[Federal Register Volume 70, Number 3 (Wednesday, January 5, 2005)]
[Rules and Regulations]
[Pages 1023-1061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 219
RIN 0596-AB86
National Forest System Land Management Planning
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule describes the National Forest System land
management planning framework; establishes requirements for
sustainability of social, economic, and ecological systems and
developing, amending, revising, and monitoring land management plans;
and clarifies that land management plans under this final rule, absent
extraordinary circumstances, are strategic in nature and are one stage
in an adaptive cycle of planning for management of National Forest
System lands. The intended effects of the final rule are to streamline
and improve the planning process by making plans more adaptable to
changes in social, economic, and environmental conditions; to
strengthen the role of science in planning; to strengthen collaborative
relationships with the public and other governmental entities; and to
reaffirm the principle of sustainable management consistent with the
Multiple-Use Sustained-Yield Act and other authorities.
Elsewhere in this part of today's Federal Register, the Department
of Agriculture is simultaneously publishing another final rule to
remove the planning regulations adopted on November 9, 2000.
DATES: Effective Date: This rule is effective January 5, 2005.
ADDRESSES: The following information is posted on the World Wide Web/
Internet at http://www.fs.fed.us/emc/nfma/: (1) This final rule; (2)
supplemental responses to substantive public comments and a description
of the changes, if any, made in response to those comments and the
reasons for those changes to the 2002 proposed rule; (3) the Civil
Rights Impact Analysis for this final rule; (4) the cost-benefit
analysis for this final rule; (5) the business model cost study done to
estimate predicted costs to implement the 2000 planning rule and the
2002 proposed rule, and (6) the notice of proposed National
Environmental Policy Act implementing procedures; request for comment.
This information may also be obtained upon written request from the
Director, Ecosystem Management Coordination Staff, Forest Service,
USDA, Mail Stop 1104, 1400 Independence Avenue, SW., Washington, DC
20250-1104.
FOR FURTHER INFORMATION CONTACT: Dave Barone, Acting Assistant Director
for Planning; Ecosystem Management Coordination Staff (202) 205-1019,
or Regis Terney, Planning Specialist, Ecosystem Management Coordination
Staff (202) 205-1552.
SUPPLEMENTARY INFORMATION:
Table of Contents
1. Forest Service Directives
2. Events Since Publication of the 2002 Proposed Rule
3. Overview of the Final 2004 Rule
Major themes and areas of public comment in the final
rule.
The strategic nature of land management plans.
Role of science in planning.
Public involvement.
Sustainability.
[[Page 1024]]
Environmental management systems and adaptive
management.
National Environmental Policy Act and National Forest
Management Act planning.
Summary.
4. Department Response to Comments on the 2002 Proposed Rule
General Issues.
Issues in Response to a Specific Section.
Section 219.1--Purpose and applicability
Section 219.2--Levels of planning and planning authority
Section 219.3--Nature of land management planning
Section 219.4--National Environmental Policy Act compliance
Section 219.5--Environmental management systems
Section 219.6--Evaluations and monitoring
Section 219.7--Developing, amending, or revising a plan
Section 219.8--Application of a new plan, plan amendment, or plan
revision
Section 219.9--Public participation, collaboration, and notification
Section 219.10--Sustainability
Section 219.11--Role of science in planning
Section 219.12--Suitable uses and provisions required by NFMA
Section 219.13--Objections to plans, plan amendments, or plan
revisions
Section 219.14--Effective dates and transition
Section 219.15--Severability
Section 219.16--Definitions
5. Regulatory Certifications
Regulatory Impact.
Environmental Impacts.
Energy Effects.
Controlling Paperwork Burdens on the Public.
Federalism.
Civil Rights Impact Analysis.
Consultation with Indian Tribal Governments.
No Takings Implications.
Civil Justice Reform.-1
Unfunded Mandates.
1. Forest Service Directives
The Forest Service is developing planning directives to set forth
the legal authorities, objectives, policy, responsibilities, direction,
and overall guidance needed by Forest Service line officers, agency
employees, and others to use this planning rule. A request for public
comment on the Forest Service directives will be published in the
Federal Register as soon as possible after adoption of this final rule.
2. Events Since Publication of the 2002 Proposed Rule
The 2002 proposed rule was released for public review and comment
in Volume 67 of the Federal Register, page 72770, December 6, 2002.
Between February 18-20, 2003, during the comment period, scientists,
experts in public land management issues, resource professionals,
Tribal officials, State officials, local government officials, and the
public participated in a diversity options workshop. In addition, the
public comment period on the 2002 proposed rule was extended from March
6, 2003 to April 7, 2003 (68 FR 10420, Mar. 5, 2003). The agency
received about 195,000 comments, of which approximately 7,000 were
original letters. All of the substantive comments on the 2002 proposed
rule were carefully considered and led to a number of changes in this
final rule.
Also, interim final rules extending the transition from the 1982
planning rule to the 2000 planning rule were published in 2001 (66 FR
27552, May 17, 2001) and 2002 (67 FR 35431, May 20, 2002), the latter
rule allowing Forest Service managers to elect to continue preparing
plan amendments and revisions under the 1982 planning rule until a new
final rule is adopted. Finally, an interim rule was published in 2003
(68 FR 53294, Sept. 10, 2003) extending the date by which site-specific
project decisions must conform with provisions of the 2000 planning
rule until replaced with a new rule. To date, Forest Service officials
have elected to use the 1982 planning rule for all plan development,
amendments, and revisions.
3. Overview of the Final 2004 Rule
This final rule embodies a paradigm shift in land management
planning based, in part, on the Forest Service's 25 years of experience
developing plans under the 1982 planning rule. Having assessed the
current system's flaws and benefits during this extended period, the
Forest Service believes it is time to think differently about National
Forest System (NFS) planning and management. Thus, based on the
agency's expertise and experience, the Forest Service created this
final rule to enable a better way to protect the environment and to
facilitate working with the public. The final rule prioritizes agency
resources to monitoring and, when necessary, provides a process to
change plans to ensure that clean air, clean water, and abundant
wildlife are available for future generations. This final rule allows
the Forest Service to rapidly respond to changing conditions like
hazardous fuels, new science, and many other dynamics that affect NFS
management. Protection and management of the NFS should be based on
sound science, which is fundamental to this final rule.
This final rule assures the public an effective voice in the entire
planning process from beginning to end. Finally, because this final
rule provides for more efficient planning, more resources will be
shifted to the public's expressed priorities, that is, improved
conservation of the forests and grasslands and better responses to the
real threats the forests and grasslands face, such as critical wildfire
danger and invasive species which degrade ecological systems.
To achieve these important goals, plans under this final rule will
be more strategic and less prescriptive in nature than under the 1982
planning rule. Emphasizing the strategic nature of plans under this
rule is the most effective means of guiding NFS management in light of
changing conditions, science and technology. Specifically, plans under
this final rule will not contain final decisions that approve projects
or activities except under extraordinary circumstances. Rather, as
described further below, plans under this final rule will contain five
components, which set forth broad policies to help guide future
decisions on the ground: The plan components are desired conditions,
objectives, guidelines, suitability of areas, and special areas.
Major Themes and Areas of Public Comment in the Final Rule
The major themes of the final rule discussed in this preamble
reflect the public comments received on the 2002 proposed rule. This
final rule sets forth the process for NFS land management planning,
including the requirements for complying with the National Forest
Management Act (NFMA) of 1976 (16 U.S.C. 1600 et seq.) during
development, amendment, and revision of land management plans (plans)
for NFS units, including the national forests, grasslands, prairie, or
other comparable administrative units. The Forest Service has prepared
and revised plans more than 150 times since enactment of NFMA and
expects to complete more than 100 additional plans and revisions during
the next decade. The Forest Service has also been amending plans during
the last 25 years. Based on the experience gained and public comments
on the 2002 proposed rule, the U.S. Department of Agriculture
(Department) has concluded that this final rule should be based on the
following principles and practical considerations:
Plans should be strategic in nature.
The purpose of plans should be to establish goals for forests,
grasslands, and prairies and set forth the guidance to follow in
pursuit of those goals. Such goals can be expressed by describing:
desired conditions, objectives, guidelines, suitability or areas, and
[[Page 1025]]
special areas. Typically, a plan does not include final decisions
approving projects or activities.
Plans must be adaptive and based on current information
and science.
During the 15-year life expectancy of a plan, information, science,
and unforeseen circumstances evolve. It must be possible to adjust
plans and the plan-monitoring program and to react to new information
and science swiftly and efficiently. An environmental management system
(EMS) approach will enhance adaptive planning and should be part of the
land management framework.
Land management planning must involve the public.
Plans are prepared for public lands. Public participation and
collaboration needs to be welcomed and encouraged as a part of
planning. To the extent possible, Responsible Officials need to work
collaboratively with the public to help balance conflicting needs, to
evaluate management under the plans, and to consider the need to adjust
plans.
Plans must guide sustainable management of NFS lands.
The Multiple-Use Sustained-Yield Act (MUSYA) of 1960 (16 U.S.C.
528-531) requires that NFS lands be managed to provide a continuous
flow of goods and services to the nation. To meet this requirement,
plans must focus on providing a sustainable framework--based on social,
economic, and ecological systems--that guides on-the-ground management
of projects and activities, which provide these goods and services.
Planning must comply with all applicable laws,
regulations, and policies.
Planning must comply with all applicable laws, regulations, and
policies, although all these requirements do not need to be restated in
a plan. For example, the Clean Water Act includes requirements for
nonpoint source management programs, to be administered by the States.
The States or the Forest Service then develops Best Management
Practices (BMPs) for use in design of projects or activities on NFS
lands. BMPs are designed to meet State water quality standards and are
intended to result in prevention of adverse consequences. Specific BMPs
do not have to be repeated in the plan to be in effect and applicable
to National Forest System projects and activities.
The Strategic Nature of Land Management Plans
Land management plans are strategic in nature. A plan establishes a
long-term management framework for NFS units. Within that framework,
specific projects and activities will be proposed, approved, and
implemented depending on specific conditions and circumstances at the
time of implementation. The U.S. Supreme Court described the nature of
NFS plans in Ohio Forestry Ass'n v. Sierra Club, (523 U.S. 726, 737
(1998)) explaining that plans are ``tools for agency planning and
management.'' The Court recognized that the provisions of such plans
``do not command anyone to do anything or to refrain from doing
anything; they do not grant, withhold, or modify any formal legal
license, power, or authority; they do not subject anyone to any civil
or criminal liability; they create no legal rights or obligations''
(523 U.S. 733 (1998)).
The Supreme Court also recently recognized the similar nature of
land management plans for public lands under the jurisdiction of the
Bureau of Land Management (BLM) in Norton v. Southern Utah Wilderness
Alliance, 124 S.Ct. 2373 (2004). The Supreme Court again observed that
``land use plans are a preliminary step in the overall process of
managing public lands--`designed to guide and control future management
actions and the development of subsequent, more detailed and limited
scope plans for resources and uses.' '' In addition, ``a land use plan
is not ordinarily the medium for affirmative decisions that implement
the agency's `project[ion]s.' '' Like a NFS land management plan, a BLM
plan typically`` `is not a final implementation decision on actions
which require further specific plans, process steps, or decisions under
specific provisions of law and regulations.' '' ``The BLM's * * * land
use plans are normally not used to make site-specific implementation
decisions.'' The Supreme Court acknowledged that plans are ``tools by
which `present and future use is projected' [and] * * * generally a
statement of priorities,'' 124 S.Ct. 2373 (2004).
Under the Final Rule, plans will continue to be strategic in
nature, as described by the Supreme Court in Ohio Forestry and SUWA. As
described below, the five components of a plan under the Final Rule do
not authorize project and activity decisions, but rather characterize
general future conditions and guidance for such decisions. Only in
extraordinary circumstances will project and activity decisions be
implemented at the time of a plan development, revision, or amendment.
Planning documentation.
The final rule requires a Plan Document or Set of Documents to
contain all information relevant to the planning and EMS processes. A
Plan Document or Set of Documents includes: (1) Evaluation reports
that, among other things, document the public involvement process in
planning; (2) the plan, including applicable maps; (3) the plan
approval document; (4) National Environmental Policy Act of 1969 (NEPA)
documents; (5) the monitoring program for the plan area; (6) documents
relating to the environmental management system (EMS) established for
the unit; and (7) documentation of how science was taken into account
in the planning process.
Plan components.
The 2002 proposed rule used the term ``management direction'' to
describe the parts of a plan. This final rule uses the term ``plan
components'' to describe the elements of the plan pursuant to the final
rule. How plans are characterized and plan components operate has
evolved over the years. This evolution has occurred through an ongoing
evaluation of the role plans play, how plans guide projects, how plans
by themselves do or do not have impacts on the ground, how current
plans enable or restrict decisions to respond to changing circumstances
and science, and how more active and structured monitoring provides
better information to amend or revise plans as needed. Proposals for
action to accomplish plan goals and desired conditions, with effects
that can be meaningfully evaluated and which may be significant,
generally are made at the project and activity stage.
Through this evaluation, the agency has concluded that plans are
more effective if they include more detailed descriptions of desired
conditions, rather than long lists of prohibitive standards or
guidelines or absolute suitability determinations developed in an
attempt to anticipate and address every possible future project or
activity and the potential effects they could cause. Under this final
rule, plans have five principal components (Sec. 219.7(a)(2)): desired
conditions, objectives, guidelines, suitability of areas, and special
areas.
Desired Conditions.
Desired conditions are the social, economic, and ecological
attributes toward which management of the land and resources of the
plan area is to be directed. Desired conditions are long-term in nature
and aspirational, but are neither commitments nor final decisions
approving projects and activities. Desired conditions may be achievable
only over a period longer than the 15 years covered by the plan.
The increased attention to fire regimes provides an example of the
role of
[[Page 1026]]
``desired conditions.'' The Forest Service is challenged with unnatural
fuel levels throughout the NFS. Much of the western United States is
currently in a severe drought cycle, and fuel reduction is needed. To
facilitate moving toward a healthier and more natural condition on the
land, a plan could contain, for example, desired conditions that
include a description of desired fuel loading, along with a description
of desired tree species, structure, distribution, and density closer to
what would have occurred under natural fire regimes.
