83 FR 13646 - Forest Service Directives

DEPARTMENT OF AGRICULTURE
Forest Service

Federal Register Volume 83, Issue 62 (March 30, 2018)

This final rule updates the current regulations that establish procedures for public participation in the formulation of standards, criteria, and guidelines applicable to Forest Service programs as required by the Forest and Rangeland Renewable Resources Planning Act of 1974, as amended (FRRRPA). These revisions will provide greater opportunity for public participation in the formulation of such standards, criteria, and guidelines by expanding and better defining the scope of policies subject to such review and utilizing technologies for public engagement that were not available at the time of the last amendment to these regulations in 1984.

[Federal Register Volume 83, Number 62 (Friday, March 30, 2018)]
[Rules and Regulations]
[Pages 13646-13649]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-06130]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 216

RIN 0596-AC65


Forest Service Directives

AGENCY: Forest Service, USDA.

ACTION: Final rule with request for comments.

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SUMMARY: This final rule updates the current regulations that establish 
procedures for public participation in the formulation of standards, 
criteria, and guidelines applicable to Forest Service programs as 
required by the Forest and Rangeland Renewable Resources Planning Act 
of 1974, as amended (FRRRPA). These revisions will provide greater 
opportunity for public participation in the formulation of such 
standards, criteria, and guidelines by expanding and better defining 
the scope of policies subject to such review and utilizing technologies 
for public engagement that were not available at the time of the last 
amendment to these regulations in 1984.

DATES: This rule is effective April 30, 2018. The Forest Service is 
publishing this rule as a final rule with comment. The Forest Service 
will accept written comments on this final rule until close of business 
May 29, 2018. See SUPPLEMENTARY INFORMATION for a description of how 
the Forest Service will respond to comments.

ADDRESSES: Please submit comments via one of the following methods:
    1. Public participation portal (preferred): https://cara.ecosystem-management.org/Public/CommentInput?project=ORMS-1893.
    2. Mail: Office of Regulatory and Management Services, c/o Michael 
Migliori; USDA Forest Service, Mailstop 1150, 1400 Independence Avenue 
SW, Washington, DC 20250.
    3. Email: [email protected].
    4. Fax: 202-649-1161.
    All comments, including names and addresses when provided, are 
placed in the record and are available for public inspection and 
copying. The public may inspect comments received online via an online 
public reading room at https://cara.ecosystem-management.org/Public/ReadingRoom?project=ORMS-1893, or at U.S. Forest Service, Office of 
Management and Regulatory Services, 201 14th St. SW, 2 Central, 
Washington, DC 20024.Visitors are encouraged to call ahead to (202) 
205-1475 to facilitate entry to the building.

FOR FURTHER INFORMATION CONTACT: Michael Migliori, Program Analyst, 
Directives and Regulations, Office of Regulatory and Management 
Services, [email protected], (202) 205-2496. Individuals who use 
telecommunication devices for the deaf may call the Federal Information 
Relay Service at (800) 877-8339 between 8 a.m. and 8 p.m., Eastern 
Time, Monday through Friday.

SUPPLEMENTARY INFORMATION: 

[[Page 13647]]

