36 Cfr 223.118

cprice-sewell on PROD1PC62 with CFR

§ 223.118

36 CFR Ch. II (7–1–07 Edition)

the notice not later than 15 days after
the first publication of such notice. If a
public advisory hearing is to be held,
notice of it shall be published in the
same newspaper or newspapers as the
original notice, stating the place where
it will be held and the time, which
shall not be earlier than 10 days after
the first publication of the said notice
of hearing, and shall appear once each
week, but not for more than four successive weeks in any event, until the
date set for the hearing. Any such
hearing shall be conducted by the Chief
or by any officer designated by him as
his representative, except that if the
amount of the proposed sale is not in
excess of that which the Regional Forester has been authorized to sell without prior approval of the Chief the
hearing may be held by the Regional
Forester concerned or by his representative and decision may be by the Regional Forester. At any such hearing,
opportunity shall be given to those
having a reasonable interest to make
oral statements or to file written
statements discussing the advantages
and disadvantages of the proposed sale;
and the officer holding the hearing
may, in his discretion, permit the filing of such statements within a reasonable period after the close of the hearing to become part of the record for
consideration before a decision is
made.
(c) Shall keep available for public inspection,
(1) During the life of any sustained
yield unit, the minutes or other record
of the hearing held on the establishment thereof, and the determination of
action taken following the hearing including any modification of the proposals as submitted at the hearing; and
(2) During the life of any cooperative
agreement for coordinated management the similar record of the hearings
and actions determined upon; and
(3) During the life of any sustained
yield unit the similar record of any
public hearing which may be held on a
sale made without competition or with
restricted competition and the action
determined upon. Such records of any
case may be kept in any office of the
Forest Service designated by the Chief
as being suitable and convenient of access for probably interested persons.

(d) Shall make provision, in any contract for the purchase of timber without competition or with restricted
competition, if that contract is of more
than 7 years’ duration and in his discretion in any case of shorter duration,
for the redetermination of rates for
stumpage and for required deposits to
be paid by the purchasers, such redetermination to be effective at intervals
or dates stated in the contract; but the
sum of such redetermined rates for
stumpage and sale area betterment
shall not be less than the base rates in
the published notice of the proposed
sale.
(e) May modify and revise existing
cooperative agreements entered into
under said act after taking appropriate
action.
§ 223.118 Appeal process for small
business timber sale set-aside program share recomputation decisions.
(a) Decisions subject to appeal. The
rules of this section govern appeal of
recomputation decisions related to
structural, special, or market changes
or the scheduled 5-year recomputations
of the small business share of National
Forest System timber sales. Certain
decisions related to recomputation of
shares, such as structural change and
carryover volume, may require two decisions, one to determine that a recomputation is needed and the other to
recompute the shares. Decisions made
both at the earlier stage as well as the
later stage are appealable.
(b) Manner of giving notice—(1)
Predecisional notice and comment. The
Responsible Official shall provide
qualifying timber sale purchasers, as
defined in paragraph (c)(1) of this section, 30 days for predecisional review
and comment on any draft decision to
reallocate shares, including the data
used in making the proposed recomputation decision.
(2) Notice of decision. Upon close of
the 30-day predecisional review period,
the Responsible Official shall consider
any comments received. Within 15 days
of the end of the comment period, the
Responsible Official shall make a decision on the small business shares and
shall give prompt written notice to all
parties on the national forest timber

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Forest Service, USDA

§ 223.118

sale bidders list for the affected area.
The notice of decision must identify
the name of the Appeal Deciding Officer, the address, the date by which an
appeal must be filed, and a source for
obtaining the appeal procedures information.
(c) Who may appeal or file written comments as an interested party. (1) Only
timber sale purchasers, or their representatives, who are affected by recomputations of the small business
share of timber sales as described in
paragraph (a) of this section and who
have submitted predecisional comments pursuant to paragraph (b)(1) of
this section, may appeal recomputation decisions under this section or
may file written comments as an interested party.
(2) Interested parties are defined as
the Small Business Administration and
those timber sale purchasers, or their
representatives, who are affected by recomputations of the small business
share of timber sales as described in
paragraph (a) of this section and who
have individually, or through an association to which they belong, submitted predecisional comments pursuant to paragraph (b)(1) of this section.
(i) A timber sale purchaser may submit comments on an appeal as an interested party if an association to
which the purchaser belongs filed
predecisional comment but later decides not to appeal or not to file comments as an interested party.
(ii) A timber sale purchaser, who is a
member of an association that appeals
a decision, may not file a separate appeal unless that purchaser filed separate predecisional comment under
paragraph (b)(1).
(3) Interested parties who submit
written comments on an appeal filed by
another party may not continue an appeal if the appellant withdraws the appeal.
(d) Level of appeal. Only one level of
review is available for appeal of decisions pertaining to recomputations
under the Small Business Timber Sale
Set-aside Program. The Appeal Deciding Officer is the official one level
above the level of the Responsible Official who made the recomputation of
shares decision. The Responsible Official is normally the Forest Supervisor;

