[Federal Register Volume 68, Number 107 (Wednesday, June 4, 2003)]
[Rules and Regulations]
[Pages 33582-33602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13927]
[[Page 33581]]
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Part II
Department of Agriculture
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Forest Service
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36 CFR Part 215
Notice, Comment, and Appeal Procedures for National Forest System
Projects and Activities; Final Rule
Federal Register / Vol. 68 , No. 107 / Wednesday, June 4, 2003 /
Rules and Regulations
[[Page 33582]]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 215
RIN 0596-AB89
Notice, Comment, and Appeal Procedures for National Forest System
Projects and Activities
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule revises the notice, comment, and appeal
procedures for projects and activities implementing land and resource
management plans on National Forest System lands. The final rule
changes the procedures in the current rule to clarify and reduce the
complexity of certain provisions, to improve efficiency of processing
appeals, to encourage early and effective public participation in the
environmental analysis of projects and activities, and to ensure
consistency with the provisions of the statutory authority. Changes
address emergency situations; notice and comment procedures and time
periods; substantive comments; who may appeal; Deciding Officers;
content of an appeal; and the formal disposition process.
EFFECTIVE DATE: This rule is effective June 4, 2003, except for those
provisions concerning electronic comments and electronic appeals at 36
CFR 215.5(b)(vi-vii), 215.6(a)(4)(iii), 215.7(b)(2)(i) and (iii), and
215.15(c)(1) and (3), which are effective July 7, 2003.
FOR FURTHER INFORMATION CONTACT: Steve Segovia, Assistant Director for
Appeals and Litigation, Ecosystem Management Coordination, telephone
(202) 205-1066.
SUPPLEMENTARY INFORMATION:
Background
The Forest Service is responsible for managing 192 million acres in
National Forests, National Grasslands, and other areas known
collectively as the National Forest System. The Chief of the Forest
Service, through a line organization of regional foresters, forest
supervisors and district rangers, manages the surface resources and, in
some instances, the subsurface resources of these lands.
The United States Department of Agriculture (Department), at its
own discretion, provides processes by which persons or organizations
may appeal or object to significant amendment, revision, or approval of
a land and resource management plan (36 CFR part 219). For plans
prepared using the 1982 planning regulations, Appendix A to Sec.
219.35(b) provides the option to select the objection process of Sec.
219.32 or the administrative appeal and review procedures of part 217
in effect prior to November 9, 2000 (see 36 CFR parts 200 to 299,
Revised as of July 1, 2000). A separate process for notice, comment,
and appeal of National Forest System projects and activities was
mandated by 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)), with implementing regulations
promulgated on November 4, 1993 at 36 CFR part 215 (58 FR 58904).
On December 18, 2002, the Forest Service published a proposal to
amend the rule at 36 CFR part 215 (67 FR 77451). A 60-day comment
period was provided. In addition, the Forest Service gave direct notice
of the proposed amendment and invited comment from more than 150
national organizations and Federal agencies. Approximately 25,000
comment letters were received from individuals; representatives of
Federal, State, and local government agencies; environmental groups;
Indian tribes; professional associations; and both commodity and non-
commodity industry groups. The responses were form letters as well as
unique individual letters, some sent electronically and others mailed
hard copy. All suggestions and comments have been reviewed and
considered in preparation of this final rule.
General Comments
Comments were received from those who favored and those who
disagreed with the same proposed changes, addressing many of the same
issues from opposing viewpoints. Many requests for clarifications were
received as well as numerous suggestions for additional changes.
Those who generally supported the proposed rule changes stated that
the changes would improve procedural effectiveness and efficiency,
reduce the abuse of the appeals process, and improve forest health.
Those who generally opposed the proposed rule changes contended
that the changes would reduce a citizen's right to participate in the
project planning process, might result in increased litigation, and
would decrease forest health.
Comments were received on nearly every section asserting that
various portions of the proposed rule were in violation of the Appeals
Reform Act (ARA). Rather than answer each ARA violation assertion
individually, the Department is choosing to respond generally. The
Department does not believe that any provision, requirement, section,
or paragraph is in violation of the ARA. The Department has carried out
the intent of Congress with this rule and the changes in the final rule
reflect that intent. The preamble to the proposed rule (67 FR 77451,
December 18, 2002) contains an extensive discussion of the ARA and the
response to the ARA provisions in the development of the 1993 rule (58
FR 58904, November 4, 1993) and the changes proposed to the rule in
2002.
Native American tribes commented on almost every aspect of the
proposed rule. The tribes expressed a general concern that the proposed
rule failed to recognize particular rights granted under various
statutes, treaties, and other legal instruments. They believed that
tribal participation in many Forest Service decisions would be greatly
reduced by the proposed changes, and that consultation is required to
negotiate a process for harmonizing the proposed rule with their
concerns. Because the concerns expressed were primarily general in
nature, the Department is responding generally, rather than including a
response in every section. Native Americans have a special and unique
legal and political relationship with the United States government,
including the Department of Agriculture and the Forest Service. Tribal
governments are sovereign governments that are separate and distinct
from other governmental entities. In addition, land and resources hold
a special and unique meaning in the spiritual and everyday lives of
many Native Americans. National Forest System lands contain many
traditional, historic, and contemporary use areas of critical
importance to Native Americans. Tribal cultural practices occur
commonly on National Forest System lands. Thus, it is critical that the
Forest Service respect and work with all tribes in a Government-to-
Government relationship during project planning and engage in
consultation regarding Government actions affecting tribal rights and
interests, consistent with Government policy. However, the Department
does not believe it is appropriate to include special provisions
relating to tribes in the final rule.
After publication of the proposed rule, the Department became aware
of an inconsistency with the use of the terms ``substantive comment''
and ``comment.'' Respondents noted this inconsistency also. Throughout
the final rule, only the phrase ``substantive comment(s)'' is used, as
defined at Sec. 215.2.
[[Page 33583]]
Section-by-Section Comments
The following discusses and responds to the public comments on the
proposed changes to 36 CFR part 215 received during the Department's
60-day comment period. It also discusses differences between the
proposed rule and the final rule and why those changes were made. The
final rule has been reorganized. As a result, some sections have new
titles and/or a new designation as shown in the table below:
BILLING CODE 3410-11-P
[GRAPHIC] [TIFF OMITTED] TR04JN03.000
BILLING CODE 3410-11-C
Proposed section 215.1 discussed the purpose and scope of the rule.
Comment. Some of the respondents believed that the purpose should
include a reference to the public law or statute that established the
requirement for the rule; others wanted to know which phase of public
comment was affected by this rule; and some wondered what scope of
activities were covered, specifically activities concerning special
uses.
Response. Every rule is required to cite its authority. The
Authority citation (including the U.S. Code, public law, and statute)
for this rule follows the table of contents and precedes Sec. 215.1.
The 30-day comment period provided for proposed actions documented
in an environmental assessment (EA) is not a ``phase of public
comment'' pursuant to the National Environmental Policy Act (NEPA). It
is a separate action mandated by the Appeals Reform Act (ARA). In the
case of proposed actions documented in a draft environmental impact
statement (EIS), the requirements of the ARA for notice and comment
utilize existing procedures in NEPA's implementing regulations at 40
CFR parts 1503 and 1506.10 and agency policy in Forest Service Handbook
(FSH) 1909.15.
[[Page 33584]]
In response to confusion about the scope of activities covered,
specifically activities affecting special uses, the final rule
clarifies in Sec. 215.1(b) that decisions which affect an authorized
use or occupancy of National Forest System lands are subject to appeal
procedures in either part 215 or part 251, subpart C, but not both.
Also, in response to public comment, the final rule removes the issue
preclusion language from paragraph (b); the proposed rule at Sec. Sec.
215.1 and 215.15 would have limited appeals to those issues raised
during the comment period. The reason for this change is discussed
further under Sec. 215.15 below.
Proposed section 215.2 clarified and revised definitions for
specific terms used in the proposed rule. The proposed revision added
six new definitions, removed three definitions, and revised and updated
several other definitions from the 1993 rule.
Comment. Several comments were received regarding both the proposed
changes and definitions without proposed changes. One definition that
generated a number of comments, both supporting and disagreeing with
the change, was emergency situation. Those supporting the proposed
definition believe that the threat of substantial economic loss to
adjacent communities and property owners, as well as the loss of
resource value, should be factored into an emergency situation
determination. Some of those commenting believed that it minimized the
economic burden ``shouldered by local communities'' that ``results from
delayed decisions.'' Those disagreeing with the proposed definition
were unhappy that the definition had been broadened to include
substantial loss of economic value as a factor in determining emergency
situations. They believe this change places economic interests above
environmental and social concerns. Others said that it would lead to
increased logging because the definition has been broadened to the
point that almost any timber sale would fit the new definition. Others
believe that the new definition was arbitrary and capricious, and that
it violated the ARA. Some respondents wanted the reference ``to the
Government'' omitted because potential economic losses to anyone should
be considered. Others wanted the definition to apply to county- or
State-declared emergencies because such actions are aligned with the
Department philosophy of cooperation, consideration, and collaboration
with local governments.
Response. The ARA does not provide a statutory definition for
emergencies nor does it specify particular criteria for making such
determinations. The definition in the 1993 rule attempted to provide
the necessary guidance. Experience has shown there is a need for
refinement and clarification because of the belief by some that
emergencies were limited to those situations included as examples. The
result has sometimes been additional taxpayer cost when timber could
not be sold, but was still in need of removal for fuel reduction. Fire-
impacted forest ecosystems and damaged watersheds impose a variety of
environmental and economic costs to communities, particularly when
immediate action is not taken. These implementation delays often result
in lost opportunities for the Department to address resource problems
in an environmentally sound and fiscally responsible manner. The
Department believes the intent of an emergency situation determination
is to allow immediate implementation of all or part of a proposed
action when necessary to remedy these problems.
Comment. In addition to comments related to emergencies discussed
above, one commenter suggested changing the definition of the Appeal
Deciding Officer to specify that the Appeal Deciding Officer is only
one level above the ``decisionmaking officer's'' (Responsible Official)
position.
Response. After careful consideration, the Department concurs. The
Department believes that it is appropriate that the position deciding
an appeal should be at the field level. The final rule reflects this
change. A corresponding change is made in Sec. 215.8 Appeal Deciding
Officer.
Comment. Other commenters believed there was a need for both
further clarification and new definitions.
Response. The final rule adds 10 new definitions that did not
appear in the 1993 rule. The final rule also revises 13 definitions,
removes 4 definitions, and leaves 4 definitions unchanged from the 1993
rule. The Department believes these changes will help clarify the
requirements and intent of the rule.
The 10 new definitions are: Address, Appeal disposition, Emergency
situation, Lead appellant, Name, National Forest System land,
Newspaper(s) of record, Projects and activities implementing a land and
resource management plan, Substantive comments, and Transmittal letter.
The 13 revised definitions are: Appeal, Appeal Deciding Officer,
Appeal period, Appeal record, Appeal Reviewing Officer, Appellant,
Categorically excluded (CE), Comment period, Decision documentation,
Environmental Assessment (EA), Forest Service line officer, Proposed
action, and Responsible Official.
The 4 removed definitions are: Decision document, Decision Memo,
Interested party, and Proposed timber harvest categorically excluded
from documentation under Forest Service Handbook 1909.12, section 31.2,
paragraph 4.
The 4 unchanged definitions are: Decision Notice (DN),
Environmental Impact Statement (EIS), Finding of No Significant Impact
(FONSI), and Record of Decision (ROD).
Proposed section 215.3 discussed projects and activities subject to
legal notice and opportunity to comment.
Comment. Respondents questioned the term ``nonsignificant amendment
to a land and resource management plan'' (part 219) and whether
``private party actions'' are subject to this part.
Response. The term ``nonsignificant amendment to a land and
resource management plan'' is a term used in the Department's 1982
implementing regulation at part 219 for the National Forest Management
Act (as discussed in the Background section). Any proposed action
implementing a land and resource management plan and resulting in a
Decision Notice (DN) or Record of Decision (ROD) is subject to part
215, including those referred to by respondents as ``private party
actions'' and ``private projects,'' assuming that the respondents were
referring to special use authorizations.
Proposed section 215.4 revised current regulatory text concerning
actions not subject to legal notice and comment. The proposed rule
redefined paragraph (b) on categorical exclusions and added paragraph
(d) addressing determinations by the Responsible Official concerning
revision of an environmental assessment. Proposed paragraph (a)
excluded from notice and comment draft environmental impact statements
(EIS) because notice and comment procedures are provided pursuant to
CEQ's regulations at 40 CFR parts 1500-1508.
