[Federal Register: December 18, 2002 (Volume 67, Number 243)]
[Proposed Rules]
[Page 77451-77463]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de02-26]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 215
RIN 0596-AB89
Notice, Comment, and Appeal Procedures for Projects and
Activities on National Forest System Lands
AGENCY: Forest Service, USDA.
ACTION: Proposed rule; request for comment.
-----------------------------------------------------------------------
SUMMARY: The Forest Service is proposing to amend the rule adopted in
1994 for the notice, comment, and appeal procedures for projects and
activities implementing land and resource management plans on National
Forest System lands. The proposed rule changes current procedures to
clarify certain provisions and reduce complexity in the current rule,
improve efficiency of processing appeals, encourage early and effective
public participation in the environmental analysis of projects and
activities, and ensure consistency with the provisions of the statutory
authority. Topics addressed include emergency situations; 30-day notice
and comment procedures; site-specific comments; who may appeal; and the
formal disposition process. Public comment is invited and will be
considered in development of the final rule.
DATES: Comments must be received in writing by February 18, 2003.
ADDRESSES: Send written comments to USDA FS, Appeal Rule Content
Analysis Team, P.O. Box 9079, Missoula, MT 59807; by electronic mail to
215appeals@fs.fed.us; or by facsimile to (406) 329-3556. To aid in our
analysis of comments, it would be helpful if comments are organized
section by section. Please note that all comments, including names and
addresses when provided, are placed in the record and are available for
public inspection and copying. The agency cannot confirm receipt of
comments. Individuals wishing to inspect the comments should call (406)
329-3038 to facilitate an appointment. Additional information is
provided at http://www.fs.fed.us/emc/applit/index.htm.
FOR FURTHER INFORMATION CONTACT: Ginger Hamilton, Program Manager,
Content Analysis Team (406) 329-3038.
SUPPLEMENTARY INFORMATION:
Background
The Forest Service has a long-term commitment to promoting
effective public involvement in both planning and project level
decisionmaking. For example, in 1977, the proposed National Forest
Management Act (NFMA) regulations directed that forest plan approvals,
although subject to mandatory public involvement, would not be subject
to administrative appeal. 44 FR 25554, 25589 (May 4, 1979). The final
regulations adopted in 1979 dropped the no appeal provision and such
appeals were allowed. In 1989 the Forest Service again undertook a
major revision of its appeal regulations splitting its appeal
regulations into two major rules, one for the general public (36 CFR
part 217) and one for holders of special use permits (36 CFR 251.80).
By 1992, the Forest Service had determined that the process had become
too complex, confrontational and costly.
In 1992, the Forest Service undertook a year-long review and
evaluation of its administrative appeal procedures. The 1992 review
uncovered many problems with the procedures and led to the publication
of a proposed rule to amend 36 CFR part 217 to continue allowing forest
plan-level appeals but substituting an expanded pre-decisional public
involvement opportunity to replace post-decisional administrative
appeals of environmental assessments (57 FR 10444) and eliminating
appeals of categorical exclusions for projects. The Forest Service
received over 30,000 comments on the proposed rule. Before a final rule
was published, however, Congress, operating through an annual
appropriation rider, enacted section 322 of Interior and Related
Agencies Appropriation Act of Fiscal Year 1993, Pub. L. 102-381, 106
Stat. 1419, (hereinafter ``Appeals Reform Act'' (ARA) instructing the
Secretary of Agriculture to establish a notice, comment and appeal
process modifying the existing appeal regulations.
The ARA contains relatively little specific guidance beyond the
statutorily established timelines. The Forest Service was, therefore,
tasked with establishing the process that would lay out the particulars
of the appeals procedures. The origins of the ARA derive primarily from
an amendment co-sponsored by Senators Craig and DeConcinni. The Craig-
DeConcinni amendment was subsequently amended by the conference
committee with a consensus from both parties of Congress. The Senate
floor colloquy during consideration of the conference committee report
contains revealing statements which support the conclusion that
Congress intended to allow the agency to determine the appropriate
scope and other details regarding the appeal process to be developed by
the Secretary. Senator Craig described ``a reasonable and balanced
approach to resolve the debate over the future of the Forest Service's
appeal process.'' 138 Cong. Rec. S15848 (Sept. 30, 1992). While
Congress was clearly taking matters into its own hands regarding
whether there should be an appeal system and the specific timeframes
for how long such an appeal could take, Congress did not provide a
detailed legislative framework. In fact, the legislative history shows
that Congress even intended for the agency to address a statutory
drafting error regarding the duration of administrative stays through
the agency regulations.
The Forest Service has a continuing commitment to periodically
review its regulations, identify specific problems in administering
them, and determine whether they meet Congressional intent, as well as
agency and public needs. Experience with the procedures at 36
[[Page 77452]]
CFR part 215 has shown that certain provisions in the current rule
consistently raise questions or reduce efficient processing of appeals.
In April 2001, the agency chartered a team to assess the part 215
appeal rule, identify ways to reduce the complexity of the current
rule, and improve efficiency for the public and the Forest Service. The
team conducted interviews with and solicited comments from a cross-
section of agency personnel at the various field levels and the
national headquarters staff.
Implementation issues associated with the current rule that were
most often cited generally fell into two areas: inefficiency of the
procedures and the process for public involvement. Specific issues
identified included: The 30-day notice and comment process; emergency
situations; informal disposition; dismissals; interested parties; the
definition of projects implementing a land and resource management
plan; who may file an appeal; appeal issues; and electronic
transmission of comments and/or appeals. In addition, many comments
stated that the provisions in the current rule exceed the requirements
of the Act. After careful consideration, the agency has determined that
the major areas needing attention are: Emergency situations; 30-day
notice and comment process; site-specific comments; who may file an
appeal; and the formal disposition process. As a result, the Forest
Service is proposing to amend 36 CFR part 215. The proposed changes
would clarify and reduce the complexity of the rule; elicit more
effective public participation by seeking public comment early in the
process; provide for electronic submission of comments; result in more
consistent application of the rule; simplify the language; and
reorganize the rule into a more logical sequence.
Two particular regulatory issues warrant special attention: The
scope of decisions subject to appeal (``proposed actions of the Forest
Service concerning projects and activities implementing land and
resource management plans'') and stays of ``emergency'' actions.
Congress did not provide statutory definitions for either of these
terms.
The existing appeal regulations provide for appeals of actions
evaluated in an environmental assessment or environmental impact
statement, as well as one specific class of categorically excluded
activities that is no longer in use. The ARA was enacted in direct
response to the Forest Service's 1992 proposed regulation that would
have substituted appeals with a pre-decisional review. Congress
preferred appeals over pre-decisional public involvement for these
assessments. Congress did not express a specific intent regarding where
the ``line should be drawn'' or to ``set in concrete'' which activities
would be subject to notice, comment and appeal. Nor was there any
indication that Congress intended to extend the notice, comment and
appeal requirements to all classes of categorically excluded
activities. This was a determination left to the discretion and
judgment of the Secretary. Congress knew that not every decision of the
Forest Service was subject to appeal before the 1992 Act.
The agency believes that Congress used the phrase ``proposed
actions of the Forest Service concerning projects and activities
implementing land and resource management plans'' to delineate between
administrative appeals of forest plans and project level decisions,
rather than define a comprehensive or precise set of activities.
Congress could, of course, have provided a specific definition. But
Congress did not do so and absent such a definition, the courts have
recognized that agencies are free, indeed expected, to fill in the gaps
and that such regulatory interpretations are due deference. Through the
1993 rulemaking process the Secretary concluded that the Forest
Service's categorically excluded activities were generally not of the
sort that Congress would have intended to apply additional notice,
comment and appeal requirements given the generally minor potential for
environmental effects.
One exception was made to require notice, comment and appeal for
timber sales exceeding certain volume limits, but that category is no
longer in use. This exception, however, does illustrate a consistent
interpretation by the Department that Congress intended to grant the
Secretary the authority to establish a flexible process through
rulemaking. The appeal regulation's reliance upon its existing
administrative framework (the agency's NEPA procedures) is also
consistent with other Forest Service regulations that rely on the NEPA
procedures for guidance regarding public participation (see e.g. 36 CFR
219.6(b)). This practice is in keeping with the Council on
Environmental Quality's instructions for agencies to ``integrate the
requirements of NEPA with other planning and environmental review
procedures required by law or by agency practice * * *''. 40 CFR
1500.2(c).
By their very nature, activities that have been categorically
excluded generally have no significant environmental effect, or stated
otherwise, were determined not to cross the NEPA ``significance
threshold'' based on the agency's experience, judgment, and analysis
from implementing similar activities over many years. Therefore they
typically do not include preparation of extensive records; in fact, the
Forest Service NEPA procedures do not require decision documents or
project files to be maintained for many categorical exclusions.
Congress' intent was to streamline an appeal process in need of
revision, not entangle the agency in a costly and time-consuming
exercise for minor decisions by Forest Service officials. That being
the case, the Forest Service has determined that including affected and
interested individuals in project planning early in the process is more
effective than subjecting these projects to formal and extensive
notice, comment and appeal procedures.