thus, the Appeal Deciding Officer is
normally the Regional Forester. However, when the Regional Forester
makes recomputation decisions, the
Appeal Deciding Officer is the Chief or
such officer at the National headquarters level as the Chief may designate.
(e) Filing procedures. In order to file
an appeal under this section, an appellant must file a notice of appeal, as
specified in the notice of decision, with
the Appeal Deciding Officer within 20
days of the date on the notice of the
decision. This date must be specified in
the notice of decision given pursuant
to paragraph (b)(2) of this section.
Written comments filed by an interested party in response to an appeal
must be filed within 15 days after the
close of the appeal filing period.
(f) Content of notice of appeal. (1) It is
the responsibility of the appellant to
provide sufficient narrative evidence
and argument to show why a recomputation decision by the Responsible Official should be reversed or changed.
(2) An appellant must include the following information in a notice of appeal:
(i) The appellant’s name, mailing address, and daytime telephone number;
(ii) The title or type of recomputation decision involved, the date of the
decision, and the name of the Responsible Official;
(iii) A brief description and date of
the decision being appealed:
(iv) A statement of how the appellant
is adversely affected by the decision
being appealed;
(v) A statement of the facts in dispute regarding the issue(s) raised by
the appeal;
(vi) If relevant, any specific references to any law, regulation, or policy that the appellant believes to have
been violated and the basis for such an
allegation;
(vii) A statement as to whether and
how the appellant has tried to resolve
with the Responsible Official the
issue(s) being appealed, including evidence of submission of written comments at the predecisional stage as
provided by paragraph (a) of this section, the date of any discussion, and
the outcome of that meeting or contact; and

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§ 223.118

36 CFR Ch. II (7–1–07 Edition)

(viii) A statement of the relief the
appellant seeks.
(g) Time periods and timeliness. (1) All
time periods applicable to this section
will begin on the first day following a
decision or action related to the appeal.
(2) Time periods applicable to this
section are computed using calendar
days. Saturdays, Sundays, or Federal
holidays are included in computing the
time allowed for filing an appeal; however, when the filing period would expire on a Saturday, Sunday, or Federal
holiday, the filing time is automatically extended to the end of the next
Federal working day.
(3) It is the responsibility of those filing an appeal to file the notice of appeal by the end of the filing period. In
the event of questions, legible postmarks on a mailed appeal or the time
and date imprint on a facsimile appeal
will be considered evidence of timely
filing. Where postmarks or facsimile
imprints are illegible, the Appeal Deciding Officer shall rule on the timeliness of the notice of appeal.
(4) The time period for filing a notice
of appeal is not extendable.
(h) Dismissal without decision. The Appeal Deciding Officer shall dismiss an
appeal and close the record without a
decision in any of the following circumstances:
(1) The appellant is not on the timber
sale bidders list for the area affected by
the recomputation decision;
(2) The appellant’s notice of appeal is
not filed within the required time period;
(3) The appellant’s notice of appeal
does not contain responses required by
paragraphs (f)(2)(i) through (f)(2)(viii)
of this section; or
(4) The appellant did not submit written comments on the proposed decision
of the new recomputed shares as described in paragraph (c) of this section.
(i) Appeal record. The appeal record
consists of the written decision being
appealed, any predecisional comments
received, any written comments submitted by interested parties, any other
supporting data used to make the decision, the notice of appeal, and, if prepared, a responsive statement by the
Responsible Official which addresses
the issues raised in the notice of ap-

