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Proposed Rule

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

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AGENCY:

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

ACTION:

Proposed rule.

SUMMARY:

The Office of Hearings and Appeals (OHA) is proposing to amend its existing regulations governing hearings and appeals to simplify proof of service, to codify who has a right of appeal, and to expedite its review of wildfire management decisions. The Bureau of Land Management (BLM) is adding regulations to make its wildfire management decisions effective immediately and to expedite review of those decisions. The amendments and additions to both OHA and BLM regulations are needed to clarify and expedite administrative review procedures.

DATES:

You should submit your comments by February 14, 2003. The Department of the Interior will not necessarily consider comments postmarked or received by messenger after the above date.

ADDRESSES:

Mail: Director, Office of Hearings and Appeals, Department of the Interior, 801 N. Quincy Street, Suite 300, Arlington, VA 22203, Attn: RIN 1090-AA83. Personal or messenger delivery: 801 N. Quincy Street, Suite 300, Arlington, VA 22203. Direct internet response: http://www.blm.gov/​nhp/​news/​regulatory/​index.html. Internet e-mail: WOComment@blm.gov (Include “Attn: AA83”).

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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, VA 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, 24 hours a day, 7 days a week.

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SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures

II. Background

III. Review Under Procedural Statutes and Executive Orders

I. Public Comment Procedures

A. How Do I Comment on the Proposed Rule?

If you wish to comment, you may submit your comments by any one of several methods.

  • You may mail comments to Director, Office of Hearings and Appeals, Department of the Interior, 801 N. Quincy Street, Suite 300, Arlington, VA 22203, Attn: RIN 1090-AA83.
  • You may deliver comments to 801 N. Quincy Street, Suite 300, Arlington, VA 22203.
  • You may comment via the Internet by accessing our automated commenting system located at www.blm.gov/​nhp/​news/​regulatory/​index.html and following the instructions there.
  • You may also comment via e-mail to WOComment@blm.gov. We intend this address for use by those who want to keep their electronic comments confidential and for those who are unable, for whatever reason, to use the Internet site. Please submit e-mail comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include “Attn: AA83” and your name and return address in your e-mail message.

If you do not receive a confirmation that we have received your electronic message, contact us directly at (202) 452-5030.

Please make your comments on the proposed rule as specific as possible, confine them to issues pertinent to the proposed rule, and explain the reason for any changes you recommend. Where possible, your comments should reference the specific section or paragraph of the proposal that you are addressing.

The Department of the Interior may not necessarily consider or include in the Administrative Record for the final rule comments that we receive after the Start Printed Page 77012close of the comment period (see DATES) or comments delivered to an address other than those listed above (see ADDRESSES).

B. May I Review Comments Submitted by Others?

Comments, including names and street addresses of respondents, will be available for public review at the address listed under “ ADDRESSES: Personal or messenger delivery” during regular business hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except holidays.

Individual respondents may request confidentiality, either in a letter or e-mail, which we will honor to the extent allowable by law. If you wish to withhold your name or address, except for the city or town, you must state this prominently at the beginning of your comment letter or e-mail. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

II. Background

The changes included in this proposal are important because BLM must provide a way to implement fire management decisions on both rangelands and forest lands with a minimum of delay. On August 22, 2002, President Bush released the Administration's Healthy Forests Initiative. The Initiative responds to the current threat of catastrophic wildfires posed by unnaturally dense and unhealthy forests and rangelands. One component of the Initiative directs Agriculture Secretary Ann Veneman, Interior Secretary Gale Norton, and Council on Environmental Quality Chairman James Connaughton to improve regulatory processes to ensure more timely decisions, greater efficiency, and better results in reducing the risk of catastrophic wildfires by restoring forest and rangeland health. The regulations proposed today are part of the Initiative.

The experience of recent fire seasons strongly suggests 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. This recent experience shows that wildfire management decisions are by their nature urgent, both to speed recovery from past fires and thereby prevent erosion, water pollution, and other harmful legacies that they have caused, and to prevent or reduce catastrophic wildfires in upcoming dry seasons. Therefore, this rule proposes to make these decisions effective immediately.

