[Federal Register Volume 68, Number 108 (Thursday, June 5, 2003)]
[Rules and Regulations]
[Pages 33794-33804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14103]



[[Page 33793]]

-----------------------------------------------------------------------

Part III





Department of the Interior





-----------------------------------------------------------------------



Office of the Secretary



-----------------------------------------------------------------------



Bureau of Land Management



-----------------------------------------------------------------------



43 CFR Parts 4, 4100, and 5000



Special Rules Applicable to Public Land Hearings and Appeals; Grazing 
Administration--Exclusive of Alaska, Administrative Remedies; Grazing 
Administration--Effect of Wildfire Management Decisions; Administration 
of Forest Management Decisions; Final Rule

  Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules 
and Regulations  

[[Page 33794]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 4

Bureau of Land Management

43 CFR Parts 4100 and 5000

RIN 1090-AA83


Special Rules Applicable to Public Land Hearings and Appeals; 
Grazing Administration--Exclusive of Alaska, Administrative Remedies; 
Grazing Administration--Effect of Wildfire Management Decisions; 
Administration of Forest Management Decisions

AGENCY: Office of Hearings and Appeals; Bureau of Land Management, 
Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Office of Hearings and Appeals (OHA) is amending its 
existing regulations governing hearings and appeals to codify who has a 
right of appeal, to expedite its review of wildfire management 
decisions, and to simplify proof of service. The Bureau of Land 
Management (BLM) is adding regulations allowing BLM to make its 
wildfire management decisions effective immediately when BLM determines 
that vegetation, soil, or other resources on the public lands are at 
substantial risk of wildfire due to drought, fuels buildup, or other 
reasons, or at immediate risk of erosion or other damage due to 
wildfire, and to expedite review of those decisions. The amendments to 
both the OHA and BLM regulations are needed to clarify and expedite 
administrative review procedures.

EFFECTIVE DATE: July 7, 2003.

FOR FURTHER INFORMATION CONTACT: Will A. Irwin, Administrative Judge, 
Interior Board of Land Appeals, U.S. Department of the Interior, 801 N. 
Quincy Street, Suite 300, Arlington, Virginia 22203, Phone: 703-235-
3750, or Michael H. Schwartz, Group Manager, Regulatory Affairs, Bureau 
of Land Management, U.S. Department of the Interior, 1849 C Street, 
NW., Room 401 LS, Washington, DC 20240, Phone: 202-452-5198. Persons 
who use a telecommunications device for the deaf (TDD) may contact 
either individual by calling the Federal Information Relay Service 
(FIRS) at (800) 877-8339.

SUPPLEMENTARY INFORMATION: 

I. Background

    On December 16, 2002, the Office of Hearings and Appeals (OHA) and 
the Bureau of Land Management (BLM) jointly proposed rules that would 
make BLM wildfire management decisions effective immediately and would 
expedite OHA decisions on appeals from such BLM decisions. 67 FR 77011 
(Dec. 16, 2002). OHA also proposed to amend its existing rules 
governing the right to appeal and proof of service.
    The Department received approximately 9,000 comments on the 
proposed rule. Of these, the great majority were divided between nearly 
identical form communications expressing general support for the 
proposal and nearly identical form communications expressing general 
opposition to the proposal. The remainder were specific and substantive 
comments from trade and governmental associations, commercial public 
land users, environmental interest groups, local and tribal 
governmental entities, and individuals. We have summarized and 
paraphrased the comments in order to keep this final rulemaking 
document manageable and comprehensible.
    We have organized our discussion of topics in the order they were 
presented in the preamble to the proposed rule, i.e., (A) standing to 
appeal, (B) effectiveness of BLM wildfire management decisions, (C) 
expedited OHA review of appeals from those decisions, and (D) proof of 
service. See 67 FR 77011, 77012-13 (Dec. 16, 2002).

A. Standing to Appeal

    OHA proposed to codify decisions of the Interior Board of Land 
Appeals (IBLA) that have determined whether a person had a right to 
appeal a BLM decision. OHA proposed to define the phrases ``party to a 
case'' and ``adversely affected,'' both of which appear in the existing 
regulation governing who may appeal, 43 CFR 4.410(a). ``Party to a 
case'' was defined in proposed Sec.  4.410(b) to mean ``one who has 
taken action that is the subject of the decision on appeal, is the 
object of that decision, or has otherwise participated in the process 
leading to the decision under appeal, e.g., by filing a mining claim or 
application for use of public lands, by commenting on an environmental 
document, or by filing a protest to a proposed action.'' ``Adversely 
affected'' was defined in proposed Sec.  4.410(d) to mean that ``a 
party has a legally cognizable interest, and the decision on appeal has 
caused, or will cause, injury to that interest.'' OHA also proposed to 
reflect in Sec.  4.410(c) the limitation found in IBLA decisions that a 
party may only raise on appeal to IBLA issues it previously presented 
to BLM.
    Some comments stated that only persons who can show direct economic 
damage should have a right of appeal, while others suggested that the 
scope of ``legally cognizable interest'' should be broadened. While 
many comments approved of the proposals, several expressed a concern 
that the proposals would do away with or limit public participation in 
BLM's decisionmaking or restrict access to the appeals process.
    We emphasize that the proposed rules were--and these final rules 
are--intended to codify existing IBLA precedents, not to either 
restrict or expand who has a right to appeal. We therefore decline 
either to limit or extend that right in this rulemaking.
    If in the circumstances of a particular appeal, a person or 
organization can demonstrate that a BLM decision has caused or has a 
substantial likelihood of causing injury to a ``legally cognizable 
interest'' as IBLA has interpreted and applied that phrase in numerous 
decisions, then that person or organization is adversely affected under 
Sec.  4.410(d). If a person or organization with an adversely affected 
legally cognizable interest has also been a party to the case, as 
defined in Sec.  4.410(b), then that person or organization has a right 
of appeal. See, e.g., San Juan Coal Co., 155 IBLA 389, 393 (2001); 
Legal and Safety Employer Research, Inc., 154 IBLA 167, 171-72 (2001); 
Powder River Basin Resource Council, 124 IBLA 83, 89 (1992); and cases 
cited. The definition of ``party to a case'' in Sec.  4.410(b) does not 
affect a person's ability to participate in BLM's decisionmaking; 
rather, it defines one of the two requirements for standing to appeal a 
BLM decision to IBLA.
    Some comments expressed concern that the selection of the three 
IBLA decisions cited above implied that other decisions in which 
appellants were found to have a right of appeal, e.g., National 
Wildlife Federation v. Bureau of Land Management, 129 IBLA 124 (1994); 
Donald K. Majors, 123 IBLA 142 (1992); and High Desert Multiple-Use 
Coalition, 116 IBLA 47 (1990), were now discredited. No such 
implication was intended. The three decisions were cited in the 
preamble to the proposed rule to illustrate circumstances that IBLA has 
encountered in determining whether a particular appellant did or did 
not have a right to appeal. Other IBLA decisions are also relevant in 
making such determinations, including those holding that an 
organization may have a right of appeal on behalf of its members and 
that not only an interest in the land but also an interest in resources 
affected by a decision may be legally cognizable.
    Some comments correctly pointed out that the language in proposed

[[Page 33795]]

