Removes the existing section text which was no longer valid

and redesignates §5441.1–3 as § 5441.1–2. no changes.

5451.1 Minimum performance

bond requirements. Changes the sale value threshold that triggers a requirement for

a performance bond from sales that are $2,500 and greater to

$10,000 and greater.

no changes.

5461.3 Total Payments ........... Replaces the term ‘‘cruise sale’’ with ‘‘lump-sum sale’’ to be

consistent with changes to §5422.1. no changes.

5463.1 Time for cutting and

removal. Not in the proposed rule but addresses an underlying issue re-

lated to the purposes for changes to §5473.4. A change was added in §5463.1 to address issues with in-

creased use of extensions to deal with circumstances that in-

terrupt sales as well as effects from increasingly complex

sales.

5473.4 Approval of Requests Expands the reasons for approving contract extension requests Adds emergency declarations or public orders as allowable ex-

tension reasons based on recent government mandated

COVID–19 restrictions and related issues.

Part 5500 Nonsale Disposals, General

5500.0–5 Definitions ............... Updates the public lands definition to match the Federal Lands

Policy Management Act definition. no changes.

III. Procedural Matters

Regulatory Planning and Review

(Executive Orders 12866 and 13563)

Executive Order (E.O.) 12866 provides

that the Office of Information and

Regulatory Affairs in the Office of

Management and Budget will review all

significant rules. The Office of

Information and Regulatory Affairs has

determined that this rule is not

significant.

E.O. 13563 reaffirms the principles of

E.O. 12866 while calling for

improvements in the nation’s regulatory

system to promote predictability, reduce

uncertainty, and use the best, most

innovative, and least burdensome tools

for achieving regulatory ends. The E.O.

directs agencies to consider regulatory

approaches that reduce burdens and

maintain flexibility and freedom of

choice for the public where these

approaches are relevant, feasible, and

consistent with regulatory objectives.

E.O. 13563 emphasizes further that

regulations must be based on the best

available science and that the rule

making process must allow for public

participation and an open exchange of

ideas. We have developed this rule in a

manner consistent with these

requirements.

The BLM reviewed the requirements

of the final rule and determined that it

will not adversely affect in a material

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5

Executive Office of the President, OMB

Memorandum No. M–17–21, Guidance Implementing Executive Order 13771, Titled ‘‘Reducing Regulation and Controlling Regulatory

Costs,’’ April 5, 2017.

way the economy, a sector of the

economy, productivity, competition,

jobs, the environment, public health or

safety, or State, local, or tribal

governments or communities. For more

detailed information, see the Regulatory

Impact Analysis (‘‘Economic and

Threshold Analysis for Proposed Forest

Management Rule’’) (RIA) prepared for

this rule. The RIA has been posted in

the docket for the proposed rule on the

Federal eRulemaking Portal: https://

www.regulations.gov. In the Searchbox,

enter ‘‘RIN 1004–AE61,’’ click the

‘‘Search’’ button, open the Docket

Folder, and look under Supporting

Documents.

Reducing Regulation and Controlling

Regulatory Costs (E.O. 13771)

The Office of Information and

Regulatory Affairs has determined that

this rule is not a significant regulatory

action as defined in E.O. 12866.

Therefore, the rule is not an ‘‘E.O. 13771

regulatory action’’ as defined by Office

of Management and Budget (OMB)

guidance implementing E.O. 13771. As

such, the rule is not subject to the

requirement for ‘‘regulatory actions’’

under E.O. 13771.

5

Regulatory Flexibility Act

This final rule will not have a

significant economic effect on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.) (RFA). The RFA

generally requires that Federal agencies

prepare a regulatory flexibility analysis

for rules subject to the notice-and-

comment rulemaking requirements

under the Administrative Procedure Act

(5 U.S.C. 500 et seq.), if the rule would

have a significant economic impact,

whether detrimental or beneficial, on a

substantial number of small entities. See

5 U.S.C. 601–612. Congress enacted the

RFA to ensure that Government

regulations do not unnecessarily or

disproportionately burden small

entities. Small entities include small

businesses, small governmental

jurisdictions, and small not-for-profit

enterprises.

The Small Business Administration

(SBA) has developed size standards to

carry out the purposes of the Small

Business Act, which can be found in 13

CFR 121.201. For a specific industry

identified by the North American

Industry Classification System (NAICS),

small entities are defined by the SBA as

an individual, limited partnership, or

small company considered at ‘‘arm’s

length’’ from the control of any parent

company, which meet certain size

standards. The size standards are

expressed either in number of

employees or annual receipts. This rule

will most likely affect entities that

participate in timber sales or the related

protest process. The industries most

likely to be directly affected are listed in

the table below along with the relevant

SBA size standards.

