Woody Biomass Utilization, 29208-29211 [05-10095]

Agencies

• Office of the Secretary
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 97 (Friday, May 20, 2005)]
[Rules and Regulations]
[Pages 29208-29211]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-10095]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

48 CFR Parts 1437 and 1452

RIN 1084-AA00


Woody Biomass Utilization

AGENCY: Office of the Secretary, Interior.

ACTION: Final rule.

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SUMMARY: This rule converts an interim final rule to a final rule, with 
minor adjustments in response to public comment. In addition, the 
numbering scheme was revised to conform to the existing regulatory 
structure. As a result of this rulemaking, Department of the Interior 
will allow service contractors to remove woody biomass generated as a 
result of land management service contracts whenever ecologically 
appropriate and in accordance with applicable law.

DATES: Effective Date: May 20, 2005.

FOR FURTHER INFORMATION CONTACT: Delia Emmerich, Office of Acquisition 
and Property Management, Department of the Interior at (202) 208-3348, 
or e-mail at Delia--Emmerich@os.doi.gov. Individuals who use 
telecommunications devices for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 1-800-877-8339 twenty-four hours a 
day, 7 days a week.

SUPPLEMENTARY INFORMATION: On August 27, 2004, the Department published 
an interim final rule with request for comments at 69 FR 52607; the 
interim rule established procedures to allow service contractors to 
remove woody biomass generated as a result of land management service 
contracts whenever ecologically appropriate and in accordance with 
applicable law. This publication revises that rule in response to 
public comments. This rule establishes consistent and efficient 
procedures to allow contractors the option to remove woody biomass by-
products from Department of the Interior land management activities. 
This option, where ecologically appropriate, will provide economic and 
social benefits by creating jobs and conserving natural resources. 
Removal or use of woody biomass will reduce smoke and emissions from 
prescribed and natural fires; preserve landfill capacities, reduce the 
threat of catastrophic wildfires to communities and public/private 
utilities; improve watershed and wildlife habitat protection; and 
improve forest, woodland, and rangeland health.
    This final rule, while substantially the same as the interim final 
rule published on August 27, 2004, contains minor changes to respond to 
comments and to improve clarity. It is also reformatted to move the 
required contract clause to Part 1452 of 48 CFR.

I. Response to Public Comments

    We received several comments from two sources. Our response to each 
comment follows, in order by section. The discussion of the comments 
shows the former section title and number, followed by the revised 
section number and (if different) title.

Section 1437.100 General (New Sec.  1437.7200)

    Comment: The woody biomass should stay where it is.
    Response: The fundamental method of addressing forest health and 
hazardous fuel reduction strategies under the National Fire Plan and 
Healthy Forests Initiative is to remove small diameter trees. 
Contractors are cutting the trees to meet resource objectives. The 
removal is incidental to the project. The projects would occur whether 
or not there was an option for removal. The Rule simply makes these 
materials available for removal by contractors, rather than disposal 
through burning or other on-site disposal methods.
    Comment: I oppose allowing the contractors to damage and destroy 
this area for their own enrichment.
    Response: Contractors have been secured to provide a service to the 
federal agency, which includes the cutting or destruction of vegetation 
to meet a prescribed management objective, such as thinning small trees 
to improve forest growth or clearing of roads and building sites. 
Projects under Rule are developed under the requirements of the 
National Environment Policy Act, which is designed to ``prevent or 
eliminate damage to the environment * * *'' If damage beyond that 
anticipated in the NEPA analysis were to occur, by design this would be 
accidental. By the nature of these projects, the removal of the low-
value biomass has very little if any commercial value. If the biomass 
had commercial value, the project would most likely be a timber/
vegetative sales contract offering unrelated to the

