[Federal Register Volume 64, Number 134 (Wednesday, July 14, 1999)]
[Rules and Regulations]
[Pages 37843-37847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17936]



[[Page 37843]]

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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: Final rule.

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SUMMARY: This final rule amends regulations governing Forest Service 
administrative appeal regulations pertaining 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 procedures.

EFFECTIVE DATE: This rule is effective August 13, 1999.

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

SUPPLEMENTARY INFORMATION: Pursuant to section 502 of the Agricultural 
Credit Act of 1987 (7 U.S.C. 5101, et seq.) (hereafter, the 1987 Act), 
the Department of Agriculture offers a mediation program that provides 
borrowers and creditors an opportunity to resolve disputes prior to 
bankruptcy or litigation. The 1987 Act authorizes the Department of 
Agriculture to help States develop and participate in certified 
mediation programs.
    Section 282 of Title II of the Federal Crop Insurance Reform and 
Department of Agriculture Reorganization Act of 1994 (hereafter, the 
1994 amendments) amended the 1987 Act to expand the number and type of 
issues available for mediation under a State's mediation program. One 
of the issues subject to mediation in the 1994 amendments concerned 
grazing on National Forest System lands.
    Under the Secretary's rangeland regulations 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 the 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 if 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 of 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 authorization may 
appeal under 36 CFR part 251, subpart C, it is this rule that the 
Forest Service has amended to incorporate a mechanism for the mediation 
of certain grazing disputes, as required by the 1994 amendments.
    Section 501 of the 1987 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 final 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 this final rule.

Response to Comments

    A proposed rule was published for public review and comment in the 
Federal Register on February 27, 1998 (63 FR 9987). Thirteen comments 
were received from six groups and individuals representing private 
organizations, agricultural mediation programs, State agencies, and 
private citizens.
    No comments were received on Sec. 251.84, Obtaining notice; 
Sec. 251.90, Content of notice of appeal; Sec. 251.91, Stays; 
Sec. 251.92, Dismissal; Sec. 251.93, Resolution of issues; Sec. 251.94, 
Responsive statement; Sec. 251.103(e), Records; or Sec. 251.103(g) 
Exparte communication. Therefore, these sections are not discussed 
further and are adopted as proposed.
    A summary of major comments received on Sec. 251.103 and the agency 
response follows:

Section 251.103  Mediation of Term Grazing Permit Disputes

    Decisions subject to mediation. Proposed paragraph (a) of 
Sec. 251.103 stated that in those States with Department of Agriculture 
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).
    Comment. Several reviewers said that mediation should be available 
for any appealable decision including allotment management plans and 
annual operating plans. One reviewer suggested the regulation be left 
as broad as possible to allow for medication of any issues that may 
arise that could best be resolved through mediation.
    Response. The opportunity for medication is already available, but 
not mandated, under Forest Service administrative appeal regulation 
Sec. 215.16(a) for resolution of NEPA-based decisions such as those 
leading to the preparation of allotment management plans. Also Forest 
Service administrative appeal regulations at Sec. 251.93 provide for 
mediation of disputes which may arise from Forest Service decisions 
about authorized use. While it is true that section 282(a) of the

[[Page 37844]]

