[Federal Register Volume 66, Number 96 (Thursday, May 17, 2001)]
[Rules and Regulations]
[Pages 27552-27554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12384]



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Part III





Department of Agriculture





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Forest Service



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36 CFR Part 219



National Forest System Land and Resource Management Planning; Extension 
of Compliance Deadline; Interim Rule and Proposed Rule

Federal Register / Vol. 66, No. 96 / Thursday, May 17, 2001 / Rules 
and Regulations

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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 219


National Forest System Land and Resource Management Planning; 
Extension of Compliance Deadline

AGENCY: Forest Service, USDA.

ACTION: Interim final rule.

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SUMMARY: The Department is issuing an interim final rule to extend for 
one year the date specified in 36 CFR 219.35(b) by which all land and 
resource management plan amendments and revisions would be subject to 
the new planning regulations adopted November 9, 2000. The Department 
has determined that the Forest Service is not sufficiently prepared to 
fully implement the rule agencywide. Without relief from the dates 
established in 36 CFR 219.35(b), the agency will experience serious 
disruption in its planning processes with attendant confusion of 
employees and the public. Such disruption and confusion would be 
contrary to the public interest. In addition, serious concerns have 
arisen regarding some of the provisions of the new planning rule, and 
an extension of the compliance date will allow the Department to review 
these provisions carefully and to identify any adjustments that may be 
necessary. While an interim final rule is necessary, the Department 
also believes that the public should have an opportunity to comment on 
the advisability and effects of extending the compliance date. To 
provide this opportunity, the Department is simultaneously publishing a 
proposed rule elsewhere in this part of today's Federal Register. The 
Department's intent is that the interim final rule will remain in 
effect until the Department completes the corollary rulemaking process 
initiated by the proposed rule.

EFFECTIVE DATE: This interim final rule is effective May 17, 2001.

ADDRESSES: Written inquiries about or comments on this rule may be sent 
to the Director, Ecosystem Management Coordination Staff, USDA Forest 
Service, P.O. Box 96090, Washington, DC 20090-6090 or by facsimile to 
(202) 205-1012.

FOR FURTHER INFORMATION CONTACT: Dave Barone, Planning Specialist, 
Forest Service, USDA; Telephone (202) 205-1019.

SUPPLEMENTARY INFORMATION: On November 9, 2000, the Secretary of 
Agriculture adopted a final rule, which revised the land and resource 
management planning rules at 36 CFR part 219 (65 FR 67514). The new 
rule established requirements for the implementation, monitoring, 
evaluation, amendment, and revision of land and resource management 
plans. Under the requirements of Sec. 219.35, all amendments and 
revisions to land and resource management plans must be prepared 
pursuant to the new planning rules, unless those amendments and 
revisions were initiated before November 9, 2000, and a notice of 
availability of the required environmental disclosure document (that 
is, a draft environmental impact statement or an environmental 
assessment) is published before May 9, 2001.

The Need for Immediate Action

    Approximately 34 forests are currently revising land and resource 
management plans under the 1982 planning regulations (47 FR 43026, 
September 30, 1982) as amended (48 FR 29122; June 24, 1983 and 48 FR 
40383; September 7, 1983). About 20 of these forests have conducted 
extensive public involvement activities under the 1982 planning 
regulations, but are not able to complete the necessary environmental 
disclosure documents by May 9, 2001. The new planning regulations 
require substantially different analyses to be completed prior to 
initiating revisions and engaging the public in the revision process. 
The November 2000 regulations also require different procedures for 
collaborating with the public in the revision process. Unless the May 
9, 2001, date is extended, these ongoing revision efforts must be 
halted, and these forests then will have to re-engage the public using 
the different procedures and analyses of the new rule. The Department 
believes the resulting confusion, disruption of the agency's programs, 
and additional expenditure of public funds are unreasonable, 
unnecessary, and contrary to the public interest.
    Another immediate concern is that many forests need to amend their 
land and resource management plans within the next few months to 
implement site-specific projects that support the objectives of the 
National Fire Plan, which was developed in response to the catastrophic 
wildfires of last summer. These projects include activities to reduce 
high-hazard fuels near urban and suburban areas and to restore and 
rehabilitate areas burned last year. Because the new regulations are 
less well understood, and, in some respects, more complicated than the 
1982 regulations, the Department is concerned that it may not be 
possible for forests to complete the necessary amendments in time to 
implement those projects before this year's fire season begins.

