01-615. National Forest System Land and Resource Management Planning; Review of Decisions To Amend or Revise Plans

AGENCY:

Forest Service, USDA.

ACTION:

Interpretive rule.

SUMMARY:

The Department is adopting this interpretive rule to make explicit its intent regarding the procedure(s) that citizens and entities may use to appeal or object to plan revisions or amendments subsequent to the recent revision of the planning regulations at 36 CFR part 219 and the corollary rescission of the appeal regulations at 36 CFR part 217.

EFFECTIVE DATE:

This interpretive rule is effective January 10, 2001.

ADDRESSES:

Written inquiries about this interpretive rule may be sent to the Director, Ecosystem Management Staff, Forest Service, USDA, P.O. Box 96090, Washington, DC 20090-6090.

FOR FURTHER INFORMATION CONTACT:

Steve Segovia, Assistant Director for Appeals and Litigation, Forest Service; Telephone [phone]; Fax [phone].

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 and removed the administrative appeal of plan decisions at 36 CFR part 217 (65 FR 67514). The revised rule at 36 CFR part 219 establishes requirements for the implementation, monitoring, evaluation, amendment, and revision of land and resource management plans, and affirms sustainability as the overall goal for National Forest System planning and management. The intended effects of the rule are to simplify, clarify, and otherwise improve the planning process. To help achieve these intended effects, § 219.32 of the recently revised planning rule establishes an objection process to replace the appeals process embodied in part 217. Section 219.35 of the recently revised rule provides direction to govern the transition from the previous planning process.

Questions have arisen regarding interpretation and application of administrative appeal and review processes in the context of the transitional language provided in § 219.35. As a consequence, the Department is issuing this interpretive rule which adds a note to appear as an appendix to § 219.35 to explain how these provisions operate together. A description of the matters addressed in this interpretive rule follows.

Terminology. Paragraph (b) of § 219.35 uses the term “initiated” in the context of plan revisions or amendments under way prior to November 9, 2000. The Department is clarifying the term “initiated” to avert misinterpretation of the Department's intended application of the rule. This interpretive rule clarifies that “initiated” refers to the published public notification of a proposed plan amendment or revision.

Options. Paragraph (b) of § 219.35 grants an option to proceed at the responsible official's discretion either under the 1982 regulations in effect prior to November 9, 2000, or under the revised regulations. This interpretive rule makes clear that paragraph (b) specificially includes the option to select either the administrative appeal and review procedures of 36 CFR part 217 in effect prior to November 9, 2000, or the new objection procedures to complete a plan amendment or revision process initiated under the 1982 regulations.

This rulemaking consists of an interpretive rule and is issued by the agency to advise the public of the agency's preexisting construction of one of the rules it administers—that is, 36 CFR 219.35, in the context of National Forest System land and resource management planning. See, e.g., Shalala, Secretary of Health and Human Services v. Guernsey Memorial Hosp., 514 U.S. 87, 99 (1995). Therefore, under 5 U.S.C. 553(b)(A), this rulemaking is exempt from the notice and comment requirements of the Administrative Procedure Act, and, pursuant to 5 U.S.C. 553(d)(2), this rule is effective immediately upon publication in the Federal Register.

Regulatory Impact

It has been determined that this is not a significant rule. This interpretive 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 rulemaking will not interfere with an action taken or planned by another agency, or raise new legal or policy issues. Finally, this rulemaking 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 rulemaking is not subject to Office of Management and Budget (OMB) review under Executive Order 12866. Moreover, this rulemaking has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). It is therefore certified that this rule will not have a significant economic impact on a substantial number of small entities as defined by the Act. This 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 rulemaking has no direct or indirect effect on the environment, but merely clarifies the relationship of certain planning actions to their respective appeal procedures. 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, regulations or policies to establish Service-wide administrative procedures, program processes, or instructions. Based on the nature and scope of this rulemaking, the agency has determined that the interpretive 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 rulemaking has been analyzed in accordance with the principles and criteria contained in Executive Order 12360, and it has been determined that this rule will not pose the risk of a taking of private property, as the interpretive rule is limited to clarification of the transition procedures in the new planning rule.

Civil Justice Reform

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. The 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 rule on State, local and tribal governments and the private sector. This 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.

Controlling Paperwork Burdens on the Public

This 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 Part 219

• Administrative practice and procedure
• Environmental impact statements
• Forest and forest products
• Indians
• Intergovernmental relations
• 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. Add an appendix at the end of § 219.35 to read as follows:

§ 219.35

Transition.

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Appendix A to § 219.35

Interpretive Rule Related to Paragraph 219.35(b)

The Department is making explicit its preexisting understanding of paragraph (b) of this section with regard to the appeal or objection procedures that may be applied to amendments or revisions of land and resource management plans during the transition from the appeal procedures of 36 CFR part 217 in effect prior to November 9, 2000 (See CFR 36 parts 200 to 299, Revised as of July 1, 2000), to the objection procedures of § 219.32 as follows:

1. The option to proceed under the 1982 regulations or under the provisions of this subpart specifically includes the option to select either the administrative appeal and review procedures of 36 CFR part 217 in effect prior to November 9, 2000, or the objection procedures of 36 CFR 219.32.

2. The Department interprets the term “initiated,” as used in paragraph (b) of this section, to indicate that the agency has issued a Notice of Intent or other public notification announcing the commencement of a plan revision or amendment 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.

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Dated: January 4, 2001.

Dan Glickman,

Secretary.