Sale and Disposal of National Forest System Timber; Timber Sale Contracts; Indices To Determine Market-Related Contract Term Additions, 3409-3412 [06-548]
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Rules and Regulations
Federal Register
Vol. 71, No. 14
Monday, January 23, 2006
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
OFFICE OF PERSONNEL
MANAGEMENT
5 CFR Part 337
RIN 3206–AK35
Examining System
Office of Personnel
Management.
ACTION: Final rule.
AGENCY:
The Office of Personnel
Management (OPM) is issuing a final
regulation to designate two sections of
the Alternative Ranking and Selection
Procedures from the Chief Human
Capital Officers Act of 2002 (Title XIII
of the Homeland Security Act) as
veterans’ preference requirements for
purposes of a prohibited personnel
practice violation, thereby aligning
these sections with other statutory
provisions covering veterans’
preference.
SUMMARY:
This rule is effective February
22, 2006.
FOR FURTHER INFORMATION CONTACT:
Linda Watson by telephone at (202)
606–0830; by fax at (202) 606–2329; by
TTY at (202) 418–3134; or by e-mail at
linda.watson@opm.gov.
SUPPLEMENTARY INFORMATION: On April
7, 2005, OPM published a proposed rule
at Federal Register 70 FR 17160
designating sections 3319(b) and (c)(2)
of title 5, United States Code (U.S.C.) as
veterans’ preference requirements for
purposes of 5 U.S.C. 2302(b)(11). OPM’s
authority to designate in regulation a
provision of law as a ‘‘veterans’
preference requirement’’ is prescribed in
5 U.S.C. 2302(e)(1)(G). The purpose of
this designation is to align sections
3319(b) and (c)(2) with the other
statutory provisions covering veterans’
preference that are listed in section
2302(e)(1) as constituting veterans’
preference requirements.
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DATES:
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As background, this action completes
the implementation of specific
provisions of the Chief Human Capital
Officers Act of 2002 (Act), Public Law
107–296. The Act provides Federal
agencies with a number of human
resources flexibilities to enhance their
recruitment and hiring programs. These
flexibilities include the alternative
(category) rating and selection
procedures which were codified in 5
U.S.C. 3319. This section provides
agencies with the authority to develop
a category-based rating method to assess
and rate job applicants for positions
filled through the competitive
examining process.
Section 3319(b) protects the rights of
preference eligibles by placing them
ahead of non-preference eligibles within
each category in lieu of adding veterans’
preference points or applying the ‘‘rule
of three.’’
Section 3319(c)(2) prohibits
appointing officials from passing over a
preference eligible in the same quality
category from which a selection is made
to select a non-preference eligible unless
the requirements of section 3317(b) or
3318(b) are satisfied.
This rule designates sections 3319(b)
and (c)(2) as veterans’ preference
requirements, for which, failure to
comply constitutes a prohibited
personnel practice. For additional
background information, please refer to
the proposed rule.
During the comment period, OPM
received six comments to the proposed
regulation. Two agencies submitted
their comments supporting the
proposed regulation and the remaining
comments were outside the scope of this
rule.
We are therefore issuing the final
regulation with only stylistic changes.
E.O. 12866, Regulatory Review
This final rule has been reviewed by
the Office of Management and Budget in
accordance with E.O. 12866.
Regulatory Flexibility Act
I certify that these regulations would
not have a significant economic impact
on a substantial number of small entities
(including small businesses, small
organizational units, and small
governmental jurisdictions) because
they would only apply to Federal
agencies and employees.
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List of Subjects in 5 CFR Part 337
Government employees.
Linda M. Springer,
Director, U.S. Office of Personnel
Management.
Accordingly, OPM is amending 5 CFR
part 337 as follows:
I
PART 337—EXAMINING SYSTEM
1. Revise the authority citation for part
337 to read as follows:
I
Authority: 5 U.S.C. 1104(a)(2), 1302, 2302,
3301, 3302, 3304, 3319, 5364; Sec. 1413, Pub.
L. 108–136, 117 Stat. 1392, 1665; E.O. 10577,
3 CFR 1954–1958 Comp., p. 218; 33 FR
12423, Sept. 4, 1968; 45 FR 18365, Mar. 21,
1980.
Subpart C—Alternative Rating and
Selection Procedures
I
2. Revise § 337.304 to read as follows:
§ 337.304
Veterans’ preference.
