[Federal Register Volume 63, Number 39 (Friday, February 27, 1998)]
[Proposed Rules]
[Pages 9987-9990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5102]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 251

RIN 0596-AB59


Land Uses; Appeal of Decisions Relating To Occupancy and Use of 
National Forest System Lands; Mediation of Grazing Disputes

AGENCY: Forest Service, USDA.

ACTION: Proposed rule.

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SUMMARY: The Forest Service requests comment on a proposed rule that 
would modify the agency's administrative appeal regulations relating to 
occupancy and use of National Forest System lands to offer mediation of 
certain grazing permit disputes in those States that have USDA 
certified mediation programs. This action is authorized by the Federal 
Crop Insurance Reform and Department of Agriculture Reorganization Act 
of 1994. The intended effect is to incorporate mediation for certain 
grazing disputes into established agency dispute resolution processes. 
Public comment is invited and will be considered in adoption of a final 
rule.

DATES: Comments must be received in writing by April 28, 1998.

ADDRESSES: Send written comments to Director, Range Management Staff, 
Mail Stop 1103, Forest Service, USDA, P.O. Box 96090, Washington, DC 
20090-6090.
    The public may inspect comments received on this proposed rule in 
the Office of the Director, 3rd Floor, South Central Wing, Auditor's 
Building, 14th and Independence Avenue, NW., Washington, DC, between 
the hours of 8:30 a.m. and 4:00 p.m. Those wishing to inspect comments 
are encouraged to call ahead (202/205-1462) to facilitate entry into 
the building.

FOR FURTHER INFORMATION CONTACT:
Berwyn L. Brown, Range Management Staff, Forest Service, (202) 205-
1457.

SUPPLEMENTARY INFORMATION: 

Background

    Pursuant to section 502 of the Agricultural Credit Act of 1987 
(Pub. L. 100-233) (7 U.S.C. 5101, et seq.), the Department of 
Agriculture offers a mediation program that provides borrowers and 
creditors an opportunity to resolve disputes prior to bankruptcy or 
litigation. This Act authorizes USDA to help States develop certified 
mediation programs and to participate in them.
    Section 282 of Title II of the Federal Crop Insurance Reform and 
Department of Agriculture Reorganization Act of 1994 (1994 amendments) 
amended the 1987 Act to expand the number and type of issues subject to 
mediation under the State Mediation Program. One of the issues subject 
to mediation in the 1994 amendments was grazing on National Forest 
System lands. The Secretary must promulgate regulations to interpret 
the mediation provisions of the 1994 amendments.
    Under the Secretary's grazing rules at 36 CFR 222.4, the Chief of 
the Forest Service may cancel a permit when one or more of the 
following conditions exist:
    When a permittee refuses to accept modification of the terms and 
conditions of an existing permit (Sec. 222.4(a)(2)(i));
    When a permittee refuses or fails to comply with eligibility or 
qualification requirements (Sec. 222.4(a)(2)(ii));
    When a permittee fails to restock the allotted range after full 
extent of approved personal convenience non-use has been exhausted 
(Sec. 222.4(a)(2)(iv)); and
    When a permittee fails to pay grazing fees within established time 
limits (Sec. 222.4(a)(2)(v)).
    The provisions of this section also authorize the Chief to cancel 
or suspend a permit when one or more of the following conditions exist:
    When a permittee fails to pay grazing fees within established time 
limits (Sec. 222.4(a)(3));
    When a permittee does not comply with provisions and requirements 
in the grazing permit or the regulations of the Secretary of 
Agriculture on which the permit is based (Sec. 222.4(a)(4));
    When a permittee knowingly and willfully makes a false statement or 
representation in the grazing application or amendments thereto 
(Sec. 222.4(a)(5)); and
    When a permittee is convicted for failing to comply with Federal 
laws or regulations or State laws relating to protection of air, water, 
soil and vegetation, fish and wildlife, and other environmental values 
when exercising the grazing use authorized by the permit 
(Sec. 222.4(a)(6)).
    These cancellation or suspension actions are generally referred to 
as ``permit enforcement actions'' and may be appealed under part 251, 
subpart C, of Title 36 of the Code of Federal Regulations, which 
pertain generally to enforcement actions by an authorized officer 
regarding written instruments authorizing occupancy and use of National 
Forest System lands. Since only holders of such authorizations may 
appeal under 36 CFR part 251, subpart C, it is this rule that the 
Forest Service proposes to amend to incorporate a mechanism for the 
mediation of certain grazing disputes, as required by the 1994 
amendments.
    Section 5101(c)(3)(D) of the Agriculture Credit Act, as amended, 
specifies that, in order to be certified, States shall provide for 
confidential mediation sessions. This statutory requirement 
necessitates a rule of rather narrow parameters. The types of decisions 
subject to mediation under this proposed rule are not subject to public 
disclosure and, therefore, can be mediated in confidence, since they 
relate to grazing permits and involve only the Deciding Officer or 
designee, the holder of a term grazing permit who seeks relief from a 
written decision to cancel or suspend a permit, and, in some 
circumstances, the holder's creditors.
    Holders of other written authorizations to occupy and use National 
Forest System lands who may appeal written decisions of Forest Service 
line officers (Sec. 251.86) will not be affected by the modifications 
in this proposed rule.