Background and Explanation of the Final Rule

    The Forest Service will consider revising this rule based on public 
comments received. If the Forest Service determines that no changes to 
the rule are warranted, the Forest Service will publish a notice 
affirming this final rule by September 26, 2018. If the Forest Service 
seeks to incorporate changes based on the public comments, the final 
rule will be revised as appropriate.
    This final rule is promulgated pursuant to section 14(a) of the 
FRRRPA (16 U.S.C. 1612(a)), which provides that the Secretary, in 
exercising his authority [under the Act] and other laws applicable to 
the Forest Service, by regulation, shall establish procedures, 
including public hearings where appropriate, to give the Federal, 
State, and local governments and the public adequate notice and an 
opportunity to comment upon the formulation of standards, criteria, and 
guidelines applicable to Forest Service programs.
    This provision of law has been implemented through 36 CFR part 216, 
published on April 23, 1984. The purpose of that provision is to ensure 
that Federal, State, and local governments and the public have adequate 
notice and opportunity to comment upon the formulation of standards, 
criteria, and guidelines applicable to Forest Service programs.
    Currently, 36 CFR part 216 only applies to directives published in 
the Forest Service Manual, which are policies and guidance for Forest 
Service staff. Part 216 reflects an Agency assumption that the Forest 
Service Handbook--which contains detailed instructions on how to 
implement the Forest Service Manual--is administrative or technical in 
nature, and does not include standards, criteria or guidelines. Over 
the past three decades, however, the complexity of management of the 
National Forest System (NFS) has increased, and the Agency has realized 
that the Forest Service Handbook may contain directives subject to the 
notice and comment requirements of section 14(a) of FRRRPA.
    This final rule revises part 216 to require public notice and 
comment on the formulation of standards, criteria or guidelines 
applicable to Forest Service programs, regardless of whether they are 
published in the Forest Service Manual or Handbook. The part 216 
requirements would not apply to Forest Service directives pertaining to 
law enforcement and investigations; personnel matters; procurement; 
administrative support activities such as budget and finance; business 
operations; and activities undertaken by the Forest Service on behalf 
of other Federal agencies.
    The revision of part 216 will also require the Forest Service to 
establish an internet-based notice and comment system, as notice of 
proposed changes to directives will be posted on a Forest Service-
administered schedule on the agency's national website. While interim 
and final directives are available to the public on the internet, 
revision of part 216 will allow the public to have notice of, and ready 
access to, proposed, directives issued by the Forest Service. By 
utilizing modern technology, the public will be presented with several 
options for submitting comments, including at least one electronic 
means of submittal such as email or through a web form, as well as the 
traditional means of submitting comments by post-mailed letters. The 
process for submitting comments will be specified on the schedule. 
Several supplemental notification methods may also be employed in order 
to communicate about such notice to a broader segment of the public, 
including publishing notices of proposed, interim, and final directives 
in the Federal Register, issuing press releases, or holding public 
meetings. Other similar processes could also be utilized when 
appropriate.
    These revisions are issued as a final rule as provided for in 5 
U.S.C. 553(a)(2) and 553(b)(3)(A) and (B) and (d)(1). The final rule 
does not impose additional burdens on any governmental entity or the 
public but significantly expands the opportunity for all parties to 
comment more readily on Forest Service policies set forth in Forest 
Service directives. These revisions maintain the public's right to 
participate in the formulation of internal standards, criteria, and 
guidelines and expands the options available to the Forest Service as 
it manages this procedural process. These revisions are intended to 
expand the public's awareness and ability to comment upon these 
directives.
    Since certain situations require implementation of standards, 
criteria, and guidelines applicable to Forest Service programs prior to 
completion of the public notice and comment process, this final rule 
continues to allow the use of interim directives that are effective 
upon publication. The same public participation process for proposed 
directives applies to interim directives.
    Use of the Forest Service website for providing notice and comment 
opportunities results in both expanded capacity and actual savings 
(estimated at $72,000-$110,000 over 10 years). The revision has many 
non-economic and non-quantifiable benefits. It will allow the Forest 
Service to reach a broader cross-section of the interested public when 
publishing notice of proposed directives, fostering robust public 
participation.
    The Forest Service solicited input from the public to inform the 
content of this final rule. These outreach efforts included direct 
engagements with State natural resource agencies, Federally-recognized 
Indian Tribes and Alaska Native Corporations, agencies within the 
Department of Agriculture (USDA), and other Federal land management 
agencies. In addition, the Forest Service published a Request for 
Information in the Federal Register, inviting interested members of the 
public to attend an informational webinar and to submit questions, 
comments, and suggestions to a dedicated agency email address (80 FR 
74740 (Nov. 30, 2015)).
    Collectively, the feedback provided in these conversations 
indicated broad support for the use of web-based technology, in 
addition to maintaining traditional, postal-based commenting, to 
improve public participation in the formulation of Forest Service 
directives. No outright opposition to this approach was expressed. 
Several stakeholder groups reiterated the importance of ensuring that 
the web platform used to facilitate the notice and comment process for 
Forest Service directives be accessible, reliable, and user-friendly.
    Several specific provisions were also suggested for inclusion in 
this final rule. For example, representatives from certain State 
agencies requested that the comment period for any directives involving 
an issue of overlapping State and Federal jurisdiction be at least 60 
days to provide States sufficient opportunity to explore the questions 
and formulate meaningful input. To support engagement of 
representatives of public agencies, as well as other communities of 
interest, the revised Part 216 notes that the Forest Service will 
maintain generally on a quarterly basis a schedule of pending and 
proposed directives in a centralized repository on the Forest Service 
website.
    In addition, several stakeholders asked that criteria be 
established to guide the Forest Service's determination as to whether 
point-by-point responses must be issued to individual comments or 
whether issuance of a single summary response to all timely and 
relevant comments is sufficient for a given directive. The Forest 
Service intends to provide a framework, consistent with the Office of 
Management and Budget's Good Guidance Practice Bulletin, for responding 
to comments through revision of the directives that will

[[Page 13648]]

include more detailed guidance on managing public notice and comment.
    For example, Agency response should reflect the nature of public 
comment provided; a high volume of very similar comments may need to be 
handled differently than a small number of very detailed comments. 
There may be situations where no comments are within the scope of the 
proposed policy so no Agency response is needed. The directives will 
ensure that the Agency's approach to responding to comments is 
consistent with FRRRPA requirements and supports transparency, public 
participation and collaboration. While the directives will provide a 
flexible approach to responding to comments, it should be noted that it 
is the Agency's intent that all comments received will be viewable 
through the Forest Service website.

