[Federal Register Volume 63, Number 18 (Wednesday, January 28, 1998)]
[Rules and Regulations]
[Pages 4187-4188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2043]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 215
Notice, Comment, and Appeal Procedures for National Forest System
Projects and Activities
AGENCY: Forest Service, USDA.
ACTION: Interim final rule; request for comment.
-----------------------------------------------------------------------
SUMMARY: The Department is amending the rules governing who can
participate in administrative appeals of decisions authorizing National
Forest System projects and activities, by removing a prohibition on
appeals by Forest Service employees. This regulatory change results
from a reassessment of this provision in response to a recent legal
challenge. Public comment is invited on this interim rule and will be
considered in promulgating a final rule.
DATES: This interim rule is effective January 28, 1998. Comments on
this rulemaking must be received by March 30, 1998.
ADDRESSES: Written comments on this rule must be sent to Susan Yonts-
Shepard, Appeals Coordinator, National Forest Systems Deputy Area, MAIL
STOP 1106, Forest Service, USDA P.O. Box 96090, Washington, DC 20090-
9060. All comments, including names and addresses, when provided, will
be placed in the record and are made available for public inspection
and copying.
FOR FURTHER INFORMATION CONTACT: Susan Yonts-Shepard, Forest Service,
telephone, (202) 202-1519.
SUPPLEMENTARY INFORMATION:
Background
Section 322 of the 1993 Interior and Related Agencies
Appropriations Act directed the Department to establish a process by
which persons or organizations receive notice and the opportunity to
comment on proposed actions affecting the National Forest System. The
Act also required the establishment of procedures by which persons or
organizations may appeal decisions subsequently made on proposed
actions. Following the publication of a proposed rule with a request
for public comment (58 FR 19369), the Forest Service received over
9,000 comments on certain aspects of this rulemaking. However, no
comment was submitted on the proposed provision prohibiting agency
employees from participating in the appeal process as appellants or as
interested parties at Sec. 215.11(c). Having concluded that there was
no concern with this provision, the Department adopted paragraph (c) in
Sec. 215.11, without change from the proposed rule, November 4, 1993
(58 FR 58904).
A recent lawsuit brought by a Forest Service employee challenging
this regulation (Dalton v. Forest Service, Civil Act Number 97-0774,
U.S.D.C., D.D.C.) has led to a reassessment of the employee appeal
limitation in 36 CFR 215.11(c) and has raised issues not considered at
the time of the earlier rulemaking. Moreover, the rulemaking record
does not speak directly to the Sec. 215.11(c) provision. Therefore, the
Deputy Under Secretary, in a declaration to the court, indicated that
the Department would cease immediately to enforce the employee appeal
prohibition and would repeal the employee prohibition provision at
Sec. 215.11(c). The declaration also indicated that, at a later date,
after additional consideration of relevant factors, the Forest Service
may decide to publish a new proposed rule to address the matter of
appeals by employees. If so, public comment would be requested at that
time.
Employees appealing a National Forest System project may violate 18
U.S.C. 208 if their appeal is based upon an imputed financial interest
and their official duties involve the appeal. Also, representation of
others in the appeal process may be prohibited under 18 U.S.C. 203 and
205. Assuming that an employee appealing a National Forest System
project would file the appeal as a private citizen, in accordance with
Office of Government Ethics regulations at 5 CFR part 2635, subpart G,
Misuse of position, the employee may not be on official duty or use
government property or equipment in the preparation or transmittal of
an appeal. Also, in preparing the appeal, the employee must not use
official information not yet released to the public. A new paragraph
(d) has been added to Sec. 215.11 to address the standards of ethical
conduct for employees filing an appeal.
Agencies are not required by the Administrative Procedure Act to
give notice and opportunity to comment prior to adoption of this
interim final rule because the decision to repeal Sec. 215.11(c)
involves a matter relating to
[[Page 4188]]
agency personnel and, thus, is exempt pursuant to 5 U.S.C. 553(a)(2).
However, the Department believes the public should have an opportunity
to comment on this rescission before it is adopted as a final rule.