The existing regulation's treatment of categorically excluded
activities is the subject of unresolved litigation. While that
litigation is currently focused on procedural matters, the agency
believes that both the current and proposed regulations are within the
scope of the Secretary's delegated authority to establish a notice,
comment and appeal process as set forth in the ARA. This assumption is
supported by the fact that during the ten years of implementation of
the 1993 regulations, Congress has not sought to amend the ARA to
adjust the agency's implementation, and has in fact relied upon the
regulatory structure and exempted individual and classes of activities
from the regulations. For example, in July 2002, Congress passed
legislation recognizing the urgency of the severe fire threat posed to
private homes from fire and diseased trees in the Black Hills National
Forest and the procedural problems that could delay prompt action. The
legislation exempted timber cutting as part of a fuels treatment
project from public notice and comment as well as judicial review and
appeals.
Regardless of the scope of the administrative appeals procedures,
Forest Service procedures require that all projects subject to the
National Environmental Policy Act (NEPA), including projects covered
under categorical exclusions, include interested and affected
individuals in project planning to the extent appropriate considering
the nature and complexity of the proposed action. For example, for
hazardous fuels reduction projects near communities, the Forest Service
would collaborate with local constituents in a manner consistent with
the process identified in A Collaborative Approach for Reducing
Wildland Fire Risks to Communities
[[Page 77453]]
and the Environment 10-Year Comprehensive Strategy Implementation Plan.
The ARA expressly authorizes the Chief to exempt certain activities
from the mandatory stay provision in an ``emergency'' but does not
provide a statutory definition or specify particular criteria for
making such determinations. The agency's 1993 regulations attempted to
provide such guidance, but experience has shown the need for
refinement. In particular, the Forest Service wishes to clarify that
economic factors can be relied upon in making the determination of
whether to exempt a project from stay while an appeal is pending.
During implementation of the current rule, the agency has found that
the rule is unnecessarily restrictive and results in undue waste of
natural and economic resources. Fire impacted forest ecosystems and
damaged watersheds impose a variety of economic costs to communities
and implementation delays can result in loss of economic value that may
alter the agency's options for addressing resource problems. The
proposed regulation would adjust the definition of ``emergency'' to
address this issue.
The significance of specific changes to the current rule is
indicated in the following section-by-section description. Minor
changes are summarized, while more detail is included for new sections
and those sections that involve substantive change.
Proposed Section 215.1 Purpose and scope. This proposed section
incorporates the current Sec. 215.1 with changes that are generally
minor and clarifying in nature. Proposed paragraph (b) is rewritten to
eliminate repetitive language and to clearly state that the appeals
process is available only for those who commented during the time
period for the opportunity to comment and that appeal issues are
limited to those raised during that comment period (Sec. 215.5). Other
changes to note are that here and throughout the proposed rule the
phrase ``opportunity to comment'' is often used to better reflect
Congressional intent to require a specific time period to seek public
comment.
Proposed Section 215.2 Definitions. This proposed section
incorporates the current Sec. 215.2 with changes. The proposed rule
adds six new terms: Appeal disposition, emergency situation, name,
National Forest System lands, projects and activities implementing a
land and resource management plan, and substantive comments; removes
three terms because they would no longer be applicable to the 215
regulations as amended: Decision document, decision memo, and
interested party; removes the definition for ``proposed timber harvest
categorically excluded from documentation under Forest Service Handbook
1909.12, section 31.2, paragraph 4'' as this was removed from the
Handbook; and revises and updates several terms and definitions as
explained in the following paragraphs. Terms and definitions not set
out here are unchanged from the current rule.
Appeal. The proposed definition replaces the verb ``objects'' with
``seeking review of'' to distinguish appeals from the recently
established ``objection'' process in the 2000 planning regulation at 36
CFR part 219.
Appeal Deciding Officer. The proposed definition corrects a
typographical error and changes ``Forest Service line officer'' to
``Secretary of Agriculture or Department or agency designee,'' making
it clear that the Secretary can serve as the Deciding Officer in the
event that there is an appeal of a Chief's decision.
Appeal period. The proposed definition clarifies that the appeal
periods begins following publication of the legal notice of a decision.
Appeal record. The proposed definition is rewritten to eliminate
unnecessary wording; delete the term ``written comment submitted by
interested parties'' to conform to the proposed removal of the term
``interested party''; and add ``the Appeal Reviewing Officer's
recommendation,'' which was inadvertently omitted in the current rule.
Appeal Reviewing Officer. The proposed definition clarifies that a
Department of Agriculture official can also serve as an Appeal
Reviewing Officer.
Categorical Exclusion. This proposed term was changed to conform to
the regulations governing categorical exclusions. The current term is
categorically excluded.
Comment period. This proposed definition is rewritten and changed
to state that the notice of the opportunity to comment must be
published in a legal notice as opposed to the current language, which
merely says a notice must be published. Additionally, the information
in Sec. 215.5 on how to compute the comment period is included.
Decision document. For clarity, it is proposed to remove this term
and use Decision Notice and/or Record of Decision as appropriate.
Decision documentation. It is proposed to shorten and clarify this
definition and eliminate the unnecessary examples of what might
constitute decision documentation.
Decision memo. It is proposed to remove this definition because it
is no longer applicable to this regulation.
Environmental Assessment (EA)--Language was added to this proposed
definition to conform to that found in 40 CFR 1508.9 regarding an EA.
Emergency situation. It is proposed to move the definition to Sec.
215.2, while incorporating and revising the description at current
Sec. 215.10. While the Act does not specifically define emergency
situations, it gives the Chief discretion to determine when an
emergency situation exists. This proposed definition would be broadened
to make clear that emergency situations can include situations not
explicitly listed in the current description at section 215.10.
Additionally, experience has shown that some emergency situations on
National Forest System lands may pose a risk to adjacent lands and
therefore, warrant being included in the definition of emergency
situations. Some situations may result in substantial loss of economic
value if implementation is delayed. Further, the examples are removed,
as it is impossible to predict all possible scenarios where an
emergency situation exists.
Forest Service line officer. The proposed definition removes the
current examples of line positions, as they are not necessary for
understanding and applying the definition.
Interested party. It is proposed to remove this term and thus the
definition, which is not used in the proposed rule. Related information
is set out in the description of proposed Sec. 215.12.
Name. It is proposed to add this definition. Because the proposed
rule provides for accepting electronic comments and appeals, it is
critical that the Forest Service have the ability to identify
individuals and organizations in order to establish their standing
(ability to submit appeals).
National Forest System lands. This definition, based on Sec.
200.1(c)(2), is added to clarify what lands comprise the National
Forest System. This definition makes clear that research and
experimental areas (such as experimental forests) are included in
National Forest System lands.
Projects and activities implementing a land and resource management
plan. It is proposed to add this definition. The Act uses this phrase
to define what proposed actions are subject to this part; however, the
current regulation does not provide a definition. Application of the
current rule has shown that the lack of
[[Page 77454]]
a definition causes confusion about exactly which projects and
activities are subject to notice, comment, and appeal. Further, the
proposed definition makes clear that research activities on all
National Forest System lands are subject to this part.
Proposed action--The proposed definition was changed to remove the
words ``recommend'' and ``implement'' to avoid confusion. Actions that
are ``recommended'' are not subject to this rule and actions that have
been approved and already subject to this rule are not subjected again
at implementation.
Proposed timber harvest categorically excluded from documentation
under Forest Service Handbook 1909.12, section 31.2, paragraph 4. It is
proposed to remove this term from the definitions and throughout the
proposed rule because this categorical exclusion is no longer in use.
Responsible Official. The proposed definition would replace ``line
officer'' and ``authority and responsibility to make decisions'' with
``Forest Service employee who has the delegated authority to make and
implement the decision'' to clarify that some decisions subject to this
rule are made and implemented by a Regional Director, through delegated
authority, even though this position is not considered a ``Forest
Service line officer.''
Substantive comments. It is proposed to add this definition in
order to define a new term that is added to the proposed rule. The
explanation for adding this term is included in the proposed Sec. Sec.
215.5 and 215.6 below.
Proposed Section 215.3 Proposed actions subject to legal notice and
opportunity to comment. This proposed section revises and incorporates
current regulatory text from Sec. 215.3, and revises the heading to
include the term ``opportunity to comment.''
Since timber harvest is no longer an activity that may be
categorically excluded from documentation in an environmental
assessment (EA) or environmental impact statement (EIS), current
paragraph (b) is removed; current paragraph (c) on nonsignificant
amendments to land and resource management plans is redesignated to
paragraph (b).
Proposed paragraph (c) would apply procedures for notice and
opportunity to comment to revision of an EA based on new information or
changed circumstances. Paragraph (c) is added because confusion has
resulted from not having addressed this point in the current rule.
Current paragraph (d) covering National Forests without land and
resource management plans is removed as all National Forests now have
approved land and resource management plans.
Current paragraph (e) is redesignated (d) and is rewritten to say
``research activities'' instead of ``forestry research activities'' to
reflect that research activities conducted on National Forest System
lands for which environmental analysis is performed, include forestry
as well as other types of research.