In this subpart:
(a) Veterans’ preference must be
applied as prescribed in 5 U.S.C.
3319(b) and (c)(2);
(b) Veterans’ preference points as
prescribed in section 337.101 of this
part are not applied in category rating;
and
(c) Sections 3319(b) and 3319(c)(2) of
title 5, U.S.C. constitute veterans’
preference requirements for purposes of
5 U.S.C. 2302(b)(11)(A) and (B).
[FR Doc. 06–550 Filed 1–20–06; 8:45 am]
BILLING CODE 6325–39–P
DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 223
RIN 0596–AC29
Sale and Disposal of National Forest
System Timber; Timber Sale
Contracts; Indices To Determine
Market-Related Contract Term
Additions
Forest Service, USDA.
Final rule.
AGENCY:
ACTION:
SUMMARY: In this final rule, the Forest
Service is selecting Producer Price
Indices (PPI) for use by the Chief of the
Forest Service to determine whether
there has been a drastic reduction in
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wood prices warranting market-related
contract term additions. The indices
selected in this final rule replace certain
PPI indices that were discontinued by
the Bureau of Labor Statistics (BLS) after
December 2003. An interim final rule
and request for comments was
published in the Federal Register on
June 29, 2005 (70 FR 37266). In this
final rule, the Forest Service makes
appropriate changes, reflecting public
comments and its own analysis of the
replacement indices. A detailed
summary of Forest Service responses to
public comments is available for review
as provided in the ADDRESSES section of
this notice.
DATES: This final rule is effective
January 23, 2006.
ADDRESSES: The Forest Service response
to public comments is available for
public review on the Forest Service
World Wide Web/Internet site at
https://www.fs.fed.us/forestmanagement/
infocenter/index.shtml. Alternatively,
these can be viewed in the office of the
Director of Forest Management, Third
Floor, Southwest Wing, Yates Building,
201 14th Street, SW., Washington, DC.
Visitors are encouraged to call ahead to
(202) 205–1496 to facilitate entry into
the building.
FOR FURTHER INFORMATION CONTACT:
Lathrop Smith, Forest Management
Staff, at (202) 205–0858, or Richard
Fitzgerald, Forest Management Staff, at
(202) 205–1753.
SUPPLEMENTARY INFORMATION:
Background
In order to protect timber purchasers
and the public from severe downturns
in the wood products industry, the
Forest Service has granted marketrelated contract term additions for
timber sale contracts when a drastic
reduction in wood prices has occurred.
Applying regulations promulgated
under the Federal Timber Contract
Payment Modification Act (16 U.S.C.
618), the Chief of the Forest Service has
determined the existence of a drastic
reduction in prices by using BLS PPI
indices for certain wood products.
However, as of December 2003, BLS
discontinued three of the four PPI
indices contained in the previous
iteration of this regulation: Hardwood
Lumber (SIC 24211), Eastern Softwood
Lumber (SIC 24213), and Western
Softwood Lumber (SIC 24214). BLS also
re-designated Wood Chips (SIC 21215)
as (NAICS 3211135). Accordingly, in the
interim final rule and request for
comments, the Forest Service selected
two replacement indices—Softwood
Lumber (0811) and Hardwood Lumber
(0812)—and adopted the re-designation
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of the Wood Chips index. The Forest
Service made no other changes to 36
CFR 223.52.
Before selecting the foregoing
replacement indices in the interim final
rule, the Forest Service evaluated
several possible replacements. For
example, the Forest Service examined
the Random Lengths indices and
Western Wood Products Association
indices. Additionally, the Forest Service
examined certain regional indices. The
Forest Service found that indices other
than the replacement indices were
inadequate for determining the
existence of a drastic reduction in wood
prices. For example, regional indices
were unsuitable because of variance in
their timing of publication, collection of
information, and processing of data.
Accordingly, the Forest Service selected
the BLS Softwood Lumber (0811) and
Hardwood Lumber (0812) indices
because they represent the bestavailable replacement indices, which
most closely replicate the historical
results of the discontinued indices.
The three indices contained in this
final rule are not seasonally adjusted.
Each PPI is adjusted to a constant dollar
base by dividing it by the PPI for All
Commodities (00000000) to eliminate
changes due to inflation and deflation.
As noted in the interim rule, the
Forest Service adopted the replacement
indices retroactively to January 2004.