peal. The Responsible Official must forward the record to the Appeal Deciding
Officer within 7 days of the date the
notice of appeal is received. A copy of
the appeal record must be sent to the
appellant at the same time.
(j) Appeal decision—(1) Responsive
statement for appeal decision. The Appeal Deciding Officer may request the
Responsible Official to prepare a responsive statement. However, if the information in the files clearly demonstrates the rationale for the Responsible Official’s decision, then a responsive statement addressing the points of
the appeal is not necessary.
(2) Appeal issue clarification. For clarification of issues raised in the appeal,
the Appeal Deciding Officer may request additional information from either the Responsible Official, the appellant, or an interested party who has
submitted comments on the appeal. At
the discretion of the Appeal Deciding
Officer, an appellant or interested
party may be invited to discuss data
relevant to the appeal. Information
provided to clarify issues or facts in
the appeal must be based upon information previously documented in the
file or appeal. Any information provided as a result of the Appeal Deciding
Officer’s request for more information
must be made available to all parties,
that is, to the Responsible Official, the
appellant, and interested parties who
have submitted comments on the appeal. All parties will have 5 days after
the Appeal Deciding Officer receives
the additional information to review
and comment on the information, and
the appeal decision period will be extended 5 additional days.
(3) Issuance of final decision. The Appeal Deciding Officer shall review the
decision and appeal record and issue a
written appeal decision to the parties
within 30 days of the close of the appeal period except that this period
must be extended to 35 days when additional information is requested by the
Appeal Deciding Officer. The Appeal
Officer may affirm or reverse the Responsible Official’s decision, in whole
or in part. There is no extension of the
time period for rendering an appeal decision.
(k) Implementation of decisions during
pendency of appeal. Recomputation of

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Forest Service, USDA

§ 223.133

shares arising from a scheduled 5-year
recomputation are effective on April 1
following the end of the 5-year period
being considered. If an appeal that may
affect the shares for the next 5-year period is not resolved by the April 1 date,
the share decision announced by the
Responsible Official must be implemented. If an appeal decision results in
a change in the shares, the revised
total share of the Small Business Timber Sale Set-aside Program must be accomplished during the remaining portion of the 5-year period.
(l) Timber sale set-aside policy changes.
Timber purchasers shall receive an opportunity, in accordance with all applicable laws and regulations, to review
and comment on significant changes in
the Small Business Timber Sale Setaside Program or policy prior to adoption and implementation.
(m) Information collection requirements. The provisions of paragraph (f)
of this section specify the information
that appellants must provide when appealing decisions pertaining to recomputation of shares. As such, these
rules contain information requirements as defined in 5 CFR Part 1320.
These information requirements have
been approved by the Office of Management and Budget and assigned control
number 0596–0141.
[64 FR 411, Jan. 5, 1999]

Subpart C—Suspension and
Debarment of Timber Purchasers

cprice-sewell on PROD1PC62 with CFR

SOURCE: 52 FR 43329, Nov. 12, 1987, unless
otherwise noted.

§ 223.130 Scope.
(a) This subpart prescribes policies
and procedures governing the debarment and suspension of purchasers of
National Forest System timber. This
subpart further prescribes policies and
procedures governing those persons
who violate the Forest Resources Conservation and Shortage Relief Act of
1990 (16 U.S.C. 620, et seq.).
(b) It provides for the listing of
debarred and suspended purchasers.
(c) It sets forth the causes and procedures for debarment and suspension
and for determining the scope, duration, and treatment to be accorded to

purchasers listed as debarred or suspended.
[52 FR 43329, Nov. 12, 1987, as amended at 60
FR 46921, Sept. 8, 1995]

§ 223.131

Applicability.

These regulations apply to purchasers of National Forest System timber as well as to those persons who violate the Forest Resources Conservation
and Shortage Relief Act of 1990 (16
U.S.C. 620, et seq.). These regulations do
not apply to Forest Service procurement contracts which are governed by
regulations at 41 CFR 4–1.6.
[60 FR 46921, Sept. 8, 1995]

§ 223.132

Policy.

(a) The Forest Service shall solicit
and consider timber sale bids from and
award contracts only to responsible
business concerns and individuals. Debarment and suspension by the Forest
Service are discretionary actions that,
taken in accordance with these regulations, are appropriate means to effectuate this policy.
(b) Debarment and suspension shall
be imposed only for the causes and in
accordance with the procedures set
forth in this subpart. The serious nature of debarment and suspension requires that these actions be imposed
only in the public interest, for the Government’s protection, and not for the
purpose of punishment.
(c) Debarment and suspension actions
taken under this subpart shall be based
on the administrative record, including
any submissions and argument made
by the purchaser or named affiliate in
accordance with this subpart, and shall
be limited in scope and duration to
that necessary to protect the Government’s interest.
§ 223.133

Definitions.

As used in this subpart, the following
terms shall have the meanings set
forth below:
Adequate evidence means information
sufficient to support the reasonable belief that a particular act or omission
has occurred.
Affiliates are business concerns or
persons, whose relationship entails the
following:

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