Agency Readiness To Implement New Rule

    In addition to the foregoing pressing concerns, the Department has 
determined that, despite diligent efforts, the Forest Service is not 
sufficiently prepared to fully implement the new planning rule 
agencywide. Many employees, retirees, elected officials, and 
representatives of external organizations interested in National Forest 
System management have expressed serious concerns to the new 
Administration regarding the agency's ability to implement some of the 
provisions of the new planning rule, such as ecological sustainability 
and species viability. The agency's ability to promptly implement the 
planning regulations has also been called into question through pending 
litigation. A coalition of environmental organizations (Citizens for 
Better Forestry et al. v. USFS (N.D. Calif.)) and a coalition of timber 
and grazing interests (American Forest & Paper Association et al. v. 
Veneman (D. D.C.)) have filed separate lawsuits challenging the 
legality of the new planning regulations on a variety of grounds.
    Many of the topics addressed by the new rule are complex; many new 
analytical requirements are imposed; several new terms are incorporated 
into the planning process, some with little explanation of their 
meaning or use, such as critical watersheds. As a result, additional 
implementing direction, new training programs, and new types of 
technical support and skills are needed to ensure consistent and 
efficient implementation of the new rule. While the agency has 
undertaken significant efforts to develop the policies, procedures, and 
training programs needed to implement the new rule, these tasks not 
only have not been completed, but they also require substantial 
additional work before they are sufficient to guide the workforce in 
implementing the new planning rule. Accordingly, an extension of the 
date in Sec. 219.35(b) is necessary for the agency to complete 
policies, training, and tools needed to effectively implement the new 
planning rule, and for the Department to have adequate opportunity to 
review these provisions carefully and to identify any adjustments that 
may be needed.
    In light of these findings, the Department has directed the agency 
to review the new planning rule and

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recommend ways to address these and any other concerns. If the agency 
determines that additional revisions are needed, a proposed rule 
incorporating the recommended changes will be published in the Federal 
Register for public comment at a later date. Given the likelihood of 
additional change to the November 2000 rule, it would be unreasonable 
to halt amendments and revisions already begun under the 1982 rule, 
resume those efforts under the new procedures of the November 2000 
regulations, and then change the process again if revisions to the new 
rule are subsequently proposed and adopted.

Option To Implement New Rule

    While most units are not prepared to implement fully the November 
2000 rule, this interim final rule does not prohibit forests from 
preparing amendments or revisions of land and resource management plans 
under the November 2000 rule. In fact, there are several forests that 
have begun revisions to their land and resource management plans under 
the November 2000 rule, and these planning efforts not only may 
continue, but also may provide valuable information about the 
feasibility of implementing the new rule.

Exemption From Notice and Comment

    The Administrative Procedure Act (the ``APA'') generally requires 
agencies to provide advance notice and an opportunity to comment on 
agency rulemakings. However, APA allows agencies to promulgate rules 
without notice and comment when an agency, for good cause, finds that 
notice and public comment are ``impracticable, unnecessary, or contrary 
to the public interest.'' (5 U.S.C. 553(b)(3)(B)). Furthermore, the APA 
exempts certain rulemakings from its notice and comment requirements, 
including rulemakings involving ``public property'' and ``rules of 
agency organization, procedure, or practice'' (5 U.S.C. 553(a)(2) and 
(b)(3)(A)).
    In 1971, Secretary of Agriculture Hardin announced a voluntary 
partial waiver from the APA notice and comment rulemaking exemptions. 
(July 24, 1971; 36 FR 13804). Thus, USDA agencies proposing rules 
generally provide notice and an opportunity to comment on proposed 
rules. However, the Hardin policy permits agencies to publish final 
rules without prior notice and comment when an agency finds for good 
cause that notice and comment procedures would be impracticable, 
unnecessary, or contrary to the public interest. The courts have 
recognized this good cause exception of the Hardin policy and have 
indicated that since the publication requirement was adopted 
voluntarily, the Secretary should be afforded ``more latitude'' in 
making a good cause determination. See Alcaraz v. Block, 746 F.2d 593, 
612 (9th Cir. 1984).
    To the extent that 5 U.S.C. section 553 applies to this interim 
final rule, good cause exists to exempt this rulemaking from advance 
notice and comment. (5 U.S.C. 553(b)(B) and 553(d)(3)). In view of 
these factors, the Department has determined that delaying an extension 
of the compliance date in Sec. 219.35(b) in order to obtain public 
comment is impracticable, unnecessary, and contrary to the public 
interest. In the preceding parts of this preamble, the Department has 
made a clear showing that an extension of the compliance date is 
necessary to allow amendments and revisions to land and resource 
management plans to continue and to help ensure, among other things, 
timely implementation of the National Fire Plan as directed by 
Congress. Given the agency's inability to complete all the actions 
necessary to meet the May 9, 2001, deadline, it is impracticable to 
provide for prior public comment on this extension. The public interest 
is best served by extending the compliance date and avoiding the loss 
and duplication of agency analysis and public involvement efforts for 
amendments and revisions prepared pursuant to the 1982 rule.

