[Federal Register Volume 67, Number 243 (Wednesday, December 18, 2002)]
[Proposed Rules]
[Pages 77451-77463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31681]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 215

RIN 0596-AB89


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

AGENCY: Forest Service, USDA.

ACTION: Proposed rule; request for comment.

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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 
[email protected]; 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. Please note that all comments, including names and 
addresses when provided, are placed in the record and are available for 
public inspection and copying. The agency cannot confirm receipt of 
comments. Individuals wishing to inspect the comments should call (406) 
329-3038 to facilitate an appointment. Additional information is 
provided at http://www.fs.fed.us/emc/applit/index.htm.

FOR FURTHER INFORMATION CONTACT: Ginger Hamilton, Program Manager, 
Content Analysis Team (406) 329-3038.

SUPPLEMENTARY INFORMATION:

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

[[Page 77452]]

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

[[Page 77453]]

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.
    Proposed Section 215.1 Purpose and scope. This proposed section 
incorporates the current Sec.  215.1 with changes that are generally 
minor and clarifying in nature. Proposed paragraph (b) is rewritten to 
eliminate repetitive language and to clearly state that the appeals 
process is available only for those who commented during the time 
period for the opportunity to comment and that appeal issues are 
limited to those raised during that comment period (Sec.  215.5). Other 
changes to note are that here and throughout the proposed rule the 
phrase ``opportunity to comment'' is often used to better reflect 
Congressional intent to require a specific time period to seek public 
comment.
    Proposed Section 215.2 Definitions. This proposed section 
incorporates the current Sec.  215.2 with changes. The proposed rule 
adds six new terms: Appeal disposition, emergency situation, name, 
National Forest System lands, projects and activities implementing a 
land and resource management plan, and substantive comments; removes 
three terms because they would no longer be applicable to the 215 
regulations as amended: Decision document, decision memo, and 
interested party; removes the definition for ``proposed timber harvest 
categorically excluded from documentation under Forest Service Handbook 
1909.12, section 31.2, paragraph 4'' as this was removed from the 
Handbook; and revises and updates several terms and definitions as 
explained in the following paragraphs. Terms and definitions not set 
out here are unchanged from the current rule.
    Appeal. The proposed definition replaces the verb ``objects'' with 
``seeking review of'' to distinguish appeals from the recently 
established ``objection'' process in the 2000 planning regulation at 36 
CFR part 219.
    Appeal Deciding Officer. The proposed definition corrects a 
typographical error and changes ``Forest Service line officer'' to 
``Secretary of Agriculture or Department or agency designee,'' making 
it clear that the Secretary can serve as the Deciding Officer in the 
event that there is an appeal of a Chief's decision.
    Appeal period. The proposed definition clarifies that the appeal 
periods begins following publication of the legal notice of a decision.
    Appeal record. The proposed definition is rewritten to eliminate 
unnecessary wording; delete the term ``written comment submitted by 
interested parties'' to conform to the proposed removal of the term 
``interested party''; and add ``the Appeal Reviewing Officer's 
recommendation,'' which was inadvertently omitted in the current rule.
    Appeal Reviewing Officer. The proposed definition clarifies that a 
Department of Agriculture official can also serve as an Appeal 
Reviewing Officer.
    Categorical Exclusion. This proposed term was changed to conform to 
the regulations governing categorical exclusions. The current term is 
categorically excluded.
    Comment period. This proposed definition is rewritten and changed 
to state that the notice of the opportunity to comment must be 
published in a legal notice as opposed to the current language, which 
merely says a notice must be published. Additionally, the information 
in Sec.  215.5 on how to compute the comment period is included.
    Decision document. For clarity, it is proposed to remove this term 
and use Decision Notice and/or Record of Decision as appropriate.
    Decision documentation. It is proposed to shorten and clarify this 
definition and eliminate the unnecessary examples of what might 
constitute decision documentation.
    Decision memo. It is proposed to remove this definition because it 
is no longer applicable to this regulation.
    Environmental Assessment (EA)--Language was added to this proposed 
definition to conform to that found in 40 CFR 1508.9 regarding an EA.
    Emergency situation. It is proposed to move the definition to Sec.  
215.2, while incorporating and revising the description at current 
Sec.  215.10. While the Act does not specifically define emergency 
situations, it gives the Chief discretion to determine when an 
emergency situation exists. This proposed definition would be broadened 
to make clear that emergency situations can include situations not 
explicitly listed in the current description at section 215.10. 
Additionally, experience has shown that some emergency situations on 
National Forest System lands may pose a risk to adjacent lands and 
therefore, warrant being included in the definition of emergency 
situations. Some situations may result in substantial loss of economic 
value if implementation is delayed. Further, the examples are removed, 
as it is impossible to predict all possible scenarios where an 
emergency situation exists.
    Forest Service line officer. The proposed definition removes the 
current examples of line positions, as they are not necessary for 
understanding and applying the definition.
    Interested party. It is proposed to remove this term and thus the 
definition, which is not used in the proposed rule. Related information 
is set out in the description of proposed Sec.  215.12.
    Name. It is proposed to add this definition. Because the proposed 
rule provides for accepting electronic comments and appeals, it is 
critical that the Forest Service have the ability to identify 
individuals and organizations in order to establish their standing 
(ability to submit appeals).
    National Forest System lands. This definition, based on Sec.  
200.1(c)(2), is added to clarify what lands comprise the National 
Forest System. This definition makes clear that research and 
experimental areas (such as experimental forests) are included in 
National Forest System lands.
    Projects and activities implementing a land and resource management 
plan. It is proposed to add this definition. The Act uses this phrase 
to define what proposed actions are subject to this part; however, the 
current regulation does not provide a definition. Application of the 
current rule has shown that the lack of