Proposed Section 215.4 Actions not subject to legal notice and
opportunity to comment. This proposed section revises and incorporates
the regulatory text from the current Sec. 215.4 and revises the
heading to include the term ``opportunity to comment.''
Proposed paragraph (b) is rewritten excluding from notice and
opportunity to comment all proposed actions that are categorically
excluded. As explained when 36 CFR part 215 was promulgated (58 FR
58905), it is appropriate to exclude proposed actions that are
categorically excluded from notice and opportunity to comment. For all
projects subject to NEPA, Forest Service procedures require that
interested and affected individuals be included in project planning
through public involvement commensurate with the nature and complexity
of the proposed action. By their very nature, proposed actions that may
be categorically excluded from documentation in an EA or EIS generally
have little to no environmental effect.
The current rule does not address the application of this section
to the following situation: a determination by the Responsible Official
that new information or changed circumstances does not result in
revision of the EA. Proposed paragraph (d) is added to clarify that
such situations are not subject to notice and opportunity to comment.
Proposed Section 215.5 Legal notice of proposed action and
opportunity to comment. The proposed heading is rewritten for clarity
and to include the term ``opportunity to comment.'' This proposed
section retains but also revises and reorganizes most of the
requirements in current Sec. 215.5 and also incorporates pertinent
paragraphs from current Sec. 215.6. The proposed paragraph headings
are rewritten for clarity and to reflect the reorganization of this
section. In this section and throughout the proposed rule, the terms
``notice'' and ``public notice'' are replaced with the term ``legal
notice'' to reflect standard practice and terminology. ``Legal notice''
is intended to mean publication in the legal notice section of the
paper of record.
Proposed paragraph (a), ``Timing for publication of legal notice,''
would incorporate and revise current paragraph (b)(2)(i) to give the
Responsible Official discretion to determine the most effective timing
for publishing the legal notice of the proposed action and opportunity
to comment. There are instances when a proposed action is well
developed, with sufficient information to allow for substantive public
comment during the scoping phase of project planning. Other times, it
might be more helpful to the Responsible Official for the comment
period to occur prior to alternative development. In a third instance,
a comment period after alternative development might be of most
benefit. These are examples of how the rule's flexibility allows for
the most effective use of the comment period significantly earlier in
the project planning than the current rule permits. Timing for the
comment period would be determined on a project-by-project basis,
depending on the nature and complexity of the project. The flexibility
with such discretion would allow the Responsible Official to provide an
opportunity for early comment and meaningful public participation
during project planning, at the stage when comments will be most
helpful in developing public understanding and an effective project.
The Forest Service expects to develop policy guidance with regard to
the appropriate timing of the 30-day comment period following
promulgation of a final rule. This change is consistent with the
statutory language of the Act. In contrast, the current rule requires
that the EA be mailed to any individual who is known to have
participated, a procedure which goes beyond the requirements in the Act
and unnecessarily delays the process by requiring, in all cases, the
mandated 30-day comment period only after the EA is completed.
Proposed paragraphs (b)(1) through (b)(5) incorporate the
regulatory text concerning notice and comments from the current
Sec. Sec. 215.5, 215.6(a) and 215.10(d)(2).
Proposed paragraph (b)(4)(i)-(viii), ``Content of legal notice,''
adds all forms of the Responsible Official's address; the acceptable
format for electronic comments; a signature requirement for each
individual or organization listed; a statement that the ability to
appeal is tied to timely submission of comments; and information about
emergency situations.
The proposed rule provides for electronic submission of comments
which is not addressed in the current rule. Proposed paragraph
(b)(4)(v),
[[Page 77455]]
requires that the legal notice specify a standard format for electronic
comments, because experience has shown that not all electronic
submissions are compatible with the Forest Service computer systems. It
should be noted that those availing themselves of electronic
transmission of comments are responsible for ensuring that their
submissions are timely. The Forest Service is unable to accept
responsibility for failure of electronic devices.
The notice requirements for emergency situations are currently
described in current Sec. 215.10(d) ``Implementation of decisions,''
but it is more appropriate to include them in proposed paragraph
(b)(4)(ix).
Proposed paragraph (b)(5) incorporates current Sec. 215.6(a)
concerning the time period for comments and is rewritten for clarity.
The current requirement that the public notice for comment include the
date the comment period ends has resulted in problems and confusion for
the agency and the public. Currently, the agency employee preparing the
legal notice must estimate the date of publication and the date the
comment period ends, for inclusion in the notice. However, because
publication delays are not uncommon, there have been numerous instances
of confusion as to the correct deadline for accepting comments. The
remedy to this problem is found in proposed paragraphs (b)(5) to
(b)(5)(i)(B), which describe how the commenter can determine the last
day for accepting comments by noting the newspaper date of the legal
notice and adding thirty days. Comments must be sent by the end of the
30th day.
The current regulation does not address extending the comment
period and this has resulted in confusion. Proposed paragraph
(b)(5)(ii), which conforms to the language in the Act, explicitly
states that the period for the opportunity to comment cannot be
extended.
Proposed paragraph (c), ``Comments,'' revises and incorporates the
requirements regarding the content of comments currently in Sec.
215.6(b), and adds new paragraphs (1) and (3), requiring signatures on
the comment letters, that comments must be specific and provides
consistent requirements for oral comments. The requirements in
paragraph (c) through (c)(3) are rewritten to address the following
difficulties encountered during implementation of the current rule:
identification of those who can appeal when comment letters list
several organizations but include only one signature with a statement
that the individual represents all the organizations; uncertainty as to
which proposed action the comments address; receipt of comments that
are not relevant to the specific project or activity or are so general
in nature that they are not useful to the Responsible Official in
making a more informed decision; and inconsistency in submission of
oral comments.
Proposed Section 215.6 Consideration of comments. This section, as
proposed, is considerably shortened from the current rule because the
current paragraphs (a) and (b) on procedures for commenting are moved
to proposed Sec. 215.5. In order to encourage the public to submit
meaningful and specific comments, the remaining paragraphs are revised
by requiring the consideration of all substantive written and oral
comments.
Proposed Section 215.7 Legal notice of decision. This proposed
section makes minor revisions, incorporates the requirements in the
current Notice of decision, Sec. 215.9, and adds two new paragraphs as
described below.
Proposed paragraph (a)(2)(ii) would require that the legal notice
describe how the time period for filing an appeal is calculated and
would clarify that it is the appellants' responsibility to determine
the time allotted, based on the publication date of the legal notice
and not relying on dates or time frames provided by any other source.
To avoid any confusion should publication be delayed, this proposed
paragraph also makes clear that an actual date for the end of the
comment period shall not be included in the legal notice.
Proposed paragraph (a)(2)(vi) would provide for notification of the
public as to when implementation may occur in emergency situations as
set out in proposed Sec. 215.9(b). While implementation of decisions
regarding emergency situations is discussed in current Sec. 215.10(d),
there is no requirement to notify the public of timeframes.
Proposed Section 215.8 Decision implementation. This proposed
section incorporates, revises, and redesignates at paragraphs (a)
through (c)(2), the requirements currently in Sec. 215.10 paragraphs
(a) through (c). Proposed paragraph (c) differentiates between when
decisions documented in a Decision Notice (DN) or in a Record of
Decision (ROD) can be implemented, which was inadvertently omitted from
the current Sec. 215.10. This differentiation is necessary to ensure
compliance with the Council on Environmental Quality (CEQ) regulations
governing final environmental impact statement (FEIS) and ROD
timeframes.
Proposed Section 215.9 Emergency situations. This proposed section
is added to set out procedures for emergency situations in a separate
section for clarity and so that they can be located quickly and easily.
The definition for emergency situations, at current (Sec.
215.10(d)(1)), is moved to Sec. 215.2, Definitions.
Proposed paragraph (a) clarifies that authority for determination
of an emergency situation is not reserved to the Chief and may be
delegated, though not below the Regional Forester or Station Director
level. The current regulation appears to reserve this determination
solely for the Chief, although the Act does not mandate such
reservation.
Proposed paragraph (b) incorporates current Sec. 215.10(d)
regarding implementation of emergency situations and clarifies when
implementation of the project or activity may begin. In addition, it
differentiates between decisions determined to be an emergency
documented either in a Decision Notice (DN) or in a Record of Decision
(ROD). This differentiation is necessary to clarify compliance with the
Council on Environmental Quality (CEQ) regulations governing final
environmental impact statement (FEIS) and ROD timeframes.
Proposed paragraph (c) reiterates that the legal notice shall
include information about the determination of an emergency situation.
Examples of emergency situations are removed because they do not cover
all emergency situations that may occur, which caused confusion.
Proposed Section 215.10 Decisions subject to appeal. This proposed
section incorporates Sec. 215.7(a) of the current rule and adds two
new paragraphs to proposed paragraph (a). To clarify existing confusion
over how to apply this section when considering new information or
changed circumstances, paragraph (a)(2) is added; and a new paragraph
(a)(3) is added to clarify and address those instances where the Forest
Service makes decisions in conjunction with other federal agencies but
where only a portion of the decision applies to National Forest System
lands.
Current paragraph Sec. 215.7(b) is removed because Forest Service
policy no longer allows timber harvest projects and activities to be
documented in a decision memo.
