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SOURCE:  Federal Register, December 18, 2002

Notice, Comment, and Appeal Procedures

for Projects and Activities on National Forest System Lands


AGENCY: Forest Service, USDA.

ACTION: Proposed rule; request for comment.


SUMMARY: The Forest Service is proposing to amend the rule adopted in
1994 for the notice, comment, and appeal procedures for projects and
activities implementing land and resource management plans on National
Forest System lands. The proposed rule changes current procedures to
clarify certain provisions and reduce complexity in the current rule,
improve efficiency of processing appeals, encourage early and effective
public participation in the environmental analysis of projects and
activities, and ensure consistency with the provisions of the statutory
authority. Topics addressed include emergency situations; 30-day notice
and comment procedures; site-specific comments; who may appeal; and the
formal disposition process. Public comment is invited and will be
considered in development of the final rule.


DATES: Comments must be received in writing by February 18, 2003.


ADDRESSES: Send written comments to USDA FS, Appeal Rule Content
Analysis Team, P.O. Box 9079, Missoula, MT 59807; by electronic mail to
215appeals@fs.fed.us; or by facsimile to (406) 329-3556. To aid in our
analysis of comments, it would be helpful if comments are organized
section by section. Additional information is
provided at http://www.fs.fed.us/emc/applit/index.htm.


