01-20088. Appeal of Decisions Concerning the National Forest Service; Removal of Outdated Rules

AGENCY:

Forest Service, USDA.

ACTION:

Final rule.

SUMMARY:

This final rule removes from the Code of Federal Regulations the rules on Appeal of Decisions Concerning the National Forest System. These rules, which contain termination dates that are long past, are obsolete and have been suspended by the rules on appeal procedures for National Forest System Projects and Actions. The presence of the obsolete rules in the Code of Federal Regulations is causing public confusion about which rules to follow in filing appeals.

DATES:

This rule is effective August 21, 2001.

ADDRESSES:

Written inquiries about this rule may be sent to the Director, Ecosystem Management Coordination Staff, Forest Service, USDA, P.O. Box 96090, Washington, DC 20090-6090.

FOR FURTHER INFORMATION CONTACT:

Gary Wetterberg, Forest Service, USDA; Telephone [phone].

SUPPLEMENTARY INFORMATION:

The rule governing administrative appeals of Forest Service decisions at 36 CFR part 211, subpart B, consist of three sections. Section 211.16 concerns appeal of resource recovery and rehabilitation decisions resulting from natural catastrophes. Its procedures do not apply to any appeal received after February 22, 1989 (36 CFR 211.16(o)). Section 211.17 concerns appeal of decisions to reoffer returned or defaulted timber sales on National Forests. Its procedures do not apply to any decision signed on or after September 13, 1991 (36 CFR 211.17(q)). Section 211.18 concerns appeal of decisions of forest officers made prior to February 21, 1989 (36 CFR 211.18)(s)).

The processes for appealing National Forest System decisions as established in 36 CFR 211.16 and 211.18 were superseded on January 23, 1989, by adoption of the rules at 36 CFR parts 217 and 251 (54 FR 3342). The rules at 36 FR part 217 offered the public a process for the administrative appeal of decisions relating to land and resource management plans, projects, and activities. The rule at 36 FR part 251, subpart C, was, and continues to be, limited to appeal of decisions regarding written instruments authorizing occupancy and use of National Forest System Lands. At the time these new rules were adopted, the Department made corollay amendments to § 211.16 and 211.18 (54 FR 3342) to make clear they were not applicable to decisions rendered after February 21 and February 22, 1989, respectively. Subsequently, the remaining appeal rule at 36 CFR 211.17 was amended to apply only to decisions signed before September 13, 1991 (56 FR 46549).

Some individuals and groups seeking to appeal Forest Service decisions have become confused by the presence of the now outdated and superseded rules at 36 CFR part 211, subpart B. As recently as March 29, 2001, and April 2, 2001, citizens filed a request for second level review of project of decisions on the Plumas National Forest pursuant to 36 CFR 211.18. In spite of the time and effort the appellants spent drafting their appeals, the Forest Service could not provide the second level reviews requested, because they were filed pursuant to regulations long since terminated. The appellants apparently did not notice the termination date in paragraph (q) of § 211.18 and were unaware of the fact that the decisions they sought to appeal were subject to the appeal process in 36 CFR part 215 adopted November 4, 1993 (58 FR 58910).

Therefore, it is in the public interest to remove from the Code of Federal Regulations the obsolete rules at 36 CFR part 211, subpart B, in order to reduce public confusion. However, it should be noted that the removal of this rule will not alter conditions of any settlement agreement with appellants reached under the provisions of the rules at 36 CFR part 211, subpart B.

Regulatory Certifications

Regulatory Impact

This is not a significant rule. The rule will not have an annual effect of $100 million or more on the economy, or adversely affect productivity, competition, jobs, the environment, public health or safety, or State or local governments. It will not interfere with an action taken or planned by another agency, or raise new legal or policy issues. Finally, the rule will not alter the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients of such programs. Accordingly, the rule is not subject to Office of Management and Budget (OMB) review under Executive Order 12866. Moreover, this rule has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This rule will not have a significant economic impact on a substantial number of small entities as defined by the Act. This rule will not impose recordkeeping requirements; will not affect their competitive position in relation to large entities; and will not affect their cash flow, liquidity, or ability to remain in the market.

Environmental Impact

This rule has no direct or indirect effect on the environment. 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.

No Takings Implications

This rule has been analyzed in accordance with the principles and criteria contained in Executive Order 12360, and it has been determined that the rule will not pose the risk of a taking of private property, as the rule serves only to clarify appeals procedures by removing outdated information.

Civil Justice Reform

This rule has been reviewed under Executive order 12988, Civil Justice Reform. It (1) does not preempt State and local laws and regulations that conflict with or impede its full implementation; (2) has no retroactive effect; and (3) will not require administrative proceedings.

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 Department has assessed the effects of this rule on State, local, and tribal governments and the private sector. This rule will 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.

Federalism and Consultation and Coordination With Tribal Governments

The Department has considered this rule under the requirements of Executive Orders 12612 and 13132 and concluded that the rule does 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. Therefore, the Department has determined that no further assessment of federalism implications is necessary at this time.

Moreover, this rule does not have tribal implications as defined in Executive order 13175 and, therefore, advance consultation with tribes is not required.

Controlling Paperwork Burdens on the Public

This rule does not contain any recordkeeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320. In fact, the removal of the obsolete rules may serve to reduce paperwork, as people are less likely to attempt to use these invalid processes for appeals. 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.

Energy Effects

This final rule has been reviewed under Executive order 13211 of May 18, 2001, and it has been determined that this rule has no effect on the supply, distribution, or use of energy. This rule is a ministerial act to remove from the Code of Federal Regulations, rules which have, by their own terms, expired. Therefore, the preparation of a statement of energy effects is not required.

List of Subjects in 36 CFR Part 211

• Administrative practice and procedure
• Fire prevention
• Intergovernmental relations
• National forests

Therefore, for the reasons set forth in the preamble, part 211 of Title 36, Code of Federal Regulations is amended as follows:

PART 211—ADMINISTRATION

1. The authority citation for part 211 continues to read as follows:

Authority: 16 U.S.C. 472, 498, 551.

Subpart B—[Removed and Reserved]

2. Subpart B consisting of §§ 211.16 through 211.18 is removed and reserved.

Dated: July 5, 2001.

Dale N. Bosworth,

Chief.