Land Uses; Appeal of Decisions Relating To Occupancy and Use of National Forest System Lands; Mediation of Grazing Disputes

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 251

RIN 0596-AB59

Land Uses; Appeal of Decisions Relating To Occupancy and Use of

National Forest System Lands; Mediation of Grazing Disputes

AGENCY: Forest Service, USDA.

ACTION: Proposed rule.

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SUMMARY: The Forest Service requests comment on a proposed rule that

would modify the agency's administrative appeal regulations relating to

occupancy and use of National Forest System lands to offer mediation of

certain grazing permit disputes in those States that have USDA

certified mediation programs. This action is authorized by the Federal

Crop Insurance Reform and Department of Agriculture Reorganization Act

of 1994. The intended effect is to incorporate mediation for certain

grazing disputes into established agency dispute resolution processes.

Public comment is invited and will be considered in adoption of a final

rule.

DATES: Comments must be received in writing by April 28, 1998.

ADDRESSES: Send written comments to Director, Range Management Staff,

Mail Stop 1103, Forest Service, USDA, P.O. Box 96090, Washington, DC

20090-6090.

The public may inspect comments received on this proposed rule in

the Office of the Director, 3rd Floor, South Central Wing, Auditor's

Building, 14th and Independence Avenue, NW., Washington, DC, between

the hours of 8:30 a.m. and 4:00 p.m. Those wishing to inspect comments

are encouraged to call ahead (202/205-1462) to facilitate entry into

the building.

FOR FURTHER INFORMATION CONTACT:

Berwyn L. Brown, Range Management Staff, Forest Service, (202) 205-

1457.

SUPPLEMENTARY INFORMATION:

Background

Pursuant to section 502 of the Agricultural Credit Act of 1987

(Pub. L. 100-233) (7 U.S.C. 5101, et seq.), the Department of

Agriculture offers a mediation program that provides borrowers and

creditors an opportunity to resolve disputes prior to bankruptcy or

litigation. This Act authorizes USDA to help States develop certified

mediation programs and to participate in them.

Section 282 of Title II of the Federal Crop Insurance Reform and

Department of Agriculture Reorganization Act of 1994 (1994 amendments)

amended the 1987 Act to expand the number and type of issues subject to

mediation under the State Mediation Program. One of the issues subject

to mediation in the 1994 amendments was grazing on National Forest

System lands. The Secretary must promulgate regulations to interpret

the mediation provisions of the 1994 amendments.

Under the Secretary's grazing rules at 36 CFR 222.4, the Chief of

the Forest Service may cancel a permit when one or more of the

following conditions exist:

When a permittee refuses to accept modification of the terms and

conditions of an existing permit (Sec. 222.4(a)(2)(i));

When a permittee refuses or fails to comply with eligibility or

qualification requirements (Sec. 222.4(a)(2)(ii));

When a permittee fails to restock the allotted range after full

extent of approved personal convenience non-use has been exhausted

(Sec. 222.4(a)(2)(iv)); and

When a permittee fails to pay grazing fees within established time

limits (Sec. 222.4(a)(2)(v)).

The provisions of this section also authorize the Chief to cancel

or suspend a permit when one or more of the following conditions exist:

When a permittee fails to pay grazing fees within established time

limits (Sec. 222.4(a)(3));

When a permittee does not comply with provisions and requirements

in the grazing permit or the regulations of the Secretary of

Agriculture on which the permit is based (Sec. 222.4(a)(4));

When a permittee knowingly and willfully makes a false statement or

representation in the grazing application or amendments thereto

(Sec. 222.4(a)(5)); and

When a permittee is convicted for failing to comply with Federal

laws or regulations or State laws relating to protection of air, water,

soil and vegetation, fish and wildlife, and other environmental values

when exercising the grazing use authorized by the permit

(Sec. 222.4(a)(6)).

