[Federal Register: May 17, 2001 (Volume 66, Number 96)]
[Rules and Regulations]
[Page 27551-27554]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17my01-13]
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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
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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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