Federal Register / Vol. 69, No. 188 / Wednesday, September 29, 2004 / Rules and Regulations 58055

(NEPA) (42U.S.C. 4321–4370f), and 

have concluded that there are not 

factors in this case that would limit the 

use of a categorical exclusion under 

section 2.B.2 of the Instruction. 

Therefore, this rule is categorically 

excluded, under figure 2–1, paragraph 

(34)(h), of the Instruction, from further 

environmental documentation. Under 

figure 2–1, paragraph (34)(h), of the 

Instruction, and ‘‘Environmental 

Analysis Check List’’ and a ‘‘Categorical 

Exclusion Determination’’ are not 

required for this rule.

List of Subjects in 33 CFR Part 100 

Marine safety, Navigation (water), 

Reporting and record keeping 

requirements, Waterways.

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 100, as follows:

PART 100—MARINE EVENTS 

[AMENDED]

■ 1. The authority citation for Part 100 

continues to read as follows:

Authority: 33 U.S.C. 1233; Department of 

Homeland Security Delegation No. 0170.1.

■ 2. From 9 a.m. on October 1 through 

5 p.m. on October 3, 2004, add temporary 

§ 100.T13–002 to read as follows:

§ 100.T13–002 Special Local Regulations, 

Strait Thunder Hydroplane Races, Port 

Angeles, WA. 

(a) Regulated areas. (1) The race area

encompasses all waters located inside of 

a line connecting the following points 

located near Port Angeles, Washington: 

Point 1: 48°07′24′′ N, 123°25′32′′ W; 

Point 2: 48°07′26′′ N, 123°24′35′′ W; 

Point 3: 48°07′12′′ N, 123°25′31′′ W; 

Point 4: 48°07′ 15′′ N, 123°24′34′′ W. 

[Datum: NAD 1983].

(2) The spectator area encompasses 

all waters located within a box bounded 

by the following points located near 

Port Angeles, Washington: Point 1: 

48°07′32′′ N, 123°25′33′′ W; Point 2: 

48°07′29′′ N, 123°24′36′′ W; Point 3: 

48°07′24′′ N, 123°25′32′′ W, Point 4: 

48°07′26′′ N, 123°24′35′′ W. [Datum: 

NAD 1983]. 

(b) Definitions. (1) For the purposes of 

this section, Coast Guard Patrol 

Commander means a commissioned, 

warrant, or petty officer of the Coast 

Guard who has been designated by the 

Commander, Coast Guard Group Port 

Angeles. The Coast Guard Patrol 

Commander is empowered to control 

the movement of vessels in the 

regulated area. 

(2) For the purposes of this section, 

Patrol Vessel means any Coast Guard 

vessel, Coast Guard Auxiliary vessel, or 

other federal, state or local law 

enforcement vessel. 

(c) Special Local Regulations. (1) 

From 9 a.m. on October 1, 2004 through 

5 p.m. on October 3, 2004, nonparticipant vessels are prohibited from 

entering the race area unless authorized 

by the Coast Guard Patrol Commander. 

(2) Spectator craft may remain in the 

designated spectator area but must 

follow the directions of the Coast Guard 

Patrol Commander. Spectator craft 

entering, exiting or moving within the 

spectator area must operate at speeds 

that will create a minimum wake, and 

not exceed seven knots. The maximum 

speed may be reduced at the discretion 

of the Coast Guard Patrol Commander. 

(3) A succession of sharp, short 

signals by whistle or horn from a Patrol 

Vessel will serve as a signal to stop. 

Vessels signaled must stop and comply 

with the orders of the Patrol Vessel. 

Failure to do so may result in expulsion 

from the area, citation for failure to 

comply, or both. 

(4) The Coast Guard Patrol 

Commander may be assisted by other 

federal, state and local law enforcement 

agencies in enforcing this regulation.

Dated: September 22, 2004. 

J.M. Garrett, 

Rear Admiral, U.S. Coast Guard, Commander, 

Thirteenth Coast Guard District.

[FR Doc. 04–21846 Filed 9–28–04; 8:45 am] 

BILLING CODE 4910–15–P

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, 

58056 Federal Register / Vol. 69, No. 188 / Wednesday, September 29, 2004 / Rules and Regulations 

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 

§ 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 sitespecific 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 § 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 § 219.35 paragraph (a).

Conclusion 

Misunderstandings have arisen 

concerning the law to be applied to sitespecific projects and plan amendments 

decided during the transition period. To 

clarify the intent of § 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. 

Federal Register / Vol. 69, No. 188 / Wednesday, September 29, 2004 / Rules and Regulations 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 

§ 219.35 to read as follows:

* * * * *

Appendix B to § 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 § 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 § 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 

§ 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

POSTAL SERVICE

39 CFR Parts 3, 4, and 6 

Bylaws of the Board of Governors

AGENCY: Postal Service.

ACTION: Final rule.

SUMMARY: On September 14, 2004, the 

Board of Governors of the United States 

Postal Service adopted a number of 

amendments to its Bylaws. These 

amendments changed the quorum of 

Governors required to vote on a 

recommended decision of the Postal 

Rate Commission, reserved the election 

of the Board’s Vice Chairman to the 

Governors, and altered the rules for 

scheduling meetings. Consequently, the 

Postal Service hereby publishes this 

final rule.

EFFECTIVE DATE: September 29, 2004.

FOR FURTHER INFORMATION CONTACT:

William T. Johnstone, Secretary of the 

Board, U.S. Postal Service, 475 L’Enfant 

Plaza, SW., Washington, DC 20260–

1000; (202) 268–4800.

SUPPLEMENTARY INFORMATION: This 

document publishes amendments to 

parts 3, 4, and 6 of 39 CFR, amending 

the Bylaws of the Board of Governors of 

the United States Postal Service. The 

Board amended parts 3 and 4 to reserve 

the election of the Board’s Vice 

Chairman to a vote of the Governors, 

rather than a vote of the entire Board. 

In part 6, the Board changed the 

procedure for establishing an annual 

schedule of meetings to conform to 

current practice. The Board also 

amended part 6 to change from 5 to 4 

the number of Governors required for a 

quorum to vote on a recommended 

decision of the Postal Rate Commission.

List of Subjects in 39 CFR Parts 3, 4, 6 

Administrative practice and 

procedure, Organization and functions 

(Government agencies), Postal Service.

■ Accordingly, parts 3, 4, and 6 of 39 

CFR are amended as follows:

PART 3—[AMENDED]

■ 1. The authority citation for part 3 

continues to read as follows:

Authority: 39 U.S.C. 202, 203, 205, 401(2), 

(10), 402, 414, 416, 1003, 2802–2804, 3013; 

5 U.S.C. 552b(g), (j); Inspector General Act, 

5 U.S.C. app.; Pub. L. 107–67, 115 Stat. 514 

(2001).

§ 3.3 [Amended]

■ 2. Amend § 3.3 by removing and 

reserving paragraph (a).

■ 2.a. Amend § 3.4 by revising paragraph 

(c) to read as follows: