[Federal Register: May 20, 2002 (Volume 67, Number 97)]
[Rules and Regulations]
[Page 35431-35434]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20my02-5]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 219
RIN 0596-AB87
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 the
date by which all land and resource management plan amendments and
revisions would otherwise be subject to the planning regulations
adopted November 9, 2000. An extension of the compliance date will
allow the agency to propose and adopt adjustments to the 2000 planning
rule that may be necessary. On May 17, 2001 (66 FR 27555), the public
was given an opportunity to comment on the advisability and effects of
extending the compliance date. At that time, the Forest Service noted
that the Department had instructed the agency to propose changes to the
November 2000 rule to improve its implementability. The deadline for
complying with the November 2000 rule was May 9, 2002, and the proposed
changes to the 2000 rule are not yet published. Therefore, the
Department is issuing this interim final rule to delay mandatory
compliance with the 2000 rule until a new final planning rule is
adopted.
EFFECTIVE DATE: This interim final rule is effective May 20, 2002.
ADDRESSES: Written inquiries about or comments on this rule may be sent
to the Director, Ecosystem Management Coordination Staff, Forest
Service, USDA, Mail Stop 1104, 1400 Independence Ave., SW, Washington,
DC 20250-1104 or by facsimile to (202) 205-1012.
FOR FURTHER INFORMATION CONTACT: Dave Barone, Planning Specialist,
Forest Service, (202) 205-1019.
SUPPLEMENTARY INFORMATION: On November 9, 2000, the Secretary of
Agriculture adopted a final rule substantially revising the National
Forest System land and resource management planning regulation at 36
CFR part 219 (65 FR 67514). Section 219.35 of that rule provided for
the transition from the 1982 planning rule to the 2000 rule. Under the
requirements of Sec. 219.35 as adopted, all amendments and revisions to
land and resource management plans must be prepared pursuant to the
November 2000 planning rule, unless the amendment or revision was
initiated before November 9, 2000, and a notice of availability of the
required environmental disclosure document was published before May 9,
2001. However, the Department subsequently determined that the Forest
Service was not sufficiently prepared to implement the November 2000
planning rule. Therefore, on May 17, 2001, the Department issued an
interim final rule immediately extending the compliance date of May 9,
2001, until May 9, 2002,
[[Page 35432]]
in anticipation that a revised planning rule would be final by that
date (66 FR 27552). However, completion of the revised planning rule by
May 9, 2002, has proven to be unrealistic; thus, the Department is
extending the compliance deadline until the adoption of a new final
planning rule.
The Need For Immediate Action
This interim rulemaking action is needed immediately. The May 9,
2002, compliance deadline is imminent, and it is necessary to grant
relief to the units of the National Forest System that may initiate
plan revisions and amendments after this date but before a new planning
regulation is finalized. There are currently 33 forest plans being
revised using the 1982 planning rule. An additional 19 plan revisions
will be initiated in the next 18 months. The 2000 planning rule
requires substantially different analyses to be completed prior to
initiating revisions and engaging the public in the revision process.
The November 2000 rule also requires different procedures for
collaborating with the public to identify issues to be considered in
the revision process. Even though units have had the option of using
the November 2000 planning rule for plan revisions and amendments, to
date no unit is utilizing it. As with the interim final rule adopted
May 17, 2001, this new interim final rule allows forests the option of
proceeding under the 1982 rule or under the November 2000 rule.
Another immediate concern is that many forests need to amend their
land and resource management plans to implement site-specific projects
that support the objectives of the interagency National Fire Plan,
which was developed in response to the catastrophic wildfires of the
2000 fire season. These projects include activities to reduce high-
hazard fuels near urban and suburban areas and to restore and
rehabilitate burned areas. Because the November 2000 rule is less well
understood, and, in some respects, more complicated than the 1982
regulations, it will be difficult for forests to fully comply with it
and complete the necessary amendments to implement those projects.
Agency Proposal To Improve November 2000 Rule
After adoption of the November 2000 planning rule, the Secretary
received a number of comments from individuals, groups, and
organizations expressing concerns regarding its implementation. In
addition, lawsuits challenging the promulgation of the 2000 rule have
been filed. As a result, the Department and the agency initiated two
reviews of the 2000 rule focusing on its ``implementability''. The
reviews concluded that many of the concerns regarding implementability
of the rule were serious. The principal concerns identified were lack
of clarity, budgetary and staffing impacts associated with
sustainability, species viability requirements, use of science and
scientists, monitoring, and the length of the transition requirements
of the 2000 rule. Having considered the conclusions of the reviews of
the 2000 rule, the Department directed the agency to develop a proposed
rule to revise the 2000 rule. Notice of this proposed rulemaking was
given in the Semiannual Unified Agenda of Federal Regulatory and
Deregulatory Actions on December 3, 2001 (66 FR 61400). That proposed
rule is currently undergoing review within the Administration and is
expected to be published soon. However, the Department does not expect
to have a final rule in place before October 1, 2002.