Industry Size standards

in millions

of dollars

Size standards

in number

of employees

Timber Tract Operations .................................................................................................................................. $11.0 ............................

Forest Nurseries and Gathering of Forest Products ....................................................................................... 11.0 ............................

Logging ............................................................................................................................................................ ............................ 500

Support Activities for Forestry ......................................................................................................................... 7.5 ............................

Environmental Consulting Services ................................................................................................................. 15.0 ............................

Environment, Conservation and Wildlife Organizations .................................................................................. 15.0 ............................

BLM timber sales are commonly bid

on by, and awarded to, small

businesses. The BLM is also required by

the SBA regulations (13 CFR part 121)

to set aside a proportion of BLM timber

sales for small businesses. This final

rule does not change this process. Four

changes in the rule to subparts 5422,

5441, 5451, and 5463 will have small

beneficial economic effects to small

businesses by lowering financial

requirements to enter into a sale

contract and by providing more

flexibility in the timber sale contract.

Section 5441.1–2 refers to a SBA road

construction loan program that has

expired, and therefore the deletion of

this section will have no effect. The

revisions to the forest management

decision process should benefit small

entities that elect to submit comments

by more clearly defining the process.

Based on the available information,

we conclude that this rule will not have

a ‘‘significant economic impact on a

substantial number of small entities,’’ as

that phrase is used in 5 U.S.C. 605.

Therefore, a final regulatory flexibility

analysis is not required.

Small Business Regulatory Enforcement

Fairness Act (SBREFA)

This rule is not a major rule under 5

U.S.C. 804(2), the Small Business

Regulatory Enforcement Fairness Act.

This rule:

(a) Does not have an annual effect on

the economy of $100 million or more.

The total appraised value of all timber

offered by the BLM over the last five

years is approximately $48 million per

year. To the extent that the BLM can

become more efficient and meet the

increased timber volume offered when

authorized in RMPs, this rule could

have positive effects to the economy.

Additional details can be found in the

RIA for this rule.

(b) Will not cause a major increase in

costs or prices for consumers,

individual industries, Federal, State, or

local government agencies, or

geographic regions. The primary

commodity affected by this rule is

lumber. The BLM does not anticipate

that a reduction in timber production

will occur due to this final rule.

(c) Does not have significant adverse

effects on competition, employment,

investment, productivity, innovation, or

the ability of U.S.-based enterprises to

compete with foreign-based enterprises.

The BLM believes this rule will result

in positive effects in each of these areas.

This rule could have a small positive

effect on competition by lowering the

financial requirements for entering into

a small sale contract. To the extent that

the BLM can become more efficient and

meet the increased timber volume

authorized in RMPs, this rule could

have positive effects on employment,

investment, and productivity.

Unfunded Mandates Reform Act

This rule will not impose an

unfunded mandate on State, local, tribal

governments, or the private sector of

more than $100 million per year. The

rule does not have a significant or

unique effect on State, local, or tribal

governments, or the private sector. This

rule will only affect the BLM’s

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administrative process for protest of

forest management decisions and

provide minor revisions to enhance

flexibility in developing and

administering timber sales. A statement

containing the information required by

the Unfunded Mandates Reform Act (2

U.S.C. 1531 et seq.) is not required.

Takings (E.O. 12630)

This rule does not affect a taking of

private property or otherwise have

taking implications under E.O. 12630.

Section 2(a) of E.O. 12630 identifies

policies that do not have takings

implications, such as those that abolish

regulations, discontinue governmental

programs, or modify regulations in a

manner that lessens interference with

the use of private property. There are no

cases where a BLM timber sale or forest

management decision has affected

private property rights. The rule will

revise the timber sale and decision

protest processes and will not affect

private property rights. A takings

implication assessment is not required.

Federalism (E.O. 13132)

Under the criteria in section 1 of E.O.

13132, this rule does not have sufficient

federalism implications to warrant the

preparation of a federalism summary

impact statement. It does not have

substantial direct effects on the States,

on the relationship between the

National Government and the States, or

on the distribution of power and

responsibilities among the various

levels of government. The rule revises

processes that have been implemented

numerous times over decades and

which have not been found to have

effects on the relationship or

distribution of power between the

national government and the States.