Conclusion

    For the reasons identified in this preamble, the Department is 
issuing an interim final rule to extend the date by which land and 
resource management plan amendments or revisions must comply with the 
November 2000 planning rule. In Sec. 219.35(b), the date is extended 
from May 9, 2001, to May 9, 2002. In addition to this extension, this 
interim final rule would include at Sec. 219.35(b) the interpretation 
of the term ``initiated'' as published in an interpretive rule on 
January 10, 2001 (66 FR 1864) to clarify this term as it applies to 
amendments or revisions initiated prior to May 9, 2002. The changes to 
Sec. 219.35(b) are also fully consistent with the other provisions of 
the interpretive rule.
    This interim final rule is necessary to grant relief to the 
approximately 20 units that have begun plan revisions under the 1982 
regulations but could not meet the May 9, 2001, deadline. The interim 
final rule is also needed to facilitate timely implementation of site-
specific projects that support the National Fire Plan. Nevertheless, 
the Department believes the public should have an opportunity to 
comment on the modification of Sec. 219.35(b) which extends the period 
of use of the 1982 planning rule. Thus, the Department is 
simultaneously publishing this extension as a proposed rule with 
request for public comment in this same part of today's Federal 
Register.

Regulatory Certifications

Regulatory Impact

    This is not a significant rule. This interim final rule will not 
have an annual effect of $100 million or more on the economy, or 
adversely affect productivity, competition, jobs, the environment, 
public health or safety, or State or local governments. This interim 
final rule will not interfere with an action taken or planned by 
another agency, or raise new legal or policy issues. Finally, this 
interim final rule will not alter the budgetary impacts of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients of such programs. Accordingly, this interim 
final rule is not subject to Office of Management and Budget (OMB) 
review under Executive Order 12866. Moreover, this interim final rule 
has been considered in light of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.). This interim final rule will not have a 
significant economic impact on a substantial number of small entities 
as defined by the Act. This interim final rule will not impose 
recordkeeping requirements; will not affect their competitive position 
in relation to large entities; and will not affect their cash flow, 
liquidity, or ability to remain in the market.

Environmental Impact

    This interim final rule has no direct or indirect effect on the 
environment, but merely extends the date by which amendments and 
revisions of land and resource management plans may be continued under 
the 1982 planning rule, as well as the date by which plans must conform 
to the November 2000 rule. The planning regulation itself deals with 
the development and adoption of Forest Service land and resource 
management plan decisions as well as procedures for developing site-
specific decisions that may include decisions regarding the occupancy 
and use of National Forest System land. An environmental assessment was 
completed on the November 2000 planning rule, with a finding that the 
rule would have no significant impact on the environment. Section 31.1b 
of Forest Service Handbook 1909.15 (57 FR 43180; September 18, 1992) 
excludes from documentation in an environmental assessment or impact 
statement rules,

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regulations or policies to establish Service-wide administrative 
procedures, program processes, or instructions. Based on the nature and 
scope of this rulemaking and the procedural nature of 36 CFR part 219, 
the agency has determined that this interim 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.

No Takings Implications

    This interim final rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12360, and it has 
been determined that the interim final rule will not pose the risk of a 
taking of private property, as the interim final rule is limited to 
adjustment of the compliance date in the new planning rule.

Civil Justice Reform

    This interim final rule has been reviewed under Executive Order 
12988, Civil Justice Reform. This interim final 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 administrative proceedings before parties may 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. 1531-1538), which the President signed into law on March 22, 
1995, the agency has assessed the effects of this interim final rule on 
State, local and tribal governments and the private sector. This 
interim final 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 and Consultation and Coordination With Tribal Governments

    The Department has considered this interim final rule under the 
requirements of Executive Orders 12612 and 13132 and concluded that the 
rule does 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. Therefore, the agency has determined that no further 
assessment of federalism implications is necessary at this time.
    This interim final rule does not have tribal implications as 
defined in Executive Order 13175 and, therefore, advance consultation 
with tribes is not required.

Controlling Paperwork Burdens on the Public

    This interim final rule does not contain any recordkeeping or 
reporting requirements or other information collection requirements 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 do not apply.

List of Subjects in 36 CFR Part 219

    Administrative practice and procedure, Environmental impact 
statements, Indians, Intergovernmental relations, Forest and forest 
products, 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. Revise paragraph (b) of Sec. 219.35 to read as follows:


Sec. 219.35  Transition.

    (a) * * *
    (b) Until May 9, 2002, a responsible official may elect to continue 
or to initiate new plan amendments or revisions under the 1982 planning 
regulations in effect prior to November 9, 2000 (See 36 CFR parts 200 
to 299, Revised as of July 1, 2000), or the responsible official may 
conduct the amendment or revision process in conformance with the 
provisions of this subpart. For the purposes of this paragraph, the 
reference to a plan amendment or revision initiated before May 9, 2002, 
means that the agency has issued a Notice of Intent or other public 
notification announcing the commencement of a plan amendment or 
revision as provided for in the Council on Environmental Quality 
regulations at 40 CFR 1501.7 or in Forest Service Handbook 1909.15, 
Environmental Policy and Procedures Handbook, section 11.
* * * * *

    Dated: May 10, 2001.
Ann M. Veneman,
Secretary.
[FR Doc. 01-12384 Filed 5-14-01; 2:27 pm]
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