The agency, working with the public, also may seek to achieve or
maintain desired conditions for attributes, such as quietness, or a
sense of remoteness, or attributes of our cultural heritage. Desired
conditions also have a key role to play for wildlife habitat
management. During plan development, it is difficult to envision all
the site-specific factors that can influence wildlife. For example, in
the past plans might have included standards precluding vegetation
treatment during certain months or for a buffer for activities near the
nest sites of birds sensitive to disturbance during nesting. However,
topography, vegetation density, or other factors may render such
prohibitions inadequate or unduly restrictive in specific situations. A
thorough desired condition description of what a species needs is often
more useful than a long list of prohibitions. Thorough desired
condition descriptions are more useful because they provide a better
starting point for project or activity design, when the site-specific
conditions are better understood and when species conservation measures
can be most meaningfully evaluated and effectively applied. Again, a
description of what the agency, working with the public, wants to
achieve is key.
Objectives.
Objectives are concise projections of intended outcomes of projects
and activities to contribute to maintenance or achievement of desired
conditions. Objectives are measurable and time-specific and, like
desired conditions, are aspirational, but are neither commitments nor
final decisions approving projects and activities. Application of
objectives is the same as applied under the 1982 planning rule.
Guidelines.
Guidelines provide information and guidance for the design of
projects and activities to help achieve objectives and desired
conditions. Guidelines are not commitments or final decisions approving
projects and activities. Guidelines should provide the recommended
technical and scientific specifications to be used in the design of
projects and activities to contribute to the achievement of desired
conditions and objectives. They are the guidance that a project or
activity would normally apply unless there is a reason for deviation.
If deviation from plan guidelines is appropriate in specific
circumstances, the rationale for deviation should be based on project
or activity analysis and explained fully in the project decision
document. However, deviation does not require an amendment to the plan.
In the National Forest Management Act (NFMA) of 1976 (16 U.S.C.
1600 et seq.), the terms ``standards'' and ``guidelines'' are both
used, with no apparent distinction between them with respect to their
force and effect. In the 1982 planning rule and the first round of
plans, the two terms were usually written together as ``standards and
guidelines.'' Some plan revisions have designed mandatory provisions as
``standards'' and general direction with latitude for implementation as
``guidelines.'' The 2000 planning rule did not use the term
``guidelines.'' In the 2000 planning rule, a provision that is labeled
as a standard could be either mandatory or discretionary depending upon
its wording and the scope of its requirements.
The 2002 proposed rule, consistent with the approach in the 2000
planning rule, continued to use only the term ``standards'' and did not
use the term ``guidelines.'' However, in line with and to clarify the
strategic nature of plans, this final rule instead adopts the term
``guidelines'' and has removed the term ``standards'' as a plan
component. The Department decided to employ the term ``guideline'' to
reflect a more flexible menu of choices consistent with the nature of
plans set forth in this rule.
In this final rule, guidelines are described as ``information and
guidance for project and activity decisionmaking.'' Guidelines will not
contain final decisions approving activities and uses. A Responsible
Official has the discretion to act within the range of guidelines, as
well as the latitude to depart from guidelines when circumstances
warrant it. In the latter case, the Responsible Official should
document the rationale for taking such exception to guidelines.
Suitability of areas.
Suitability of areas is the identification of the general
suitability of an area in an NFS unit for a variety of uses. Areas may
be identified as generally suitable for uses that are compatible with
desired conditions and objectives for that area. The identification of
an area as generally suitable for a use or uses is neither a commitment
nor a decision approving activities and uses. The suitability of an
area for a specific use or activity is authorized through project and
activity decisionmaking.
Suitable use identification has evolved over time. Suitable use
identification has often been characterized in plans prepared under the
1982 planning rule as permanent restrictions on uses or permanent
determinations that certain uses would be suitable in particular areas
of the unit over the life of the plan. However, even under the 1982
planning rule, these identifications were never truly permanent, unless
they were statutory designations by Congress. It became apparent early
in implementation of the 1982 planning rule that plan suitability
identifications, like environmental analysis itself, always
necessitated site-specific reviews when projects or activities were
proposed.
For example, on lands identified as generally suitable for timber
production, site-specific analysis of a proposal could identify a
portion of that area as having poor soil or unstable slopes. The
project design would then exclude such portions of the project area
from timber harvest. Thus, the final determination of suitability was
never made until the project or activity analysis and decision process
was completed. This final rule better characterizes the nature and
purpose of suitability identification.
An illustration of the effect of suitability identifications in the
final rule may be helpful. Under this final rule, a plan may identify
certain portions of an NFS unit as suitable for some uses. For example,
some areas of an NFS unit may be suitable for transportation
development or motorized use. Identification of an area in a plan as
suitable for transportation development or motorized use does not mean
that construction of a road is immediately approved or is even
inevitable. Rather, the identification merely provides guidance for
where road construction may be considered suitable. Proposed projects
for construction of a road or roads would be approved after appropriate
project-specific National Environmental Policy Act (NEPA) analysis and
public involvement.
This final rule, as discussed next in this preamble, also includes
specific provisions for identification of lands generally suitable for
timber harvest and identification of lands not suitable for timber
production as required by NFMA. However, under this final rule, other
generally suitable uses may be identified in a variety of ways. A land
[[Page 1027]]
management plan may identify all uses that are generally suitable for a
particular area, may identify the major or most prominent generally
suitable uses, and/or may identify criteria to be used to determine
whether a use is compatible with the desired condition of the area.
Special areas.
Special areas are areas within the NFS designated for their unique
or special characteristics. These areas include wilderness, wild and
scenic river corridors, and research natural areas. Some of these areas
are statutorily designated. Other areas may be designated through plan
development, amendment, revision, or through a separate administrative
process with an appropriate NEPA process.
Monitoring.
The monitoring program is a central element of adaptive management
planning in this final rule because monitoring is the key to
discovering how to make project specific decisions consistent with
objectives and to discovering what ultimately may need to be changed in
a plan. Experience has shown that while some monitoring programs and
specific monitoring techniques have been adequate to assess need for
changes in plans of national forests, grasslands, prairie, or other
comparable administrative units over time, some have not. New uses,
such as mountain biking, were not contemplated 25 years ago. Noxious
weeds can infest a previously pristine landscape. New methods of
measuring water quality or wildlife habitat can be developed.
Therefore, a unit's monitoring program must be readily adaptable too.
Most plans revised under the 1982 planning rule, in fact, have removed
most monitoring operational details from the plans themselves to allow
for quicker changes to monitoring when needed.
The final rule allows the plan's monitoring program to be changed
with administrative corrections, instead of amendments, to more quickly
reflect the best available science and account for unanticipated
changes in conditions. Changes in monitoring programs will be reported
annually, and the Responsible Official has flexibility to involve the
public in a variety of ways to develop program changes.
Streamlining the planning rule and use of the Forest
Service Directive System.
Part of the strategic and adaptive nature of planning is to make
the planning rule itself more strategic and adaptive. Therefore,
procedural and technical details are being moved to the Forest Service
Directive System (Forest Service directives). Forest Service directives
are the primary basis for the Forest Service's internal management of
all its programs and the primary source of administrative direction to
Forest Service employees. The Forest Service Manual (FSM) contains
legal authorities, objectives, policies, responsibilities,
instructions, and guidance needed on a continuing basis by Forest
Service line officers and primary staff to plan and execute programs
and activities. The Forest Service Handbook (FSH) is the principal
source of specialized guidance and instruction for carrying out the
policies, objectives, and responsibilities contained in the FSM.
The public will have an opportunity to comment on both the FSM and
FSH provisions to implement this final rule. The FSH and FSM provisions
will be issued as soon as possible after release of this final rule.
Thereafter, the agency will provide the public an opportunity to
comment on future changes to the adopted provisions where there is
substantial public interest or controversy concerning the future
changes.
Role of Science in Planning
The 2002 proposed rule would have required that Forest Service
decisions be consistent with the best available science. The final rule
requires that the Responsible Official take into account the best
available science (Sec. 219.11). The actual process for taking into
account science in planning has not changed from the 2002 proposed
rule. Under the final rule, science, while only one aspect of
decisionmaking, is a significant source of information for the
Responsible Official. When making decisions, the Responsible Official
also considers public input, competing use demands, budget projections,
and many other factors as well as science.
The final rule, like the 2002 proposed rule, states that the
Responsible Official may use independent peer reviews, science advisory
boards, or other appropriate review methods to evaluate the application
of science used in the planning process. Specific procedures for
conducting science reviews will be provided in the Forest Service
directives.
The Responsible Official must take into account the best available
science, and document in the plan that science was considered,
correctly interpreted, appropriately applied, and evaluate and disclose
incomplete or unavailable information, scientific uncertainty, and
risk. This evaluation and disclosure of uncertainty and risk provide a
crosscheck for appropriate interpretation of science and helps clarify
the limitations of the information base for the plan.
Public Involvement
The final rule is similar to the 2002 proposed rule regarding
public involvement requirements, but the final rule more clearly
expresses the Department's emphasis on public involvement and
collaboration. The final rule clarifies requirements regarding public
involvement in the 2002 proposed rule by consolidating these
requirements contained in several sections of the 2002 proposed rule
into Sec. 219.9, which requires consultation with interested
individuals and organizations, State and local governments, Federal
agencies, and federally recognized Indian Tribes.
The Department expects that, compared with prior planning rules,
this final rule will allow more members of the public to be more
effectively engaged because development of a plan, plan amendment, or
plan revision will be simpler, more transparent, and faster. The public
will have the opportunity to be engaged collaboratively in the
development, amendment, or revision of a plan, in monitoring and in the
unit's environmental management system (EMS). In addition, the public
will have an opportunity to comment on a plan, plan amendment, or plan
revision, and to object prior to approval if concerns remain.
The final rule requires opportunities for public involvement in the
unit's land management planning process (Sec. 219.9) and in monitoring
(Sec. 219.6(b)(3)). In response to public comments on the 2002
proposed rule, the final rule eliminates the prohibition on the use of
duplicative materials, such as form letters, when filing an objection
to a plan, thus removing a perceived barrier to wider public
participation (Sec. 219.13).
One of the more important changes in public involvement is how the
Forest Service will work with the public to collaboratively develop,
amend, or revise a plan. The Forest Service has found that the
traditional way of developing plan alternatives under the 1982 planning
rule was not very useful. The traditional approach of developing and
choosing among discrete alternatives that were carried throughout the
entire planning process often proved divisive, because it often
maintained adversarial positions, rather than helping people seek
common ground.
To overcome this tendency, the final rule allows an iterative
approach to planning. The Department recognizes
[[Page 1028]]
that people have many different ideas about how NFS lands should be
managed. Furthermore, a plan could potentially include a variety of
different desired conditions, objectives, identification of potential
suitable uses, guidelines, and special area designations. The
Department also recognizes that the public should be involved in
determining what plan components should be. Therefore, the final rule
provides for participation and collaboration with the public at all
stages of plan development, plan amendment, or plan revision.
The Responsible Official and the public will review the various
options to respond to the need to change the plan, and together they
will successively narrow potential options until a proposed plan is
developed. However, the final rule also recognizes that it is not
always possible or desirable to present only one proposed plan for
public comment and, therefore, options to the proposed plan can be
provided for public comment when appropriate.
The process for plan development will be transparent to the public.
Key steps in development of the proposed plan will be documented in the
Plan Document or Set of Documents, which will be available to the
public. While the final rule requires the Responsible Official to
collaborate with the public and that a record of that collaboration be
kept, it does not require in-depth social, economic, or ecological
analysis of every potential option for a plan. In-depth analysis,
documented in an evaluation report, is required only for the proposed
plan and the options that remain after public collaboration.
The plan approved by the Responsible Official will be a result of
public participation and collaboration that will have included
consideration of a variety of different ways to manage a national
forest, grassland, prairie, or other comparable administrative unit.
Although the Responsible Official will continue to have the
responsibility and the authority to make the final decision, the
proposed plans that the Forest Service will present for public comment
will be plans jointly and collaboratively developed with the public.
The Department hopes this approach to plan development will serve to
encourage people to work together to understand each other and find
common solutions to the important and critical planning issues the
agency faces. In summary, the final rule emphasizes collaboration and
provides for effective public involvement.
Sustainability
This final rule retains the concept of the interdependent social,
economic, and ecological elements of sustainability (Sec. 219.10) in
the 2002 proposed rule. However, the final rule does not include many
of the specific analytical processes and requirements set out in the
2002 proposed rule. Appropriate processes will be included in the
Forest Service directives. The Department believes it is more
appropriate to put specific procedural analytical requirements in the
Forest Service directives rather than in the rule itself so that the
analytical procedures can be changed more rapidly if new and better
techniques emerge. As for other portions of the Forest Service
directives, public notice and comment is required where there is
substantial public interest or controversy.
As did the 2000 planning rule and the 2002 proposed rule, the final
rule makes sustainability the overall goal for NFS planning. Managing
NFS lands for sustainability of their renewable resources meets the
MUSYA mandate that the Secretary develop and administer the renewable
surface resources of the National Forests for multiple use and
sustained yield (16 U.S.C. 529). Managing for sustainability will
provide for management of the various renewable resources without
impairment of the productivity of the land, as required by the MUSYA.
Sustaining the productivity of the land and its renewable resources
means meeting present needs without compromising the ability of those
lands and resources to meet the needs of future generations. The final
rule is similar to the 2002 proposed rule for social and economic
sustainability requirements. However, as stated, there are changes from
the 2002 proposed rule for ecological sustainability.
NFMA requires guidelines for land management plans which provide
for diversity of plant and animal communities (16 U.S.C. 1604
(g)(3)(B)) based on the suitability and capability of the land area to
meet overall multiple-use objectives. Almost 30 years after passage of
the NFMA, the concepts of biological diversity at different spatial and
temporal scales, including genetic diversity, species diversity,
structural diversity, and functional diversity have been substantially
refined and developed. Today, the agency has a vast array of methods
available to provide for diversity. The complexity of biological
diversity often results in a corresponding complicated array of
concepts, measures, and values from several scientific disciplines.