For purposes of this final rule, the
indices shall have the same retroactive
application.
The Forest Service received a total of
twenty-six replies to the interim final
rule. Nineteen were unresponsive
because they did not address MRCTA
procedures. Four were statements not
requiring a response. Three were
responsive to the interim rule and
proposed changes. As noted in the
Introduction, a detailed summary of
Forest Service responses to public
comments is available for review, as
provided in the ADDRESSES section of
this notice.
In response to the relevant comments,
the Forest Service has made changes to
the interim final rule, which are
contained in this final rule. Based on
public comments and its own analysis,
the Forest Service changed the
percentage decrease applied to the
replacement indices, contained at 36
CFR 223.52(b)(ii)(2), from 15% to
11.5%. The percentage change in wood
prices is used to balance the public
interest in having a reasonable term on
a timber sale contract and minimizing
the risk of defaults on timber sale
contracts. Setting the percent change in
price too low could result in
unnecessary contract term additions.
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Setting the percent change in price to
high could result in contract defaults.
The 15% decrease in the discontinued
indices provided this balance for the
last two decades. The new replacement
indices are broader than the
discontinued indices and less sensitive
to changes in market conditions.
Internal agency analysis compared the
replacement indices to the discontinued
indices for the years 1981 through 2003.
The replacement indices only triggered
a qualifying quarter about one third as
often as the discontinued indices when
a 15% decrease in wood prices was
used. Changing the decrease in wood
prices to 11.5% better tracks the
historical results generated under the
discontinued indices for the purpose of
determining qualifying quarters and
maintaining the balance between
extending the term of a timber sale
contract and the number of defaults on
timber sale contracts. Because the Wood
Chips index was merely re-designated,
the Forest Service has retained the 15%
value applied to that index.
Additionally, in response to public
comments, the Forest Service herein
clarifies ambiguity as to the timing of
qualifying quarters. A qualifying quarter
must be a quarter that follows the date
of the contract award. This change is
consistent with language in timber sale
contracts and with the Forest Service’s
previous application of this rule.
Regulatory Certifications
Regulatory Impact
This final rule has been reviewed
under USDA procedures and Executive
Order 12866 on Regulatory Planning
and Review. It has been determined that
this rule is not a significant regulatory
action and is not subject to Office of
Management and Budget (‘‘OMB’’)
review. This rule will not have an
annual effect of $100 million or more on
the economy and will not adversely
affect the economy, a sector of the
economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local or tribal
governments or communities. This rule
will not interfere with an action taken
or planned by another agency nor raise
new legal or policy issues. In short, little
or no effect on the national economy
will result from this regulatory action,
which consists of necessary, technical
changes to the regulation governing
market-related contract term additions.
Using the replacement indices and the
modified formula contained in this final
rule, the Forest Service will be able to
determine whether a drastic decline in
wood products prices has occurred.
Finally, this action will not alter the
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Federal Register / Vol. 71, No. 14 / Monday, January 23, 2006 / Rules and Regulations
budgetary impact of entitlements,
grants, user fees, or loan programs or the
rights and obligations of recipients of
such programs. Accordingly, this final
rule is not subject to OMB review under
Executive Order 12866.
Moreover, this final rule has been
considered in light of the Regulatory
Flexibility Act (5 U.S.C. 610 et seq.),
and it is hereby certified that this action
will not have a significant economic
impact on a substantial number of small
entities as defined by that act. As
revised in this rule, the formula better
corresponds to the historical
performance of the discontinued indices
and allows the Forest Service to grant
market-related contract term additions
to small and large purchasers when
market conditions warrant. Refining the
formula for determining when a drastic
reduction in wood product prices has
occurred will have the intended effect of
allowing purchasers additional time to
complete contracts when severe adverse
conditions have occurred in the wood
products market.
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Unfunded Mandates Reform
Pursuant to Title II of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
1531–1538), which the President signed
into law on March 22, 1995, the Forest
Service has assessed the effects of this
final rule on State, local, and tribal
governments and the private sector.
This rule does not compel the
expenditure of $100 million or more by
any State, local, or tribal government or
anyone in the private sector. Therefore,
a statement under section 202 of the act
is not required.