These cancellation or suspension actions are generally referred to

as ``permit enforcement actions'' and may be appealed under part 251,

subpart C, of Title 36 of the Code of Federal Regulations, which

pertain generally to enforcement actions by an authorized officer

regarding written instruments authorizing occupancy and use of National

Forest System lands. Since only holders of such authorizations may

appeal under 36 CFR part 251, subpart C, it is this rule that the

Forest Service proposes to amend to incorporate a mechanism for the

mediation of certain grazing disputes, as required by the 1994

amendments.

Section 5101(c)(3)(D) of the Agriculture Credit Act, as amended,

specifies that, in order to be certified, States shall provide for

confidential mediation sessions. This statutory requirement

necessitates a rule of rather narrow parameters. The types of decisions

subject to mediation under this proposed rule are not subject to public

disclosure and, therefore, can be mediated in confidence, since they

relate to grazing permits and involve only the Deciding Officer or

designee, the holder of a term grazing permit who seeks relief from a

written decision to cancel or suspend a permit, and, in some

circumstances, the holder's creditors.

Holders of other written authorizations to occupy and use National

Forest System lands who may appeal written decisions of Forest Service

line officers (Sec. 251.86) will not be affected by the modifications

in this proposed rule.

Proposed section 251.103 Mediation of Term Grazing Permit Disputes

This proposed rule would add a new section Sec. 251.103 that

focuses solely on mediation of certain term grazing permit disputes and

integration of mediation into the appeal process.

Proposed paragraph (a) specifies that in those States with USDA

certified mediation programs, any holder of a term grazing permit may

request mediation as part of an administrative appeal when a Deciding

Officer issues a decision to suspend or cancel a term grazing permit,

in whole or in part, in accordance with 36 CFR 222.4(a)(2)(i), (ii),

(iv), (v) and (a)(3)-(a)(6). The States with mediation programs

currently certified by USDA for fiscal year 1998 include Alabama,

Arkansas, Arizona, Florida, Illinois, Indiana, Iowa, Kansas, Michigan,

Minnesota, Missouri, Nebraska, Nevada, New Mexico, North Dakota,

Oklahoma, South Dakota, Utah, Washington, Wisconsin, and Wyoming.

Proposed paragraph (b) of new Sec. 251.103 would limit the parties

who may participate in mediation of term grazing permit disputes to

those persons directly affected by the action. Since the 1994

amendments specify that mediation sessions must be confidential, this

paragraph would permit only the State certified mediator, the Deciding

Officer or designee, the

[[Page 9988]]

holder of the term grazing permit who seeks relief from a written

decision to cancel or suspend a permit, creditors of the permittee, and

legal counsel to participate in a mediation. Broader participation

would pose a risk to the need to maintain confidentiality.

Proposed paragraph (b) makes clear that a permittee may be

accompanied or represented by legal counsel. The Forest Service will be

accompanied by legal counsel only if the permittee does also. This

provision is necessary to ensure that one party does not have an unfair

advantage over another party in the mediation process.

Proposed paragraph (c) specifies that, when an appellant

simultaneously requests mediation at the time an appeal is filed

(Sec. 251.84), the Reviewing Officer shall immediately notify, by

certified mail, all parties to the appeal that, in order to allow for

mediation , the appeal is suspended for 30 calendar days. If agreement

has not been reached at the end of 30 calendar days but it appears to

the Deciding Officer that a mediated agreement may soon be reached, the

Reviewing Officer may extend the period for mediation up to 15 calendar

days from the end of the 30-day appeal suspension period. If an

agreement cannot be reached under the specified time periods, the

Reviewing Officer shall immediately notify, by certified mail, all

parties to the appeal that mediation was unsuccessful and that the

appeal procedures and timeframes are reinstated as of the date of such

notice. This provision is necessary to ensure that meaningful mediation

can take place and, at the same time, that the Agency's administrative

review process can be completed in a timely manner in the event

mediation is unsuccessful in resolving a dispute. Without fixed time

periods for mediation, and adverse decision to cancel or suspend a

permit for cause could be postponed indefinitely. In many cases, this

delay could result in damage to National Forest System resources.