The Department developed the final rule based on the following
concepts related to diversity. First, maintenance of the diversity of
plant and animal communities starts with an ecosystem approach. In an
ecosystem approach, the plan will provide a framework for maintaining
and restoring ecosystem conditions necessary to conserve most species.
Second, where the Responsible Official determines that the
ecosystem approach does not provide an adequate framework for
maintaining and restoring conditions to support specific federally
listed threatened or endangered species, species-of-concern, and
species-of-interest, then the plan must include additional provisions
for these species. This final rule defines species-of-concern as those
species for which the Responsible Official determine that continued
existence is a concern and listing under the Endangered Species Act
(ESA) may become necessary. This final rule defines species-of-interest
as those species for which the Responsible Official determines that
management actions may be necessary or desirable to achieve ecological
or other multiple-use objectives. Forest Service directives will
identify lists of species developed by an objective and scientifically
credible third party, such as the U.S. Fish and Wildlife Service or
NatureServe (http://www.natureserve.org/).
Third, agency managers should concentrate their efforts on
contributing to the persistence of species where Forest Service
management activities may affect species rather than on species
management where the cause of species decline is outside the limits of
agency authority or the capability of the plan area.
Fourth, the presence of all native and desired non-native species
in a plan area is important. However, the Responsible Official should
have the flexibility to determine the degree of conservation to be
provided for the species that are not in danger of ESA listing, to
better balance the various multiple uses, including the often-competing
needs of different species themselves.
Fifth, the planning framework should provide measures for
accounting for progress toward ecosystem and species diversity goals.
The final rule and the Forest Service directives provide a framework
within which efforts to maintain and restore species will be monitored.
Progress toward desired conditions and objectives will be monitored and
the results made available to the public. The adaptive monitoring and
feedback process will help maintain and improve diversity.
[[Page 1029]]
The 2002 proposed rule included two different approaches to the
NFMA diversity requirement labeled ``Option 1'' and ``Option 2'' and
asked for comments on both options. The agency also hosted a workshop
to provide an opportunity for public discussion of these options and
for identification of other ideas on how to best meet the statutory
diversity requirement. An extremely wide range of opinions was
expressed, both in public comments and during the workshop. The
Department found these comments useful in developing a scientifically
credible and realistic approach for this final rule and the Forest
Service directives to meet legal requirements and the agency's
stewardship responsibilities.
The final rule incorporates features of both Options 1 and 2. In
common with both options, the final rule approaches diversity at two
levels of ecological organization: the ecosystem level and the species
level. This concept has considerable support among scientists, has
already been tested by a number of NFS administrative units developing
or revising plans under the 1982 planning rule, and was included in the
planning rule adopted in 2000.
The final rule is less detailed than either Options 1 or 2 with
respect to specific ecosystem analysis requirements. After reviewing
public comments, and after consideration of the Forest Service's
experience with planning over the past 25 years, the Department
concluded that such detail regarding analysis is more properly included
in the Forest Service directives. These directives can be more
extensive and can be more easily changed as the agency learns how to
improve its analytic processes and as new scientific concepts and new
technological capabilities become available.
In common with Options 1 and 2, the final rule focuses on ecosystem
diversity as the primary means of providing for the diversity of plant
and animal communities. The final rule differs from Option 2 in not
explicitly requiring analysis of ecosystem diversity at multiple
temporal and spatial scales, analysis of disturbance regimes, or
analysis of the landscape context. Guidance on appropriate analysis
will be included in the Forest Service directives. The agency will seek
public comment on this guidance.
Another point in common between this final rule and Options 1 and 2
is the concept that the more effective the ecosystem management
guidance is in sustaining species habitat, the less need there is for
analysis and planning at the species level of ecological organization.
Option 1, Option 2, and this final rule all recognize that some
additional analysis and additional plan provisions may be needed for
some species. However, the final rule differs from Option 1 in that it
does not include a requirement to provide for viable populations of
plant and animal species. Such a requirement had previously been
included in both the 1982 planning rule and the 2000 planning rule.
The species viability requirement was not adopted for several
reasons. First, the experience of the Forest Service under the 1982
planning rule has been that ensuring species viability is not always
possible. For example, viability of some species on NFS lands may not
be achievable because of species-specific distribution patterns (such
as a species on the extreme and fluctuating edge of its natural range),
or when the reasons for species decline are due to factors outside the
control of the agency (such as habitat alteration in South America
causing decline of some Neotropical birds), or when the land lacks the
capability to support species (such as a drought affecting fish
habitat).
Second, the number of recognized species present on the units of
the NFS is very large. It is clearly impractical to analyze all
species, and previous attempts to analyze the full suite of species via
groups, surrogates, and representatives have had mixed success in
practice.
Third, focus on the viability requirement has often diverted
attention and resources away from an ecosystem approach to land
management that, in the Department's view, is the most efficient and
effective way to manage for the broadest range of species with the
limited resources available for the task.
Requirements for species population monitoring are not included in
this final rule. Population data are difficult to obtain and evaluate
because there are so many factors outside the control of the Forest
Service that affect populations. The Department believes that it is
best to focus the agency's monitoring program on habitat on NFS land
where the agency can adjust management to meet the needs of certain
species. Desired conditions are often a focus of the monitoring
program. The agency will identify species-of-concern and species-of-
interest (Sec. 219.16). Where ecological conditions for these species
are identified as desired conditions, the habitat could be monitored to
assist in avoiding future listing of these species. However, the final
rule does not preclude population monitoring. Plans may include
population monitoring as appropriate.
In summary, in compliance with NFMA, the ecological sustainability
provisions in the final rule provide the foundation for the plan to
provide for diversity of plant and animal communities. The final rule
provides a complementary ecosystem and species diversity approach for
ecological sustainability. The final rule at Sec. 219.7(a)(2)
establishes requirements for developing plan components to guide
projects and activities. All parts of the land management framework,
including plan components, monitoring, and plan adjustment, are
designed to work together to contribute to sustainability.
Environmental Management Systems and Adaptive Management
Adaptive management and land management planning.
Plans must adapt to ever-changing conditions. Agency policy may
change, new laws may be enacted, or court decisions can change
interpretation of existing laws. Fires, invasive species, or outbreaks
of insects or disease can substantially change environmental
conditions. Changes in market conditions or public values may shift the
demand for specific goods and services. Scientific findings can change
our understanding of the environment and of the effects of specific
management activities. Better monitoring techniques or ways to achieve
objectives may be found. Land management plans must reflect the fact
that change and uncertainty are inevitable. Consequently, plans must
allow for quick response to these ever-changing conditions.
The National Association of Professional Forestry Schools and
Colleges and others commented on the 2002 proposed rule regarding the
importance, from the scientific perspective, of using adaptive
management when dealing with complex ecosystems. In 1999, the Committee
of Scientists developed recommendations that strongly encouraged the
use of adaptive management. The Committee of Scientists recommended
setting a high priority on developing ongoing analyses that are based
on monitoring to continually adjust or change land management planning
decisions. In response to these comments and recommendations for a
greater emphasis on and commitment to adaptive management, the
Department has chosen to include environmental management systems (EMS)
in the land management framework.
The adaptive management approach includes land management plans
along
[[Page 1030]]
with comprehensive evaluations, an environmental management system,
monitoring, evaluation, and research. Adaptive management requires
careful coordination of the work performed through these programs. It
does not require equal emphases among these various programs, but
rather requires organizational learning, an active pursuit of best
available scientific information, evaluation and disclosure of
uncertainties and risks about scientific information, and a response to
change.
A land management plan starts the adaptive management cycle.
Managers then pursue ways to achieve desired conditions and objectives
described in the plan. The comprehensive evaluation may describe the
risks and uncertainties associated with implementing the plan. Managers
prioritize risks and develop strategies to control them.
Monitoring and evaluations check for status and change across the
administrative unit. Monitoring results may show that the desired
conditions are not being achieved through projects. This may trigger
future project changes to reach desired conditions. Alternatively,
monitoring results may lead to conclusions that the land management
plan should be changed through a plan amendment.
Research is an important part of adaptive management. Through
experimentation, researchers investigate cause and effect relationships
of management practices on the environment. Experiments test hypotheses
and researchers develop reliable knowledge about effects of management
practices. The new information may be used to amend plans, change
project level work, or update an environmental management system.
Land management plans, adaptive management, and
environmental management systems.
This final rule requires each national forest, grassland, prairie,
or other comparable administrative unit to develop and implement an EMS
based on the international consensus standard published by the
International Organization for Standardization as ``ISO 14001:
Environmental Management Systems--Specification With Guidance For Use''
(ISO 14001). Each unit's EMS should be designed and implemented to more
efficiently meet legal obligations, including supporting the creation
of effective land management plans, ensuring public participation in
the process, and providing a framework for adaptive management.
The administrative units' EMS will be a systematic approach to
identify and manage environmental conditions and obligations to achieve
improved performance and environmental protection. Each unit's EMS will
identify and prioritize environmental conditions; set objectives in
light of Congressional, agency, and public goals; document procedures
and practices to achieve those objectives; and monitor and measure
environmental conditions to track performance and verify that
objectives are being met. Agency management personnel will regularly
review performance, and information about environmental conditions will
be regularly updated to continually improve land management and
environmental performance.
By systematically collecting and updating information about
environmental conditions and practices (for example, through
monitoring, measurement, research, and public input), the units' EMS
will provide a foundation for effective adaptive management, plan
amendments, or even changing specific project or work practices. The
agency expects that, whenever possible, EMS and land management plan
documentation will be coordinated and integrated to avoid unnecessary
duplication.
The units' EMS will more efficiently meet legal obligations, will
improve public participation in the land management planning process,
and enhance the agency's ability to identify and respond to public
input. Creating a transparent and consistent framework that describes
how units are managed will improve the public's ability to effectively
participate in land management. The units' EMS will not replace any
legal obligations that the agency has under NFMA, MUSYA, NEPA, or any
other statute, nor will the EMS diminish the public's ability to
participate in the land management process or its rights under any law.
To the contrary, EMS will significantly improve the public's ability to
effectively participate in the process.
The agency chose ISO 14001 as the EMS model for several reasons.
First, it is the most commonly used EMS model in the United States and
around the world. This will make it easier to implement and understand
(internally and externally) because there is a significant knowledge
base about ISO 14001. Second, the National Technology and Advancement
Act of 1995 (NTAA) (Pub. L. 104-113) requires that Federal agencies use
or adopt applicable national or international consensus standards
wherever possible, in lieu of creating proprietary or unique standards.
The NTAA's policy of encouraging Federal agencies to adopt tested and
well-accepted standards, rather than reinventing-the-wheel, clearly
applies to this situation where there is a ready-made international and
national EMS consensus standard (through the American National
Standards Institute) that has already been successfully implemented in
the field for almost a decade. Third, it has been a long-standing
policy that Federal agencies implement EMS to improve environmental
performance (Executive Order 13148 issued April 21, 2000 (E.O. 13148),
titled ``Greening the Government Through Leadership in Environmental
Management'' and an April 1, 2002, Memorandum from the Chair of the
Council on Environmental Quality and the Director of the Office of
Management and Budget to the heads of all Federal agencies). Federal
agencies that have been implementing EMS in response to the E.O. 13148
have typically been using ISO 14001 as their model.
The implementation of ISO 14001 in NFS administrative units will
have to reflect the legal and public obligations of the agency, as well
as the environmental conditions and issues relevant to land management,
such as sustainability and long-term issues, including cumulative
effects. For example, while ISO 14001 requires implementing
organizations to identify their ``environmental aspects,''
administrative units implementing their EMS under this rule will
include the concept of environmental conditions in land management
planning in this step. Another example reflecting the legal and public
obligations of the agency is that the units' EMS must include the
public participation requirements of this rule, which are much stronger
than the public communication provisions of ISO 14001. Therefore, the
agency will interpret and implement ISO 14001 in a manner consistent
with the agency's legal obligations, its duty to the public, and the
unique circumstances of land management.
National Environmental Policy Act and National Forest Management Act
Planning
The application of NEPA to the planning process as identified in
this final rule is the next iterative step in an evolution that began
with the promulgation of the 1979 planning rule, revised in 1982. In
developing the NEPA provisions of this final rule, the Department took
into account the nature of the five plan components under this final
rule, experience the agency has gained over the past 25 years from
[[Page 1031]]
developing, amending, and revising land management plans; the
requirements of NEPA and NFMA, the Council on Environmental Quality
(CEQ) regulations, and the comments by the Supreme Court in Ohio
Forestry Ass'n v. Sierra Club and Norton v. Southern Utah Wilderness
Alliance regarding the nature of plans themselves.
The 1979 planning rule required an environmental impact statement
(EIS) for development of plans, significant amendments, and revisions.
This requirement continued in the revised rule adopted in 1982. At the
time, the Forest Service believed that the NEPA document prepared for a
plan would suffice for making most project-level decisions. However,
the agency came to understand that this approach to complying with NEPA
was impractical, inefficient, and sometimes inaccurate. Over the course
of implementing NFMA during the past 25 years, the agency has learned
that environmental effects of projects and activities cannot be
meaningfully evaluated without knowledge of the specific timing and
location of the projects and activities.
At the time of plan approval, the Forest Service does not have
detailed information about what projects and activities will be
proposed over the 15-year life of a plan, how many projects will be
approved, where they will be located, or how they will be designed. At
the point of plan approval, the Forest Service can only speculate about
the projects that may be proposed and budgeted and the natural events,
such as fire, flood, insects, and disease that may occur that will make
uncontemplated projects necessary or force changes in the projects and
the effects of projects that were contemplated. Indeed, the Forest
Service has learned that over the 15-year life of a plan it can only
expect the unexpected.