[[Page 77454]]

a definition causes confusion about exactly which projects and 
activities are subject to notice, comment, and appeal. Further, the 
proposed definition makes clear that research activities on all 
National Forest System lands are subject to this part.
    Proposed action--The proposed definition was changed to remove the 
words ``recommend'' and ``implement'' to avoid confusion. Actions that 
are ``recommended'' are not subject to this rule and actions that have 
been approved and already subject to this rule are not subjected again 
at implementation.
    Proposed timber harvest categorically excluded from documentation 
under Forest Service Handbook 1909.12, section 31.2, paragraph 4. It is 
proposed to remove this term from the definitions and throughout the 
proposed rule because this categorical exclusion is no longer in use.
    Responsible Official. The proposed definition would replace ``line 
officer'' and ``authority and responsibility to make decisions'' with 
``Forest Service employee who has the delegated authority to make and 
implement the decision'' to clarify that some decisions subject to this 
rule are made and implemented by a Regional Director, through delegated 
authority, even though this position is not considered a ``Forest 
Service line officer.''
    Substantive comments. It is proposed to add this definition in 
order to define a new term that is added to the proposed rule. The 
explanation for adding this term is included in the proposed Sec. Sec.  
215.5 and 215.6 below.
    Proposed Section 215.3 Proposed actions subject to legal notice and 
opportunity to comment. This proposed section revises and incorporates 
current regulatory text from Sec.  215.3, and revises the heading to 
include the term ``opportunity to comment.''
    Since timber harvest is no longer an activity that may be 
categorically excluded from documentation in an environmental 
assessment (EA) or environmental impact statement (EIS), current 
paragraph (b) is removed; current paragraph (c) on nonsignificant 
amendments to land and resource management plans is redesignated to 
paragraph (b).
    Proposed paragraph (c) would apply procedures for notice and 
opportunity to comment to revision of an EA based on new information or 
changed circumstances. Paragraph (c) is added because confusion has 
resulted from not having addressed this point in the current rule.
    Current paragraph (d) covering National Forests without land and 
resource management plans is removed as all National Forests now have 
approved land and resource management plans.
    Current paragraph (e) is redesignated (d) and is rewritten to say 
``research activities'' instead of ``forestry research activities'' to 
reflect that research activities conducted on National Forest System 
lands for which environmental analysis is performed, include forestry 
as well as other types of research.
    Proposed Section 215.4 Actions not subject to legal notice and 
opportunity to comment. This proposed section revises and incorporates 
the regulatory text from the current Sec.  215.4 and revises the 
heading to include the term ``opportunity to comment.''
    Proposed paragraph (b) is rewritten excluding from notice and 
opportunity to comment all proposed actions that are categorically 
excluded. As explained when 36 CFR part 215 was promulgated (58 FR 
58905), it is appropriate to exclude proposed actions that are 
categorically excluded from notice and opportunity to comment. For all 
projects subject to NEPA, Forest Service procedures require that 
interested and affected individuals be included in project planning 
through public involvement commensurate with the nature and complexity 
of the proposed action. By their very nature, proposed actions that may 
be categorically excluded from documentation in an EA or EIS generally 
have little to no environmental effect.
    The current rule does not address the application of this section 
to the following situation: a determination by the Responsible Official 
that new information or changed circumstances does not result in 
revision of the EA. Proposed paragraph (d) is added to clarify that 
such situations are not subject to notice and opportunity to comment.
    Proposed Section 215.5 Legal notice of proposed action and 
opportunity to comment. The proposed heading is rewritten for clarity 
and to include the term ``opportunity to comment.'' This proposed 
section retains but also revises and reorganizes most of the 
requirements in current Sec.  215.5 and also incorporates pertinent 
paragraphs from current Sec.  215.6. The proposed paragraph headings 
are rewritten for clarity and to reflect the reorganization of this 
section. In this section and throughout the proposed rule, the terms 
``notice'' and ``public notice'' are replaced with the term ``legal 
notice'' to reflect standard practice and terminology. ``Legal notice'' 
is intended to mean publication in the legal notice section of the 
paper of record.
    Proposed paragraph (a), ``Timing for publication of legal notice,'' 
would incorporate and revise current paragraph (b)(2)(i) to give the 
Responsible Official discretion to determine the most effective timing 
for publishing the legal notice of the proposed action and opportunity 
to comment. There are instances when a proposed action is well 
developed, with sufficient information to allow for substantive public 
comment during the scoping phase of project planning. Other times, it 
might be more helpful to the Responsible Official for the comment 
period to occur prior to alternative development. In a third instance, 
a comment period after alternative development might be of most 
benefit. These are examples of how the rule's flexibility allows for 
the most effective use of the comment period significantly earlier in 
the project planning than the current rule permits. Timing for the 
comment period would be determined on a project-by-project basis, 
depending on the nature and complexity of the project. The flexibility 
with such discretion would allow the Responsible Official to provide an 
opportunity for early comment and meaningful public participation 
during project planning, at the stage when comments will be most 
helpful in developing public understanding and an effective project. 
The Forest Service expects to develop policy guidance with regard to 
the appropriate timing of the 30-day comment period following 
promulgation of a final rule. This change is consistent with the 
statutory language of the Act. In contrast, the current rule requires 
that the EA be mailed to any individual who is known to have 
participated, a procedure which goes beyond the requirements in the Act 
and unnecessarily delays the process by requiring, in all cases, the 
mandated 30-day comment period only after the EA is completed.
    Proposed paragraphs (b)(1) through (b)(5) incorporate the 
regulatory text concerning notice and comments from the current 
Sec. Sec.  215.5, 215.6(a) and 215.10(d)(2).
    Proposed paragraph (b)(4)(i)-(viii), ``Content of legal notice,'' 
adds all forms of the Responsible Official's address; the acceptable 
format for electronic comments; a signature requirement for each 
individual or organization listed; a statement that the ability to 
appeal is tied to timely submission of comments; and information about 
emergency situations.
    The proposed rule provides for electronic submission of comments 
which is not addressed in the current rule. Proposed paragraph 
(b)(4)(v),

[[Page 77455]]

