[Federal Register Volume 71, Number 2 (Wednesday, January 4, 2006)]
[Proposed Rules]
[Pages 307-309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-8245]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 219

RIN 0596-AC43


National Forest System Land Management Planning

AGENCY: Forest Service, USDA.

ACTION: Notice of proposed rulemaking; request for comment.

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SUMMARY: The Forest Service is proposing a technical change to the 
transition language contained in the 2005 planning rule (70 FR 1023; 
Jan. 5, 2005). The current transition language

[[Page 308]]

requires plan revisions initiated after January 5, 2005, to conform to 
the requirements in the 2005 planning rule. In response to a court 
order affecting only the Tongass National Forest, the proposed 
amendment would allow the Tongass National Forest to revise its land 
management plan to address the errors identified by the court either 
under the 2005 Rule or the planning regulations in effect before 
November 9, 2000.

DATES: Comments must be received in writing by February 3, 2006. 
Comments received after this date may be considered and placed in the 
record at the discretion of the Forest Service.

ADDRESSES: Send written comments to: USDA FS Planning Rule Technical 
Amendment, P.O. Box 21628, Juneau, AK 99802-1628, Attn: Cherie Shelley; 
via e-mail to planning--rule--technical [email protected]; or by 
facsimile to Planning Rule Technical Amendment Comments at (907) 586-
7852. Comments also may be submitted by following the instructions at 
the Federal eRulemaking portal at http://www.regulations.gov. If 
comments are sent by e-mail or facsimile, the public is requested not 
to send duplicate comments via regular mail. Please confine comments to 
issues pertinent to the proposed rule, explain the reasons for any 
recommended changes and, where possible, reference the specific wording 
being addressed. All comments, including names and addresses when 
provided, are placed in the record and are available for public 
inspection and copying. The agency cannot confirm receipt of comments. 
Persons wishing to inspect the comments need to call (907) 586-8886 to 
facilitate an appointment.

FOR FURTHER INFORMATION CONTACT: Cherie Shelley, Director, Ecosystem 
Planning, Alaska Region, Forest Service, USDA at (907) 586-8887, or 
Dave Barone, Planning Specialist, Ecosystem Management Coordination 
Staff, Forest Service, USDA at (202) 205-1019.

SUPPLEMENTARY INFORMATION: 

Background

    On January 5, 2005, the Department of Agriculture published a final 
planning rule (70 FR 1023) governing the development of land management 
plans required by the National Forest Management Act. The 2005 planning 
regulations provide for a transition period from the previous planning 
regulations (1982 planning rule) to the new regulations (2005 planning 
rule). Specifically, Sec.  219.14 of the 2005 planning rule allows 
plans to be amended under either the 1982 planning rule or the 2005 
planning rule during the transition period; however, newly initiated 
revisions may only use the 2005 planning rule.
    One of the differences between the 1982 planning rule and the 2005 
planning rule is that the former required the development of an 
environmental impact statement (EIS) as part of the process to revise a 
land management plan. On August 5, 2005, the Ninth Circuit Court of 
Appeals issued a decision in Natural Resources Defense Council v. U.S. 
Forest Service, 421 F.3d 797, that found errors in the 1997 Final EIS 
and Record of Decision for the Tongass Land Management Plan. In its 
decision, the court made several statements indicating its intent that 
the Forest Service prepare a new EIS for a plan revision addressing the 
errors identified by the court. For this unique situation, this 
proposed rule will allow the Tongass National Forest to use the 1982 
planning rule to revise its plan to meet the expectations of the U.S. 
Court of Appeals for the Ninth Circuit.
    The Forest Service is seeking public comment on this proposed rule 
to amend 36 CFR 219.14(d)(1) to allow the Tongass National Forest to 
use either the 1982 planning rule or the 2005 planning rule for its 
next revision addressing the court's order.

Regulatory Certifications

Regulatory Impact

    This proposed rule has been reviewed under USDA procedures and 
Executive Order 12866, Regulatory Planning and Review. It has been 
determined that this is not a significant rule. This rule will not have 
an annual effect of $100 million or more on the economy nor adversely 
affect productivity, competition, jobs, the environment, public health 
or safety, nor State or local governments. This rule will not interfere 
with an action taken or planned by another agency nor 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 recipients of such programs. Accordingly, 
this proposed rule is not subject to Office of Management and Budget 
review under Executive Order 12866.