In the course of completing NEPA analysis on the first generation
of NFMA plans, the Forest Service also became more aware of the
difficulties of scale created by the size of the national forests and
grasslands. The National Forest System includes 192 million acres, and
individual planning units, such as the Tongass National Forest, may be
as large as 17 million acres. These vast landscapes contain an enormous
variety of different ecosystems, which will respond differently to the
same management practices. As the Committee of Scientists said on page
26 of the Committee of Scientists Report:
Because of the wide variation in site-specific practices and
local environmental conditions (e.g., vegetation type, topography,
geology, and soils) across a given national forest or rangeland, the
direct and indirect effects of management practices may not always
be well understood or easily predicted. (Committee of Scientists
Report, March 15, 1999, U.S. Department of Agriculture, Washington,
DC 193 p.)
The result is that it is usually infeasible to do environmental
analysis for a national forest as a whole that is sufficiently site-
specific to allow projects to be carried out without further detailed
NEPA analysis after the plan has been approved.
The agency has found itself preparing much more extensive NEPA
documentation for projects than it had anticipated when it adopted the
1979 and 1982 planning rules. Moreover, the extensive changes to
conditions in the plan area that occurred during the 15-year life of
each plan made it increasingly impractical to tier project-level NEPA
documentation to the plan EIS. The requirements of the 1979 and 1982
planning rules created an inefficient and ineffective system for
complying with NEPA.
The 2000 planning rule furthered the existing presumption of
requiring an EIS for plan development or revision, notwithstanding
concerns raised by the Committee of Scientists. Secretary Glickman
named the Committee of Scientists (COS) on December 11, 1997. The
charter for the COS stated that the Committee's purpose was to provide
scientific and technical advice to the Secretary of Agriculture and the
Chief of the Forest Service on improvements that can be made in the
National Forest System Land and Resource Management Planning Process.
The Committee of Scientists said, on page 117 of the Committee of
Scientists Report:
Perhaps the most difficult problem is that the current EA/EIS
process assumes a one-time decision. The very essence of small-
landscape planning is an adaptive management approach, based upon
monitoring and learning. Although small-landscape planning can more
readily do real-time cumulative effects analysis * * *, this kind of
analysis is difficult to integrate with a one-time decision
approach. Developing a decision disclosure and review process that
is ongoing and uses monitoring information to adjust or change
treatments and activities will need to be a high priority * * *.
(Committee of Scientists Report, March 15, 1999, U.S. Department of
Agriculture, Washington, DC 193 p.)
In addition to concern about timely and accurate disclosure of
environmental effects, the agency's experience with planning has
demonstrated the need to clarify what plans, in fact, actually do.
Neither the 1982 nor the 2000 planning rule clearly described or
contrasted the differences between the effects of plans and the effects
of projects and activities. This has been confusing to the public and
agency employees. As discussed previously in the guidelines and the
suitability discussions, plan components have not been applied or
interpreted consistently throughout the agency and often have been
characterized as the functional equivalent of final project-level
decisions or actions, rather than guidance for projects and activities
over time.
This final rule clarifies that plans will be strategic rather than
prescriptive in nature absent extraordinary circumstances. Plans will
describe the desired social, economic, and ecological conditions for a
national forest, grassland, prairie, or other comparable administrative
unit. Plan objectives, guidelines, suitable uses, and special area
identifications will be designed to help achieve the desired
conditions. While plans will identify the general suitability of lands
for various uses, they typically will not approve projects or
activities with accompanying environmental effects. Decisions approving
projects or activities with environmental effects that can be
meaningfully evaluated will typically be made subsequent to the plan.
In essence, a plan simply is a description of a vision for the future
that coupled, with evaluation, provides a starting point for project
and activity NEPA analysis. Therefore, under this rule approval of a
plan, plan amendment, or plan revision typically will not have
environmental effects.
The formulation of plans under the final rule as being merely
strategic rather than prescriptive is further evident in the five
components of plans under the final rule. As described above, none of
the five components is intended to directly dictate on the ground
decisions which have impacts on the environment. Rather, they state
general guidance and goals to be considered in project and activity
decisions. These five components thus do not have any significant
effect on the environment.
Notwithstanding their strategic nature, approval of a plan, plan
amendment, or plan revision is a final action under the CEQ
regulations. Further, such actions may have environmental effects in
some extraordinary circumstances, such as when a plan amendment or
revision includes final decisions approving projects or activities. For
example, an amendment or revision including a decision approving a
project to thin
[[Page 1032]]
certain trees to reduce fire hazards may have environmental affects
that could be significant.
NFMA requires the Secretary of Agriculture to determine how to
comply with NEPA during the course of NFMA planning. Section 106(g)(1)
of NFMA directs the Secretary to specify in land management regulations
procedures to insure that plans are prepared in accordance with NEPA,
including direction on when and for what plans an EIS is required (16
U.S.C. 1604(g)(1)). The CEQ regulations direct Federal agencies to
adopt procedures that designate major decision points for the agency's
principal programs likely to have a significant effect on the human
environment and ensuring that the NEPA process corresponds with them
(40 CFR 1505.1(b)).
Under NEPA and the CEQ regulations, an EIS is required for every
report or recommendation on proposals for legislation and other major
Federal actions significantly affecting the quality of the human
environment (16 U.S.C. 4321 et seq., 40 CFR 1502.3). CEQ regulations
define ``major Federal action'' as including ``actions with effects
that may be major.'' The regulations explain that ``Federal actions''
generally tend to fall within several categories. Although these
categories include adoption of formal agency plans within the
definition of ``federal action,'' not all federal actions are major
federal actions. As applied to the final rule, land management plans
under this final rule, as evidenced by their five components, are
strategic and aspirational in nature and generally will not include
decisions with on-the-ground effects that can be meaningfully evaluated
and that may be major. During plan development, amendment, or revision,
the agency generally is not at the stage in National Forest planning of
proposing actions to accomplish the goals in land management plans. CEQ
regulations define ``proposals'' that can trigger the requirement for
an EIS as ``that stage in development of an action when an agency
subject to the Act has a goal and is actively preparing to make a
decision on one or more alternative means of accomplishing that goal
and the effects can be meaningfully evaluated (40 CFR 1508.23).
Proposals for action to accomplish plan goals and desired conditions,
with effects that can be meaningfully evaluated and which may be
significant, generally are made at the project and activity stage.
While a plan includes desired conditions, goals, and objectives, the
Forest Service does not actively prepare to make a decision on an
action aimed at achieving desired conditions, goals, or objectives
until the agency proposes projects and activities. Thus, the decision
to adopt, amend, or revise a plan, therefore, is typically not the
point in the decisionmaking process at which the agency is proposing an
action likely to have a significant effect on the human environment.
The approach in this final rule is consistent with the nature of
Forest Service land management plans acknowledged in Ohio Forestry
Ass'n v. Sierra Club, 523 U.S. 726 (1998). As described above, in Ohio
Forestry, the Supreme Court held that the timber management provisions
of land management plans are tools for further agency planning and
guide, but do not direct future management. When considering the role
of land management plans with respect to timber harvesting, the Supreme
Court explained that:
Although the Plan sets logging goals, selects the areas of the
forest that are suited to timber production, and determines which
``probable methods of timber harvest'' are appropriate, it does not
itself authorize the cutting of any trees. Before the Forest Service
can permit the logging, it must: (a) Propose a specific area in
which logging will take place and the harvesting methods to be used;
(b) ensure that the project is consistent with the Plan; (c) provide
those affected by proposed logging notice and an opportunity to be
heard; (d) conduct an environmental analysis pursuant to the
National Environmental Policy Act of 1969, to evaluate the effects
of the specific project and to contemplate alternatives; and (e)
subsequently make a final decision to permit logging, which affected
persons may challenge in an administrative appeals process and in
court.
The Supreme Court repeated its description of plans as merely
strategic without any immediate on the ground impact in the recent SUWA
decision described above. Both cases reinforce the observations of the
FS in reflecting on 25 years of completing EISs for plans, and buttress
the approach to planning and NEPA compliance described in the final
rule.
In accordance with NFMA, NEPA, and the CEQ regulations, this final
rule will ensure that Forest Service NEPA analysis will be timed to
coincide with those stages in agency planning and decisionmaking likely
to have a significant effect on the human environment. The final rule
emphasizes the clear distinction between the mere adoption, revision or
amendment of a plan and projects and activities having on-the-ground
environmental effects. In this final rule, the Department is clarifying
the nature of National Forest land management plans, and based on the
nature of plans, specifying that plans, plan amendments, and plan
revisions may be categorically excluded from NEPA documentation as
provided in agency NEPA procedures.
The CEQ regulations (40 CFR 1500) require that each agency
establish specific criteria for and identification of three types of
actions: (1) Those that normally require preparation of an
environmental impact statement (EIS); (2) those that normally require
the preparation of an environmental assessment (EA); and (3) those that
normally do not require either an EA or EIS. Actions qualifying for
this third type of action are defined as categorical exclusions because
they do not individually or cumulatively have a significant impact on
the human environment; therefore, neither an environmental assessment
nor an environmental impact statement is required (40 CFR 1508.4).
A categorical exclusion is not an exemption from the requirements
of NEPA. Categorical exclusions are an essential part of NEPA that
provide a categorical determination that certain actions do not result
in significant impacts, eliminating the need for individual analyses
and lengthier documentation for those actions. CEQ regulations at 40
CFR 1500.4(p), 1507.3 and 1508.4 direct agencies to use categorical
exclusions to define categories of actions which do not individually or
cumulatively have a significant effect on the human environment and do
not require the preparation of an environmental assessment or an
environmental impact statement, thereby reducing excessive paperwork.
Current Forest Service procedures for complying with and implementing
NEPA are set out in Forest Service Handbook (FSH) 1909.15.
Simultaneously with this rulemaking, the Forest Service is
proposing to revise its NEPA procedures to provide a new categorical
exclusion for plan development, amendment, and revision. The proposed
categorical exclusion describes the extraordinary circumstances that
may require preparation of an EIS or an EA. The Forest Service is
seeking comment on the proposed categorical exclusion.
The Forest Service presented and sought public comment on this
approach to NEPA and NFMA planning in the 2002 proposed rule. The 2002
proposed rule at Sec. 219.6(b) provided that if the Responsible
Official determines that a new plan, plan amendment, or plan revision,
or a component thereof, would be an action significantly affecting the
quality of the human environment, or authorizes an action that commits
funding or
[[Page 1033]]
resources that could have a significant effect on the quality of the
human environment, then an EIS would be required. Otherwise, a new
plan, plan amendment, or plan revision may be categorically excluded
from documentation in an EA or EIS as provided in agency NEPA
procedures. The categorical exclusion proposed in connection with this
final rule clarifies that plan development, plan amendment or plan
revisions in accordance with this final rule do not significantly
affect the environment, and thus are categorically excluded from
further NEPA analysis, unless extraordinary circumstances are present.
Of course, the FS will comply with all applicable NEPA requirements,
including preparation of an EA or an EIS where appropriate, when
considering specific projects or making other project-specific
decisions affecting the environment.
The public identified three key concerns related to the proposal to
categorically exclude plans from documentation. First, many people
commented that they were unsure about how they would be involved in
planning if an EIS process were not used. Second, they questioned how
planning analysis would be documented in the absence of an EIS. Third,
some asked how cumulative effects would be accounted for if a
Categorical Exclusion (CE) were relied upon. The Department has fully
considered the concerns raised by the public and believes the final
rule addresses the concerns as follows:
Public participation.
This final rule provides extensive opportunity for public
participation that exceeds requirements for public participation under
NEPA and improves the clarity of the process for public notification
(Sec. 219.9).
Evaluations and documentation.
This final rule requires comprehensive and other evaluations in
Sec. 219.6. Evaluation reports will document existing social,
economic, and ecological conditions and trends; and will be available
to the public and included in the Plan Document or Set of Documents.
Evaluations are prepared for plan development, plan amendment, and plan
revision (Sec. 219.6); use a systematic and interdisciplinary approach
(Sec. 219.7(a)); and consider environmental amenities and values along
with economic and technical considerations (Sec. 219.10).
The Plan Document or Set of Documents will be supplemented with
annual evaluation reports and with other information as appropriate to
form a continually refreshed and current analytical base of
information. Because of this more current information base, evaluations
will provide a much stronger and more robust source of information for
projects and activities than an EIS prepared under the 1982 planning
rule.
Cumulative effects.
To account for cumulative effects of management and natural events,
this final rule requires (Sec. 219.6(a)): (1) A comprehensive
evaluation for the development of a new plan or plan revision; (2)
annual plan monitoring and evaluation; and (3) review of the
comprehensive evaluations at least every 5 years. These evaluations, as
opposed to predictive EIS's that grow increasingly stale over time,
will provide more timely and informed consideration of cumulative
effects. The Plan Document or Set of Documents provides for a robust
information base for the consideration of cumulative effects of
management in NEPA documents prepared for projects or activities.
The relationship between EMS and NEPA.
Implementing EMS will improve the quality of agency NEPA analysis
for projects and activities. In a September 2003 report, titled
``Modernizing NEPA Implementation,'' the CEQ NEPA Task Force stated at
page 54, ``Federal agencies, having made the connection between EMS and
adaptive management, would be integrating NEPA-related adaptive
management actions into their developing EMSs.'' The task force also
said that NEPA and EMS provide ``a synergy that can encourage a robust
analysis when the EMS information is extensive, current, and available
for use in the NEPA analy[sis].'' The Department agrees with the task
force's conclusions and believes that requiring each unit to implement
an EMS will improve environmental performance and effective land
management in addition to enhancing NEPA analysis and documentation.
Under the existing process, information about environmental
conditions is collected for the purposes of preparing detailed NEPA
analysis and documentation for plan development, plan amendment, or
plan revision. There is no effective system for keeping this
information current, because the collection and analysis of information
often typically ceases when the NEPA analysis and documentation is
completed. Therefore, the information collected for the environmental
documents for 126 NFS units can grow stale as environmental, social,
and economic conditions change. Further, the focus of the information
collection and analysis process is on NEPA analysis and documentation,
rather than for use in the ongoing management of the administrative
unit. Therefore, the large volume of information and analysis that is
so expensively created over a long period is often used as a snapshot
for purposes of making a single decision, instead of being integrated
into a dynamic, ongoing system to effectively manage units.