Proposed paragraph (d) specifies that, as required by the Act,

mediation sessions shall be confidential. However, consistent which the

public disclosure provisions of the National Environmental Policy Act

and the National Forest Management Act, this proposed rule makes clear

that the final terms of any mediated agreement are subject to public

disclosure after mediation ends.

Proposed paragraph (e) specifies that notes and factual material

from mediation sessions are not to be entered as part of the appeal

record. This is consistent with the confidentiality requirement of 7

U.S.C. 5101(c)(3)(D) and with the administrative appeal procedures of

36 CFR part 251, subpart C.

Proposed paragraph (f) specifies that the United States Government

shall cover only the expenses incurred by its own employees in

mediation sessions. This provision recognizes USDA's ongoing

contribution of annual funding through grants to the States to develop

and administer state certified mediation programs, as authorized by the

Agriculture Credit Improvement Act of 1992.

Proposed paragraph (g) makes explicit that, except for the purpose

of authorizing a time extension or of communicating the results of

mediation, the Deciding Officer, or designee, shall not discuss

mediation and/or appeal matters with the Reviewing Officer.

Conforming Amendments

In order to integrate mediation with the appeal procedures of part

251, subpart C, a number of conforming amendments to other sections of

subpart C are necessary. A description of these proposed revisions

follows.

Proposed Revision of Sec. 251.84 Obtaining Notice

Under this section, the Deciding Officer must give written notice

of an adverse decision subject to appeal under subpart C to applicants

and holders as defined in Sec. 251.86 and to any holder of like

instruments who has made a written requests to be notified of a

specific decision. The notice must include a statement of the Deciding

Officer's willingness to meet with applicants or holders to discuss

issues (Sec. 251.93), specify the name and address of the officer to

whom an appeal of the decision may be filed, and the deadline for

filing an appeal.

The proposed rule would redesignate the current text of 0251.84 as

paragraph (a) and add a new paragraph (b) to require that, when a

Deciding Officer suspends or cancels a term grazing permit pursuant to

36 CFR 222.4(a)(2)(ii), (iv), (v) and (a)(3)-(a)(6) in a State with a

USDA certified mediation program, the Deciding Officer must give

written notice of the opportunity for the affected term grazing permit

holder to request mediation.

Under proposed paragraph (b), the Deciding Officer must notify a

permit holder that a request for mediation must be incorporation in the

notice of appeal.

Proposed Revision of Sec. 251.90 Content of Notice of Appeal

This section specifies the information that an appellant must

include in a notice of appeal. The proposed rule would amend

Sec. 251.90(c) to allow the holder of a term grazing permit being

cancelled or suspended to request mediation pursuant to Sec. 251.103

with filing of the appeal in those States with USDA certified mediation

programs.

Proposed Revision of Sec. 251.91 Stays

Paragraph (a) of this section of the appeal rule specifies that a

decision may be implemented during the appeal process, unless the

Reviewing Officer grants a stay. The proposed rule would modify

paragraph (a) of Sec. 252.91 to provide for an automatic stay when a

term grazing permit holder appeals a decision and simultaneously

requests mediation. As provided in proposed Sec. 251.103, in the event

mediation fails, the stay would be lifted and appeal procedures and

timeframes would be reinstated for the remainder of the appeal period.

This requirement is necessary in order to allow for meaningful

mediation prior to implementation of the decision.

Proposed Revision of Sec. 251.92 Dismissal

This section of the appeal rule lists the actions that warrant

closing an appeal record without a decision on the merits of an appeal.

Under this proposed rule, paragraph (a) would be revised to provide

that the Reviewing Officer would close an appeal if a mediated

agreement is reached.

Paragraph (c) of this section currently provides for discretionary

review of a Reviewing Officer's dismissal decision, except when a

dismissal decision results from withdrawal of an appeal by an appellant

or withdrawal of the initial decision by the Deciding Officer. This

proposed rule would modify this paragraph to also exempt a mediated

agreement from discretionary review. Without such an exemption, any

mediation agreement could be reopened at the discretion of the next

higher level officer and, thus, undermine resolution of issues through

mediation.