1994 amendments expanded the issues covered under State mediation 
programs to include ``Grazing on National Forest System lands,'' these 
mediation sessions must be confidential. The reviewers of the proposed 
rule for mediation of grazing disputes did not provide any compelling 
arguments to support the notion that the statute requires a rule which 
encompasses all grazing decisions on National Forest System lands. The 
Department has determined that the confidentiality requirement 
necessitates a rule that limits mediation to permit enforcement actions 
involving the Forest Service and the holder of a term grazing permit. 
In these cases, the subject of the mediation is the decision by the 
authorized officer to impose a sanction upon the permittee resulting 
from a violation of the permit terms and conditions.
    Parties. Proposed paragraph (b) of Sec. 251.103 stated that the 
parties who may participate in mediation of term grazing permit 
disputes would be limited to the State certified mediator, the Deciding 
Officer or designee, the permittee who has requested mediation, 
creditors of the permittee, and, potentially, legal counsel 
representing the permittee and the Deciding Officer.
    Comment. Several respondents urged the Forest Service to expand the 
category of parties eligible to participate in mediation to include 
technical experts, State agency personnel, and other Forest Service 
personnel. One respondent recommended that the permit holder and 
Deciding Officer have the authority to expand or limit participants. 
Another respondent stated the holder should be able to invite any party 
to support them. One respondent stated mediation should include 
representatives from the affected State fish and wildlife agency and 
local non-governmental conservation groups. Two respondents wanted the 
Deciding Officer, and not a designee, to participate in mediation to 
ensure consistency.
    Response. The input of third parties would have no bearing on the 
outcome of mediation since the scope of the mediation is narrowly 
focused on a permittee's violation of permit conditions, which led to 
suspension or cancellation of their permit. Third parties have no cause 
or reason to participate in a mediation of a term permit dispute 
between a permittee and the Government. Also as stated in the preamble 
of the proposed rule, broader participation in mediation would pose a 
risk to maintaining the required confidentiality.
    Given the nature of Forest Service business and scheduling 
difficulties due to a reduce workforce, the Department has determined 
that a designee of the Deciding Officer who made the decision could 
represent the Forest Service in mediation of term grazing permit 
disputes. Although, the Department agrees that it is desirable to have 
the Deciding Officer participate in mediation, there likely will be 
times when Deciding Officer participation will not be possible. 
Furthermore, the decision that is the subject of the mediation, 
although made by the Deciding Officer, is still a Forest Service action 
and a designee should be able to adequately represent the agency in the 
mediation of the dispute. Therefore, the provision in the proposed rule 
at Sec. 251.103(b)(2) is retained without revision in the final rule. 
The Forest Service plans to issue Service-wide direction to require the 
Deciding Officer to participate in mediation when available.
    Timeframe. Proposed paragraph (c) of Sec. 251.103 stated that when 
an appellant simultaneously requested mediation at the time an appeal 
is filed, 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. Proposed paragraph (c) 
also proposed that if an 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 an additional 15 calendar days.
    Comment. Several respondents encouraged the Forest Service to 
increase the timeframe for mediation to 60 to 90 days instead of the 30 
to 45 day timeframe set forth in the proposed rule. One respondent 
requested the addition of a provision to extend the timeframe for 
mediation beyond 90 days to gather new information.
    Response. The decision to limit mediation to 45 days was intended 
to provide the opportunity for meaningful mediation, while, at the same 
time, ensure that the Agency's administrative review process would be 
completed in a timely manner. In the event that mediation was 
unsuccessful, the 45-day timeframe would minimize the potential for 
delays and damage to National Forest System lands and resources. 
However, based on the comments received and experience gathered by the 
agency through experimenting with mediation of cancellation and 
suspension actions during the preparation of the proposed rule, the 
request to provide additional time for the mediation process seems 
reasonable and offers increased scheduling flexibility and more time 
for pre-mediation preparation and the actual mediation. Since the 
issues associated with suspension and cancellation actions are limited 
and narrowly focused, the agency does not agree that a provision to 
extend beyond 60 calendar days is warranted. Therefore, the Department 
has revised the provision in the proposed rule at Sec. 251.103(c) to 
suspend the appeal for 45 calendar days with an option to extend the 
period an additional 15 calendar days, if the Deciding Officer believes 
a mediated resolution to the dispute is imminent. Even after the 
termination of this time period, discussions intended to resolve the 
dispute without proceeding with an administrative appeal may continue 
under 36 CFR 251.93.
    Confidentiality. Proposed paragraph (d) specifies that mediation 
sessions must be confidential and that the terms of a final mediated 
agreement are subject to public disclosure.
    Comment. Reviewers supported confidential mediation sessions 
between the Forest Service and individual term grazing permit holders; 
however, several reviewers expressed concern over what information 
would be included in a ``public disclosure of the terms'' of a mediated 
agreement.
    Response. The Department agrees that clarification of the 
information being disclosed is needed. Background material used in 
mediation would not be included in a mediated agreement. Therefore, the 
proposed rule at Sec. 251.103(d) has been revised to clarify that only 
the final agreement signed by both the Forest Service official and the 
permit holder is subject to public disclosure.
    Cost. Paragraph (f) of Sec. 251.103 proposed that the United States 
Government shall cover only the incurred expenses of its own employees 
in mediation sessions.
    Comment. Reviewers requested changing the proposed cost provision 
to include dividing the cost for services provided under State 
certified programs equally between the State, permittee, and the Forest 
Service or dividing the cost evenly between the Forest Service and the 
permittee. Primary reasons given by reviewers for the Government to pay 
additional costs include: (1) While the Department of Agriculture does 
administer and distribute the mediation grant funds, the funds 
themselves are provided by Congress through a separate line item 
appropriation. Thus, the certified mediation programs are not being 
funded by ``agency'' funds; (2) Each

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party to the mediation must be treated equally, including sharing the 
cost of mediation; otherwise, there is a perception it is part of the 
Forest Service system and, as such, the outcome will have a bias toward 
the Service; (3) All other Department of Agriculture agencies 
participating in the program are paying fees in those States that 
charge them; (4) Without the Forest Service paying a share of the costs 
States will be forced to request augmented Department of Agriculture 
mediation grants to maintain the effectiveness of the program currently 
established; and (5) Wyoming statutes specifically provide that parties 
in the mediation process shall share the costs of mediation equally.
    Response. After fully considering these comments the Department 
does not agree that there are compelling arguments to warrant the 
Government incurring additional responsibility for the cost of 
mediation because:
    (1) The issue of the cost of mediation is not that funds are 
provided through a line item appropriation but rather that the 
Department already provides a large share of the funding for State 
mediation program operating expenses.
    (2) The system for allocating the costs of the mediation among the 
parties should have no bearing on whether the parties will be treated 
equally. Mediators are specifically trained to serve as a neutral third 
party with no bias toward either side of the dispute. Although State 
mediation programs are certified by the Secretary of Agriculture, the 
mediators are State, not Federal, officials. Furthermore, in light of 
the fact that the Department of Agriculture already finances a 
substantial percentage of state mediation programs, additional payments 
by the Forest Service to cover a portion of the cost of the mediation 
may create a perception that the system is biased towards the agency.
    (3) Regardless of how other agencies of the Department of 
Agriculture address this issue, it is the Forest Service position that 
it does not currently have sufficient funds in its rangeland management 
budget to comply with its basic land management planning and permit 
responsibilities and also cover state mediation expenses.
    (4) The Department would not object to the States seeking 
additional funding to cover the cost of grazing permit dispute 
mediation expenses through an increased grant from the Department.
    (5) States vary widely in their policies for funding of State 
certified mediation programs. To the extent that State laws conflict 
with these regulations, these regulations would prevail.