Environmental Impact
This final rule concerns the extension
of timber sale contracts when warranted
by a drastic reduction in wood product
prices, and, as such, has no direct effect
upon the amount, location, or manner of
timber offered for purchase. Section
31.1b of Forest Service Handbook
1909.15 (57 FR 43180; September 18,
1992) excludes from documentation in
an environmental assessment or impact
statement ‘‘rules, regulations, or policies
to establish Service-wide administrative
procedures, program processes, or
instructions.’’ The Forest Service’s
assessment is that this rule falls within
this category of actions and that no
extraordinary circumstances exist which
would require preparation of an
environmental assessment or
environmental impact statement.
Controlling Paperwork Burdens on the
Public
This final rule does not contain any
recordkeeping or reporting requirements
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12:59 Jan 20, 2006
Jkt 208001
or other information collection
requirements as defined in 5 CFR part
1320 and, therefore, imposes no
paperwork burden on the public.
Accordingly, the review provisions of
the Paperwork Reduction Act of 1995
(44 U.S.C. 3501, et seq.) and
implementing regulations at 5 CFR part
1320 do not apply.
Energy Effects
This final rule has been reviewed
under Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use. It has been
determined that this rule does not
constitute a significant energy action as
defined in the Executive order.
Federalism
The agency has considered this final
rule under the requirements of
Executive Order 13132, Federalism. The
agency has made an assessment that the
rule conforms with the federalism
principles set out in this Executive
Order; would not impose any
compliance costs on the States; and
would 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.
Consultation and Coordination With
Indian Tribal Governments
This final rule does not have tribal
implications as defined in Executive
Order 13175, Consultation and
Coordination with Indian Tribal
Governments, and, therefore, advance
consultation with tribes is not required.
No Takings Implications
This final rule has been analyzed in
accordance with the principles and
criteria contained in Executive Order
12630, and it has been determined that
the rule does not pose the risk of a
taking of Constitutionally-protected
private property.
Civil Justice Reform
This final rule has been reviewed
under Executive Order 12988, Civil
Justice Reform. The agency has not
identified any State or local laws or
regulations that are in conflict with this
regulation or that would impede full
implementation of this rule. In any
event, after adoption of this final rule:
(1) All State and local laws or
regulations that conflict with this rule or
that would impede full implementation
would be preempted; (2) no retroactive
effect would be given to this final rule,
except as described herein; and (3) the
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3411
final rule would not require the use of
administrative proceedings before
parties could file suit in court
challenging its provisions.
List of Subjects in 36 CFR Part 223
Administrative practice and
procedure, Exports, Forests and forest
products, Government contracts,
National forests, Reporting and
recordkeeping requirements.
Therefore, for the reasons set forth in
the preamble, part 223 of Title 36 of the
Code of Federal Regulations is amended
as follows:
I
PART 223—SALE AND DISPOSAL OF
NATIONAL FOREST SYSTEM TIMBER
1. The Authority citation for part 223
continues to read as follows:
I
Authority: 90 Stat. 2958, 16 U.S.C. 472a; 98
Stat. 2213; 16 U.S.C. 618, 104 Stat. 714–726,
16 U.S.C. 620–620j, unless otherwise noted.
2. Revise § 223.52 (b)(2) to read as
follows:
I
§ 223.52(b)(2)
additions.
*
Market-related contract term
*
*
*
*
(b) * * *
(2) For PPI index codes 0811 and
0812, the Chief of the Forest Service
shall determine that a drastic reduction
in wood prices has occurred when, for
any 2 or more consecutive qualifying
quarters, the applicable adjusted price
index is less than 88.5 percent of the
average of such index for the 4 highest
of the 8 calendar quarters immediately
prior to the qualifying quarter. A
qualifying quarter is a quarter, following
the contract award date, where the
applicable adjusted index is more than
11.5 percent below the average of such
index for the 4 highest of the previous
8 calendar quarters. For PPI index code
3211135, the Chief of the Forest Service
shall determine that a drastic reduction
in wood prices has occurred when, for
any 2 or more consecutive qualifying
quarters, the adjusted price index is less
than 85 percent of the average of such
index for the 4 highest of the 8 calendar
quarters immediately prior to the
qualifying quarter. A qualifying quarter
is a quarter, following the contract
award date, where the adjusted index is
more than 15 percent below the average
of such index for the 4 highest of the
previous eight calendar quarters.
Qualifying quarter determinations will
be made using the Producer Price
Indices for the months of March, June,
September, and December.