This rule will improve this situation by requiring each
administrative unit to implement an EMS that includes defined
procedures for identifying environmental conditions, keeps that
information current, and includes monitoring and measurement procedures
for continually evaluating conditions in the unit. The EMS requirement
is separate from any obligations to develop EISs, EAs, or CEs.
Therefore, the obligation to keep this information current and make it
available for public review is separate from the obligation to create
any particular NEPA document. This information will be used in
formulating the land management plans that are subject of this rule,
managing administrative units on an ongoing basis, as well as for
specific project and activity proposals that trigger the need for EISs,
EAs, or CEs. Therefore, through the implementation of EMS,
administrative units will be continually collecting and evaluating the
data necessary to create any documents that may be required by NEPA.
This will make the creation of accurate and relevant NEPA documents
more efficient. More importantly, it will make available to
administrative unit managers and the public a ``library'' of current
information, analyses, and research that, through EMS, will be used to
manage the administrative unit on an ongoing basis, and better adapt
management practices to avoid unwanted environmental effects.
Summary
This final rule represents a paradigm shift in planning. It
emphasizes the strategic nature of NFMA land management plans and will
permit more flexibility in implementing projects in response to
evolving scientific doctrines and changing conditions on the ground,
such as unforeseen natural disasters. It requires that each NFS unit
develop an EMS that will be used to continually improve environmental
performance and conditions. It requires that Responsible Officials take
into account the best available scientific information. It requires
public involvement and collaboration throughout the entire cycle of
planning, plan development, plan amendment, plan revision, project
[[Page 1034]]
and activity decisionmaking, and monitoring of environmental
performance. The final rule requires plans to focus on the social,
economic, and ecological sustainability of the management of the NFS,
and it has specific provisions for biological diversity at both the
ecosystem and species level. It clarifies the nature of plans and
explains how the planning process complies fully with the requirements
of NEPA. Plans developed and maintained using the EMS and other
processes required by this final rule will improve the performance,
accountability, and transparency of NFS land management planning.
4. Department Response to Comments on the 2002 Proposed Rule
The Forest Service received approximately 7,000 original letters
and 195,000 total comments from a wide variety of respondents on the
2002 proposed rule. Each comment received consideration in the
development of the final rule. The following is a summary of comments
and response to issues raised by these comments. A response to less
substantive issues may be found in the supplemental response to
comments located on the World Wide Web/internet (see ADDRESSES).
General Issues
The Department received the following comments not specifically
tied to a particular section of the 2002 proposed rule.
Comment: Compliance with NFMA. Some respondents thought the 2002
proposed rule would allow more timber harvest and road construction
than currently exists and therefore would violate the National Forest
Management Act (NFMA) of 1976 (16 U.S.C. 1600 et seq.). Other
respondents believed the timber industry, other commercial interests,
or Forest Service employees unduly influenced the 2002 proposed rule;
moreover, they perceived that the 2002 proposed rule would degrade the
environment. Some contended the 2002 proposed rule was influenced by
campaign contributions.
Response: The final rule is not intended to, and will not,
determine the choices among the multiple uses. The NFMA requires the
Secretary of Agriculture to develop regulations under the principles of
the Multiple-Use Sustained-Yield Act (MUSYA) of 1960 (16 U.S.C. 528-
531). Congress gave the Secretary broad discretion in interpreting how
these principles are applied. This final rule affirms the overall goal
of MUSYA and provides a framework for plans to reflect contemporary
priorities and values. Pursuant to MUSYA, this final rule adopts
social, economic, and ecological sustainability as the goal of National
Forest System (NFS) management. Furthermore, timber production from NFS
lands has been reduced dramatically since NFMA was written. The sale of
timber has fallen from an annual level of 10 to 12 billion board feet
in the 1970s and 1980s to three billion board feet in the early 1990s
and below three billion board feet since then. Finally, the final rule
does not promote or discourage other uses of NFS lands, such as outdoor
recreation, range, wildlife and fisheries, and so forth. The planning
process itself will determine the desired conditions and objectives for
each NFS unit.
Comment: Plan oversight and resource conservation. Some respondents
commented that the 2002 proposed rule would prevent court oversight of
plans, eliminate restrictive plan requirements, inappropriately
increase Forest Service discretion, and result in decreased
conservation of resources such as wildlife. Several respondents wanted
the 2002 planning rule to be stricter, attributing the collapse of
Enron to inadequate regulatory oversight. Other respondents were
concerned about the possibility of increased litigation and thought
streamlined planning would shift more of the analysis burden to
projects, thus slowing project completion.
Response: The final rule establishes a planning process that
complies with NFMA and provides a broad planning framework within which
issues specific to a plan area can be resolved in an efficient and
reasonable manner informed by the latest data and scientific
assessments and public participation and collaboration.
With respect to concerns that Forest Service discretion may be
unchecked, there has always been a tension between providing needed
detailed direction in the planning rule and discretion of the
Responsible Official. However, the decisions of the Responsible
Official are constrained and guided by a large body of law, regulation,
and policy, as well as public participation and oversight. Because
every issue cannot be identified and dealt with in advance for every
situation, the Forest Service must rely on the judgment of the
Responsible Official to make decisions based on laws, regulation,
policy, sound science, public participation, and oversight.
The Department of Agriculture (Department) believes that the final
rule is fully compatible with the nature of forest planning as
described by the U.S. Supreme Court in Ohio Forestry Ass'n v. Sierra
Club 523 U.S. 726 (1998) (A discussion of this case is found in the
``Overview of the Final 2004 Rule'' section of the preamble.) The
Department expects public oversight and legal review of planning, as
well as an assessment of the environmental impacts of specific projects
under NEPA, to occur under the final rule in accordance with Ohio
Forestry. As a general matter, and consistent with the Ohio Forestry
Ass'n decision, a plan by itself is not expected to be reviewable by
the courts at the time the plan is developed, revised or amended; but
when the agency decides on a specific action, an aggrieved party will
be able to challenge that action and, if appropriate, seek review of
that part of the plan that is relevant to that action.
After years of experience with previous planning rules, the
Department is ready to embrace the latest thinking in management
techniques and believes this final rule provides the proper balance of
regulatory requirements and flexibility needed to resolve issues on the
ground. By streamlining the planning process, requiring environmental
management systems (EMS), and emphasizing collaboration and public
involvement, the final rule will result in plans that are more up to
date, and should have broader public support. Similarly, the continual
updating of the evaluations and analyses associated with plans is
expected to reduce the amount of analysis needed at the project level.
These concepts of collaboration, EMS, evaluations, and public
involvement are described in detail in the ``Overview of the Final 2004
Final Rule'' section of the preamble.
Comment: Consultation with a committee of scientists. Several
respondents were concerned that there was no consultation with a
committee of scientists in developing the 2002 proposed rule. Several
felt that an independent review was necessary. Some respondents also
felt that the 2002 proposed rule should reflect current scientific
knowledge.
Response: The NFMA does not require a committee of scientists for
revision of the planning rule. Nonetheless, the Department based the
2002 proposed rule on the major recommendations from the 1999 Committee
of Scientists report. Sustainability, public participation, adaptive
management, monitoring and evaluation, the role of science, and the
objection process, all concepts in the proposed and final rule, were
recommendations of that report. The Department realizes that scientific
knowledge will continue to expand. Therefore, the Responsible Official
must
[[Page 1035]]
take into account the best available science when plans are developed,
revised, or amended (Sec. 219.11).
Comment: Environmental conservation. Several respondents commented
that the 2002 planning rule should conserve wildlife, wilderness,
historic and cultural sites, special habitat, watersheds, genetic
material, and reduce fragmentation. One person commented that planning
should be done on whole ecosystems.
Response: The final rule provides the processes through which
Responsible Officials conserve and manage resources with regard to the
issues relevant in the plan area. Those communities, groups, or persons
interested in these important resource issues can influence plan
components and monitoring programs by becoming involved in planning
efforts throughout the process, including the development and
monitoring of the plan, as well as the development and implementation
of proposed projects and activities.
The Department agrees that better quality planning is often
accomplished when the appropriate scale is used. For species or
watersheds, evaluation often needs to be completed at a broader scale
than for an individual unit. The Department anticipates that the Forest
Service, in its plan evaluations, will continue to look at issues at
the appropriate scale.
Comment: The 2000 planning rule was never adequately tested. Some
respondents disagreed with the 2002 proposed rule discussion of the
difficulty of implementing the 2000 planning rule, since the 2000
planning rule was never used.
Response: The costing study, ``A Business Evaluation of the 2000
planning rule and the Proposed NFMA Planning Rules,'' analyzed each of
the work activities of the 2000 planning rule and used experienced
planners and resource professionals to estimate how those work
activities would be carried out. The Department believes that this
analysis on the 2000 planning rule was adequate to determine how well
that rule could be implemented.
Comment: Costing study of the 2000 Planning Rule. Several
respondents said the report on cost and ability to implement the 2000
planning rule was not available.
Response: The Federal Register notice for the 2002 proposed rule
explained how all associated studies were available for review. These
studies have been, and still are, available on the Forest Service's
World Wide Web/Internet site (see ADDRESSES) and available from the
Director, Ecosystem Management Coordination Staff, Forest Service,
USDA, Mail Stop 1104, 1400 Independence Avenue, SW., Washington, DC
20250-1104, as described in the ADDRESSES section.
Comment: Inability to complete revisions. Several respondents said
that the inability of the Forest Service to comply with a statutorily
mandated revision timeline was due to reasons other than the
requirements of the 1982 or 2000 planning rules.
Response: The Forest Service experience showed that the cost and
unnecessary complexity of the planning process for the 1982 planning
rule were the major causes of plan delays; this experience and the
costing study indicated that the 2000 planning rule would exacerbate
these concerns.
Comment: Cost study and the cost-benefit analysis for 1982 planning
rule. Some respondents said the cost study of the 2000 planning rule
and the 2002 proposed rule should also have considered the 1982
planning rule and that the cost-benefit analysis should have considered
the costs of the 1982 planning rule, which is the rule that was
actually being implemented at the time of the study.
Response: When the 2000 planning rule was developed, the costs to
the Forest Service to implement it were unknown, while the costs
associated with the 1982 planning rule were known. The cost-benefit
analysis considered the costs of implementing the 1982 planning rule,
the anticipated cost of implementing the 2000 planning rule, and the
anticipated cost of implementing the 2002 proposed rule. The cost-
benefit analysis used information from a business evaluation and
costing study for the 2000 planning rule and the 2002 proposed rule.
Although the 1982 planning rule was not included in the business
evaluation, 1982 planning rule costs were included in the cost-benefit
analysis using applicable costs from the business evaluation and
historical cost information.
Comment: Biological assessment. Some respondents commented that the
rule should consider the ``degree to which the action [the rule] may
adversely affect an endangered or threatened species or their habitat
that has been determined to be critical under the Endangered Species
Act (ESA) of 1973.'' They assert that a biological assessment of the
2002 proposed rule is needed to analyze its impacts on threatened and
endangered species and that the agency must also consult on the 2002
proposed rule with the agencies responsible for implementing the ESA.
Response: The ESA, as amended (16 U.S.C. 1531 et seq.), requires
consultation for actions authorized, funded, or carried out by a
Federal agency. This final rule simply establishes a process for
planning. The final rule is not an action having a direct effect on
threatened or endangered species. The agency's obligations for
conservation of threatened, endangered, and proposed species remains
unchanged by this final rule; no consultation is required as part of
the final rule's development.
Comment: Planning certification. One organization commented that a
nationally recognized third party should certify sustainability of
National Forests.
Response: The Department believes that the body of laws that govern
management of NFS lands, the Forest Service Strategic Plan (Strategic
Plan) required under the Government Performance and Results Act, the
planning process itself, the expertise of career professionals, and the
opportunity for public participation are adequate to ensure
sustainability. Recognizing the point made by the respondent of the
value of using recognized standards for forest management, this final
rule requires units to develop and implement an EMS that conforms to
ISO 14001 to manage natural resources and further the adaptive
management approach advocated by other respondents. ISO 14001 is the
internationally and nationally recognized standard for EMSs. The Forest
Service understands that ISO 14001 is not itself a program for forest
sustainability certification and does not contain specific natural
resource provisions or requirements. Natural resource management
requirements and priorities are properly set by Congress and open
public participation, rather than by non-governmental standards setting
bodies that are not directly answerable to the citizens of the United
States.
ISO 14001 provides a well-accepted management process that will
improve the Forest Service's ability to identify and meet the natural
resource goals that are set by Congress in the NFMA and MUSYA and the
Forest Service's commitments to sustainability, good science, and
public involvement in a disciplined, systematic, and transparent
manner.
Comment: Benchmarks in the 1982 planning rule were useful. Several
respondents said that benchmarks, such as those required in the 1982
planning rule, are useful and should still be required.
Response: The agency's experience with the 1982 planning rule is
that benchmarks have not been useful. In theory, benchmarks define the
range of
[[Page 1036]]
production possibilities and ecosystem limits. In practice, however,
they are difficult to develop due to limited data and uncertainty at
the time plans are developed. However, the final rule does not prohibit
benchmark analysis when it would provide meaningful information.
Comment: Fix the 1982 planning rule. Several respondents thought
the agency should consider analyzing and correcting the 1982 planning
rule instead of developing an entirely new rule.
Response: In many ways, the final rule reflects the 1982 planning
rule. However, it makes improvements based on over 25 years of
experience. The final rule includes the basic plan components set out
in the 1982 planning rule, includes the provisions required by NFMA,
and expands the public involvement requirements in the 1982 planning
rule by requiring additional public involvement opportunities and
emphasizing collaboration.
Comment: The final rule should be subject to NEPA. Some respondents
commented that adoption of the final rule is itself subject to the
National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C.
4321-4346), and this rulemaking is a major Federal action having a
significant effect on the human environment. Others questioned why
previous rulemaking efforts were accompanied by environmental
assessments and why this rulemaking was not.
