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: Final rule.

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SUMMARY: This final rule amends regulations governing Forest Service

administrative appeal regulations pertaining 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 procedures.

EFFECTIVE DATE: This rule is effective August 13, 1999.

FOR FURTHER INFORMATION CONTACT:

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

1457.

SUPPLEMENTARY INFORMATION: Pursuant to section 502 of the Agricultural

Credit Act of 1987 (7 U.S.C. 5101, et seq.) (hereafter, the 1987 Act),

the Department of Agriculture offers a mediation program that provides

borrowers and creditors an opportunity to resolve disputes prior to

bankruptcy or litigation. The 1987 Act authorizes the Department of

Agriculture to help States develop and participate in certified

mediation programs.

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

Department of Agriculture Reorganization Act of 1994 (hereafter, the

1994 amendments) amended the 1987 Act to expand the number and type of

issues available for mediation under a State's mediation program. One

of the issues subject to mediation in the 1994 amendments concerned

grazing on National Forest System lands.

Under the Secretary's rangeland regulations 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 the 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 if 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 of 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 authorization may

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

Forest Service has amended to incorporate a mechanism for the mediation

of certain grazing disputes, as required by the 1994 amendments.

Section 501 of the 1987 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 final 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 this final rule.

Response to Comments

A proposed rule was published for public review and comment in the

Federal Register on February 27, 1998 (63 FR 9987). Thirteen comments

were received from six groups and individuals representing private

organizations, agricultural mediation programs, State agencies, and

private citizens.

No comments were received on Sec. 251.84, Obtaining notice;

Sec. 251.90, Content of notice of appeal; Sec. 251.91, Stays;

Sec. 251.92, Dismissal; Sec. 251.93, Resolution of issues; Sec. 251.94,

Responsive statement; Sec. 251.103(e), Records; or Sec. 251.103(g)

Exparte communication. Therefore, these sections are not discussed

further and are adopted as proposed.

A summary of major comments received on Sec. 251.103 and the agency

response follows:

Section 251.103 Mediation of Term Grazing Permit Disputes

Decisions subject to mediation. Proposed paragraph (a) of

Sec. 251.103 stated that in those States with Department of Agriculture

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).

Comment. Several reviewers said that mediation should be available

for any appealable decision including allotment management plans and

annual operating plans. One reviewer suggested the regulation be left

as broad as possible to allow for medication of any issues that may

arise that could best be resolved through mediation.

Response. The opportunity for medication is already available, but

not mandated, under Forest Service administrative appeal regulation

Sec. 215.16(a) for resolution of NEPA-based decisions such as those

leading to the preparation of allotment management plans. Also Forest

Service administrative appeal regulations at Sec. 251.93 provide for

mediation of disputes which may arise from Forest Service decisions

about authorized use. While it is true that section 282(a) of the

[[Page 37844]]

1994 amendments expanded the issues covered under State mediation

programs to include ``Grazing on National Forest System lands,'' these

mediation sessions must be confidential. The reviewers of the proposed

rule for mediation of grazing disputes did not provide any compelling

arguments to support the notion that the statute requires a rule which

encompasses all grazing decisions on National Forest System lands. The

Department has determined that the confidentiality requirement

necessitates a rule that limits mediation to permit enforcement actions

involving the Forest Service and the holder of a term grazing permit.

In these cases, the subject of the mediation is the decision by the

authorized officer to impose a sanction upon the permittee resulting

from a violation of the permit terms and conditions.

Parties. Proposed paragraph (b) of Sec. 251.103 stated that the

parties who may participate in mediation of term grazing permit

disputes would be limited to the State certified mediator, the Deciding

Officer or designee, the permittee who has requested mediation,

creditors of the permittee, and, potentially, legal counsel

representing the permittee and the Deciding Officer.

Comment. Several respondents urged the Forest Service to expand the

category of parties eligible to participate in mediation to include

technical experts, State agency personnel, and other Forest Service

personnel. One respondent recommended that the permit holder and

Deciding Officer have the authority to expand or limit participants.

Another respondent stated the holder should be able to invite any party

to support them. One respondent stated mediation should include

representatives from the affected State fish and wildlife agency and

local non-governmental conservation groups. Two respondents wanted the

Deciding Officer, and not a designee, to participate in mediation to

ensure consistency.

Response. The input of third parties would have no bearing on the

outcome of mediation since the scope of the mediation is narrowly

focused on a permittee's violation of permit conditions, which led to

suspension or cancellation of their permit. Third parties have no cause

or reason to participate in a mediation of a term permit dispute

between a permittee and the Government. Also as stated in the preamble

of the proposed rule, broader participation in mediation would pose a

risk to maintaining the required confidentiality.

Given the nature of Forest Service business and scheduling

difficulties due to a reduce workforce, the Department has determined

that a designee of the Deciding Officer who made the decision could

represent the Forest Service in mediation of term grazing permit

disputes. Although, the Department agrees that it is desirable to have

the Deciding Officer participate in mediation, there likely will be

times when Deciding Officer participation will not be possible.