Civil Justice Reform (E.O. 12988)

This rule complies with the

requirements of E.O. 12988.

Specifically, this rule:

(a) Meets the criteria of section 3(a)

requiring that all regulations be

reviewed to eliminate errors and

ambiguity and be written to minimize

litigation; and

(b) Meets the criteria of section 3(b)(2)

requiring that all regulations be written

in clear language and contain clear legal

standards.

Consultation With Indian Tribes (E.O.

13175 and Departmental Policy)

The Department of the Interior strives

to strengthen its government-to-

government relationships with Indian

tribes through a commitment to

consultation with Indian tribes and

recognition of their right to self-

governance and tribal sovereignty. We

have evaluated this rule under the

Department’s consultation policy and

under the criteria in E.O. 13175 and

have determined that it has no

substantial direct effects on federally

recognized Indian tribes, and that

consultation under the Department’s

tribal consultation policy is not

required. The BLM consults with tribes

at multiple decision support stages,

including the development of RMPs,

NEPA scoping, consultation under the

National Historic Preservation Act, as

well as in other circumstances

identified in the BLM Tribal

Consultation policy. Decisions affected

by this rule are included in all these

decision support stages. The rule does

not affect these tribal consultation

processes.

Paperwork Reduction Act (44 U.S.C.

3501 et seq.)

This rule contains existing and

revised information collections. All

information collections require approval

under the Paperwork Reduction Act of

1995 (44 U.S.C. 3501 et seq.). The BLM

may not conduct or sponsor and,

notwithstanding any other provision of

law, you are not required to respond to

a collection of information unless it

displays a currently valid Office of

Management and Budget (OMB) control

number. OMB previously reviewed and

approved information collection

requirements contained in 43 CFR

5003.3 and 43 CFR 5424.1 under OMB

control number 1004–0058. Revisions to

these previously approved requirements

contained in this final rule are

explained below. The following

proposed revisions to OMB Control

Number 1004–0058 require OMB

approval:

Final revisions to § 5003.3 eliminate

the protest process, thereby eliminating

a currently approved but now obsolete

requirement for information collection.

Revisions to § 5424.1 update the

regulation in accordance with the Forest

Resources Conservation and Shortage

Relief Act of 1990, as amended. The

revisions to §§ 5003.3 and 5424.1,

explained in more detail below require

approval by OMB:

(1) Revisions to § 5003.3 remove the

existing protest process:

(a) Section 5003.3(a) currently

authorizes protests of a forest

management decision to be filed within

15 days of the publication of a notice of

decision or notice of sale in a

newspaper of general circulation. This

discretionary protest process was largely

duplicative of other opportunities for

public involvement, including through

the NEPA process. The final rule

eliminates the protest process for

activities under § 5003.2 prior to issuing

a decision. The elimination of the

protest process results in an estimated

reduction of 25 responses and 250

burden hours as currently approved by

OMB. The total burden currently

approved by OMB for this OMB control

number is 325 annual responses and

550 annual burden hours. As a result of

the final rule, the BLM estimates that

there will be 300 annual responses and

300 annual burden hours.

(2) Revisions to § 5424.1(a)(1) and (2)

update the reporting requirement for

purchasers and affiliates to report the

export of private timber from within 1

year to 2 years. The final rule makes no

changes to the information collected

pursuant to this reporting requirement

nor is there a change to the reporting

burden associated with collection of

information.

Title: Forest Management Log Export

and Substitution.

OMB Control Number: 1004–0058.

Form Numbers: 5450–17, 5460–15,

and 5460–17.

Type of Review: Revision of a

currently approved collection.

Description of Respondents:

Purchasers of Federal timber and their

affiliates.

Estimated Number of Annual

Respondents: 300.

Estimated Number of Responses: 300.

Estimated Completion Time per

Response: 1 hour.

Estimated Total Annual Burden

Hours: 300.

Respondents’ Obligation: Required to

obtain or retain a benefit.

Frequency of Collection: On occasion.

Estimated Total Non-Hour Cost: $0.

As part of our continuing effort to

reduce paperwork and respondent

burdens, we invite the public and other

Federal agencies to comment on any

aspect of this information collection,

including:

(1) Whether or not the collection of

information is necessary for the proper

performance of the functions of the

agency, including whether or not the

information will have practical utility;

(2) The accuracy of our estimate of the

burden for this collection of

information, including the validity of

the methodology and assumptions used;

(3) Ways to enhance the quality,

utility, and clarity of the information to

be collected; and

(4) Ways to minimize the burden of

the collection of information on those

who are to respond, including through

the use of appropriate automated,

electronic, mechanical, or other

technological collection techniques or

other forms of information technology,

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e.g., permitting electronic submission of

response.