Comment. Those commenting believed that the rule should state that
these documents are subject to notice and comment but clarify that it
may be a different mechanism.
Response. After review of the comments, the Department concurs that
it may be confusing to say that draft EISs are excluded from notice and
comment. In the final rule, proposed paragraph (a) is now Sec.
215.3(b) and the remaining paragraphs in Sec. 215.4 are redesignated
accordingly.
Comment. Respondents requested clarity or questioned all of the
actions not subject to legal notice and comment.
[[Page 33585]]
Proposed paragraph (b), which discussed proposed actions categorically
excluded from documentation in an environmental assessment (EA) or
environmental impact statement (EIS), generated the majority of the
comments related to this section. Respondents supportive of this
provision felt it was consistent with the intent and purpose of the
ARA. Those opposed raised a variety of concerns, including their belief
that categorical exclusions not being subject to this part would
increase litigation, exempt a majority of projects from comment, and
preclude proper analysis.
Some questioned specifically why Categorical Exclusion 4, Timber
Harvest, is no longer included in this section.
Response. While respondents questioned all of the actions not
subject to legal notice and comment, it should be noted that only one
is new; the remainder have been in place since the rule was promulgated
in 1993 (58 FR 58904). Regarding categorical exclusions (paragraph
(b)), Congress did not express a specific intent regarding where the
``line should be drawn'' regarding which activities would be subject to
notice, comment, and appeal. While both agency policy in FSH 1909.15
and regulations at 40 CFR 1508.4 made provision for public involvement
in categorically excluded actions for many years prior to passage of
the ARA, Congress knew that not every decision of the Forest Service
was subject to appeal before they passed the ARA. There was no
indication in the ARA 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. It is evident in the language of the ARA
that Congress granted the Secretary authority to establish a flexible
process through rulemaking. The Department 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. The Department believes that
both the current and revised 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. Further, this assumption is
supported by the fact that during the 10 years of implementation of the
current regulations, Congress has not sought to amend the ARA to adjust
the agency's implementation.
It is important to note that, absent a statutory 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 for which Congress intended to apply additional notice,
comment, and appeal requirements given the generally minor potential
for environmental effects. By their very nature, activities that have
been categorically excluded generally have no significant environmental
effect. Proposed actions that are categorically excluded 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, decision documents
or project files are not required by Forest Service procedures to be
maintained for many categorical exclusions. Congressional intent was to
streamline the appeal process, not entangle the agency in a costly and
time-consuming exercise for minor decisions by Forest Service
decisionmakers. While projects and activities that the Forest Service
categorically excludes are not subject to this rule, nothing in this
part exempts them from NEPA. Agency procedures at FSH 1909.15, Chapter
10, section 11 state that, ``Although the Council on Environmental
Quality (CEQ) Regulations require scoping only for EIS preparation, the
Forest Service has broadened the concept to apply to all proposed
actions.'' The Department believes that including affected and
interested individuals in project planning early in the process is more
effective than applying the additional procedures for notice, comment,
and appeal contained in this rule and that applying the provisions of
this rule to categorically excluded actions is neither intended nor
required by the ARA. Thus, proposed activities that are categorically
excluded are exempt from the final rule.
Regarding Categorical Exclusion 4, Timber Harvest, the preamble of
the proposed rule discussed Categorical Exclusion 4 being removed
because the Forest Service no longer used a timber harvest categorical
exclusion of that nature. That situation remains true. However,
subsequent to publication of the proposed revision to part 215, the
Forest Service published proposals for new categorical exclusions for
limited timber harvest (67 FR 1026, January 8, 2003) and for fire
management activities (67 FR 77038, December 16, 2002). It is important
to note that the proposed categorical exclusions are not of the same
nature and not intended to replace the former Categorical Exclusion 4.
These new categorical exclusions are limited by size and application
and are more specific about the types of harvest methods when compared
to the Forest Service's former Categorical Exclusion 4. The proposed
categorical exclusions are, therefore, much more limited in scope than
the former Categorical Exclusion 4.
Comment. Several comments referenced the Heartwood, Inc. v. United
States Forest Service litigation, Civ. No. 99-4255 (S.D. Ill).
Response. On September 15, 2000, a Federal District Court approved
an agreement to settle litigation challenging the Department's 1993
regulations at 36 CFR part 215 implementing the ARA. In that agreement,
the Forest Service agreed to provide notice, comment, and appeal
opportunities for certain defined categories of projects and
activities. The Forest Service agreed to make these procedural
opportunities available, first through a nationwide directive published
in the Federal Register. On October 17, 2000, the Forest Service, in
compliance with section I(A) of the settlement agreement, published the
nationwide directive in the Federal Register (65 FR 61302) announcing
the terms of the settlement and notifying the public that notice,
comment and appeal procedures would be applied to the projects and
activities set forth in the settlement agreement for decisions made
after October 24, 2000. Second, the Forest Service agreed to issue an
interim final rule announcing the same procedural changes, with
opportunity for public comment, within 5 months from the date the
District Court issued an order approving the terms of the settlement.
The settlement anticipated that a subsequent rulemaking process, with
an opportunity for public comment, would supersede these interim
procedures.
On September 27, 2000, several groups filed motions with the
District Court to intervene and set aside the settlement agreement. The
District Court subsequently allowed the intervention and on February 6,
2001, the District Court vacated the order approving the settlement
agreement. In response, the Forest Service reinstated the procedures
for notice, comment, and appeal, as they
[[Page 33586]]
existed prior to the settlement. The Heartwood plaintiffs appealed the
District Court's orders involving intervention and setting aside the
settlement agreement. On January 14, 2003, the United States Circuit
Court of Appeals for the Seventh Circuit reversed and remanded the
District Court's intervention order and vacated the District Court's
February 6, 2001, order that vacated the settlement agreement.
During the pendency of the Heartwood appeal in the Seventh Circuit,
the Forest Service commenced the current rulemaking process. This
process was envisioned by the parties to the settlement as a final step
in addressing the Forest Service's 1993 rule governing notice, comment,
and appeal procedures at part 215. In other words, the Heartwood
settlement resolved those plaintiffs' legal challenge to the Forest
Service's 1993 rule for notice, comment, and appeal at part 215 by
establishing interim procedures that provided additional notice,
comment, and appeal opportunities for a set of defined types of
activities, that, under the 1993 rule, would not be required. These
interim measures, however, would remain viable only as long as the 1993
rule was in place.
Prior to the District Court's vacation of the settlement and
subsequent to the Seventh Circuit's reinstatement of the settlement,
the Forest Service began implementation of the settlement agreement's
``initial commitment'' phase allowing for notice, comment, and appeal
of certain projects and activities that may not have been previously
subject to these procedures. However, the current rulemaking for part
215 constitutes a step anticipated by the settlement agreement whereby
the Forest Service would promulgate new regulations that would replace
both the existing regulations and the interim measures set forth in the
settlement agreement. This rulemaking was commenced during the time
that the settlement agreement was vacated, but was anticipated by all
parties as a final step that would supersede the interim procedures
provided by the settlement agreement. Therefore, upon the effective
date of this final rule, the Forest Service will cease to implement the
procedures set forth in the ``interim'' provisions and the settlement
agreement will no longer have any applicability.
Comment. Other paragraphs in Sec. 215.4 that generated comments
were proposed paragraphs (d), (e), and (f). Some commenters felt that
determinations not to revise an EA or supplement an EIS, based on new
information or changed circumstances, should be subject to notice,
comment, and appeal. Comments related to proposed paragraph (e)
included the belief that Forest Service Manual and Handbook changes
should be subject to this rule. Those expressing concerns about
proposed paragraph (f) questioned why nonsignificant amendments to a
land and resource management plan made separately were excluded from
notice and comment.
Response. With regard to proposed paragraph (d), determinations
regarding whether or not to revise an EA are not ``decisions'' of the
nature discussed in the ARA. Guidance for making such determinations is
found in FSH 1909.15, Chapter 10, section 18. With regard to paragraph
(e), changes to the Manual and Handbooks are not subject to this part
because they also are not projects or activities implementing a land
and resource management plan. Similarly, in regard to proposed
paragraph (f), these types of amendments are not associated with a
proposed action; therefore, they are not the type of decision discussed
in the ARA. However, as discussed above, they are subject to either the
objection process of Sec. 219.32 or the administrative appeal and
review procedures of part 217 in effect prior to November 9, 2000 (see
36 CFR parts 200 to 299, Revised as of July 1, 2000).
Proposed section 215.5 described the requirements for legal notice
of proposed actions and the opportunity to comment. Proposed paragraph
(a) gave the Responsible Official discretion to determine the most
effective timing for providing the 30-day comment period.
Comment. Those favoring the proposed change believed that it would
help focus participation earlier in the process and allow for more
effective decisionmaking. Those who disagreed thought the proposed
change would reduce the public's ability to be involved, was contrary
to NEPA, and were concerned that it would be applied unevenly. Some
respondents wanted a longer comment period, while others wanted a
shorter one.
Response. It is critical to achieving the goals of the ARA that
those interested in or affected by a proposed action make their
concerns and objections known to the Responsible Official when they can
be considered and responded to meaningfully, i.e., before a decision
has been made. The change in the final rule is intended to clarify and
highlight this important point. And, allowing the Responsible Official
flexibility in determining when to give legal notice for the
opportunity to comment meets the intent of the ARA. It provides a
clearly defined, uniform period when public comment on specific Forest
Service projects and activities is solicited. Comments referring to the
``removal of the current two or three scoping periods allowed
presently'' lead the Department to believe further clarification is
needed here to differentiate between the notice and comment provisions
of this rule pursuant to the ARA and scoping pursuant to NEPA. The 30-
day comment period in this section meets the requirements of the ARA.
This rule is not related to nor does it affect anything in the
implementing regulations for NEPA (40 CFR parts 1500-1508) or agency
policy in FSH 1909.15. Further, nothing in the proposed rule or this
final rule inhibits public participation in project planning. In the
case of EISs, the Department has chosen to meet the ARA requirements by
utilizing the notice and comment period on a draft EIS required by 40
CFR parts 1503 and 1506.10 rather than provide two separate comment
periods. Forest Service Handbook 1909.15 and 40 CFR parts 1500-1508 do
not specify a comment period for EAs.
Proposed section 215.5, paragraph (b) described giving notice. One
proposed change was that the actual date the comment period ended would
not be stated in the legal notice. Other changes included a provision
for accepting electronic comments, specifying that the 30 days could
not be extended, and noting that appeal eligibility is tied to
providing substantive comments during the 30-day comment period.
Comment. Those responding had concerns about not publishing the
actual end date of the comment period in the legal notice and not
allowing for extension of the 30-day period.
Response. Currently, the rule directs that the last date for
submission of public comment must be published. As a result, in many
cases the agency has had to estimate the date of publication when
preparing legal notices. While the agency can request that newspapers
publish legal notices on a certain date, a publication date is not
guaranteed. When publication occurs on a different date than estimated,
the result has been conflicting dates and confusion. The Department
believes that removing this requirement resolves the potential for
conflicts and leaves all parties with the same information.
In the final rule, proposed paragraph (b)(1)(iv) is modified to
apply only to proposed actions documented in an EA. A new paragraph
(b)(1)(v) is added for proposed actions documented in draft EISs, and
the remaining subparagraphs are redesignated accordingly. These changes
are made to accommodate the change discussed in Sec. 215.4 above. New
paragraph (b)(1)(vii) is modified to say
[[Page 33587]]
that the legal notice shall include the business hours for the
Responsible Official's office for those wishing to hand-deliver their
comments. The final rule also modifies paragraph (b)(2)(ii) to state
that if the proposed action is a Regional Forester or Chief's decision,
notice shall be given in the appropriate newspaper(s) of record for the
affected Forest Service unit(s) and to explicitly state that the
newspaper of record is the exclusive means for calculating the time to
submit comments for EAs and the Notice of Availability in the Federal
Register is the exclusive means for calculating the time to submit
comments for EISs. Here and throughout the rule, the term ``principal
newspaper'' is changed to ``newspaper of record.'' While the term
``principal newspaper'' has been used since the rule was promulgated,
the Department believes the term ``newspaper of record'' better defines
this concept.
Proposed section 215.5, paragraph (c) described the requirements
regarding the content of comments, including the submission of
substantive comments. Other changes included requiring signatures and
clarifying where and how oral comments will be accepted. Also included
was a provision noting that if an organization provides comments, then
only the organization is eligible to appeal. Individual members of the
organization would not be eligible to appeal simply by membership in
that organization.