Proposed section 251.103 Mediation of Term Grazing Permit Disputes

    This proposed rule would add a new section Sec. 251.103 that 
focuses solely on mediation of certain term grazing permit disputes and 
integration of mediation into the appeal process.
    Proposed paragraph (a) specifies that in those States with USDA 
certified mediation programs, any holder of a term grazing permit may 
request mediation as part of an administrative appeal when a Deciding 
Officer issues a decision to suspend or cancel a term grazing permit, 
in whole or in part, in accordance with 36 CFR 222.4(a)(2)(i), (ii), 
(iv), (v) and (a)(3)-(a)(6). The States with mediation programs 
currently certified by USDA for fiscal year 1998 include Alabama, 
Arkansas, Arizona, Florida, Illinois, Indiana, Iowa, Kansas, Michigan, 
Minnesota, Missouri, Nebraska, Nevada, New Mexico, North Dakota, 
Oklahoma, South Dakota, Utah, Washington, Wisconsin, and Wyoming.
    Proposed paragraph (b) of new Sec. 251.103 would limit the parties 
who may participate in mediation of term grazing permit disputes to 
those persons directly affected by the action. Since the 1994 
amendments specify that mediation sessions must be confidential, this 
paragraph would permit only the State certified mediator, the Deciding 
Officer or designee, the

[[Page 9988]]