On June 8, 2020, the BLM published

a proposed regulation (RIN 1004–AE61,

‘‘Forest Management Decision Protest

Process and Timber Sale

Administration’’ 85 FR 35049). The

proposed rule solicited comments on

the proposed changes to the information

collections for a period of 30 days,

ending on July 8, 2020. The BLM did

not receive any comments related to

information collection in response to

the proposed rule.

Written comments and

recommendations for this information

collection should be sent within 30 days

of publication of this document to

www.reginfo.gov/public/do/PRAMain.

Find this particular information

collection by selecting ‘‘Currently under

30-day Review—Open for Public

Comments’’ or by using the search

function. Please provide a copy of your

comments to Darrin King, Information

Collection Clearance Officer, Attention

PRA Office, Bureau of Land

Management, 440 W 200 S #500, Salt

Lake City, UT 84101 or by email to

BLM_HQ_PRA_Comments@blm.gov.

Please reference OMB Control Number

1004–0058 and RIN 1004–AE61 in the

subject line of your comments. Please

note that due to COVID–19, electronic

submission of comments is

recommended.

National Environmental Policy Act

The BLM has determined that the

changes made by this final rule are

administrative or procedural in nature

in accordance with 43 CFR 46.210(i),

which provides that policies, directives,

regulations, and guidelines: That are of

an administrative, financial, legal,

technical, or procedural nature; or

whose environmental effects are too

broad, speculative, or conjectural to

lend themselves to meaningful analysis

and will later be subject to the NEPA

process, either collectively or case-by-

case. Further, the final rule does not

involve any of the extraordinary

circumstances listed in 43 CFR 46.215

that would require further analysis

under NEPA. Therefore, this action is

categorically excluded from

environmental review under NEPA.

Documentation of the reliance upon a

categorical exclusion has been prepared

and is available for public review with

the other supporting documents for this

rule.

Effects on the Energy Supply (E.O.

13211)

This rule is not a significant energy

action under the definition in E.O.

13211. A Statement of Energy Effects is

not required.

Author

The principal authors of this rule are:

Wade Salverson and Christian

Schumacher, Division of Forest,

Rangeland, and Vegetation Resources;

Jennifer Noe, Division of Regulatory

Affairs.

List of Subjects

43 CFR Part 5000

Administrative practice and

procedure, Forests and forest products,

Public lands.

43 CFR Part 5400

Administrative practice and

procedure, Forests and forest products,

Public lands, Reporting and

recordkeeping requirements.

43 CFR Part 5420

Forests and forest products,

Government contracts, Public lands,

Reporting and recordkeeping

requirements.

43 CFR Part 5440

Forests and forest products,

Government contracts, Public lands,

Reporting and recordkeeping

requirements.

43 CFR Part 5450

Forests and forest products,

Government contracts, Public lands,

Reporting and recordkeeping

requirements.

Surety bonds.

43 CFR Part 5460

Forests and forest products,

Government contracts, Public lands.

43 CFR Part 5470

Forests and forest products,

Government contracts, Public lands,

Reporting and recordkeeping

requirements.

43 CFR Part 5500

Forests and forest products, Public

lands.

Katharine MacGregor,

Deputy Secretary, U.S. Department of the

Interior.

43 CFR Chapter II

For the reasons set out in the

preamble, the Bureau of Land

Management amends 43 CFR parts 5000,

5400, 5420, 5440, 5450, 5460, 5470, and

5500 as follows:

■1. Revise part 5000 to read as follows:

PART 5000—ADMINISTRATION OF

FOREST MANAGEMENT DECISIONS

Subpart 5003—Administrative

Remedies

Sec.

5003.1 Effect of decisions; general.

5003.2 Notice of forest management

decisions.

5003.3 [Reserved]

5003.4 Definitions: General.

5003.5 Severability.

Subpart 5004 [Reserved]

Authority: 43 U.S.C. 2601; 30 U.S.C. 601

et seq.; 43 U.S.C. 1701.

Subpart 5003—Administrative

Remedies

§ 5003.1 Effect of decisions; general.

Notwithstanding the provisions of 43

CFR 4.21(a):

(a) The authorized officer may make

a forest management decision, as

described in § 5003.2, effective

immediately or on a date established in

the decision. The filing of a petition for

a stay pending appeal under 43 CFR

part 4 shall not automatically suspend

the effect of a forest management

decision issued under § 5003.2.