Comment. Those supporting the changes thought they would be
instrumental in ensuring the Forest Service is aware of who is
providing comments and their specific issues. Those disagreeing with
the changes expressed concerns regarding the signature requirement and
oral commenters. Several respondents questioned why an organization's
comments did not apply to an individual member's appeal.
Response. Because appeal eligibility is linked to commenting, the
Department must be able to verify who submitted substantive comments.
However, after reviewing the public comment on the proposal to require
a signature, the final rule clarifies that verification of the
commenter's identity is required for appeal eligibility but that a
signature will normally satisfy that requirement. If a signature is not
provided or is illegible, the commenter may be asked to verify
authorship. With regard to those who provide oral comments, the final
rule addresses the concern of verification in the same manner as those
providing comments by other means.
Concerning the comments about why an organization's comments did
not apply to an individual member's appeal eligibility, the ARA
discusses ``a person who was involved in the public comment process
though submission * * * of written or oral comments.'' The Department
believes an organization is its own entity for purposes of submitting
comments. There is nothing in this section that prohibits individual
members of an organization from submitting the same or similar
comments.
After additional review of the proposed rule, the Department
determined it would add clarity if the requirements for legal notice
were separate from the requirements for commenting. Therefore, in the
final rule this section is now titled ``Legal notice of proposed
actions'' and is reorganized. Paragraph (a) outlines the Responsible
Official's duties and paragraph (b) describes legal notice procedures.
While paragraph (a) is new, the contents are not. Proposed paragraph
(c) is moved to Sec. 215.6.
Proposed section 215.6 set out procedures for the consideration of
comments, emphasizing that while the Responsible Office accepts all
comments, only substantive comments would be considered for project
planning purposes.
Comment. The proposed requirement that comments must be substantive
generated a number of comments. While some were supportive, ``a must to
have responsible and constructive comments,'' the majority did not
support this change. Those disagreeing gave a variety of reasons,
including: The definition for ``substantive comment'' was too vague; it
limited the public's ability to participate; substantive issues may
arise after the comment period is past; the Department would label
comments in opposition to the proposed action as non-substantive and
therefore unfairly limit the public's ability to appeal; and the
Department wants to reduce the number of comments it has to consider.
The question of who would decide whether or not a comment was
substantive was also asked.
Response. As discussed in a Congressional colloquy during enactment
of the ARA and in the Federal Register notice announcing the proposed
revision to this rule (67 FR 77451), the notice and comment period is
intended to solicit information, concerns, and any issues specific to
the proposed action and to provide such comments to the Responsible
Official before the decision is made. Experience has shown that when
comments are received that are not within the scope of the proposed
action or are not specific to the proposed action, or do not include
supporting reasons for concerns, they are not useful for consideration
in project planning. The intent in requiring substantive comments is to
obtain meaningful and useful information from individuals about their
concerns and issues, and use it to enhance project analysis and project
planning. If new information comes to light after the decision, the
agency provides guidance for this eventuality in FSH 1909.15, Chapter
10, section 18.
In the final rule, this section is now titled ``Comments on
proposed actions.'' Paragraph (a) discusses the opportunity to comment
in terms of time period, computation of the time period, comment
requirements, and evidence of timely submission (proposed Sec.
215.5(b)(5)). In conjunction with the changes discussed in proposed
Sec. 215.4 and Sec. 215.5 concerning draft environmental impact
statements (EIS), the final rule modifies paragraph (a)(1)(i),
addressing only environmental assessments (EAs); adds a new paragraph
(a)(1)(ii) addressing draft EISs; and redesignates the remaining
paragraphs accordingly. Paragraph (a)(2) is modified to accommodate
computation of both time periods. Paragraph (a)(4)(i) is rewritten to
clarify the difference between EAs and EISs as discussed earlier and to
indicate that the end of the calendar day is 11:59 p.m.; paragraph
(4)(ii) is clarified to indicate that for hand-delivered comments the
end of the calendar day is the close of the business day; and paragraph
(4)(iii) is rewritten to be consistent with the e-mail provisions in
Sec. 215.15(c), clarifying that when comments are submitted
electronically, the sender should receive an automatic acknowledgment.
This was an oversight in the proposed rule. The final rule revises the
definition of the term ``substantive comments'' (Sec. 215.2) to
clarify the meaning and address the concerns about this definition.
And, Sec. 215.5(a)(6) clarifies that it is the Responsible Official's
responsibility to determine if comments received meet the definition of
``substantive comments.'' Paragraph (b) discusses consideration of
comments (proposed Sec. 215.6).
Proposed section 215.7 detailed the content of the legal notice for
the decision. Proposed paragraph (a) changes included a provision that
the ending date for the appeal period would not be stated in the legal
notice and a provision for acceptance of electronic appeals.
Comment. Concerns similar to those expressed for Sec. 215.5
regarding legal
[[Page 33588]]
notice, were expressed in regard to not having the deadline to file an
appeal stated in the legal notice. Those wanting the deadline published
said it is just as easy for the Forest Service to calculate as it is
for members of the public and that not publishing it places an undue
burden on potential appellants. Some respondents stated that the appeal
period should start when the appeal decision is made; others wanted it
to state that a dated photocopy of the legal notice is an exception to
not using information provided by any other source. Some commenters
objected to what they described as the Forest Service requiring them to
subscribe to each newspaper of record for every Forest for which they
have an interest. Some respondents stated that the appeal period should
start when the appeal decision is made.
Response. While the Department is sympathetic to those having to
subscribe to several different newspapers of record, the requirement
for publishing the legal notice in the newspaper of record is not a
change. The Department believes the rule as stated is the most accurate
method for potential appellants to know the filing end date. The
Department made the decision to link the appeal period to publication
of a legal notice when the final rule was promulgated in 1993 to give
those wishing to appeal the benefit of a level playing field, even
though the ARA does not require a notice as it does for requesting
comments. There is no need to address acceptance of a dated photocopy
of the legal notice because nothing in this paragraph prohibits it. In
fact, the legal notice is the exclusive means for calculating the time
to file an appeal. The reasons for not stating the date of publication
in the legal notice are addressed in the response to Sec. 215.5. The
Department believes that past inconsistencies in informing the public
of the correct date resulted in more problems than will occur with
having the appellant calculate the appeal filing deadline.
Proposed section 215.7, paragraph (b) required the decision
documentation to be mailed to those who requested it and those who
commented.
Comment. Respondents questioned when the mailing of the decision
document would occur, being of the opinion that it should occur before
the legal notice so that time would not be lost within the 45-day
appeal period. Other respondents wanted a requirement that each unit
keep a list of persons who are interested in Forest Service
decisionmaking and mail them a copy of all decisions.
Response. Inadvertently, the order of the paragraphs made it appear
that the notice would be published prior to mailing the decision
notice. In the final rule, proposed paragraphs (a) and (b) are reversed
to indicate that the documents should be mailed prior to the legal
notice being published. New paragraph (b)(2)(i) is modified to include
the business hours for the Deciding Officer's office for those wishing
to hand-deliver their appeals and paragraph (b)(2)(ii) now states that
the newspaper of record is the exclusive means for calculating the time
to submit comments. Maintaining a list of persons interested in Forest
Service project planning is outside the scope of this rulemaking.
However, some units may choose to maintain such a list.
Proposed section 215.8 discussed decision implementation.
Comment. Comments were received on proposed paragraph (b), opposing
automatic stays of projects during the appeal process.
Response. The stay provisions in paragraph (b) implement a
statutory requirement of the ARA and cannot be changed. In the final
rule, paragraph (a) is rewritten for clarity and proposed Sec. 215.8
is now Sec. 215.9.
Proposed section 215.9 set out procedures for emergency situations
in a separate section for ease of use in finding all pertinent
information quickly. Additionally, the proposed rule clarified that an
emergency situation determination can be delegated to the Regional
Forester or Station Director, and the examples were removed.
Comment. Those supporting the proposed change stated that it made
sense to place the decision at the local level with those familiar with
the situation and that it would improve the Forest Service's ability to
address emergency situations in a timely manner. Some of those not
supporting this change said they believed that it was not allowed by
the ARA and expressed the concern that it may not be equally applied
and could be abused. Some of those commenting asked that some of the
examples be retained.
Response. Authorities granted by statute to the Chief may be
delegated to subordinate officials within the Forest Service to carry
out, unless the Chief specifically reserves the authority or is
prohibited by law, regulation, or order from delegating the authority.
The ARA does not prohibit delegation of the authority granted by this
act. Delegations of authority and responsibility to Forest Service
officials are provided in the agency's regulations and directives, with
the broad delegations set out in Forest Service Manual (FSM) Chapter
1230. This chapter delegates to the Associate Chief the authority to
perform all duties and exercise all functions vested in the Chief
(except for those the Chief reserves or is prohibited from delegating).
The final rule has been revised to acknowledge that the Associate
Chief, by virtue of the authority inherent in this position, is
authorized to carry out the Chief's responsibilities related to
determinations of emergency situations. The final rule also identifies
the officials to whom the Chief or Associate Chief may delegate the
authority for emergency situation determinations. The Secretary of
Agriculture and the Chief expect those responsible for making emergency
situation determinations as provided in this rule do so in a judicious
manner, applying the provisions of this rule in a professional and
equitable way.
The final rule clarifies that the Chief or the Associate Chief may
delegate the authority for making emergency situation determinations
and that this authority may be delegated only to the Deputy Chief for
National Forest System and Regional Foresters. The rule also clarifies
that persons acting in these positions may exercise this authority for
making emergency situation determinations only when they are filling
vacant positions and have been formally delegated full acting authority
for the positions; persons acting in positions during temporary
absences of the incumbents shall not be delegated this authority.
Station Directors were inadvertently included in the proposed rule, and
this reference is removed in the final rule. Also, proposed Sec. 215.9
is redesignated Sec. 215.10 in the final rule; paragraph (a) is split
in the final rule into paragraph (a), titled Authority, and paragraph
(b), titled Determination.
Comment. Some of those commenting wanted clear standards
established for making emergency situation determinations. Some
respondents thought that the determination should be subject to appeal,
while other respondents suggested that appeals should not be allowed
when an emergency situation determination has been made. Some
respondents commented that when an emergency situation is not stayed it
should be declared the final agency action so that the appellant is
free to go to court.
Response. There is no indication that Congress intended that the
determination itself would be subject to appeal. The final rule sets
out the procedures and criteria by which agency officials will
determine whether an emergency situation exists. The ARA itself makes
an exception to the
[[Page 33589]]
automatic stay provision for emergency situations. While the
determination that an emergency situation exists eliminates the
automatic stay, it does not exempt the activity from appeal.
Proposed section 215.9, paragraph (b) clarified when implementation
of the project or activity may begin and differentiated between
decisions documented in a ROD and a DN.
Comment. Some commenters suggested that the implementation
requirements for decisions documented in a DN be the same as for a ROD.
Response. The regulations at 40 CFR 1506.10(b)(2) govern
implementation of decisions documented in a Record of Decision.
However, this rule governs implementation of decisions documented in an
appeal. In the final rule, this paragraph is now paragraph (c) of Sec.
215.10.
Proposed section 215.9, paragraph (c) clarified how legal notice
for emergency situations would occur.
Comment. This paragraph elicited concern that the Responsible
Official could notify the public of emergency situation determinations
only when the legal notice of the decision was published.
Response. The Responsible Official has the discretion to request an
emergency situation determination as the need arises. However, if an
emergency determination has been requested or determined when public
comment is sought on a proposed action (Sec. 215.5), then the
Responsible Official is required to so state in the legal notice. In
the final rule, this paragraph is now paragraph (d) of Sec. 215.10.
Comment. As noted in Sec. 215.2 above, the proposed rule included
substantial loss of economic value as a consideration in determining an
emergency situation. Some respondents commented that the Department has
not demonstrated the need for using economics as a factor in emergency
situation determinations. Quite a few comments disagreed with adding
economic considerations as a factor in determining an emergency
situation.
Response. These comments are addressed earlier in Sec. 215.2.
The final rule designates proposed Sec. 215.9 Emergency situation
as Sec. 215.10.
Proposed section 215.10 addressed decisions subject to appeal. Two
paragraphs were added: paragraph (a)(2) concerning new decisions
resulting from new information or changed circumstances and paragraph
(a)(3) concerning decisions affecting National Forest System lands made
in conjunction with other Federal agencies.
Comment. Commenters responding to proposed paragraph (a)(2)
expressed the opinion that if a new decision results from new
information or changed circumstances, then the entire decision should
be subject to appeal, not just the portion that changed.