holder of the term grazing permit who seeks relief from a written 
decision to cancel or suspend a permit, creditors of the permittee, and 
legal counsel to participate in a mediation. Broader participation 
would pose a risk to the need to maintain confidentiality.
    Proposed paragraph (b) makes clear that a permittee may be 
accompanied or represented by legal counsel. The Forest Service will be 
accompanied by legal counsel only if the permittee does also. This 
provision is necessary to ensure that one party does not have an unfair 
advantage over another party in the mediation process.
    Proposed paragraph (c) specifies that, when an appellant 
simultaneously requests mediation at the time an appeal is filed 
(Sec. 251.84), the Reviewing Officer shall immediately notify, by 
certified mail, all parties to the appeal that, in order to allow for 
mediation , the appeal is suspended for 30 calendar days. If agreement 
has not been reached at the end of 30 calendar days but it appears to 
the Deciding Officer that a mediated agreement may soon be reached, the 
Reviewing Officer may extend the period for mediation up to 15 calendar 
days from the end of the 30-day appeal suspension period. If an 
agreement cannot be reached under the specified time periods, the 
Reviewing Officer shall immediately notify, by certified mail, all 
parties to the appeal that mediation was unsuccessful and that the 
appeal procedures and timeframes are reinstated as of the date of such 
notice. This provision is necessary to ensure that meaningful mediation 
can take place and, at the same time, that the Agency's administrative 
review process can be completed in a timely manner in the event 
mediation is unsuccessful in resolving a dispute. Without fixed time 
periods for mediation, and adverse decision to cancel or suspend a 
permit for cause could be postponed indefinitely. In many cases, this 
delay could result in damage to National Forest System resources.
    Proposed paragraph (d) specifies that, as required by the Act, 
mediation sessions shall be confidential. However, consistent which the 
public disclosure provisions of the National Environmental Policy Act 
and the National Forest Management Act, this proposed rule makes clear 
that the final terms of any mediated agreement are subject to public 
disclosure after mediation ends.
    Proposed paragraph (e) specifies that notes and factual material 
from mediation sessions are not to be entered as part of the appeal 
record. This is consistent with the confidentiality requirement of 7 
U.S.C. 5101(c)(3)(D) and with the administrative appeal procedures of 
36 CFR part 251, subpart C.
    Proposed paragraph (f) specifies that the United States Government 
shall cover only the expenses incurred by its own employees in 
mediation sessions. This provision recognizes USDA's ongoing 
contribution of annual funding through grants to the States to develop 
and administer state certified mediation programs, as authorized by the 
Agriculture Credit Improvement Act of 1992.
    Proposed paragraph (g) makes explicit that, except for the purpose 
of authorizing a time extension or of communicating the results of 
mediation, the Deciding Officer, or designee, shall not discuss 
mediation and/or appeal matters with the Reviewing Officer.

Conforming Amendments

    In order to integrate mediation with the appeal procedures of part 
251, subpart C, a number of conforming amendments to other sections of 
subpart C are necessary. A description of these proposed revisions 
follows.

Proposed Revision of Sec. 251.84 Obtaining Notice

    Under this section, the Deciding Officer must give written notice 
of an adverse decision subject to appeal under subpart C to applicants 
and holders as defined in Sec. 251.86 and to any holder of like 
instruments who has made a written requests to be notified of a 
specific decision. The notice must include a statement of the Deciding 
Officer's willingness to meet with applicants or holders to discuss 
issues (Sec. 251.93), specify the name and address of the officer to 
whom an appeal of the decision may be filed, and the deadline for 
filing an appeal.
    The proposed rule would redesignate the current text of 0251.84 as 
paragraph (a) and add a new paragraph (b) to require that, when a 
Deciding Officer suspends or cancels a term grazing permit pursuant to 
36 CFR 222.4(a)(2)(ii), (iv), (v) and (a)(3)-(a)(6) in a State with a 
USDA certified mediation program, the Deciding Officer must give 
written notice of the opportunity for the affected term grazing permit 
holder to request mediation.
    Under proposed paragraph (b), the Deciding Officer must notify a 
permit holder that a request for mediation must be incorporation in the 
notice of appeal.

Proposed Revision of Sec. 251.90 Content of Notice of Appeal

    This section specifies the information that an appellant must 
include in a notice of appeal. The proposed rule would amend 
Sec. 251.90(c) to allow the holder of a term grazing permit being 
cancelled or suspended to request mediation pursuant to Sec. 251.103 
with filing of the appeal in those States with USDA certified mediation 
programs.

Proposed Revision of Sec. 251.91 Stays

    Paragraph (a) of this section of the appeal rule specifies that a 
decision may be implemented during the appeal process, unless the 
Reviewing Officer grants a stay. The proposed rule would modify 
paragraph (a) of Sec. 252.91 to provide for an automatic stay when a 
term grazing permit holder appeals a decision and simultaneously 
requests mediation. As provided in proposed Sec. 251.103, in the event 
mediation fails, the stay would be lifted and appeal procedures and 
timeframes would be reinstated for the remainder of the appeal period. 
This requirement is necessary in order to allow for meaningful 
mediation prior to implementation of the decision.