requires that the legal notice specify a standard format for electronic 
comments, because experience has shown that not all electronic 
submissions are compatible with the Forest Service computer systems. It 
should be noted that those availing themselves of electronic 
transmission of comments are responsible for ensuring that their 
submissions are timely. The Forest Service is unable to accept 
responsibility for failure of electronic devices.
    The notice requirements for emergency situations are currently 
described in current Sec.  215.10(d) ``Implementation of decisions,'' 
but it is more appropriate to include them in proposed paragraph 
(b)(4)(ix).
    Proposed paragraph (b)(5) incorporates current Sec.  215.6(a) 
concerning the time period for comments and is rewritten for clarity. 
The current requirement that the public notice for comment include the 
date the comment period ends has resulted in problems and confusion for 
the agency and the public. Currently, the agency employee preparing the 
legal notice must estimate the date of publication and the date the 
comment period ends, for inclusion in the notice. However, because 
publication delays are not uncommon, there have been numerous instances 
of confusion as to the correct deadline for accepting comments. The 
remedy to this problem is found in proposed paragraphs (b)(5) to 
(b)(5)(i)(B), which describe how the commenter can determine the last 
day for accepting comments by noting the newspaper date of the legal 
notice and adding thirty days. Comments must be sent by the end of the 
30th day.
    The current regulation does not address extending the comment 
period and this has resulted in confusion. Proposed paragraph 
(b)(5)(ii), which conforms to the language in the Act, explicitly 
states that the period for the opportunity to comment cannot be 
extended.
    Proposed paragraph (c), ``Comments,'' revises and incorporates the 
requirements regarding the content of comments currently in Sec.  
215.6(b), and adds new paragraphs (1) and (3), requiring signatures on 
the comment letters, that comments must be specific and provides 
consistent requirements for oral comments. The requirements in 
paragraph (c) through (c)(3) are rewritten to address the following 
difficulties encountered during implementation of the current rule: 
identification of those who can appeal when comment letters list 
several organizations but include only one signature with a statement 
that the individual represents all the organizations; uncertainty as to 
which proposed action the comments address; receipt of comments that 
are not relevant to the specific project or activity or are so general 
in nature that they are not useful to the Responsible Official in 
making a more informed decision; and inconsistency in submission of 
oral comments.
    Proposed Section 215.6 Consideration of comments. This section, as 
proposed, is considerably shortened from the current rule because the 
current paragraphs (a) and (b) on procedures for commenting are moved 
to proposed Sec.  215.5. In order to encourage the public to submit 
meaningful and specific comments, the remaining paragraphs are revised 
by requiring the consideration of all substantive written and oral 
comments.
    Proposed Section 215.7 Legal notice of decision. This proposed 
section makes minor revisions, incorporates the requirements in the 
current Notice of decision, Sec.  215.9, and adds two new paragraphs as 
described below.
    Proposed paragraph (a)(2)(ii) would require that the legal notice 
describe how the time period for filing an appeal is calculated and 
would clarify that it is the appellants' responsibility to determine 
the time allotted, based on the publication date of the legal notice 
and not relying on dates or time frames provided by any other source. 
To avoid any confusion should publication be delayed, this proposed 
paragraph also makes clear that an actual date for the end of the 
comment period shall not be included in the legal notice.
    Proposed paragraph (a)(2)(vi) would provide for notification of the 
public as to when implementation may occur in emergency situations as 
set out in proposed Sec.  215.9(b). While implementation of decisions 
regarding emergency situations is discussed in current Sec.  215.10(d), 
there is no requirement to notify the public of timeframes.
    Proposed Section 215.8 Decision implementation. This proposed 
section incorporates, revises, and redesignates at paragraphs (a) 
through (c)(2), the requirements currently in Sec.  215.10 paragraphs 
(a) through (c). Proposed paragraph (c) differentiates between when 
decisions documented in a Decision Notice (DN) or in a Record of 
Decision (ROD) can be implemented, which was inadvertently omitted from 
the current Sec.  215.10. This differentiation is necessary to ensure 
compliance with the Council on Environmental Quality (CEQ) regulations 
governing final environmental impact statement (FEIS) and ROD 
timeframes.
    Proposed Section 215.9 Emergency situations. This proposed section 
is added to set out procedures for emergency situations in a separate 
section for clarity and so that they can be located quickly and easily. 
The definition for emergency situations, at current (Sec.  
215.10(d)(1)), is moved to Sec.  215.2, Definitions.
    Proposed paragraph (a) clarifies that authority for determination 
of an emergency situation is not reserved to the Chief and may be 
delegated, though not below the Regional Forester or Station Director 
level. The current regulation appears to reserve this determination 
solely for the Chief, although the Act does not mandate such 
reservation.
    Proposed paragraph (b) incorporates current Sec.  215.10(d) 
regarding implementation of emergency situations and clarifies when 
implementation of the project or activity may begin. In addition, it 
differentiates between decisions determined to be an emergency 
documented either in a Decision Notice (DN) or in a Record of Decision 
(ROD). This differentiation is necessary to clarify compliance with the 
Council on Environmental Quality (CEQ) regulations governing final 
environmental impact statement (FEIS) and ROD timeframes.
    Proposed paragraph (c) reiterates that the legal notice shall 
include information about the determination of an emergency situation. 
Examples of emergency situations are removed because they do not cover 
all emergency situations that may occur, which caused confusion.
    Proposed Section 215.10 Decisions subject to appeal. This proposed 
section incorporates Sec.  215.7(a) of the current rule and adds two 
new paragraphs to proposed paragraph (a). To clarify existing confusion 
over how to apply this section when considering new information or 
changed circumstances, paragraph (a)(2) is added; and a new paragraph 
(a)(3) is added to clarify and address those instances where the Forest 
Service makes decisions in conjunction with other federal agencies but 
where only a portion of the decision applies to National Forest System 
lands.
    Current paragraph Sec.  215.7(b) is removed because Forest Service 
policy no longer allows timber harvest projects and activities to be 
documented in a decision memo.
    Proposed paragraph (b) is added, but it is only a technical change. 
Currently these decisions are discussed in Sec.  215.8(c) Decisions not 
subject to appeal, which could be misleading to someone who has the 
option to use the appeal process at either part 215 or part

[[Page 77456]]

