[Federal Register Volume 69, Number 188 (Wednesday, September 29, 2004)]
[Rules and Regulations]
[Pages 58055-58057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21844]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 219


National Forest System Land and Resource Management Planning; Use 
of Best Available Science in Implementing Land Management Plans

AGENCY: Forest Service, USDA.

ACTION: Final rule; Interpretation.

-----------------------------------------------------------------------

SUMMARY: The Department of Agriculture is adopting this interpretative 
rule to clarify the intent of the transition section of the planning 
regulations regarding the consideration and use of the best available 
science to inform project decision making that implements a land 
management plan and, as appropriate, plan amendments.

DATES: This interpretative rule is effective September 29, 2004.

ADDRESSES: Written inquiries about this interpretative rule may be sent 
to the Director, Ecosystem Management Coordination Staff, USDA Forest 
Service, 1400 Independence Ave., SW., Mailstop Code 1104, Washington, 
DC 20250-1104.

FOR FURTHER INFORMATION CONTACT: Dave Barone, Planning Specialist, 
Ecosystem Management Coordination Staff, Forest Service, USDA, (202) 
205-1019; Fax (202) 205-1012.

SUPPLEMENTARY INFORMATION: The U.S. Department of Agriculture is 
clarifying the effect of the transition provisions of the National 
Forest System land and resource management planning regulation at 36 
CFR part 219 (65 FR 67514) adopted on November 9, 2000 (2000 planning 
rule). The transition provisions govern National Forest System planning 
during the transition period originally set forth in the 2000 planning 
rule and amended by interim final rules promulgated on May 17, 2001 (66 
FR 27552), and May 20, 2002 (67 FR 35431).
    Section 219.35(a) of the transition provisions requires the 
responsible official, during the transition period, to consider the 
best available science in implementing and, if appropriate, in amending 
existing plans. Section 219.35(b) currently allows the responsible 
official, during this period, to elect to prepare plan amendments and 
revisions using the provisions of the 1982 planning rule. Section 
219.35(d) currently exempts projects implementing land and resource 
management plans from compliance with the substantive provisions of the 
2000 planning regulation during the transition period.
    The transition period began on November 9, 2000. The May 17, 2001 
and May 20, 2002 interim final rules amended the 2000 planning rule to 
extend the transition period until final adoption of the proposed 
revision to the 2000 planning rule published on December 6, 2002 (67 FR 
72770). During this period, while the substantive provisions of the 
2000 rule are not binding, the transition provisions remain in effect.
    Considerable uncertainty has arisen regarding the impact of the 
2000 planning rule and the transition provisions. Some courts have 
properly determined the 1982 planning rule is no longer in effect. 
Others, however, have enforced its provisions. See, e.g., Forest Watch 
v. United States Forest Service, 322 F.Supp. 2d 522 (D. Vt. 2004) 
(``Applicable regulations require the Forest Service to ``consider the 
best available science'' when implementing the forest plan,'' citing 36 
CFR 219.35(a)); Clinch Coalition v. Damon, 316 F.Supp. 2d 364, 381 
(W.D.Va. 2004) (suggesting that the 1982 planning rule could not be 
applied to a 2001 decision,

[[Page 58056]]