(b) Where the Bureau of Land

Management (BLM) determines that

vegetation, soil, or other resources on

the public lands are at substantial risk

of wildfire due to drought, fuels

buildup, or other reasons, or at

immediate risk of erosion or other

damage due to wildfire, BLM may make

a wildfire management decision made

under this part and parts 5400 through

5510 of this subchapter effective

immediately or on a date established in

the decision. Wildfire management

includes but is not limited to:

(1) Fuel reduction or fuel treatment

such as prescribed burns and

mechanical, chemical, and biological

thinning methods (with or without

removal of thinned materials); and

(2) Projects to stabilize and

rehabilitate lands affected by wildfire.

(c) The Interior Board of Land

Appeals will issue a decision on the

merits of an appeal of a wildfire

management decision under paragraph

(b) of this section within the time limits

prescribed in 43 CFR 4.416.

§ 5003.2 Notice of forest management

decisions.

(a) The BLM authorizes forest

management activities, which are

defined in § 5003.4, by issuing forest

management decisions. Forest

management decisions that the BLM

may make effective immediately

pursuant to § 5003.1(a) shall be posted

on a designated agency website while

also:

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(1) Publishing a notice in a newspaper

of general circulation in the area;

(2) Sending a notice by direct or

electronic mail to a list of parties

requesting direct notification; or

(3) Broadcasting a notice on one or

more mass-media platforms.

(b) The posting date of the forest

management decision on the agency

website establishes the effective date of

the decision for purposes of an appeal

under 43 CFR part 4.

§ 5003.3 [Reserved]

§ 5003.4 Definitions: General.

Forest management activity generally

means activities with a silvicultural or

forest protection objective including

associated actions needed to carry out

the silvicultural or forest protection

objective, such as construction and

maintenance of roads and

improvements.

§ 5003.5 Severability.

If a court holds any provisions of the

regulations in this subpart or their

applicability to any person or

circumstances invalid, the remainder of

this subpart and its applicability to

other people or circumstances will not

be affected.

Subpart 5004 [Reserved]

PART 5400—SALES OF FOREST

PRODUCTS; GENERAL

■2. The authority citation for part 5400

is revised to read as follows:

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

315, 2601, 16 U.S.C. 607a, and 43 U.S.C.

1701 et seq.

Subpart 5400—Sales of Forest

Products; General

■3. Amend § 5400.0–3 by revising

paragraphs (a) and (c) to read as follows:

§ 5400.0–3 Authority.

(a) The Act of August 28, 1937 (43

U.S.C. 2601) authorizes the sale of

timber from the Revested Oregon and

California Railroad and Reconveyed

Coos Bay Wagon Road Grant Lands and

directs that such lands shall be managed

for permanent forest production and the

timber thereon sold, cut, and removed

in conformity with the principle of

sustained yield for the purpose of

providing a permanent source of timber

supply, protecting watersheds,

regulating streamflow and contributing

to the economic stability of local

communities and industries, and

providing recreational facilities.

* * * * *

(c) Public Law 101–382 (104 Stat. 714)

Forest Resources Conservation and

Shortage Relief Act of 1990 (16 U.S.C.

620) restrictions on exports of

unprocessed timber originating from

Federal lands.

* * * * *

■4. Amend § 5400.0–5 by:

■a. Adding the definition for ‘‘Export’’

in alphabetical order;

■b. Revising the definition of ‘‘Fair

Market value;’’

■c. Adding the definitions for ‘‘Lump-

sum,’’ ‘‘Scale sale,’’ and ‘‘Sourcing area’’

in alphabetical order; and

■d. Revising the definitions of

‘‘Substitution’’ and ‘‘Third party

scaling.’’

The additions and revisions read as

follows:

§ 5400.0–5 Definitions.

* * * * *

Export means the transporting or

causing to be transported, either directly

or through another party, unprocessed

timber to a foreign country. Export

occurs on the date that a person enters

into an agreement to sell, trade, or

otherwise convey such timber to a

person for delivery to a foreign country.

If the date in the preceding sentence

cannot be established, export occurs

when unprocessed timber is placed in

an export facility for preparation,

including but not limited to, sorting or

bundling, and container loading, for

shipment outside the United States, or

when unprocessed timber is placed on

board an oceangoing vessel, rail car, or

other conveyance destined for a foreign

country, port, or facility.