*
*
*
*
*
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Federal Register / Vol. 71, No. 14 / Monday, January 23, 2006 / Rules and Regulations
Dated: January 13, 2006.
David P. Tenny,
Deputy Under Secretary, Natural Resources
and Environment.
[FR Doc. 06–548 Filed 1–20–06; 8:45 am]
BILLING CODE 3410–11–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[R04–OAR–2005–TN–0006–200519(c); FRL–
8023–5]
Approval and Promulgation of
Implementation Plans; Tennessee;
Nashville Area Second 10-Year
Maintenance Plan for the 1-Hour Ozone
National Ambient Air Quality Standard;
Correction
Environmental Protection
Agency (EPA).
ACTION: Final rule; correction.
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AGENCY:
16:44 Jan 20, 2006
Jkt 205001
Dated: January 11, 2006.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 06–582 Filed 1–20–06; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF DEFENSE
48 CFR Parts 213 and 253
[DFARS Case 2003–D075]
SUMMARY: On November 1, 2005, at 70
FR 65838, EPA published a document
concerning the Nashville, Tennessee
area’s second 10-year maintenance plan
for the 1-hour ozone national ambient
air quality standard. The new 2016
motor vehicle emissions budgets
(MVEBs) were incorrectly stated in one
location in the publication. This
document corrects this incorrect
reference.
DATES: Effective Date: This correction is
effective January 23, 2006.
FOR FURTHER INFORMATION CONTACT:
Lynorae Benjamin of the Air Quality
Modeling and Transportation Section or
Sean Lakeman of the Regulatory
Development Section, Air Planning
Branch, Air, Pesticides and Toxics
Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303–8960. Ms.
Benjamin can be reached by phone at
(404) 562–9040 or via electronic mail at
benjamin.lynorae@epa.gov. Mr.
Lakeman can be reached by phone at
(404) 562–9043 or via electronic mail at
lakeman.sean@epa.gov.
SUPPLEMENTARY INFORMATION: EPA is
making a correction to the document
published on November 1, 2005 (70 FR
65838), approving a revision to the
second 10-year maintenance plan for the
Nashville 1-Hour Ozone Maintenance
Area. This action included approval of
the new 2016 MVEBs (70 FR 65840), but
subsequently reference them incorrectly
in another portion of the document.
Specifically, at 70 FR 65841, the new
2016 MVEBs were erroneously stated as
the 2016 on-road emissions (i.e., 19.18
VerDate Aug<31>2005
tons per day (tpd) for volatile organic
compounds (VOC) and 36.01 tpd for
nitrogen oxides (NOX)) for this area. On
page 65841, under the heading ‘‘IV.
What Is an Adequacy Determination
and What Is EPA’s Adequacy
Determination for the Nashville Area’s
New MVEB for the Year 2016?,’’ in the
second column at the end of the last
sentence, EPA is correcting the
reference to the 2016 MVEBs to read as
follows: ‘‘ VOC of 21.93 tpd and for NOX
45.76 tpd for the Nashville area.’’
Defense Acquisition Regulations
System; Defense Federal Acquisition
Regulation Supplement; Simplified
Acquisition Procedures
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
SUMMARY: DoD has issued a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to update text addressing the
use of simplified acquisition
procedures. This rule is a result of a
transformation initiative undertaken by
DoD to dramatically change the purpose
and content of the DFARS.
DATES: Effective January 23, 2006.
FOR FURTHER INFORMATION CONTACT: Ms.
Robin Schulze, Defense Acquisition
Regulations System, OUSD (AT&L)
DPAP (DARS), IMD 3C132, 3062
Defense Pentagon, Washington, DC
20301–3062. Telephone (703) 602–0326;
facsimile (703) 602–0350. Please cite
DFARS Case 2003–D075.
SUPPLEMENTARY INFORMATION:
A. Background
DFARS Transformation is a major
DoD initiative to dramatically change
the purpose and content of the DFARS.
The objective is to improve the
efficiency and effectiveness of the
acquisition process, while allowing the
acquisition workforce the flexibility to
innovate. The transformed DFARS will
contain only requirements of law, DoDwide policies, delegations of FAR
authorities, deviations from FAR
requirements, and policies/procedures
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that have a significant effect beyond the
internal operating procedures of DoD or
a significant cost or administrative
impact on contractors or offerors.
Additional information on the DFARS
Transformation initiative is available at
https://www.acq.osd.mil/dpap/dars/
dfars/transformation/index.htm.