Proper Consideration of Small Entities

    This proposed rule has been considered in light of Executive Order 
13272 regarding proper consideration of small entities and the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), which 
amended the Regulatory Flexibility Act (5 U.S.C. 601 et. seq.). The 
proposed rule would make a technical amendment to the transition 
language of the 2005 planning rule, to allow the Tongass National 
Forest to use either the current planning regulations or the 
regulations in effect before November 9, 2000 for its next land 
management plan revision. An initial small entities flexibility 
assessment has been made, which indicates that the proposed rule will 
impose no additional requirements on the affected public, which 
includes small businesses, small not-for-profit organizations, or small 
units of government. Accordingly, it has been determined that this 
proposed rule will not have a significant economic impact on a 
substantial number of small entities as defined by SBREFA.

No Environmental Impact

    This proposed rule would allow the Tongass National Forest to use 
either the existing planning regulations or the planning regulations in 
effect before November 9, 2000 for the next revision of its land 
management plan to respond to the court's order. As such, the proposed 
rule has no direct and immediate effects regarding the occupancy and 
actual use of the Tongass National Forest. Section 31.12 (2) of Forest 
Service Handbook 1909.15 (57 FR 43168; September 18, 1992) excludes 
from documentation in an environmental assessment or impact statement 
``rules, regulations, or policies to establish Service-wide 
administrative procedures, program processes, or instruction.'' The 
2005 planning regulations are a Service-wide program process. The 
agency's assessment is that this rule falls within this category of 
actions and that no extraordinary circumstances exist which would 
require preparation of an environmental assessment or an environmental 
impact statement.

Energy Effects

    This proposed 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. Procedural in nature, this proposed rule would allow 
the Tongass National Forest to use either the regulations currently in 
place or the planning regulations in effect before November 9, 2000 for 
the next revision of its land management plan to respond to the court's 
order. This plan is a programmatic document that provides guidance and 
information for future project-level resource management

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decisions. The revised plan may designate major rights-of-way corridors 
for utility transmission lines, pipelines, and water canals. The 
effects of such designations on energy supply, distribution, or use 
will be considered at the time such designations are proposed.

Controlling Paperwork Burdens on the Public

    This proposed rule does not contain any additional record keeping 
or reporting requirements or other information collection requirements 
as defined in 5 CFR part 1320 that are not already required by law or 
not already approved for use and, therefore, imposes no additional 
paperwork burden on the public. Accordingly, the review provisions of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its 
implementing regulations at 5 CFR part 1320 do not apply.

Federalism

    The agency has considered this proposed rule under the requirements 
of Executive Order 13132, Federalism. The agency has made a preliminary 
assessment that the rule conforms with the federalism principles set 
out in this Executive orders; would not impose any compliance costs on 
the States; and would 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. Based on comments received on this 
proposed rule, the agency will determine if any additional consultation 
will be needed with State and local governments prior to adopting a 
final rule.

Consultation With Tribal Governments

    This proposed rule does not have tribal implications as defined in 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, and, therefore, advance consultation with tribes is not 
required.

No Takings Implications

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630, and it has 
been determined that the rule does not pose the risk of a taking of 
private property. This proposed rule only allows the Tongass National 
Forest to use either the existing planning regulations or the 
regulations in effect before November 9, 2000 for its next plan 
revision.

Civil Justice Reform

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. The agency has not identified any State or local 
laws or regulations that are in conflict with this regulation or that 
would impede full implementation of this rule. Nevertheless, in the 
event that such a conflict was identified, the proposed rule, if 
implemented, would preempt the State or local laws or regulations found 
to be in conflict. However, in that case, (1) no retroactive effect 
would be given to this proposed rule; and (2) the Department would not 
require the parties to use 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 proposed rule on 
State, local, and Tribal governments and the private sector. This rule 
does not compel the expenditure of $100 million or more by any State, 
local, or Tribal governments 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 
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, the Forest 
Service proposes to amend subpart A of part 219 of title 36 of the Code 
of Federal Regulations as follows:

PART 219--PLANNING

Subpart A--National Forest System Land Management Planning

    1. The authority citation for subpart A continues to read as 
follows:

    Authority: 5 U.S.C. 301; 16 U.S.C. 1604, 1613.

    2. Amend Sec.  219.14 by revising paragraph (d)(1) to read as 
follows:


Sec.  219.14  Effective dates and transition.

* * * * *
    (d)(1) Plan development and plan revisions initiated after January 
5, 2005 must conform to the requirements of this subpart, except that 
the plan for the Tongass National Forest may be revised once under this 
subpart or the planning regulations in effect before November 9, 2000.
* * * * *

    Dated: December 16, 2005.
Dale N. Bosworth,
Chief, USDA Forest Service.
 [FR Doc. E5-8245 Filed 1-3-06; 8:45 am]
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