16 U.S.C. § 472a — Timber sales on National Forest System

Page 923 TITLE 16—CONSERVATION § 472a Editorial Notes REFERENCES IN TEXT Section 471 of this title, referred to in text, was in the original a reference to section 24 of act Mar. 3, 1891, ch. 561, 26 Stat. 1103, and was repealed by Pub. L. 94–579, title VII, § 704(a), Oct. 21, 1976, 90 Stat. 2792. CODIFICATION Words ‘‘subject to the provisions for national forests established under subdivision (b) of section 471 of this title,’’ which had been inserted by the original codifiers of the 1926 ed. of the Code, have been omitted because of the repeal of section 471 of this title by Pub. L. 94–579. § 472a. Timber sales on National Forest System lands (a) Authorization; rules and regulations; ap- praised value as minimum sale price For the purpose of achieving the policies set forth in the Multiple-Use Sustained-Yield Act of 1960 (74 Stat. 215; 16 U.S.C. 528–531) and the For- est and Rangeland Renewable Resources Plan- ning Act of 1974 (88 Stat. 476) [16 U.S.C. 1600 et seq.], the Secretary of Agriculture, under such rules and regulations as he may prescribe, may sell, at not less than appraised value, trees, por- tions of trees, or forest products located on Na- tional Forest System lands. (b) Designation on map; prospectus All advertised timber sales shall be designated on maps, and a prospectus shall be available to the public and interested potential bidders. (c) Terms and conditions of contract The length and other terms of the contract shall be designed to promote orderly harvesting consistent with the principles set out in section 6 of the Forest and Rangeland Renewable Re- sources Planning Act of 1974, as amended [16 U.S.C. 1604]. Unless there is a finding by the Sec- retary of Agriculture that better utilization of the various forest resources (consistent with the provisions of the Multiple-Use Sustained-Yield Act of 1960 [16 U.S.C. 528–531]) will result, sales contracts shall be for a period not to exceed ten years: Provided, That such period may be ad- justed at the discretion of the Secretary to pro- vide additional time due to time delays caused by an act of an agent of the United States or by other circumstances beyond the control of the purchaser. The Secretary shall require the pur- chaser to file as soon as practicable after execu- tion of a contract for any advertised sale with a term of two years or more, a plan of operation, which shall be subject to concurrence by the Secretary. The Secretary shall not extend any contract period with an original term of two years or more unless he finds (A) that the pur- chaser has diligently performed in accordance with an approved plan of operation or (B) that the substantial overriding public interest justi- fies the extension. (d) Advertisement of sales; exceptions The Secretary of Agriculture shall advertise all sales unless he determines that extraor- dinary conditions exist, as defined by regula- tion, or that the appraised value of the sale is less than $10,000. If, upon proper offering, no sat- isfactory bid is received for a sale, or the bidder fails to complete the purchase, the sale may be offered and sold without further advertisement. (e) Bidding methods; purposes; oral auction pro- cedures; monitoring and enforcement for prevention of collusive practices (1) In the sale of trees, portions of trees, or for- est products from National Forest System lands (hereinafter referred to in this subsection as ‘‘national forest materials’’), the Secretary of Agriculture shall select the bidding method or methods which— (A) insure open and fair competition; (B) insure that the Federal Government re- ceive not less than the appraised value as re- quired by subsection (a) of this section; (C) consider the economic stability of com- munities whose economies are dependent on such national forest materials, or achieve such other objectives as the Secretary deems nec- essary; and (D) are consistent with the objectives of this Act and other Federal statutes. The Secretary shall select or alter the bidding method or methods as he determines necessary to achieve the objectives stated in clauses (A), (B), (C), and (D) of this paragraph. (2) In those instances