This final rule is a result of the
DFARS Transformation initiative. The
rule—
• Updates and consolidates text on
the use of imprest funds and third-party
drafts at DFARS 213.305;
• Deletes unnecessary crossreferences at DFARS 213.7001 and
213.7003–2; and
• Deletes guidance on the use of
unilateral contract modifications at
DFARS 213.302–3, and deletes
procedures for use of forms at DFARS
213.307, 253.213, and 253.213–70. This
text has been relocated to the new
DFARS companion resource,
Procedures, Guidance, and Information
(PGI), available at
https://www.acq.osd.mil/dpap/dars/pgi.
DoD published a proposed rule at 70
FR 19042 on April 12, 2005. DoD
received no comments on the proposed
rule. Therefore, DoD has adopted the
proposed rule as a final rule without
change. In addition, statutory references
have been updated at DFARS 213.305–
3(d)(iii)(A) and 213.306(a)(1)(B).
This rule was not subject to Office of
Management and Budget review under
Executive Order 12866, dated
September 30, 1993.
B. Regulatory Flexibility Act
DoD certifies that this final rule will
not have a significant economic impact
on a substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
because the rule updates and
streamlines DFARS text, but makes no
significant change to DoD contracting
policy.
C. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply, because the rule does not
impose any information collection
requirements that require the approval
of the Office of Management and Budget
under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 213 and
253
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 213 and 253
are amended as follows:
I
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]]>Agencies
[Federal Register Volume 71, Number 14 (Monday, January 23, 2006)]
[Rules and Regulations]
[Pages 3409-3412]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-548]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 223
RIN 0596-AC29
Sale and Disposal of National Forest System Timber; Timber Sale
Contracts; Indices To Determine Market-Related Contract Term Additions
AGENCY: Forest Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this final rule, the Forest Service is selecting Producer
Price Indices (PPI) for use by the Chief of the Forest Service to
determine whether there has been a drastic reduction in
[[Page 3410]]
wood prices warranting market-related contract term additions. The
indices selected in this final rule replace certain PPI indices that
were discontinued by the Bureau of Labor Statistics (BLS) after
December 2003. An interim final rule and request for comments was
published in the Federal Register on June 29, 2005 (70 FR 37266). In
this final rule, the Forest Service makes appropriate changes,
reflecting public comments and its own analysis of the replacement
indices. A detailed summary of Forest Service responses to public
comments is available for review as provided in the Addresses section
of this notice.
DATES: This final rule is effective January 23, 2006.
ADDRESSES: The Forest Service response to public comments is available
for public review on the Forest Service World Wide Web/Internet site at
https://www.fs.fed.us/forestmanagement/infocenter/index.shtml.
Alternatively, these can be viewed in the office of the Director of
Forest Management, Third Floor, Southwest Wing, Yates Building, 201
14th Street, SW., Washington, DC. Visitors are encouraged to call ahead
to (202) 205-1496 to facilitate entry into the building.
FOR FURTHER INFORMATION CONTACT: Lathrop Smith, Forest Management
Staff, at (202) 205-0858, or Richard Fitzgerald, Forest Management
Staff, at (202) 205-1753.
SUPPLEMENTARY INFORMATION:
Background
In order to protect timber purchasers and the public from severe
downturns in the wood products industry, the Forest Service has granted
market-related contract term additions for timber sale contracts when a
drastic reduction in wood prices has occurred. Applying regulations
promulgated under the Federal Timber Contract Payment Modification Act
(16 U.S.C. 618), the Chief of the Forest Service has determined the
existence of a drastic reduction in prices by using BLS PPI indices for
certain wood products. However, as of December 2003, BLS discontinued
three of the four PPI indices contained in the previous iteration of
this regulation: Hardwood Lumber (SIC 24211), Eastern Softwood Lumber
(SIC 24213), and Western Softwood Lumber (SIC 24214). BLS also re-
designated Wood Chips (SIC 21215) as (NAICS 3211135). Accordingly, in
the interim final rule and request for comments, the Forest Service
selected two replacement indices--Softwood Lumber (0811) and Hardwood
Lumber (0812)--and adopted the re-designation of the Wood Chips index.
The Forest Service made no other changes to 36 CFR 223.52.
Before selecting the foregoing replacement indices in the interim
final rule, the Forest Service evaluated several possible replacements.