Proposed paragraph (b) is added, but it is only a technical change.
Currently these decisions are discussed in Sec. 215.8(c) Decisions not
subject to appeal, which could be misleading to someone who has the
option to use the appeal process at either part 215 or part
[[Page 77456]]
251. It is more appropriate under this section.
Proposed Section 215.11 Decisions and actions not subject to
appeal. This proposed section revises, reorganizes and incorporates the
requirements from current Sec. 215.8. Proposed paragraph (b) is added
to address situations involving new information or changed
circumstances that do not result in a new decision and make clear that
this situation is not subject to appeal. Proposed paragraph (c)(ii) is
added (corresponding to that provided for environmental assessments in
proposed paragraph (c)(i)) for situations where no comments or only
supportive comments are received during the comment period for a draft
environmental impact statement (DEIS), and the Responsible Official's
decision does not modify the preferred alternative identified in the
DEIS. This was an inadvertent omission in the current rule.
Proposed paragraph (c) combines two current paragraphs ((a)(2) and
(b)), and removes sentences and examples found in the current rule that
are necessary for understanding and paragraph (c) in the current Sec.
215.8 is moved to proposed Sec. 215.10, ``Decisions subject to
appeal.''
Proposed paragraph (d) differentiates between environmental
assessments (EAs) and environmental impact statements (EISs) not
subject to appeal and proposed paragraph (d)(ii) sets out that for a
decision to not be subject to appeal under this paragraph, both
criteria must be met.
Proposed paragraphs (f), ``Nonsignificant amendments to land and
resource management plans,'' and (g), ``Concurrences and
recommendations from other federal agencies'' are added for
clarification and to eliminate confusion about what is subject to
appeal. Concurrences and recommendations from other federal agencies
are not Forest Service decisions, nor do they meet the definition of a
Forest Service ``project or activity implementing a land and resource
management plan'' and thus would not be subject to appeal.
Proposed Section 215.12 Who may appeal. This proposed section
incorporates current Sec. 215.11, paragraphs (a), (c), and (d) and is
rewritten for clarity.
Proposed paragraph (a) combines current paragraphs Sec.
215.11(a)(1) and that portion of (2) regarding submission of comments
pursuant to provisions of Sec. 215.6 (now proposed Sec. 215.5). The
remaining portion of paragraph (a)(2) is removed to more closely
conform to the Act in regard to ``who may appeal''. The Forest Service
believes that a mere ``expression of interest'', such as that of an
individual having no participation in the project planning process, but
who requested a copy of the decision, does not meet Congressional
intent for who may appeal. This conclusion is based on a reading of
those portions of the Act and the Congressional colloquy regarding the
appeal process, which make clear that an individual's participation in
the statutorily mandated public comment period is required to establish
standing to appeal.
Current Sec. 215.11(b) ``Interested parties,'' is removed. The
current provision exceeds the provisions of the Act, which only
addresses appellants or those individuals who have participated in the
planning process and who have provided comments within the proscribed
timeframes.
Proposed paragraph (b) addresses procedures for appeals listing
multiple individuals or organizations. The current regulations are
unclear on how to process appeals with multiple names to determine who
has standing to appeal, resulting in inconsistent application across
the Forest Service.
Proposed Section 215.13 Where to file appeals. This section
incorporates the requirements in current Sec. 215.12, adds two levels
of Responsible Officials inadvertently omitted from the current
regulation: Chief of the Forest Service and Research Work Unit Leader,
and clarifies that a Station Director is also considered a Responsible
Official.
Proposed Section 215.14 Appeal time periods and process. The
requirements in current Sec. 215.13 are incorporated in proposed
section Sec. 215.14; paragraphs are rewritten for clarity,
reorganized, and redesignated.
Proposed paragraph (b) clarifies that all time periods that end on
a Saturday, Sunday, or federal holiday shall be extended to the end of
the next federal working day.
Proposed paragraph (c) clarifies how timeliness shall be determined
for various methods of delivery, including e-mail; states that an
automated response should be received from the agency when an appeal is
electronically mailed, as a verification of receipt; and that should an
electronic response not be received, it is the appellant's
responsibility to provide evidence that the appeal was sent in a timely
manner.
Current Sec. 215.13(e), ``Interested party comments,'' is removed,
as discussed in proposed Sec. 215.12 and the remainder of proposed
Sec. 215.14 is redesignated. Proposed paragraph (e) rewrites current
paragraph Sec. 215.13(f)(1) replacing ``transmit appeal record'' with
``transmit decision documentation.'' The appeal record is assembled by
the Deciding Officer, not the Responsible Official. Further, the
current paragraph on review recommendation (Sec. 215.13(f)(2)) is
removed because the Act does not include any time period for the review
recommendation. The regulatory text describing what an appeal decision
must contain at Sec. 215.13(f)(3) is moved to proposed Sec. 215.18.
Proposed Section 215.15 Appeal content. This section of the
proposed rule retains the requirements of current Sec. 215.14.
Proposed paragraph (a) is rewritten with minor changes for
terminology consistency and to clarify that the focus of the appeal is
providing project- or activity-specific evidence and rationale as it
relates to the decision. The term ``remanded'' in current paragraph (a)
is removed because it is not used elsewhere in either the current rule
or the proposed rule.
Proposed paragraph (b) rewrites, reorganizes, and redesignates
current Sec. 215.14(b). Proposed paragraph (b)(5) clarifies that
appeal issues are limited to substantive comments submitted during the
comment period. This change is consistent with the Act.
Proposed paragraph (c) is added, setting out those instances when
an appeal would not be accepted. It makes clear to those planning to
appeal that it is to their benefit to include all applicable
information.
Proposed Section 215.16 Dismissal of appeal without review. The
requirements in current Sec. 215.15 now appear in proposed Sec.
215.16.
Proposed paragraph (a) is rewritten for clarity and consistency
with proposed Sec. 215.14, to show how timeframes for different
delivery methods are applied. Current Sec. 215.15(a)(7) concerning
filing for judicial review is removed in accordance with Public Law
103-354, the USDA Reorganization Act of 1993. Current Sec.
215.15(a)(5) is rewritten as proposed paragraph (a)(6) and is
consistent with proposed Sec. 215.15(b)(5) concerning the limitation
of appeal issues. Proposed paragraph (a)(9) is added to provide for
dismissal when an appellant withdraws an appeal and to be consistent
with the current rule which provides for dismissal when a responsible
official withdraws a decision.
Proposed Section 215.17 Informal disposition. The requirements in
current Sec. 215.16 are incorporated in proposed Sec. 215.17, with
minor changes.
Proposed paragraph (b) is rewritten to clarify that it is the
``initial'' meeting that must occur within 15 days. This change
alleviates the confusion about whether informal resolution must be
concluded within 15 days.
[[Page 77457]]
Proposed paragraph (c) removes the reference to interested parties,
consistent with the proposed change removing this term elsewhere in the
rule.
Proposed paragraph (d) is rewritten, articulating the various
scenarios that may result from informal disposition.
Proposed Section 215.18 Formal review and disposition procedures.
The requirements of current Sec. 215.17 are incorporated in proposed
Sec. 215.18 and the proposed heading is changed to ``Formal review and
disposition procedures'' for clarity.
Proposed paragraph (b)(1) adds the procedures to use when an appeal
decision includes instructions. The omission of these procedures in the
current rule has resulted in confusion about the procedures to follow
in such cases. Proposed paragraph (b)(2) articulates that issuing an
appeal decision is not required; this change is consistent with the
Act.
Proposed paragraph (c) makes clear that an appeal decision cannot
be issued after the 45th day.
Proposed paragraph (d) is moved from current Sec. 215.18, ``Appeal
Deciding Officer authority'', as it is more appropriate in this
section.
Proposed Section 215.19 Appeal Deciding Officer's authority. This
proposed section incorporates the language from current Sec. 215.18,
except for paragraph (c), reorganizing it to more clearly follow the
process as it relates to the Appeal Deciding Officer's (ADO) authority.
Proposed paragraph (b) is rewritten to clarify that the ADO may
consolidate appeals and issue one or more appeal decisions, whereas the
current Sec. 215.18 language implies that the only options are one
decision for all appellants or separate decisions for each appellant.
Proposed paragraph (c) is added, describing the ADO's authority
when appeals listing multiple names are received. The current
regulations do not address these types of appeals, resulting in
inconsistent application of the regulation. As discussed above,
paragraph (c) regarding appeal decisions from the current Sec. 215.18
is moved to proposed Sec. 215.18(d), ``Formal review and disposition''
and a new paragraph (d) is added, clarifying that the ADO's decision
can be different from the Appeal Reviewing Officer's recommendation.
This provision was not addressed specifically in the Act but was
implied with the use of the term ``recommendation.''
Proposed Section 215.20 Appeal Reviewing Officer's
responsibilities. This proposed section incorporates and revises the
language from current Sec. 215.19. The proposed heading is revised to
be consistent with the Act and the paragraph headings are also revised.