Sec.  4.410(d)--``has caused, or will cause, injury'' to a legally 
cognizable interest--does not reflect the holding in San Juan Coal Co., 
supra, and other decisions that a ``substantial likelihood'' of causing 
injury is sufficient. We have modified the language in the final Sec.  
4.410(d) to provide ``and the decision on appeal has caused or is 
substantially likely to cause injury to that interest.''
    Some comments requested clarification of the statement in the 
preamble to the proposed rule that a person who uses land in trespass, 
without claim or color of right, would not have a legally cognizable 
interest. That statement is illustrated by IBLA's decision in Fred J. 
Schikora, 89 IBLA 251 (1985), which held that the interest of a 
trespasser who made improvements upon land in Alaska, without color or 
claim of right, was not a legally cognizable interest for a right to 
appeal a BLM decision that granted a conflicting Native allotment 
application for the land. The statement was not intended to imply that 
a member of the public who accesses public lands from private lands or 
uses public lands for recreational or other purposes would be in 
trespass and would not have a right of appeal from a decision involving 
the public lands, assuming he or she were a party to the case and had a 
legally cognizable interest that would be adversely affected by the 
decision.
    A comment from a state governor was ``concerned with the apparent 
lack of standing for states and local governments under the proposed 
changes. The amendments to this section of regulations are silent as to 
whether or not states and local governments will have standing based on 
their sovereignty alone.'' Similar comments came from associations of 
counties and a county board of supervisors. For example: ``It is 
important that local government be recognized as an entity that does 
have standing to appeal. It is becoming more and more common for county 
government to become involved in those federal land planning decisions 
that affect their citizens, tax [rolls], or the local economy.'' We are 
codifying IBLA's decisions on who has a right of appeal. IBLA's 
decisions have not granted standing to state or county governments when 
they have not been adversely affected but have sought to represent 
their citizens in a parens patriae role. Blaine County Board of 
Commissioners, 93 IBLA 155, 157-158 (1986); The Klamath Tribes, 135 
IBLA 192, 194 (1996); State of Missouri Department of Natural 
Resources, 142 IBLA 201, 207 (1998). Therefore, we do not accept the 
suggestion that we provide standing to state or local governments based 
on their sovereignty alone. Of course, if a state or local government 
demonstrates that it was a party to a case and was adversely affected, 
it would have a right of appeal.
    Some comments were concerned that proposed Sec.  4.410(c) would 
limit a party's ability to raise on appeal issues that could not have 
been raised during the party's participation in BLM's decisionmaking 
process. For example, the comments suggested, BLM might include 
information in a decision that was not available during the comment 
period on the draft decision, the decision might differ from the 
alternatives considered during that period, or the circumstances on the 
ground may have changed during the decisionmaking or after the decision 
is issued. We agree that a party should be able to raise additional 
issues in such circumstances, and in the final rule we have amended 
Sec.  4.410(c) accordingly.
    Some comments expressed concern that limiting a party to presenting 
only those issues on appeal that it had raised before the agency would 
force every party to raise every issue it could conceive of and that 
this could ``not possibly save the agency any time in the appeals 
process. The agency would have already considered the comments 
initially and the appellant would certainly not be raising a completely 
new issue if it had been raised by someone else, it would be something 
the agency had already considered (and rejected). This provision will 
likely increase the number, length, and volume of comments, since no 
one would be able to rely on the comments of others.''
    We believe this concern is more hypothetical than real. Under 
existing precedent, IBLA will not adjudicate issues raised for the 
first time on appeal, except in extraordinary circumstances. See Henry 
A. Alker, 62 IBLA 211 (1982). Since a party cannot assume that IBLA 
will find extraordinary circumstances in any given appeal, the party 
has every incentive to raise with BLM any issues it deems significant. 
Nor can a party assume that someone else will raise the party's issues 
on its behalf, unless two or more parties coordinate their comments, 
which they are free to do. Parties may submit joint comments or may 
incorporate others' comments by reference. If an issue was not 
important enough to a party to raise with BLM, IBLA should not be 
obligated to consider it on appeal.
    In summary, Sec.  4.410(b) is adopted as proposed and Sec. Sec.  
4.410(c) and (d) are adopted as amended. Also, we have amended the 
cross-reference in Sec.  4.410(a)(4) to reflect the changes made in 
this section.

B. Effectiveness of BLM Wildfire Management Decisions

    BLM proposed to add two provisions, in 43 CFR 4190.1 and 5003.1, 
that would make its wildfire management decisions affecting rangelands 
and forests effective immediately, that is, when issued. The proposal 
defined ``wildfire management'' as including but not limited to (1) 
fuel reduction or fuel treatment such as prescribed burns and 
mechanical, chemical, and biological thinning methods and (2) projects 
to stabilize and rehabilitate lands affected by wildfire.
    In the following paragraphs, we will discuss the substantive 
comments that addressed the BLM portion of the proposed rule, that is, 
the proposed addition of 43 CFR 4190.1 and the proposed revision of 43 
CFR 5003.1. These comments addressed four principal topics:
    [sbull] Placing BLM wildfire management decisions in full force and 
effect pending appeals;
    [sbull] How BLM defines wildfire management decisions;
    [sbull] Where and to what lands the new regulations should apply; 
and
    [sbull] How the changes BLM proposed in these areas relate to the 
regulations of the Office of Hearings and Appeals and the proposed 
changes to those regulations.
    Accordingly, we will discuss the comments under headings based on 
these topics.
1. How Should BLM Put Fire Management Decisions Into Effect?
    Many of the substantive comments supported the proposed rule 
placing BLM fire management decisions in full force and effect pending 
appeal. These comments, from logging interests, grazing interests, 
forestry associations, and local government organizations, basically 
agreed with the preamble statement in the proposed rule that the faster 
BLM is able to take action to reduce future threats of wildland fires, 
the more likely BLM can safeguard public and firefighter health and 
safety, protect property, and improve environmental baseline conditions 
in the wildland-urban interface and other priority areas. They agreed 
that wildfire management decisions are by their nature urgent, both to 
prevent or reduce catastrophic wildfires in upcoming dry seasons, and 
to speed recovery from past fires and thereby prevent erosion, water 
pollution, and other harmful legacies that they have caused.

[[Page 33796]]