For example, the Forest Service examined the Random Lengths indices and
Western Wood Products Association indices. Additionally, the Forest
Service examined certain regional indices. The Forest Service found
that indices other than the replacement indices were inadequate for
determining the existence of a drastic reduction in wood prices. For
example, regional indices were unsuitable because of variance in their
timing of publication, collection of information, and processing of
data. Accordingly, the Forest Service selected the BLS Softwood Lumber
(0811) and Hardwood Lumber (0812) indices because they represent the
best-available replacement indices, which most closely replicate the
historical results of the discontinued indices.
The three indices contained in this final rule are not seasonally
adjusted. Each PPI is adjusted to a constant dollar base by dividing it
by the PPI for All Commodities (00000000) to eliminate changes due to
inflation and deflation.
As noted in the interim rule, the Forest Service adopted the
replacement indices retroactively to January 2004. For purposes of this
final rule, the indices shall have the same retroactive application.
The Forest Service received a total of twenty-six replies to the
interim final rule. Nineteen were unresponsive because they did not
address MRCTA procedures. Four were statements not requiring a
response. Three were responsive to the interim rule and proposed
changes. As noted in the Introduction, a detailed summary of Forest
Service responses to public comments is available for review, as
provided in the ADDRESSES section of this notice.
In response to the relevant comments, the Forest Service has made
changes to the interim final rule, which are contained in this final
rule. Based on public comments and its own analysis, the Forest Service
changed the percentage decrease applied to the replacement indices,
contained at 36 CFR 223.52(b)(ii)(2), from 15% to 11.5%. The percentage
change in wood prices is used to balance the public interest in having
a reasonable term on a timber sale contract and minimizing the risk of
defaults on timber sale contracts. Setting the percent change in price
too low could result in unnecessary contract term additions. Setting
the percent change in price to high could result in contract defaults.
The 15% decrease in the discontinued indices provided this balance for
the last two decades. The new replacement indices are broader than the
discontinued indices and less sensitive to changes in market
conditions. Internal agency analysis compared the replacement indices
to the discontinued indices for the years 1981 through 2003. The
replacement indices only triggered a qualifying quarter about one third
as often as the discontinued indices when a 15% decrease in wood prices
was used. Changing the decrease in wood prices to 11.5% better tracks
the historical results generated under the discontinued indices for the
purpose of determining qualifying quarters and maintaining the balance
between extending the term of a timber sale contract and the number of
defaults on timber sale contracts. Because the Wood Chips index was
merely re-designated, the Forest Service has retained the 15% value
applied to that index. Additionally, in response to public comments,
the Forest Service herein clarifies ambiguity as to the timing of
qualifying quarters. A qualifying quarter must be a quarter that
follows the date of the contract award. This change is consistent with
language in timber sale contracts and with the Forest Service's
previous application of this rule.
Regulatory Certifications
Regulatory Impact
This final rule has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory Planning and Review. It has been
determined that this rule is not a significant regulatory action and is
not subject to Office of Management and Budget (``OMB'') review. This
rule will not have an annual effect of $100 million or more on the
economy and will not adversely affect the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities.
This rule will not interfere with an action taken or planned by another
agency nor raise new legal or policy issues. In short, little or no
effect on the national economy will result from this regulatory action,
which consists of necessary, technical changes to the regulation
governing market-related contract term additions. Using the replacement
indices and the modified formula contained in this final rule, the
Forest Service will be able to determine whether a drastic decline in
wood products prices has occurred. Finally, this action will not alter
the
[[Page 3411]]
budgetary impact of entitlements, grants, user fees, or loan programs
or the rights and obligations of recipients of such programs.
Accordingly, this final rule is not subject to OMB review under
Executive Order 12866.
Moreover, this final rule has been considered in light of the
Regulatory Flexibility Act (5 U.S.C. 610 et seq.), and it is hereby
certified that this action will not have a significant economic impact
on a substantial number of small entities as defined by that act. As
revised in this rule, the formula better corresponds to the historical
performance of the discontinued indices and allows the Forest Service
to grant market-related contract term additions to small and large
purchasers when market conditions warrant. Refining the formula for
determining when a drastic reduction in wood product prices has
occurred will have the intended effect of allowing purchasers
additional time to complete contracts when severe adverse conditions
have occurred in the wood products market.
