General Comments

Procedural Comments

A number of comments were received on various procedural aspects of this rulemaking. These comments and the Department's response to them follow.


Requests for Administrative Hearing.

Approximately 79 respondents requested an administrative hearing on the proposed rule. Specifically, one respondent commented that the average person who might be affected by the rulemaking might not otherwise know about itfeel comfortable commenting. Another respondent cited Hagar v. Reclamation Dist. No. 108, 111 U.S. 701 (1884), for the proposition that due process requires a judicial proceeding when life, liberty, or property are at stake.

One respondent stated that the agency had failed to give timely notice of the proposed rule to those who had notified the agency of their interest. Another respondent stated that Forest Service correspondence about the status of the proposed rule sent before it was published constitutes an ad hoc, unpublished decision issued at the same time as the proposed rule in violation of the APA.


When a rule is promulgated under the notice and comment provisions of the APA at 5 U.S.C. 553(c), an administrative hearing is not required and is seldom provided.

By publishing the proposed rule in the Federal Register, by accepting comments on the proposed rule for 90 days, and by analyzing and addressing the comments received during that period in the preamble to this final rule, the Department has fully complied with the notice and comment provisions of 5 U.S.C. 553(c).

For informal rulemaking, an agency satisfies the APA's notice requirement by publishing in the Federal Register. The Forest Service published the proposed rule in the Federal Register on May 6, 1993. In addition, the agency gave direct notice to numerous interested parties and invited their comments. The timeliness of the agency's notice is in fact supported by the actions of the respondent who stated that the agency had failed to give timely notice. That respondent submitted a comment on the proposed rule dated June 24, 1993, which was received on July 7, 1993, nearly a month before the end of the comment period. Correspondence sent by the agency concerning the status of the proposed rule before it was published has no legal bearing on this rulemaking and does not violate the APA.

Extension of the Comment Period

Listing of Comments

FS Regulation Page