yet considering the decision under both 1982 planning rule and 2000 
planning rule); Chattooga Conservancy v. USFS and Georgia Transmission 
Corporation, 2:03-CV-0101 (March 3, 2004) (1982 planning rule provision 
``eliminated when the National Forest System Land and Resource 
Management Planning rule was amended in November of 2000.''); Shawnee 
Trail Conservancy v. Nicholas, Case No. 02-cv-4065-JPG (S.D. Ill.) 
(June 30, 2004) (``On November 9, 2000, the Department of Agriculture 
made wholesale changes to the relevant regulations, making prior 
citations obsolete.''). This uncertainty has affected the ability of 
the Forest Service to utilize fully the provisions of Sec.  219.35 
paragraph (a) to consider the best science available in plan amendments 
and project decision making. For example, while population data have 
been held to be required for management indicator species under the 
1982 rules, other tools often can be useful and more appropriate in 
predicting the effects of projects that implement a land management 
plan, such as examining the effect of proposed activities on the 
habitat of specific species; using information identified, obtained, or 
developed through a variety of methods, such as assessments, analysis, 
and monitoring results; or using information obtained from other 
sources such as State fish and wildlife agencies and organizations such 
as The Nature Conservancy. The purpose of this interpretative rule is 
to clarify that, both for projects implementing plans and plan 
amendments, paragraph (a)'s mandate to use the best available science 
applies.
    The transition provisions as originally enacted, and now twice 
amended, explicitly refer to the 1982 planning rule as the rule ``in 
effect prior to November 9, 2000.'' At the same time, given the 
extension of the effective date of paragraph (d), within which site-
specific decisions must comply with the 2000 planning rule (68 FR 
53294), it is clear that site-specific decisions entered into during 
the transition period are not to comply with the substantive provisions 
of the 2000 planning rule. This interpretative rule clarifies that 
until a new final rule is promulgated, the transition provisions of the 
2000 planning rule, as amended by the May 2002 interim final rule 
remain in effect, including the requirement of Sec.  219.35 paragraph 
(a) of the transition provisions that responsible officials consider 
the best available science in implementing national forest land 
management plans and, as appropriate, plan amendments. Pursuant to 
paragraph (b), the provisions of the 1982 planning rule may continue to 
be used only for plan amendments and revisions upon election of the 
responsible official. Appropriate plan amendments and projects proposed 
during the transition period should be developed considering the best 
available science in accordance with Sec.  219.35 paragraph (a).

Conclusion

    Misunderstandings have arisen concerning the law to be applied to 
site-specific projects and plan amendments decided during the 
transition period. To clarify the intent of Sec.  219.35, the 
Department is adopting this interpretative rule.
    This rulemaking consists of an interpretative rule and is issued by 
the Department to advise the public of the Department's preexisting 
construction of one of the rules it administers--that is, 36 CFR 
219.35, in the context of National Forest System land and resource 
management planning. See, e.g., Shalala, Secretary of Health and Human 
Services v. Guernsey Memorial Hosp., 514 U.S. 87, 99 (1995). Therefore, 
under 5 U.S.C. 553(b)(A), this rulemaking is exempt from the notice and 
comment requirements of the Administrative Procedure Act, and, pursuant 
to 5 U.S.C. 553(d)(2), this rule is effective immediately upon 
publication in the Federal Register.

Regulatory Certifications

Regulatory Impact

    It has been determined that this is not an economically significant 
rule. This interpretative 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 rulemaking will not interfere with an action 
taken or planned by another agency. 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 rulemaking is not subject to Office of Management and 
Budget (OMB) review under Executive Order 12866.
    Moreover, this rulemaking has been considered in light of Executive 
Order 13272 regarding proper consideration of small entities and the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 
which amended the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). It 
is therefore certified that this rule will not have a significant 
economic impact on a substantial number of small entities as defined by 
the Act. This rule will not impose record keeping requirements; will 
not affect small entities' competitive position in relation to large 
entities; and will not affect small entities' cash flow, liquidity, or 
ability to remain in the market.

Environmental Impact

    This rulemaking has no direct, indirect, or cumulative effect on 
the environment, but merely clarifies the intent of the Department 
concerning the consideration of the best available science to inform 
decision making that implements land management plans. Section 31.1b of 
Forest Service Handbook 1909.15 (57 FR 43168; 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 instruction.'' Based 
on the nature and scope of this rulemaking, the Department has 
determined that the interpretative rule falls within this category of 
actions and that no extraordinary circumstances exist which would 
require preparation of an environmental assessment or an environmental 
impact statement.

No Takings Implications

    This rulemaking has been analyzed in accordance with the principles 
and criteria contained in Executive Order 12360, and it has been 
determined that the rule will not pose the risk of a taking of private 
property, as the interpretative rule is limited clarification of the 
intent of the transition procedures in the November 9, 2000, planning 
rule.