Fair Market value means the price

forest products will return when offered

for competitive sale on the open market.

* * * * *

Lump-sum means a sale where the

total quantity of forest product that is

designated for removal is estimated and

established prior to the sale.

* * * * *

Scale sale means a sale where the

total quantity of forest product that is

designated for removal is determined

after cutting, but before its conversion or

end use.

* * * * *

Sourcing area means a geographic

area approved by the Secretary of the

Interior where prohibitions for direct

and indirect substitution shall not apply

with respect to the acquisition of

unprocessed timber originating from

Federal lands west of the 100th

meridian in the contiguous 48 States by

a person who, in the previous 24

months, has not exported unprocessed

timber originating from private lands

within the sourcing area; and during the

period in which such approval is in

effect, does not export unprocessed

timber originating from private lands

within the sourcing area.

Substitution means:

(1) The purchase of a greater volume

of Federal timber by an individual

purchaser than has been his historic

pattern within twenty-four (24) months

of the sale of export by the same

purchaser of a greater volume of his

private timber than has been his historic

pattern during the preceding twenty-

four (24) months; and

(2) The increase of both the purchase

of Federal timber and export of timber

from private lands tributary to the plant

for which Bureau of Land Management

timber covered by a specific contract is

delivered or expected to be delivered.

Third party scaling means the

measurement of logs by a scaling

organization or weight scale certified by

a State, other than a Government

agency, approved by the Bureau.

* * * * *

Subpart 5402—Other Than Advertised

Sales; General

■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:

§ 5402.0–6 Policy.

* * * * *

(d) All negotiated sales shall be

subject to the restrictions relating to the

export and substitution from the United

States of unprocessed timber.

(e) Special forest products, including

firewood, Christmas trees, boughs,

greenery, mushrooms, and other similar

vegetative resources, may be sold by

permit, without appraisal, after payment

to the Government of adequate

compensation for the material and may

include the expense of issuance of the

permit.

■6. Revised part 5410 to read as

follows:

PART 5410—ANNUAL TIMBER SALE

PLAN

Subpart 5410—Annual Timber Sale

Plan; General

Sec.

5410.0–6 Policy.

Subpart 5411 [Reserved]

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

2604.

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Subpart 5410—Annual Timber Sale

Plan; General

§ 5410.0–6 Policy.

Plans for the sale of timber from the

O. and C. and public lands (as defined

in § 5400.0–5 of this chapter) will be

developed annually. Suggestions from

prospective purchasers of such timber

may be received to assist in the

development of a sound annual timber

sale plan. Such plan may be advertised

in a newspaper of general circulation in

the area in which the timber is located

or an agency website. Such

advertisement shall indicate generally

the probable time when the various

tracts of timber included in the plan

will be offered for sale, set-asides if any,

and the probable location and

anticipated volumes of such tracts. The

authorized officer may subsequently

change, alter or amend the annual

timber sale plan.

Subpart 5411 [Reserved]

PART 5420—PREPARATION FOR

SALE

■8. The authority citation for part 5420

is revised to read as follows:

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

2604.

Subpart 5420—Preparation for Sale;

General

■9. Revise § 5420.0–6 to read as

follows:

§ 5420.0–6 Policy.

All timber or other vegetative

resources to be sold, except materials

that qualify under § 5402.0–6(e) of this

chapter, will be appraised to estimate

fair market value. Measurement shall be

by tree cruise, log scale, weight, or such

other form of measurement as may be

determined to be in the public interest.

Subpart 5422—Volume Measurements

■10. Revise § 5422.1 to read as follows:

§ 5422.1 Lump-sum sales.

As the general practice, the Bureau of

Land Management (BLM) will estimate

volume for a lump-sum sale using a tree

cruise basis.

■11. Revise § 5422.2 to read as follows:

§ 5422.2 Scale sales.

(a) Scaling will be performed by the

BLM or third-party scaling organization

approved by the BLM or any operator of

a State-certified weight scale.

(b) The BLM may also order third-

party scaling for administrative reasons.

Such reasons would include, but are not

limited to, the following: to improve

cruising standards, to check accuracy of

cruising practices, and for volumetric

analysis.

Subpart 5424—Preparation of Contract

■12. Amend § 5424.0–6 by revising

paragraph (d) to read as follows:

§ 5424.0–6 Policy.

* * * * *

(d) The contract or permit form and

any additional provisions shall be made

available for inspection by prospective

bidders during the advertising period.

When sales are negotiated, all additional

provisions shall be made part of the

contract or permit.

