National Forest System Land Management Planning, 307-309 [E5-8245]
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Federal Register / Vol. 71, No. 2 / Wednesday, January 4, 2006 / Proposed Rules
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the First Circuit in Boston Edison 5 to
eliminate uncertainty regarding whether
the Mobile-Sierra ‘‘public interest’’ or
the ‘‘just and reasonable’’ standard
applies in the face of contractual
silence.6 Specifically, the court in
Boston Edison suggested that the
Commission prescribe prospectively the
terms that parties would have to use to
invoke the ‘‘public interest’’ standard.
That is not what the Commission has
done here. Instead of telling contracting
parties what language they can use to
invoke the ‘‘public interest’’ standard,
the Commission provides that the
parties need take no action, nor use any
language, to invoke that standard. Under
the NOPR, the ‘‘public interest’’
standard will be available at all times,
in all circumstances, when the contract
is silent. Thus, a ‘‘public interest’’
standard becomes the default standard,
and the Commission prescribes terms
that parties must include in their
contract to keep their statutory right to
a ‘‘just and reasonable’’ standard. This
turns the statute on its head.
In addition, the NOPR does not
explain that the Boston Edison court
went on to opine that ‘‘FERC has
reasonably broad powers to regulate the
substantive terms of filings that it
accepts and allows to become effective,’’
which may ‘‘include the power to
require prospectively, by regulation that
all contracts set their rates subject to
FERC’s just and reasonable standard.’’ 7
That is the action that the Commission
should be proposing today.
The Commission erroneously relies
on the initial Mobile 8 and Sierra 9 cases
as support for its proposal to default to
the Mobile-Sierra ‘‘public interest’’
standard in FPA section 206 or NGA
section 5 proceedings. The NOPR states
that these cases stand for the
proposition that the Supreme Court
interpreted contractual silence as
requiring the ‘‘public interest’’ standard
of review. The implication is that the
Court requires a ‘‘public interest’’
5 Boston Edison Co. v. FERC, 233 F.3d 60 (1st Cir.
2000).
6 The Boston Edison court noted that even cases
within the D.C. Circuit ‘‘do not form a completely
consistent pattern.’’ Id. at 67, citing Texaco Inc. v.
FERC, 148 F.3d 1091, 1096 (D.C. Cir. 1998) and
Union Pacific Fuels, Inc. v. FERC, 129 F.3d 157,
161–62 (D.C. Cir. 1997) (where the D.C. Circuit,
faced with contracts in which parties did not
expressly state what standard of review would
apply to rate changes initiated by the Commission
held in the former case that the Commission could
only modify the contract under a ‘‘public interest’’
standard but, in the latter case, that the Commission
could apply a ‘‘just and reasonable’’ standard).
7 Boston Edison, 233 F.3d at 68.
8 United Gas Pipe Line Co. v. Mobile Gas Serv.
Corp., 350 U.S. 332 (1956).
9 FPC v. Sierra Pacific Power Co., 350 U.S. 348
(1956).
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standard of review in FPA section 206
and NGA section 5 proceedings initiated
by a buyer or the Commission. That is
not the case. Mobile and Sierra involved
what standard of review should apply
when regulated sellers with contracts
already on file with the Commission
attempted to unilaterally raise the
contractual rate by filing for a new rate
under section 205 and section 4 and
showing that the new rate was just and
reasonable. These cases did not involve
what standard of review should apply
when a buyer or the Commission
challenges the rate on file as unjust and
unreasonable under FPA section 206 or
NGA section 5. Here, the Commission
proposes to bind itself to the stricter
Mobile-Sierra ‘‘public interest’’ standard
of review when acting under section 206
or section 5 where parties are silent as
to the applicable standard of review.
Mobile and Sierra do not support this
proposed action.
The proposed regulation also departs
abruptly from the Commission’s
precedent on what standard of review
applies when the Commission acts sua
sponte or on behalf of non-parties.10 Yet
the NOPR relies on this same precedent
to support its assertion that the
Commission is not bound to employ a
‘‘public interest’’ standard of review
when the Commission undertakes an
initial review of an agreement.11
III. Certainty and Stability in Energy
Markets
I disagree with the NOPR’s assertion
that the proposed regulation will
provide certainty and stability in energy
markets. Adopting a Mobile-Sierra
‘‘public interest’’ standard as the new
default standard of review in section
206 and section 5 proceedings with
respect to these jurisdictional
agreements will inject uncertainty and
instability into the industries. As the
NOPR recognizes, the ‘‘public interest’’
standard of review is not clearly
defined. Courts have variably described
this standard as ‘‘practically
insurmountable’’ 12 and as not being
‘‘considered ‘practically
insurmountable’ in all
circumstances.’’ 13 The First Circuit has
307
opined that ‘‘[i]t all depends on whose
ox is gored and how the public interest
is affected.’’ 14 Adoption of a new,
default ‘‘public interest’’ standard of
review opens the door to uncertainty
and extensive future litigation to resolve
its meaning.
