Notice, Comment, and Appeal Procedures for National Forest System Projects and Activities and Project-Level Predecisional Administrative Review Process, 44291-44293 [2014-18019]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 79, Number 147 (Thursday, July 31, 2014)]
[Rules and Regulations]
[Pages 44291-44293]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-18019]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Parts 215 and 218

RIN 0596-AD18


Notice, Comment, and Appeal Procedures for National Forest System 
Projects and Activities and Project-Level Predecisional Administrative 
Review Process

AGENCY: Forest Service, USDA.

ACTION: Final rule.

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SUMMARY: The U.S. Department of Agriculture (Department) issues this 
final rule to amend regulations concerning administrative reviews 
(appeals and objections) for projects or activities that are 
categorically excluded under the National Environmental Policy Act. The 
combined effect of the Consolidated Appropriations Act of 2014 and the 
2014 Farm Bill makes the 36 CFR Part 215 regulations (post-decisional 
appeals) obsolete and permits withdrawal in their entirety. An 
amendment is also made to update the legislative authority provision 
for 36 CFR Part 218 (pre-decisional objections) and to include a 
statutory prohibition contained in the referenced legislation. The 
final rule enables the Department to meet the intent of Congress.

DATES: This rule is effective July 31, 2014.

FOR FURTHER INFORMATION CONTACT: Deborah Beighley, Assistant Director, 
Judicial and Administrative Review, Ecosystem Management Coordination 
staff, at 202-205-1277 or via email at dbeighley@fs.fed.us, or Joel 
Strong, National Litigation Coordinator, Judicial and Administrative 
Review, Ecosystem Management Coordination staff, at 202-205-0939 or via 
email at jstrong@fs.fed.us.
    Individuals who use telecommunication devices for the deaf (TDD) 
may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 
between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through 
Friday.

SUPPLEMENTARY INFORMATION: The Department gives notice that Part 215 of 
Title 36 of the Code of Federal Regulations is repealed in conformity 
with the Consolidated Appropriation Act of 2014, Public Law 113-76, 128 
Stat. 5 (January 17, 2014) and the Agricultural Act of 2014, Public Law 
113-79, 128 Stat. 649 (February 7, 2014). Further, technical amendments 
are made to update the legislative authority provision for Part 218 of 
Title 36 of the Code of Federal Regulations and to include a statutory 
prohibition contained in the referenced legislation in 36 CFR 
218.23(a). This rulemaking is ministerial in nature.

1. Background

    In 1992, Congress enacted the Appeals Reform Act (16 U.S.C. 1612 
note) (ARA) directing the Secretary of Agriculture to establish a 
notice and comment process for certain Forest Service projects and 
activities and modify the agency's voluntarily provided, post-
decisional administrative appeal procedures concerning such projects. 
Implementing regulations were promulgated in 1993 (58 FR 58904) and 
subsequently revised in 2003 (68 FR 33582). The 1993 and 2003 
rulemakings directed that project or activity decisions that had been 
categorically excluded from documentation in an environmental 
assessment or environmental impact statement were exempt from the 
regulatory procedures. That Department's statutory interpretation set 
forth in the regulations was the subject of litigation. See, for 
example, Summers v. Earth Island Institute, 555 U.S. 488 (2009); 
Wilderness Society v. Rey, 622 F.3d 1251 (9th Cir. 2010); Wildlaw v. 
United States Forest Service, 471 F.Supp.2d 1221 (M.D. Ala. 2007).
    On March 19, 2012, the U. S. District Court for the Eastern 
District of California issued a nationwide injunction permanently 
enjoining the Forest Service from implementing 36 CFR 215.4(a) and 
215.12(f) (concerning categorically excluded projects). The United 
States appealed that ruling. In response to the injunction, the Chief 
of the Forest Service instructed all units of the National Forest 
System to refrain from applying Sections 215.4(a) and 215.12(f) and to 
provide notice, comment, and appeal opportunities for all projects and 
activities implementing forest plans that are documented in a decision 
memo, decision notice, or record of decision. In addition, Line 
Officers were instructed to write decision memos for any proposed 
action or activity that seeks to authorize the sale of timber, and to 
offer the opportunity for notice, comment, and appeal on these proposed 
actions.
    Just prior to the District Court's ruling, Congress enacted Section 
428 of the Consolidated Appropriation Act of 2012, Public Law 112-74 
(December 23, 2011) (2012 Act) superseding the 1993 ARAs administrative 
review process. Specifically, Congress directed the Secretary to 
promulgate new regulations implementing a predecisional objection 
process exclusively for projects and activities documented with a 
Record of Decision or Decision Notice in lieu of the ARA process. The 
Secretary published regulations implementing the 2012 Act on March 27, 
2013 (78 FR 18481). In light of ongoing judicial and legislative 
processes, the Secretary reserved taking action concerning the 
supplanted provisions in the ARA regulations or from addressing whether 
categorically excluded projects should be included within the new 
predecisional objection process.
    On January 17, 2014, the President signed into law the Consolidated 
Appropriations Act, 2014, Public Law 113-76, 128 Stat. 5 (2014). 
Section 431 of that Act directs that the 1993 ARA and the 2012 Act 
shall not apply to any categorically excluded project or activity. The 
legislative history confirmed Congress' intention to return public 
involvement processes to the preexisting regulatory norm prior to the 
date of the District Court's injunction. The legislation recognizes and 
approves the Department's longstanding interpretation of the Appeals 
Reform Act in the Part 215 regulations and the Forest Service's other 
discrete mechanisms for providing for public participation in project 
development, including its agency National Environmental Policy Act 
(NEPA) procedures.
    On February 7, 2014, the President signed into law the Agricultural 
Act of 2014, Public Law 113-79, 128 Stat. 649. Section 8006 of that 
Act: (1) Repeals the Appeal Reform Act in its entirety, and (2) repeats 
the admonition of the recently enacted fiscal year (FY) 2014 
Appropriation Act that the predecisional objection process required 
under the 2012 Act shall not apply to any categorically excluded 
project or activity. The legislative history again confirms Congress' 
design to address the management challenge that became apparent 
following the nationwide injunction by repealing the underlying statute 
in order to ensure nonsignificant actions may promptly proceed.
    As a result of these statutes, the Department has repealed Part 215 
and amended Part 218 of Title 36 of the Code of Federal Regulations. As 
to Part 215, those regulations' sole function was to implement the now 
repealed 1992 Appeals Reform Act. With the passage of the 2012 
Appropriation, FY 2014 Appropriation, and the Agricultural Act