    In a comment supporting the proposed rule, a professional forestry 
society said that wildfire management decisions to perform fuels 
reduction and fire rehabilitation and stabilization should be 
implemented efficiently to protect communities, watersheds, wildlife 
habitat, and adjacent properties from the potentially devastating 
effects of wildfire. The comment said, however, that these decisions 
should remain consistent with the pre-defined objectives and goals 
outlined in the applicable Resource Management Plan and should adhere 
to all applicable environmental laws. We agree with this comment. Our 
fire management projects will be consistent with our Resource 
Management Plans and applicable environmental laws. No change is 
necessary in the final rule.
    Other comments, mainly from national and regional environmental 
organizations, raised specific objections and concerns that require 
discussion. This discussion follows.
    One comment stated that the proposed rule would discourage public 
appeals from agency actions, which are essential to public 
participation. The comment cited the Federal Land Policy and Management 
Act (FLPMA), at Section 309(e), which requires the Secretary to give 
the public adequate notice and ``opportunity to comment upon the 
formulation of standards and criteria for, and to participate in, the 
preparation and execution of plans and programs for, and the management 
of, the public lands.'' 43 U.S.C. 1739(e). The comment went on to say 
(1) that the proposed rule would allow a project to begin before a 
decision is made on the appeal, effectively discounting public opinion; 
(2) that a decision on appeal to reject a proposed project has less 
effect if the project has already commenced and the negative effects of 
the action have already occurred; and (3) that the public is less 
likely to participate in the decisionmaking process when it can have no 
real or immediate effect on a proposed project. The comment concluded 
that a ``policy discouraging public involvement should not be adopted 
because it contradicts the spirit of FLPMA, which encourages public 
comment on proposed actions and participation in the appeal process for 
a management decision.''
    Another comment addressing the same theme said that the purpose of 
a stay pending appeal is to allow project planners the opportunity to 
review citizen concerns and modify the project's parameters to address 
such concerns, as warranted, prior to project implementation. The 
comment went on to say that project stays have two fundamental 
benefits: (1) To ensure that potentially unsound environmental 
ramifications of project decisions, as identified by interested 
parties, do not compromise the landscape in question; and (2) to 
promote trust between those citizens who have sought to comment on the 
management of public lands and the agency responsible for carrying out 
those actions. The comment concluded by saying that the rule change 
undermines the value of public comment by allowing citizen concerns to 
be effectively ignored, further eroding the trust citizens have in 
public land management agency decisions.
    The appeal process is not part of the public participation required 
by Section 309(e) of FLPMA. The rule may discourage some appeals; but 
contrary to the concern expressed in the comment, it encourages public 
participation by making it more essential at the project design/
environmental review stage. It is at this stage that BLM gathers 
evidence and public input upon which to base its fire management plans/
projects and decisions. Also, the purpose of staying a decision pending 
appeal is not to give the BLM further opportunity to consider issues 
raised by the appellant, but to protect the interests of the appellant 
and the public while IBLA is considering the appeal. Finally, while the 
proposed provision made these decisions effective immediately, an 
adversely affected party may appeal the decision and petition the 
Office of Hearings and Appeals for a stay of the decision pending 
appeal under 43 CFR 4.21(b), which, if granted, would minimize whatever 
harm the appellant alleges.
    One comment said that the proposed revision is entirely 
unnecessary, since BLM and the Office of Hearings and Appeals already 
have the authority to make a decision effective immediately if it is 
determined to be in the ``public interest'' to do so. The comment went 
on to say that the authority for this determination should remain with 
IBLA on a case-by-case basis to avoid any abuse of the provision by 
line officers in the field. Another comment from an environmental 
interest group also stated that the new provisions were unnecessary, 
since in appropriate circumstances OHA or an appeals board could find 
that the public interest requires that particular fire management 
decisions should be placed in full force and effect notwithstanding the 
filing of appeals.
    The final rule eliminates a bureaucratic step--requesting OHA to 
place a decision in full force and effect--in making often very urgent 
decisions to help reduce the severity of upcoming fire seasons, without 
unduly impairing the ability of persons to appeal those decisions and 
to seek stays of the decisions pending appeal.
    The authorities to which the first of these comments refers are 43 
CFR 4160.3(f), which allows BLM to place certain grazing decisions into 
effect immediately or on a date certain and to remain in effect pending 
appeal; 43 CFR 5003.1 (paragraph (a) as this section is revised in the 
proposed rule), which provides that appealing does not automatically 
suspend the effect of a forest management decision; and 43 CFR 4.21, 
which authorizes the OHA Director or IBLA to stay a decision in the 
public interest pending appeal. Of these authorities, section 4160.3(f) 
limits full force and effect to certain decisions unrelated to wildfire 
management.
    In light of the disastrous fire seasons in recent years and the 
ongoing drought in much of the West, BLM views its ability to carry out 
fire management practices as a matter of great urgency. We also view 
the fire management practices we contemplate, mentioned in the proposed 
rule and listed in sections 4190.1(a) and 5003.1(b) of this final rule, 
as scientifically justified. Therefore, we think that these fire 
management decisions need to be effective immediately if BLM finds a 
substantial risk of wildfire due to such problems as drought and fuels 
buildup, or an immediate risk of erosion due to wildfire. We have added 
language to sections 4190.1 and 5003.1 requiring BLM to make such a 
threshold finding before making a decision effective immediately.
    If wildfire has destroyed the vegetation on a tract of land, 
especially sloped land, it is clear that wind or rain will cause 
erosion. It is also clear that wind or rain or both are common 
occurrences in most environments covered by these regulations. 
Therefore, the time-related standard of ``immediate risk'' is 
appropriate for determining whether a decision to rehabilitate a 
denuded slope, for example, especially one situated in a sensitive 
circumstance like above a trout stream or a salmon spawning ground, 
should be made effective immediately.
    However, it is not so obvious whether prescriptive decisions aimed 
at preventing or reducing catastrophic wildfires would routinely meet a 
threshold of ``immediate risk.'' We therefore believe it is appropriate 
to use a qualitative threshold of ``substantial risk'' for these 
decisions. In deciding whether there is a substantial risk of wildfire, 
BLM field managers will analyze the situation based on the Fire

[[Page 33797]]

Condition Class of the tract of range or forest land in question.
    BLM recognizes three Fire Condition Classes, found in the 
Implementation Plan for the 10-Year Comprehensive Strategy, A 
Collaborative Approach for Reducing Wildland Fire Risks to Communities 
and the Environment, May 2002.
    Fire Condition Class 1 refers to lands that have experienced burns 
in their normal range of fire frequency. The risk of losing key 
ecosystem components from the occurrence of fire remains relatively 
low, and the lands will be subject to maintenance management.
    Fire Condition Class 2 refers to lands that have been moderately 
altered from their historical range of fire frequency by either 
increased or decreased fire frequency. BLM has identified a moderate 
risk of losing key ecosystem components, as well as human property, in 
these lands. To restore their historical fire regimes, these lands may 
require some level of restoration through prescribed fire, mechanical 
or chemical treatments, and the subsequent reintroduction of native 
plants.
    Fire Condition Class 3 lands have been significantly altered from 
their historical range. Because fire regimes have been extensively 
altered (i.e., fire has not occurred for far longer than normal 
frequency would predict), risk of losing key ecosystem components from 
fire is high. We consider such lands to be at high risk because of the 
danger posed to people and property and the severe, long-lasting damage 
likely to result to species and watersheds when a fire burns on these 
lands, particularly during drought years. To restore their historical 
fire regimes--before BLM can employ prescribed fire to manage fuel or 
obtain other desired benefits--these lands may require multiple 
mechanical or chemical restoration treatments, or reseeding.
    Under this rule, Fire Condition Class 3 would be considered to pose 
substantial risk of wildfire, and BLM would make wildfire management 
decisions for these lands effective immediately. Most Fire Condition 
Class 2 lands would also be regarded this way, but field managers would 
decide on a case-by-case basis whether to make these decisions 
effective immediately (or on a date established in the decision). BLM 
would generally not make maintenance decisions for lands in Fire 
Condition Class 1 effective immediately.
    Two comments stated that BLM already has several categorical 
exclusions under the National Environmental Policy Act (NEPA) that we 
may utilize for fuel reduction strategies and other wildfire management 
activities, referring to the Departmental Manual of the Department of 
the Interior at 516 DM 6, Appendix 5. One comment said that this 
rendered the proposed regulation change unnecessary. The other comment 
stated that BLM should continue to utilize these categorical exclusions 
where they are appropriate to protect communities from loss of life and 
property, so long as these projects will not individually or 
cumulatively cause significant environmental effects; but it urged us 
to withdraw the proposed rule lifting the automatic stay provision for 
wildfire management decisions.
    There are categorical exclusions that pertain to some of the 
techniques that BLM would likely use for fire management:
    [sbull] Precommercial thinning and brush control using small 
mechanical devices;
    [sbull] Sale and removal of individual trees and small groups of 
trees that are dead, diseased, injured, or that pose a safety hazard, 
where no new roads are necessary;
    [sbull] Reforestation; and
    [sbull] Disposal for Christmas trees, personal firewood use, etc.

