Current through Register Vol. 43, No. 02, November 27, 2024
(1)
Definitions.
(a) Approved Area. The area approved for the
recovery of submerged logs after being nominated pursuant to the requirements
of this rule.
(b) Cant. A log or
portion of a log which has been squared or partially squared and recovered in
such condition.
(c) Commissioner.
The Commissioner of the Department of Conservation and Natural
Resources.
(d) Contractor. The
individual or entity to which a contract was awarded for the recovery of
submerged logs in an Approved Area.
(e) Cultural Resources. As defined in Section
41-9-291(3) of
the
Code of Ala. 1975, which is hereby adopted and
incorporated by reference. This law can be accessed through the Secretary of
State's Website:
http://sos.alabama.gov/.
(f) Department. The Department of
Conservation and Natural Resources.
(g) Nominator. The individual or entity
nominating an area for the recovery of submerged logs.
(h) Recovery (Recovered). The removal of
submerged logs or cants.
(i)
Submerged log. For purposes of this regulation, a submerged log is a log or
cant that is submerged or buried in the sediments of state-owned water bottoms
under the jurisdiction of the Department. Logs or cants fully or partially
exposed from the sediments of state-owned water bottoms are not submerged logs
for purposes of this rule, and they may not be moved, recovered, or
sold.
(2)
Recovery from Approved Areas Only. Submerged logs may
only be recovered from areas that have been properly nominated and which have
been approved by the Department.
(3)
Contract
Required. No individual or entity may recover submerged logs
without a valid contract with the Department. All contracts for the exclusive
right to recover submerged logs in an Approved Area will be awarded through an
invitation to bid process described in these rules.
(4)
Nomination
Process.
(a) A nomination of an
area for the recovery of submerged logs must be submitted on a form provided by
the Department. The nomination form shall require the following information:
1. The name, mailing address, email address,
and telephone number of the person or entity nominating an area for the removal
of submerged logs.
2. The name of
the nominated waterbody; the county or counties covering the nominated area;
the township, range and sections which encompass the nominated area; and the
length in miles of the nominated area. The nominated area must be a minimum of
five (5) miles in length and not exceed a maximum of ten (10) miles in
length.
3. The latitude and
longitude, expressed in degrees, minutes and decimal seconds (xx° yy'
zz.zz") of the upstream and downstream ends of the nominated area.
4. A map clearly depicting the waterbody and
the starting and ending points of the nominated area.
5. Such supplemental information as the
Department may deem necessary for a thorough evaluation of the
nomination.
(b) A
nomination form shall be submitted to:
State Lands Division
Alabama Department of Conservation and Natural
Resources
64 North Union Street, Room 464
Montgomery, Alabama 36130
(c) An incomplete nomination form may be
returned to the Nominator with an explanation of its deficiencies. The
nomination form may be resubmitted after deficiencies are corrected.
(d) The Lands Division of the Department will
review the nomination. The Fisheries Section of the Wildlife and Freshwater
Fisheries Division will also provide assistance by determining if there are any
biologically sensitive sites in the nominated area.
(e) The Commissioner or his designee may
approve, deny, or approve with conditions, the nominated area for the recovery
of submerged logs. If the nomination is denied, the Nominator will be notified
in writing of the denial with reasons supporting the denial.
(f) If the nominated area is approved or
approved with conditions, the Nominator will be notified in writing of the
approval and that a bid notice will be published concerning the recovery of
submerged logs from the Approved Area.
(5)
Public Bid
Process.
(a) Upon approval of a
nominated area, the State Lands Division will prepare and publish a public bid
notice setting forth the terms for bidding on the exclusive right to recover
submerged logs within the Approved Area.
(b) The bid notice will include the
following:
1. A description of the Approved
Area including:
(i) The name of the waterbody
approved in the nomination process;
(ii) The county or counties encompassing the
Approved Area;
(iii) The township,
range and sections which encompass the Approved Area;
(iv) The length in miles of the Approved
Area; and
(v) The latitude and
longitude of the upstream and downstream end of the Approved Area.
