[Federal Register Volume 68, Number 175 (Wednesday, September 10, 2003)]
[Rules and Regulations]
[Pages 53294-53297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22977]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 219

RIN 0596-AC02


National Forest System Land and Resource Management Planning; 
Extension of Compliance Deadline for Site-Specific Projects

AGENCY: Forest Service, USDA.

ACTION: Interim final rule; request for comment.

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SUMMARY: The Department is issuing an interim final rule to extend the 
transition period for site-specific project decisions in the Forest 
Service land and resource management planning regulations adopted 
November 9, 2000. Early in 2001, the Department determined that the 
November 2000 planning regulations needed to be revised, and a proposed 
planning rule was published on December 6, 2002, (67 FR 72770). An 
interim final rule at 36 CFR 219.35(b), published May 20, 2002, (67 FR 
35431), already has extended the transition period for land and 
resource management plan amendments and revisions until the date of 
adoption of new planning regulations. This interim final rule at 36 CFR 
219.35(d) provides the same extension of the transition period for 
site-specific projects. Comments are requested.

DATES: Effective Date: This interim final rule is effective September 
10, 2003.
    Comment Date: Comments must be received in writing by November 10, 
2003.

ADDRESSES: Send written comments to: USDA FS Content Analysis Team, 
Attn: USDA FS Compliance Deadline, P.O. Box 7669, Missoula, MT 59807; 
by electronic mail to [email protected]; or by facsimile to 
Extension of Compliance Deadline at (406) 329-3021. The agency cannot 
confirm receipt of comments. If you intend to submit comments in 
batched e-mails from the same server, please be aware that electronic 
security safeguards on Forest Service and the Department of Agriculture 
computer systems intended to prevent commercial spamming may limit 
batched e-mail access. The Forest Service is interested in receiving 
all comments on this interim final rule, however, so please call (801) 
517-1020 to facilitate transfer of comments in batched e-mail messages. 
Please note that all comments, including names and addresses when 
provided, will be placed in the record and will be available for public 
inspection and copying at the office of the Content Analysis Team, 200 
East Broadway, Room 301, Missoula, MT. Individuals wishing to inspect 
the comments should call Shari Kappel at (406) 329-3022 to facilitate 
an appointment.

FOR FURTHER INFORMATION CONTACT: Dave Barone, Planning Specialist, 
Ecosystem Management Coordination Staff, Forest Service at (202) 205-
1019.

SUPPLEMENTARY INFORMATION:

[[Page 53295]]

Background

    On November 9, 2000, the Secretary of Agriculture adopted a final 
rule substantially revising the National Forest System land and 
resource management planning regulations at 36 CFR part 219 (65 FR 
67514), which had been previously adopted in 1982 (47 FR 43026, 
September 30, 1982). These regulations, which implement the National 
Forest Management Act, apply to the development, revision, and 
amendment of land and resource management plans. The November 2000 
planning rule also applies to site-specific project decisions. Section 
219.35(d) of the 2000 planning rule requires all site-specific project 
decisions made by the responsible official as of November 9, 2003, to 
conform with the provisions of the 2000 planning rule at 36 CFR part 
219.
    Section 219.35 of the 2000 planning rule also provided for a 
transition from the 1982 planning rule to the 2000 planning rule.
    Subsequent to the adoption of the 2000 planning rule, the 
Department determined in early 2001 that there were serious concerns 
regarding the agency's ability to implement the 2000 planning rule, 
such as the number of very detailed analytical requirements; the lack 
of clarity regarding many of the requirements; the lack of flexibility; 
and the lack of recognition of the limits of agency budgets and 
personnel. Therefore, on May 20, 2002, the Department issued an interim 
final rule at Sec.  219.35(b) to delay mandatory compliance with the 
2000 planning rule for land and resource management plan amendments and 
revisions until a new final planning rule is adopted (67 FR 35431); 
this delay would allow the agency time to propose and adopt revisions 
to the 2000 planning rule.
    In the May 20, 2002, Federal Register notice, the Department also 
noted that concerns had been raised by field personnel that the reasons 
necessitating an extended transition to the November 2000 rule for 
forest plan amendments and revisions may apply equally, if not more, to 
the November 9, 2003, deadline for site-specific decisions to conform 
with part 219. At that time, the Department identified that it expected 
to address these concerns by removing the requirement or extending the 
original transition date for site-specific projects.
    A proposed revision of the 2000 planning rule was published on 
December 6, 2002, (67 FR 72770). One change is that this rule, unlike 
the 2000 rule, would not apply to site-specific project decisions.
    This interim final rule at Sec.  219.35(d) provides the same 
extension of compliance deadline for site-specific projects as did the 
2002 interim final rule at Sec.  219.35(b) for plan amendments and 
revisions; until the Department promulgates the final planning 
regulations.