Energy Effects

    This rule has been analyzed under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. It has been determined that this rule does not 
constitute a significant energy action as defined in the Executive 
order.

Civil Justice Reform

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. The rule (1) does not preempt State and local laws and 
regulations that conflict with or impede its full implementation; (2) 
has no retroactive effect; and (3) will not require the use of 
administrative proceedings before parties could file suit in court 
challenging its provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C.

[[Page 58057]]

1531-1538), which the President signed into law on March 22, 1995, the 
Department has assessed the effects of this rule on State, local, and 
Tribal governments and the private sector. This rule will not compel 
the expenditure of $100 million or more by any State, local, or Tribal 
government, or anyone in the private sector. Therefore, a statement 
under section 202 of the Act is not required.

Federalism

    The Department has considered this rule under the requirements of 
Executive Order 13132, Federalism. The Department has determined that 
the rule conforms with the federalism principles set out in this 
Executive order; will not impose any significant compliance costs on 
the States; and will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government.

Consultation and Coordination With Indian Tribal Governments

    This rule does not have tribal implications as defined by Executive 
Order 13175, Consultation and Coordination with Indian Tribal 
Governments. Therefore, advance consultation with Tribes is not 
required.

Controlling Paperwork Burdens on the Public

    This rule does not contain any recordkeeping or reporting 
requirements or other information collection requirement as defined in 
5 CFR part 1320. 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, Controlling Paperwork Burden on the 
Public, do not apply.

Government Paperwork Elimination Act Compliance

    The Department is committed to compliance with the Government 
Paperwork Elimination Act (44 U.S.C. 3504), which requires Government 
agencies to provide the public the option of submitting information or 
transacting business electronically to the maximum extent possible.

List of Subjects in 36 CFR Part 219

    Administrative practice and procedure, Environmental impact 
statements, Forest and forest products, Indians, Intergovernmental 
relations, National Forests, Natural resources, Reporting and 
recordkeeping requirements, Science and technology.

    Therefore, for the reasons set forth in the preamble, part 219 of 
title 36 of the Code of Federal Regulations is amended as follows:

PART 219--PLANNING

Subpart A--National Forest System Land and Resource Management 
Planning

    1. The authority citation for subpart A continues to read as 
follows:

    Authority: 5 U.S.C. 301; and Secs. 6 and 15, 90 Stat. 2949, 
2952, 2958 (16 U.S.C. 1604, 1613).

    2. Add an appendix at the end of Sec.  219.35 to read as follows:
* * * * *

Appendix B to Sec.  219.35

Interpretative Rule Related to Paragraphs 219.35(a) and (b)

    The Department is clarifying the intent of the transition 
provisions of paragraphs (a) and (b) of this section with regard to 
the consideration and use of the best available science to inform 
project decisionmaking that implements a land management plan as 
follows:
    1. Under the transition provisions of paragraph (a), the 
responsible official must consider the best available science in 
implementing and, if appropriate, in amending existing plans. 
Paragraph (b) allows the responsible official to elect to prepare 
plan amendments and revisions using the provisions of the 1982 
planning regulation until a new final planning rule is adopted. A 
proposed rule to revise the November 9, 2000, planning regulations 
was published in the Federal Register on December 6, 2002 (67 FR 
72770). A new final rule has not been promulgated.
    2. Until a new final rule is promulgated, the transition 
provisions of Sec.  219.35 remain in effect. The 1982 rule is not in 
effect. During the transition period, responsible officials may use 
the provisions of the 1982 rule to prepare plan amendments and 
revisions. Projects implementing land management plans must comply 
with the transition provisions of Sec.  219.35, but not any other 
provisions of the 2000 planning rule. Projects implementing land 
management plans and plan amendments, as appropriate, must be 
developed considering the best available science in accordance with 
Sec.  219.35(a). Projects implementing land management plans must be 
consistent with the provisions of the governing plan.

    Dated: September 24, 2004.
David P. Tenny,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 04-21844 Filed 9-28-04; 8:45 am]
BILLING CODE 3410-11-P