2. The date, time, and location of
the bid opening.
3. Method for
receiving bids.
4. Length of the
contract.
5. Amount of the required
performance bond.
6. Applicable
insurance requirements.
7. Amount
of the annual administrative fee.
8. Amount of the minimum guaranteed advance
royalty.
9. Production royalty
variable. The production royalty bid variable shall be dollars per board foot
using the Doyle Log Rule. The Doyle Log Rule and Table are hereby adopted and
incorporated by reference as published in the U.S. Department of Agriculture
Farmer's Bulletin No. 1210,
"Measuring and Marketing Farm
Timber", (1930), as revised, pages 18 and 19. The Doyle Log Rule and
Table are included as Appendix A to this rule.
10 The minimum production royalty bid price.
11. Other information as deemed
appropriate or necessary.
(c) A bid deposit of $500.00 in the form of a
cashier's or certified check must accompany each bid. The $500.00 bid deposit
shall be forfeited if the successful bidder does not enter into a contract with
the Department for the recovery of submerged logs within 30 days of the award,
unless the Department agrees to additional time to enter into a
contract.
(d) A bid notice shall be
advertised for at least two successive weeks prior to the date of the bid
opening in a newspaper of general circulation in each county comprising all or
part of the Approved Area. If no newspaper of general circulation exists in a
county which encompasses all or part of an Approved Area, then the notice shall
be published in a newspaper of general circulation in an adjoining county. Bid
notices shall also be posted in the courthouse of each county encompassing the
Approved Area and shall be published on the Department's website:
www.outdooralabama.com/. The
successful bidder shall reimburse the Department for the cost of publishing the
bid notice in newspapers.
(e) Bids
must be submitted in the manner specified in the bid notice.
(f) All bids will be publicly opened and read
on the date and at the time and location specified in the bid notice.
(g) No bids will be accepted for any reason
after the advertised deadline.
(h)
The Department may reject any bid and may negotiate a higher sale price with
the highest bidder. No sale may be made at a price less than the highest bid
received.
(6)
Contract, Notice to Proceed, and Operational
Requirements.
(a) The successful
bidder is required to enter into a contract with the Department for a term not
to exceed 24 months for the recovery of submerged logs in the Approved
Area.
(b) The Contractor shall be
responsible for obtaining all required licenses, permits, or approvals from
local, state, and/or federal governmental agencies or offices that relate to
the Contractor's submerged log recovery operations. Such offices or agencies
include, but may not be limited to, the U.S. Army Corps of Engineers and the
Alabama Department of Environmental Management. The Contractor shall submit
proof of such licenses, permits, or approvals prior to the issuance of the
Notice to Proceed.
(c) If the
Contractor fails to provide proof of permits and approvals within the time
prescribed, the contract may be terminated and the bid deposit
forfeited.
(d) The Contractor shall
not begin the recovery of submerged logs until a Notice to Proceed has been
received by Contractor. Upon the receipt of the Notice to Proceed, the
Contractor shall provide at least 48 hours' notice prior to commencing any
submerged log recovery operations and shall thereafter provide regular activity
notifications as may be required by the Department.
(e) Prior to the issuance of the Notice to
Proceed, the Contractor shall deliver to the Department a bond, satisfactory to
the Department, for the faithful performance of all the terms and conditions of
the contract. The bond shall be in the amount of $5,000.00 and shall be
executed by a bonding company legally authorized to transact business under the
laws of the State of Alabama, or shall be in the form of a certified check made
payable to the State Lands Division or an irrevocable letter of credit with a
bank approved by the State Lands Division. This performance bond must be for
the entire term of the contract to be valid. The performance bond may be
returned after all obligations under the contract are completed to the
Department's satisfaction and upon written notice that the Contractor wishes to
cease operations and close out the contract.
(f) Contractor shall maintain liability
insurance as prescribed in the Contract.
(g) The Contractor shall avoid any
disturbance to live plants, fisheries, mollusks, and fish and mollusk habitat
while recovering submerged logs.