Proposed paragraph (a) is revised to conform directly with the language
in the Act regarding who may be designated as the Appeal Reviewing
Officer. Proposed paragraph (b) clarifies the scope of review, using
language from the Act. Proposed paragraph (c) clarifies that the Appeal
Reviewing Officer has an option to issue one recommendation or as many
as appropriate in cases involving multiple appeals of decisions.
Proposed Section 215.21 Secretary's authority. This proposed
section is added to set out the relationship between the Secretary of
Agriculture and the Forest Service concerning decisionmaking and the
rules of this part.
Proposed Section 215.22 Judicial proceedings. The concepts from
current Sec. 215.20 are incorporated in this proposed section, but it
is rewritten to remove the option for waiver since Public Law 103-354,
the USDA Reorganization Act of 1993 (7 U.S.C. 6901) supercedes this
option.
Proposed Section 215.23 Applicability and effective date. This
proposed section specifies in paragraph (a) when the new procedures in
the final rule would apply. Proposed paragraph (b) would provide that
decisions for which legal notice is given prior to the effective date
of the final rule would remain subject to the rules previously in
effect in part 215.
Proposed Section 215.24 Information Collection Requirements. This
section explains that the rule contains information collection
requirements as defined in 5 CFR part 1320 by specifying the
information that appellants must supply in an appeal. The OMB Control
Number for this information will be included in the final rule.
Regulatory Certifications
Regulatory Impact
This proposed rule has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory Planning and Review. It has been
determined that this is not a significant rule. This rule will not have
an annual effect of $100 million or more on the economy nor adversely
affect productivity, competition, jobs the environment, public health
or safety, nor State or local governments. This rule will not interfere
with an action taken or planned by another agency nor raise new legal
or policy issues. Finally, this action will not alter the budgetary
impact of entitlements, grants user fees, or loan programs or the
rights and obligations of recipients of such programs.
Moreover, this proposed rule has been considered in light of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been
determined that this action will not have a significant economic impact
on a substantial number of small entities as defined by that Act.
Therefore, a regulatory flexibility analysis is not required for this
proposed rule.
Environmental Impacts
This proposed rule would revise the administrative procedures and
requirements to guide notice, comment, and appeal of projects and
activities implementing a land and resource management plan. Section
31.1b of Forest Service Handbook 1909.15 (57 FR 43168; 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
instruction.'' This proposed rule clearly falls within this category of
actions and no extraordinary circumstances exist which would require
preparation of an environmental assessment or an environmental impact
statement.
Energy Effects
This proposed rule has been reviewed under Executive Order 13211 of
May 18, 2001, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use. It has been determined that this
proposed rule does not constitute a significant energy action as
defined in the Executive order. Procedural in nature, this proposed
rule would revise the administrative procedures and requirements to
guide notice, comment, and appeal of projects and activities
implementing a land and resource management plan.
Controlling Paperwork Burdens on the Public
This proposed rule at 36 CFR 215.15 sets out requirements for the
information that appellants must provide in an appeal. As such, this
proposed rule contains information collection requirements as defined
in 5 CFR part 1320 and, therefore, is subject to the review provisions
of the Paperwork Reduction Act of 1995 (44 U.S.C. part 3501 et seq.)
and implementing regulations at 5 CFR part 1320.
Federalism
The agency has considered this proposed rule under the requirements
of
[[Page 77458]]
Executive Order 13132, Federalism, and Executive Order 12875,
Government Partnerships. The agency has made a preliminary assessment
that the proposed rule conforms with the federalism principles set out
in these Executive orders; 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. Based on comments received on this proposed rule, the
agency will consider if any additional consultation will be needed with
State and local governments prior to adopting a final rule.
Consultation and Coordination With Indian Tribal Governments
This proposed 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 proposed 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. This proposed rule would
only revise the administrative procedures and requirements that guide
notice, comment, and appeal of projects and activities implementing a
land and resource management plan.
Civil Justice Reform
This proposed 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 proposed rule. Nevertheless,
in the event that such a conflict were to be identified, the proposed
rule, if implemented, would preempt the State or local laws or
regulations found to be in conflict. However, in that case, (1) No
retroactive effect would be given to this proposed rule; and (2) the
Department would not require the parties to use administrative
proceedings before parties may file suit in court challenging its
provisions.
Unfunded Mandates
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 agency has assessed the effects of this proposed 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 governments or anyone in the private sector.
Therefore, a statement under section 202 of the Act is not required.
List of Subjects in 36 CFR Part 215
Administrative practice and procedure, National forests.
Therefore, for the reasons set forth in the preamble, it is
proposed to amend Part 215 of Title 36 of the Code of Federal
Regulations as follows:
PART 215--NOTICE, COMMENT, AND APPEAL PROCEDURES FOR NATIONAL
FOREST SYSTEM PROJECTS AND ACTIVITIES
Sec.
215.1 Purpose and scope.
215.2 Definitions.
215.3 Proposed actions subject to legal notice and opportunity to
comment.
215.4 Actions not subject to legal notice and opportunity to
comment.
215.5 Legal notice of proposed action and opportunity to comment.
215.6 Consideration of comments.
215.7 Legal notice of decision.
215.8 Decision implementation.
215.9 Emergency situations.
215.10 Decisions subject to appeal.
215.11 Decisions and actions not subject to appeal.
215.12 Who may appeal.
215.13 Where to file appeals.
215.14 Appeal time periods and process.
215.15 Appeal content.
215.16 Dismissal of appeal without review.
215.17 Informal disposition.
215.18 Formal review and disposition procedures.
215.19 Appeal Deciding Officer's authority.
215.20 Appeal Reviewing Officer's responsibilities.
215.21 Secretary's authority.
215.22 Judicial proceedings.
215.23 Applicability and effective date.
215.24 Information collection requirements
Authority: 16 U.S.C. 472, 551; sec. 322, Pub. L. 102-381, 106
Stat. 1419 (16 U.S.C. 1612 note).
Sec. 215.1 Purpose and scope.
(a) Purpose. The rules of this part have two purposes. First, this
part establishes a process by which the public receives notice and an
opportunity to comment on proposed actions for projects and activities
implementing a land and resource management plan prior to a decision by
the Responsible Official. Second, this part establishes an appeal
process and identifies the decisions that may be appealed, who may
appeal those decisions, the responsibilities of the participants in an
appeal, and the procedures that apply for the prompt disposition of the
appeal.
(b) Scope. The notice of proposed actions and opportunity to
comment provides an opportunity for the public to provide meaningful
input prior to the decision on projects and activities implementing
land and resource management plans. The rules of this part complement,
but do not replace, numerous other opportunities to participate in and
influence the agency's project and activity planning, such as those
provided by the National Environmental Policy Act of 1969 (NEPA), the
National Forest Management Act, and the implementing regulations and
procedures in 40 CFR parts 1500-1508 and 36 CFR parts 216 and 219,
Forest Service Manual (FSM) Chapters 1920 and 1950, and Forest Service
Handbooks (FSH) 1909.12 and 1909.15. The appeal process is available to
those who submit comments during the comment period, and issues are
limited to those specifically raised by the appellant in their
comments. Appeal disposition constitutes the final administrative
determination of the United States Department of Agriculture.
Sec. 215.2 Definitions.
Appeal--The written document filed with an Appeal Deciding Officer
by someone seeking review of a decision.
Appeal Deciding Officer--The Secretary of Agriculture or the
Department or agency designee having the delegated authority and
responsibility to render a decision on an appeal filed under this part.
Appeal disposition--Either a written appeal decision or written
notification that an appeal decision will not be issued.
Appeal period--The 45-calendar-day period following publication of
the legal notice of a decision during which an appeal may be filed with
the Appeal Deciding Officer.
Appeal record--The information upon which review of an appeal is
conducted, consisting of the decision documentation, the legal notice
of decision, the appeal, the Responsible Official's documentation of
the informal disposition meeting, and the Appeal Reviewing Officer's
recommendation.
Appeal Reviewing Officer--An agency or Department of Agriculture
official who reviews an appeal and makes a written recommendation to
the Appeal Deciding Officer on the disposition of the appeal.
Appellant--An individual or organization filing an appeal under
this part.
[[Page 77459]]
Categorically excluded--Proposed actions which do not individually
or cumulatively have a significant effect on the human environment and
for which neither an environmental impact statement (EIS) nor an
environmental assessment (EA) is required (40 CFR 1508.4; Forest
Service Handbook (FSH) 1909.15, Chapter 30).
Comment period--The 30-calendar-day period following publication of
the legal notice of a proposed action, during which the public has the
opportunity to provide comments to a Responsible Official on a proposed
action subject to this part. The time period is computed using calendar
days, including Saturdays, Sundays, and federal holidays. However, when
the time period expires on a Saturday, Sunday, or federal holiday,
comments shall be accepted until the end of the next federal working
day.
Decision documentation--The Decision Notice or Record of Decision
and all relevant environmental and other analysis documentation and
records on which the Responsible Official bases a decision under
appeal.
Decision Notice (DN)--A concise written record of a Responsible
Official's decision based on an environmental assessment and a finding
of no significant impact (40 CFR 1508.9; FSH 1909.15, Chapter 40).