Unfunded Mandates Reform
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), which the President signed into law on March 22,
1995, the Forest Service has assessed the effects of this final rule on
State, local, and tribal governments and the private sector. This rule
does not compel the expenditure of $100 million or more by any State,
local, or tribal government or anyone in the private sector. Therefore,
a statement under section 202 of the act is not required.
Environmental Impact
This final rule concerns the extension of timber sale contracts
when warranted by a drastic reduction in wood product prices, and, as
such, has no direct effect upon the amount, location, or manner of
timber offered for purchase. Section 31.1b of Forest Service Handbook
1909.15 (57 FR 43180; September 18, 1992) excludes from documentation
in an environmental assessment or impact statement ``rules,
regulations, or policies to establish Service-wide administrative
procedures, program processes, or instructions.'' The Forest Service's
assessment is that this rule falls within this category of actions and
that no extraordinary circumstances exist which would require
preparation of an environmental assessment or environmental impact
statement.
Controlling Paperwork Burdens on the Public
This final rule does not contain any recordkeeping or reporting
requirements or other information collection requirements as defined in
5 CFR part 1320 and, therefore, imposes no paperwork burden on the
public. Accordingly, the review provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501, et seq.) and implementing regulations at 5
CFR part 1320 do not apply.
Energy Effects
This final rule has been reviewed under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. It has been determined that this rule does not
constitute a significant energy action as defined in the Executive
order.
Federalism
The agency has considered this final rule under the requirements of
Executive Order 13132, Federalism. The agency has made an assessment
that the rule conforms with the federalism principles set out in this
Executive Order; would not impose any compliance costs on the States;
and would 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.
Consultation and Coordination With Indian Tribal Governments
This final rule does not have tribal implications as defined in
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, and, therefore, advance consultation with tribes is not
required.
No Takings Implications
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12630, and it has been
determined that the rule does not pose the risk of a taking of
Constitutionally-protected private property.
Civil Justice Reform
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. The agency has not identified any State or local
laws or regulations that are in conflict with this regulation or that
would impede full implementation of this rule. In any event, after
adoption of this final rule: (1) All State and local laws or
regulations that conflict with this rule or that would impede full
implementation would be preempted; (2) no retroactive effect would be
given to this final rule, except as described herein; and (3) the final
rule would not require the use of administrative proceedings before
parties could file suit in court challenging its provisions.
List of Subjects in 36 CFR Part 223
Administrative practice and procedure, Exports, Forests and forest
products, Government contracts, National forests, Reporting and
recordkeeping requirements.
0
Therefore, for the reasons set forth in the preamble, part 223 of Title
36 of the Code of Federal Regulations is amended as follows:
PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER
0
1. The Authority citation for part 223 continues to read as follows:
Authority: 90 Stat. 2958, 16 U.S.C. 472a; 98 Stat. 2213; 16
U.S.C. 618, 104 Stat. 714-726, 16 U.S.C. 620-620j, unless otherwise
noted.
0
2. Revise Sec. 223.52 (b)(2) to read as follows:
Sec. 223.52(b)(2) Market-related contract term additions.
* * * * *
(b) * * *
(2) For PPI index codes 0811 and 0812, the Chief of the Forest
Service shall determine that a drastic reduction in wood prices has
occurred when, for any 2 or more consecutive qualifying quarters, the
applicable adjusted price index is less than 88.5 percent of the
average of such index for the 4 highest of the 8 calendar quarters
immediately prior to the qualifying quarter. A qualifying quarter is a
quarter, following the contract award date, where the applicable
adjusted index is more than 11.5 percent below the average of such
index for the 4 highest of the previous 8 calendar quarters. For PPI
index code 3211135, the Chief of the Forest Service shall determine
that a drastic reduction in wood prices has occurred when, for any 2 or
more consecutive qualifying quarters, the adjusted price index is less
than 85 percent of the average of such index for the 4 highest of the 8
calendar quarters immediately prior to the qualifying quarter. A
qualifying quarter is a quarter, following the contract award date,
where the adjusted index is more than 15 percent below the average of
such index for the 4 highest of the previous eight calendar quarters.
Qualifying quarter determinations will be made using the Producer Price
Indices for the months of March, June, September, and December.
* * * * *
[[Page 3412]]
Dated: January 13, 2006.
David P. Tenny,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 06-548 Filed 1-20-06; 8:45 am]
BILLING CODE 3410-11-P