Proposed Revision of Sec. 251.93 Resolution of Issues

Paragraph (b) of this section of the appeal rule specifies that

when decisions are appealed, the Deciding Officer may discuss the

appeal with the appellant(s) and intervenor(s) together or separately

to narrow issues, agree on facts, and explore opportunities to resolve

the issues by means other than review and decision on the appeal. At

the request of the Deciding Officer, the Reviewing Officer may extend

the time periods for review, except at the discretionary level, and

specify a

[[Page 9989]]

reasonable duration to allow for conduct of meaningful negotiations.

This proposed rule would revise paragraph (b) by making clear that the

Reviewing Officer may extend additional time to resolve grazing

disputes only for 15-additional days, as provided in Sec. 251.103.

Proposed Revision of Sec. 251.94 Responsive Statement

Paragraph (b) of this section specifies that, unless the Reviewing

Officer has granted an extension or dismissed the appeal, the Deciding

Officer shall prepare a responsive statement and send it to the

Reviewing Officer and all parties to the appeal within 30 days of

receipt of the notice of appeal. If a mediated agreement is reached,

the Reviewing Officer would close the appeal (Sec. 251.92), and no

responsive statement would be necessary. Therefore, a conforming

amendment is necessary to allow a Deciding Officer to delay the

preparation of a responsive statement until mediation is concluded.

Summary

This proposed rule would implement the requirements of 7 U.S.C.

5101, as amended, by integrating a process for mediating certain types

of National Forest System grazing permit disputes into the appropriate

administrative appeal procedures. The proposed rule is limited in scope

and applicability to holders of Forest Service term grazing permits

that have been cancelled or suspended in those States with USDA

certified mediation program.

Regulatory Impact

This proposed rule has been reviewed under USDA procedures and

Executive Order 12866 on Regulatory Planning and Review. It has been

determined that this is not a significant rule. This rule will not have

an annual effect of $100 million or more on the economy nor adversely

affect productivity, competition, jobs, the environment, public health

or safety, nor State or local governments. This rule will not interfere

with an action taken or planned by another agency nor raise new legal

or policy issues. Finally, this action will not alter the budgetary

impact of entitlements, grants, user fees, or loan programs or rights

and obligations of recipients of such programs. Accordingly, this

proposed rule is not subject to OMB review under Executive Order 12866.

Moreover, this proposed rule has been considered in light of the

limited number of States and grazing permits involved and the

Regulatory Flexibility Act (5 U.S.C. 601 et. seq.), and it is hereby

certified that this action will not have a significant economic impact

on a substantial number of small entities as defined by that Act. The

proposed rule does not compel small entities to do anything. Election

of mediation of grazing disputes is strictly at the option of an

individual permittee. The requirements of the proposed rule are the

minimum necessary to protect the public interest, are not

administratively burdensome or costly to meet, and are well within the

capability of individuals and small entities to perform.

Controlling Paperwork Burdens on the Public

This proposed rule does not contain any new recordkeeping or

reporting requirements or other new information collection requirements

as defined in 5 CFR part 1320 and, therefore, imposes no paperwork

burden on the public. Accordingly, the review provisions of the

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq) and

implementing regulations at 5 CFR part 1320 do not apply.

Environmental Impact

This proposed rule would establish uniform direction to allow for

mediation of certain types of grazing disputes. Section 31.1b of Forest

Service Handbook 1909.15 (57 FR 41380; September 18, 1992) excludes

from documentation in an environmental assessment or impact statement

``rules, regulations, or policies to establish Service-wide

administrative procedures, program processes, or instructions.'' The

agency's preliminary assessment is that this proposed rule falls within

this category of actions and that no extraordinary circumstances exist

which would require preparation of an environmental assessment or

environmental impact statement. A final determination will be made upon

adoption of the final rule.