Furthermore, the decision that is the subject of the mediation,

although made by the Deciding Officer, is still a Forest Service action

and a designee should be able to adequately represent the agency in the

mediation of the dispute. Therefore, the provision in the proposed rule

at Sec. 251.103(b)(2) is retained without revision in the final rule.

The Forest Service plans to issue Service-wide direction to require the

Deciding Officer to participate in mediation when available.

Timeframe. Proposed paragraph (c) of Sec. 251.103 stated that when

an appellant simultaneously requested mediation at the time an appeal

is filed, 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. Proposed paragraph (c)

also proposed that if an 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 an additional 15 calendar days.

Comment. Several respondents encouraged the Forest Service to

increase the timeframe for mediation to 60 to 90 days instead of the 30

to 45 day timeframe set forth in the proposed rule. One respondent

requested the addition of a provision to extend the timeframe for

mediation beyond 90 days to gather new information.

Response. The decision to limit mediation to 45 days was intended

to provide the opportunity for meaningful mediation, while, at the same

time, ensure that the Agency's administrative review process would be

completed in a timely manner. In the event that mediation was

unsuccessful, the 45-day timeframe would minimize the potential for

delays and damage to National Forest System lands and resources.

However, based on the comments received and experience gathered by the

agency through experimenting with mediation of cancellation and

suspension actions during the preparation of the proposed rule, the

request to provide additional time for the mediation process seems

reasonable and offers increased scheduling flexibility and more time

for pre-mediation preparation and the actual mediation. Since the

issues associated with suspension and cancellation actions are limited

and narrowly focused, the agency does not agree that a provision to

extend beyond 60 calendar days is warranted. Therefore, the Department

has revised the provision in the proposed rule at Sec. 251.103(c) to

suspend the appeal for 45 calendar days with an option to extend the

period an additional 15 calendar days, if the Deciding Officer believes

a mediated resolution to the dispute is imminent. Even after the

termination of this time period, discussions intended to resolve the

dispute without proceeding with an administrative appeal may continue

under 36 CFR 251.93.

Confidentiality. Proposed paragraph (d) specifies that mediation

sessions must be confidential and that the terms of a final mediated

agreement are subject to public disclosure.

Comment. Reviewers supported confidential mediation sessions

between the Forest Service and individual term grazing permit holders;

however, several reviewers expressed concern over what information

would be included in a ``public disclosure of the terms'' of a mediated

agreement.

Response. The Department agrees that clarification of the

information being disclosed is needed. Background material used in

mediation would not be included in a mediated agreement. Therefore, the

proposed rule at Sec. 251.103(d) has been revised to clarify that only

the final agreement signed by both the Forest Service official and the

permit holder is subject to public disclosure.

Cost. Paragraph (f) of Sec. 251.103 proposed that the United States

Government shall cover only the incurred expenses of its own employees

in mediation sessions.

Comment. Reviewers requested changing the proposed cost provision

to include dividing the cost for services provided under State

certified programs equally between the State, permittee, and the Forest

Service or dividing the cost evenly between the Forest Service and the

permittee. Primary reasons given by reviewers for the Government to pay

additional costs include: (1) While the Department of Agriculture does

administer and distribute the mediation grant funds, the funds

themselves are provided by Congress through a separate line item

appropriation. Thus, the certified mediation programs are not being

funded by ``agency'' funds; (2) Each

[[Page 37845]]

party to the mediation must be treated equally, including sharing the

cost of mediation; otherwise, there is a perception it is part of the

Forest Service system and, as such, the outcome will have a bias toward

the Service; (3) All other Department of Agriculture agencies

participating in the program are paying fees in those States that

charge them; (4) Without the Forest Service paying a share of the costs

States will be forced to request augmented Department of Agriculture

mediation grants to maintain the effectiveness of the program currently

established; and (5) Wyoming statutes specifically provide that parties

in the mediation process shall share the costs of mediation equally.

Response. After fully considering these comments the Department

does not agree that there are compelling arguments to warrant the

Government incurring additional responsibility for the cost of

mediation because:

(1) The issue of the cost of mediation is not that funds are

provided through a line item appropriation but rather that the

Department already provides a large share of the funding for State

mediation program operating expenses.

(2) The system for allocating the costs of the mediation among the

parties should have no bearing on whether the parties will be treated

equally. Mediators are specifically trained to serve as a neutral third

party with no bias toward either side of the dispute. Although State

mediation programs are certified by the Secretary of Agriculture, the

mediators are State, not Federal, officials. Furthermore, in light of

the fact that the Department of Agriculture already finances a

substantial percentage of state mediation programs, additional payments

by the Forest Service to cover a portion of the cost of the mediation

may create a perception that the system is biased towards the agency.