251. It is more appropriate under this section.
    Proposed Section 215.11 Decisions and actions not subject to 
appeal. This proposed section revises, reorganizes and incorporates the 
requirements from current Sec.  215.8. Proposed paragraph (b) is added 
to address situations involving new information or changed 
circumstances that do not result in a new decision and make clear that 
this situation is not subject to appeal. Proposed paragraph (c)(ii) is 
added (corresponding to that provided for environmental assessments in 
proposed paragraph (c)(i)) for situations where no comments or only 
supportive comments are received during the comment period for a draft 
environmental impact statement (DEIS), and the Responsible Official's 
decision does not modify the preferred alternative identified in the 
DEIS. This was an inadvertent omission in the current rule.
    Proposed paragraph (c) combines two current paragraphs ((a)(2) and 
(b)), and removes sentences and examples found in the current rule that 
are necessary for understanding and paragraph (c) in the current Sec.  
215.8 is moved to proposed Sec.  215.10, ``Decisions subject to 
appeal.''
    Proposed paragraph (d) differentiates between environmental 
assessments (EAs) and environmental impact statements (EISs) not 
subject to appeal and proposed paragraph (d)(ii) sets out that for a 
decision to not be subject to appeal under this paragraph, both 
criteria must be met.
    Proposed paragraphs (f), ``Nonsignificant amendments to land and 
resource management plans,'' and (g), ``Concurrences and 
recommendations from other federal agencies'' are added for 
clarification and to eliminate confusion about what is subject to 
appeal. Concurrences and recommendations from other federal agencies 
are not Forest Service decisions, nor do they meet the definition of a 
Forest Service ``project or activity implementing a land and resource 
management plan'' and thus would not be subject to appeal.
    Proposed Section 215.12 Who may appeal. This proposed section 
incorporates current Sec.  215.11, paragraphs (a), (c), and (d) and is 
rewritten for clarity.
    Proposed paragraph (a) combines current paragraphs Sec.  
215.11(a)(1) and that portion of (2) regarding submission of comments 
pursuant to provisions of Sec.  215.6 (now proposed Sec.  215.5). The 
remaining portion of paragraph (a)(2) is removed to more closely 
conform to the Act in regard to ``who may appeal''. The Forest Service 
believes that a mere ``expression of interest'', such as that of an 
individual having no participation in the project planning process, but 
who requested a copy of the decision, does not meet Congressional 
intent for who may appeal. This conclusion is based on a reading of 
those portions of the Act 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.
    Current Sec.  215.11(b) ``Interested parties,'' is removed. The 
current provision exceeds the provisions of the Act, which only 
addresses appellants or those individuals who have participated in the 
planning process and who have provided comments within the proscribed 
timeframes.
    Proposed paragraph (b) addresses procedures for appeals listing 
multiple individuals or organizations. The current regulations are 
unclear on how to process appeals with multiple names to determine who 
has standing to appeal, resulting in inconsistent application across 
the Forest Service.
    Proposed Section 215.13 Where to file appeals. This section 
incorporates the requirements in current Sec.  215.12, adds two levels 
of Responsible Officials inadvertently omitted from the current 
regulation: Chief of the Forest Service and Research Work Unit Leader, 
and clarifies that a Station Director is also considered a Responsible 
Official.
    Proposed Section 215.14 Appeal time periods and process. The 
requirements in current Sec.  215.13 are incorporated in proposed 
section Sec.  215.14; paragraphs are rewritten for clarity, 
reorganized, and redesignated.
    Proposed paragraph (b) clarifies that all time periods that end on 
a Saturday, Sunday, or federal holiday shall be extended to the end of 
the next federal working day.
    Proposed paragraph (c) clarifies how timeliness shall be determined 
for various methods of delivery, including e-mail; states that an 
automated response should be received from the agency when an appeal is 
electronically mailed, as a verification of receipt; and that should an 
electronic response not be received, it is the appellant's 
responsibility to provide evidence that the appeal was sent in a timely 
manner.
    Current Sec.  215.13(e), ``Interested party comments,'' is removed, 
as discussed in proposed Sec.  215.12 and the remainder of proposed 
Sec.  215.14 is redesignated. Proposed paragraph (e) rewrites current 
paragraph Sec.  215.13(f)(1) replacing ``transmit appeal record'' with 
``transmit decision documentation.'' The appeal record is assembled by 
the Deciding Officer, not the Responsible Official. Further, the 
current paragraph on review recommendation (Sec.  215.13(f)(2)) is 
removed because the Act does not include any time period for the review 
recommendation. The regulatory text describing what an appeal decision 
must contain at Sec.  215.13(f)(3) is moved to proposed Sec.  215.18.
    Proposed Section 215.15 Appeal content. This section of the 
proposed rule retains the requirements of current Sec.  215.14.
    Proposed paragraph (a) is rewritten with minor changes for 
terminology consistency and to clarify that the focus of the appeal is 
providing project- or activity-specific evidence and rationale as it 
relates to the decision. The term ``remanded'' in current paragraph (a) 
is removed because it is not used elsewhere in either the current rule 
or the proposed rule.
    Proposed paragraph (b) rewrites, reorganizes, and redesignates 
current Sec.  215.14(b). Proposed paragraph (b)(5) clarifies that 
appeal issues are limited to substantive comments submitted during the 
comment period. This change is consistent with the Act.
    Proposed paragraph (c) is added, setting out those instances when 
an appeal would not be accepted. It makes clear to those planning to 
appeal that it is to their benefit to include all applicable 
information.
    Proposed Section 215.16 Dismissal of appeal without review. The 
requirements in current Sec.  215.15 now appear in proposed Sec.  
215.16.
    Proposed paragraph (a) is rewritten for clarity and consistency 
with proposed Sec.  215.14, to show how timeframes for different 
delivery methods are applied. Current Sec.  215.15(a)(7) concerning 
filing for judicial review is removed in accordance with Public Law 
103-354, the USDA Reorganization Act of 1993. Current Sec.  
215.15(a)(5) is rewritten as proposed paragraph (a)(6) and is 
consistent with proposed Sec.  215.15(b)(5) concerning the limitation 
of appeal issues. Proposed paragraph (a)(9) is added to provide for 
dismissal when an appellant withdraws an appeal and to be consistent 
with the current rule which provides for dismissal when a responsible 
official withdraws a decision.
    Proposed Section 215.17 Informal disposition. The requirements in 
current Sec.  215.16 are incorporated in proposed Sec.  215.17, with 
minor changes.
    Proposed paragraph (b) is rewritten to clarify that it is the 
``initial'' meeting that must occur within 15 days. This change 
alleviates the confusion about whether informal resolution must be 
concluded within 15 days.

[[Page 77457]]

    Proposed paragraph (c) removes the reference to interested parties, 
consistent with the proposed change removing this term elsewhere in the 
rule.
    Proposed paragraph (d) is rewritten, articulating the various 
scenarios that may result from informal disposition.
    Proposed Section 215.18 Formal review and disposition procedures. 
The requirements of current Sec.  215.17 are incorporated in proposed 
Sec.  215.18 and the proposed heading is changed to ``Formal review and 
disposition procedures'' for clarity.
    Proposed paragraph (b)(1) adds the procedures to use when an appeal 
decision includes instructions. The omission of these procedures in the 
current rule has resulted in confusion about the procedures to follow 
in such cases. Proposed paragraph (b)(2) articulates that issuing an 
appeal decision is not required; this change is consistent with the 
Act.
    Proposed paragraph (c) makes clear that an appeal decision cannot 
be issued after the 45th day.
    Proposed paragraph (d) is moved from current Sec.  215.18, ``Appeal 
Deciding Officer authority'', as it is more appropriate in this 
section.
    Proposed Section 215.19 Appeal Deciding Officer's authority. This 
proposed section incorporates the language from current Sec.  215.18, 
except for paragraph (c), reorganizing it to more clearly follow the 
process as it relates to the Appeal Deciding Officer's (ADO) authority.
    Proposed paragraph (b) is rewritten to clarify that the ADO may 
consolidate appeals and issue one or more appeal decisions, whereas the 
current Sec.  215.18 language implies that the only options are one 
decision for all appellants or separate decisions for each appellant.
    Proposed paragraph (c) is added, describing the ADO's authority 
when appeals listing multiple names are received. The current 
regulations do not address these types of appeals, resulting in 
inconsistent application of the regulation. As discussed above, 
paragraph (c) regarding appeal decisions from the current Sec.  215.18 
is moved to proposed Sec.  215.18(d), ``Formal review and disposition'' 
and a new paragraph (d) is added, clarifying that the ADO's decision 
can be different from the Appeal Reviewing Officer's recommendation. 
This provision was not addressed specifically in the Act but was 
implied with the use of the term ``recommendation.''
    Proposed Section 215.20 Appeal Reviewing Officer's 
responsibilities. This proposed section incorporates and revises the 
language from current Sec.  215.19. The proposed heading is revised to 
be consistent with the Act and the paragraph headings are also revised. 
Proposed paragraph (a) is revised to conform directly with the language 
in the Act regarding who may be designated as the Appeal Reviewing 
Officer. Proposed paragraph (b) clarifies the scope of review, using 
language from the Act. Proposed paragraph (c) clarifies that the Appeal 
Reviewing Officer has an option to issue one recommendation or as many 
as appropriate in cases involving multiple appeals of decisions.
    Proposed Section 215.21 Secretary's authority. This proposed 
section is added to set out the relationship between the Secretary of 
Agriculture and the Forest Service concerning decisionmaking and the 
rules of this part.
    Proposed Section 215.22 Judicial proceedings. The concepts from 
current Sec.  215.20 are incorporated in this proposed section, but it 
is rewritten to remove the option for waiver since Public Law 103-354, 
the USDA Reorganization Act of 1993 (7 U.S.C. 6901) supercedes this 
option.
    Proposed Section 215.23 Applicability and effective date. This 
proposed section specifies in paragraph (a) when the new procedures in 
the final rule would apply. Proposed paragraph (b) would provide that 
decisions for which legal notice is given prior to the effective date 
of the final rule would remain subject to the rules previously in 
effect in part 215.
    Proposed Section 215.24 Information Collection Requirements. This 
section explains that the rule contains information collection 
requirements as defined in 5 CFR part 1320 by specifying the 
information that appellants must supply in an appeal. The OMB Control 
Number for this information will be included in the final rule.

