[Federal Register Volume 67, Number 97 (Monday, May 20, 2002)]
[Rules and Regulations]
[Pages 35431-35434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-12508]


=======================================================================
-----------------------------------------------------------------------

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