Response. Agency guidance in FSH 1909.15 Chapter 10, section 18
provides that upon completion of a revised EA, the original decision
must be reconsidered based on the EA and FONSI. When a Responsible
Official issues a new decision, it may address all or a portion of the
original decision. It is this new decision that is subject to appeal.
Comment. Some respondents suggested that proposed paragraph (b),
regarding holders of special use authorizations, should be deleted.
They believed that it allowed such parties to appeal the same decision
twice using the two appeal processes.
Response. It is appropriate to have paragraph (b). Many decisions
affecting special use authorizations implement a land and resource
management plan, meeting the intent of the ARA. Allowing a holder of a
permit to choose between part 251, subpart C and this rule does not
make two methods of appeal available. Paragraph (b) specifically says
that holders may use one appeal process or the other but not both for a
given decision.
In the final rule, proposed paragraphs (a)(1)-(3) are designated
(a)-(c), proposed paragraph (b) is designated (d); and proposed Sec.
215.10 is designated Sec. 215.11.
Proposed section 215.11 listed decisions not subject to appeal. Two
new paragraphs were added in the proposed rule: (b) new information not
requiring a new decision, and (g) concurrences and recommendations to
other Federal agencies.
Comment. Some of those commenting on the proposed section requested
that additional types of decisions be included in this section. They
cited the following: Emergency situations; catastrophic damaged timber;
certain low impact operations; decisions that may affect treaty rights
and trust resources (federally recognized Indian tribes); and a
determination that a new decision is not needed when an EIS is modified
(paragraph (b)). Other respondents thought there should be fewer
decisions listed, citing all the decisions currently not subject to
appeal.
Response. The decisions and actions listed in Sec. 215.11 as not
subject to appeal, with the exception of paragraphs (b) and (g), have
been in effect since 1993. The Department has reviewed what is listed,
as well as the additions and deletions suggested, and believes those
listed in the final rule meet the intent of the ARA.
Comment. A number of commenters said they believed that proposed
paragraph (e) regarding categorical exclusions should not be included.
Response. Similar comments were received about categorical
exclusions not being subject to notice and comment. All comments
concerning categorical exclusions are addressed in Sec. 215.4.
Comment. Some of those commenting believed that the addition of
proposed paragraph (g) regarding concurrences and recommendations to
other Federal agencies, meant that Forest Service ``terms and
conditions'' under section 4(e) of the Federal Power Act (FPA) would no
longer be appealable under this rule.
Response. This paragraph was added to clarify situations when the
agency was asked for concurrences and/or recommendations on other
Federal agencies' projects where the Forest Service had no jurisdiction
for making a decision. The preamble for the proposed rule incorrectly
referred to ``concurrences and recommendations from other agencies''
instead of ``concurrences and recommendations to other agencies'' as
stated correctly in the text of the proposed rule.
The addition of proposed paragraph (g) ``concurrences and
recommendations to other agencies'' has no bearing upon the Forest
Service's issuance of terms and conditions under section 4(e) of the
FPA. The proposed language was intended to clarify that there would be
no appeal opportunity in those instances where the Forest Service is
only concurring with another agency's decision or issuing non-binding
recommendations. The proposed language of paragraph (g) is inapplicable
in the FPA context, as the Forest Service's issuance of 4(e) terms and
conditions does not constitute a ``concurrence'' with the Federal
Energy Regulatory Commission's (FERC's) licensing decision and is
binding in nature. The Forest Service is in the process of reviewing
its Hydropower Manual and Handbook, in coordination with the current
ongoing FERC hydropower licensing rulemaking and will clarify portions
addressing NEPA disclosure documents.
Additional comments on section 4(e) terms and conditions of the FPA
were beyond the scope of this rule; e.g., comments suggesting how the
Forest Service should develop 4(e) terms and conditions and what should
and should
[[Page 33590]]
not be included. These comments were referred to appropriate agency
officials.
The final rule makes clear in paragraph (a) that if an amendment,
revision, or adoption of a land and resource management plan has a
project embedded in it, the project decision will be subject to this
rule after the appeal/objection process is completed on the land and
resource management plan decision. Proposed Sec. 215.11 is designated
as Sec. 215.12 in the final rule; paragraph (c) is split and a new
paragraph (d) is added; and paragraphs (d) through (g) in the proposed
rule are redesignated as (e) through (h) in the final rule.
Proposed section 215.12 designated who can appeal. The proposed
revision removed the provision for ``interested party'' because the
Department does not believe the provision fulfills the intent of the
ARA.
Comment. Comments both supported and opposed this change. Those
supporting the change stated that interested parties should be involved
early in project planning. Those opposed believed that this change
could lead to more appeals and that it would restrict public
involvement. They believed there is no other way for non-appellants to
be involved in settlement meetings with appellants. Others said that
interested parties provide helpful information to the Reviewing
Officer. Some of those commenting believed that the appeal process was
a continuation of public involvement. There was a suggestion that
parties who receive funding from the Forest Service or who have a
contractual involvement with the proposed action should not be allowed
to appeal Forest Service decisions.
Response. The ARA provides distinct provisions regarding
predecisional notice and comment and post decisional appeal
opportunities. The intent is for interested persons to participate
early in the project planning process and not wait until after the
decision has been issued to become involved. While the appeal process
is an opportunity to voice concerns about a decision, it is more
advantageous to both the Responsible Official and the public for those
who have helpful and important information that could affect a
decision, to bring it forward during project planning. The belief that
informal disposition meetings between the Responsible Official and an
appellant are ``settlement agreement meetings'' is a misconception. The
informal disposition meeting between an appellant(s) and Responsible
Official is not for the purpose of making a new decision. Rather, it is
an opportunity for the Responsible Official and appellant(s) to discuss
the appeal, agree on facts, and explore opportunities to resolve the
issues by means other than formal review and decision on the appeal. As
an example, there have been occasions when appellants had a better
understanding of the decision after meeting with the Responsible
Official and withdrew their appeal.
Proposed section 215.12, paragraph (a) restricted appeal
eligibility to those who submitted substantive comments during the
comment period and included a provision making it clear that membership
in an organization submitting comments on behalf of the organization
does not grant appeal eligibility to individuals with membership in
that organization.
Comment. Those supporting the change stated that it facilitated the
intent of the ARA and strengthened constructive and meaningful public
participation. Some respondents suggested that the Forest Service
should impose additional requirements for those who wish to appeal.
Those opposing the change cited such reasons as substantive comments
are not easily defined; it denies ``standing'' to appeal to persons who
submitted comments deemed to be nonsubstantive or ``expressed an
interest'; and it was not right to not allow individual members of an
organization to appeal when the organization submitted comments because
the organization represents its members.
Response. The Department believes that an ``expression of
interest,'' such as someone who simply requests a copy of the decision,
does not meet the Congressional intent for participation by those who
have the ``right to appeal'' as expressed in the ARA language. This
conclusion is based on a reading of those portions of the ARA 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. One of the
basic goals of this rulemaking was to encourage early and meaningful
public participation when it is most useful to the Responsible Official
during project planning. The proposed rule restructured both the
comment and appeal procedures to encourage early and meaningful public
involvement by requiring the submission of substantive comments and
linking appeal eligibility to those who submitted substantive comments.
The Department believes it is appropriate to require individual members
of an organization to meet appeal eligibility standards. The ARA itself
does not mention ``organizations''; it makes reference to ``a person
who was involved in the public comment process.'' However, as discussed
in the response to similar comments in Sec. 215.5, the Department has
always considered an organization the same as a ``person.'' While the
Department believes it is appropriate to accord an organization
eligibility to appeal as an organization when it submits substantive
comments, it is not appropriate to give individual members in that
organization appeal eligibility just because their organization
submitted comments.
Proposed section 215.12, paragraph (b) clarified that if an appeal
listed multiple names or multiple organizations, each individual or
organization listed must meet the test of having submitted comments
during the comment period.
Comment. One commenter asked if a new group formed of individuals
and groups who provided comments could appeal.
Response. The ability to appeal as a newly formed group rests on
whether each member of the group met the comment requirements as
individuals during the notice and comment period.
Proposed section 215.12, paragraph (c) does not allow Federal
agencies to appeal.
Comment. Those who commented on this paragraph suggested Federal
agencies should have the opportunity to appeal under this part.
Response. Other avenues are available to Federal agencies for
working through concerns they might have with a proposed action. It is
more appropriate, and in fact expected, that the Department and other
Federal agencies work cooperatively during project planning.
Proposed section 215.12, paragraph (d) allowed Federal employees to
appeal as individuals but limited the information they could use to
that information already released to the public.
Comment. One commenter was opposed to the limitation, stating that
information available under the Freedom of Information Act (FOIA), even
if not released to the public, should be available to Federal employees
to use.
Response. The Department agrees, and this was the intent of the
proposed paragraph. The final rule clarifies this point. Additionally,
the final rule clarifies that the requirements of paragraph (a) of this
section must be met also.
In the final rule, proposed section Sec. 215.12 is designated as
Sec. 215.13.
[[Page 33591]]
Proposed section 215.13 set forth where appeals are filed.
Comment. One supportive comment was received for the inclusion of
Research Station Directors as Responsible Officials.
Response. In the final rule, the table in proposed Sec. 215.13
showing Appeal Deciding Officers is revised to reflect the change
discussed in Sec. 215.2. In past appeal rules, appeals were filed with
the decisionmaker's direct supervisor. When the 1993 rule was
promulgated, the Forest Service thought a more centralized approach
would promote both better and more efficient appeal decisionmaking.
However, the ARA did not require elevating decisions to a central
point. The current rule has had unintended adverse consequences. With
the agency's decentralized organization, it has interfered with the
healthy relationship existing in the chain of command as well as
creating disincentives for collaboration at the decisionmaking level.
Therefore, in the final rule, the Appeal Deciding Officer is the next
level above the Responsible Official. And, proposed Sec. 215.13 and
proposed Sec. 215.19 are combined and designated Sec. 215.8, titled
Appeal Deciding Officer. This change is made to set forth all the
information concerning the Appeal Deciding Officer in one section.
Proposed section 215.14 discussed appeal time periods and process.
Comment. Some comments suggested additional changes such as
creating a specific entity to hear Forest Service appeals, similar to
the Department of the Interior Board of Land Appeals; requiring a
filing fee for appeal submission (to be returned if appeal is upheld);
setting a penalty proportional to any timber devaluation as a result of
delays caused by appeals that are not upheld; and setting higher fees
for Freedom of Information Act (FOIA) requests.
Response. The Department did not address the requested changes
because they are beyond the scope of this rulemaking and/or existing
authorities granted to the Department.
Proposed section 215.14, paragraph (a) set out the time period for
appeals to be filed. Proposed paragraph (b) described the computation
of the 45-day period, which includes weekends and holidays.
Comment. Some commenters suggested changes or flexibility in filing
period and in how the 45-day period is calculated, i.e., not counting
holiday or weekend days in the 45-day calculation.
Response. The ARA specifically provides that appeals must be filed
within 45 days.
Proposed section 215.14, paragraph (c) described evidence for
timely filing, including filing appeals electronically.
Comment. One comment supported electronic filing of appeals, while
another said that electronic appeals should not be allowed since an
appellant should make the effort to sign an appeal. One comment
suggested the rule address what happens if the Forest Service's ``email
goes down.'' Respondents also questioned how to determine when an
appeal is due.
Response. The proposed rule discusses how timeliness (45 days) is
determined for each of the methods available for filing appeals.
Concerning the specific requests for addressing potential problems with
various means of delivery, the rule is not the appropriate place to
address possible scenarios. Each circumstance is more appropriately
addressed on a case-by-case basis. The final rule stipulates that if
appellants do not receive an automatic acknowledgment electronically
that their filing was received, it is their responsibility to file a
timely appeal by some other method.
Proposed section 215.14, paragraph (d) specified that there will be
no time extensions.
Comment. Several commenters thought that provision should be made
allowing for extensions under certain circumstances.
Response. The ARA does not provide for time extensions. In the
final rule, paragraphs (a) and (c) are rewritten for clarity and
paragraph (d) now requires the Responsible Official to include a list
of individuals and organizations who submitted substantive comments
during the comment period. This change is linked to appeal eligibility
and dismissal. And, proposed Sec. 215.14 is designated Sec. 215.15.
Proposed section 215.15 described appeal content. Proposed
paragraph (b) of this section and proposed Sec. 215.1(b) limited
appeal issues to those raised during the comment period.