Regulatory Certifications

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 the 
rights and obligations of recipients of such programs.
    Moreover, this proposed 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 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 
proposed rule.

Environmental Impacts

    This proposed 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 proposed 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 proposed 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 
proposed rule does not constitute a significant energy action as 
defined in the Executive order. Procedural in nature, this proposed 
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 proposed rule at 36 CFR 215.15 sets out requirements for the 
information that appellants must provide in an appeal. As such, this 
proposed rule contains information collection requirements as defined 
in 5 CFR part 1320 and, therefore, is 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 proposed rule under the requirements 
of

[[Page 77458]]

Executive Order 13132, Federalism, and Executive Order 12875, 
Government Partnerships. The agency has made a preliminary assessment 
that the proposed rule conforms with the federalism principles set out 
in these Executive orders; 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 this proposed rule, the 
agency will consider if any additional consultation will be needed with 
State and local governments prior to adopting a final rule.

Consultation and Coordination With Indian Tribal Governments

    This proposed 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.

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. This proposed 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 proposed 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 proposed rule. Nevertheless, 
in the event that such a conflict were to be identified, the proposed 
rule, if implemented, 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 proposed 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 proposed 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.

    Therefore, for the reasons set forth in the preamble, it is 
proposed to amend Part 215 of Title 36 of the Code of Federal 
Regulations 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 action and opportunity to comment.
215.6 Consideration of comments.
215.7 Legal notice of decision.
215.8 Decision implementation.
215.9 Emergency situations.
215.10 Decisions subject to appeal.
215.11 Decisions and actions not subject to appeal.
215.12 Who may appeal.
215.13 Where to file appeals.
215.14 Appeal time periods and process.
215.15 Appeal content.
215.16 Dismissal of appeal without review.
215.17 Informal disposition.
215.18 Formal review and disposition procedures.
215.19 Appeal Deciding Officer's authority.
215.20 Appeal Reviewing Officer's responsibilities.
215.21 Secretary's authority.
215.22 Judicial proceedings.
215.23 Applicability and effective date.
215.24 Information collection requirements

    Authority: 16 U.S.C. 472, 551; sec. 322, Pub. L. 102-381, 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 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 project and activity planning, such as those 
provided by the National Environmental Policy Act of 1969 (NEPA), the 
National Forest Management Act, and the implementing regulations and 
procedures in 40 CFR parts 1500-1508 and 36 CFR parts 216 and 219, 
Forest Service Manual (FSM) Chapters 1920 and 1950, and Forest Service 
Handbooks (FSH) 1909.12 and 1909.15. The appeal process is available to 
those who submit comments during the comment period, and issues are 
limited to those specifically raised by the appellant in their 
comments. Appeal disposition constitutes the final administrative 
determination of the United States Department of Agriculture.


Sec.  215.2  Definitions.

    Appeal--The written document filed with an Appeal Deciding Officer 
by someone seeking review of a decision.
    Appeal Deciding Officer--The Secretary of Agriculture or the 
Department or agency designee having the delegated authority and 
responsibility to render a decision on an appeal filed under this part.
    Appeal disposition--Either a written appeal decision or written 
notification that an appeal decision will not be issued.
    Appeal period--The 45-calendar-day period following publication of 
the legal notice 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 decision documentation, the legal notice 
of decision, the appeal, the Responsible Official's documentation of 
the informal disposition meeting, and the Appeal Reviewing Officer's 
recommendation.
    Appeal Reviewing Officer--An agency or Department of Agriculture 
official who reviews an appeal and makes a written recommendation to 
the Appeal Deciding Officer on the disposition of the appeal.
    Appellant--An individual or organization filing an appeal under 
this part.

[[Page 77459]]

    Categorically excluded--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; Forest 
Service Handbook (FSH) 1909.15, Chapter 30).
    Comment period--The 30-calendar-day period following publication of 
the legal notice 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. 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 or Record of Decision 
and all relevant environmental and other analysis documentation and 
records 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 (40 CFR 1508.9; FSH 1909.15, Chapter 40).
    Emergency situation--A situation on National Forest System lands in 
which a proposed action would provide relief from hazards threatening 
human health and safety or natural resources on those or adjacent 
lands; or that would result in substantial loss of economic value to 
the Government if implementation of the proposed action were delayed.
    Environmental Assessment (EA)--A concise public document that 
provides sufficient evidence and analysis for determining whether to 
prepare an environmental impact statement or a finding of no 
significant impact, aids an agency's compliance with NEPA when no 
environmental impact statement 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.
    Name--The first and last name of an individual or the name of an 
organization. An e-mail address or electronic username is insufficient 
for identification of an individual or organization.
    National Forest System lands--Proclaimed or designated National 
Forests; National Grasslands; Purchase Units; Land Utilization 
Projects; Research and Experimental Areas; and other areas (36 CFR 
200.1(c)(2)).
    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 or Record of Decision by a Forest Service official.
    Proposed action--A proposal made by the Forest Service to authorize 
an action on National Forest System lands to meet a specific purpose 
and need which is subject to the notice and comment provisions of this 
part.
    Record of Decision--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, and have a direct 
relationship to the proposed action.