when the Secretary se- lects oral auction as the bidding method for the sale of any national forest materials, he shall require that all prospective purchasers submit written sealed qualifying bids. Only prospective purchasers whose written sealed qualifying bids are equal to or in excess of the appraised value of such national forest materials may partici- pate in the oral bidding process. (3) The Secretary shall monitor bidding pat- terns involved in the sale of national forest ma- terials. If the Secretary has a reasonable belief that collusive bidding practices may be occur- ring, then— (A) he shall report any such instances of pos- sible collusive bidding or suspected collusive bidding practices to the Attorney General of the United States with any and all supporting data; (B) he may alter the bidding methods used within the affected area; and (C) he shall take such other action as he deems necessary to eliminate such practices within the affected area. (f) Research and demonstration projects The Secretary of Agriculture, under such rules and regulations as he may prescribe, is author- ized to dispose of, by sale or otherwise, trees, portions of trees, or other forest products re- lated to research and demonstration projects. (g) Designation and supervision of harvesting (1) In general Designation, including marking when nec- essary, designation by description, or designa- tion by prescription, and supervision of har- vesting of trees, portions of trees, or forest products shall be conducted by persons em- ployed by the Secretary of Agriculture. (2) Requirement Persons employed by the Secretary of Agri- culture under paragraph (1)— (A) shall have no personal interest in the purchase or harvest of the products; and Page 924 TITLE 16—CONSERVATION § 472a (B) shall not be directly or indirectly in the employment of the purchaser of the products. (3) Methods for designation Designation by prescription and designation by description shall be considered valid meth- ods for designation, and may be supervised by use of post-harvest cruise, sample weight scal- ing, or other methods determined by the Sec- retary of Agriculture to be appropriate. (h) Utilization standards, methods of measure- ment, and harvesting practices; monetary de- posits by purchasers of salvage harvests; na- ture, purposes and availability of designated fund; return of surplus to Treasury The Secretary of Agriculture shall develop utilization standards, methods of measurement, and harvesting practices for the removal of trees, portions of trees, or forest products to provide for the optimum practical use of the wood material. Such standards, methods, and practices shall reflect consideration of opportu- nities to promote more effective wood utiliza- tion, regional conditions, and species character- istics and shall be compatible with multiple use resource management objectives in the affected area. To accomplish the purpose of this sub- section in situations involving salvage of insect- infested, dead, damaged, or down timber, and to remove associated trees for stand improvement, the Secretary is authorized to require the pur- chasers of such timber to make monetary depos- its, as a part of the payment for the timber, to be deposited in a designated fund from which sums are to be used, to cover the cost to the United States for design, engineering, and super- vision of the construction of needed roads and the cost for Forest Service sale preparation and supervision of the harvesting of such timber. De- posits of money pursuant to this subsection are to be available until expended to cover the cost to the United States of accomplishing the pur- poses for which deposited: Provided, That such deposits shall not be considered as moneys re- ceived from the national forests within the meaning of sections 500 and 501 of this title: And provided further, That sums found to be in excess of the cost of accomplishing the purposes for which deposited on any national forest shall be transferred to miscellaneous receipts in the Treasury of the United States. (i) Purchaser credit for permanent road con- struction; right of election of small business concerns; estimated cost; date of completion; use