Civil Justice Reform Act

This proposed rule has been reviewed under Executive Order 12988,

Civil Justice Reform. If this proposed rule were adopted, (1) all state

and local laws and regulations that are in conflict with this proposed

rule or which would impede its full implementation would be preempted;

(2) no retroactive effect would be given to this proposed rule; and (3)

it would not require administrative proceedings before parties may file

suit in court challenging its provisions.

No Takings Implications

This proposed rule has been analyzed in accordance with the

principles and criteria contained in Executive Order 12630, and it has

been determined that the rule does not pose the risk of a taking of

Constitutionally-protected private property.

Unfunded Mandates Reform

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2

U.S.C. 1531-1538), the Department has assessed the effects of this

proposed rule on State, local, and tribal governments and the private

sector. This proposed rule does not compel the expenditure of $100

million or more by any State, local, or tribal governments or anyone in

the private sector. Therefore, a statement under section 202 of the Act

is not required.

List of Subjects in 36 CFR Part 251

Electric power, Mineral resources, National forests, Public lands-

rights-of-way, Water resources.

Therefore, for the reasons set forth in the preamble, Subpart C of

Part 251 of Title 36 of the Code of Federal Regulations is proposed to

be amended as follows:

PART 251--LAND USES

Subpart C--Appeal of Decisions Relating to Occupancy and Use of

National Forest System Lands

1. The authority citation for subpart C is revised to read as

follows:

Authority: 7 U.S.C. 5101-5106; 16 U.S.C. 472, 551.

Sec. 251.84 [Amended]

2. Amend Sec. 251.84 by designating the existing text as paragraph

(a) and by adding a paragraph (b) to read as follows:

Sec. 251.84 Obtaining notice.

* * * * *

(b) In States with USDA certified mediation programs, a Deciding

Officer shall also give written notice of the opportunity for the

affected term grazing permit holder to request mediation of decisions

to suspend or cancel term grazing permits, in whole or in part,

pursuant to 36 CFR 222.4(a)(2)(i), (ii), (iv), (v) and (a)(3) through

(a)(6). Such notice must inform the permit holder that, if mediation is

desired, the permit holder must request mediation as part of the filing

of an appeal.

Sec. 251.90 [Amended]

3. Amend Sec. 251.90 by revising paragraph (c) to read as follows:

Sec. 251.90 Content of notice of appeal.

* * * * *

[[Page 9990]]

(c) An appellant may also include one or more of the following in a

notice of appeal: a request for oral presentation (Sec. 251.97); a

request for stay of implementation of the decision pending decision on

the appeal (Sec. 251.91); or, in those States with a USDA certified

mediation program, a request for mediation of grazing permit

cancellations or suspensions pursuant to Sec. 251.103.

4. Amend Sec. 251.91 by revising paragraph (a) to read as follows:

Sec. 251.91 Stays.

(a) A decision may be implemented during the appeal process, unless

the Reviewing Officer grants a stay or unless a term grazing permit

holder appeals a decision and simultaneously requests mediation

pursuant to Sec. 251.103. In the case of mediation requests, a stay is

granted automatically upon receipt of the notice of appeal for the

duration of the mediation period as provided in Sec. 251.103 of this

subpart.

* * * * *

5. Amend Sec. 251.92 by adding a new paragraph (a)(8) and by

revising paragraph (c) to read as follows:

Sec. 251.92 Dismissal.

(a) * * *

(8) A mediated agreement is reached (Sec. 251.103).

* * * * *

(c) A Reviewing Officer's dismissal decision is subject to

discretionary review at the next administrative level as provided for

in Sec. 251.87(d) of this subpart, except when a dismissal decision

results from withdrawal of an appeal by an appellant, withdrawal of the

initial decision by the Deciding Officer, or a mediated resolution of

the dispute.

6. Amend Sec. 251.93 by revising paragraph (b) to read as follows:

Sec. 251.93 Resolution of issues.