Sec.  215.3  Proposed actions subject to legal notice and opportunity 
to comment.

    The legal notice and opportunity to comment procedures (Sec.  
215.5) only apply 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 nonsignificant amendments to land and resource 
management plans (36 CFR part 219) that are included as part of a 
decision on a project or activity for which an EA is prepared.
    (c) Proposed revision of the EA based on consideration of new 
information or changed circumstances (FSH 1909.15, section 18).
    (d) Proposed research activities to be conducted on National Forest 
System lands for which an EA is prepared.


Sec.  215.4  Actions not subject to legal notice and opportunity to 
comment.

    The procedures for legal notice and opportunity to comment (Sec.  
215.5) do not apply to:
    (a) Proposed projects and activities described in a draft 
environmental impact statement (EIS), for which notice and comment 
procedures are governed by 40 CFR 1500-1508.
    (b) Projects and activities which are categorically excluded from 
documentation in an EIS or environmental assessment (EA) pursuant to 
FSH 1909.15, sections 31.1 and 31.2.
    (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) New information or changed circumstances, based upon which, the 
Responsible Official determines that revision of the EA is not required 
(FSH 1909.15, section 18).
    (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 (36 CFR parts 200 and 216).
    (f) Proposed nonsignificant amendment to a land and resource 
management plan that is made separately from a project or activity 
specified in Sec.  215.3(b).


Sec.  215.5  Legal notice of proposed action and opportunity to 
comment.

    (a) Timing for publication of notice. Comments on the proposed 
action shall be accepted for 30 days following the date of publication 
of the notice; the Responsible Official has the discretion to determine 
the most effective timing for publishing the legal notice of the 
proposed action and opportunity to comment (Sec.  215.5(b)).
    (b) Giving Notice--(1) Principal newspaper. Through notice 
published annually in the Federal Register, each Regional Forester 
shall advise the public of the principal newspapers utilized for 
publishing legal notices required by this part.
    (2) The Responsible Official shall promptly mail the proposed 
action (Sec.  215.2) to any individual or organization who has 
requested it and to individuals who have participated in project 
planning.

[[Page 77460]]

    (3) The Responsible Official shall publish a legal notice of the 
opportunity to comment on a proposed action in the principal newspaper 
identified in Sec.  215.5(b)(1), or in the case of the Chief of the 
Forest Service, in the Federal Register.
    (4) 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) Instructions on how to obtain additional information on the 
proposed action;
    (iv) The name, title, telephone number, and addresses (street, 
postal, facsimile, and e-mail) of the Responsible Official to whom 
comments are to be submitted;
    (v) The acceptable format(s) for electronic comments;
    (vi) A statement indicating that each individual, or a 
representative from each organization, must sign comment letters.
    (vii) Rather than giving a specific date, a statement indicating 
that the opportunity to comment ends 30 days following the date of 
publication of the legal notice;
    (viii) A statement indicating that only those who submit timely 
comments will be accepted as appellants; and
    (ix) When applicable, 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.  215.9.
    (5) Computation of time period. The 30-day comment period begins on 
the first day after publication of the legal notice. 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.
    (i) The Responsible Official shall accept comments on the proposed 
action that are:
    (A) Postmarked, e-mailed, faxed, or otherwise submitted (for 
example, express delivery service) by the end of the 30th calendar day 
following publication of the legal notice (Sec.  215.5(b)(3)); or
    (B) Hand-delivered and received by the end of the 30th calendar day 
following publication of the legal notice (Sec.  215.5(b)(3)).
    (ii) The time period for the opportunity to comment shall not be 
extended.
    (c) Comments. Written and oral comments shall be accepted and shall 
become a matter of public record.
    (1) Anyone commenting must provide the following information:
    (i) Name and address;
    (ii) Title of the proposed action; and
    (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.
    (2) Written Comments Signature. Written comments, submitted via 
delivery service (for example, U.S. Postal Service, express mail 
service, courier, etc.) or submitted in person, must be signed. When a 
written comment, submitted via delivery service or in person, is filed 
on behalf of multiple individuals, each name listed must include a 
signature.
    Verification of the author(s) may be necessary for electronically 
submitted comments. For organizations, a signature of an individual 
officially representing each organization must be included. Comments 
received from an official representative(s) of an organization are 
considered as those of the organization only, and do not meet comment 
requirements of this section for individual members of that 
organization.
    (3) Oral Comments--Oral comments must be provided at the agency 
office during normal business hours via telephone or in person, or if 
non-business hours, must be at an official agency function which is 
designed to elicit public comment.


Sec.  215.6  Consideration of comments.

    (a) All written comments received by the Responsible Official shall 
be placed in the project file.
    (b) The Responsible Official shall clearly identify the date all 
oral comments are received in response to the legal notice (Sec.  
215.5), document them, and place in the project file.
    (c) The Responsible Official shall consider all substantive written 
and oral comments submitted in compliance with Sec.  215.5(b)(5)(i) and 
(c).


Sec.  215.7  Legal notice of decision.

    (a) The Responsible Official shall publish a legal notice of any 
decision subject to appeal (Sec.  215.10) in the principal newspaper 
(Sec.  215.5(b)(1)). 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 
Decision Notice (DN) and Finding of No Significant Impact (FONSI) or 
Record of Decision (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, and acceptable format(s) for electronically 
submitted appeals.
    (ii) A statement that the publication date of the legal notice is 
the exclusive means for calculating the time to file an appeal (Sec.  
215.14)) and that appellants 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 
postmarked, faxed, e-mailed, hand-delivered, or otherwise submitted to 
the appropriate Appeal Deciding Officer (Sec.  215.13) within 45 days 
following the date of publication of the legal notice.
    (iv) A statement indicating that individuals or organizations who 
submitted comments during the comment period (Sec.  215.5) may appeal. 
Appeal issues are limited to those raised by the appellant in his/her 
comments (Sec.  215.5).
    (v) A statement specifying, when applicable, that the Chief of the 
Forest Service, or a designee, has determined that an emergency 
situation exists (Sec.  215.9), and which portion of the project is 
covered by that determination as provided for in Sec.  215.9.
    (vi) A statement indicating how many days following publication 
that implementation may begin (Sec.  215.8), including those portions 
covered by an emergency situation determination, if applicable (Sec.  
215.9).
    (3) When no comments or only supportive comments are received, 
include a statement indicating that the decision is not subject to 
appeal pursuant to Sec.  215.11.
    (b) The Responsible Official shall promptly mail the ROD or the DN 
and FONSI to those who requested the decision document and those who 
submitted comments during the comment period provided under Sec.  
215.5.