[[Page 44292]]

of 2014, it is indisputable that nothing remains to the ARA; its 
implementing regulations, thus, are defunct and obsolete. As to the 
Part 218 predecisional objection process, the Department has decided to 
update the authorities citation and replace the existing ``reserved'' 
proviso in 36 CFR 218.23(a) with the statutory prohibition of the FY 
2014 Appropriation Act and Agricultural Act of 2014. No other changes 
to 36 CFR Part 218 are being undertaken at this time.

2. Transition

    Congress has plenary authority to direct management of the National 
Forest System. The Department and Forest Service must faithfully 
execute all laws. The Department fully appreciates that Congress' 
instructions are mandatory, immediate, and intended to relieve the 
agency from any and all obligations under the ARA in order to expedite 
management activities.
    In light of the new legislation and underlying lapse in operational 
authority, the Forest Service executed an orderly shutdown of Part 215 
on March 5, 2014. Specifically, the Forest Service immediately ceased 
issuance of all notices pursuant to 36 CFR Part 215 and only accepted 
and conducted an appeal review and disposition where the legal notice 
of a decision memorandum was published in the newspaper of record on or 
prior to March 5, 2014. The Forest Service informed affected and 
interested persons of the legislative enactments and the orderly 
shutdown procedure.

3. Public Comment

    Section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(3)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary, or contrary 
to the public interest, the agency may issue a final rule without 
providing advance notice and an opportunity for public comment. The 
Department has determined that there is good cause for immediate 
rulemaking without prior proposal and opportunity for comment. The 
referenced Appropriation and Agriculture laws are mandatory and leave 
no substantive discretion concerning the matters addressed in this 
rulemaking. Further, the subject of a technical amendment was 
previously noticed and public comment accepted during the March 2013 
revision of 36 CFR Part 218. Revision of the authority provision in 
Part 218 is similarly technical and necessarily ministerial. For the 
same reasons, the Department finds good cause that these regulations 
shall be effective immediately pursuant to 5 U.S.C. 553(d)(3).

4. Regulatory Certifications

Environmental Impact

    This final rule repeals Part 215 and amends Part 218 of Title 36 of 
the Code of Federal Regulations governing administrative reviews of 
certain activities on National Forest System lands. Forest Service 
regulations at 36 CFR 220.6(d)(2) exclude from documentation in an 
environmental assessment or environmental impact statement rules, 
regulations, or policies to establish servicewide administrative 
procedures, program processes, or instructions. The Department has 
determined that this final rule falls within this category of actions 
and that no extraordinary circumstances exist which require preparation 
of an environmental assessment or environmental impact statement.