Response: The Department disagrees that this rulemaking is a major
Federal action that has significant effects on the environment because
the final rule, which sets out a process for developing plans, plan
amendments, and plan revisions, does not have environmental effects.
The Forest Service Handbook (FSH) 1909.15, section 31.12, paragraph 2,
specifically provides that procedures for amending or revising land
management plans may be categorically excluded from NEPA documentation.
The Forest Service produced an environmental assessment for the
2000 planning rulemaking efforts, but asserted at the time that it was
going beyond the requirements of the law or policy. In the spirit of
efficiency and streamlining inherent in this rulemaking effort, it
seemed inconsistent to produce a NEPA document that was not required or
useful. In summary, this final rule does not significantly affect the
quality of the human environment and does not trigger NEPA obligations.
Comment: Integration of planning process requirements. One
respondent commented that the 2002 proposed rule listed many
requirements and was unclear how these requirements were to be
integrated into a plan.
Response: The Department agrees that it was difficult to track the
planning process steps in the 2002 proposed rule. This difficulty is
one of the primary reasons the Department substantially reorganized the
final rule.
Comment: Research. One professional organization felt that the
final rule should support ``bold and imaginative'' research on NFS
lands.
Response: The Department believes that the final rule does support
research. The strong emphasis on monitoring, evaluation, and the
Department's recognition of the value of environmental management
systems produce an adaptable process where scientific experimentation
is encouraged. Topics to be researched, however, are properly not set
out in the final rule.
Comment: Forest Service directives. Several respondents expressed
concern about placing management direction in the Forest Service
Directive System (Forest Service directives) and said that the Forest
Service directives have not been subject to rulemaking procedures and
do not have the full force and effect of law. They said that NFMA
requires direction to be in the planning rule and they are concerned
that use of directives will foster distrust and a confusing system of
malleable and unenforceable guidelines.
Some respondents were concerned that placing direction in the
Forest Service directives instead of in the final rule would reduce
meaningful public participation. Others endorsed the idea of using the
Forest Service directives for technical details rather than burden the
final rule with these ``how to'' requirements. Some said that the
Forest Service should retain greater flexibility and should be able to
make decisions more cost effectively. Finally, some respondents said
that they would like the Forest Service directives to be updated and
published for public review concurrent with the planning rule
development.
Response: The Forest Service directives are the primary basis for
the internal management and control of all programs and the primary
source of administrative direction to Forest Service employees. The
Forest Service Manual (FSM) contains legal authorities, objectives,
policies, responsibilities, instructions, and guidance needed on a
continuing basis by Forest Service line officers and primary staff to
plan and execute assigned programs and activities. The Forest Service
Handbook (FSH) is the principal source of specialized guidance and
instruction for carrying out the direction issued in the FSM. Because
the Forest Service directives are easier to change and more easily
adopt the latest technology and science, they are the appropriate place
for specific technical guidance.
As stated in the ``Forest Service Directives'' section in the
preamble, the Forest Service is developing planning directives to
provide overall guidance needed to use this final rule for Forest
Service line officers, agency employees, and others. The Forest Service
will provide the public with the opportunity to comment on planning
directives as soon as they are prepared through notice in the Federal
Register.
Comment: Other issues. Some respondents commented on a variety of
important issues such as roads, recreation, timber harvest, taxes,
recycling, access, travel management, public safety, effects on
spiritual values, land exchanges and purchases, fire protection, paying
for restoration, job creation, certain kinds of motorized use, and
roadless areas and they wanted those issues addressed in the final
rule.
Response: The Department agrees that the issues raised are
important. However, the final rule is intended to guide how plans are
developed, revised, and amended. The final rule provides the overall
direction for planning. The final rule does not provide direction that
is properly found in the plans themselves, or in the subsequent
decisions regarding projects and activities on a particular national
forest, grassland, prairie, or other comparable administrative unit.
Issues in Response to Specific Sections
Following are discussions and responses to public comments received
on specific sections in 36 CFR part 219 during the Department's comment
period on the 2002 proposed rule, including discussion on the
differences between the 2002 proposed rule and the final rule and why
these changes were made. The Department reorganized the final rule. As
a result, some sections have new titles and/or a new designation as
shown in the following table 1. In addition, the heading for subpart A
in the 2002 proposed rule, ``National Forest System Planning for Land
and Resource Management Plans,'' has been shortened and simplified in
the final rule to ``National Forest System Land Management Planning,''
which is a term also used in the National Forest Management Act of
1976.
[[Page 1037]]
Table 1.--Section-by-Section Comparison of the 2002 Proposed Rule With
the Final Rule
------------------------------------------------------------------------
------------------------------------------------------------------------
[2002 Proposed Rule]............... [Final Rule]
Proposed section number and title.. Final section number and title
Sec. 219.1 Purpose and Sec. 219.1 Purpose and
applicability. Applicability.
[some direction moved to Sec. Sec.
219.2 and 219.3]
Sec. 219.2 Nature and scope of a [redesignated at Sec. 219.3;
land and resource management plan. planning process requirements
incorporated in Sec. 219.7]
Sec. 219.2 Levels of planning and
planning authority.
Sec. 219.3 Levels of planning and [redesignated at Sec. 219.2]
planning authority.
Sec. 219.3 Nature of land
management planning.
Sec. 219.4 Decisions embodied in [incorporated in Sec. Sec. 219.7
plans. and 219.12]
Sec. 219.4 National Environmental
Policy Act compliance.
Sec. 219.5 Indicators of need to [incorporated in Sec. 219.6 or
amend or revise a plan. the Directive Systems.]
Sec. 219.5 Environmental
management systems.
Sec. 219.6 Compliance with [redesignated at Sec. 219.4]
National Environmental Policy Act.
Sec. 219.6 Evaluations and
monitoring.
Sec. 219.7 Amending a plan....... [incorporated in Sec. Sec.
219.2, 219.7 and 219.9]
Sec. 219.7 Developing, amending,
or revising a plan.
Sec. 219.8 Revising a plan....... [incorporated in Sec. Sec.
219.2, 219.7, 219.8 and 219.9]
Sec. 219.8 Application of a new
plan, plan amendment, or plan
revision.
Sec. 219.9 Developing a new plan. [incorporated in Sec. Sec. 219.2
and 219.7]
Sec. 219.9 Public participation,
collaboration, and notification.
Sec. 219.10 Application of plan [incorporated in Sec. 219.8]
direction.
Sec. 219.10 Sustainability.
Sec. 219.11 Monitoring and [incorporated in Sec. 219.6]
evaluation..
Sec. 219.11 Role of science in
planning.
[2002 Proposed Rule]............... [Final Rule]
Proposed section number and title.. Final section number and title
Sec. 219.12 Collaboration, [incorporated in Sec. 219.9]
cooperation, and consultation.
Sec. 219.12 Suitable uses and
provisions required by NFMA.
Sec. 219.13 Sustainability....... [redesignated at Sec. 219.10]
Sec. 219.14 The consideration of [redesignated at Sec. 219.11]
science in planning.
Sec. 219.15 Special designations. [incorporated in Sec. Sec.
219.7]
Sec. 219.16 Determination of [redesignated at Sec. 219.12]
lands available for timber harvest
and suitable for timber production.
Sec. 219.13 Objections to plans,
plan amendments, or plan
revisions.
Sec. 219.17 Limitation on timber [redesignated at Sec. 219.12]
harvest.
Sec. 219.14 Effective dates and
transition.
Sec. 219.18 Plan documentation, [incorporated in Sec. Sec.
maintenance, and availability. 219.6, 219.7, and 219.9]
Sec. 219.15 Severability.
Sec. 219.16 Definitions.
Sec. 219.19 Objections to [redesignated at Sec. 219.13]
amendments or revisions of plans.
Sec. 219.20 Appeals of plan [incorporated in Sec. 219.13]
amendments in site-specific
project decisions.
Sec. 219.21 Notice of plan [incorporated in Sec. Sec. 219.9
decisions and effective dates. and 219.14]
Sec. 219.22 Transition........... [incorporated in Sec. 219.14]
Sec. 219.23 Definitions.......... [redesignated at Sec. 219.16]
------------------------------------------------------------------------
In this final rule, the Department reorganized sections of the 2002
proposed rule to improve clarity and reduce redundant material. The
discussion of each section follows the numbering and titles adopted in
the final rule, with references to where the text was located in the
2002 proposed rule. These new sections are ordered from general to
specific. The first section introduces the reader to what is covered in
the final rule and acknowledges the multiple-use and sustained yield
productivity mandate of the Forest Service (remainder of Sec. 219.1).
Section 219.2 describes planning in general and the levels of planning
in the agency. Then, the final rule contains a general description of
plans (Sec. Sec. 219.3 and 219.4), followed by the specific plan
requirements (Sec. Sec. 219.5-219.16).
Section 219.1--Purpose and Applicability
This section is coded the same in the final rule as it was in the
2002 proposed rule and introduces the reader to what is covered in the
final rule, acknowledges the multiple-use and sustained-yield
productivity mandate of the Forest Service, and directs the Chief of
the Forest Service to establish planning procedures in the Forest
Service directives. The 2002 proposed rule language is retained in the
final rule, with some clarification regarding the overall goal to
sustain the multiple uses of its renewable resources in perpetuity
while maintaining the long-term productivity of the land.
Comment: Overall goals of planning. There were varied comments on
the overall goal of National Forest System (NFS) planning. Some said
that the purpose of planning should reflect sustainability priorities
and values. Some respondents stated that the best approach to the
purpose and applicability section is to state that ecological
sustainability is the desired condition to be achieved through land
management. Some requested that the Forest Service's vision statement
be changed to reflect a philosophy of preservation and sustainability
and that the Forest Service not make management decisions based on a
productivity paradigm. They stated that good decisions that restore the
forest will be approved quickly without controversy and lawsuits, while
bad decisions should be stopped and the decisionmaker held accountable.
Others requested that the Forest Service give attention to how plans
affect tourism and recreation.
[[Page 1038]]
Response: The Department agrees that the mandate under the National
Forest Management Act (NFMA) of 1976 and Multiple-Use Sustained Yield
Act (MUSYA) of 1960 is not exclusively for production or for
preservation because ``multiple use and sustained yield'' applies to
all renewable resources, including outdoor recreation, range, timber,
watershed, wildlife and fish, and wilderness. These laws direct the
management of all the various renewable resources of the lands so that
they are used in the combination that will best meet the needs of
present and future generations of Americans. Planning for NFS lands is
not simple, and often there is little agreement on how these lands
should be managed. While relying on the expertise of the Forest Service
and taking into account the best available science, this final rule
also provides an open process for public collaboration and
participation.
Finally, other overarching planning guidance, such as the intent of
planning to produce responsible land management and how a plan aids the
agency to fulfill its stewardship responsibilities, is discussed in
Sec. 219.3.
Comment: Multiple-Use Sustained-Yield Act (MUSYA). Some respondents
pointed out that ``multiple use'' is part of the law and ``ecosystem
management'' is not. Active forest management, they asserted, is
necessary for forest health, maintaining biological diversity, and
sustaining wildlife populations. These respondents requested that the
final rule uphold what they believe are the active forest management
principles mandated by the MUSYA. Further, they stated that timber
harvesting is a goal of the MUSYA. They asked that the Forest Service
provide a high-level sustained yield of renewable timber resources.
Some respondents requested that the Forest Service comply with
MUSYA by managing lands according to what they call its ``wood, water,
wildlife, range, and recreation'' formula. Others stated that the 2002
proposed rule violates the MUSYA requirement that NFS lands be used to
best meet the needs of the American people. These respondents requested
that emphasis be placed on recreation, aesthetics, air and water
quality, species habitat, and ecosystem integrity, rather than natural
resource development.
Response: The final rule is faithful to NFMA, which requires the
use of the MUSYA to provide the substantive basis for forest planning.
As used in the final rule, sustainability embodies these Congressional
mandates. The interrelated and interdependent elements of
sustainability are social, economic, and ecological as described in
Sec. 219.10. The final rule sets the stage for a planning process that
can be responsive to the desires and needs of both present and future
generations of the Americans for the multiple uses of NFS lands. The
final rule does not make choices among the multiple uses; it describes
the processes by which those choices will be made as a preliminary step
during development of plans. Later, the plan provides guidance for
projects and activities.
Comment: Forest planning versus project planning. Some respondents
said that, unlike the 2000 planning rule, the 2002 proposed rule
correctly focused only on the forest planning level and not on project
planning.
Response: The final rule retains the focus of the 2002 proposed
rule on land management plans, while at the same time explaining on how
plans and projects or activities are linked. Inclusion of an EMS in the
land management framework provides a current scientific and
informational foundation for the effective development and
implementation of projects and activities. This framework ensures the
continued relevance of the entire cycle of planning while maintaining
the distinction between strategic planning and projects and activities.
As previously noted, there will be a comprehensive table in the Forest
Service directives that includes guidance on what direction is
appropriate for the plan level, what decisions are properly made at the
project or activity level, and what scheduling, prioritization, or
analysis may take place in between.
Section 219.2--Levels of Planning and Planning Authority
This section was located in the proposed rule at Sec. 219.3, but
has been re-designated at Sec. 219.2 as part of the overall
reorganization of the final rule. This section describes planning in
general, the levels of planning in the agency, and provides the basic
authorities and direction for developing, amending, or revising a plan.
Comment: Consistency of decisions across units and the Responsible
Official. Some respondents were concerned that plans developed for
individual units, each with a different Responsible Official, would not
be consistent within larger areas. They said that the planning
framework should be similar within each State or ecological region.
Some said that without a regional context, the planning efforts of each
forest or grassland would seem to take place in a vacuum. Some
commented that plans needed to address species management plans and
conservation agreements for wide ranging species in a consistent
manner. Some commented that planning needed to use consistent
consultation procedures with Tribes.
Several respondents commented on the provision that the Supervisor
is usually the Responsible Official. Those in favor of this provision
said that local Supervisors and staff are involved with actual hands-on
project implementation and can better gauge success or failure of the
planning process. Some said that Supervisors are close to the problem
areas and are better able than Regional Foresters to seek solutions
proactively and act upon them more quickly. These respondents felt that
Supervisors are in a better position to facilitate citizen
participation and negotiation between competing groups and to
coordinate with local or State plans.