* * * * *

(b) When decisions are appealed, the Deciding Officer may discuss

the appeal with the appellant(s) and intervenor(s) together or

separately to narrow issues, agree on facts, and explore opportunities

to resolve the issues by means other than review and decision on the

appeal, including mediation pursuant to Sec. 251.103. At the request of

the Deciding Officer, the Reviewing Officer may extend the time period

to allow for meaningful negotiations, except for appeals under review

at the discretionary level. In the event of mediation of a grazing

dispute under Sec. 251.103, the Reviewing Officer may extend the time

for mediation only as provided in Sec. 251.103.

* * * * *

7. Amend 251.94 by revising paragraph (b) to read as follows:

Sec. 251.94 Responsive statement.

* * * * *

(b) Timeframe. Unless the Reviewing Officer has granted an

extension or dismissed the appeal, or unless mediation has been

requested under this subpart, the Deciding Officer shall prepare a

responsive statement and send it to the Reviewing Officer and all

parties to the appeal within 30 days of receipt of the notice of

appeal. Where mediation occurs but fails to resolve the issues, the

Deciding Officer shall prepare a responsive statement and send it to

the Reviewing Officer and all parties to the appeal within 30 days of

the reinstatement of the appeal timeframes (Sec. 251.103(c)).

* * * * *

8. Add a new Sec. 251.103 to subpart c to read as follows:

Sec. 251.103 Mediation of term grazing permit disputes.

(a) Decisions subject to mediation. In those States with USDA

certified mediation programs, any holder of a term grazing permit may

request mediation, if a Deciding Officer issues a decision to suspend

or cancel a term grazing permit, in whole or in part, as authorized by

36 CFR 222.4(a)(2) (i), (ii), (iv), (v), and (a)(3) through (a)(6).

(b) Parties. Notwithstanding the provisions addressing parties to

an appeal at 36 CFR 251.86, only the following may participate in

mediation of term grazing permit disputes under this section:

(1) A mediator authorized to mediate under a USDA state certified

mediation program;

(2) The Deciding Officer who made the decision being mediated, or

designee;

(3) The holder whose term grazing permit is the subject of the

Deciding Officer's decision and who has requested mediation in the

notice of appeal;

(4) The holder's creditors, if applicable; and

(5) Legal counsel, if applicable. The Forest Service will have

legal counsel participate only if the permittee chooses to have legal

counsel.

(c) Timeframe. When an appellant simultaneously requests mediation

at the time an appeal is filed (Sec. 251.84), the Reviewing Officer

shall immediately notify, by certified mail, all parties to the appeal

that, in order to allow for mediation, the appeal is suspended for 30

calendar days from the date of the Reviewing Officer's notice. If

agreement has not been reached at the end of 30 calendar days, but it

appears to the Deciding Officer that a mediated agreement may soon be

reached, the Reviewing Officer may notify, by certified mail, all

parties to the appeal that the period for mediation is extended for a

period of up to 15 calendar days from the end of the 30-day appeal

suspension period. If a mediated agreement cannot be reached under the

specified timeframes, the Reviewing Officer shall immediately notify,

by certified mail, all parties to the appeal that mediation was

unsuccessful, that the stay granted during mediation is lifted, and

that the timeframes and procedures applicable to an appeal

(Sec. 251.89) are reinstated as of the date of such notice.

(d) Confidentiality. Mediation sessions shall be confidential;

moreover, dispute resolution communications, as defined in 5 U.S.C.

571(5), shall be confidential. However, the terms of a final mediated

agreement are subject to public disclosure.

(e) Records. Notes taken or factual material received during

mediation sessions are not to be entered as part of the appeal record.

(f) Cost. The United States Government shall cover only the

incurred expenses of its own employees in mediation sessions.

(g) Exparte Communications. Except to request a time extension or

communicate the results of mediation pursuant to paragraph (d) of this

section, the Deciding Officer, or designee, shall not discuss mediation

and/or appeal matters with the Reviewing Officer.

Dated: February 12, 1998.

Robert Lewis, Jr.,

Acting Associate Chief.

[FR Doc. 98-5102 Filed 2-26-98; 8:45 am]

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