Comment. Commenters responding to this proposed paragraph expressed
both support and disagreement with the limitation. Some respondents
suggested that appeal issues should be limited to those that have a
significant effect on the environment, or should be limited to
violations of law, regulation, or policy. Those who disagreed expressed
several concerns: the inability to raise issues in an appeal that might
not arise until after the comment period; changes between a draft and
final EIS; the FONSI determination; and loss of the ability to
challenge the record.
Response. Limiting appeal issues to those raised during the comment
period was proposed as a means of encouraging early participation in
project planning rather than raising concerns for the first time after
a decision is made. However, after reviewing comments, the Department
understands and agrees with the concerns. The final rule removes the
requirement from this section and Sec. 215.1 that precluded issues
from being raised in an appeal that were not raised during the comment
period and paragraph (b) of this section is further rewritten and
reorganized. And, as discussed in Sec. 215.19 below, paragraph (b)(3)
now asks those filing an appeal with more than one individual or
organization to identify a lead appellant as defined in Sec. 215.2.
Proposed section 215.15, paragraph (c) addressed non-acceptance of
an appeal.
Comment. Those commenting opposed not accepting an appeal without a
signature, and questioned how authors of electronic appeals will be
verified. Additional criteria for not accepting appeals were suggested
also.
Response. After consideration of the comments, this paragraph has
been rewritten in the final rule clarifying the intent of requiring a
signature. The phrase ``not accept'' is replaced with ``not process,''
reflecting what was actually intended by ``not accept.'' It is
important for the Department to know the identity of appellants and how
to contact them. Not having this information has caused problems in the
past. The final rule makes clear that if an appeal is filed and the
appellant cannot be identified, and a way to contact the appellant has
not been provided, the appeal will not be processed. Further, paragraph
(c)(1) is added to clarify that if an appeal is deemed illegible for
any reason, it will not be processed. The suggested additional criteria
for not accepting appeals (a notarized signature, copy of site visit
certification, and description of economic or environmental impact the
appellant will suffer by approval of the proposed action) are contrary
to the ARA. Proposed Sec. 215.15 is designated Sec. 215.14 in the
final rule.
Proposed section 215.16 detailed when an appeal would be dismissed.
It added allowing dismissal when an appellant withdraws an appeal.
Comment. All of the comments were in the form of suggestions for
additional reasons to dismiss or to delete some of the reasons for
dismissal. One commenter cautioned that dismissal without review for
reasons of insufficient information should be employed judiciously
(paragraph (a)(8)).
[[Page 33592]]
Response. Many of the suggestions do not comply with the ARA. The
Department agrees that proposed paragraph (8) should be used only with
great care. Concerning paragraph (a)(1), it was not the intent of the
Department to imply in the proposed rule that if an attachment is
untimely, the appeal itself is untimely and would be dismissed.
Therefore, the final rule makes clear in paragraph (b) that any
additional information that is untimely will not be considered as a
part of the appeal. Proposed paragraph (b) is designated paragraph (c).
Proposed section 215.17 discussed the informal disposition process.
Comment. Two general suggestions were received. One suggested
clarifying whether the Responsible Official is to meet with each of the
appellants together or separately. A second suggested making a specific
provision for all appellants and interested parties to communicate with
the Responsible Official during the informal disposition process.
Response. The Department believes there is a better chance of
achieving a successful outcome if the rule does not regulate how such
meetings are conducted but rather allows the Responsible Official
maximum discretion and flexibility in holding informal disposition
meetings. Neither does the Department see a need to impose further
regulatory requirements regarding communications between the
Responsible Official and the appellant.
Proposed section 215.17, paragraph (a) discussed the Responsible
Official's responsibility to contact the appellant with an offer to
meet.
Comment. One comment suggested that the Responsible Official be
required to contact each appellant when an appeal listed multiple
names, while another wondered what the phrase ``as soon as
practicable'' meant.
Response. The question about contacting each appellant from an
appeal listing multiple names or organizations is clarified in the
final rule and explained more fully in Sec. 215.15 above and Sec.
215.19 below. The phrase ``as soon as practicable'' means there is an
expectation that it will be done at the earliest possible time.
Proposed section 215.17, paragraph (b) discussed the time and
location of informal resolution meetings.
Comment. Comments requested that the Forest Service build
discretion into the requirements to ensure that meetings are in a
location convenient and accessible to all parties; that time extensions
for the initial meeting should be allowed if all parties agree; and a
deadline for completion of the informal disposition process should be
specified.
Response. While not specifically requiring meetings in a location
convenient and accessible to all parties, the agency believes this
request is met with the requirement that meetings should generally be
held at a location within or near the National Forest. However, when
that is not possible, this paragraph allows for teleconference.
Concerning the timeframe comments, the ARA statutorily sets the 15-day
requirement for meeting. The timeframe for completing informal
disposition meetings is limited only by the 45-day requirement for the
appeal disposition to be completed.
Proposed section 215.17, paragraph (c) discussed the structure of
the meeting.
Comment. Many of the comments received discussed who participates
in the informal disposition meeting, including allowing ``other
participants'' at informal disposition meetings and having the meeting
open to the public. Other comments requested that the recording of
informal disposition meetings and telephone meetings be allowed.
Response. After reviewing the comments and the intent of the
informal disposition meeting as previously discussed earlier in this
section, the final rule omits the reference to ``any other
participants.'' However, meetings are still open to the public.
Telephone meetings are allowed. Recording of informal disposition
meetings is allowed; however, submitting the tape to the Reviewing or
Deciding Official is not because the Reviewing Official's
recommendation and Deciding Officer's appeal disposition must be based
on the same information that was available to the Responsible Official,
as well as the appeal.
Proposed section 215.17, paragraph (d) described outcomes.
Comment. There was a suggestion about the ``Forest Service making a
good faith effort to resolve the appeal'' should be addressed, and a
suggestion to eliminate the requirement for the Responsible Official to
advise the Appeal Deciding Officer when an appellant declines to meet.
One comment pointed out an inconsistency between paragraphs (d)(1) and
(d)(3).
Response. The Department expects Responsible Officials to meet the
intent of the ARA and put forth a good faith effort to achieve a
successful outcome at the informal disposition meeting. However, it
does not see the need to regulate this expectation. The requirement for
the Responsible Official to provide information on the outcome of the
informal disposition meeting to the Appeal Deciding Officer is
necessary as it lets both the Appeal Reviewing Officer and Appeal
Deciding Officer know whether the appeal has or has not been resolved
and whether formal review should continue. Whether or not an appellant
meets with the Responsible Official does not prejudice review of an
appeal.
The final rule is rewritten, clarifying that the only information
transmitted to the Appeal Deciding Officer is the outcome. It also
modifies paragraph (d)(3) to read ``unresolved portion,'' removing the
inconsistency pointed out in the comments.
Proposed section 215.18 described the appeal review and disposition
process. It added a paragraph clarifying procedures for the Responsible
Official when an appeal decision includes instructions and added other
clarifications regarding appeal disposition.
Comment. General comments received expressed concerns about what
should be in the appeal decision letter and availability of appeal
decisions.
Response. The Department believes it is not appropriate for a rule
to specify the information an appeal decision should include. However,
it is appropriate to provide such guidance through other means, and
this has been done through Forest Service guidance. Appeal decisions
also are posted on the Forest Service and Regional Office World Wide
Web/Internet pages.
Proposed section 215.18, paragraph (b) described the formal
disposition process.
Comment. Some of the comments received disagreed with the provision
allowing for disposing of an appeal without issuing a decision or
giving the reason for not issuing a decision. Other comments addressed
length of time (45 days) for responding to an appeal and when
notification of an appeal decision occurs.
Response. Paragraph (b)(2) was added to ensure that appellants
would be notified of the final agency action. The statutory language in
the ARA controls not only the length of time within which an appeal
decision must be issued (45 days), but also provides for the
disposition of an appeal after 45 days has elapsed without an appeal
decision. To alleviate concerns about the timing between when an appeal
decision is mailed to the appellant(s) and when implementation of the
project begins, the final rule clarifies that an appeal decision
(paragraph (b)(1)) must be sent within 5 days of its being rendered.
[[Page 33593]]
Proposed section 215.19 detailed the Appeal Deciding Officer's
authority.
Comment. Some of those commenting wanted the Appeal Deciding
Officer's independence from the Responsible Official clarified; others
sought to have the Appeal Deciding Officer publish the procedures under
which an appeal is reviewed. Some respondents thought the rule should
clarify the level of communication permissible between the Responsible
Official and the Appeal Deciding Officer, while others wanted the
difference between the Appeal Deciding Officer and Appeal Reviewing
Officer roles better defined.
Response. The Department believes the roles of the Appeal Deciding
Officer and Appeal Reviewing Officer are clearly defined in the rule.
Concerning the question about the level of communication permissible
between the Responsible Official and the Appeal Deciding Officer, one
must keep in mind the need to maintain a fair and objective review. The
Appeal Deciding Officer's decision must be based on the same
information that was available to the Responsible Official, as well as
the appeal. Therefore, in order to maintain fairness and objectivity,
discussions between the Appeal Deciding Officer and the Responsible
Official, or between the Appeal Deciding Officer and the appellant(s),
concerning the merits of the appeal are not allowed. The rule already
states that the Appeal Deciding Officer's review is based on the appeal
record and Appeal Reviewing Officer's recommendation, and Sec. 215.2
states what is included in the appeal record and its use by the Appeal
Deciding Officer.
Proposed section 215.19, paragraph (a) discussed procedural
determinations.
Comment. One suggestion was to make a provision addressing what
happens when certain situations are not addressed in the rule.
Response. The Department understands the concern and believes the
current policy of addressing unique situations on a case-by-case basis
is working. It would be impossible to identify and provide for all
possible scenarios.
Proposed section 215.19, paragraph (b) allowed the Appeal Deciding
Officer to consolidate appeals and issue one or more appeal decisions
while proposed paragraph (c) gave the Appeal Deciding Officer the
authority to select a representative when an appeal lists multiple
names and/or organizations.
Comment. Some respondents wanted clarification for dealing with
appeals by multiple groups; some wanted clarification on how paragraph
(c) relates to paragraph (b); some wanted the rule to ensure that when
multiple appeals are combined, that the combination is based on similar
issues, while others stated the Forest Service has no legal authority
to consolidate multiple appeals with multiple appellants and multiple
issues or appoint a representative. Some respondents did not see the
need for the Forest Service to appoint a representative, while others
suggested the Appeal Deciding Officer should have the discretion to
request appellants to select their own representative.
Response. There is not a direct relationship between proposed
paragraph (b) and proposed paragraph (c). For efficiency, proposed
paragraph (b) allowed the Appeal Deciding Officer to consolidate
appeals for the purpose of issuing one or more appeal decisions.
Proposed paragraph (c) allowed the Appeal Deciding Officer to appoint a
representative when an appeal lists several different organizations
and/or individuals. The Department does have the authority to implement
both paragraphs as the ARA left the discretion to the Department to
develop and implement a process. If individuals and groups meeting
appeal eligibility want to join together to appeal, the Department
agrees that it is better for them to appoint their own representative
for the purposes of communications. Therefore, in the final rule, Sec.
215.14 (b)(2)(i) now asks those filing an appeal with more than one
individual or organization to identify a lead appellant as defined in
Sec. 215.2. However, the final rule clarifies in this section that the
Appeal Deciding Officer has the authority to appoint the first
individual/organization listed if a lead appellant is not identified in
the appeal (Sec. 215.8(b)(2)(ii)).
Proposed section 215.19, paragraph (d) clarified that the Appeal
Deciding Officer's decision could be different from the Appeal
Reviewing Officer's recommendation.
Comment. The only comment on this proposed paragraph requested that
when this happens, it should be disclosed to the appellants.
Response. Currently, the rule already provides for releasing the
Appeal Reviewing Officer's recommendation after the appeal decision is
rendered. The Appeal Deciding Officer's decision is based on review of
the appeal record, including the Appeal Reviewing Officer's
recommendation, so releasing it after the decision is appropriate.
In reviewing the proposed rule, the Department determined that it
would be more efficient to combine the two sections concerning the
Appeal Deciding Officer. Therefore, the final rule combines proposed
Sec. 215.13, Where to file appeals, and proposed Sec. 215.19, Appeal
Deciding Officer's authority, into one section designated at Sec.
215.8, Appeal Deciding Officer, in the final rule.
Proposed section 215.20 discussed the Appeal Reviewing Officer's
responsibilities.
Comment. One respondent wanted to delete the Appeal Reviewing
Officer's position.
Response. The Secretary does not have the authority to remove the
Appeal Reviewing Officer from the process. The ARA mandates an Appeal
Reviewing Officer and the responsibilities.