Those opposed to this provision were concerned that the local
pressure for employment in forest products industry may outweigh the
preservation of our national heritage if decisionmaking was left in
local hands. They said that Supervisors are susceptible to political
pressure or abuse of their authority. Still others said Supervisors
sometimes do not have sufficient experience or expertise to make
adequate plan decisions. Some said that local staff may not understand
how to use inventory data, monitoring, or ecosystem or species
evaluations and will simply copy what was done in other locations,
causing endless escalation of planning efforts. Several respondents
said that the current system has worked well with the Regional Forester
as the Responsible Official.
Still others said that both national and local level staffs are
necessary, because local staff cannot reasonably understand complex and
overlapping policies, regulations, and laws, and national staff cannot
efficiently study local conditions or gain local consensus. Finally,
one respondent observed that if the planning process becomes so
burdensome that local officials do nothing but plan, the system would
once again break down. Some respondents wanted the final rule to
clarify the conditions under which officials ranking higher than the
Supervisor can act as the Responsible Official and to explain the types
of decisions that these officials can make.
Response: Supervisors currently coordinate across unit and Regional
boundaries and will continue to do so because the evaluations described
in Sec. Sec. 219.6, 219.7, and 219.10 will often cross boundaries of
adjacent NFS units. In addition, the final rule provides the option for
higher-level officials to act as
[[Page 1039]]
the Responsible Official for a plan, plan amendment, or plan revision
across a number of plan areas when consistency is needed. Additional
procedural guidance will be placed in the Forest Service directives to
ensure consistency as needed for Tribal or public consultation or for
social, economic, or ecological resource related issues.
The Department intends the final rule be flexible in addressing
different issues that may arise at different levels. Therefore, the
Department does not believe that the final rule should provide the
specific criteria for when a higher-ranking official becomes the
Responsible Official.
The final rule retains the provision in the 2002 proposed rule for
the Supervisor to be the Responsible Official because the Department
believes that the Supervisor is the person most familiar with the
resources and the people on their unit and is usually the most
appropriate person to make decisions affecting those lands. This
provision has not changed from the 2000 planning rule. Together,
environmental management systems, science, monitoring, evaluation,
interdisciplinary teams, public participation, objection process, and
other laws and direction all aid in providing relevant information for
the decisionmaker.
However, the final rule retains the provision in the 2002 proposed
rule to allow higher-level officials to serve as Responsible Officials.
Also, the final rule retains the provision of the 2002 proposed rule
for an objection process in which the Reviewing Officer, who is the
supervisor of the Responsible Official, must respond to objections
before approval of a plan, plan amendment, or plan revision (Sec. Sec.
219.13 and 219.16).
Comment: Forest Service Strategic Plan. Some respondents observed
that the 2002 proposed rule only acknowledges the existence of the
Strategic Plan and does not provide guidance about using the Strategic
Plan in new plans, plan amendments, or plan revisions.
Response: The Strategic Plan provides an overall vision for
management of the NFS. Land management plans, projects, and activities
contribute to the vision and Responsible Officials approve them within
the context of the Strategic Plan. The Department believes that
decisions regarding how plans should use the Strategic Plan are best
made at the national forest, grassland, prairie, or other comparable
administrative unit level.
Section 219.3--Nature of Planning and Land Management Plans
The direction found in Sec. 219.2 of the 2002 proposed rule has
been redesignated at Sec. 219.3 as part of the reorganization of the
final rule. The direction found in Sec. 219.3 of the 2002 proposed
rule has been moved to Sec. 219.2 of the final rule. Section 219.3
describes the nature of planning, and the force and effect of plans.
Comment: Desired conditions as the purpose of planning. Some
respondents believed that the final rule should establish desired
conditions as the fundamental purpose of a plan and that this section
of the final rule provides a clear statement of what a plan will do.
Others said that the focus on desired conditions may be too narrow in
light of the overall goals of multiple use and sustained yield. Others
commented that the primary purpose should be to integrate human
activities and ecological processes. Still others said that the term
``desired conditions'' was too susceptible to multiple interpretations
and the purpose of a plan should be changed to ``fulfill multiple-use
objectives to ensure ecological sustainability.''
Response: The Department concluded that, while ``desired
conditions'' may drive how the other plan components are developed,
``desired conditions'' are not the ``primary purpose'' of a plan. The
final rule has been changed at Sec. 219.7(a) to clarify that plans
also provide objectives, guidelines, suitability of areas, and special
areas. There is further discussion of desired conditions in the
preamble to the final rule in the section entitled ``The strategic and
adaptive nature of land management plans.'' Plans are developed in
light of the overall goal of managing the NFS lands as described in
Sec. 219.1, which is to sustain the multiple uses of its renewable
resources in perpetuity while maintaining the long-term productivity of
the land.
Comment: Oil and gas leasing decisions. Some respondents felt that
the 2002 proposed rule's emphasis on the programmatic nature of plans
is contrary to the Federal Onshore Oil and Gas Leasing Reform Act (Oil
and Gas Leasing Reform Act) of 1987 (Pub. L. 100-203, 101 Stat. 1330-
256, 30 U.S.C. 181, 226, 226-3), Forest Service regulations, and the
Mining and Minerals Policy Act of 1970 (30 U.S.C. 21a), which these
respondents say, require project or activity decisions to be made in a
plan.
Response: The Forest Service directives will include guidance on
making an initial availability decision for oil and gas leasing where
there is the geologic potential for the occurrence of such resources or
where there has been an expression of interest in leasing. There is no
irretrievable or irreversible commitment of resources unless and until
the Department of the Interior decides to issue a lease, giving certain
exclusive rights to the lessee. Ground-disturbing activity and the
final irreversible and irretrievable commitment of resources occur only
when a decision approves a surface use plan of operations. Exploration
or development of a lease requires additional environmental analysis,
public disclosure, and specific project decisions by the appropriate
regulatory agencies.
Because plans include plan components that describe which lands are
generally suitable for consideration for energy and mineral leasing,
they meet the intent of the Oil and Gas Leasing Reform Act, the Forest
Service regulations for oil and gas resources, and the Mining and
Minerals Policy Act. Specific project decisions to explore or develop a
lease or mining claim are properly deferred to the project or activity
level.
Comment: Management zone authorities. Some respondents said that
only counties have authority to create zoning ordinances. Others said
that the zoning system creates a dominant or single use that is
contrary to multiple-use.
Response: The Forest Service is responsible for managing the lands
of the NFS under NFMA and other laws. The terms ``zoning'' or ``zone''
were not in the text of the 2002 proposed rule, nor are they in the
text of the final rule. The Forest Service is not issuing zoning
ordinances. The preamble to the 2002 proposed rule described plans as
creating ``zones'' in the forest. The Department used the term as a
metaphor to help describe how plans may identify suitability of areas.
Section 219.4--National Environmental Policy Act Compliance
Compliance with NEPA was addressed in Sec. 219.6 in the 2002
proposed rule. This section has been redesignated at Sec. 219.4 as
part of the overall reorganization of the final rule. This section of
the final rule describes how planning will comply with NEPA.
Comment: Applicability of NEPA, NEPA documentation, NEPA
``significance,'' and the nature of forest plans. Some respondents said
that NEPA is not applicable to planning, noting that a plan should
provide a framework for future project and activity decisionmaking and
that the
[[Page 1040]]
disclosure of effects in plan-level NEPA documents is necessarily
speculative; some said that plans do not significantly affect the
environment. Others said that it might be more advantageous to make as
many project-level decisions during the forest planning process as
possible, because one NEPA analysis document could be used to make
numerous decisions. Another said that failure to make decisions at the
plan level would delay implementation of projects.
Some respondents supported categorically excluding plans from NEPA
documentation, while others suggested that the criteria for
categorically excluding plans were unclear, or that extraordinary
circumstances in the plan area would always preclude the use of a
categorical exclusion (CE). Some respondents thought the criteria for
determining whether a CE is appropriate gives the Responsible Official
too much discretion; others thought the degree of discretion
appropriate. Some respondents indicated that they did not see the
relationship between categorically excluding plans from NEPA
documentation and achieving a more streamlined, adaptive planning
system and holding the Forest Service accountable for its plans. Some
interpreted categorically excluding plans from NEPA documentation as
not complying with NEPA, rather than application of a provision of the
NEPA regulations.
Many questioned how certain procedures, such as plan analysis and
public involvement, would occur if a CE is used. Many people questioned
how cumulative effects would be considered if a CE was used, and how
monitoring would occur. Some wanted clearer and stronger direction for
when a plan might be categorically excluded and when an environmental
impact statement (EIS) would be required. Some respondents asked the
Forest Service to distinguish between effects to the environment and
effects to the human environment.
Respondents stated a number of reasons in support of an EIS for
plans. Some respondents commented that plans, by their very nature, are
controversial and therefore should require an EIS. Some commented that
the requirement of the 1982 and 2000 planning rules to prepare an EIS
for plans and revisions was an acknowledgment that plans are major
Federal actions having significant effects on the environment. Others
suggested that a substantial change in the existing situation on the
ground or a substantial change to an existing plan would trigger an
EIS. Some respondents said that the 2002 proposed rule misconstrued the
role of a plan and thus the applicability of NEPA, saying that a plan
is not just a simple framework, but rather creates changes on-the-
ground that have environmental consequences. Some said that if a plan
acts as a zoning document and authorizes increased motorized
recreational uses, detailed analysis would have to occur in the plan
analysis for all affected sites. Some respondents thought that the 2002
proposed rule differentiated between whether an EIS would be required
for plan revisions, as opposed to new plan development, arguing that
existing plans must need ``significant'' changes because conditions had
changed since the plans were originally adopted.
However, some said that a better approach, instead of focusing on
``zones,'' would be to describe where in the plan area certain uses
would have dominance over other uses. Others said that plans should set
timber sale schedules; indicate what areas are available for logging,
grazing, off-road vehicles use, and mineral extraction; and establish
unique areas for protection, and that NEPA documentation would be
necessary to make such decisions. They said that plans should establish
measurable and enforceable standards and objectives. Others said that
management activities must be analyzed on a site-by-site basis in a
NEPA document for the plan.
Some respondents thought that in the absence of an EIS, the Forest
Service would ignore information that would curb timber harvesting.
Some thought that an EIS was needed to ensure ecological sustainability
because adequate analysis needs a long-term view that considers
science.
Some respondents commented that there is a history of case law that
requires the Forest Service to follow not only NEPA, but also the
Council on Environmental Quality (CEQ) regulations at 40 CFR parts
1500-1508. Some respondents raised a number of NEPA regulation
requirements for ``significance,'' including the uncertainty of
effects; the potential for establishing a precedent for future actions
with significant effects; connectivity of actions; potential violations
of Federal, State, or local environmental laws; consideration of the 10
``significance'' factors in the CEQ regulations; and various other
factors.
Response: As described in the ``Overview of the Final 2004 Rule,''
land management plans under this final rule will be strategic and
aspirational in nature. They will include decisions with on-the-ground
effects only in extraordinary circumstances. If a plan includes on-the-
ground decisions, it will not fall within the categorical exclusion
being proposed in connection with this final rule. Otherwise, it will
be categorically excluded from NEPA documentation due to the fact that
the adoption or amendment of plans containing the five plan components
described above is not a major federal action significantly affecting
the environment. Simultaneously with this rulemaking, the Forest
Service is proposing to revise its NEPA procedures to provide a new
categorical exclusion for plan development, amendment, and revision.
The Forest Service is seeking comment on the proposed categorical
exclusion. Information developed in plan monitoring and evaluation,
including those required by Sec. 219.6, may be incorporated by
reference in applicable NEPA documents and used as basis for the
analysis needed for specific project and activity decisions. The final
rule establishes a planning process that complies with NEPA in a manner
appropriate for NFMA planning. The final rule does not preclude Forest
Service participation in development of an EA or EIS in a joint
planning effort with another Federal agency.
The Department emphasizes that project or activity decisions are
generally not appropriate for inclusion in a plan level document;
experience has shown that including project and activity decisionmaking
in planning has actually delayed the planning and project and activity
processes without improving natural resource management or public
participation. Thus, by sharpening the distinction between planning and
project and activity decisions, the Department expects both better
planning decisions and more useful and timely environmental analysis
for project and activity decisionmaking. Experience has shown the
futility of attempting detailed project and activity proposals at the
time of plan approval: the NEPA documentation for the proposed projects
and activities would be largely speculative and unwieldy and would not
account for unforeseen circumstances. Most of the document would be out
of date by the time most of the projects or activities would be ready
for decisionmaking.
Paragraph (d) of Sec. 219.4 specifies that nothing in this rule
alters the application of NEPA to proposed projects and activities. For
example, a decision to allow motorized recreational use within the plan
area may be made contemporaneously with, but not as a part of, a plan,
but such decision can only be made upon the completion of the
appropriate level of NEPA analysis.
[[Page 1041]]
The Department believes that, in general, an EIS does not need to
accompany planning decisions made pursuant to NFMA, particularly given
that plans under the final rule will contain five components merely
setting forth desired conditions, objectives, guidelines, suitability
of areas, and special areas. Until now, the agency's practice under
NEPA has been to require programmatic EISs for plan development and
revision, and EISs or EAs for proposed plan amendments. Because a plan,
in most cases, is a framework for future action, EISs prepared at the
plan level had no proposed ``action'' on which to focus. Similarly,
disclosure of effects of a plan included discussions of possible
environmental impacts from an array of potential projects and
activities whose dimensions and details were far from certain and
ranged over a 15-year period for implementation without an ability to
predict unforeseen natural events. To conduct a meaningful evaluation
of environmental impacts, and to provide helpful information to
decisionmakers, the agency must examine the details of proposed
activities, the extent of those activities, the specific location of
those activities, the environmental conditions at the site when the
activities are proposed, past and reasonably foreseeable future actions
that might relate to the cumulative impacts of the proposed activities,
and reasonable mitigation measures, if appropriate. After 25 years of
experience, the Department now knows this information is not generally
available at the time of plan approval, and that to provide such
specific information at the time of adopting or amending a plan is an
inefficient use of resources.