To achieve the goal of certainty and
stability in energy markets, the
Commission should act to preserve the
application of the statutory ‘‘just and
reasonable’’ standard of review as the
default when the parties’ intent is
unspecified or unclear. The ‘‘just and
reasonable’’ standard has been used
extensively over the last 70 years to
review rates, terms and conditions in
both the electricity and gas industries. It
is well-known and well-defined. It has
guided contracting in these industries
for the life of them. It has provided a
clear benchmark against which to draft
a contract and craft performance of that
contract. There is no evidence that this
standard has been a problem for
contracting parties, or for the industries
themselves. There is no evidence that
this standard has been a hindrance to
contract sanctity. In fact, this NOPR
acknowledges as much by proposing to
continue to apply the ‘‘just and
reasonable’’ standard to electric
transmission and gas transportation
service agreements. Certainty and
stability in the electric and gas
industries will only be fostered by
consistent regulation.
Accordingly, for the reasons
discussed above, I respectfully dissent.
Suedeen G. Kelly
[FR Doc. E5–8217 Filed 1–3–06; 8:45 am]
BILLING CODE 6717–01–P
DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 219
RIN 0596–AC43
National Forest System Land
Management Planning
Forest Service, USDA.
Notice of proposed rulemaking;
request for comment.
AGENCY:
10 See
ITC Holdings Corp., 102 FERC ¶ 61,182
(2003); Southern Company Services, 67 FERC
¶ 61,080 (1994); and Florida Power & Light Co., 67
FERC ¶ 61,141 (1994).
11 See NOPR at P 10 & n. 19.
12 Papago Tribal Util. Auth. v. FERC, 723 F.2d
950, 954 (D.C. Cir. 1983), cert. denied, 467 U.S.
1241 (1984).
13 Northeast Utils. Serv. Co., 55 F.3d 686, 692 (1st
Cir. 1995). See also Potomac Electric Power Co. v.
FERC, 210 F.3d 403, 408 (D.C. Cir. 2000) (court
concurring with the First Circuit’s finding that
when acting sua sponte or at the request of a third
party to change rates, the Commission is not bound
PO 00000
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ACTION:
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
to a standard of review that is ‘‘practically
insurmountable’’).
14 55 F.3d at 691.
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308
Federal Register / Vol. 71, No. 2 / Wednesday, January 4, 2006 / Proposed Rules
wwhite on PROD1PC65 with PROPOSAL
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
_amendment@fs.fed.us; 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 https://
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, § 219.14 of the 2005
planning rule allows plans to be
amended under either the 1982
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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
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Frm 00034
Fmt 4702
Sfmt 4702
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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04JAP1
Federal Register / Vol. 71, No. 2 / Wednesday, January 4, 2006 / Proposed Rules
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
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
No Takings Implications
wwhite on PROD1PC65 with PROPOSAL
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.
Authority: 5 U.S.C. 301; 16 U.S.C. 1604,
1613.
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.
2. Amend § 219.14 by revising
paragraph (d)(1) to read as follows:
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Subpart A—National Forest System
Land Management Planning
1. The authority citation for subpart A
continues to read as follows:
§ 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
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309
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]
BILLING CODE 3410–11–P
CHEMICAL SAFETY AND HAZARD
INVESTIGATION BOARD
40 CFR Part 1604
Accident Investigation Initiation Notice
and Order To Preserve Evidence
Chemical Safety and Hazard
Investigation Board.
ACTION: Proposed rule.
AGENCY:
SUMMARY: The Chemical Safety and
Hazard Investigation Board (CSB)
proposes the adoption of the following
regulation that is intended to notify the
owner and/or operator of a facility that
suffers an accidental release as defined
by the Clean Air Act Amendments of
1990, (also referred to here as a
chemical ‘‘accident’’ or ‘‘incident’’), that
the CSB intends to deploy investigators
to its facility, and that relevant evidence
must be preserved. Under this
regulation, site control would remain
the responsibility of the owner and/or
operator of the affected facility.
However, owners/operators are required
by this regulation to exercise care to
ensure that the accident scene and
relevant evidence found therein is
adequately protected from alteration.
DATES: Written comments must be
received on or before February 3, 2005.
ADDRESSES: You may submit written
comments concerning this proposed
rule, by the following method:
• Mail/Express delivery service:
Chemical Safety and Hazard
Investigation Board, Office of General
Counsel, Attn: Christopher Warner,
2175 K Street, NW., Suite 650,
Washington, DC 20037.
FOR FURTHER INFORMATION CONTACT:
Christopher Warner, 202–261–7600.
SUPPLEMENTARY INFORMATION: Preserving
physical evidence at an accident scene
is an important component in all
manner of investigations. In a chemical
accident investigation, securing an
accident scene and preserving the
integrity of the evidence contained
therein is critical, especially where
significant explosions or fires have
destroyed some or much of the relevant
physical evidence at the accident site.
According to one good-practice
guideline on chemical accident
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]]>Agencies
[Federal Register Volume 71, Number 2 (Wednesday, January 4, 2006)]
[Proposed Rules]
[Pages 307-309]
From the Federal Register Online via the Government Printing 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.
-----------------------------------------------------------------------
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 _amendment@fs.fed.us; 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 https://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
[[Page 309]]
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]
BILLING CODE 3410-11-P