* * * * *

■13. Amend § 5424.1 by revising

paragraphs (a)(1) and (2) to read as

follows:

§ 5424.1 Reporting provisions for

substitution determination.

(a) * * *

(1) A purchaser who has exported

private timber within two years

preceding the purchase date of Federal

timber; and/or

(2) An affiliate of a timber purchaser

who exported private timber within two

years before the acquisition of Federal

timber from the purchaser.

* * * * *

PART 5430—ADVERTISEMENT

Subpart 5430—Advertisement; General

■14. The authority citation for part

54030, subpart 5430, is revised to read

as follows:

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

et seq.

■15. Revise § 5430.0–6 to read as

follows:

§ 5430.0–6 Policy.

Competitive timber sales shall be

advertised in a newspaper of general

circulation or agency website in the area

in which the timber or other vegetative

resources are located and a notice of the

sale shall be posted in a conspicuous

place in the office where bids are to be

submitted. Such advertisement shall be

published on the same day once a week

for two consecutive weeks, except that

sales amounting to less than 500 M

board feet, need be published once only.

When in the discretion of the authorized

officer longer advertising periods are

desired, such longer periods are

permitted.

PART 5440—CONDUCT OF SALES

■16. The authority citation for part

5440 is revised to read as follows:

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

et seq.

Subpart 5441—Advertised Sales

■17. Amend § 5441.1 by revising

paragraph (c) to read as follows:

§ 5441.1 Qualification of bidders.

* * * * *

(c) Timber sale contracts are ‘‘covered

transactions’’ under the suspension and

debarment rules for discretionary

assistance, loan, and benefit award

programs at 2 CFR part 180,

implemented as a regulation by the

Department of the Interior (the

Department) at 2 CFR part 1400. See 2

CFR 180.200, 180.210, and 1400.970.

(1) A bidder or purchaser that has

been suspended, debarred, or otherwise

determined to be ineligible for award is

prohibited from bidding on a timber sale

unless an award specific written

compelling reasons exception

determination pursuant to 2 CFR

180.135 and 1400.137 is issued by the

Department’s Director of the Office of

Acquisition and Property Management

to permit an excluded party to

participate in the covered transaction.

(2) A bidder or purchaser suspended,

debarred, or otherwise award ineligible

may continue to bid on timber purchase

contracts; however, absent issuance of a

written compelling reasons

determination under paragraph (c)(1) of

this section, no award shall be made

during the period of award ineligibility.

(3) As required by 2 CFR 180.335,

prior to awarding a timber sale contract,

a bidder or purchaser (i.e., a

nonprocurement award participant)

shall certify to the Bureau of Land

Management (BLM) that neither the

entity nor any of its principals, as

defined at 2 CFR 180.995, is suspended,

debarred, or otherwise disqualified.

(4) If a participant enters into a

covered transaction with another person

at the next lower tier, the participant

must verify that the person with whom

they intend to enter into that transaction

is not suspended, debarred, or otherwise

award disqualified. See 2 CFR 180.300

and 1400.220.

■18. Revise § 5441.1–1 to read as

follows:

§ 5441.1–1 Bid deposits.

Sealed bids shall be accompanied by

a deposit of not less than 10 percent of

the appraised value of the timber or

other vegetative resources. For offerings

at oral auction, bidders shall make a

deposit of not less than 10 percent of the

appraised value prior to the opening of

the bidding. The authorized officer may,

in his or her discretion, require larger

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deposits. Deposits may be in the form of

cash, money orders, bank drafts,

cashiers or certified checks made

payable to BLM, or bid bonds of a

corporate surety shown on the approved

list of the United States Treasury

Department or any guaranteed

remittance approved by the authorized

officer. Upon conclusion of the bidding,

the bid deposits of all bidders, except

the high bidder, will be returned. The

deposit of the successful bidder will be

applied to the purchase price at the time

the contract is signed by the authorized

officer unless the deposit is a corporate

surety bid bond, in which case the

surety bond will be returned to the

purchaser. If BLM fails to award the

timber sale within 90 days of the

determination of the high bidder, a

portion of the bid deposit may be

refunded to the high bidder upon

written request to the authorized officer,

such that BLM retains a deposit of at

least 5% of the appraised value. The

remainder of the full bid deposit must

be resubmitted to BLM once the high

bidder is notified in writing that the

delay of award has been remedied and

the authorized officer is prepared to

issue the contract. If the high bidder is

unable to provide the full amount of the

bid deposit within 30 days of the

written notification, the sale will be re-

auctioned and the high bidder will be

barred from participating in any

subsequent auctions for the same tracts.

