View Rule

View EO 12866 Meetings Printer-Friendly Version     Download RIN Data in XML

USDA/FS RIN: 0596-AD18 Publication ID: Fall 2014 
Title: ●Notice, Comment, and Appeal Procedures for National Forest System Projects and Activities and the Project-Level Predecisional Administrative Review Process 
Abstract:

In 1993, Congress enacted the Appeals Reform Act (ARA) directing the Secretary of Agriculture to establish a notice and comment process for certain Forest Service projects and activities and modify to the agencies voluntarily provided, post-decisional administrative appeal procedure concerning such projects. The Secretary complied and implementing regulations were promulgated in 1993 (58 FR 58904) and subsequently revised in 2003 (68 FR 33582). The 1993 and 2003 rulemakings both directed that project or activity decisions that had been categorically excluded from documentation in an environmental assessment or environmental impact statement were exempt from the regulatory procedures. That interpretation was the subject of some controversy and considerable litigation. On March 19, 2012, the United States District Court for the Eastern District of California issued a nationwide injunction permanently enjoining the Forest Service from implementing 36 CFR sections 215.4(a) and 215.12(f) (concerning categorically excluded projects). The United States appealed that ruling. Just prior to the District Court's ruling, Congress enacted Section 428 of the Consolidated Appropriation Act of 2012, Public Law No. 112-74 (December 23, 2011) (2012 Act) superseding the 1993 ARA's administrative review process. Specifically, Congress directed the Secretary to promulgate new regulations implementing a predecisional objection process exclusively for projects and activities documented with a Record of Decision or Decision Notice in lieu of the ARA process. The Secretary published regulations implementing the 2012 legislation on March 27, 2013 (78 FR 18481). As a matter of comity and out of respect for the ongoing judicial and legislative processes, the Secretary reserved taking action concerning the redundant provisions in the ARA regulations or from addressing whether categorically excluded projects should be included within the new predecisional objection process. On January 17, 2014, the President signed into law the Consolidated Appropriations Act, 2014, Public Law No. 113-76, 128 Stat. 5 (2014). Section 431 of that Act directs that the 1993 ARA and the 2012 Act shall not apply to any categorically excluded project or activity. The legislative history confirms Congress' intention to return operations to the preexisting regulatory norm prior to the date of the District Court's injunction. The legislation recognizes and approves USDA's longstanding regulatory interpretation of the Part 215 regulations and its other discrete mechanisms for providing for public participation, including its agency NEPA procedures. On February 7, 2014, the President signed into law the Agriculture Act of 2014, Public Law No. 113-79, 128 Stat. 649. Section 8006 of that Act: (1) repeals the ARA in its entirety, and (2) repeats the admonition of the recently enacted FY 2014 Appropriation Act that the predecisional objection process required under the 2012 Act shall not apply to any categorically excluded project or activity. The legislative history again confirms that the legislation was designed to resolve and rectify the nationwide injunction that would otherwise compel the Forest Service to engage such procedures for noncontroversial, common sense actions that provide jobs, public safety, community fire protection, and clean water.

 
Agency: Department of Agriculture(USDA)  Priority: Substantive, Nonsignificant 
RIN Status: First time published in the Unified Agenda Agenda Stage of Rulemaking: Completed Actions 
Major: No  Unfunded Mandates: No 
CFR Citation: 36 CFR 215    36 CFR 218   
Legal Authority: PL 112-74    PL 113-76    PL 113-79    5 USC 553(b)(3)(B)   
Legal Deadline:  None
Timetable:
Action Date FR Cite
Final Rule  07/31/2014  79 FR 44291   
Final Action  07/31/2014  79 FR 44291   
Regulatory Flexibility Analysis Required: No  Government Levels Affected: None 
Small Entities Affected: No  Federalism: No 
Included in the Regulatory Plan: No 
RIN Data Printed in the FR: No 
Agency Contact:
LaRenda King
Department of Agriculture
Forest Service
1400 Independence Avenue SW.,
Washington, DC 20250
Phone:202 205-6560
Email: larendacking@fs.fed.us