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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
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: June 5, 2003 (Volume 68, Number 108)]
[Rules and Regulations]
[Page 33793-33804]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05jn03-18]
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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.
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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:
? Placing BLM wildfire management decisions in full force and
effect pending appeals;
? How BLM defines wildfire management decisions;
? Where and to what lands the new regulations should apply;
and
? 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:
? Precommercial thinning and brush control using small
mechanical devices;
? 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;
? Reforestation; and
? 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--
? Changes in Forest Service regulations implementing the
Appeals Reform Act,
? 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,
? The proposed revision of the National Forest Management Act
regulations,
? The proposed Categorical Exclusions for salvage logging
projects up to 250 acres, and
? 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.
? 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
? 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.
? 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.
* * * * *
? 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.
* * * * *
? 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.
? 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.
* * * * *
? 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
? 7. The authority citation for part 4100 continues to read:
Authority: 43 U.S.C. 315, 315a-315r, 1181d, 1740.
? 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
? 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
? 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