Regulatory Certifications

Environmental Impact

    This final rule updates the process the Forest Service will use in 
implementing section 14(a) of the FRRRPA. Forest Service regulations at 
36 CFR 220.6(d)(2) exclude ``rules, regulations, or policies to 
establish service-wide administrative procedures, program processes, or 
instructions'' from documentation in an environmental assessment or 
environmental impact statement. The Department's assessment is that 
this final rule falls within this category of actions, and that no 
extraordinary circumstances exist that would require preparation of an 
environmental assessment or environmental impact statement.

Regulatory Impact

    This final rule has been reviewed under applicable USDA procedures, 
as well as Executive Order (E.O.) 12866 on regulatory planning and 
review. The Office of Management and Budget (OMB) has designated this 
rule to be significant based on its applicability to a wide segment of 
the public.
    This final rule is not subject to the requirements of E.O. 13771 
(82 FR 9339, February 3, 2017) because this final rule is related to 
agency organization, management or personnel. This final rule will have 
no costs to the public, and result in fiscal savings in the long-run. 
Cost savings will result from expected reductions in utilizing the 
Federal Register for publication; moreover, the final rule allows the 
Forest Service to expand its ability to provide notice and opportunity 
for public comment on directives by posting them on the Agency website, 
even as it reduces publication costs. The Agency estimates it spent 
nearly $39,000 over the last three years on the publication of 
directives in the Federal Register, whereas setting up an email 
subscription service will incur a one-time cost of $24,766. The new 
regulations will result in an annualized cost savings of between $7,431 
to $13,371 per year at 3%, and between $6,807 to $13,157 at 7% using 
the low and high ends of the three years of data on Federal Register 
costs and the annualized cost of CARA over 10 years of $2,904 at 3% and 
$3,528 at 7%.
    The Agency expects to recoup the costs associated with setting up 
the internal software that allows publications of such notices, and 
commenting functionality within 3-4 years and achieve significant long 
term savings, thereafter. Additional cost savings would be realized 
through improved staff efficiency in the time and effort required to 
review and issue directives. Details on the estimated cost savings of 
this final rule can be found in the rule's economic analysis.

Regulatory Flexibility Act

    This final rule has been considered in light of the Regulatory 
Flexibility Act (5 U.S.C. 601-612). The final rule updates the process 
used by the Forest Service in implementing section 14(a) of the FRRPRA 
with regard to the issuance of Forest Service Directives. This final 
rule will not have a significant economic impact on a substantial 
number of small entities as defined by the Act, because the Rule will 
not impose recordkeeping requirements on them. Neither will it affect 
small entities' competitive position in relation to large entities, nor 
would it not affect their cash flow, liquidity, or ability to remain in 
the market.

No Takings Implications

    This final rule has been analyzed in accordance with the principles 
and criteria contained in E.O. 12630. It has been determined that the 
rule would not pose a risk of a taking of private property.

Civil Justice Reform

    This final rule has been reviewed under E.O. 12988 on civil justice 
reform. Upon publication of the final rule, (1) all State and local 
laws and regulations that conflict with this Rule or impede its full 
implementation are preempted; (2) no retroactive effect is given to 
this Rule; and (3) no exhaustion of administrative proceedings before 
parties may file suit in court challenging its provisions is required.