Regulatory Impact

    This final rule has been reviewed under Department procedures and 
Executive Order (E.O.) 12866 on regulatory planning and review, as 
amended by E.O. 13422. It has been determined that this final rule is 
not significant. This final rule will not have an annual effect of $100 
million or more on the economy, nor will it adversely affect 
productivity, competition, jobs, the environment, public health or 
safety, or State or local governments. This final rule will not 
interfere with an action taken or planned by another agency, nor will 
it raise new legal or policy issues. Finally, this final rule will not 
alter the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of beneficiaries of those 
programs. Accordingly, this final rule is not subject to review by the 
Office of Management and Budget under E.O. 12866.
    This final rule has been considered in light of the Regulatory 
Flexibility Act (5 U.S.C. 602 et seq.). This final rule repeals Part 
215 and amends Part 218 of Title 36 of the Code of Federal Regulations 
governing administrative reviews of certain activities on National 
Forest System lands. The Department has determined that this final rule 
will not have a significant economic impact on a substantial number of 
small entities as defined by that Act because this final rule will not 
impose record-keeping requirements on them; it will not affect their 
competitive position in relation to large entities; and it will not 
affect their cash flow, liquidity, or ability to remain in the market.

Federalism and Consultation and Coordination With Indian Tribal 
Governments

    The Department has considered this final rule under the 
requirements of E.O. 13132 on federalism. The Department has determined 
that this final rule conforms with the federalism principles set out in 
this E.O.; will not impose any compliance costs on the States; and will 
not have substantial direct effects on the States, on the relationship 
between the Federal 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 determination 
of federalism implications is necessary at this time.
    This final rule does not have tribal implications per E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments. 
Therefore, advance consultation with Tribes is not required in 
connection with the final rule.

No Takings Implications

    The Department has analyzed the final rule in accordance with the 
principles and criteria in E.O. 12630 and has determined that this 
final rule does not pose the risk of a taking of protected private 
property.

Civil Justice Reform

    The Department has reviewed this final rule under E.O. 12988 on 
civil justice reform. After adoption of this final rule, (1) all State 
and local laws and regulations that conflict with this final rule or 
that impede its full implementation will be preempted; (2) no 
retroactive effect will be given to this final rule; and (3) it will 
not require administrative proceedings before parties may file suit in 
court challenging its provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), the Department has assessed the effects of this 
final rule on State, local, and tribal governments and the private 
sector. This final 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.

Energy Effects

    The Department has reviewed the final rule under E.O. 13211 of May 
18, 2001, Actions Concerning Regulations That Significantly Affect 
Energy Supply. The Department has determined that

[[Page 44293]]

this final rule does not constitute a significant energy action as 
defined in the E.O.

Controlling Paperwork Burdens on the Public

    This final rule does not contain any record-keeping or reporting 
requirements or other information collection requirements as defined in 
5 CFR part 1320 that are not already required by law or not already 
approved for use. Accordingly, the review provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing 
regulations at 5 CFR part 1320 do not apply to this final rule.

List of Subjects

36 CFR Part 215

    Administrative practice and procedure; National forests.

36 CFR Part 218

    Administrative practice and procedure; National forests.

    Therefore, for the reasons set forth in the preamble, the 
Department hereby amends 36 CFR chapter II as follows:

PART 215--NOTICE, COMMENT, AND APPEAL PROCEDURES FOR NATIONAL 
FOREST SYSTEM PROJECTS AND ACTIVITIES

0
1. Under the authority of Section 431, Public Law 113-76; Section 8006, 
Public Law 113-79, part 215 is removed.

PART 218--PROJECT-LEVEL PREDECISIONAL ADMINISTRATIVE REVIEW PROCESS

0
2. The authority citation for part 218 is revised to read as follows:

    Authority: Pub. L. 108-148, 117 Stat 1887 (16 U.S.C. 6515 note); 
Sec. 428, Pub. L. 112-74 125 Stat 1046; Sec. 431, Pub. L. 113-76; 
Sec. 8006, Pub. L. 113-79.


0
3. Amend Sec.  218.23 by adding paragraph (a) to read as follows:


Sec.  218.23  Proposed projects and activities not subject to legal 
notice and opportunity to comment.

* * * * *
    (a) Any project or activity categorically excluded from 
documentation in an environmental assessment or environmental impact 
statement.
* * * * *

    Dated: June 20, 2014.
Robert Bonnie,
Under Secretary, NRE.
[FR Doc. 2014-18019 Filed 7-29-14; 11:15 am]
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