(3) Regardless of how other agencies of the Department of

Agriculture address this issue, it is the Forest Service position that

it does not currently have sufficient funds in its rangeland management

budget to comply with its basic land management planning and permit

responsibilities and also cover state mediation expenses.

(4) The Department would not object to the States seeking

additional funding to cover the cost of grazing permit dispute

mediation expenses through an increased grant from the Department.

(5) States vary widely in their policies for funding of State

certified mediation programs. To the extent that State laws conflict

with these regulations, these regulations would prevail.

Other Comments

Comment. Some reviewers indicated that mediation is relatively

unknown to most people and that a definition of mediation in the

regulation would be helpful to explain what it is and how it works.

Response. Mediation is not a term of art, but a common term with a

common meaning; therefore, the term ``mediation'' does not need to be

defined in the Code of Federal Regulations. However, since Sec. 251.84

requires the Deciding Officer to give written notice of the opportunity

for mediation in the notice of appeal when the action suspends or

cancels a term grazing permit pursuant to 36 CFR 222.4(a)(2)(ii), (iv)

and (a)(3) through (a)(6), the Department agrees that describing the

mediation process is a good idea. The Forest Service plans to issue

national direction instructing the Deciding Officer to include a

description of the mediation process in the written notice of adverse

action per Sec. 251.84.

Comment. Several respondents requested that mediation be made

available to all permit uses on Forest Service lands, instead of

limited to only term grazing permit disputes, according to proposed

Sec. 251.103.

Response. The opportunities for informal resolution of disputes,

including use of mediation, involving other permitted uses of National

Forest System lands, is already available under Forest Service

administrative appeal regulations. This final rule is limited to

implementing the Agricultural Credit Act of 1987, as amended, and,

therefore, requires a rule of narrow parameters. Thus, the expansion of

mediation to permit disputes, other than grazing permit suspension or

cancellation, is not appropriate under this rulemaking.

Comment. Two respondents requested that the regulation allow the

permittee and the Deciding Officer to form technical review teams to

gather resource information and to provide technical expertise for

making sound management decisions.

Response. Because the scope of the mediation is limited to certain

types of permit enforcement actions, it is unclear what benefit, if

any, would result from authorizing the formation of technical review

teams to advise the permittee and the Deciding Officer. In addition,

staffing these teams could be costly and time consuming for the

parties. Therefore, since the benefits of a technical review team would

be minimal, at best, while the costs are substantial, the final rule

does not provide for such teams to be involved in the mediation

process, either directly or indirectly.

The full text of revisions to 36 CFR part 251, subpart C, is set

out at the end of this notice.

Regulatory Impact

This final 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 will it

adversely affect productivity, competition, jobs, the environment,

public health or safety, or 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 the rights and obligations of recipients of such programs.

Accordingly, this final rule is not subject to Office of Management and

Budget review under Executive Order 12866.

Moreover, this final rule has been considered under 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 final

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

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

individual permittee. The requirements of the final 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 final 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 final 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 43180, September 18, 1992) excludes

from documentation in an environmental

[[Page 37846]]

assessment or impact statement ``rules, regulations, or policies to

establish Service-wide administrative procedures, program processes, or

instructions.'' The agency's assessment is that this final 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.

Civil Justice Reform Act

This final rule has been reviewed under Executive Order 12988,

Civil Justice reform. By adopting this final rule (1) all State and

local laws and regulations that are in conflict with this final rule or

which would impede its full implementation would be preempted; (2) no

retroactive effect would be given to this final rule; and (3) it would

not require administrative proceedings before parties may file suit in

court challenging its provisions.

No Taking Implications

This final 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

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

sector. This final 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.

Therefore, after notice and consideration of comments received and

for the reasons noted in the preamble, the Secretary of Agriculture is

adopting the final rule for implementing section 282 of Title II of the

Federal Crop and Insurance Reform and Department of Agriculture

Reorganization Act of 1994.

List of Subjects in 36 CFR Part 251

Electric power, Mineral resources, National forests, Rights-of-way,

and 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 amended as

follows:

PART 251--LAND USES

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

National Forest System Lands

1. Revise the authority citation for subpart C to read as follows:

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

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 Department of Agriculture 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.

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

Sec. 251.90 Content of notice of appeal.

* * * * *

(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 Department of

Agriculture certified mediation program, a request for mediation of

grazing permit cancellation 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.

* * * * *

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), 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 Sec. 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 Department

of Agriculture certified mediation programs, any holder of a term

grazing permit may request mediation, if a Deciding Officer issues a

decision to

[[Page 37847]]

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 Sec. 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 Department of

Agriculture 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 choose 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 45

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

agreement has not been reached at the end of 45 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 45-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 final agreement signed by

the Forest Service official and the permit holder is 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 incurred

expenses of its own employees in mediation sessions.

(g) Exparte communication. 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: June 27, 1999.

Anne Kennedy,

Deputy Under Secretary, Natural Resources and Environment.

[FR Doc. 99-17936 Filed 7-13-99; 8:45 am]

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