of funds for construction; effective date (1) For sales of timber which include a provi- sion for purchaser credit for construction of per- manent roads with an estimated cost in excess of $20,000, the Secretary of Agriculture shall pro- mulgate regulations requiring that the notice of sale afford timber purchasers qualifying as ‘‘small business concerns’’ under the Small Business Act, as amended [15 U.S.C. 631 et seq.], and the regulations issued thereunder, an esti- mate of the cost and the right, when submitting a bid, to elect that the Secretary build the pro- posed road. (2) If the purchaser makes such an election, the price subsequently paid for the timber shall include all of the estimated cost of the road. In the notice of sale, the Secretary of Agriculture shall set a date when such road shall be com- pleted which shall be applicable to either con- struction by the purchaser or the Secretary, de- pending on the election. To accomplish re- quested work, the Secretary is authorized to use from any receipts from the sale of timber a sum equal to the estimate for timber purchaser cred- its, and such additional sums as may be appro- priated for the construction of roads, such funds to be available until expended, to construct a road that meets the standards specified in the notice of sale. (3) The provisions of this subsection shall be- come effective on October 1, 1976. (Pub. L. 94–588, § 14, Oct. 22, 1976, 90 Stat. 2958; Pub. L. 95–233, Feb. 20, 1978, 92 Stat. 32; Pub. L. 101–626, title I, § 105(a), Nov. 28, 1990, 104 Stat. 4427; Pub. L. 113–79, title VIII, § 8303, Feb. 7, 2014, 128 Stat. 924.) Editorial Notes REFERENCES IN TEXT The Multiple-Use Sustained-Yield Act of 1960, re- ferred to in subsecs. (a) and (c), is Pub. L. 86–517, June 12, 1960, 74 Stat. 215, which is classified generally to sec- tions 528 to 531 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 528 of this title and Tables. The Forest and Rangeland Renewable Resources Planning Act of 1974, referred to in subsec. (a), is Pub. L. 93–378, Aug. 17, 1974, 88 Stat. 476, which is classified generally to subchapter I (§ 1600 et seq.) of chapter 36 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1600 of this title and Tables. This Act, referred to in subsec. (e)(1)(D), is Pub. L. 94–588, Oct. 22, 1976, 90 Stat. 2949, known as the National Forest Management Act of 1976. For complete classi- fication of this Act to the Code, see Short Title of 1976 Amendment note set out under section 1600 of this title and Tables. The Small Business Act, referred to in subsec. (i)(1), is Pub. L. 85–536, § 2(1 et seq.), July 18, 1958, 72 Stat. 384, which is classified generally to chapter 14A (§ 631 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 631 of Title 15 and Tables. AMENDMENTS 2014—Subsec. (g). Pub. L. 113–79 added subsec. (g) and struck out former subsec. (g). Prior to amendment, text read as follows: ‘‘Designation, marking when necessary, and supervision of harvesting of trees, portions of trees, or forest products shall be conducted by persons em- ployed by the Secretary of Agriculture. Such persons shall have no personal interest in the purchase or har- vest of such products and shall not be directly or indi- rectly in the employment of the purchaser thereof.’’ 1990—Subsec. (i)(1). Pub. L. 101–626 struck out proviso that this subsec. not apply to sales of timber on Na- tional Forest System lands in the State of Alaska. 1978—Subsec. (e). Pub. L. 95–233 substituted provisions authorizing the Secretary of Agriculture to select bid- ding method or methods to achieve the purposes of par. (1) of this subsec., procedures for use of oral auction as the bidding method, and procedures for monitoring and enforcement to prevent collusive practices, for provi- sions authorizing the Secretary to take such action as deemed necessary to prevent collusive practices, and setting forth requirements for enforcement. Page 925 TITLE 16—CONSERVATION § 472a Statutory Notes and Related Subsidiaries APPLICATION OF AMENDMENTS BY PUB. L. 101–626 TO CERTAIN LONG-TERM TIMBER SALE CONTRACTS Amendment by Pub. L. 101–626 not applicable to cer- tain long-term timber sale contracts, see section 105(c) of Pub. L. 101–626, set out as a note under section 539d of this title. QUALIFYING TIMBER CONTRACT OPTIONS Pub. L. 110–234, title VIII, § 8401, May 22, 2008, 122 Stat. 1300, and Pub. L. 110–246, § 4(a), title VIII, § 8401, June 18, 2008, 122 Stat. 1664, 2061, provided that: ‘‘(a) DEFINITIONS.