On May 17, 2001, the Department issued an interim final rule and
simultaneously issued a proposed rule extending the compliance date of
May 9, 2001, until May 9, 2002. The agency received 84 responses to the
request for comments. Categories of respondents included the wood
products, mining, and agricultural industries; recreation,
preservation, and conservation organizations; and unaffiliated
individuals. About half of the respondents did not believe that the
agency should extend the compliance deadline. They feel that the
November 2000 rule should be implemented as is. In contrast, the
balance of the respondents agreed with the need to extend the
compliance date and felt that it was reasonable to allow the agency
time to make adjustments to the 2000 rule. Among those who felt that
the extension was appropriate, many encouraged the agency to take
whatever time necessary to carefully consider the needed adjustments to
the November 2000 rule. Some suggested the agency consider an extension
beyond May 9, 2002. This interim final rule extending the date in
Sec. 219.35(b) will provide the agency and the Department the time
needed to continue the current rulemaking effort to propose and adopt
improvements and adjustments to the November 2000 rule that may be
needed.
Effects of the Interim Final Rule
In light of the reponses the agency received on the May 17, 2001,
proposed rule, and the subsequent delay in publishing a proposed rule
to revise the November 2000 planning rule, the Department is now
extending the compliance date established in 36 CFR 219.35(b) until
such time as a new final planning rule is adopted.
The interim final rule will not alter the timber suitability
provision in 36 CFR 219.35(c). If a suitability analysis must be
prepared before a new planning rule is adopted, the Responsible
Official will continue to have the option of conducting the suitability
review pursuant to either the 1982 rule or Sec. 219.35(c) of the 2000
rule. While most units are not prepared to implement 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. Rather, this interim final rule will maintain the
status quo while the agency proposes and adopts changes to the November
2000 rule to improve its implementability.
The interim final rule also will not alter the transition language
in 36 CFR 219.35(d) that directs site-specific decisions to conform to
the provisions of the planning regulations after November 9, 2003.
However, concerns have been raised by field personnel that the reasons
necessitating an extended transition to the November 2000 rule for
forest plan amendments or revisions may apply equally, if not more, to
the November 9, 2003, deadline for preparing site-specific decisions
under part 219. To address these concerns, the Forest Service expects
to issue a proposed rule later this year and seek public comment on
whether the November 9, 2003, date in 36 CFR 219.35(d), which would
require that site-specific decisions conform to the 2000 rule, should
be extended or whether the provision should be removed.
Exemption From Notice and Comment
The Administrative Procedure Act (APA) generally requires agencies
to provide advance notice and an opportunity to comment on agency
rulemakings. However, the 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)).
[[Page 35433]]
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)). 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.
Earlier in 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
interagency National Fire Plan as directed by Congress. Given the
agency's inability to complete all the actions necessary to meet the
May 9, 2002, deadline, it is impracticable to provide for prior public
comment on this extension. The agency's announced intention to revise
the November 2000 planning rule, as well as previous public comment
opportunities on adjusting the transitional language, are also
important considerations in adopting this interim final rule.
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.
Other Changes
In addition to the 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. This language was also included in the May 17,
2001, interim rule. The changes to Sec. 219.35(b) are also fully
consistent with the other provisions of the interpretive rule.
Conclusion
For the reasons identified in this preamble, the Department finds
good cause to adopt without prior notice and comment this interim final
rule that amends Sec. 219.35(b). This rule extends the date by which
land and resource management plan amendments or revisions must comply
with the November 2000 planning rule from May 9, 2002, until the
Department promulgates a revised final planning rule.
This interim final rule is necessary to grant relief to the units
of the National Forest System that may initiate plan revisions and
amendments after May 9, 2002, but before a new planning rule is
finalized. The interim final rule is also needed to facilitate timely
implementation of site-specific projects that support the interagency
National Fire Plan.
Regulatory Certifications
Regulatory Impact
This is not a significant rule as defined in Executive Order (E.O.)
12866. 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 E.O. 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 the competitive position of
small businesses 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. 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. Moreover, section 31.1b
of Forest Service Handbook 1909.15, Environmental Policy and Procedures
Handbook (57 FR 43180; September 18, 1992), excludes from documentation
in an environmental assessment or impact statement any rule,
regulation, or policy 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 Department 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 November 2000 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 Department has assessed the effects of this interim final
rule on State, local and tribal governments and the private
[[Page 35434]]
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 (1) the States, (2) on
the relationship between the national government and the States, or (3)
on the distribution of power and responsibilities among the various
levels of government. Therefore, the Department has determined that no
further assessment of federalism implications is necessary at this
time.
Additionally, this interim final rule does not have tribal
implications as defined in Executive Order 13175 and, therefore,
advance consultation with tribes was 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.
Energy Effects
This interim final rule has been reviewed under Executive Order
13211 of May 18, 2001, ``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. This interim final rule
merely extends a compliance date and allows the option of using the
1982 or the 2000 planning regulations to guide the amendment or
revision of National Forest System land and resource management plans.
List of Subjects in 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.
* * * * *
(b) Until the Department promulgates the revised final planning
regulations announced in the December 3, 2001, Semiannual Unified
Agenda of Federal Regulatory and Deregulatory Actions, 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,
2001), 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 initiation of a
plan amendment or revision 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, 2002.
David P. Tenny,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 02-12508 Filed 5-17-02; 8:45 am]
BILLING CODE 3410-11-P