A. Standing to Appeal

OHA proposes to codify its decisions on who has a right to appeal a decision. The regulation at 43 CFR 4.410 provides that “[a]ny party to a case who is adversely affected by a decision of the Bureau of Land Management or of an administrative law judge shall have a right of appeal to the Board.” Both “party to a case” and “adversely affected” have been discussed in several Board decisions, e.g., San Juan Coal Co., 155 IBLA 389, 393 (2001); Legal and Safety Employer Research, Inc., 154 IBLA 167, 171-72 (2001); and Powder River Basin Resource Council, 124 IBLA 83, 89 (1992). Those decisions define a “party to a case” as one who has taken the action that is the subject of the BLM decision on appeal, is the object of that decision, or has participated in the process leading to the decision, e.g., by filing comments on an environmental analysis or filing a protest of the proposed decision. They define “adversely affected” as requiring a legally cognizable interest that would be harmed by the BLM decision. OHA proposes to add provisions to section 4.410 to reflect these decisions. A “legally cognizable interest” is a commonly used term in IBLA decisions. Whether one has such an interest depends on the facts of the particular case. In general, a property or economic interest in the land involved in BLM's decision would suffice, as would use of the land for earning a livelihood or for recreation. On the other hand, one's general concern about the subject matter of the decision or the interest of a person who uses the land in trespass, without claim or color of right, would not afford a right of appeal. The rule also proposes to provide, consistent with IBLA precedent, that a party may only raise issues on appeal that it raised with the agency whose decision it is appealing. See, for example, Henry A. Alker, 62 IBLA 211, 212 (1982); Southern Utah Wilderness Alliance, 128 IBLA 52, 59 (1993).

B. Effectiveness of BLM Wildfire Management Decisions

BLM is proposing to add section 4190.1 and amend section 5003.1. The former addition provides that fire management decisions affecting rangelands will become effective immediately. Current regulations are silent. The latter change provides that fire management decisions affecting forest management will become effective immediately. In both sections, we have included language stating that IBLA will promptly issue a decision on the merits of any appeal, since the BLM decision will not be subject to the automatic stay of 43 CFR 4.21(a). (Alternatively, because BLM wildfire management decisions would be in full force and effect, they would be final agency actions subject to immediate judicial review. 5 U.S.C. 704 (2000); Darby v. Cisneros, 113 S.Ct. 2539, 2547-48 (1993).) These changes would apply only to fire management decisions, not to other decisions relating to grazing or timber sales.

The proposed rule identifies the following as items that wildfire decisions are likely to include:

(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.

We specifically request comment as to whether the list is appropriate, requires modification, or should be expanded.

These proposed regulations refer to a requirement that IBLA will issue a decision on the merits of an appeal of a wildfire management decision within the time limits specified in 43 CFR 4.416. That new regulation would require a decision within 60 days after all pleadings have been filed by the parties.

C. Proof of Service

In the Department's experience, the existing regulations requiring proof of service of documents filed with ALJs and IBLA are unnecessary. For appeals to IBLA, 43 CFR 4.413(a) requires that service of a notice of appeal and of written arguments must be made on adverse parties and the appropriate office of the Office of the Solicitor “in the manner prescribed in § 4.401(c),” that is, by delivering the copy personally or by sending the document by registered or certified mail, return receipt requested. 43 CFR 4.401(c)(1). Similar provisions apply to proceedings before ALJs, e.g., 43 CFR 4.422(c)(1).

The regulations at 43 CFR 4.401(c)(2) and 4.422(c)(2) require that service be proved by a written statement of the person who made service (for personal delivery) or by a Postal Service return receipt (for service by mail). These regulations were adopted in 1971. In the meantime, many courts have adopted rules that provide that a “certificate of service” or “affidavit of service” may be substituted for proof of service of documents that must be served. For Start Printed Page 77013example, Rule 5.3 of the U.S. District Court for the District of Columbia provides: “Proof of service * * * shall show the date and manner of service, and may be by certificate of an attorney of record or other proof satisfactory to the Court.” There is no need to be more formal or burdensome in administrative proceedings. We therefore propose to amend sections 4.401(c)(2), 4.422(c)(2), and 4.450-5 to provide that a certificate of service is adequate proof of service.

III. 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, make BLM wildfire management decisions effective immediately, and expedite review of those decisions.

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 proposed 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 proposed regulations merely simplify proof of service, codify who has a right of appeal, make BLM wildfire management decisions effective immediately, and expedite review of those decisions.

4. This rule does not raise novel legal or policy issues. These proposed regulations merely simplify proof of service, codify who has a right of appeal, make BLM 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, making BLM 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 would not have an annual effect on the economy of $100 million or more. Simplifying proof of service, codifying who has a right of appeal, making BLM 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, making BLM 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 would 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, making BLM 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 would 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, making BLM 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 would 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 would 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, make BLM wildfire management decisions effective immediately, and expedite review of those decisions will have no effect on property rights.