Proposed section 215.20, paragraph (b) discussed the Appeal
Reviewing Officer's recommendation.
Comment. Some of those commenting on the proposed paragraph asked
that the Appeal Reviewing Officer address all procedural issues that
develop after an appeal is filed. Others thought the Appeal Reviewing
Officer should consult with the Responsible Official whenever there is
a question about the record; that their recommendation should always be
made public; and review procedures they must follow should be detailed.
Response. Because the authority for making the appeal decision lies
with the Appeal Deciding Officer, the Department believes it is more
appropriate for the Appeal Deciding Officer to make the procedural
decisions. While the ARA discusses the Appeal Reviewing Officer's
responsibilities, it does not mandate the details of the review
process. The Department believes that maximum flexibility should be
given to an Appeal Deciding Officer to decide what is expected from the
Appeal Reviewing Officer in terms of their recommendation. The final
rule does limit the review to the decision documentation and appeal.
The current rule already states that the Appeal Reviewing Officer's
recommendation is available once the disposition of the appeal is
concluded. The appeal process, including the Appeal Reviewing Officer's
recommendation, is intended to be an independent review at the same or
higher organizational level as the Responsible Official. The integrity
of the appeal record must be maintained consistently because the Appeal
Reviewing Officer's recommendation must be based on the same
information that was available to the Responsible Official, as well as
the appeal. To maintain a fair and objective review, communication
between the Responsible Official and the Appeal
[[Page 33594]]
Reviewing Officer, or between the Appeal Reviewing Officer and the
appellant(s), concerning the merits of the appeal is not appropriate.
Proposed section 215.20, paragraph (c) allowed the Appeal Reviewing
Officer to consolidate appeals for the purpose of issuing one or more
recommendations.
Comment. Those commenting on the proposed paragraph disagreed with
this provision, expressing the opinion that it is inequitable for them
to have the authority to consolidate multiple appeals and appoint a
single individual to represent all appellants on all issues raised in
all appeals.
Response. It appears there might be some confusion between
combining appeals for purposes of reviewing issues in this section and
the Appeal Deciding Officer's authority to select a representative when
a single appeal lists multiple names and/or organizations. Appeals may
be consolidated for purposes of reviewing issues and rendering one or
more recommendations.
The final rule designates proposed Sec. 215.20 as Sec. 215.19 and
retitles it Appeal Reviewing Officer, consistent with Sec. 215.8,
Appeal Deciding Officer.
Proposed section 215.21 detailed the Secretary's authority.
Proposed paragraph (b) exempts decisions signed by the Secretary or
Under Secretary of Agriculture from the provisions of this rule.
Comment. All of those responding to this provision opposed it.
Reasons cited included concerns that: it evades the appeal process; it
excludes local expertise and the public in general; it will cost the
taxpayer money because it will cause the public to go directly to
court; it violates NEPA, NFMA, and the ARA; it should be a regulatory
issue regardless of which administration is in power; sound science
will be removed from decisions made at this level; and an entire class
of decisions will be exempt from appeal based solely on the origin of
the decision.
Response. Congress has charged the Secretary with the
responsibility to protect, manage and administer the national forests.
The Secretary has delegated that mission to the Under Secretary for
Natural Resources and Environment and the Forest Service. USDA's
general regulations make it clear that the Secretary and Under
Secretary of Agriculture retain authority to make decisions on matters
that have been delegated to the Forest Service. Nothing in the ARA
alters the Secretary's long-established authority to make decisions
affecting the Forest Service. The ARA directed the Secretary to
promulgate rules to ``establish a notice and comment process for
proposed actions of the Forest Service concerning projects and
activities implementing land and resource management plans * * * and
shall modify the procedure for appeals of decisions concerning such
projects.'' Secretarial decisions have never been subject to appeal
under any of the Forest Service's administrative appeal systems and
there is no indication that Congress intended to work such a change
through the ARA. Nothing in this section allows a Responsible Official,
Departmental or Forest Service, to avoid any applicable notice and
comment requirements; for example, circulating a draft or supplemental
EIS for comment (40 CFR 1505.2). This should alleviate some of the
concerns from the public about not having an opportunity to comment.
The final rule is rewritten to improve clarity; however, the
changes do not alter the original intent. Proposed Sec. 215.21 is
designated Sec. 215.20 in the final rule.
Proposed section 215.22 discussed judicial proceedings and deleted
the opportunity to waive this rule and proceed directly to court.
Comment. The only comment received wanted the waiver of the
exhaustion requirement from the current rule retained.
Response. The USDA Reorganization Act of 1993 details when judicial
proceedings can occur.
Proposed Sec. 215.22 is designated Sec. 215.21 in the final rule.
Proposed section 215.23 discussed when this rule would become
effective.
Comment. No comments were received on this section.
Response: In the final rule, proposed Sec. 215.23 is designated
Sec. 215.22, and this section provides that the rule is effective June
4, 2003, except as noted in paragraph (b) discussed below. Pursuant to
the requirements of 5 U.S.C. 553, the Department has elected not to
delay the effective date of the final rule. In doing so, confusion
resulting from implementation of interim procedures established through
the settlement agreement cited in the response to Sec. 215.4 will be
reduced. See the discussion in paragraph (c) below for further
discussion.
Paragraph (a) makes clear that the notice, comment, and appeal
procedures of this part apply to all projects and activities for which
legal notice is published on or after the effective date of this rule,
June 4, 2003, with one exception, discussed in paragraph (b) below.
Paragraph (b) provides for a 30-day delay in implementation of the
provisions for electronic comments and appeals (Sec. Sec. 215.5,
215.6, 215.7, 215.15). Even though the final rule becomes effective
immediately, it will take some time to establish electronic mailboxes
across the Forest Service to receive electronic comments and appeals,
as provided for in the final rule.
Paragraph (c) makes clear that projects and activities for which
legal notice is published prior to the effective date of the final rule
are subject to the notice, comment, and appeal procedures of part 215
in effect prior to June 4, 2003. This rule can be found in the edition
of 36 CFR parts 200 to 299, Revised as of July 1, 2002. As explained in
the discussion of Sec. 215.4, effective June 4, 2003, the Forest
Service will cease to implement the procedures set forth in the interim
provisions of the settlement agreement addressed in the Sec. 215.4
discussion above.
Proposed section 215.24 stated that this rule contained information
collection requirements and would be assigned an OMB control number.
Comment. No comments were received on this section.
Response. Subsequent to the publication of the proposed rule, the
Forest Service and the Department determined that the proposed rule did
not contain any information collection or recordkeeping requirements
and therefore is not subject to OMB review pursuant to the Paperwork
Reduction Act. See ``Controlling Paperwork Burdens on the Public'' in
the following Regulatory Certifications for further discussion.
Proposed Sec. 215.24 is not included in the final rule.
Regulatory Certifications
Regulatory Impact
This final rule has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory Planning and Review. It has been
determined that this is not a significant action. This final 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 final
rule will not interfere with an action taken or planned by another
agency nor raise new legal or policy issues. Finally, this final rule
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 final 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
[[Page 33595]]
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 final rule.
Environmental Impacts
This final 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 final 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 final 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
final rule does not constitute a significant energy action as defined
in the Executive order. Procedural in nature, this final 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 final rule does not contain any recordkeeping or reporting
requirements or other information collection requirements as defined in
5 CFR part 1320 and thereby imposes no paperwork burden on the public
and is not 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 final rule under the requirements of
Executive Order 13132, Federalism. The agency has determined that the
final rule conforms with the federalism principles set out in this
Executive order; would not impose any compliance costs on the States;
and would not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Based on comments received on the proposed rule, the
Department has determined that additional consultation is not needed
with State and local governments prior to adopting a final rule.
Consultation and Coordination With Indian Tribal Governments
This final rule does not have tribal implications as defined in
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, and, therefore, advance consultation with tribes is not
required before issuance of the final rule.
No Takings Implications
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12630, and it has been
determined that the rule does not pose the risk of a taking of
Constitutionally protected private property. This final 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 final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. The agency has not identified any State or local
laws or regulations that are in conflict with this regulation or that
would impede full implementation of this final rule. Nevertheless, in
the event that such a conflict were to be identified, the final rule
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 final 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 final rule on State,
local, and tribal governments and the private sector. This rule does
not compel the expenditure of $100 million or more by any State, local,
or tribal 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.
0
Therefore, for the reasons set forth in the preamble, revise part 215
of Title 36 of the Code of Federal Regulations to read 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 actions.
215.6 Comments on proposed actions.
215.7 Legal notice of decision.
215.8 Appeal Deciding Officer.
215.9 Decision implementation.
215.10 Emergency situations.
215.11 Decisions subject to appeal.
215.12 Decisions and actions not subject to appeal.
215.13 Who may appeal.
215.14 Appeal content.
215.15 Appeal time periods and process.
215.16 Dismissal of appeal without review.
215.17 Informal disposition.
215.18 Formal review and disposition procedures.
215.19 Appeal Reviewing Officer.
215.20 Secretary's authority.
215.21 Judicial proceedings.
215.22 Applicability and effective date.
Authority: 16 U.S.C. 472, 551; sec. 322, Pub. L. 102-381
(Appeals Reform Act), 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 is
provided 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
[[Page 33596]]
project and activity planning, such as those provided by the National
Environmental Policy Act of 1969 (NEPA) implementing regulations and
procedures at 40 CFR parts 1500-1508, the National Forest Management
Act (NFMA) implementing regulations at part 219, and the pertinent
requirements at part 216 regarding notice and comment for certain
Forest Service Manual (FSM) directives. The appeal process is available
to those who submit substantive comments during the comment period.
Appeal disposition constitutes the final administrative determination
of the United States Department of Agriculture. Throughout this part,
references to decisions which affect an authorized use or occupancy of
National Forest System lands and meet all other applicable requirements
of this part, are subject to appeal by the holders of such
authorizations under either this part or part 251, subpart C, but not
under both parts. In addition, certain other parties meeting
requirements of Sec. 251.86 may also be eligible to appeal projects
under either this part or part 251, subpart C, but not under both
parts.
Sec. 215.2 Definitions.
Address--An individual's or organization's current physical mailing
address. An e-mail address is insufficient for identification.
Appeal--The written document filed with an Appeal Deciding Officer
by someone seeking review of a decision.
Appeal Deciding Officer--The Secretary of Agriculture (USDA) or the
USDA or Forest Service designee having the delegated authority and
responsibility to render a decision on an appeal filed under this part.
The Appeal Deciding Officer is the next higher-level supervisor of the
Responsible Official.
Appeal disposition--Either a written appeal decision or written
notification in cases where the original decision is the final agency
action and no appeal decision is issued.
Appeal period--The 45-calendar-day period following publication of
the legal notice in the newspaper of record 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 transmittal letter, the appeal, decision
documentation, the legal notice of decision, the Responsible Official's
documentation of the informal disposition meeting, and the Appeal
Reviewing Officer's recommendation.
Appeal Reviewing Officer--A Forest Service line officer or USDA
official who reviews an appeal and makes a written recommendation to
the Appeal Deciding Officer on disposition of the appeal.
Appellant--An individual or organization filing an appeal who
submitted substantive oral or written comments during the comment
period on a specific project or activity.
Categorically excluded (CE)--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;
FSH 1909.15, Chapter 30).
Comment period--The 30-calendar-day period following publication of
the legal notice in the newspaper of record 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, except
for projects requiring an EIS which follow CEQ procedures for notice
and comment (40 CFR parts 1503 and 1506.10; FSH 1909.15, Chapter 20).
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 (DN) or Record of
Decision (ROD) and all relevant environmental and other analysis
documentation and records, including all comment letters received, 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 (FONSI) (40 CFR 1508.13; FSH 1909.15, Chapter
40).
Emergency situation--A situation on National Forest System (NFS)
lands for which immediate implementation of all or part of a decision
is necessary for relief from hazards threatening human health and
safety or natural resources on those NFS or adjacent lands; or that
would result in substantial loss of economic value to the Federal
Government if implementation of the decision were delayed.
Environmental Assessment (EA)--A concise public document that
provides sufficient evidence and analysis for determining whether to
prepare an environmental impact statement (EIS) or a finding of no
significant impact, aids an agency's compliance with the National
Environmental Policy Act (NEPA) when no EIS 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.
Lead appellant--For appeals submitted with multiple names, or
having multiple organizations listed, the appellant identified to
represent all other appellants for the purposes of communication,
written or otherwise, regarding the appeal. The use of the generic term
``appellant'' applies to lead appellant also.