Sec.  215.8  Decision implementation.

    (a) If no appeal is filed within the time period provided, 
implementation of the decision may begin on, but not before, the fifth 
(5th) business day following the close of the appeal-filing period 
(Sec.  215.14).

[[Page 77461]]

    (b) Except for emergency situations as noted in Sec.  215.9(b), 
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.  215.11), implementation may occur as follows:
    (1) Immediately when documented in a Decision Notice; or
    (2) Immediately when documented in a Record of Decision after 
complying with the timeframes described in 40 CFR 1506.10(b)(2).


Sec.  215.9  Emergency situations.

    (a) Determination. The Chief of the Forest Service or a designee 
may make the determination that an emergency situation (Sec.  215.2) 
exists. The authority for determination of an emergency situation may 
not be delegated below the Regional Forester or Station Director. 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 and/or the Responsible Official may be 
consulted.
    (b) 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 when 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 described in 40 CFR 1506.10(b)(2), for 
that portion of the decision determined to be an emergency.
    (c) Notification. The Responsible Official shall notify the public 
that the Forest Service is handling part of, or the entire project, as 
an emergency in the legal notice of decision (Sec.  215.7).


Sec.  215.10  Decisions subject to appeal.

    (a) The following decisions are subject to appeal under this part:
    (1) 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, as a 
part of the decision, contain a nonsignificant amendment to a land and 
resource management plan (36 CFR 219.10).
    (2) A new DN or ROD made after supplementation or revision of an 
environmental assessment or environmental impact statement pursuant to 
FSH 1909.15, section 18. However, only that portion of the decision 
that is changed is subject to appeal.
    (3) Decisions made in conjunction with other federal agencies and 
meeting the requirements of preceding paragraph (a)(1) of this section. 
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.
    (b) Decisions solely affecting the business relationship between 
the Forest Service and holders of written instruments regarding 
occupancy and use of National Forest System lands and meeting the 
requirements of preceding paragraph (a) of this section are subject to 
appeal by permit holders under either this part or 36 CFR part 251, 
subpart C, but not under both parts.


Sec.  215.11  Decisions and actions not subject to appeal.

    The following decisions are not subject to appeal under this part:
    (a) Decisions for projects or activities included in a Record of 
Decision for significant amendment, revision, or adoption of a land and 
resource management plan (36 CFR part 217 and part 219).
    (b) Documentation that a new decision is not needed following 
supplementation or revision of an environmental assessment (EA) 
pursuant to FSH 1909.15, section 18.
    (c) Preliminary findings made during planning and/or analysis 
processes on a project or activity and the subsequent implementing 
actions that result from the initial project decision subject to 
appeal.
    (d) Projects or activities for which notice of the proposed action 
and opportunity to comment is published (Sec.  215.5) and
    (i) No comments or only supportive comments are received during the 
comment period (Sec.  215.5); or
    (ii) No comments or only supportive comments are received during 
the comment period for a draft environmental impact statement (EIS) (40 
CFR 1502.19), and the Responsible Official's decision does not modify 
the preferred alternative identified in the draft EIS.
    (e) Decisions for actions that have been categorically excluded 
from documentation in an EA or EIS in FSH 1909.15, sections 31.1 and 
31.2.
    (f) An amendment to a land and resource management plan that is 
made independent of a project or activity (36 CFR 219.32).
    (g) Concurrences and recommendations to other federal agencies.


Sec.  215.12  Who may appeal.

    (a) Individuals and organizations who submit written or oral 
comments during the comment period for an environmental assessment 
(Sec.  215.5), or in response to a draft environmental impact 
statement, except as provided in paragraph (c) of this section, may 
file an appeal. Comments received from an official representative(s) of 
an organization are considered as those of the organization only, and 
individual members of that organization do not meet appeal requirements 
on the basis of membership in an organization which submitted comments.
    (b) When the 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) of this section shall not be accepted as appellants.
    (c) Federal agencies may not appeal.
    (d) Federal employees filing appeals in a non-official capacity 
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 nor 
use government property or equipment in the preparation or transmittal 
of an appeal. Further, employees shall not incorporate official 
information not yet released to the public, including federal agency 
documents that are exempt from disclosure under the Freedom of 
Information Act, 5 U.S.C. 552 (b).


Sec.  215.13  Where to file appeals.

    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...........................  Regional Forester.
Research Work Unit Project Leader.........  Station Director.
------------------------------------------------------------------------

Sec.  215.14  Appeal time periods and process.

    (a) Time to file an appeal. Written appeals, including any 
attachments, must be submitted to the Appeal Deciding Officer within 45 
days

[[Page 77462]]

following the publication date of the legal notice (Sec.  215.7).
    (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.
    (2) The day after the publication of the legal notice (Sec.  215.7) 
is the first day of the appeal-filing period.
    (3) The publication date of the legal notice of the decision 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 postmark on an appeal and/or attachment mailed or otherwise 
submitted (for example, express mail service), or evidence of the date 
sent on an e-mailed or faxed appeal and/or attachments. When an appeal 
is electronically mailed, the appellant should expect to receive an 
automated electronic response from the agency as confirmation of 
receipt; or
    (2) The time and date imprint at the correct receiving office on a 
hand-delivered appeal and/or attachments.
    (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.
    (2) Appeal decision. Within 45 days following the end of the 
appeal-filing period, the Appeal Deciding Officer shall issue a written 
decision to the appellant(s) concerning the disposition of the appeal. 
When an appeal decision is not issued within 45 days, the Responsible 
Official's decision is deemed the final agency action and the appellant 
shall be so notified (Sec.  215.18).


Sec.  215.15  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.
    (b) The appeal must be submitted to the Appeal Deciding
    Officer in writing. At a minimum, an appeal must include the 
following:
    (1) Appellant's name (as defined in Sec.  215.2), signature (for 
those appeals submitted via delivery service, for example, United 
States Postal Service, express mail service, courier, etc.) and 
address, with a telephone number, if available;
    (2) 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;
    (3) The regulation under which the appeal is being filed, when 
there is an option to appeal under this part or 36 CFR part 251 subpart 
C (Sec.  215.10(b));
    (4) Any specific change(s) in the decision that the appellant seeks 
or portion(s) of the decision with which the appellant disagrees; and
    (5) Why the appellant believes the Responsible Official's decision 
failed to consider their substantive comments and/or how the appellant 
believes the decision specifically violates law, regulation, or policy. 
Appeal issues are limited to those raised by the appellant in her/his 
comments (Sec.  215.5).
    (c) The Appeal Deciding Officer shall not accept an appeal when:
    (1) The identity of an appellant cannot be determined; or
    (2) A reasonable means of contact is not provided; or
    (3) The appellant's signature is not provided, except for those 
appeals submitted electronically, which may be subject to verification 
of the author; or
    (4) Multiple names are listed without a signature accompanying each 
name except for those appeals submitted electronically, which may be 
subject to verification of the author; or
    (5) The signature of the individual representing an organization is 
not provided, except for those appeals submitted electronically, which 
may be subject to verification of the author; or
    (6) The decision cannot be identified.