F. Federalism (Executive Order 13132). In accordance with Executive Order 13132, these proposed 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, making BLM 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 would not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. This rule, because it merely simplifies proof of service, codifies who has a right of appeal, makes BLM wildfire management decisions effective immediately, and expedites review of those decisions will not burden either administrative or judicial tribunals.

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 proposed regulations simplify proof of service, codify who has a right of appeal, make BLM wildfire management decisions effective immediately, and expedite review of those decisions. They do not require the public to provide information. Start Printed Page 77014

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 proposed 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 proposed rule. The proposed 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 would not change the requirement that projects must comply with NEPA. Therefore, an environmental assessment or environmental impact statement under NEPA is not required.

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 proposed rule on Federally recognized Indian tribes and has determined that there are no potential effects. The proposed rule would not affect Indian trust resources; it simplifies proof of service, codifies who has a right of appeal, makes BLM wildfire management decisions effective immediately, and expedites review of those decisions.

K. Effects on the Nation's Energy Supply (Executive Order 13211). In accordance with Executive Order 13211, this proposed rule would 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, making BLM wildfire management decisions effective immediately, and expediting review of those decisions will not affect energy supply or consumption.

L. Clarity of this Regulation. Executive Order 12866 requires each agency to write regulations that are easy to understand, including answers to the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§ ” and a renumbered heading; for example, § 4.21 General provisions.) (5) Is the description of the rule in the Supplementary Information section of the preamble helpful in understanding the proposed rule? (6) What else could we do to make the rule easier to understand? Please send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also e-mail the comments to this address: Exsec@ios.doi.gov.

M. Author. The principal author of this proposed rule is Will A. Irwin, Administrative Judge, Interior Board of Land Appeals, assisted by Michael Hickey and Amy Sosin, Office of the Solicitor, and Michael H. Schwartz, Bureau of Land Management, Department of the Interior.

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List of Subjects

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

Start Signature

Dated: December 10, 2002.

Robert S. More,

Director, Office of Hearings and Appeals.

Dated: December 10, 2002.

Rebecca W. Watson,

Assistant Secretary of the Interior.

End Signature 43 CFR Subtitle A—Office of the Secretary of the Interior Start Part

PART 4—[AMENDED]

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

1. The authority for 43 CFR Part 4, Subpart E, continues to read:

Start Authority

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

End Authority

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

Documents.
* * * * *

(c) * * *

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

* * * * *

3. In § 4.410, redesignate paragraph (b) as (e) and add paragraphs (b), (c), and (d) to read as follows:

Who may appeal.
* * * * *

(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) To the extent applicable, a party to a case, as set forth in paragraph (a) of this section, may raise on appeal only those issues raised in its prior 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 will cause, injury to that interest.

* * * * *

4. Section 4.416 is added to read as follows:

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Appeals of wildfire management decisions.

The Interior Board of Land Appeals must decide appeals from BLM decisions under § 4190.1 and § 5003.1(b) of this title within 60 days after all pleadings have been filed.

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

Documents.
* * * * *

(c) * * *

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

* * * * *

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

Service.

The complaint must be served upon every contestee in the manner provided in § 4.422(c)(1). Proof of service must be made in the manner provided in § 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 of unsound mind, 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 person of unsound mind. 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 person of unsound mind in charge.

* * * * *
End Part

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

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PART 4100—GRAZING ADMINISTRATION—EXCLUSIVE OF ALASKA

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

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

End Authority

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

Subpart 4190—Effect of wildfire management decisions

Effect of wildfire management decisions.

(a) Notwithstanding the provisions of 43 CFR 4.21, BLM rangeland wildfire management decisions are in immediate full force and effect. 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; 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.

End Part Start Part

PART 5000—ADMINISTRATION OF FOREST MANAGEMENT DECISIONS

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

Start Authority

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

End Authority

Subpart 5003-Administrative Remedies

10. Revise § 5003.1 to read as follows:

Effect of decisions.

(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 §§ 5003.2 and 5003.3.

(b) Notwithstanding the provisions of 43 CFR 4.21, BLM wildfire management decisions made under this part and parts 5400 through 5510 of this chapter are in immediate full force and effect. 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; 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.

End Part End Supplemental Information

[FR Doc. 02-31575 Filed 12-11-02; 3:00 pm]

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