Background


The Forest Service has a long-term commitment to promoting
effective public involvement in both planning and project level
decisionmaking. For example, in 1977, the proposed National Forest
Management Act (NFMA) regulations directed that forest plan approvals,
although subject to mandatory public involvement, would not be subject
to administrative appeal. 44 FR 25554, 25589 (May 4, 1979). The final
regulations adopted in 1979 dropped the no appeal provision and such
appeals were allowed. In 1989 the Forest Service again undertook a
major revision of its appeal regulations splitting its appeal
regulations into two major rules, one for the general public (36 CFR
part 217) and one for holders of special use permits (36 CFR 251.80).
By 1992, the Forest Service had determined that the process had become
too complex, confrontational and costly.
In 1992, the Forest Service undertook a year-long review and
evaluation of its administrative appeal procedures. The 1992 review
uncovered many problems with the procedures and led to the publication
of a proposed rule to amend 36 CFR part 217 to continue allowing forest
plan-level appeals but substituting an expanded pre-decisional public
involvement opportunity to replace post-decisional administrative
appeals of environmental assessments (57 FR 10444) and eliminating
appeals of categorical exclusions for projects. The Forest Service
received over 30,000 comments on the proposed rule. Before a final rule
was published, however, Congress, operating through an annual
appropriation rider, enacted section 322 of Interior and Related
Agencies Appropriation Act of Fiscal Year 1993, Pub. L. 102-381, 106
Stat. 1419, (hereinafter ``Appeals Reform Act'' (ARA) instructing the
Secretary of Agriculture to establish a notice, comment and appeal
process modifying the existing appeal regulations.
The ARA contains relatively little specific guidance beyond the
statutorily established timelines. The Forest Service was, therefore,
tasked with establishing the process that would lay out the particulars
of the appeals procedures. The origins of the ARA derive primarily from
an amendment co-sponsored by Senators Craig and DeConcinni. The Craig-
DeConcinni amendment was subsequently amended by the conference
committee with a consensus from both parties of Congress. The Senate
floor colloquy during consideration of the conference committee report
contains revealing statements which support the conclusion that
Congress intended to allow the agency to determine the appropriate
scope and other details regarding the appeal process to be developed by
the Secretary. Senator Craig described ``a reasonable and balanced
approach to resolve the debate over the future of the Forest Service's
appeal process.'' 138 Cong. Rec. S15848 (Sept. 30, 1992). While
Congress was clearly taking matters into its own hands regarding
whether there should be an appeal system and the specific timeframes
for how long such an appeal could take, Congress did not provide a
detailed legislative framework. In fact, the legislative history shows
that Congress even intended for the agency to address a statutory
drafting error regarding the duration of administrative stays through
the agency regulations.
The Forest Service has a continuing commitment to periodically
review its regulations, identify specific problems in administering
them, and determine whether they meet Congressional intent, as well as
agency and public needs. Experience with the procedures at 36
CFR part 215 has shown that certain provisions in the current rule
consistently raise questions or reduce efficient processing of appeals.
In April 2001, the agency chartered a team to assess the part 215
appeal rule, identify ways to reduce the complexity of the current
rule, and improve efficiency for the public and the Forest Service. The
team conducted interviews with and solicited comments from a cross-
section of agency personnel at the various field levels and the
national headquarters staff.
Implementation issues associated with the current rule that were
most often cited generally fell into two areas: inefficiency of the
procedures and the process for public involvement. Specific issues
identified included: The 30-day notice and comment process; emergency
situations; informal disposition; dismissals; interested parties; the
definition of projects implementing a land and resource management
plan; who may file an appeal; appeal issues; and electronic
transmission of comments and/or appeals. In addition, many comments
stated that the provisions in the current rule exceed the requirements
of the Act. After careful consideration, the agency has determined that
the major areas needing attention are: Emergency situations; 30-day
notice and comment process; site-specific comments; who may file an
appeal; and the formal disposition process. As a result, the Forest
Service is proposing to amend 36 CFR part 215. The proposed changes
would clarify and reduce the complexity of the rule; elicit more
effective public participation by seeking public comment early in the
process; provide for electronic submission of comments; result in more
consistent application of the rule; simplify the language; and
reorganize the rule into a more logical sequence.
Two particular regulatory issues warrant special attention: The
scope of decisions subject to appeal (``proposed actions of the Forest
Service concerning projects and activities implementing land and
resource management plans'') and stays of ``emergency'' actions.
Congress did not provide statutory definitions for either of these
terms.
The existing appeal regulations provide for appeals of actions
evaluated in an environmental assessment or environmental impact
statement, as well as one specific class of categorically excluded
activities that is no longer in use. The ARA was enacted in direct
response to the Forest Service's 1992 proposed regulation that would
have substituted appeals with a pre-decisional review. Congress
preferred appeals over pre-decisional public involvement for these
assessments. Congress did not express a specific intent regarding where
the ``line should be drawn'' or to ``set in concrete'' which activities
would be subject to notice, comment and appeal. Nor was there any
indication that Congress intended to extend the notice, comment and
appeal requirements to all classes of categorically excluded
activities. This was a determination left to the discretion and
judgment of the Secretary. Congress knew that not every decision of the
Forest Service was subject to appeal before the 1992 Act.
The agency believes that Congress used the phrase ``proposed
actions of the Forest Service concerning projects and activities
implementing land and resource management plans'' to delineate between
administrative appeals of forest plans and project level decisions,
rather than define a comprehensive or precise set of activities.
Congress could, of course, have provided a specific definition. But
Congress did not do so and absent such a definition, the courts have
recognized that agencies are free, indeed expected, to fill in the gaps
and that such regulatory interpretations are due deference. Through the
1993 rulemaking process the Secretary concluded that the Forest
Service's categorically excluded activities were generally not of the
sort that Congress would have intended to apply additional notice,
comment and appeal requirements given the generally minor potential for
environmental effects.
One exception was made to require notice, comment and appeal for
timber sales exceeding certain volume limits, but that category is no
longer in use. This exception, however, does illustrate a consistent
interpretation by the Department that Congress intended to grant the
Secretary the authority to establish a flexible process through
rulemaking. The appeal regulation's reliance upon its existing
administrative framework (the agency's NEPA procedures) is also
consistent with other Forest Service regulations that rely on the NEPA
procedures for guidance regarding public participation (see e.g. 36 CFR
219.6(b)). This practice is in keeping with the Council on
Environmental Quality's instructions for agencies to ``integrate the
requirements of NEPA with other planning and environmental review
procedures required by law or by agency practice * * *''. 40 CFR
1500.2(c).
By their very nature, activities that have been categorically
excluded generally have no significant environmental effect, or stated
otherwise, were determined not to cross the NEPA ``significance
threshold'' based on the agency's experience, judgment, and analysis
from implementing similar activities over many years. Therefore they
typically do not include preparation of extensive records; in fact, the
Forest Service NEPA procedures do not require decision documents or
project files to be maintained for many categorical exclusions.
Congress' intent was to streamline an appeal process in need of
revision, not entangle the agency in a costly and time-consuming
exercise for minor decisions by Forest Service officials. That being
the case, the Forest Service has determined that including affected and
interested individuals in project planning early in the process is more
effective than subjecting these projects to formal and extensive
notice, comment and appeal procedures.
The existing regulation's treatment of categorically excluded
activities is the subject of unresolved litigation. While that
litigation is currently focused on procedural matters, the agency
believes that both the current and proposed regulations are within the
scope of the Secretary's delegated authority to establish a notice,
comment and appeal process as set forth in the ARA. This assumption is
supported by the fact that during the ten years of implementation of
the 1993 regulations, Congress has not sought to amend the ARA to
adjust the agency's implementation, and has in fact relied upon the
regulatory structure and exempted individual and classes of activities
from the regulations. For example, in July 2002, Congress passed
legislation recognizing the urgency of the severe fire threat posed to
private homes from fire and diseased trees in the Black Hills National
Forest and the procedural problems that could delay prompt action. The
legislation exempted timber cutting as part of a fuels treatment
project from public notice and comment as well as judicial review and
appeals.
Regardless of the scope of the administrative appeals procedures,
Forest Service procedures require that all projects subject to the
National Environmental Policy Act (NEPA), including projects covered
under categorical exclusions, include interested and affected
individuals in project planning to the extent appropriate considering
the nature and complexity of the proposed action. For example, for
hazardous fuels reduction projects near communities, the Forest Service
would collaborate with local constituents in a manner consistent with
the process identified in A Collaborative Approach for Reducing
Wildland Fire Risks to Communities
and the Environment 10-Year Comprehensive Strategy Implementation Plan.
The ARA expressly authorizes the Chief to exempt certain activities
from the mandatory stay provision in an ``emergency'' but does not
provide a statutory definition or specify particular criteria for
making such determinations. The agency's 1993 regulations attempted to
provide such guidance, but experience has shown the need for
refinement. In particular, the Forest Service wishes to clarify that
economic factors can be relied upon in making the determination of
whether to exempt a project from stay while an appeal is pending.
During implementation of the current rule, the agency has found that
the rule is unnecessarily restrictive and results in undue waste of
natural and economic resources. Fire impacted forest ecosystems and
damaged watersheds impose a variety of economic costs to communities
and implementation delays can result in loss of economic value that may
alter the agency's options for addressing resource problems. The
proposed regulation would adjust the definition of ``emergency'' to
address this issue.
The significance of specific changes to the current rule is
indicated in the following section-by-section description. Minor
changes are summarized, while more detail is included for new sections
and those sections that involve substantive change.

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