Emergency situation--A situation on National Forest System lands in
which a proposed action would provide relief from hazards threatening
human health and safety or natural resources on those or adjacent
lands; or that would result in substantial loss of economic value to
the Government if implementation of the proposed action were delayed.
Environmental Assessment (EA)--A concise public document that
provides sufficient evidence and analysis for determining whether to
prepare an environmental impact statement or a finding of no
significant impact, aids an agency's compliance with NEPA when no
environmental impact statement is necessary, and facilitates
preparation of a statement when one is necessary. (40 CFR 1508.9; FSH
1909.15, Chapter 40).
Environmental Impact Statement (EIS)--A detailed written statement
as required by section 102(2)(C) of the National Environmental Policy
Act of 1969 (40 CFR 1508.11; FSH 1909.15, Chapter 20).
Finding of No Significant Impact (FONSI)--A document prepared by a
federal agency presenting the reasons why an action, not otherwise
excluded, will not have a significant effect on the human environment
and for which an environmental impact statement, therefore, will not be
prepared. It includes the environmental assessment or a summary of it
and shall note any other environmental documents related to it (40
CFR1508.13; FSH 1909.15, Chapter 40).
Forest Service line officer--A Forest Service official who serves
in a direct line of command from the Chief and who has the delegated
authority to make and execute decisions subject to this part.
Name--The first and last name of an individual or the name of an
organization. An e-mail address or electronic username is insufficient
for identification of an individual or organization.
National Forest System lands--Proclaimed or designated National
Forests; National Grasslands; Purchase Units; Land Utilization
Projects; Research and Experimental Areas; and other areas (36 CFR
200.1(c)(2)).
Projects and activities implementing a land and resource management
plan--Site-specific projects and activities, including those for
research, on National Forest System lands that are approved in a
Decision Notice or Record of Decision by a Forest Service official.
Proposed action--A proposal made by the Forest Service to authorize
an action on National Forest System lands to meet a specific purpose
and need which is subject to the notice and comment provisions of this
part.
Record of Decision--A document signed by a Responsible Official
recording a decision that was preceded by preparation of an
environmental impact statement (40 CFR 1505.2; FSH 1909.15, Chapter
20).
Responsible Official--The Forest Service employee who has the
delegated authority to make and implement a decision subject to this
part.
Substantive comments--Comments that are within the scope of the
proposed action, are specific to the proposed action, and have a direct
relationship to the proposed action.
Sec. 215.3 Proposed actions subject to legal notice and opportunity
to comment.
The legal notice and opportunity to comment procedures (Sec.
215.5) only apply to:
(a) Proposed projects and activities implementing land and resource
management plans (Sec. 215.2) for which an environmental assessment
(EA) is prepared.
(b) Proposed nonsignificant amendments to land and resource
management plans (36 CFR part 219) that are included as part of a
decision on a project or activity for which an EA is prepared.
(c) Proposed revision of the EA based on consideration of new
information or changed circumstances (FSH 1909.15, section 18).
(d) Proposed research activities to be conducted on National Forest
System lands for which an EA is prepared.
Sec. 215.4 Actions not subject to legal notice and opportunity to
comment.
The procedures for legal notice and opportunity to comment (Sec.
215.5) do not apply to:
(a) Proposed projects and activities described in a draft
environmental impact statement (EIS), for which notice and comment
procedures are governed by 40 CFR 1500-1508.
(b) Projects and activities which are categorically excluded from
documentation in an EIS or environmental assessment (EA) pursuant to
FSH 1909.15, sections 31.1 and 31.2.
(c) Projects and activities not subject to the provisions of the
National Environmental Policy Act and the implementing regulations at
40 CFR parts 1500-1508 and the National Forest Management Act and the
implementing regulations at 36 CFR part 219.
(d) New information or changed circumstances, based upon which, the
Responsible Official determines that revision of the EA is not required
(FSH 1909.15, section 18).
(e) Rules promulgated in accordance with the Administrative
Procedure Act (5 U.S.C. 551 et seq.) or policies and procedures issued
in the Forest Service Manual and Handbooks (36 CFR parts 200 and 216).
(f) Proposed nonsignificant amendment to a land and resource
management plan that is made separately from a project or activity
specified in Sec. 215.3(b).
Sec. 215.5 Legal notice of proposed action and opportunity to
comment.
(a) Timing for publication of notice. Comments on the proposed
action shall be accepted for 30 days following the date of publication
of the notice; the Responsible Official has the discretion to determine
the most effective timing for publishing the legal notice of the
proposed action and opportunity to comment (Sec. 215.5(b)).
(b) Giving Notice--(1) Principal newspaper. Through notice
published annually in the Federal Register, each Regional Forester
shall advise the public of the principal newspapers utilized for
publishing legal notices required by this part.
(2) The Responsible Official shall promptly mail the proposed
action (Sec. 215.2) to any individual or organization who has
requested it and to individuals who have participated in project
planning.
[[Page 77460]]
(3) The Responsible Official shall publish a legal notice of the
opportunity to comment on a proposed action in the principal newspaper
identified in Sec. 215.5(b)(1), or in the case of the Chief of the
Forest Service, in the Federal Register.
(4) Content of legal notice. All legal notices shall include the
following:
(i) The title and brief description of the proposed action;
(ii) A general description of the proposed action's location with
sufficient information to allow the interested public to identify the
location;
(iii) Instructions on how to obtain additional information on the
proposed action;
(iv) The name, title, telephone number, and addresses (street,
postal, facsimile, and e-mail) of the Responsible Official to whom
comments are to be submitted;
(v) The acceptable format(s) for electronic comments;
(vi) A statement indicating that each individual, or a
representative from each organization, must sign comment letters.
(vii) Rather than giving a specific date, a statement indicating
that the opportunity to comment ends 30 days following the date of
publication of the legal notice;
(viii) A statement indicating that only those who submit timely
comments will be accepted as appellants; and
(ix) When applicable, a statement that the Responsible Official is
requesting an emergency situation determination or it has been
determined that an emergency situation exists for the project or
activity as provided for in Sec. 215.9.
(5) Computation of time period. The 30-day comment period begins on
the first day after publication of the legal notice. The time period is
computed using calendar days, including Saturdays, Sundays, and federal
holidays. However, when the time period expires on a Saturday, Sunday,
or federal holiday, comments shall be accepted until the end of the
next federal working day.
(i) The Responsible Official shall accept comments on the proposed
action that are:
(A) Postmarked, e-mailed, faxed, or otherwise submitted (for
example, express delivery service) by the end of the 30th calendar day
following publication of the legal notice (Sec. 215.5(b)(3)); or
(B) Hand-delivered and received by the end of the 30th calendar day
following publication of the legal notice (Sec. 215.5(b)(3)).
(ii) The time period for the opportunity to comment shall not be
extended.
(c) Comments. Written and oral comments shall be accepted and shall
become a matter of public record.
(1) Anyone commenting must provide the following information:
(i) Name and address;
(ii) Title of the proposed action; and
(iii) Specific substantive comments (Sec. 215.2) on the proposed
action along with supporting reasons that the Responsible Official
should consider in reaching a decision.
(2) Written Comments Signature. Written comments, submitted via
delivery service (for example, U.S. Postal Service, express mail
service, courier, etc.) or submitted in person, must be signed. When a
written comment, submitted via delivery service or in person, is filed
on behalf of multiple individuals, each name listed must include a
signature.
Verification of the author(s) may be necessary for electronically
submitted comments. For organizations, a signature of an individual
officially representing each organization must be included. Comments
received from an official representative(s) of an organization are
considered as those of the organization only, and do not meet comment
requirements of this section for individual members of that
organization.
(3) Oral Comments--Oral comments must be provided at the agency
office during normal business hours via telephone or in person, or if
non-business hours, must be at an official agency function which is
designed to elicit public comment.
Sec. 215.6 Consideration of comments.
(a) All written comments received by the Responsible Official shall
be placed in the project file.
(b) The Responsible Official shall clearly identify the date all
oral comments are received in response to the legal notice (Sec.
215.5), document them, and place in the project file.
(c) The Responsible Official shall consider all substantive written
and oral comments submitted in compliance with Sec. 215.5(b)(5)(i) and
(c).
Sec. 215.7 Legal notice of decision.
(a) The Responsible Official shall publish a legal notice of any
decision subject to appeal (Sec. 215.10) in the principal newspaper
(Sec. 215.5(b)(1)). The legal notice shall:
(1) Include the title of the project or activity and a concise
description of the action(s) to be taken, the name and title of the
Responsible Official, and instructions for obtaining a copy of the
Decision Notice (DN) and Finding of No Significant Impact (FONSI) or
Record of Decision (ROD).
(2) State that the decision is subject to appeal pursuant to 36 CFR
part 215 and include the following:
(i) Name and address of the Appeal Deciding Officer with whom an
appeal is to be filed. The notice shall specify a street, postal, fax,
and e-mail address, and acceptable format(s) for electronically
submitted appeals.
(ii) A statement that the publication date of the legal notice is
the exclusive means for calculating the time to file an appeal (Sec.
215.14)) and that appellants should not rely upon dates or timeframe
information provided by any other source. An actual date shall not be
included in the legal notice.