However, categorical exclusions have nothing to do with the appeals 
process, but merely allow BLM to perform expedited NEPA reviews as set 
forth in CEQ regulations. Under a categorical exclusion, BLM must still 
document its environmental review and must still consider circumstances 
such as endangered species, air quality, and cultural resources. 
Categorical exclusions do not provide for an immediate effective date 
or expedited administrative review of decisions to implement these 
practices. Further, the categorical exclusions do not cover such 
techniques as prescribed burns and more extensive thinning that might 
be necessary in a fire management program.
2. How Should BLM Define a Wildfire Management Decision?
    One comment from a state farm bureau federation said that the role 
of livestock grazing needs to be further defined in this process, and 
suggested that livestock grazing can be an effective fuels reduction 
technique and can also be a tool to control noxious weeds. The comment 
urged that livestock grazing be incorporated into fuel reduction 
projects as one element of effectively controlling wildfire, disease, 
or invasive species.
    The language in the proposed rule does not rule out the 
incorporation of livestock grazing in a fuel reduction (or pest or 
disease control) program. Under 43 CFR 4160.3, BLM has the discretion 
to make a grazing decision connected to wildfire management effective 
immediately. However, such decisions will not routinely be made 
effective immediately under this rule. Decisions as to pest or disease 
control are beyond the scope of this rule.
    The same comment went on to relate grazing to open space 
preservation and other desirable social results. However, these ideas 
go beyond the narrow focus of this rule, which is wildfire management.
    One comment suggested that the list of types of fire management 
decisions that BLM should make effective immediately pending appeal 
should include removal of lightning-attracting snags. The comment 
stated that removing snags proved to be the key to stopping the 
Tillamook burns. Only after an enormous number of such snags were 
felled were the fires subject to control, according to the comment.
    The language in the rule, ``Fuel reduction or fuel treatment such 
as prescribed burns and mechanical, chemical, and biological thinning 
methods,'' is certainly broad enough to include removal of snags (or 
dead trees) when appropriate (leaving aside the question whether snags 
attract lightning more than living trees). However, due to the 
recognized value of snags (wildlife habitat, nutrient cycling, longer-
term source of large woody debris, etc.) many land management plans 
contain best management practices or project design features that 
specifically require retention of an appropriate number of snags. The 
removal of snags is best reviewed in the context of an overall forest 
health restoration or post-fire salvage project. In order to preserve 
the field manager's ability to make reasoned decisions based on the 
particular circumstances at hand, we do not want to list specific fire 
management tactics in these regulations.
    One comment from a lumber company suggested that BLM replace the 
word ``thinning'' with the word ``removal'' because, depending on the 
ecosystem and landscape, some wildfire management actions may include 
more than just thinning, and ``removal'' is a broader term. We have 
amended this provision to allow thinning with or without removal. 
Whether the thinned material is removed from the site is determined by 
the local BLM manager based on how best to achieve the primary 
objective of the action: Forest health or fuels hazard reduction or 
both. Thinning activities not related to these objectives will continue 
to be subject to section 5003.1(a) of the final rule.
    Several comments from environmental interest groups stated

[[Page 33798]]

that the proposed rule was overbroad in characterizing fire management 
decisions that would be made effective immediately. These comments said 
that the proposed rule did not require any determination that the 
proposed action will safeguard public and firefighter health and 
safety, protect property, or improve conditions in the wildland-urban 
interface, and that the proposed rule thus threatens to allow projects 
having no appreciable fire reduction benefit to go forward before there 
is any opportunity for administrative review.
    We have amended the rule to require that BLM determine that 
vegetation, soil, or other resources on the public land are at 
substantial risk of wildfire due to drought, fuels buildup, or other 
reasons, or at immediate risk of erosion or other damage due to 
wildfire, before making wildfire management decisions effective 
immediately. Further, the decisions that BLM will implement under this 
rule are still analyzed under the National Environmental Policy Act 
during their development. If BLM prepares an Environmental Impact 
Statement or Environmental Assessment, the ``Purpose'' and ``Need'' 
sections of those documents will clearly make the link to the project's 
fire hazard reduction benefits. Similarly, the criteria for use of the 
categorical exclusion for fuels hazard reduction clearly specify that 
the project must be for this purpose. Finally, this rule does not 
prohibit a petition for a stay under section 4.21(b).
    Another comment stated that the proposed revision of section 5003.1 
is overly broad and vague, providing unhampered discretion to BLM line 
officers to remove large trees far from human habitation in thinning 
projects. It went on to say that, in recent history, many BLM projects 
purporting to reduce fire danger have included removal of large trees, 
which is an extremely controversial and scientifically unjustifiable 
action. The comment concluded that, while thinning of small trees and 
removal of brush are generally acceptable as fuel reduction treatment 
in the vicinity of homes and communities, there is no scientific 
evidence to suggest that logging of large trees, which are more fire 
resistant, reduces fire danger in the forest or other areas.
    The text of the regulation in question defines wildfire management 
as including: ``Fuel reduction or fuel treatment such as prescribed 
burns and mechanical, chemical, and biological thinning methods.'' We 
have not adopted a one-size-fits-all diameter limit on tree size in 
this rule, although tree size may have a bearing on the decision. BLM 
intends the fuel reduction contemplated in this language to refer to 
projects that we implement with fuels hazard reduction or forest health 
as the primary objective. Further, BLM follows the NEPA process in 
reaching and justifying its decisions.
    Another comment expressed concern that the proposed rule would 
cause and exacerbate adverse environmental impacts of wildfire in 
extremely sensitive areas, including soil erosion and water pollution. 
The comment went on to suggest that salvage logging could be authorized 
as a ``wildfire management decision,'' but would have a devastating 
effect on recently burned landscapes. It said that a 1995 report 
prepared by a group of independent scientists, known as the Beschta 
Report, concludes that logging in recently burned areas will have 
significant adverse impacts on the environment, causing soil compaction 
and erosion, loss of habitat for cavity nesting species, and loss of 
structurally and functionally important large woody debris, and that 
leaving large woody debris will not significantly increase the risk of 
reburn. According to the comment, the U.S. Forest Service confirmed the 
findings of the Beschta Report in its report entitled ``Environmental 
Effects of Postfire Logging: Literature Review and Annotated 
Bibliography,'' stating that ``[f]ollowing Beschta and others (1995) 
and Everett (1995), we found no studies documenting a reduction in fire 
intensity in a stand that have [sic] previously burned and then been 
logged.''
    The second element of wildfire management stated in the proposed 
rule, ``[p]rojects to stabilize and rehabilitate lands affected by 
wildfire,'' contemplates reseeding and soil stabilization, not salvage 
logging as suggested in the comment. BLM may authorize salvage logging 
in appropriate circumstances, after conducting the appropriate level of 
NEPA review. We do not normally consider salvage logging as 
constituting a stabilization and rehabilitation activity. We do not 
agree that the Forest Service literature review confirms the findings 
of the Beschta Report, which to our understanding has never been 
subject to peer review. Salvage logging will continue to be subjected 
to required environmental review and implemented on a case-by-case 
basis.
    One comment stated that ``mechanical'' thinning is not defined in 
the proposed rule, and that the proposal purports to ``apply only to 
fire management decisions, not to other decisions relating to grazing 
or timber sales.'' It went on to say that if mechanical thinning 
techniques include cutting trees, this contradicts the statement that 
this action does not apply to timber sales. The comment concluded by 
saying that unless the cut trees are disposed of, rather than sold, the 
action will qualify as a timber sale, and that appeals of timber sale 
decisions must go through the current administrative appeals process. 
Another comment along the same lines said that, if the BLM's own record 
is an appropriate reference, this definition will include large scale 
commercial green tree logging as well as salvage logging.
    A timber sale, planned for as such in BLM Resource Management 
Plans, is not a wildfire management project, and would not be covered 
by section 5003.1(b). However, sales of small amounts of lumber may be 
incidental to fire management thinning projects. Thinning stands of 
timber is more difficult and expensive than clearcutting the same 
stands, and less profitable for companies engaged in such activities, 
for two reasons: the small trees are less valuable, and cutting them 
down individually is more labor intensive and expensive. Such 
incidental sales may be authorized as part of a wildfire management 
project under the new regulations. The key to the application of the 
rule is the intent of the project. As long as the primary objective of 
the action is fuels hazard reduction, this rule applies.
    The same comment went on to say that it is a generally accepted 
conclusion that the sciences of fuel reduction and post-fire 
restoration are not well-advanced and that there is a great deal of 
uncertainty that logging large trees can in fact reduce the probability 
of undesirable fire behavior. On the contrary, the comment said, 
removing large trees increases the probability of catastrophic fire by 
opening up the canopy, warming and drying the forest floor and 
producing large amounts of fuels. The comment also stated that there is 
a great deal of scientific uncertainty that salvage logging can be 
considered ecologically beneficial and a genuine form of 
rehabilitation. It also challenged the effectiveness of thinning by 
citing both Federal and academic scientists who have recently doubted 
that thinning actually reduces fire severity. It quoted a September 17, 
2002, letter by 12 leading academic scientists in the field of forest 
ecology:

    The most debated response to alleviating destructive fires in 
the future--mechanically thinning trees--has had limited study, and 
that has been conducted primarily in dry forest types. Thinning of 
overstory trees, like building new roads, can often exacerbate the

[[Page 33799]]

situation and damage forest health. * * * Although a few empirically 
based studies have shown a systematic reduction in fire intensity 
subsequent to some actual thinning, others have documented increases 
in fire intensity and severity.