(h) The Contractor shall not conduct recovery
operations within 30 feet of any man-made infrastructure.
(i) All Contractor operations shall be
conducted so as not to impede or constitute a hazard to navigation or to
recreational use of the waterbody.
(j)
The Contractor shall comply with the Alabama Underwater Cultural
Resources Act (§
41-9-290 through 299.2,
Code of Ala. 1975). In the course of the Contractor's
operations, if there is any disturbance or discovery of a Cultural Resource,
the Contractor shall leave the object in place, stop all operations in the
area, minimize the disturbance, and contact the State Lands Division and the
Alabama Historical Commission immediately. The Contractor shall not conduct
further operations in the area of the discovery of the Cultural Resource until
authorized to do so by the State Lands Division, after consulting with the
Historical Commission.
(k) The
Contractor is and shall be responsible for any obligation with regard to any
applicable Department of Revenue severance tax for wood products. This tax
shall be considered a cost of doing business and shall not be deducted from the
total production royalty calculation.
(7)
Fees and
Royalties.
(a) The Contractor is
subject to reasonable administrative fees as specified in the invitation to bid
and contract for each year of the term of the contract to mitigate the
administrative costs associated with the oversight of Contractor's compliance
with regulations and contract terms.
(b) The bid deposit of the successful bidder
will become the annual administrative fee for the first year of the
contract.
(c) The annual
administrative fee for the second year of the term of the contract is due upon
the one-year anniversary of the execution date of the contract.
(d) The minimum guaranteed advance royalty,
as specified in the bid notice and contract, is due prior to the issuance of
the Notice to Proceed. This advance royalty will be depleted against production
royalties due as the recovery of submerged logs proceed.
(e) The Contractor shall pay the Department
production royalties on any merchantable logs or cants recovered from any
Approved Area, whether or not sold or used.
(f) Monthly production royalty payments shall
be delivered to the Department by the tenth (10th) calendar day of each month
following recovery of submerged logs. However, production royalty payments are
not required to be paid until the aggregate amount of the production royalties
due the Department exceed the total amount of the minimum guaranteed advance
royalty paid to the Department.
(8)
Tagging and Photographing
Logs and Cants. A unique numerical tag made of plastic or metal
shall be affixed to each recovered submerged log until the log or cant is
unloaded at the facility or location where the log or cant will be processed.
The tag will be affixed to the small end of the log so the tag is visible in a
photograph that includes the small end of the log as well as the entire length
of the log. The tag must be large enough to be visible in such a photograph. A
digital photograph of each log will be transmitted to the Department prior to
the submittal of monthly royalty payments. In each photo, a 12-inch ruler shall
be affixed to the small end of the log for scale.
(9)
Reports. The
Contractor shall deliver a monthly report to the Department by the
10th calendar day of the month following recovery of
the logs or cants on a form provided by the Department. This report will
include the following for each log or cant recovered: log or cant tag numbers;
dates of recovery; species; digital photo of each log or cant; dimensions;
total board foot volume calculated by the Doyle Log Rule; and the royalty due
for the log or cant. In the event there are no log or cant recoveries during
the reporting period, the Contractor shall indicate such in the report. The
Contractor shall certify that the information provided in each report is true,
complete, and correct, and the Department is entitled to rely on the
representations made in each report.
(10)
Records and
Inspections.
(a) The Contractor
shall keep proper books of account of the quantity and dimensions of all
recovered logs and cants. The Department may independently confirm the
information set forth in the Contractor's reports. Such records shall be
available for review by the Department, or an agent of the Department, upon
giving at least 48 hours-notice to the Contractor. The Contractor shall retain
records for three years following termination or expiration of the
Contract.
(b) The Contractor
authorizes representatives of the Department to access areas and facilities
where recovered logs and cants are being recovered or stored at reasonable
times to inspect logs and cants. The Contractor shall secure permission, as may
be necessary, for an employee or agent of the Department to enter locations for
inspections of recovered logs and cants, books, and operations of the
Contractor.