Other Comments

    Comment. Some reviewers indicated that mediation is relatively 
unknown to most people and that a definition of mediation in the 
regulation would be helpful to explain what it is and how it works.
    Response. Mediation is not a term of art, but a common term with a 
common meaning; therefore, the term ``mediation'' does not need to be 
defined in the Code of Federal Regulations. However, since Sec. 251.84 
requires the Deciding Officer to give written notice of the opportunity 
for mediation in the notice of appeal when the action suspends or 
cancels a term grazing permit pursuant to 36 CFR 222.4(a)(2)(ii), (iv) 
and (a)(3) through (a)(6), the Department agrees that describing the 
mediation process is a good idea. The Forest Service plans to issue 
national direction instructing the Deciding Officer to include a 
description of the mediation process in the written notice of adverse 
action per Sec. 251.84.
    Comment. Several respondents requested that mediation be made 
available to all permit uses on Forest Service lands, instead of 
limited to only term grazing permit disputes, according to proposed 
Sec. 251.103.
    Response. The opportunities for informal resolution of disputes, 
including use of mediation, involving other permitted uses of National 
Forest System lands, is already available under Forest Service 
administrative appeal regulations. This final rule is limited to 
implementing the Agricultural Credit Act of 1987, as amended, and, 
therefore, requires a rule of narrow parameters. Thus, the expansion of 
mediation to permit disputes, other than grazing permit suspension or 
cancellation, is not appropriate under this rulemaking.
    Comment. Two respondents requested that the regulation allow the 
permittee and the Deciding Officer to form technical review teams to 
gather resource information and to provide technical expertise for 
making sound management decisions.
    Response. Because the scope of the mediation is limited to certain 
types of permit enforcement actions, it is unclear what benefit, if 
any, would result from authorizing the formation of technical review 
teams to advise the permittee and the Deciding Officer. In addition, 
staffing these teams could be costly and time consuming for the 
parties. Therefore, since the benefits of a technical review team would 
be minimal, at best, while the costs are substantial, the final rule 
does not provide for such teams to be involved in the mediation 
process, either directly or indirectly.
    The full text of revisions to 36 CFR part 251, subpart C, is set 
out at the end of this notice.

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 rule. This rule will not have 
an annual effect of $100 million or more on the economy nor will it 
adversely affect productivity, competition, jobs, the environment, 
public health or safety, or State or local governments. This rule will 
not interfere with an action taken or planned by another agency nor 
raise new legal or policy issues. Finally, this action will not alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients of such programs. 
Accordingly, this final rule is not subject to Office of Management and 
Budget review under Executive Order 12866.
    Moreover, this final rule has been considered under 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 final 
rule does not compel small entities to do anything. Election of 
mediation of grazing disputes is strictly voluntary at the option of an 
individual permittee. The requirements of the final 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 final 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 final 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 43180, September 18, 1992) excludes 
from documentation in an environmental

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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 final 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.

Civil Justice Reform Act

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

No Taking 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.

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 
final rule on State, local, and tribal governments and the private 
sector. This final 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.
    Therefore, after notice and consideration of comments received and 
for the reasons noted in the preamble, the Secretary of Agriculture is 
adopting the final rule for implementing section 282 of Title II of the 
Federal Crop and Insurance Reform and Department of Agriculture 
Reorganization Act of 1994.

List of Subjects in 36 CFR Part 251

    Electric power, Mineral resources, National forests, Rights-of-way, 
and 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 amended as 
follows:

PART 251--LAND USES

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

    1. Revise the authority citation for subpart C to read as follows:

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

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


Sec. 251.90  Content of notice of appeal.

* * * * *
    (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 Department of 
Agriculture certified mediation program, a request for mediation of 
grazing permit cancellation 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.
* * * * *
    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), 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 Sec. 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 Department 
of Agriculture certified mediation programs, any holder of a term 
grazing permit may request mediation, if a Deciding Officer issues a 
decision to

[[Page 37847]]

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 Sec. 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 Department of 
Agriculture 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 choose 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 45 
calendar days from the date of the Reviewing Officer's notice. If 
agreement has not been reached at the end of 45 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 45-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 final agreement signed by 
the Forest Service official and the permit holder is 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 incurred 
expenses of its own employees in mediation sessions.
    (g) Exparte communication. 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: June 27, 1999.
Anne Kennedy,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 99-17936 Filed 7-13-99; 8:45 am]
BILLING CODE 3410-11-M