Among concerns and questions that reviewers may wish to consider are:
the appropriateness and ethical implications of allowing employees to
appeal certain Forest Service decisions; the potential impact of
employee appeals on the process of permit administration; and the
potential impact of allowing employee appeals on the delivery of goods
and services from the National Forest System.
Regulatory Impact
This interim final rule has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory Planning and Review. It has been
determined that this is not a significant rule. This action consists of
administrative changes to regulations that would allow employee appeals
of agency projects and activities under 36 CFR part 215. This interim
final rule will not have an annual effect of $100 million or more on
the economy nor adversely affect productivity, competition, jobs, the
environment, public health or safety, nor State or local governments.
Also, this rule will not interfere with an action taken or planned by
another agency or raise new legal or policy issues. In short, little or
no effect on the national economy will result from this interim final
rule. Finally, this action will not alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients of such programs. Accordingly, this interim
final rule is not subject to OMB review under Executive Order 12866.
Moreover, this interim final rule has been considered in light of
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it is hereby
certified that this action will not have a significant economic impact
on a substantial number of small entities as defined by that Act.
Unfunded Mandates Reform
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the Department has assessed the effects of this rule
on State, local, and tribal governments and the private sector. This
rule does not compel the expenditure of $100 million or more by any
State, local, or tribal government or anyone in the private sector.
Therefore, a statement under section 202 of the Act is not required.
Environmental Impact
Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43180;
September 18, 1992) excludes from documentation in an environmental
assessment or impact statement ``rules, regulations, or policies to
establish Service-wide administrative procedures, program processes, or
instructions.'' The agency's assessment is that this rule falls within
this category of actions and that no extraordinary circumstances exist
which would require preparation of an environmental assessment or
environmental impact statement.
No Takings Implications
This interim final rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 12630, and it has
been determined that the rule does not pose the risk of a taking of
Constitutionally-protected private property. There are no
Constitutionally-protected private property rights to be affected,
since the regulation applies only to agency employees.
Civil Justice Reform Act
This interim final rule has been reviewed under Executive Order
12988, Civil Justice Reform. This interim final rule (1) preempts all
State and local laws and regulations that are in conflict or which
would impede its full implementation, (2) has no retroactive effect,
and (3) does not require administrative proceedings before parties may
file suit in court challenging its provisions.
Controlling Paperwork Burdens on the Public
This interim final rule does not contain any recordkeeping or
reporting requirements or other information collection requirements as
defined in 5 CFR 1320 and, therefore, imposes no paperwork burden on
the public. Accordingly, the review provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501, et seq.) and implementing
regulations at 5 CFR part 1320 do not apply.
List of Subjects in 36 CFR Part 215
Administrative practice and procedures, National forests.
Therefore, for the reasons set forth in the preamble, part 215 of
Title 36 of the Code of Federal Regulations is amended, as follows:
PART 215--NOTICE, COMMENT, AND APPEAL PROCEDURES FOR NATIONAL
FOREST SYSTEM PROJECTS AND ACTIVITIES
1. The authority citation for part 215 continues to read as
follows:
Authority: 16 U.S.C. 472, 551; sec. 322, Pub. L. 102-381, 106
Stat. 1419 (16 U.S.C. 1612 note).
Sec. 215.11 [Amended]
2. Amend Sec. 215.11 to revise paragraph (c) and add a new
paragraph (d) to read as follows:
Sec. 215.11 Who may participate in appeals.
* * * * *
(c) Federal agencies may not participate as appellants or
interested parties.
(d) Federal employees filing appeals under this part shall comply
with Federal conflict of interest statutes at 18 U.S.C. 202-209 and
with employee ethics requirements at 5 CFR part 2635. Specifically,
employees shall not be on official duty or use government property or
equipment in the preparation or transmittal of an appeal. Employees
also shall not use official information not yet released to the public.
Dated: January 22, 1998.
Brian Eliot Burke,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 98-2043 Filed 1-27-98; 8:45 am]
BILLING CODE 3410-11-M