§ 5441.1–2 [Removed]

■19. Remove § 5441.1–2.

§ 5441.1–3 [Redesignated as § 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.

Subpart 5451—Bonds

■22. Amend § 5451.1 by revising

paragraph (a) introductory text to read

as follows:

§ 5451.1 Minimum performance bond

requirements; types.

(a) A minimum performance bond of

not less than 20 percent of the total

contract price shall be required for all

contracts of $10,000 or more, but the

amount of the bond shall not be in

excess of $500,000, except when the

purchaser opts to increase the minimum

bond as provided in § 5451.2. A

minimum performance bond of not less

than $500 or 20% of the contract price,

whichever is greater, will be required

for all installment contracts less than

$10,000. For cash sales less than

$10,000, bond requirements, if any, will

be at the discretion of the authorized

officer. The performance bond may be:

* * * * *

PART 5460—SALES ADMINISTRATION

■23. The authority citation for part

5460 is revised to read as follows:

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

2604.

Subpart 5461—Contract Payments

■24. Revise § 5461.3 to read as follows:

§ 5461.3 Total payment.

The total amount of the contract

purchase price must be paid prior to

expiration of the time for cutting and

removal under the contract. For a lump

sum sale, the purchaser shall not be

entitled to a refund even though the

amount of timber cut, removed, or

designated for cutting may be less than

the estimated total volume shown in the

contract. For a scale sale, if it is

determined after all designated timber

has been cut and measured that the total

payments made under the contract

exceed the total sale value of the timber

measured, such excess shall be refunded

to the purchaser within 60 days after

such determination is made.

Subpart 5463—Expiration of Time for

Cutting and Removal

■25. Revise § 5463.1 to read as follows:

§ 5463.1 Time for cutting and removal.

Time for cutting and removal of

timber or other vegetative resources sold

shall not exceed a period of forty-eight

months such time for cutting and

removal may be extended as provided in

43 CFR part 5470, subpart 5473.

PART 5470—CONTRACT

MODIFICATION—EXTENSION—

ASSIGNMENT

■26. The authority citation for part

5470 is revised to read as follows:

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

and 1740.

Subpart 5473—Extension of Time for

Cutting and Removal

■27. Amend § 5473.4 by:

■a. Removing the word ‘‘or’’ at the end

of paragraph (c)(4);

■b. Revising paragraph (c)(5);

■c. Adding paragraphs (c)(6) and (7);

and

■d. Revising paragraph (d).

The revisions and additions read as

follows:

§ 5473.4 Approval of request.

* * * * *

(c) * * *

(5) Closure of operations by Bureau of

Land Management (BLM) or State fire

protection agencies due to fire danger;

(6) Closure of operations due to

unusual weather, where BLM restricted

operations during periods with specific

environmental conditions, including but

not limited to restrictions for low soil

moisture, sustained dry periods, frozen

soils, or operations requiring snow

cover of specific depth; or

(7) County, State, or Federal

government issuance of an emergency

declaration or public order affecting a

purchaser’s ability to conduct

operations in a contract area, along a

designated haul route or proximate

processing facilities.

(d) Upon written request of the

purchaser, the State Director may

extend a contract to harvest green

timber to allow that purchaser to harvest

timber as salvage from other Federal or

non-Federal lands that have been

damaged by fire or other natural or man-

made disaster. The duration of the

extension shall not exceed the time

necessary to meet the salvage objectives,

or a maximum of 36 months. The State

Director may also waive reappraisal for

such extension.

PART 5500—NONSALE DISPOSALS;

GENERAL

Subpart 5500—Nonsale Disposals;

General

■28. The authority citation for part

5500, subpart 5500, is revised to read as

follows:

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

315, 423.

■29. Amend § 5500.0–5 by revising

paragraph (e) to read as follows:

§ 5500.0–5 Definitions.

* * * * *

(e) Public Lands means any land and

interest in land owned by the United

States within the several States and

administered by the Secretary of the

Interior through the Bureau of Land

Management, including O. and C.

Lands, without regard to how the

United States acquired ownership,

except:

(1) Lands located on the Outer

Continental Shelf; and

(2) Lands held for the benefit of

Indians, Aleuts, and Eskimos.

* * * * *

[FR Doc. 2020–27580 Filed 12–17–20; 8:45 am]

BILLING CODE 4310–84–P

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