    Franklin, J., et al. 09/17/02 letter to President Bush and Members 
of Congress.
    We agree that more research would be useful, as scientists agree 
that there is a lack of science-based information about what specific 
fuel treatments to apply to balance a complex and conflicting mix of 
objectives. However, there is general consensus from more than 90 years 
of fire research that fires burn hotter and faster when there is more 
fuel available to feed them. The basic objective of fuels hazard 
reductions treatment is to remove this fuel. Fuels treatment programs 
prescribed under the 10-Year Comprehensive Strategy and Implementation 
Plan for the National Fire Plan do not prescribe a thin-only strategy. 
Thinning is accompanied by follow-up treatments. The scientific 
rationale for the fire behavior benefits of slash treatment after 
thinning and of understory prescribed burning are well-documented and 
longstanding. There is peer-reviewed science and general consensus in 
the scientific community that properly implemented and maintained fuel 
treatments that include prescribed burning will result in reduced fire 
severity within the treated areas. Fire reduction benefits outside the 
treated areas will depend on a number of variables. Understanding the 
effect of these variables will increase with additional research.
    However, the problem of uncharacteristically intense and volatile 
wildfire behavior in certain ecosystems is getting worse. We cannot 
afford to wait until every conceivable scientific study is completed 
before we take action.
    One comment requested an expansion of the definition for wildfire 
management under proposed sections 4190.1 and 5003.1 to add mention of 
restoration treatment of unburned acres. The comment stated that 
wildfire restoration of lands may not always deal with fuel treatments, 
but rather may require other management actions that would return the 
land to its historical fire regimes. It gave the example of altering 
species composition through tree planting. It suggested adding some 
language on landscape restoration treatments related to wildfire to 
these two proposed sections. Another comment stated that the list of 
wildfire decisions should be expanded to include decisions necessary to 
mitigate insect and disease outbreaks, the control of invasive species, 
and the impacts of other natural disasters such as severe weather 
events and seismic activity. The comment went on to say that these 
outbreaks are affecting millions of acres of the nation's forests and 
rangelands and are easily spread to nearby lands, and that, in many 
cases, adjacent landowners are powerless to address the problem without 
action from their Federal neighbors.
    We believe that changes to reflect these comments would be too far 
beyond the scope of the proposed rule to be adopted in this final rule, 
and unnecessary. We agree that, in many instances, forest or rangeland 
restoration treatments are complementary to fuels management decisions. 
We also agree that forest and rangeland restoration is more than simple 
fuels hazard reduction, as it includes other components such as species 
composition, re-introduction of native plants in the understory, 
control of exotic or invasive species, and density management to 
improve the vigor of residual vegetation for resistance to insects and 
disease. A well-designed fuels hazard project, with interdisciplinary 
input, may be a highly cost-effective and efficient way to begin to 
address a range of issues relating to forest health. A fuels hazard 
project designed with such interdisciplinary input and made effective 
immediately may serve as an important first step, and follow-up actions 
to implement the non-fuels-reduction aspects of the project will be 
subject to appropriate review and administrative appeal. Existing 
section 5003.1 (section 5003.1(a) of this rule) provides that filing an 
appeal does not automatically suspend the effect of forest management 
decisions, which would include such follow-up actions. This provision 
has long been available to help expedite such projects.
3. Where and to What Lands Should the Regulations Apply?
    One comment, questioning language in the preamble of the proposed 
rule, asked what BLM meant when we intimated that the new provisions 
would be implemented in ``wildland-urban interface and other priority 
areas'' (67 FR 77011, 77012), but did not specify in the regulatory 
text any particular lands to be covered. The comment stated that 
``priority area'' is not defined in the proposal, and that if the scope 
of the project is truly limited to two types of areas, wildland-urban 
interface and priority areas, then ``priority area'' should be defined. 
If, however, the comment said, the rules affect all BLM land, the scope 
should be clearly stated. Additionally, the comment concluded, 
clarifying these definitions will allow the rules to be construed 
narrowly and avoid inclusion of areas not intended to be covered by the 
rule.
    As the proposed rule stated, BLM will first use its limited 
wildfire management resources in priority areas, including wildland-
urban interface lands. The rule does not define ``priority areas''; BLM 
has discretion to identify such areas based on site-specific 
circumstances. In general, priority areas will include lands containing 
or near human habitation and business structures, sensitive resources 
such as archaeological sites, endangered species habitat, municipal 
watersheds, and burned-over watersheds subject to erosion. BLM will 
choose many wildfire management projects in a collaborative process as 
defined in BLM's 10-Year Comprehensive Strategy and Implementation Plan 
for implementation of the National Fire Plan. Local conditions and 
resources will guide the field manager in making wildfire management 
decisions.
    Several comments faulted the proposed rule for not being limited to 
or not focusing on the wildland-urban interface, where wildfires have 
the greatest potential for property damage and for impacts on human 
health and safety. Some of the same comments questioned how, even if 
the wildland-urban interface were to be specifically targeted, the 
public would interact in good faith with such management activities 
when they proceed on the ground immediately, potentially without NEPA 
review, offering to the public only the judicial system for recourse.
    We recognize the urgency of dealing with fire management issues on 
forest land near developed areas, but it would be unduly narrowing to 
limit the effect of the rule to those lands. Other resources, such as 
endangered species habitat, archaeological or other cultural features, 
or sensitive watersheds, may make fuel reduction or treatment under 
section 5003.1(b)(1) or land stabilization and rehabilitation under 
section 5003.1(b)(2) equally urgent on more remote lands.
    A categorical exclusion does not exempt an agency action from 
environmental review. Rather, it requires the agency to scrutinize the 
proposed action to see whether it meets the criteria for categorical 
exclusion, that is, whether it is the type of action that the agency 
has decided, through its procedures adopted under 40 CFR 1507.3 of the 
regulations of the Council on Environmental Quality, does not 
individually or cumulatively have a

[[Page 33800]]

significant effect on the human environment. In practice, this will 
normally be done through a documented checklist of criteria.
    As we stated earlier in this preamble, making decisions effective 
immediately encourages public participation by making it more essential 
at the project design/environmental review stage. It is at this stage 
that BLM gathers evidence and public input upon which to base its 
decisions.
    One comment from an association of professional foresters suggested 
that BLM should give priority to areas outside the wildland-urban 
interface area when dangerous fuel buildup or post-wildfire conditions 
originating on BLM-administered public lands could have impacts on 
adjacent private lands.
    We are not stating any priorities in this rule. The local field 
manager will determine where to initiate wildfire management projects, 
and will consult with appropriate local interests, including state and 
local government agencies, private property owners, academic experts, 
and environmental interest groups, in order to identify resources or 
properties that need protection.
    In practice, BLM plans and implements forest health and fuel 
reduction treatments both within and outside the wildland-urban 
interface. Targeting of appropriated dollars for both fiscal year 2002 
and 2003 was apportioned approximately 60 percent to wildland-urban 
interface and 40 percent to non-wildland-urban interface lands. Also, 
BLM selects all fuels and hazard reduction projects with input from a 
variety of Federal and non-federal stakeholders. Thus, a wide variety 
of parties aids in the project priorization process.
    The same comment went on to suggest that BLM lands for which state 
forestry agencies have initial attack responsibilities (due to the 
location or situation of the land, or under cooperative agreements or 
other arrangements) should also be included in the immediate 
implementation of fire management decisions. Since the rule applies to 
all fire management decisions, the decisions that the comment refers to 
will be effective immediately when BLM makes the determination required 
by section 4190.1(a) or 5003.1(b).
4. How Should BLM's Wildfire Management Procedures Relate to the 
Regulations of the Office of Hearings and Appeals?
    One comment said that, because public lands decisions often involve 
irretrievable natural resources, such as wildlife habitat, BLM should 
at least defend its actions in the internal appeals process before 
moving forward with a disputed action.
    The problem of uncharacteristically intense and volatile wildfire 
behavior in certain ecosystems is getting worse. The intensity of some 
of these fires can result in post-fire conditions that limit the 
ability of the site to be rehabilitated/restored. It is precisely 
because wildfire management decisions often involve irretrievable 
natural or cultural resources, or human habitations, that these 
decisions must be made effective immediately and the appeals process 
expedited.
    One comment stated that the proposed rule failed to explain its 
relationship with 43 CFR 4.21(a)(2)-(3) and (b), dealing with requests 
for stays of bureau decisions. It said that the preamble stated only 
that ``the BLM decision will not be subject to the automatic stay of 43 
CFR 4.21(a).'' Under current regulations, the comment continued,