(iii) A statement that an appeal, including attachments, must be
postmarked, faxed, e-mailed, hand-delivered, or otherwise submitted to
the appropriate Appeal Deciding Officer (Sec. 215.13) within 45 days
following the date of publication of the legal notice.
(iv) A statement indicating that individuals or organizations who
submitted comments during the comment period (Sec. 215.5) may appeal.
Appeal issues are limited to those raised by the appellant in his/her
comments (Sec. 215.5).
(v) A statement specifying, when applicable, that the Chief of the
Forest Service, or a designee, has determined that an emergency
situation exists (Sec. 215.9), and which portion of the project is
covered by that determination as provided for in Sec. 215.9.
(vi) A statement indicating how many days following publication
that implementation may begin (Sec. 215.8), including those portions
covered by an emergency situation determination, if applicable (Sec.
215.9).
(3) When no comments or only supportive comments are received,
include a statement indicating that the decision is not subject to
appeal pursuant to Sec. 215.11.
(b) The Responsible Official shall promptly mail the ROD or the DN
and FONSI to those who requested the decision document and those who
submitted comments during the comment period provided under Sec.
215.5.
Sec. 215.8 Decision implementation.
(a) If no appeal is filed within the time period provided,
implementation of the decision may begin on, but not before, the fifth
(5th) business day following the close of the appeal-filing period
(Sec. 215.14).
[[Page 77461]]
(b) Except for emergency situations as noted in Sec. 215.9(b),
when an appeal is filed, implementation may occur on, but not before,
the 15th business day following the date of appeal disposition (Sec.
215.2). In the event of multiple appeals of the same decision, the
implementation date is controlled by the date of the last appeal
disposition.
(c) When a project or activity decision is not subject to appeal
(Sec. 215.11), implementation may occur as follows:
(1) Immediately when documented in a Decision Notice; or
(2) Immediately when documented in a Record of Decision after
complying with the timeframes described in 40 CFR 1506.10(b)(2).
Sec. 215.9 Emergency situations.
(a) Determination. The Chief of the Forest Service or a designee
may make the determination that an emergency situation (Sec. 215.2)
exists. The authority for determination of an emergency situation may
not be delegated below the Regional Forester or Station Director. The
determination that an emergency situation exists shall be based on an
examination of the relevant information. During the review, additional
information may be requested and/or the Responsible Official may be
consulted.
(b) Implementation. When it is determined that an emergency
situation exists with respect to all or part of the decision,
implementation may proceed as follows:
(1) Immediately when documented in a Decision Notice, for that
portion of the decision determined to be an emergency.
(2) Immediately when documented in a Record of Decision, after
complying with the timeframes described in 40 CFR 1506.10(b)(2), for
that portion of the decision determined to be an emergency.
(c) Notification. The Responsible Official shall notify the public
that the Forest Service is handling part of, or the entire project, as
an emergency in the legal notice of decision (Sec. 215.7).
Sec. 215.10 Decisions subject to appeal.
(a) The following decisions are subject to appeal under this part:
(1) Decisions for projects and activities implementing land and
resource management plans (Sec. 215.2) documented in a Record of
Decision (ROD) or Decision Notice (DN), including those which, as a
part of the decision, contain a nonsignificant amendment to a land and
resource management plan (36 CFR 219.10).
(2) A new DN or ROD made after supplementation or revision of an
environmental assessment or environmental impact statement pursuant to
FSH 1909.15, section 18. However, only that portion of the decision
that is changed is subject to appeal.
(3) Decisions made in conjunction with other federal agencies and
meeting the requirements of preceding paragraph (a)(1) of this section.
However, only that portion of the decision made by the Forest Service
affecting National Forest System lands (Sec. 215.2) is subject to
appeal under this part.
(b) Decisions solely affecting the business relationship between
the Forest Service and holders of written instruments regarding
occupancy and use of National Forest System lands and meeting the
requirements of preceding paragraph (a) of this section are subject to
appeal by permit holders under either this part or 36 CFR part 251,
subpart C, but not under both parts.
Sec. 215.11 Decisions and actions not subject to appeal.
The following decisions are not subject to appeal under this part:
(a) Decisions for projects or activities included in a Record of
Decision for significant amendment, revision, or adoption of a land and
resource management plan (36 CFR part 217 and part 219).
(b) Documentation that a new decision is not needed following
supplementation or revision of an environmental assessment (EA)
pursuant to FSH 1909.15, section 18.
(c) Preliminary findings made during planning and/or analysis
processes on a project or activity and the subsequent implementing
actions that result from the initial project decision subject to
appeal.
(d) Projects or activities for which notice of the proposed action
and opportunity to comment is published (Sec. 215.5) and
(i) No comments or only supportive comments are received during the
comment period (Sec. 215.5); or
(ii) No comments or only supportive comments are received during
the comment period for a draft environmental impact statement (EIS) (40
CFR 1502.19), and the Responsible Official's decision does not modify
the preferred alternative identified in the draft EIS.
(e) Decisions for actions that have been categorically excluded
from documentation in an EA or EIS in FSH 1909.15, sections 31.1 and
31.2.
(f) An amendment to a land and resource management plan that is
made independent of a project or activity (36 CFR 219.32).
(g) Concurrences and recommendations to other federal agencies.
Sec. 215.12 Who may appeal.
(a) Individuals and organizations who submit written or oral
comments during the comment period for an environmental assessment
(Sec. 215.5), or in response to a draft environmental impact
statement, except as provided in paragraph (c) of this section, may
file an appeal. Comments received from an official representative(s) of
an organization are considered as those of the organization only, and
individual members of that organization do not meet appeal requirements
on the basis of membership in an organization which submitted comments.
(b) When the appeal lists multiple individuals or organizations,
each shall meet the requirements of paragraph (a) of this section.
Individuals or organizations that do not meet the requirements of
paragraph (a) of this section shall not be accepted as appellants.
(c) Federal agencies may not appeal.
(d) Federal employees filing appeals in a non-official capacity
under this part shall comply with Federal conflict of interest statutes
at 18 U.S.C. 202-209 and with employee ethics requirements at 5 CFR
part 2635. Specifically, employees shall not be on official duty nor
use government property or equipment in the preparation or transmittal
of an appeal. Further, employees shall not incorporate official
information not yet released to the public, including federal agency
documents that are exempt from disclosure under the Freedom of
Information Act, 5 U.S.C. 552 (b).
Sec. 215.13 Where to file appeals.
Appeals must be filed with the Appeal Deciding Officer as follows:
------------------------------------------------------------------------
If the Responsible Official who made the Then the Appeal Deciding
decision is: Officer is:
------------------------------------------------------------------------
Chief..................................... Secretary of Agriculture.
Regional Forester or Station Director..... Chief of the Forest Service.
Forest Supervisor......................... Regional Forester.
District Ranger........................... Regional Forester.
Research Work Unit Project Leader......... Station Director.
------------------------------------------------------------------------
Sec. 215.14 Appeal time periods and process.
(a) Time to file an appeal. Written appeals, including any
attachments, must be submitted to the Appeal Deciding Officer within 45
days
[[Page 77462]]
following the publication date of the legal notice (Sec. 215.7).
(b) Computation of time periods. (1) All time periods are computed
using calendar days, including Saturdays, Sundays, and federal
holidays. However, when the time period expires on a Saturday, Sunday,
or federal holiday, the time is extended to the end of the next federal
working day.
(2) The day after the publication of the legal notice (Sec. 215.7)
is the first day of the appeal-filing period.
(3) The publication date of the legal notice of the decision is the
exclusive means for calculating the time to file an appeal. Appellants
should not rely on dates or timeframe information provided by any other
source.
(c) Evidence of timely filing. When there is a question about
timely filing of an appeal, timeliness shall be determined by:
(1) The postmark on an appeal and/or attachment mailed or otherwise
submitted (for example, express mail service), or evidence of the date
sent on an e-mailed or faxed appeal and/or attachments. When an appeal
is electronically mailed, the appellant should expect to receive an
automated electronic response from the agency as confirmation of
receipt; or
(2) The time and date imprint at the correct receiving office on a
hand-delivered appeal and/or attachments.
(d) Extensions. Time extensions, except as noted in paragraph (b)
of this section, are not permitted.
(e) Other timeframes. Unless an appeal is resolved through the
informal disposition process (Sec. 215.17), the following timeframes
and processes shall apply:
(1) Transmittal of decision documentation. Within 15 days of the
close of the appeal-filing period, the Responsible Official shall
transmit the decision documentation to the Appeal Reviewing Officer.
(2) Appeal decision. Within 45 days following the end of the
appeal-filing period, the Appeal Deciding Officer shall issue a written
decision to the appellant(s) concerning the disposition of the appeal.
When an appeal decision is not issued within 45 days, the Responsible
Official's decision is deemed the final agency action and the appellant
shall be so notified (Sec. 215.18).
Sec. 215.15 Appeal content.
(a) It is the appellant's responsibility to provide sufficient
project- or activity-specific evidence and rationale, focusing on the
decision, to show why the Responsible Official's decision should be
reversed.