[[Page 29209]]

procurement regulations covered under this Rule.
    Comment: There does not need to be any immediate need to rush 
through this plundering. I think the rush is to try to make it escape 
from public view. The Administrative procedure act calls for public 
input. I ask for extension of the time for the public to comment 
instead for a 90-day period.
    Response: Urgent and immediate actions are called for under the 
National Fire Plan Hazardous Fuel Reduction Program. Thousands of 
projects are taking place every year. This Rule will make the by-
products from these treatments immediately available. Removal of the 
biomass, in most cases, is preferable to leaving the material in the 
woods. Removal will reduce the threat of escaped wildfires from burning 
the material, reduce air pollution, and stimulate jobs for the local 
economy. Only two comments were received during the public comment 
period, one of which was from a federal agency. The Rule does not 
appear to be controversial, complex, or require additional analysis 
such that a 90-day comment period is necessary. No additional comments 
were received after closure of the official public comment period.
    Comment: There is no ``threat''.
    Response: The Federal Register of August 17, 2001 (66 FR 43435) 
includes 11,376 communities within the vicinity of Federal lands that 
are at high risk to wildfire. This list was jointly developed by 
States, tribes, and Federal agencies. The 2004 wildfire season, as well 
as the 2000 and 2002 seasons, are well above the 10-year average for 
acres burned due to wildfires. The trend for larger, more damaging 
fires has been increasing, with little relief in sight. The Congress, 
the Administration, and the States have made a national and local 
priority of addressing wildfire threats.
    Comment: This rule will have an effect of $100 million and 
therefore has a significant economic effect.
    Response: Optimistic projections of woody biomass removal under the 
National Fire Plan, the largest and most active vegetation management 
program in the Federal government, could include the removal of 
approximately 7 million green tons per year. At the minimum rate of 
$0.10 per green ton, or even an optimistic $0.25 to $0.50 per green 
ton, this represents less than $5 million.
    Comment: NEPA plans must be prepared and the public must be allowed 
to comment.
    Response: As specific in the Interim Rule, ``Federal agencies 
should consider the environmental effects of woody biomass utilization 
in each project where woody biomass utilization is appropriate and make 
a determination of significance for the project.'' This would include, 
where appropriate, a public comment solicitation and a public record of 
decision. It is not necessary, nor in the best interest of the public, 
to delay implementation in order to prepare an environmental impact 
statement.

Section 1437.104 Definitions (New Sec.  1437.7203)

    Comment: The definition of ``ecologically appropriate'' states, 
``where the Deciding Officer and/or Contracting Officer determines it 
is not necessary to retain specific woody material * * *'' Only the 
Deciding Officer (Field Manager or other responsible line officer) will 
make this decision.
    Response: The Responsible Official for the NEPA document makes the 
decision to include or not include woody biomass removal. The 
procurement Contracting Officer decides whether to include the clause 
from Sec.  1452.237-71 in the solicitation or service contract, 
presumably in consultation with the Responsible Official. The timber/
vegetative sales contract, if required, may be executed by the timber/
vegetative sales Contracting Officer with the delegated authority to 
dispose of forest products, per Bureau policies. Clarification has been 
included in the final rule.

II. Procedural Matters

1. Regulatory Planning and Review (E.O. 12866)

    This document is not a significant rule and the Office of 
Management and Budget has not reviewed this rule under Executive Order 
12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal communities. The 
contractors and the general public are not required to perform services 
or process materials' woody products will be removed and compensated, 
if appropriate, at fair market value as agreed upon.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. This 
policy only applies to Department of the Interior Bureaus; other 
agencies and governments could positively benefit from the development 
of small-wood markets and any tax or economic rewards.
    (3) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients. The contractor will be provided a new option, if 
executed,which is exclusive of other rights and benefits.
    (4) This rule does not raise novel legal or policy issues. This 
policy uses existing authorities within existing policies.

2. Regulatory Flexibility Act

    The Department of the Interior certifies that this document 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.). 
The scope of the action is minor (less than $100 million in economic 
impact); the benefits of the rule are to the contractor and may be 
exercised at their discretion.