Name--The first and last name of an individual or the name of an
organization. An electronic username is insufficient for identification
of an individual or organization.
National Forest System land--All lands, waters or interests therein
administered by the Forest Service (Sec. 251.51).
Newspaper(s) of record--Those principal newspapers of general
circulation annually identified in a list and published in the Federal
Register by each Regional Forester to be used for publishing notices of
projects and activities implementing land and resource management
plans.
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 (DN) or Record of Decision (ROD) by a Forest Service
official.
Proposed action--A proposal made by the Forest Service that is a
project or activity implementing a land and resource management plan on
National Forest System lands and is subject to the notice and comment
provisions of this part.
[[Page 33597]]
Record of Decision (ROD)--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, have a direct
relationship to the proposed action and include supporting reasons for
the Responsible Official to consider.
Transmittal letter--The Responsible Official's letter transmitting
the decision documentation. The letter shall include only an index of
the transmitted documents and identification of those portions of the
record that relate to the issues raised.
Sec. 215.3 Proposed actions subject to legal notice and opportunity
to comment.
The legal notice (Sec. 215.5) and opportunity to comment
procedures (Sec. 215.6) apply only 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 projects and activities described in a draft
environmental impact statement (EIS), for which notice and comment
procedures are governed by 40 CFR parts 1500-1508 also;
(c) Proposed non-significant amendments to a land and resource
management plan (pursuant to the 1982 planning regulations) that are
included as part of a decision on a proposed action for which an EA is
prepared;
(d) A proposed action resulting in a revision of an EA based on
consideration of new information or changed circumstances (FSH 1909.15,
Chapter 10, section 18) as provided for in Sec. 215.18(b)(1); and
(e) Proposed research activities to be conducted on National Forest
System lands.
Sec. 215.4 Actions not subject to legal notice and opportunity to
comment.
The procedures for legal notice (Sec. 215.5) and opportunity to
comment (Sec. 215.6) do not apply to:
(a) Projects and activities which are categorically excluded from
documentation in an environmental impact statement (EIS) or
environmental assessment (EA) pursuant to FSH 1909.15, Chapter 30,
section 31;
(b) Proposed amendments to, revision of, or adoption of land and
resource management plans that are made separately from any proposed
actions, and which are therefore subject to either the objection
process of Sec. 219.32 or the administrative appeal and review
procedures of part 217 in effect prior to November 9, 2000 (see 36 CFR
parts 200 to 299, Revised as of July 1, 2000);
(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) Determinations by the Responsible Official, after consideration
of new information or changed circumstances, that a revision of the EA
is not required (1909.15, Chapter 10, section 18); and
(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 (part 216).
Sec. 215.5 Legal notice of proposed actions.
(a) Responsible Official. The Responsible Official shall:
(1) Provide notice of the opportunity to comment on a proposed
action implementing the land and resource management plan.
(2) Determine the most effective timing for publishing the legal
notice of the proposed action and opportunity to comment.
(3) Promptly mail notice about the proposed action to any
individual or organization who has requested it and to those who have
participated in project planning.
(4) Publish a legal notice of the opportunity to comment on a
proposed action as provided for in paragraph (b)(2).
(5) Accept all written and oral comments on the proposed action as
provided for in Sec. 215.6(a)(4).
(6) Identify all substantive comments.
(b) Legal notice of proposed action.
(1) 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) 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. 215.10, when applicable.
(iv) For a proposed action to be analyzed and documented in an
environmental assessment (EA), a statement that the opportunity to
comment ends 30 days following the date of publication of the legal
notice in the newspaper of record (Sec. 215.6(a)(2)); legal notices
shall not contain the specific date since newspaper publication dates
may vary.
(v) For a proposed action that is analyzed and documented in a
draft environmental impact statement (EIS), a statement that the
opportunity to comment ends 45 days following the date of publication
of the notice of availability (NOA) in the Federal Register (Sec.
215.6(a)(2)). The legal notice must be published after the NOA and
contain the NOA publication date.
(vi) A statement that only those who submit timely and substantive
comments will be accepted as appellants.
(vii) The Responsible Official's name, title, telephone number, and
addresses (street, postal, facsimile, and e-mail) to whom comments are
to be submitted and the Responsible Official's office business hours
for those submitting hand-delivered comments (Sec. 215.6(a)(4)(ii)).
(viii) A statement indicating that for appeal eligibility each
individual or representative from each organization submitting
substantive comments must either sign the comments or verify identity
upon request.
(ix) The acceptable format(s) for electronic comments.
(x) Instructions on how to obtain additional information on the
proposed action.
(2) Publication.
(i) Through notice published annually in the Federal Register, each
Regional Forester shall advise the public of the newspaper(s) of record
utilized for publishing legal notices required by this part.
(ii) Legal notice of the opportunity to comment on a proposed
action shall be published in the applicable newspaper of record
identified in paragraph (b)(2)(i) for each National Forest System unit.
When the Chief is the Responsible Official, notice shall also be
published in the Federal Register. The publication date of the legal
notice in the newspaper of record is the exclusive means for
calculating the time to submit comments on a proposed action to be
analyzed and documented in an EA. The publication date of the NOA in
the Federal Register is the exclusive means for calculating the time to
submit comments on a proposed action that is analyzed and documented in
a draft EIS.
Sec. 215.6 Comments on proposed actions.
(a) Opportunity to comment.
[[Page 33598]]
(1) Time period for submission of comments.
(i) Environmental Assessment. Comments on the proposed action shall
be accepted for 30 days following the date of publication of the legal
notice.
(ii) Draft Environmental Impact Statement. Comments on the proposed
action shall be accepted for 45 days following the date of publication
in the Federal Register pursuant to 40 CFR parts 1500-1508.
(iii) It is the responsibility of all individuals and organizations
to ensure that their comments are received in a timely manner as
provided for in paragraph (a)(4).
(iv) The time period for the opportunity to comment on
environmental assessments shall not be extended.
(2) Computation of the comment period. 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 (11:59 p.m.).
(i) Environmental Assessment (EA). The 30-day comment period for
proposed actions to be analyzed and documented in an EA begins on the
first day after publication of the legal notice.
(ii) Draft Environmental Impact Statement (EIS). The 45-day comment
period for proposed actions that are analyzed and documented in a draft
EIS begins on the first day after publication of the NOA in the Federal
Register.
(3) Requirements. Individuals and organizations wishing to be
eligible to appeal must provide the following:
(i) Name and address.
(ii) Title of the proposed action.
(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.
(iv) Signature or other verification of identity upon request;
identification of the individual or organization who authored the
comment(s) is necessary for appeal eligibility.
(A) For appeals listing multiple organizations or multiple
individuals, a signature or other means of verification must be
provided for the individual authorized to represent each organization
and for each individual in the case of multiple names, to meet appeal
eligibility requirements.
(B) Those using electronic means may submit a scanned signature.
Otherwise another means of verifying the identity of the individual or
organizational representative may be necessary for electronically
submitted comments or comments received by telephone.
(v) Individual members of an organization must submit their own
substantive comments to meet the requirements of appeal eligibility;
comments received on behalf of an organization are considered as those
of the organization only.
(vi) Oral comments must be provided at the Responsible Official's
office during normal business hours via telephone or in person, or if
during non-business hours, must be at an official agency function (such
as a public meeting) which is designed to elicit public comment.
(4) Evidence of timely submission. When there is a question about
timely submission of comments, timeliness shall be determined as
follows:
(i) Written comments must be postmarked by the Postal Service, e-
mailed, faxed, or otherwise submitted (for example, express delivery
service) by 11:59 p.m. on the 30th calendar day following publication
of the legal notice for proposed actions to be analyzed and documented
in an EA or the 45th calendar day following publication of the NOA in
the Federal Register for a draft EIS.
(ii) Hand-delivered comments must be time and date imprinted at the
correct Responsible Official's office by the close of business on the
30th calendar day following publication of the legal notice for
proposed actions to be analyzed and documented in an EA or the 45th
calendar day following publication of the NOA in the Federal Register
for a draft EIS.
(iii) For electronically mailed comments, the sender should
normally receive an automated electronic acknowledgment from the agency
as confirmation of receipt. If the sender does not receive an automated
acknowledgment of the receipt of the comments, it is the sender's
responsibility to ensure timely receipt by other means.
(b) Consideration of comments.
(1) The Responsible Official shall consider all substantive written
and oral comments submitted in compliance with paragraph (a).
(2) All written comments received by the Responsible Official shall
be placed in the project file and shall become a matter of public
record.
(3) The Responsible Official shall document and date all oral
comments received in response to the legal notice (Sec. 215.5) and
place them in the project file.
Sec. 215.7 Legal notice of decision.
(a) The Responsible Official shall promptly mail the Record of
Decision (ROD) or the Decision Notice (DN) and Finding of No
Significant Impact (FONSI) to those who requested the decision document
and those who submitted substantive comments during the comment period
(Sec. 215.6).
(b) The Responsible Official shall publish a legal notice of any
decision documented in a ROD or DN in the applicable newspaper of
record (Sec. 215.5(b)(2)). 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 DN
and FONSI or 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, the acceptable format(s) for appeals electronically
filed, and the Appeal Deciding Official's office business hours for
those filing hand-delivered appeals.
(ii) A statement that the publication date of the legal notice in
the newspaper of record is the exclusive means for calculating the time
to file an appeal (Sec. 215.15 (a)) and that those wishing to appeal
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
filed (regular mail, fax, e-mail, hand-delivery, express delivery, or
messenger service) with the appropriate Appeal Deciding Officer (Sec.
215.8) within 45 days following the date of publication of the legal
notice.
(iv) A statement indicating that individuals or organizations who
submitted substantive comments during the comment period (Sec. 215.6)
may appeal.
(v) A statement specifying, when applicable, that the Chief of the
Forest Service, or a designee, has determined that an emergency
situation exists (Sec. 215.10), and which portion of the project is
covered by that determination as provided for in Sec. 215.10.
(vi) A statement indicating how many days following publication of
the decision that implementation may begin (Sec. 215.9), including
those portions covered by an emergency situation determination, if
applicable (Sec. 215.10).
(3) When no substantive comments expressing concerns or only
supportive comments are received, include a
[[Page 33599]]
statement indicating that the decision is not subject to appeal
pursuant to Sec. 215.12.
Sec. 215.8 Appeal Deciding Officer.
(a) Appropriate Appeal Deciding Officer. 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........................... Forest Supervisor.
------------------------------------------------------------------------
(b) Authority. The Appeal Deciding Officer makes all procedural
determinations. Such determinations are not subject to further
administrative review.
(1) Consolidation of appeal decisions. In cases involving more than
one appeal of a decision, the Appeal Deciding Officer may consolidate
appeals and may issue one or more appeal decisions.
(2) Appeals with multiple names (organization(s) or individuals).
(i) When an appeal lists multiple names, the Appeal Deciding
Officer shall identify all qualified appellants (Sec. 215.13).
(ii) The Appeal Deciding Officer may appoint the first name listed
as the lead appellant (Sec. 215.2) to act on behalf of all parties to
that appeal when the appeal does not specify a lead appellant (Sec.
215.14(b)(3)).
(3) Appeal disposition.
(i) The Appeal Deciding Officer shall render the final disposition
on an appeal and notify the appellant(s) in writing concerning the
disposition of the appeal (Sec. 215.15(e)(2)).
(ii) The Appeal Deciding Officer may issue an appeal decision
different from the Appeal Reviewing Officer's recommendation.
Sec. 215.9 Decision implementation.
(a) When no appeal is filed within the 45-day time period,
implementation of the decision may begin on, but not before, the 5th
business day following the close of the appeal-filing period (Sec.
215.15).
(b) Except for emergency situations (Sec. 215.10(c)), 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. 215.12), implementation may occur as follows:
(1) Immediately after publication (Sec. 215.7(b)) of a decision
documented in a Decision Notice; or
(2) Immediately when documented in a Record of Decision after
complying with the timeframes and publication requirements described in
40 CFR 1506.10(b)(2).
Sec. 215.10 Emergency situations.
(a) Authority. The Chief and the Associate Chief of the Forest
Service are authorized to make the determination that an emergency
situation (Sec. 215.2) exists, and they may delegate this authority
only to the Deputy Chief for National Forest System and to the Regional
Foresters. Persons acting in these positions may exercise this
authority only when they are filling vacant positions and they have
been formally delegated full acting authority for the positions.
Persons acting in positions during temporary absences of the incumbents
shall not be delegated this authority to make emergency situation
determinations.
(b) Determination. 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.