(b) The appeal must be submitted to the Appeal Deciding
Officer in writing. At a minimum, an appeal must include the
following:
(1) Appellant's name (as defined in Sec. 215.2), signature (for
those appeals submitted via delivery service, for example, United
States Postal Service, express mail service, courier, etc.) and
address, with a telephone number, if available;
(2) The name of the project or activity for which the decision was
made, the name and title of the Responsible Official, and the date of
the decision;
(3) The regulation under which the appeal is being filed, when
there is an option to appeal under this part or 36 CFR part 251 subpart
C (Sec. 215.10(b));
(4) Any specific change(s) in the decision that the appellant seeks
or portion(s) of the decision with which the appellant disagrees; and
(5) Why the appellant believes the Responsible Official's decision
failed to consider their substantive comments and/or how the appellant
believes the decision specifically violates law, regulation, or policy.
Appeal issues are limited to those raised by the appellant in her/his
comments (Sec. 215.5).
(c) The Appeal Deciding Officer shall not accept an appeal when:
(1) The identity of an appellant cannot be determined; or
(2) A reasonable means of contact is not provided; or
(3) The appellant's signature is not provided, except for those
appeals submitted electronically, which may be subject to verification
of the author; or
(4) Multiple names are listed without a signature accompanying each
name except for those appeals submitted electronically, which may be
subject to verification of the author; or
(5) The signature of the individual representing an organization is
not provided, except for those appeals submitted electronically, which
may be subject to verification of the author; or
(6) The decision cannot be identified.
Sec. 215.16 Dismissal of appeal without review.
(a) The Appeal Deciding Officer shall dismiss an appeal without
review when:
(1) The postmark on an appeal and/or attachment mailed or otherwise
submitted (for example, express mail service) or the evidence of the
date sent on an e-mailed or faxed appeal and/or attachments is not
within the 45-day appeal-filing period (Sec. 215.14); or
(2) The time and date imprint at the correct receiving office on a
hand-delivered appeal and/or attachments is not within the 45-day
appeal-filing period (Sec. 215.14); or
(3) The requested relief or change cannot be granted under law,
policy, or regulation; or
(4) The appellant has appealed the same decision under 36 CFR part
251 (Sec. 215.10(b)); or
(5) The decision is excluded from appeal (Sec. 215.11); or
(6) The appellant did not submit comments during the comment period
(Sec. 215.5); or
(7) The Responsible Official withdraws the decision; or
(8) The appellant's appeal does not provide sufficient information
in response to Sec. 215.15(b)(4) and (5) for the Appeal Deciding
Officer to render a decision; or
(9) The appellant withdraws the appeal.
(b) The Appeal Deciding Officer shall give written notice to the
appellant and the Responsible Official when an appeal is dismissed and
shall give the reasons for dismissal.
Sec. 215.17 Informal disposition.
(a) Offer to meet. When an appeal is received, the Responsible
Official must contact the appellant and offer to meet and discuss
resolution of the issues raised in the appeal. This contact shall be as
soon as practicable after the appeal is received.
(b) Time and location of meeting. When an appellant agrees to meet,
the initial meeting(s) shall take place within 15 days after the
closing date for filing an appeal (Sec. 215.14). The location of the
meeting shall be in the vicinity of the lands affected by the decision.
When the District Ranger is the Responsible Official, meetings will
generally be located on or near that Ranger District. When the Forest
Supervisor or Regional Forester is the Responsible Official, meetings
will generally take place at a location within or near the National
Forest.
(c) Meeting structure. Generally, the appellant and any other
participants should be physically present at informal disposition
meetings. If the appellant cannot attend a meeting in person because of
schedule conflicts or travel distances, alternative types of meetings
(such as telephone conferences or video conferences) may be arranged.
All meetings are open to the public.
(d) Outcome. The Responsible Official shall notify the Appeal
Deciding Officer of the meeting participants and the outcome of the
informal disposition meeting in writing. If the appellant(s) decline to
meet, the Responsible Official shall advise the Appeal Deciding
Officer.
(1) When an appellant and the Responsible Official reach agreement
on
[[Page 77463]]
disposition of all or a portion of an appeal, the appellant shall
withdraw all or the agreed upon portion of the appeal by letter to the
Appeal Deciding Officer within 15 days of the agreement. When the
appellant does not withdraw the appeal in writing, formal review and
disposition of the appeal shall continue.
(2) When, as a result of the agreement reached at the informal
disposition meeting, new information is received or changes to the
original decision or environmental analysis are proposed, the
Responsible Official must follow the procedures in FSH 1909.15, section
18, and Sec. Sec. 215.3 and 215.4.
(3) When an appeal is not entirely resolved through informal
disposition, formal review and disposition of the appeal shall continue
(Sec. 215.18).
Sec. 215.18 Formal review and disposition procedures.
(a) Scope of review. The Appeal Deciding Officer shall complete a
review based on the appeal record (Sec. 215.2) and the Appeal
Reviewing Officer's recommendation (Sec. 215.19(b)).
(b) Disposition. The Appeal Deciding Officer shall issue either:
(1) Within 45 days following the end of the appeal filing period, a
written appeal decision affirming or reversing the Responsible
Official's decision, in whole or in part, and may include instructions
for further action. When an appeal decision involves instructions
concerning new information or changed circumstances, the Responsible
Official must follow the procedures in FSH 1909.15, section 18; and
Sec. Sec. 215.3, 215.4, 215.10, and 215.11. A copy of the appeal
decision shall be sent to the appellant, the Appeal Reviewing Officer,
and the Responsible Official; or
(2) No sooner than 46 days nor later than 50 days following the end
of the appeal filing period, written notification to the appellant that
an appeal decision will not be issued and that the Responsible
Official's decision constitutes the final administrative decision of
the Department of Agriculture (Sec. 215.14(e)(2)). A copy shall be
sent to the Responsible Official.
(c) The Appeal Deciding Officer shall not issue an appeal decision
when 45 days have elapsed following the end of the appeal filing
period.
(d) The Appeal Deciding Officer's appeal decision constitutes the
final administrative determination of the Department of Agriculture.
Sec. 215.19 Appeal Deciding Officer's authority.
(a) Procedural decisions. The Appeal Deciding Officer makes all
procedural determinations. Such determinations are not subject to
further administrative review.
(b) Consolidation of appeal decisions. In cases involving multiple
appeals of a decision, the Appeal Deciding Officer may consolidate
appeals and may issue one or more appeal decisions.
(c) Multiple names. (1) When an appeal lists multiple names, the
Appeal Deciding Officer shall identify all qualified appellants (Sec.
215.12).
(2) The Appeal Deciding Officer has the discretion to appoint a
representative from those listed on an appeal to act on behalf of all
parties to that appeal.
(d) The Appeal Deciding Officer may issue an appeal decision
different from the Appeal Reviewing Officer's recommendation.
Sec. 215.20 Appeal Reviewing Officer's responsibilities.
(a) Designation. The Appeal Reviewing Officer may be:
(1) designated by the Chief or designee, and shall be a line
officer at least at the level of the agency official who made the
initial decision on the project or activity that is under appeal, who
has not participated in the initial decision and will not be
responsible for implementation of the initial decision after the appeal
is decided.
(2) or designated by the Secretary in the case of Chief's
decisions.
(b) Review and recommendation. The Appeal Reviewing Officer shall
review an appeal and make a written recommendation to the Appeal
Deciding Officer on the disposition of the appeal. That recommendation
shall be released only upon issuance of an appeal decision.
(c) Multiple appeals. In cases involving multiple appeals of a
decision, the Appeal Reviewing Officer may consolidate appeals and
issue one or more recommendations.
Sec. 215.21 Secretary's authority.
(a) Nothing in this part limits the Secretary of Agriculture's
authority for making decisions subject to this part.
(b) When the Secretary of Agriculture or Under Secretary, Natural
Resources and Environment, issues a decision for projects and
activities implementing land and resource management plans, such
decisions shall not be subject to the notice, comment, and appeal
procedures of this part. A decision by the Secretary of Agriculture
constitutes the final administrative decision of the Department of
Agriculture.
Sec. 215.22 Judicial proceedings.
It is the position of the Department of Agriculture that any filing
for federal judicial review of a decision subject to appeal is
premature and inappropriate unless the plaintiff has first sought to
invoke and exhaust the appeal procedures in this part (7 U.S.C. 6901).
Sec. 215.23 Applicability and effective date.
(a) These procedures apply to all projects and activities for which
notice is published after 30 days from date of publication of final
rule in the Federal Register.
(b) Decisions for which legal notice is given (Sec. 215.5) on or
prior to 30 days from date of publication of final rule in the Federal
Register remain subject to the appeal procedures of 36 CFR part 215 in
effect when the final rule is published
Sec. 215.24 Information collection requirements.
The rules of this subpart governing appeal of decisions regarding
projects and activities implementing a land and resource management
plan specify the information that appellants must provide in an appeal
(Sec. 215.15). As such, these rules contain information collection
requirements as defined in 5 CFR part 1320. These information
requirements are assigned OMB Control Number 0596---------.
Dated: December 11, 2002.
Dale N. Bosworth,
Chief, Forest Service.
[FR Doc. 02-31681 Filed 12-17-02; 8:45 am]
BILLING CODE 3410-11-P