27552 Federal Register / Vol. 66, No. 96 / Thursday, May 17, 2001 / Rules and Regulations

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.

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 § 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 sitespecific 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

§ 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

Federal Register / Vol. 66, No. 96 / Thursday, May 17, 2001 / Rules and Regulations 27553

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 § 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 § 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

§ 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

§ 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 sitespecific projects that support the

National Fire Plan. Nevertheless, the

Department believes the public should

have an opportunity to comment on the

modification of § 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,

27554 Federal Register / Vol. 66, No. 96 / Thursday, May 17, 2001 / Rules and Regulations

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 § 219.35 to

read as follows:

§ 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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