(c) 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 after publication (Sec. 215.7(b)) of a decision
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 and publication requirements described in
40 CFR 1506.10(b)(2), for that portion of the decision determined to be
an emergency.
(d) Notification. The Responsible Official shall notify the public
in the legal notice of the decision (Sec. 215.7) that the Forest
Service made a determination that all or part of a project decision is
an emergency situation.
Sec. 215.11 Decisions subject to appeal.
The following decisions are subject to appeal under this part:
(a) 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 contain a
non-significant amendment to a land and resource management plan as a
part of the decision;
(b) A new DN after revision of an environmental assessment (EA), or
a new ROD after supplementation or revision of an environmental impact
statement (EIS), pursuant to FSH 1909.15, Chapter 10, section 18.
However, only that portion of the decision that is changed is subject
to appeal.
(c) Decisions made in conjunction with other Federal agencies and
meeting the requirements of preceding paragraph (a). 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.
(d) Decisions which affect the holders of a special use
authorization or certain applicants for special use authorizations for
use or occupancy of National Forest System lands (Sec. 251.86) and
meeting the requirements of preceding paragraph (a), are subject to
appeal by those same parties under either this part or part 251,
subpart C, but not under both parts.
Sec. 215.12 Decisions and actions not subject to appeal.
The following decisions and actions are not subject to appeal under
this part, except as noted:
(a) The amendment, revision, or adoption of a land and resource
management plan that includes a project decision, except that the
project portion of the decision is subject to this part. The amendment,
revision, or adoption portion of a decision is subject to either the
objection process of Sec. 219.32 or the administrative appeal and
review procedures of part 217 in effect prior to November 9, 2000 (see
36 CFR parts 200 to 299, Revised as of July 1, 2000);
(b) Determination, with documentation, that a new decision is not
needed following supplementation of an environmental impact statement
(EIS) or revision of an environmental assessment (EA) pursuant to FSH
1909.15, Chapter 10, section 18.
(c) Preliminary findings made during planning and/or analysis
processes on a project or activity. Such findings are appealable only
upon issuance of a decision document.
(d) Subsequent implementing actions that result from the initial
project decision that was subject to appeal.
(e) Projects or activities for which notice of the proposed action
and opportunity to comment is published (Sec. 215.5) and
(1) No substantive comments expressing concerns or only supportive
comments are received during the
[[Page 33600]]
comment period for a proposed action analyzed and documented in an EA
(Sec. 215.6); or
(2) No substantive comments expressing concerns or only supportive
comments are received during the comment period for a draft EIS (40 CFR
1502.19), and the Responsible Official's decision does not modify the
preferred alternative identified in the draft EIS.
(f) Decisions for actions that have been categorically excluded
from documentation in an EA or EIS pursuant to FSH 1909.15, Chapter 30,
section 31.
(g) An amendment, revision, or adoption of a land and resource
management plan that is made independent of a project or activity
(subject to either the objection process of Sec. 219.32 or the
administrative appeal and review procedures of part 217 in effect prior
to November 9, 2000 (see 36 CFR parts 200 to 299, Revised as of July 1,
2000)).
(h) Concurrences and recommendations to other Federal agencies.
Sec. 215.13 Who may appeal.
(a) Individuals and organizations who submit substantive written or
oral comments during the 30-day comment period for an environmental
assessment, or 45-day comment period for a draft environmental impact
statement (Sec. 215.6, 40 CFR 1506.10; FSH 1909.15, Chapter 20),
except as provided for in paragraph (c) of this section, may file an
appeal. Comments received from an authorized representative(s) of an
organization are considered those of the organization only; individual
members of that organization do not meet appeal eligibility solely on
the basis of membership in an organization; the member(s) must submit
substantive comments as an individual in order to meet appeal
eligibility.
(b) When an 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) shall not be accepted as appellants.
(c) Federal agencies may not appeal.
(d) Federal employees, who otherwise meet the requirements of this
part for filing appeals in a non-official capacity, 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 filing of an appeal. Further, employees
shall not incorporate information unavailable to the public, i.e.
Federal agency documents that are exempt from disclosure under the
Freedom of Information Act (5 U.S.C. 552 (b)).
Sec. 215.14 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 (paragraph (b)(6-9)).
(b) The appeal must be filed with the Appeal Deciding Officer Sec.
215.8 in writing. At a minimum, an appeal must include the following:
(1) Appellant's name and address (Sec. 215.2), with a telephone
number, if available;
(2) Signature or other verification of authorship upon request (a
scanned signature for electronic mail may be filed with the appeal);
(3) When multiple names are listed on an appeal, identification of
the lead appellant (Sec. 215.2) and verification of the identity of
the lead appellant upon request;
(4) 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;
(5) The regulation under which the appeal is being filed, when
there is an option to appeal under either this part or part 251,
subpart C (Sec. 215.11(d));
(6) Any specific change(s) in the decision that the appellant seeks
and rationale for those changes;
(7) Any portion(s) of the decision with which the appellant
disagrees, and explanation for the disagreement;
(8) Why the appellant believes the Responsible Official's decision
failed to consider the substantive comments; and
(9) How the appellant believes the decision specifically violates
law, regulation, or policy.
(c) The Appeal Deciding Officer shall not process an appeal when
one or more of the following applies:
(1) An appellant's identity is not provided or cannot be determined
from the signature (written or electronically scanned) and a reasonable
means of contact is not provided.
(2) The appellant has not provided a reasonable means of contact.
(3) The decision cannot be identified.
(4) The appeal is illegible for any reason, including those
submitted electronically in a format different from that specified in
the legal notice.
Sec. 215.15 Appeal time periods and process.
(a) Time to file an appeal. Written appeals, including any
attachments, must be filed with the Appeal Deciding Officer within 45
days following the publication date of the legal notice of the decision
in the newspaper of record (Sec. 215.7). It is the responsibility of
appellants to ensure that their appeal is received in a timely manner.
(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 (11:59 p.m.).
(2) The day after the publication of the legal notice of the
decision in the newspaper of record (Sec. 215.7) is the first day of
the appeal-filing period.
(3) The publication date of the legal notice of the decision in the
newspaper of record 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 date of the postmark, e-mail, fax, or other means of filing
(for example, express delivery service) an appeal and any attachment;
(2) The time and date imprint at the correct Appeal Deciding
Officer's office on a hand-delivered appeal and any attachments; or
(3) When an appeal is electronically mailed, the appellant should
normally receive an automated electronic acknowledgment from the agency
as confirmation of receipt. If the appellant does not receive an
automated acknowledgment of the receipt of the appeal, it is the
appellant's responsibility to ensure timely receipt by other means.
(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
including a list of those individuals or organizations who submitted
substantive comments.
(2) Appeal disposition. Within 45 days following the end of the
appeal-filing period, the Appeal Deciding Officer should render a
written decision to the appellant(s) concerning their appeal. When an
appeal decision is not rendered by day 45, the Appeal
[[Page 33601]]
Deciding Officer shall notify the appellant(s) in writing that an
appeal decision will not be issued (Sec. 215.18(b).
(3) When an appeal decision is not issued within 45 days, the
Responsible Official's decision is deemed the final agency action.
Sec. 215.16 Dismissal of appeal without review.
(a) The Appeal Deciding Officer shall dismiss an appeal without
review when one or more of the following applies:
(1) The postmark on an appeal mailed or otherwise filed (for
example, express mail service) or the evidence of the date sent on an
e-mailed or faxed appeal is not within the 45-day appeal-filing period
(Sec. 215.15).
(2) The time and date imprint at the correct Appeal Deciding
Officer's office on a hand-delivered appeal is not within the 45-day
appeal-filing period (Sec. 215.15).
(3) The requested relief or change cannot be granted under law or
regulation.
(4) The appellant has appealed the same decision under part 251
(Sec. 215.11(d)).
(5) The decision is not subject to appeal (Sec. 215.12).
(6) The individual or organization did not submit substantive
comments during the comment period (Sec. 215.6).
(7) The Responsible Official withdraws the decision.
(8) The appeal does not provide sufficient information in response
to Sec. 215.14(b)(6) through (b)(9) for the Appeal Deciding Officer to
render a decision.
(9) The appellant withdraws the appeal.
(b) Any additional information or attachment to an appeal that is
not filed within the 45-day appeal-filing period shall not be
considered with the appeal.
(c) 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, or designee, must contact the appellant and offer to meet and
discuss resolution of the issues raised in the appeal. This contact
shall be made as soon as practicable after the Appeal Deciding Officer
receives the appeal and the Responsible Official is notified. In the
case of multiple names or organizations, it is the responsibility of
the lead appellant (Sec. 215.2) to contact any other persons named in
their appeal who may desire to participate in the informal disposition
meeting. If the appellant(s) decline to meet, the Responsible Official
shall so advise the Appeal Deciding Officer.
(b) Time and location of meeting. When an appellant agrees to meet,
the initial meeting shall take place within 15 days after the closing
date for filing an appeal (Sec. 215.15). 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, Regional Forester, or the Chief is the Responsible
Official, meetings will generally take place at a location within or
near the National Forest.
(c) Meeting structure. Generally, the appellant(s) 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. After the informal disposition meeting, the
Responsible Official shall notify the Appeal Deciding Officer in
writing of the meeting participants and which of the following three
outcomes occurred.
(1) An appellant and the Responsible Official reach agreement on
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) 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 correction, supplementation, or
revision of environmental documentation and reconsideration of
decisions to take action guidance in FSH 1909.15, Chapter 10, section
18, and Sec. Sec. 215.3 and 215.4.
(3) An appeal is not entirely resolved through informal
disposition. Formal review and disposition of the unresolved portion 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 either:
(1) Issue a written appeal decision within 45 days following the
end of the appeal-filing period, which affirms or reverses the
Responsible Official's decision, either in whole or in part, and which
may include instructions for further action. When an appeal decision
involves instructions concerning new information or changed
circumstances, the Responsible Official must follow the correction,
supplementation, or revision of environmental documentation and
reconsideration of decisions to take action guidance in FSH 1909.15,
Chapter 10, section 18 and Sec. Sec. 215.3, 215.4, 215.11, and 215.12.
The Appeal Deciding Officer shall send a copy of the appeal decision to
the appellant(s), the Appeal Reviewing Officer, and the Responsible
Official within 5 days; or
(2) Not issue an appeal decision and so notify the appellant(s) in
writing that an appeal decision will not be issued and that the
Responsible Official's decision constitutes the final agency action of
the Department of Agriculture (Sec. 215.15(e)(2)). Notification shall
be sent no sooner than 46 days nor later than 50 days following the end
of the appeal-filing period.
(c) Final administrative determination. The Appeal Deciding
Officer's appeal disposition constitutes the final administrative
determination of the Department of Agriculture.
Sec. 215.19 Appeal Reviewing Officer.
(a) Designation. The Appeal Reviewing Officer shall 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; or
(2) Designated by the Secretary in the case of Chief's decisions.
(b) Review and recommendation. The Appeal Reviewing Officer shall
review an appeal and the decision documentation 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 more than one appeal of a
decision, the Appeal Reviewing Officer may consolidate appeals and
issue one or more recommendations.
[[Page 33602]]
Sec. 215.20 Secretary's authority.
(a) Nothing in this section shall restrict the Secretary of
Agriculture from exercising any statutory authority regarding the
protection, management, or administration of National Forest System
lands.
(b) Decisions of the Secretary of Agriculture or Under Secretary,
Natural Resources and Environment are not subject to the notice,
comment, and appeal procedures set forth in this part. A decision by
the Secretary or Under Secretary constitutes the final administrative
determination of the Department of Agriculture.
Sec. 215.21 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. 6912
(e)).
Sec. 215.22 Applicability and effective date.
(a) The notice, comment, and appeal procedures set out in this
part, except as noted in paragraph (b) below, apply to all projects and
activities for which legal notice is published pursuant to Sec. 215.5
on or after June 4, 2003.
(b) The provisions concerning electronic comments (Sec. Sec.
215.5(b)(vi-vii) and 215.6(a)(4)(iii)) and electronic appeals
(Sec. Sec. 215.7(b)(2)(i) and (iii) and 215.15(c)(1) and (3)) are
effective July 7, 2003.
(c) The notice, comment, and appeal procedures of part 215 in
effect prior to June 4, 2003 remain in effect for those projects and
activities for which legal notice (Sec. Sec. 215.5 or 215.7) is
published prior to June 4, 2003 (see 36 CFR parts 200 to 299, Revised
as of July 1, 2002).
Dated: May 13, 2003.
David P. Tenny,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 03-13927 Filed 6-3-03; 8:45 am]
BILLING CODE 3410-11-P