    A decision becomes effective on the day after the appeals period 
expires, unless a petition for stay pending appeal is filed. The 
proposed regulation does not state that its intent is to eliminate 
the possibility of the IBLA's granting a stay under the standards of 
43 CFR Sec.  4.21(b). Yet it is silent as to the effect of filing a 
petition for such a stay. If the intent of the rule is to eliminate 
the 45-day stay triggered, under current regulations, by the filing 
of such a petition, then it effectively eliminates any possibility 
of meaningful IBLA review of ``wildfire management decisions.'' If 
the BLM can proceed to implement a decision despite the filing of a 
petition for a stay, that decision may well be implemented before 
the IBLA ever rules on the petition, effectively eliminating any 
opportunity for administrative review. Parties adversely affected 
will have no alternative but to proceed immediately to federal 
court.

    The comment has uncovered a drafting error in the proposed rule. 
Rather than exempting wildfire management decisions from the provisions 
of all of section 4.21, it should have referred specifically to section 
4.21(a)(1). The final rule corrects this error. The stay provisions of 
section 4.21(b) will apply to decisions made effective immediately 
under this final rule.
    OHA is developing a proposed rule reorganizing section 4.21. When 
that rule is published in final form, it will include conforming 
amendments to correct any cross-reference discrepancies in the 
regulations promulgated today in this rule.

C. Time Limit for Decisions on Appeals From BLM Wildfire Management 
Decisions

    OHA proposed to add a new section, 43 CFR 4.416, requiring IBLA to 
decide appeals from BLM wildfire management decisions within 60 days 
after all pleadings have been filed. Some comments stated that the 60-
day deadline that the proposed rule sets for the IBLA to decide appeals 
in ``wildfire management'' cases is unreasonable for several reasons: 
(1) It may not be possible for the IBLA to decide ``wildfire 
management'' cases within the time period provided; (2) expediting 
these cases may impose additional delays on the remainder of the 
Board's cases; and (3) the rule imposes no consequences for the IBLA's 
failure to meet the 60-day deadline, so that the result of the Board's 
failure to meet the deadline would simply be for the challenged 
decision to continue in effect indefinitely, frustrating any 
opportunity for meaningful administrative review prior to a project's 
implementation and its potentially irreversible effects. Other comments 
said that the effect of the rule would be to moot the issues involved 
in the decision before an objective decisionmaker can resolve them.
    The possibility of such delay in other appeals does exist, 
depending on how many appeals from BLM wildfire management decisions 
there are; but the trade-off in the use of IBLA's resources is 
appropriate in view of the necessity for rapid implementation of 
wildfire management decisions. The severity of the effects of recent 
fire seasons on the land and resources, and on the national and local 
economies, justifies whatever impacts the rule may have on other cases 
on IBLA's docket. Imposing a 60-day deadline on an IBLA decision on the 
merits has no effect on the ability of an appellant to petition for a 
stay of the decision appealed. Petitioning for a stay is the mechanism 
for preventing a decision from remaining in effect indefinitely pending 
appeal, if the appellant can demonstrate a sufficient basis for staying 
the decision.
    One comment suggested adding to proposed Sec.  4.416, ``and within 
180 days after the appeal is filed.'' We have adopted this suggestion 
in the final rule. The added language will provide a definite deadline 
for deciding appeals from wildfire management decisions.
    Proposed section 4.416 is adopted as amended.

D. Proof of Service

    OHA also proposed to amend three sections--43 CFR 4.401(c)(2), 
4.422(c)(2), and 4.450-5--to provide

[[Page 33801]]

that proof of service of documents on other parties may be made by a 
statement certifying that service has been or will be made in 
accordance with the applicable rules and specifying the date and manner 
of such service. Although some comments said these provisions should 
not be amended, on the grounds that it is not unreasonable to require 
an appellant to provide hard proof that it has filed a timely appeal, 
most comments approved the proposed amendments as bringing IBLA's 
practice into line with current rules in Federal and state courts.
    The amendments to these sections are adopted as proposed.

II. Review Under Procedural Statutes and Executive Orders

A. Regulatory Planning and Review (Executive Order 12866)

    Under the criteria in Executive Order 12866, this document is not a 
significant rule. The Office of Management and Budget has not reviewed 
this rule under Executive Order 12866.
    1. This rule will not have an annual economic effect of $100 
million or more or adversely affect in a material way an economic 
sector, productivity, competition, jobs, the environment, public health 
or safety, or other units of government or communities. A cost-benefit 
and economic analysis is not required. These amended regulations will 
have virtually no effect on the economy because they merely simplify 
proof of service, codify who has a right of appeal, allow BLM to make 
wildfire management decisions effective immediately, and expedite 
review of those decisions. Any economic effects should be positive, as 
expedited fuel reduction projects reduce the scope and intensity of 
wildfire conflagrations, in turn reducing the destruction of natural 
resources and man-made improvements.
    2. This rule will not create inconsistencies with or interfere with 
other agencies' actions. This rule amends existing regulations of the 
Office of Hearings and Appeals and the Bureau of Land Management so 
that they will continue to be consistent with each other.
    3. This rule will not alter the budgetary effects of entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients. These regulations have to do only with the procedures 
for hearings and appeals of BLM land management decisions, not with 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients. These regulations merely simplify 
proof of service, codify who has a right of appeal, allow BLM to make 
wildfire management decisions effective immediately, and expedite 
review of those decisions.
    4. This rule does not raise novel legal or policy issues. These 
regulations merely simplify proof of service, codify who has a right of 
appeal, allow BLM to make wildfire management decisions effective 
immediately, and expedite review of those decisions.

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.). Simplifying proof of service, codifying who has a right of 
appeal, allowing BLM to make wildfire management decisions effective 
immediately, and expediting review of those decisions will have no 
appreciable effect on small entities. A Small Entity Compliance Guide 
is not required.

C. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act.
    1. This rule will not have an annual effect on the economy of $100 
million or more. Simplifying proof of service, codifying who has a 
right of appeal, allowing BLM to make wildfire management decisions 
effective immediately, and expediting review of those decisions should 
have no effect on the economy.
    2. This rule will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, local government 
agencies, or geographic regions. Simplifying proof of service, 
codifying who has a right of appeal, allowing BLM to make wildfire 
management decisions effective immediately, and expediting review of 
those decisions will not affect costs or prices for citizens, 
individual industries, government agencies, or geographic regions.
    3. This rule will not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. Simplifying proof of service, codifying who has a right of 
appeal, allowing BLM to make wildfire management decisions effective 
immediately, and expediting review of those decisions will have no 
effects, adverse or beneficial, on competition, employment, investment, 
productivity, innovation, or the ability of U.S.-based enterprises to 
compete with foreign-based enterprises.

D. Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1531 
et seq.):
    1. This rule will not have a significant or unique effect on State, 
local, or tribal governments or the private sector. Small government 
entities rarely appeal BLM wildfire management decisions. Simplifying 
proof of service, codifying who has a right of appeal, allowing BLM to 
make wildfire management decisions effective immediately, and 
expediting review of those decisions will neither uniquely nor 
significantly affect these governments. A statement containing the 
information required by the Unfunded Mandates Reform Act, 2 U.S.C. 1531 
et seq. is not required.
    2. This rule will not produce an unfunded Federal mandate of $100 
million or more on State, local, or tribal governments or the private 
sector in any year, i.e., it is not a ``significant regulatory action'' 
under the Unfunded Mandates Reform Act.

E. Takings (Executive Order 12630)

    In accordance with Executive Order 12630, the rule will not have 
significant takings implications. A takings implication assessment is 
not required. These amendments to existing regulations that will 
simplify proof of service, codify who has a right of appeal, allow BLM 
to make wildfire management decisions effective immediately, and 
expedite review of those decisions will have no effect on property 
rights. The rule should have the effect of enabling BLM better to 
protect private property from catastrophic wildfire.

F. Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, these final regulations 
do not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment. There is no foreseeable effect 
on states from simplifying proof of service, codifying who has a right 
of appeal, allowing BLM to make wildfire management decisions effective 
immediately, and expediting review of those decisions. A Federalism 
Assessment is not required.

G. Civil Justice Reform (Executive Order 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule will not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. This rule, by merely simplifying proof of service, 
codifying who has a right of appeal, allowing BLM to make wildfire

[[Page 33802]]

management decisions effective immediately, and expediting review of 
those decisions, will not unduly burden either administrative or 
judicial tribunals.
    Comments from environmental interest groups addressed this issue by 
saying that, because the proposed rule will allow BLM to move forward 
with projects despite a pending appeal, the proposed rule would force 
citizens to go directly to court to prevent activities that they 
believe adversely affect the environment. These comments concluded 
that, for reasons of time, expense, and the necessity of retaining 
counsel, the Federal courts represent an impracticable and even 
unavailable venue for many members of the public to resolve these 
issues.
    However, the final rule has been amended to make it clear that it 
does not prevent appellants from seeking a stay of the decision being 
appealed. Also, we do not believe that the wildfire management 
decisions we contemplate making will be appealed as frequently as the 
comment writers expect. Finally, if BLM's wildfire management projects 
are properly planned, with extensive public participation in the spirit 
of the Secretary of the Interior's philosophy of coordination, 
communication, and consultation in support of conservation, there 
should be few administrative or court challenges. Even if the final 
rule leads to increased resort to the Federal courts, the urgency of 
wildfire management justifies the arguable increased burden on the 
courts.

H. Paperwork Reduction Act

    These regulations do not require an information collection from 10 
or more parties, and a submission under the Paperwork Reduction Act is 
not required. An OMB form 83-I has not been prepared and has not been 
approved by the Office of Policy Analysis. These regulations simplify 
proof of service, codify who has a right of appeal, allow BLM to make 
wildfire management decisions effective immediately, and expedite 
review of those decisions. They do not require the public to provide 
information.

I. National Environmental Policy Act

    The Department has analyzed this rule in accordance with the 
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et 
seq., Council on Environmental Quality (CEQ) regulations, 40 CFR part 
1500, and the Department Manual (DM). CEQ regulations, at 40 CFR 
1508.4, define a ``categorical exclusion'' as a category of actions 
that the Department has determined ordinarily do not individually or 
cumulatively have a significant effect on the human environment. The 
regulations further direct each department to adopt NEPA procedures, 
including categorical exclusions. 40 CFR 1507.3. The Department has 
determined that the final rule is categorically excluded from further 
environmental analysis under NEPA in accordance with 516 DM 2, Appendix 
1, which categorically excludes ``[p]olicies, directives, regulations 
and guidelines of an administrative, financial, legal, technical or 
procedural nature.'' In addition, the Department has determined that 
none of the exceptions to categorical exclusions, listed in 516 DM 2, 
Appendix 2, applies to the final rule. The final rule is an 
administrative and procedural rule, relating to the timing of the 
effectiveness of BLM wildfire management decisions and the Department's 
administrative appeals process. The rule will not change the 
requirement that projects must comply with NEPA. Therefore, an 
environmental assessment or environmental impact statement under NEPA 
is not required.
    One comment expressed concern about the cumulative impacts of the 
proposed rule and other elements of the President's ``Healthy Forests 
Initiative.'' It cited--
    [sbull] Changes in Forest Service regulations implementing the 
Appeals Reform Act,
    [sbull] Direction to expedite Endangered Species Act consultation 
on fuel treatment projects, and guidance from the Council on 
Environmental Quality on conducting environmental assessments of such 
projects,
    [sbull] The proposed revision of the National Forest Management Act 
regulations,
    [sbull] The proposed Categorical Exclusions for salvage logging 
projects up to 250 acres, and
    [sbull] The proposed Categorical Exclusions for fuel reduction 
projects on both Forest Service and BLM administered lands.
    The comment went on to say that the Categorical Exclusion proposals 
would exempt Forest Service and BLM fuel reduction projects from NEPA 
documentation requirements, and that the proposed BLM wildfire 
regulations would not provide for a project stay on BLM-specific 
wildfire projects pending appeal. Consequently, the comment said, the 
cumulative effect of these two proposed rule changes is to eliminate 
environmental review of purported fuel reduction projects while 
allowing them to proceed on the ground during an administrative review. 
The comment concluded that it is critical to evaluate the cumulative 
effect of these numerous rule changes. Another comment stated that this 
rule ``may result in significant effects that are unknown and thus 
require at least an EA.''
    This rule is strictly procedural in nature, and is a small part of 
the overall wildfire management and Healthy Forests Initiative. It does 
not change any environmental review process that BLM must follow before 
implementing a wildfire management decision. The rule expedites the 
implementation of Federal decisions that still require proper NEPA 
documentation. BLM is preparing an Environmental Impact Statement to 
address the overall environmental effects of other aspects of the 
Initiative. We decline to address those concerns in this procedural 
final rule.

J. Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments

    As required by Executive Order 13175 and 512 DM 2, the Department 
of the Interior has evaluated potential effects of the final rule on 
Federally recognized Indian tribes and has determined that there are no 
potential effects. The final rule will not affect Indian trust 
resources; it simplifies proof of service, codifies who has a right of 
appeal, allows BLM to make wildfire management decisions effective 
immediately, and provides for expedited review of those decisions.
    We received one comment from a commission representing the 
interests of several Indian Tribes with respect to fishing, hunting, 
and gathering, and pasturing livestock. The comment expressed some of 
the same concerns shown in the comments of environmental organizations 
discussed elsewhere in this preamble as to the cumulative effects of 
this rule and other initiatives of the Administration affecting the 
environment. The comment said that the cumulative effect of these 
proposals would ``allow potentially harmful projects to be planned and 
implemented without adequate tribal consultation, environmental review, 
or opportunity for appeal or public oversight.'' The comment went on to 
say:

    These proposed regulations cannot be reviewed in a vacuum, but 
must be considered together with the Departments [sic] recent 
addition of a categorical exclusion from NEPA review for ``hazardous 
fuel reduction'' activities. The categorical exclusions have the 
potential to allow logging and even grazing projects to proceed 
without environmental review or adequate consultation with Tribes. 
The proposed appeal changes then would allow these

[[Page 33803]]

projects to proceed and start implementation despite the concerns or 
an appeal. Coupled together, this will greatly reduce the Tribes', 
or any interested party's, ability to provide substantive input on 
the adverse effects of a proposed project.

    We recognize these concerns. While we do not believe there is a 
necessity to consult with specific Tribes or their representatives 
about this rule beyond accepting their public comments about it, there 
certainly may be need to consult with them regarding specific wildfire 
management projects if they may have impacts on Indian trust resources. 
Further, as stated earlier in this preamble, BLM is preparing an 
Environmental Impact Statement reviewing the possible impacts of the 
Healthy Forests Initiative, and these tribal concerns will be 
considered there.