Need for Immediate Action

    The provisions of the 2000 planning rule are unclear regarding the 
relationship of site-specific project decisions to the development of 
landscape goals and information development requirements for addressing 
ecological, social, and ecomonic sustainability. Reviews of the 2000 
planning rule have pointed out the issues and problems related to 
mixing programmatic and project-level planning direction. There is a 
lack of clarity about how projects are to be compliant with the rule. 
This uncertainty and lack of clarity may pose an unreasonable analysis 
burden on field units when planning for site-specific project 
decisions.
    The Department has proposed improvements and revisions to the 2000 
planning rule that would remove the applicability of part 219 to site-
specific project level decisions (67 FR 72770, December 6, 2002). 
Instead, the requirements of the 2002 proposed planning rule would 
apply at the programmatic level only to the development, amendment, and 
revision of land and resource management plans and (unlike the 
requirements of the 2000 planning rule) would not apply to site-
specific projects. Under the 2002 proposed rule, a plan would guide 
site-specific project implementation and project decisions would be 
required to be consistent with the plan, but a plan would not determine 
the selection or implementation of site-specific actions.
    Therefore, the Department has determined that it is necessary to 
extend the transition period at 36 CFR 219.35(d) by which the 2000 
planning rule requires compliance for site-specific project decisions, 
currently set at November 9, 2003, until the promulgation of a final 
planning rule. While it has been anticipated that a final revised 
planning rule would be promulgated by the end of 2003, such a final 
rule may not be adopted by November 9, 2003.
    Accordingly, extension of the transition period at 36 CFR 219.35(d) 
until a final planning rule is adopted is necessary for the following 
reasons: (1) To clarify planning requirements for site-specific project 
decisions; (2) to grant relief to the units of the National Forest 
System from a regulatory provision of the 2000 planning rule soon to be 
made obsolete; and (3) in case the 2002 proposed planning rule is not 
finalized by November 9, 2003.

Exemption From Advance 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 also 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 exemption 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(d) to obtain public comment is impracticable, unnecessary, 
and contrary to the public interest. Earlier in this preamble, the 
Department has made clear that an extension of the compliance date is 
necessary. Given the length of time (usually up to 6 months) it takes 
field units to plan for site-specific project decisions, it is 
impracticable to provide for prior public comment on this extension. 
The agency's publication of a proposed rule in 2002 to revise the 
November 2000 planning rule, and the fact that this

[[Page 53296]]

proposed rule would not apply to site-specific project decisions, is an 
important consideration in adopting this interim final rule. The prior 
identification of this subject in the May 2002 Federal Register notice, 
and the Department's expressed intent to address it, is also an 
important factor.
    The public interest is best served by extending the compliance date 
and avoiding the unnecessary expenditure of agency time and effort to 
comply with a regulatory provision soon to be made obsolete. The 
interim final rule is effective immediately upon publication, although 
the Department will accept comment on the modification of Sec.  
219.35(d).

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(d) to extend the transition date by 
which site-specific project decisions must comply with the November 
2000 Forest Service land and resource management planning regulations, 
from the current deadline of November 9, 2003, until the Department 
promulgates a revised final planning rule. This interim final rule does 
not change any other provisions of the 2000 planning rule.

Regulatory Certifications

Regulatory Impact

    This interim final rule has been reviewed under USDA procedures and 
Executive Order 12866 on regulatory planning and review. It has been 
determined that this is not a significant rule. This interim final rule 
will not have an annual effect of $100 million or more on the economy, 
nor will it 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, nor will it raise new legal or policy 
issues. Finally, this action will not alter the budgetary impact of 
entitlements, grants, user fees, or loan programs, or the rights and 
obligations of beneficiaries of such programs. Accordingly, this 
interim final rule is not subject to Office of Management and Budget 
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.). It has been 
determined that this action will not have a significant economic impact 
on a substantial number of small entities as defined by the act because 
the interim final rule will not impose record-keeping requirements on 
them; it will not affect their competitive position in relation to 
large entities; and it will not affect their cash flow, liquidity, or 
ability to remain in the market. Therefore, a regulatory flexibility 
analysis is not required for this interim final rule.

Environmental Impact

    This interim final rule at Sec.  219.35(d) has no direct or 
indirect effect on the environment, but merely extends the date by 
which site-specific project decisions must conform to the 2000 planning 
rule. The planning regulation (36 CFR part 219) deals with the 
development and adoption of Forest Service land and resource management 
plan decisions. An environmental assessment was completed on the 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 environmental impact statement rules, 
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 Department has determined that this interim final rule falls within 
this category of actions and that no extraordinary circumstances exist 
as currently defined that would require preparation of an environmental 
assessment or environmental impact statement.

Energy Effects

    This interim final rule has been reviewed under Executive Order 
13211, Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use. It has been determined that this interim 
final rule does not constitute a significant energy action as defined 
in the Executive order. Procedural in nature, this interim final rule 
merely extends a compliance date.

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.

Federalism and Consultation and Coordination With Indian Tribal 
Governments

    The Department has considered this interim final rule under the 
requirements of Executive Order 13132 on federalism, and has made an 
assessment that the rule conforms with the federalism principles set 
out in this Executive order; will not impose any compliance costs on 
the States; and will not have substantial direct effects on the States, 
the relationship between the Federal government and the States, or 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.
    Moreover, this interim final rule does not have tribal implications 
as defined by Executive Order 13175, Consultation and Coordination With 
Indian Tribal Governments, and therefore advance consultation with 
tribes was not required.

No Takings Implications

    This interim final rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630, and it has 
been determined that the rule will not pose the risk of a taking of 
private property.

Civil Justice Reform

    This interim final rule has been reviewed under Executive Order 
12988 on 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 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.

List of Subjects in 36 CFR Part 219

    Administrative practice and procedure, Environmental impact

[[Page 53297]]

statements, Indians, Intergovernmental relations, Forest and forest 
products, National forests, Natural resources, Reporting and 
recordkeeping requirements, Science and technology.

0
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

0
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).


0
2. Revise paragraph (d) of Sec.  219.35 to read as follows:


Sec.  219.35  Transition.

* * * * *
    (d) The date by which site-specific decisions made by the 
responsible official must be in conformance with the provisions of this 
subpart is extended from November 9, 2003, until the Department 
promulgates the final planning regulations published as proposed on 
December 6, 2002 (67 FR 72770).
* * * * *

    Dated: September 3, 2003.
David P. Tenny,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 03-22977 Filed 9-9-03; 8:45 am]
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