—In this section: ‘‘(1) AUTHORIZED PRODUCER PRICE INDEX.—The term ‘authorized Producer Price Index’ includes— ‘‘(A) the softwood commodity index (code number WPU 0811); ‘‘(B) the hardwood commodity index (code num- ber WPU 0812); ‘‘(C) the wood chip index (code number PCU 3211133211135); and ‘‘(D) any other subsequent comparable index, as established by the Bureau of Labor Statistics of the Department of Labor and utilized by the Secretary of Agriculture. ‘‘(2) QUALIFYING CONTRACT.—The term ‘qualifying contract’ means a contract for the sale of timber on National Forest System land— ‘‘(A) that was awarded during the period begin- ning on July 1, 2004, and ending on December 31, 2006; ‘‘(B) for which there is unharvested volume re- maining; ‘‘(C) for which, not later than 90 days after the date of enactment of this Act [June 18, 2008], the timber purchaser makes a written request to the Secretary for one or more of the options described in subsection (b); ‘‘(D) that is not a salvage sale; ‘‘(E) for which the Secretary determines there is not an urgent need to harvest due to deteriorating timber conditions that developed after the award of the contract; and ‘‘(F) that is not in breach or in default. ‘‘(3) SECRETARY.—The term ‘Secretary’ means the Secretary of Agriculture, acting through the Chief of the Forest Service. ‘‘(b) OPTIONS FOR QUALIFYING CONTRACTS.— ‘‘(1) CANCELLATION OR RATE REDETERMINATION.—Not- withstanding any other provision of law, if the rate at which a qualifying contract would be advertised as of the date of enactment of this Act [June 18, 2008] is at least 50 percent less than the sum of the original bid rates for all of the species of timber that are the subject of the qualifying contract, the Secretary may, at the sole discretion of the Secretary— ‘‘(A) cancel the qualifying contract if the timber purchaser— ‘‘(i) pays 30 percent of the total value of the timber remaining in the qualifying contract based on bid rates; ‘‘(ii) completes each contractual obligation (in- cluding the removal of downed timber, the com- pletion of road work, and the completion of ero- sion control work) of the timber purchaser with respect to each unit on which harvest has begun to a logical stopping point, as determined by the Secretary after consultation with the timber pur- chaser; and ‘‘(iii) terminates its rights under the qualifying contract; or ‘‘(B) modify the qualifying contract to redeter- mine the current contract rate of the qualifying contract to equal the sum obtained by adding— ‘‘(i) 25 percent of the bid premium on the quali- fying contract; and ‘‘(ii) the rate at which the qualifying contract would be advertised as of the date of enactment of this Act [June 18, 2008]. ‘‘(2) SUBSTITUTION OF INDEX.— ‘‘(A) SUBSTITUTION.—Notwithstanding any other provision of law, the Secretary may, at the sole dis- cretion of the Secretary, substitute the Producer Price Index specified in the qualifying contract of a timber purchaser if the timber purchaser identi- fies— ‘‘(i) the products the timber purchaser intends to produce from the timber harvested under the qualifying contract; and ‘‘(ii) a substitute index from an authorized Pro- ducer Price Index that more accurately rep- resents the predominant product identified in clause (i) for which there is an index. ‘‘(B) RATE REDETERMINATION FOLLOWING SUBSTI- TUTION OF INDEX.—If the Secretary substitutes the Producer Price Index of a qualifying contract under subparagraph (A), the Secretary may, at the sole discretion of the Secretary, modify the qualifying contract to provide for— ‘‘(i) an emergency rate redetermination under the terms of the contract; or ‘‘(ii) a rate redetermination under paragraph (1)(B). ‘‘(C) LIMITATION ON MARKET-RELATED CONTRACT TERM ADDITION; PERIODIC PAYMENTS.