3. 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 woody by-products have limited economic value (small 
diameter, low trees and woody material), are unused or underutilized in 
current market conditions, and/or are by nature, incidental by-
products.
    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 quantities are small in size and 
amounts, are widely scattered across the nation, and are low-value 
products.
    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 
policy would increase U.S.-based economic opportunities, employment, 
innovation, and conservation of energy and resources.

4. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
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. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

[[Page 29210]]

5. Takings (E.O. 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. No rights, property or compensation 
has been, or will be taken. A takings implication assessment is not 
required.

6. Federalism (E.O. 13132)

    In accordance with Executive Order 13132, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism assessment. The rule grants optional rights and increased 
economic opportunities to individuals, States, local governments, and 
Tribes, in furtherance of section 2(h) of E.O. 13132. A federalism 
assessment is not required.

7. Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

8. Consultation With Indian Tribes (E.O. 13175)

    In accordance with Executive Order 13175, we have evaluated this 
rule and determined that it has no potential negative effects on 
federally recognized Indian tribes. We have fully considered tribal 
views in the final rule. We have consulted with the appropriate bureaus 
and offices of the Department about the potential effects of this rule 
on Indian tribes, including the Bureau of Indian Affairs.

9. Paperwork Reduction Act

    This regulation does not require an information collection from 10 
or more parties and a submission under the Paperwork Reduction Act is 
not required. An OMB form 83-I is not required.

10. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. Federal agencies should 
consider the environmental effects of woody biomass utilization in each 
project where woody biomass utilization is appropriate and make a 
determination of significance for that project.

List of Subjects

48 CFR Part 1437

    Government contracts, Forests and forest products, Wood, Fire 
prevention, Service contracting.

48 CFR Part 1452

    Government contracts, Forests and forest products, Wood, Fire 
prevention, Contract clause.

    Dated: March 22, 2005.
P. Lynn Scarlett,
Assistant Secretary--Policy, Management and Budget.

0
For the reasons given in the preamble, the Department of the Interior 
hereby amends 48 CFR chapter 14 as set forth below.

PART 1437--[AMENDED]

0
1. Part 1437 is revised to read as follows:

PART 1437--SERVICE CONTRACTING

Subpart 1437.72--Utilization of Woody Biomass

Sec.
1437.7200 General.
1437.7201 When can woody biomass be removed?
1437.7202 When is the biomass utilization clause required?
1437.7203 Definitions.

    Authority: 30 U.S.C. 601-604, 611, as amended; 16 U.S.C. 668dd; 
16 U.S.C. 1; 25 U.S.C. 3101 et seq; 43 U.S.C. 1701 et seq.

Subpart 1437.72--Utilization of Woody Biomass


Sec.  1437.7200  General.

    This subpart establishes consistent and efficient procedures to 
allow contractors the option to remove woody biomass by-products from 
Department of the Interior land management activities where 
ecologically appropriate. If the woody biomass has fair market value 
and payment is required, or as required by regulation, Bureau policy or 
the Mineral Materials Disposal Act of 1947 (30 U.S.C. 601 et seq) a 
separate timber/vegetative sales contract must be executed.


Sec.  1437.7201  When can woody biomass be removed?

    (a) The Department of the Interior allows and encourages 
contractors to remove and use woody biomass from project areas when:
    (1) The biomass is generated during land management service 
contract activity; and
    (2) Removal is ecologically appropriate.
    (b) A contractor removing biomass under this part shall:
    (1) Do so only within legal limits applicable to the contractor, 
including National Environmental Policy Act (NEPA) compliance; and
    (2) If required, comply with the terms, conditions and special 
provisions of the applicable timber/vegetative sales notice.


Sec.  1437.7202  When is the biomass utilization clause required?