Proposed Revision of Sec. 251.92 Dismissal

    This section of the appeal rule lists the actions that warrant 
closing an appeal record without a decision on the merits of an appeal. 
Under this proposed rule, paragraph (a) would be revised to provide 
that the Reviewing Officer would close an appeal if a mediated 
agreement is reached.
    Paragraph (c) of this section currently provides for discretionary 
review of a Reviewing Officer's dismissal decision, except when a 
dismissal decision results from withdrawal of an appeal by an appellant 
or withdrawal of the initial decision by the Deciding Officer. This 
proposed rule would modify this paragraph to also exempt a mediated 
agreement from discretionary review. Without such an exemption, any 
mediation agreement could be reopened at the discretion of the next 
higher level officer and, thus, undermine resolution of issues through 
mediation.

Proposed Revision of Sec. 251.93 Resolution of Issues

    Paragraph (b) of this section of the appeal rule specifies that 
when decisions are appealed, the Deciding Officer may discuss the 
appeal with the appellant(s) and intervenor(s) together or separately 
to narrow issues, agree on facts, and explore opportunities to resolve 
the issues by means other than review and decision on the appeal. At 
the request of the Deciding Officer, the Reviewing Officer may extend 
the time periods for review, except at the discretionary level, and 
specify a

[[Page 9989]]

reasonable duration to allow for conduct of meaningful negotiations. 
This proposed rule would revise paragraph (b) by making clear that the 
Reviewing Officer may extend additional time to resolve grazing 
disputes only for 15-additional days, as provided in Sec. 251.103.

Proposed Revision of Sec. 251.94 Responsive Statement

    Paragraph (b) of this section specifies that, unless the Reviewing 
Officer has granted an extension or dismissed the appeal, the Deciding 
Officer shall prepare a responsive statement and send it to the 
Reviewing Officer and all parties to the appeal within 30 days of 
receipt of the notice of appeal. If a mediated agreement is reached, 
the Reviewing Officer would close the appeal (Sec. 251.92), and no 
responsive statement would be necessary. Therefore, a conforming 
amendment is necessary to allow a Deciding Officer to delay the 
preparation of a responsive statement until mediation is concluded.

Summary

    This proposed rule would implement the requirements of 7 U.S.C. 
5101, as amended, by integrating a process for mediating certain types 
of National Forest System grazing permit disputes into the appropriate 
administrative appeal procedures. The proposed rule is limited in scope 
and applicability to holders of Forest Service term grazing permits 
that have been cancelled or suspended in those States with USDA 
certified mediation program.

Regulatory Impact

    This proposed rule has been reviewed under USDA procedures and 
Executive Order 12866 on Regulatory Planning and Review. It has been 
determined that this is not a significant rule. This rule will not have 
an annual effect of $100 million or more on the economy nor adversely 
affect productivity, competition, jobs, the environment, public health 
or safety, nor State or local governments. This rule will not interfere 
with an action taken or planned by another agency nor raise new legal 
or policy issues. Finally, this action will not alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or rights 
and obligations of recipients of such programs. Accordingly, this 
proposed rule is not subject to OMB review under Executive Order 12866.
    Moreover, this proposed rule has been considered in light of the 
limited number of States and grazing permits involved and 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. The 
proposed rule does not compel small entities to do anything. Election 
of mediation of grazing disputes is strictly at the option of an 
individual permittee. The requirements of the proposed rule are the 
minimum necessary to protect the public interest, are not 
administratively burdensome or costly to meet, and are well within the 
capability of individuals and small entities to perform.

Controlling Paperwork Burdens on the Public

    This proposed rule does not contain any new recordkeeping or 
reporting requirements or other new information collection requirements 
as defined in 5 CFR part 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.

Environmental Impact

    This proposed rule would establish uniform direction to allow for 
mediation of certain types of grazing disputes. Section 31.1b of Forest 
Service Handbook 1909.15 (57 FR 41380; 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 preliminary assessment is that this proposed 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. A final determination will be made upon 
adoption of the final rule.

