=====  A message from the 'appealist' discussion list  =====

Friends:

Has anyone had experience with "technical amendments" to the Code of
Federal Regulations?

We've had a long-running battle with the USFS over the appeals procedure
for land swaps.  The land exchange regulations, 36 CFR 254, state that
these actions are to be appealed under 36 CFR 217 appeal regs--the "old"
appeal regulations that allow two levels of review--NOT the 36 CFR 215
"streamlined" regulations that were approved in 1992.

The Forest Service and USDA have said that the 217 citation in the land
exchange regs (promulgated in 1994) was an "oversight."  But because the
citation was there, we have been able to force the USFS to review
appeals under both procedures (and in some cases have gotten the two
levels of review).

I had thought the Forest Service would have to go through formal
rulemaking to alter the LX regulations so they cited the streamlined
appeals process. We sent several letters to staff to let them know we
and other organizations intended to comment on the rulemaking (and
recommend retention of the two-level process).  We asked them to keep us
informed of progress as they formulated the new rule so we could watch
for its draft publication in the Federal Register.

Now, they've pulled a fast one on us, and have changed the citation
through a technical amendment that has no public comment period.  It's
at  Federal Register: May 13, 1999, Volume 64, Number 92, Rules and
Regulations, Page 25821-25822.

The section provides an explanation/justification for using this
procedure, but I wanted to check whether any of you have experience with
this and see any loopholes.  For one thing, they state that they are
merely formalizing the procedure they've already been using for
years--but they HAVE been allowing 217 appeals since we challenged them
on it more than a year ago.

Anyone out there know the criteria under which changes can be made to
CFR's with a technical amendment as opposed to formal rulemaking, or
know how we might further challenge this practice?

Can they get away with this?

Thanks,

Janine

--
Janine Blaeloch, Director
Western Land Exchange Project
PO Box 95545
Seattle, WA  98145-2545
ph 206.325-3503
fx 206.325-3515
web:  www.westlx.org