    (a) The contracting officer must insert a clause reading 
substantially the same as Sec.  1452.237-71 in each solicitation and 
contract that is expected to generate woody biomass that meets the 
criteria in Sec.  1437.7201(a), unless biomass removal is required 
elsewhere in the contract.
    (b) In addition, the contract will specify any limitations on types 
of woody biomass that may not be removed and any areas from which woody 
biomass must not be removed.


Sec.  1437.7203  Definitions.

    Ecologically appropriate means those situations where the 
Responsible Official determines it is not necessary to retain specific 
woody material or reserve specific areas from woody biomass removal to 
meet ecological objectives. For example, it may be necessary to retain 
snags or small woody debris to meet wildlife habitat objectives, or to 
create specific prescribed burning conditions to stimulate native plant 
development; therefore it would not be appropriate to allow removal of 
the specified woody biomass.
    Responsible Official means the Secretary of the Interior or 
designee having the delegated authority to responsibility to:
    (1) Oversee the planning process and make decisions to carry out a 
specific planning action;
    (2) Render a National Environmental Policy Act decision; or
    (3) Sign the authorizing environmental document.
    Timber/vegetative sales contract and/or notice means the agency-
specific authorized contract instrument for the sale, barter, exchange, 
billing or other compensation for the payment, removal, and/or 
transportation of woody biomass material.
    Woody biomass means the trees and woody plants, including limbs, 
tops, needless, leaves, and other woody parts, grown in a forest, 
woodland, or rangeland environment, that are the by-products of 
management, restoration and/or hazardous fuel reduction treatment.
    Woody biomass utilization or use means the harvest, sale, offer, 
trade, and/or utilization of woody biomass to produce the full range of 
wood products, including timber, engineered lumber, paper and pulp, 
furniture and value-added commodities, and bio-energy and/or bio-based 
products such as plastics, ethanol and diesel.

[[Page 29211]]

PART 1452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
2. The authority for part 1452 is revised to read as follows:

    Authority: Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c); 5 U.S.C. 
301; 30 U.S.C. 601-604, 611, as amended; 16 U.S.C. 668dd; 16 U.S.C. 
1; 25 U.S.C. 3101, et seq.; 43 U.S.C. 1701, et seq.,


0
3. A New Sec.  1437-237-71 is added to read as follows:


Sec.  1452.237-71  Utilization of Woody Biomass.

    As prescribed in Sec.  1437.7202, insert the following clause:

Utilization of Woody Biomass

    1. The contractor may remove and utilize woody biomass, if:
    (a) Project work is progressing as scheduled; and
    (b) Removal is completed before contract expiration.
    2. To execute this option, the contractor must submit a written 
request to the Government.
    3. Following receipt of the written request, and if appropriate, 
the Government and the contractor will negotiate and execute a 
separate timber/vegetative sales contract. Payment under the timber/
vegetative sales contract must be at a price equal to or greater 
than the appraised value of the woody biomass. The contractor must 
make any appropriate payment specified in the related timber/
vegetative sales contract before removal may be authorized.
    4. If required by law, regulation or Bureau policy, the 
Government will prepare a timber/vegetative sales notice and/or 
prospectus, including volume estimates, appraised value and any 
appropriate special provisions.
    5. The contractor must treat any woody biomass not removed in 
accordance with the specifications in the service contract.
    6. The sales contract and service contract are severable; 
default or termination under either contract does not remove the 
contractor from payment or performance obligations under the other 
contract.
    7. Definitions:
    Timber/vegetative sales contract and/or notice means the agency-
specific authorized contract instrument for the sale, barter, 
exchange, billing or other compensation for the payment, removal, 
and/or transportation of woody biomass material.
    Woody biomass means the trees and woody plants, including limbs, 
tops, needles, leaves, and other woody parts, grown in a forest, 
woodland, or rangeland environment, that are the by-products of 
management, restoration and/or hazardous fuel reduction treatment.
[FR Doc. 05-10095 Filed 5-19-05; 8:45 am]
BILLING CODE 4310-RF-M