[Federal Register Volume 63, Number 18 (Wednesday, January 28, 1998)]
[Rules and Regulations]
[Pages 4187-4188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2043]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 215


Notice, Comment, and Appeal Procedures for National Forest System 
Projects and Activities

AGENCY: Forest Service, USDA.

ACTION: Interim final rule; request for comment.

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SUMMARY: The Department is amending the rules governing who can 
participate in administrative appeals of decisions authorizing National 
Forest System projects and activities, by removing a prohibition on 
appeals by Forest Service employees. This regulatory change results 
from a reassessment of this provision in response to a recent legal 
challenge. Public comment is invited on this interim rule and will be 
considered in promulgating a final rule.

DATES: This interim rule is effective January 28, 1998. Comments on 
this rulemaking must be received by March 30, 1998.

ADDRESSES: Written comments on this rule must be sent to Susan Yonts-
Shepard, Appeals Coordinator, National Forest Systems Deputy Area, MAIL 
STOP 1106, Forest Service, USDA P.O. Box 96090, Washington, DC 20090-
9060. All comments, including names and addresses, when provided, will 
be placed in the record and are made available for public inspection 
and copying.

FOR FURTHER INFORMATION CONTACT: Susan Yonts-Shepard, Forest Service, 
telephone, (202) 202-1519.

SUPPLEMENTARY INFORMATION: 

Background

    Section 322 of the 1993 Interior and Related Agencies 
Appropriations Act directed the Department to establish a process by 
which persons or organizations receive notice and the opportunity to 
comment on proposed actions affecting the National Forest System. The 
Act also required the establishment of procedures by which persons or 
organizations may appeal decisions subsequently made on proposed 
actions. Following the publication of a proposed rule with a request 
for public comment (58 FR 19369), the Forest Service received over 
9,000 comments on certain aspects of this rulemaking. However, no 
comment was submitted on the proposed provision prohibiting agency 
employees from participating in the appeal process as appellants or as 
interested parties at Sec. 215.11(c). Having concluded that there was 
no concern with this provision, the Department adopted paragraph (c) in 
Sec. 215.11, without change from the proposed rule, November 4, 1993 
(58 FR 58904).
    A recent lawsuit brought by a Forest Service employee challenging 
this regulation (Dalton v. Forest Service, Civil Act Number 97-0774, 
U.S.D.C., D.D.C.) has led to a reassessment of the employee appeal 
limitation in 36 CFR 215.11(c) and has raised issues not considered at 
the time of the earlier rulemaking. Moreover, the rulemaking record 
does not speak directly to the Sec. 215.11(c) provision. Therefore, the 
Deputy Under Secretary, in a declaration to the court, indicated that 
the Department would cease immediately to enforce the employee appeal 
prohibition and would repeal the employee prohibition provision at 
Sec. 215.11(c). The declaration also indicated that, at a later date, 
after additional consideration of relevant factors, the Forest Service 
may decide to publish a new proposed rule to address the matter of 
appeals by employees. If so, public comment would be requested at that 
time.
    Employees appealing a National Forest System project may violate 18 
U.S.C. 208 if their appeal is based upon an imputed financial interest 
and their official duties involve the appeal. Also, representation of 
others in the appeal process may be prohibited under 18 U.S.C. 203 and 
205. Assuming that an employee appealing a National Forest System 
project would file the appeal as a private citizen, in accordance with 
Office of Government Ethics regulations at 5 CFR part 2635, subpart G, 
Misuse of position, the employee may not be on official duty or use 
government property or equipment in the preparation or transmittal of 
an appeal. Also, in preparing the appeal, the employee must not use 
official information not yet released to the public. A new paragraph 
(d) has been added to Sec. 215.11 to address the standards of ethical 
conduct for employees filing an appeal.
    Agencies are not required by the Administrative Procedure Act to 
give notice and opportunity to comment prior to adoption of this 
interim final rule because the decision to repeal Sec. 215.11(c) 
involves a matter relating to

[[Page 4188]]

agency personnel and, thus, is exempt pursuant to 5 U.S.C. 553(a)(2). 
However, the Department believes the public should have an opportunity 
to comment on this rescission before it is adopted as a final rule. 
Among concerns and questions that reviewers may wish to consider are: 
the appropriateness and ethical implications of allowing employees to 
appeal certain Forest Service decisions; the potential impact of 
employee appeals on the process of permit administration; and the 
potential impact of allowing employee appeals on the delivery of goods 
and services from the National Forest System.

Regulatory Impact

    This interim 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 rule. This action consists of 
administrative changes to regulations that would allow employee appeals 
of agency projects and activities under 36 CFR part 215. This interim 
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. 
Also, this rule will not interfere with an action taken or planned by 
another agency or raise new legal or policy issues. In short, little or 
no effect on the national economy will result from this interim final 
rule. Finally, this action will not alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients of such programs. Accordingly, this interim 
final rule is not subject to OMB review under Executive Order 12866.
    Moreover, this interim final rule has been considered in light of 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it is hereby 
certified that this action will not have a significant economic impact 
on a substantial number of small entities as defined by that Act.

Unfunded Mandates Reform

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), the Department has assessed the effects of this 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 government or anyone in the private sector. 
Therefore, a statement under section 202 of the Act is not required.

Environmental Impact

    Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43180; 
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 
instructions.'' The agency's assessment is that this rule falls within 
this category of actions and that no extraordinary circumstances exist 
which would require preparation of an environmental assessment or 
environmental impact statement.

No Takings Implications

    This interim 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. There are no 
Constitutionally-protected private property rights to be affected, 
since the regulation applies only to agency employees.

Civil Justice Reform Act

    This interim final rule has been reviewed under Executive Order 
12988, Civil Justice Reform. This interim final rule (1) preempts all 
State and local laws and regulations that are in conflict or which 
would impede its full implementation, (2) has no retroactive effect, 
and (3) does not require administrative proceedings before parties may 
file suit in court challenging its provisions.

Controlling Paperwork Burdens on the Public

    This interim final rule does not contain any recordkeeping or 
reporting requirements or other information collection requirements as 
defined in 5 CFR 1320 and, therefore, imposes no paperwork burden on 
the public. Accordingly, the review provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501, et seq.) and implementing 
regulations at 5 CFR part 1320 do not apply.

List of Subjects in 36 CFR Part 215

    Administrative practice and procedures, National forests.

    Therefore, for the reasons set forth in the preamble, part 215 of 
Title 36 of the Code of Federal Regulations is amended, as follows:

PART 215--NOTICE, COMMENT, AND APPEAL PROCEDURES FOR NATIONAL 
FOREST SYSTEM PROJECTS AND ACTIVITIES

    1. The authority citation for part 215 continues to read as 
follows:

    Authority: 16 U.S.C. 472, 551; sec. 322, Pub. L. 102-381, 106 
Stat. 1419 (16 U.S.C. 1612 note).


Sec. 215.11  [Amended]

    2. Amend Sec. 215.11 to revise paragraph (c) and add a new 
paragraph (d) to read as follows:


Sec. 215.11  Who may participate in appeals.

* * * * *
    (c) Federal agencies may not participate as appellants or 
interested parties.
    (d) Federal employees filing appeals under this part shall comply 
with Federal conflict of interest statutes at 18 U.S.C. 202-209 and 
with employee ethics requirements at 5 CFR part 2635. Specifically, 
employees shall not be on official duty or use government property or 
equipment in the preparation or transmittal of an appeal. Employees 
also shall not use official information not yet released to the public.

    Dated: January 22, 1998.
Brian Eliot Burke,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 98-2043 Filed 1-27-98; 8:45 am]
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