Sec.  215.16  Dismissal of appeal without review.

    (a) The Appeal Deciding Officer shall dismiss an appeal without 
review when:
    (1) The postmark on an appeal and/or attachment mailed or otherwise 
submitted (for example, express mail service) or the evidence of the 
date sent on an e-mailed or faxed appeal and/or attachments is not 
within the 45-day appeal-filing period (Sec.  215.14); or
    (2) The time and date imprint at the correct receiving office on a 
hand-delivered appeal and/or attachments is not within the 45-day 
appeal-filing period (Sec.  215.14); or
    (3) The requested relief or change cannot be granted under law, 
policy, or regulation; or
    (4) The appellant has appealed the same decision under 36 CFR part 
251 (Sec.  215.10(b)); or
    (5) The decision is excluded from appeal (Sec.  215.11); or
    (6) The appellant did not submit comments during the comment period 
(Sec.  215.5); or
    (7) The Responsible Official withdraws the decision; or
    (8) The appellant's appeal does not provide sufficient information 
in response to Sec.  215.15(b)(4) and (5) for the Appeal Deciding 
Officer to render a decision; or
    (9) The appellant withdraws the appeal.
    (b) 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 must contact the appellant and offer to meet and discuss 
resolution of the issues raised in the appeal. This contact shall be as 
soon as practicable after the appeal is received.
    (b) Time and location of meeting. When an appellant agrees to meet, 
the initial meeting(s) shall take place within 15 days after the 
closing date for filing an appeal (Sec.  215.14). 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 or Regional Forester is the Responsible Official, meetings 
will generally take place at a location within or near the National 
Forest.
    (c) Meeting structure. Generally, the appellant and any other 
participants 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. The Responsible Official shall notify the Appeal 
Deciding Officer of the meeting participants and the outcome of the 
informal disposition meeting in writing. If the appellant(s) decline to 
meet, the Responsible Official shall advise the Appeal Deciding 
Officer.
    (1) When an appellant and the Responsible Official reach agreement 
on

[[Page 77463]]

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) When, 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 procedures in FSH 1909.15, section 
18, and Sec. Sec.  215.3 and 215.4.
    (3) When an appeal is not entirely resolved through informal 
disposition, formal review and disposition 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 issue either:
    (1) Within 45 days following the end of the appeal filing period, a 
written appeal decision affirming or reversing the Responsible 
Official's decision, in whole or in part, and may include instructions 
for further action. When an appeal decision involves instructions 
concerning new information or changed circumstances, the Responsible 
Official must follow the procedures in FSH 1909.15, section 18; and 
Sec. Sec.  215.3, 215.4, 215.10, and 215.11. A copy of the appeal 
decision shall be sent to the appellant, the Appeal Reviewing Officer, 
and the Responsible Official; or
    (2) No sooner than 46 days nor later than 50 days following the end 
of the appeal filing period, written notification to the appellant that 
an appeal decision will not be issued and that the Responsible 
Official's decision constitutes the final administrative decision of 
the Department of Agriculture (Sec.  215.14(e)(2)). A copy shall be 
sent to the Responsible Official.
    (c) The Appeal Deciding Officer shall not issue an appeal decision 
when 45 days have elapsed following the end of the appeal filing 
period.
    (d) The Appeal Deciding Officer's appeal decision constitutes the 
final administrative determination of the Department of Agriculture.


Sec.  215.19  Appeal Deciding Officer's authority.

    (a) Procedural decisions. The Appeal Deciding Officer makes all 
procedural determinations. Such determinations are not subject to 
further administrative review.
    (b) Consolidation of appeal decisions. In cases involving multiple 
appeals of a decision, the Appeal Deciding Officer may consolidate 
appeals and may issue one or more appeal decisions.
    (c) Multiple names. (1) When an appeal lists multiple names, the 
Appeal Deciding Officer shall identify all qualified appellants (Sec.  
215.12).
    (2) The Appeal Deciding Officer has the discretion to appoint a 
representative from those listed on an appeal to act on behalf of all 
parties to that appeal.
    (d) The Appeal Deciding Officer may issue an appeal decision 
different from the Appeal Reviewing Officer's recommendation.


Sec.  215.20  Appeal Reviewing Officer's responsibilities.

    (a) Designation. The Appeal Reviewing Officer may 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.
    (2) or designated by the Secretary in the case of Chief's 
decisions.
    (b) Review and recommendation. The Appeal Reviewing Officer shall 
review an appeal 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 multiple appeals of a 
decision, the Appeal Reviewing Officer may consolidate appeals and 
issue one or more recommendations.


Sec.  215.21  Secretary's authority.

    (a) Nothing in this part limits the Secretary of Agriculture's 
authority for making decisions subject to this part.
    (b) When the Secretary of Agriculture or Under Secretary, Natural 
Resources and Environment, issues a decision for projects and 
activities implementing land and resource management plans, such 
decisions shall not be subject to the notice, comment, and appeal 
procedures of this part. A decision by the Secretary of Agriculture 
constitutes the final administrative decision of the Department of 
Agriculture.


Sec.  215.22  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. 6901).


Sec.  215.23  Applicability and effective date.

    (a) These procedures apply to all projects and activities for which 
notice is published after 30 days from date of publication of final 
rule in the Federal Register.
    (b) Decisions for which legal notice is given (Sec.  215.5) on or 
prior to 30 days from date of publication of final rule in the Federal 
Register remain subject to the appeal procedures of 36 CFR part 215 in 
effect when the final rule is published


Sec.  215.24  Information collection requirements.

    The rules of this subpart governing appeal of decisions regarding 
projects and activities implementing a land and resource management 
plan specify the information that appellants must provide in an appeal 
(Sec.  215.15). As such, these rules contain information collection 
requirements as defined in 5 CFR part 1320. These information 
requirements are assigned OMB Control Number 0596---------.

    Dated: December 11, 2002.
Dale N. Bosworth,
Chief, Forest Service.
[FR Doc. 02-31681 Filed 12-17-02; 8:45 am]
BILLING CODE 3410-11-P