K. Effects on the Nation's Energy Supply (Executive Order 13211)

    In accordance with Executive Order 13211, we have found that this 
final rule will not have a significant effect on the nation's energy 
supply, distribution, or use. Simplifying proof of service, codifying 
who has a right of appeal, allowing BLM to make wildfire management 
decisions effective immediately, and expediting review of those 
decisions will not affect energy supply or consumption.

L. Authors

    The principal authors of this final rule are Will A. Irwin, 
Administrative Judge, Interior Board of Land Appeals, and Michael H. 
Schwartz and Ted Hudson, Bureau of Land Management, assisted by Michael 
Hickey and Amy Sosin, Office of the Solicitor, Department of the 
Interior.

List of Subjects

43 CFR Part 4

    Administrative practice and procedure, Grazing lands, Public lands.

43 CFR Part 4100

    Administrative practice and procedure, Grazing lands, Livestock, 
Penalties, Range management, Reporting and recordkeeping requirements.

43 CFR Part 5000

    Administrative practice and procedure, Forests and forest products, 
Public lands.

    Dated: May 19, 2003.
P. Lynn Scarlett,
Assistant Secretary--Policy, Management and Budget.
    Dated: May 14, 2003.
Rebecca W. Watson,
Assistant Secretary--Land and Minerals Management.

0
For the reasons set forth in the preamble, part 4, subpart E, and part 
5000, subpart 5003 of Title 43 of the Code of Federal Regulations are 
amended, and part 4100, subpart 4190 of Title 43 of the Code of Federal 
Regulations is added, as set forth below:

43 CFR Subtitle A--Office of the Secretary of the Interior

PART 4--[AMENDED]

Subpart E--Special Rules Applicable to Public Land Hearings and 
Appeals

0
1. The authority for 43 CFR part 4, subpart E, continues to read:

    Authority: Sections 4.470 to 4.478 also issued under authority 
of sec. 2, 48 Stat. 1270; 43 U.S.C. 315a.


0
2. In Sec.  4.401, revise paragraph (c)(2) to read as follows:


Sec.  4.401  Documents.

* * * * *
    (c) * * *
    (2) At the conclusion of any document that a party must serve under 
the regulations in this part, the party must sign a written statement 
certifying that service has been or will be made in accordance with the 
applicable rules and specifying the date and manner of such service.
* * * * *

0
3. In Sec.  4.410, redesignate paragraph (b) as (e), and revise 
paragraph (a)(4) and add paragraphs (b), (c), and (d) to read as 
follows:


Sec.  4.410  Who may appeal.

    (a) * * *
    (4) As provided in paragraph (e) of this section.
    (b) A party to a case, as set forth in paragraph (a) of this 
section, is one who has taken action that is the subject of the 
decision on appeal, is the object of that decision, or has otherwise 
participated in the process leading to the decision under appeal, e.g., 
by filing a mining claim or application for use of public lands, by 
commenting on an environmental document, or by filing a protest to a 
proposed action.
    (c) Where BLM provided an opportunity for participation in its 
decisionmaking process, a party to the case, as set forth in paragraph 
(a) of this section, may raise on appeal only those issues:
    (1) Raised by the party in its prior participation; or
    (2) That arose after the close of the opportunity for such 
participation.
    (d) A party to a case is adversely affected, as set forth in 
paragraph (a) of this section, when that party has a legally cognizable 
interest, and the decision on appeal has caused or is substantially 
likely to cause injury to that interest.
* * * * *

0
4. Section 4.416 is added under the undesignated center heading 
``actions by board of land appeals'' to read as follows:


Sec.  4.416  Appeals of wildfire management decisions.

    The Board must decide appeals from decisions under Sec.  4190.1 and 
Sec.  5003.1(b) of this title within 60 days after all pleadings have 
been filed, and within 180 days after the appeal was filed.

0
5. In Sec.  4.422, revise paragraph (c)(2) to read as follows:


Sec.  4.422  Documents.

* * * * *
    (c) * * *
    (2) At the conclusion of any document that a party must serve under 
the regulations in this part, the party or its representative must sign 
a written statement certifying that service has been or will be made in 
accordance with the applicable rules and specifying the date and manner 
of such service.
* * * * *

0
6. In Sec.  4.450-5, revise the introductory paragraph to read as 
follows:


Sec.  4.450-5  Service.

    The complaint must be served upon every contestee in the manner 
provided in Sec.  4.422(c)(1). Proof of service must be made in the 
manner provided in Sec.  4.422(c)(2). In certain circumstances, service 
may be made by publication as provided in paragraph (b)(1) of this 
section. When the contest is against the heirs of a deceased entryman, 
the notice must be served on each heir. If the person to be personally 
served is an infant or a person who has been legally adjudged 
incompetent, service of notice must be made by delivering a copy of the 
notice to the legal guardian or committee, if there is one, of such 
infant or incompetent person. If there is no guardian or committee, 
then service must be by delivering a copy of the notice to the person 
having the infant or incompetent person in charge.
* * * * *

[[Page 33804]]

43 CFR Chapter II--Bureau of Land Management, Department of the 
Interior

PART 4100--GRAZING ADMINISTRATION--EXCLUSIVE OF ALASKA

0
7. The authority citation for part 4100 continues to read:

    Authority: 43 U.S.C. 315, 315a-315r, 1181d, 1740.


0
8. Add subpart 4190, consisting of 4190.1, to read as follows:

Subpart 4190--Effect of Wildfire Management Decisions


Sec.  4190.1  Effect of wildfire management decisions.

    (a) Notwithstanding the provisions of 43 CFR 4.21(a)(1), when BLM 
determines that vegetation, soil, or other resources on the public 
lands are at substantial risk of wildfire due to drought, fuels 
buildup, or other reasons, or at immediate risk of erosion or other 
damage due to wildfire, BLM may make a rangeland wildfire management 
decision effective immediately or on a date established in the 
decision. Wildfire management includes but is not limited to:
    (1) Fuel reduction or fuel treatment such as prescribed burns and 
mechanical, chemical, and biological thinning methods (with or without 
removal of thinned materials); and
    (2) Projects to stabilize and rehabilitate lands affected by 
wildfire.
    (b) The Interior Board of Land Appeals will issue a decision on the 
merits of an appeal of a wildfire management decision under paragraph 
(a) of this section within the time limits prescribed in 43 CFR 4.416.

PART 5000--ADMINISTRATION OF FOREST MANAGEMENT DECISIONS

0
9. The authority citation for part 5000 continues to read as follows:

    Authority: 43 U.S.C. 1181(a); 43 U.S.C. 1701; 30 U.S.C. 601 et 
seq.

Subpart 5003--Administrative Remedies

0
10. Revise Sec.  5003.1 to read as follows:


Sec.  5003.1  Effect of decisions; general.

    (a) Filing a notice of appeal under part 4 of this title does not 
automatically suspend the effect of a decision governing or relating to 
forest management as described under sections 5003.2 and 5003.3.
    (b) Notwithstanding the provisions of 43 CFR 4.21(a)(1), when BLM 
determines that vegetation, soil, or other resources on the public 
lands are at substantial risk of wildfire due to drought, fuels 
buildup, or other reasons, or at immediate risk of erosion or other 
damage due to wildfire, BLM may make a wildfire management decision 
made under this part and parts 5400 through 5510 of this chapter 
effective immediately or on a date established in the decision. 
Wildfire management includes but is not limited to:
    (1) Fuel reduction or fuel treatment such as prescribed burns and 
mechanical, chemical, and biological thinning methods (with or without 
removal of thinned materials); and
    (2) Projects to stabilize and rehabilitate lands affected by 
wildfire.
    (c) The Interior Board of Land Appeals will issue a decision on the 
merits of an appeal of a wildfire management decision under paragraph 
(b) of this section within the time limits prescribed in 43 CFR 4.416.

[FR Doc. 03-14103 Filed 6-2-03; 12:53 pm]
BILLING CODE 4310-79-P