Federalism and Consultation and Coordination With Indian Tribal 
Governments

    The Forest Service has considered this final rule under the 
requirements of E.O. 13132 on federalism, and has determined that the 
rule: Conforms with the principles of federalism set out in the E.O.; 
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 the distribution of power and 
responsibilities among the various levels of government. Therefore, the 
Agency, has determined that no further assessment of federalism 
implications is necessary. This final rule has been considered under 
the requirements of E.O. 13175, Consultation and Coordination with 
Indian Tribal Governments. The Forest Service's Office of Tribal 
Relations has conducted the 120 day consultation period, which ended on 
May 31, 2016.
    Only one Tribe commented on this rule. The comment expressed 
support for expanding the public notification procedures through a 
centralized, internet-based schedule, and reiterated the desire of 
Tribes to receive early and meaningful consultation opportunities on 
applicable policy changes that are separate and distinct from the 
general public participation requirements. It recommended that Tribal 
consultation occur before notice and comment procedures are initiated 
to ensure the general public is commenting on polices that are not in 
conflict with Tribal interests.
    In response to these comments, the Forest Service reiterates its 
commitment to ensuring that consultation procedures are maintained 
according to existing authorities. This regulatory revision makes no 
change to any Tribal consultation policy. This revision seeks to update 
and expand outreach, engagement, and notice of changes to the 
Directives System; as such, the Forest Service is developing electronic 
engagement platforms, and it intends to link to the online Forest 
Service Tribal Relations Consultation Schedule whenever appropriate and 
practicable.

Energy Effects

    This final rule has been reviewed under E.O. 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 E.O. 13211.

[[Page 13649]]

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), the Agency has assessed the effects of this final 
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 any entity in the private 
sector. Therefore, a statement under section 202 of the Act is not 
required.

Controlling Paperwork Burdens on the Public

    This final rule does not contain any recordkeeping or reporting 
requirements or other information collection requirements as defined in 
5 CFR part 1320 that are not already required by law or are not already 
approved for use. Accordingly, the review provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501-3521), and its implementing 
regulations at 5 CFR part 1320, do not apply.

List of Subjects in 36 CFR Part 216

    Administrative practice and procedure, National Forests.

0
Therefore, for the reasons set out in the preamble, the Forest Service 
revises part 216 of title 36 of the Code of Federal Regulations to read 
as follows:

PART 216--PUBLIC NOTICE AND COMMENT FOR STANDARDS, CRITERIA, AND 
GUIDANCE APPLICABLE TO FOREST SERVICE PROGRAMS

Sec.
216.1 Purpose and scope.
216.2 Definition.
216.3 Notice and opportunity for public comment.
216.4 Interim directives.

    Authority: 16 U.S.C. 1612(a).


Sec.  216.1  Purpose and scope.

    (a) This part sets forth the process that the Forest Service will 
use to ensure adequate notice and an opportunity for comment from the 
public, Tribal, State and local governments, and other Federal agencies 
with respect to the formulation in Forest Service directives of 
standards, criteria, and guidelines applicable to Forest Service 
programs. Nothing in this Part restricts the Forest Service from 
providing additional public participation opportunities, including 
public hearings, where appropriate.
    (b) This part applies to the formulation in Forest Service 
directives of standards, criteria, and guidelines applicable to Forest 
Service programs. This part does not apply to Forest Service directives 
pertaining to law enforcement and investigations; personnel matters; 
procurement; administrative support activities such as budget and 
finance; business operations; and activities undertaken by the Forest 
Service on behalf of other Federal agencies. To the extent that any 
other part in this chapter of the Code of Federal Regulations requires 
greater opportunities for the public to participate with respect to 
policymaking or the issuance of directives than are required by this 
part, the other Part shall be controlling.


Sec.  216.2   Definition.

    Directive means the contents of the Forest Service Manual and 
Forest Service Handbooks issued by the Office of the Chief, as 
described at 36 CFR 200.4(c).


Sec.  216.3  Notice and an opportunity for public comment.

    (a) Prior to issuing a final directive subject to this part, the 
Forest Service shall:
    (1) Provide notice to the public of a proposed directive or interim 
directive and provide an opportunity to submit comments during a 
comment period of not less than 30 days in accordance with the 
requirements this section; and,
    (2) Review, consider and respond to timely comments received.
    (b) Notices and comments required by paragraph (a) of this section 
shall:
    (1) Be published on a schedule for proposed directives and interim 
directives maintained by the Forest Service in a centralized repository 
on the Forest Service website.
    (2) Provide a physical mailing address and an internet address or 
similar online resource for submitting comments.
    (c) Notices of final directives shall be published on a schedule on 
the Forest Service website.


Sec.  216.4  Interim directives.

    Upon a finding of good cause that an exigency exists, an interim 
directive may be effective in advance of providing notice and an 
opportunity for public comment. As described in Sec.  216.3, 
opportunity will be given for public comment before the interim 
directive is made final. The basis for the determination that good 
cause exists for the issuance of an interim directive shall be 
published at the time the directive is issued.

    Dated: March 22, 2018.
Daniel James Jiron,
Acting Deputy Under Secretary, Natural Resources and Environment, USDA.
[FR Doc. 2018-06130 Filed 3-29-18; 8:45 am]
 BILLING CODE 3411-15-P