—Notwith- standing any other provision of law, if the Sec- retary substitutes the Producer Price Index of a qualifying contract under subparagraph (A), the Secretary may, at the sole discretion of the Sec- retary, modify the qualifying contract— ‘‘(i) to adjust the term in accordance with the market-related contract term addition provision in the qualifying contract and section 223.52 of title 36, Code of Federal Regulations, as in effect on the date of the adjustment, but only if the drastic reduction criteria in such section are met for 2 or more consecutive calendar year quarters beginning with the calendar quarter in which the Secretary substitutes the Producer Price Index under subparagraph (A); and ‘‘(ii) to adjust the periodic payments required under the contract in accordance with applicable law and policies. ‘‘(3) CONTRACTS USING HARDWOOD LUMBER INDEX.— With respect to a qualifying contract using the hard- wood commodity index referred to in subsection (a)(1)(B) for which the Secretary does not substitute the Producer Price Index under paragraph (2), the Secretary may, at the sole discretion of the Sec- retary— ‘‘(A) extend the contract term for a 1-year period beginning on the current contract termination date; and ‘‘(B) adjust the periodic payments required under the contract in accordance with applicable law and policies. ‘‘(c) EXTENSION OF MARKET-RELATED CONTRACT TERM ADDITION TIME LIMIT FOR CERTAIN CONTRACTS.—Not- withstanding any other provision of law, upon the writ- ten request of a timber purchaser, the Secretary may, at the sole discretion of the Secretary, modify a timber sale contract (including a qualifying contract) awarded to the purchaser before January 1, 2007, to adjust the term of the contract in accordance with the market-re- lated contract term addition provision in the contract and section 223.52 of title 36, Code of Federal Regula- tions, as in effect on the date of the modification, ex- cept that the Secretary may add no more than 4 years to the original contract length. ‘‘(d) EFFECT OF OPTIONS.— ‘‘(1) NO SURRENDER OF CLAIMS.—Operation of this section shall not have the effect of surrendering any claim by the United States against any timber pur- chaser that arose— ‘‘(A) under a qualifying contract before the date on which the Secretary cancels the contract or re- determines the rate under subsection (b)(1), sub- stitutes a Producer Price Index under subsection (b)(2), or modifies the contract under subsection (b)(3); or Page 926 TITLE 16—CONSERVATION § 473 1 See References in Text note below. ‘‘(B) under a timber sale contract, including a qualifying contract, before the date on which the Secretary adjusts the contract term under sub- section (c). ‘‘(2) RELEASE OF LIABILITY.—In the written request for any option provided under subsections (b) and (c), a timber purchaser shall release the United States from all liability, including further consideration or compensation, resulting from— ‘‘(A) the cancellation of a qualifying contract of the purchaser or rate redetermination under sub- section (b)(1), the substitution of a Producer Price Index under subsection (b)(2), the modification of the contract under subsection (b)(3) or a determina- tion by the Secretary not to provide the cancella- tion, redetermination, substitution, or modifica- tion; or ‘‘(B) the modification of the term of a timber sale contract (including a qualifying contract) of the purchaser under subsection (c) or a determination by the Secretary not to provide the modification. ‘‘(3) LIMITATION.—Subject to subsection (b)(1)(A), the cancellation of a qualifying contract by the Sec- retary under subsection (b)(1) shall release the timber purchaser from further obligation under the canceled contract.’’ [Pub. L. 110–234 and Pub. L. 110–246 enacted identical provisions. Pub. L. 110–234 was repealed by section 4(a) of Pub. L. 110–246, set out as a note under section 8701 of Title 7, Agriculture.] USE OF RECEIPTS FROM TIMBER SALES FOR ROAD CONSTRUCTION Pub. L. 99–500, § 101(h) [title II], Oct. 18, 1986, 100 Stat. 1783–242, 1783–271, and Pub. L. 99–591, § 101(h) [title II], Oct. 30, 1986, 100 Stat. 3341–242, 3341–271, provided that: ‘‘Notwithstanding any other provision of law, the Sec- retary of Agriculture is hereafter authorized to use from any receipts from the sale of timber a sum equal to the cost of construction of roads under the purchaser election program as described and authorized in section 14(i) of the National Forest Management Act of 1976 [16 U.S.C. 472a(i)].’’ § 473. Revocation, modification, or vacation of or- ders or proclamations establishing national forests The President of the United States is author- ized and empowered to revoke, modify, or sus- pend any and all Executive orders and proclama- tions or any part thereof issued under section 471 1 of this title, from time to time as he shall deem best for the public interests. By such modification he may reduce the area or change the boundary lines or may vacate altogether any order creating a national forest. (June 4, 1897, ch. 2, § 1, 30 Stat. 34, 36.) Editorial Notes REFERENCES IN TEXT Section 471 of this title, referred to in text, was re- pealed by Pub. L. 94–579, title VII, § 704(a), Oct. 21, 1976, 90 Stat. 2792. CODIFICATION The two sentences of this section are from provisions in section 1 of the Sundry Civil Appropriation Act for the fiscal year 1898, act June 4, 1897. The first sentence is a portion of the third paragraph and was prefaced by the words ‘‘To remove any doubt which may exist pertaining to the authority of the President thereunto.’’ Other provisions of the same paragraph have been omitted as temporary. The second sentence is a portion of the seventh para- graph the whole of which reads as follows: ‘‘The Presi- dent is hereby authorized at any time to modify any Executive order that has been or may hereafter be made establishing any forest reserve, and by such modification may reduce the area or change the bound- ary lines of such reserve, or may vacate altogether any order creating such reserve.’’ Statutory Notes and Related Subsidiaries SHORT TITLE Certain provisions of act June 4, 1897, ch. 2, 30 Stat. 34, under the headings ‘‘UNDER THE DEPARTMENT OF THE INTERIOR.’’ and ‘‘SURVEYING THE PUBLIC LANDS.’’, which enacted sections 473 to 478, 479 to 482, and 551 of this title, are popularly known as the Organic Administra- tion Act. § 474. Surveys; plats and field notes; maps; effect under Act June 4, 1897 Surveys, field notes, and plats returned from the survey of public lands designated as national forests undertaken under the supervision of the Director of the United States Geological Survey in accordance with provisions of Act June 4, 1897, chapter 2, section 1, thirtieth Statutes, page 34, shall have the same legal force and ef- fect as surveys, field notes, and plats returned through the Field Surveying Service; and such surveys, which include subdivision surveys under the rectangular system, approved by the Secretary of the Interior or such officer as he may designate as in other cases, and properly certified copies thereof shall be filed in the re- spective land offices of the districts in which such lands are situated, as in other cases. All laws inconsistent with the provisions hereof are declared inoperative as respects such survey. A copy of every topographic map and other maps showing the distribution of the forests, together with such field notes as may be taken relating thereto, shall be certified thereto by the Direc- tor of the Survey and filed in the Bureau of Land Management. (June 4, 1897, ch. 2, § 1, 30 Stat. 34; Mar. 3, 1925, ch. 462, 43 Stat. 1144; 1946 Reorg. Plan No. 3, § 403, eff. July 16, 1946, 11 F.R. 7876, 60 Stat. 1100; Pub. L. 102–154, title I, Nov. 13, 1991, 105 Stat. 1000.) Editorial Notes REFERENCES IN TEXT Act June 4, 1897, chapter 2, section 1, referred to in text, is act June 4, 1897, ch. 2, 30 Stat. 34. For classifica- tion of this Act to the Code, see Tables. Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘United States Geological Survey’’ substituted in text for ‘‘Geological Survey’’ pursuant to provision of title I of Pub. L. 102–154, set out as a note under section 31 of Title 43, Public Lands. Executive Documents TRANSFER OF FUNCTIONS ‘‘Field Surveying Service’’ substituted in text for ‘‘of- fice of surveyors-general’’ by act Mar. 3, 1925. Subse- quently, the Service was abolished and its functions transferred to Secretary of the Interior by Reorg. Plan No. 3 of 1946, § 403, eff. July 16, 1946, 11 F.R. 7876, 60 Stat.