Civil Justice Reform Act

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule were adopted, (1) all state 
and local laws and regulations that are in conflict with this proposed 
rule or which would impede its full implementation would be preempted; 
(2) no retroactive effect would be given to this proposed rule; and (3) 
it would not require administrative proceedings before parties may file 
suit in court challenging its provisions.

No Takings Implications

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630, and it has 
been determined that the rule does not pose the risk of a taking of 
Constitutionally-protected private property.

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 
proposed rule on State, local, and tribal governments and the private 
sector. This proposed 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 251

    Electric power, Mineral resources, National forests, Public lands-
rights-of-way, Water resources.

    Therefore, for the reasons set forth in the preamble, Subpart C of 
Part 251 of Title 36 of the Code of Federal Regulations is proposed to 
be amended as follows:

PART 251--LAND USES

Subpart C--Appeal of Decisions Relating to Occupancy and Use of 
National Forest System Lands

    1. The authority citation for subpart C is revised to read as 
follows:

    Authority: 7 U.S.C. 5101-5106; 16 U.S.C. 472, 551.


Sec. 251.84   [Amended]

    2. Amend Sec. 251.84 by designating the existing text as paragraph 
(a) and by adding a paragraph (b) to read as follows:


Sec. 251.84   Obtaining notice.

* * * * *
    (b) In States with USDA certified mediation programs, a Deciding 
Officer shall also give written notice of the opportunity for the 
affected term grazing permit holder to request mediation of decisions 
to suspend or cancel term grazing permits, in whole or in part, 
pursuant to 36 CFR 222.4(a)(2)(i), (ii), (iv), (v) and (a)(3) through 
(a)(6). Such notice must inform the permit holder that, if mediation is 
desired, the permit holder must request mediation as part of the filing 
of an appeal.


Sec. 251.90   [Amended]

    3. Amend Sec. 251.90 by revising paragraph (c) to read as follows:


Sec. 251.90   Content of notice of appeal.

* * * * *

[[Page 9990]]

    (c) An appellant may also include one or more of the following in a 
notice of appeal: a request for oral presentation (Sec. 251.97); a 
request for stay of implementation of the decision pending decision on 
the appeal (Sec. 251.91); or, in those States with a USDA certified 
mediation program, a request for mediation of grazing permit 
cancellations or suspensions pursuant to Sec. 251.103.
    4. Amend Sec. 251.91 by revising paragraph (a) to read as follows:


Sec. 251.91   Stays.

    (a) A decision may be implemented during the appeal process, unless 
the Reviewing Officer grants a stay or unless a term grazing permit 
holder appeals a decision and simultaneously requests mediation 
pursuant to Sec. 251.103. In the case of mediation requests, a stay is 
granted automatically upon receipt of the notice of appeal for the 
duration of the mediation period as provided in Sec. 251.103 of this 
subpart.
* * * * *
    5. Amend Sec. 251.92 by adding a new paragraph (a)(8) and by 
revising paragraph (c) to read as follows:


Sec. 251.92   Dismissal.

    (a) * * *
    (8) A mediated agreement is reached (Sec. 251.103).
* * * * *
    (c) A Reviewing Officer's dismissal decision is subject to 
discretionary review at the next administrative level as provided for 
in Sec. 251.87(d) of this subpart, except when a dismissal decision 
results from withdrawal of an appeal by an appellant, withdrawal of the 
initial decision by the Deciding Officer, or a mediated resolution of 
the dispute.
    6. Amend Sec. 251.93 by revising paragraph (b) to read as follows:


Sec. 251.93  Resolution of issues.

* * * * *
    (b) When decisions are appealed, the Deciding Officer may discuss 
the appeal with the appellant(s) and intervenor(s) together or 
separately to narrow issues, agree on facts, and explore opportunities 
to resolve the issues by means other than review and decision on the 
appeal, including mediation pursuant to Sec. 251.103. At the request of 
the Deciding Officer, the Reviewing Officer may extend the time period 
to allow for meaningful negotiations, except for appeals under review 
at the discretionary level. In the event of mediation of a grazing 
dispute under Sec. 251.103, the Reviewing Officer may extend the time 
for mediation only as provided in Sec. 251.103.
* * * * *
    7. Amend 251.94 by revising paragraph (b) to read as follows:


Sec. 251.94  Responsive statement.

* * * * *
    (b) Timeframe. Unless the Reviewing Officer has granted an 
extension or dismissed the appeal, or unless mediation has been 
requested under this subpart, the Deciding Officer shall prepare a 
responsive statement and send it to the Reviewing Officer and all 
parties to the appeal within 30 days of receipt of the notice of 
appeal. Where mediation occurs but fails to resolve the issues, the 
Deciding Officer shall prepare a responsive statement and send it to 
the Reviewing Officer and all parties to the appeal within 30 days of 
the reinstatement of the appeal timeframes (Sec. 251.103(c)).
* * * * *
    8. Add a new Sec. 251.103 to subpart c to read as follows:


Sec. 251.103  Mediation of term grazing permit disputes.

    (a) Decisions subject to mediation. In those States with USDA 
certified mediation programs, any holder of a term grazing permit may 
request mediation, if a Deciding Officer issues a decision to suspend 
or cancel a term grazing permit, in whole or in part, as authorized by 
36 CFR 222.4(a)(2) (i), (ii), (iv), (v), and (a)(3) through (a)(6).
    (b) Parties. Notwithstanding the provisions addressing parties to 
an appeal at 36 CFR 251.86, only the following may participate in 
mediation of term grazing permit disputes under this section:
    (1) A mediator authorized to mediate under a USDA state certified 
mediation program;
    (2) The Deciding Officer who made the decision being mediated, or 
designee;
    (3) The holder whose term grazing permit is the subject of the 
Deciding Officer's decision and who has requested mediation in the 
notice of appeal;
    (4) The holder's creditors, if applicable; and
    (5) Legal counsel, if applicable. The Forest Service will have 
legal counsel participate only if the permittee chooses to have legal 
counsel.
    (c) Timeframe. When an appellant simultaneously requests mediation 
at the time an appeal is filed (Sec. 251.84), the Reviewing Officer 
shall immediately notify, by certified mail, all parties to the appeal 
that, in order to allow for mediation, the appeal is suspended for 30 
calendar days from the date of the Reviewing Officer's notice. If 
agreement has not been reached at the end of 30 calendar days, but it 
appears to the Deciding Officer that a mediated agreement may soon be 
reached, the Reviewing Officer may notify, by certified mail, all 
parties to the appeal that the period for mediation is extended for a 
period of up to 15 calendar days from the end of the 30-day appeal 
suspension period. If a mediated agreement cannot be reached under the 
specified timeframes, the Reviewing Officer shall immediately notify, 
by certified mail, all parties to the appeal that mediation was 
unsuccessful, that the stay granted during mediation is lifted, and 
that the timeframes and procedures applicable to an appeal 
(Sec. 251.89) are reinstated as of the date of such notice.
    (d) Confidentiality. Mediation sessions shall be confidential; 
moreover, dispute resolution communications, as defined in 5 U.S.C. 
571(5), shall be confidential. However, the terms of a final mediated 
agreement are subject to public disclosure.
    (e) Records. Notes taken or factual material received during 
mediation sessions are not to be entered as part of the appeal record.
    (f) Cost. The United States Government shall cover only the 
incurred expenses of its own employees in mediation sessions.
    (g) Exparte Communications. Except to request a time extension or 
communicate the results of mediation pursuant to paragraph (d) of this 
section, the Deciding Officer, or designee, shall not discuss mediation 
and/or appeal matters with the Reviewing Officer.

    Dated: February 12, 1998.
Robert Lewis, Jr.,
Acting Associate Chief.
[FR Doc. 98-5102 Filed 2-26-98; 8:45 am]
BILLING CODE 3410-11-M