Furthermore, between the time of plan evaluation and the design of
projects, the possibilities change. A plan EIS disclosure of potential
cumulative impacts and other unit-wide information are speculative to
begin with, and therefore, quickly become outdated. The agency has
found that a plan EIS typically does not provide useful, current
information about potential cumulative impacts at the time of project
or activity proposals; therefore, relying upon, or ``tiering'' to, a
plan EIS has not proved to be effective over the long term.
Under the final rule, approval of a plan, plan amendment, or plan
revision creates the framework that will lead to projects and
activities for which EISs, EAs, or reliance on CEs will be necessary.
Accordingly, the Department believes it is appropriate at the time of
plan development, plan amendment, or plan revision to begin assembling
appropriate data and other information to be used in those EISs, EAs,
and CEs. Much of this information should come from the environmental
management system processes described in the other parts of this rule.
However, the assembling of data and other information that will be
useful in making future project or activity decisions does not itself
constitute a proposal for major Federal action. Thus, the process of
implementing NEPA is a continuum that begins when the planning
framework is established, and moves through scoping for specific
project and activity decisions, culminating in a NEPA document for the
project and activity proposals.
Moreover, the final rule does provide for extensive analysis, as
set out in Sec. Sec. 219.6 and 219.7. A comprehensive evaluation must
be done for plan development and revisions and updated at least every
five years (Sec. 219.6(a)). This evaluation will provide a broad
overview of current conditions and trends relevant to the plan area.
This overview, along with information from annual evaluations and other
sources, will be part of the continually updated Plan Documents or Set
of Documents that must be considered in project analysis. These Plan
Documents or Set of Documents will provide a better context than had
been provided in plan EISs for project cumulative effects disclosures;
therefore, the Forest Service will make better informed management
decisions at the time it decides to act. The Plan Documents or Set of
Documents required by the final rule will make it easier to propose,
approve, and carry out projects.
Conditions can and do change between the broad ``cumulative
effects'' analysis the agency has done for plan EIS's and a later,
actual project or activity decision. Fires can occur, adjacent
landowners can do something that was not predicted, and the agency can
be doing actions it had not anticipated at the time it developed the
plan and not undertake projects or activities it thought it would.
Under this final rule, the Forest Service uses monitoring and the
results of the comprehensive evaluation with the most up-to-date site-
specific information to provide a basis for the consideration of
cumulative effects for projects and activities. Again, cumulative
effects like project or activity specific impacts are best studied in
the context of a concrete proposal.
The process outlined in the final rule retains and improves upon
the important planning elements the public has come to expect, such as
public involvement; taking into account the best available science;
integrated analysis of social, economic, and ecological systems;
monitoring and evaluation. An EIS is not necessary to ensure that the
public is given an opportunity to participate in the planning process,
or that the agency obtains high quality information, considers the best
available science, and considers the long-term view. Under the final
rule, the opportunities for the public will be greater than those
opportunities required by regulation for an EIS, because the final rule
mandates public involvement opportunities in developing and updating
the comprehensive evaluation report, establishing the components of the
plan, and designing the monitoring program. Additionally, by requiring
an EMS, combined with the procedures in the Forest Service directives,
the final rule provides for agency accountability through impartial and
objective audits, management reviews, and public disclosure of the
results of those reviews.
Plans under this final rule will not contain final decisions that
approve projects and activities except under extraordinary
circumstances. Guidelines, which are intended to provide some direction
in how to implement decisions, have no influence until they are applied
in a project or activity. The identification of an area as generally
suitable for a use is not a commitment or decision approving projects
and activities. Any proposed use in an area identified as suitable for
that use must be separately considered under agency NEPA procedures at
the time of a project decision. Desired conditions and objectives are
not commitments or final decisions approving projects and activities in
the plan area. Special areas may be designated by statute or through
plan development, plan amendment, or plan revision or a separate
administrative process under NEPA and other applicable laws. In
summary, none of these component parts of a plan is permanent, or
final, in that all are subject to reconsideration and change through
plan amendment or plan revision at any time. Should a Responsible
Official nevertheless choose to include projects or activities within
the context of a plan, plan revision, or plan amendment, extraordinary
circumstances may be present such that an EIS or an EA may be required.
From more than 25 years of NFMA planning experience, the Department
concluded that it can most efficiently and appropriately evaluate and
analyze the environmental consequences of an
[[Page 1042]]
array of potential projects and activities when those matters reach the
status of a proposal. Making planning a more continuous process, not
dependent on environmental impact statements that only give a
prediction at one point in time, will actually make plans more relevant
to projects by collecting, evaluating, and monitoring data on an
ongoing basis, thereby maintaining a current base of information that
Forest Service can use at the project or activity level.
Comment: Alternative or option development. Some respondents
questioned how alternatives--when developing plans, amendments, or
revisions--would be considered if plans were categorically excluded
from NEPA documentation. Others emphasized the importance of forming
effective partnerships with government, private landowners, industries,
and others to promote consensus and reduce the need for numerous
alternatives. Some expressed concern that the agency would consider
only its proposed plan and not the comments on, or alternatives to, the
plan. Others asserted that NEPA requires a full range of alternatives,
while others said only two alternatives are needed.
Response: Requirements for how options may be considered while
developing plans, amendments, or revisions are found in Sec.
219.7(a)(6) of this final rule. The Department recognizes that people
have many different ideas about how NFS lands should be managed and
that the public should be involved in determining what the plan
components should provide. Therefore, the final rule provides for
participation and collaboration with the public at all stages of plan
development, plan amendment, or plan revision. The Responsible Official
shall work closely with the public to develop the proposed plan, plan
amendment, or plan revision. Key steps in development of the proposed
plan shall be documented in the plan set of documents, which will be
available to the public. The proposed plans that the Forest Service
presents for public comment shall be jointly and collaboratively
developed with the public.
Section 219.5--Environmental Management Systems
This section has been added to the final rule to address public
comments regarding how planning relates to adaptive management.
Adaptive management was addressed in Sec. 219.11, Monitoring and
Evaluation, in the 2002 proposed rule. Both the proposed and final rule
define adaptive management as an approach to natural resource
management where actions are designed and executed, and effects are
monitored for the purpose of learning and adjusting future management
actions, which improves the efficiency and responsiveness of
management. The ``Overview of the Final 2004 Rule'' section of the
preamble provides a detailed description of the provisions of this
section as developed through the response to public comments.
The Department has chosen to require each administrative unit to
carry out an EMS based on standards developed by the International
Organization for Standards (ISO). Each administrative unit's EMS will
serve as a framework for land management planning, adaptive management
and, at the project level, provide information for EISs, EAs, or CEs
where required by NEPA. The EMS will provide a structured and
documented process for evaluating each unit's environmental conditions,
setting objectives to meet the unit's legal and public obligations,
developing programs and procedures for managing the unit under the land
management plan, monitoring and measurement procedures to collect and
track information about environmental conditions, and corrective action
and review processes to provide a ``feedback loop'' to push for
continual improvement.
Section 219.6--Evaluations and Monitoring
This section has been organized to specify requirements for plan
evaluation and plan monitoring. Monitoring and evaluation requirements
were found in Sec. Sec. 219.4(a)(6) and 219.11 of the 2002 proposed
rule. The final rule allows the monitoring program to be changed with
administrative corrections and public notification, instead of
amendments, to more quickly reflect the best available science and
account for unanticipated changes in conditions. Changes in a
monitoring program will be reported annually, and the Responsible
Official has flexibility to involve the public in a variety of ways in
developing any changes to the program. Discussions of both evaluation
and monitoring are found in the ``Overview of the Final 2004 Rule''
section of the preamble.
One clarification regarding the requirement at Sec. 219.6(b)(2)(i)
may be helpful. This paragraph requires that the plan monitoring
program shall monitor to determine the effects of management on the
productivity of the land. The term ``productivity'' refers to all of
the multiple uses, such as outdoor recreation, range, timber,
watershed, and wildlife and fish. Use of this term is broader than just
commercial uses.
Comment: General. Several respondents supported the monitoring and
evaluation provisions of the 2002 proposed rule, because they observed
that the 2002 proposed rule provided the appropriate level of
monitoring and evaluation. Others thought the 2002 proposed rule gave
too much flexibility to the Responsible Official, weakening monitoring
and evaluation requirements. Some respondents wanted the requirements
from the 2000 planning rule retained because they felt the 2002
proposed rule did not have sufficient requirements to mandate adequate
monitoring and evaluation.
Others thought the Responsible Official was given the appropriate
level of flexibility to allow for alteration of monitoring and
evaluation strategies and methods. Still others thought the 2002
proposed rule had burdensome requirements that needed to be relaxed.
One person suggested the Forest Service establish an independent
division to ensure monitoring compliance. Some suggested specific
monitoring they believed was needed.
Several respondents submitted suggestions about how the Forest
Service evaluates the information obtained from monitoring. One
respondent stated that the use of evaluation is fuzzy and needs
clarification. Others suggested that evaluation could be used to
indicate the need for a new use of the NFS. Another cautioned that any
evaluation of the information obtained from monitoring should include
an estimate of error reliability of any apparent trend to preclude
premature or ill-advised corrections.
Response: The Department believes that monitoring and evaluation
are a critical and necessary part of the planning process. As the 2002
proposed rule provided, the final rule requires the Responsible
Official to provide for monitoring of degree to which on-the-ground
management is maintaining or making progress toward the desired
conditions and objectives for the plan (Sec. 219.6(b)(2)). The
Department has strengthened this section in the final rule by adding a
requirement for comprehensive evaluation of the area of analysis (Sec.
219.6(a)(1)) at no longer than 5-year intervals and conducting an
evaluation when amending a plan (Sec. 219.6(a)(2)). In addition, the
use of an EMS with impartial and objective audits will address both the
concerns expressed in the comments for local flexibility and those for
agency accountability and compliance. The Department has also added a
provision that the monitoring program take into account the best
available science to
[[Page 1043]]
improve the evaluation process. These evaluations are an integral part
of answering key planning questions such as the state of social,
economic, and ecological conditions and trends, and the need for an
amendment or revision.
Comment: Involvement of science. Several respondents wanted
assurance that science would be involved in monitoring.
Response: The Department believes that the taking into account the
best available science is important in monitoring and in evaluating
results. The Department added the provision that the monitoring program
shall take into account the best available science at Sec. 219.6(b).
In addition, the final rule at Sec. 219.11 retains the intent of the
2002 proposed rule (Sec. 219.14) that requires the consideration of
best available science during planning, including the development and
implementation of monitoring program.
Section 219.7--Developing, Amending, or Revising a Plan
The provisions in Sec. Sec. 219.4, 219.7, 219.8, 219.9, 219.15,
and 219.18 of the 2002 proposed rule have been combined at Sec. 219.7
of the final rule so that procedural requirements are located in one
section. This section includes requirements for plan components;
planning authorities; plan process, including review of areas with
potential for wilderness recommendation; administrative corrections;
Plan Document or Set of Documents; and the plan approval document. The
detailed public participation, collaboration, and notification
requirements found in Sec. Sec. 219.7, 219.8, and 219.12 of the 2002
proposed rule have been moved, with additional detail, and consolidated
at Sec. 219.9 in the final rule to improve clarity and readability.
Section 219.7(b) provides for administrative corrections. The final
rule, at Sec. 219.7(b)(5), adds a new category for administrative
corrections to include changes in the Plan Document or Set of
Documents, except for changes in the plan components. The Department
made this addition because, although an emphasis of the final rule is
to allow for continual inclusion of new science and other information
into the Plan Document or Set of Documents, the 2002 proposed rule
included no specific vehicle for allowing this supplementation and
change to occur. Changes to the Plan Document or Set of Documents may
also occur when outdated documents are removed, for example, when a new
inventory replaces an older one. The addition of this new
administrative correction category fills this procedural gap.
Comment: Desired conditions. Some respondents said that it is
unclear what the desired conditions for the plan area will be and who
makes the decision on which desired conditions will be included in the
plan. Some said specific substantive requirements should be
established, such as requiring desired conditions to mimic natural
conditions, or employment of a policy such as ``limits of acceptable
change.''
Response: Desired conditions are one of the plan components (Sec.
219.7(a)) developed through public collaboration and participation. The
Responsible Official is the decisionmaker for the plan. The Responsible
Official will consider public participation, the comprehensive
evaluation, monitoring information, legal requirements, and assessments
in deciding on desired conditions for the plan area. The final rule at
Sec. 219.7(a) clarifies that desired conditions are the ``social,
economic, and ecological attributes'' toward which the plan is to be
directed.
Because desired conditions are a component of a plan, but not
necessarily the primary focus of a plan, the final rule removes the
words ``primary focus of a plan.'' As it will for all plan components,
the public will have an opportunity to comment on all aspects of the
proposed plan, including desired conditions (Sec. 219.9), and may
object to the plan in whole or in part (Sec. 219.13) if they have
concerns. A discussion of plan components is found in the ``Overview of
the Final 2004 Rule'' section of the preamble.
Comment: Objectives. Some respondents said that plan objectives
must be clear and measurable. They said that plans should provide for a
good faith commitment to accomplish a plan's multiple-use and
sustained-yield objectives. Others said that it may be
counterproductive to write simple objectives when many factors lead to
complexity in their implementation. Some said that the 2002 proposed
rule lacks policy direction concerning the extent to which investment
in resource management activities may support different outputs. Others
said the push for clear objectives, where there is no clear science,
will lead to direction that is meaningless and simply become a tool of
a political agenda. Others said the final rule should explicitly
provide for forest plan objectives to be established in accordance with
guidelines in the Forest Service directives.
Response: The final rule retains the provision of the 2002 proposed
rule stating that objectives are measurable outcomes intended to guide
management toward reaching desired conditions. Objectives can be
thought of as a prospectus of outcomes, based on past performance and
estimates of future trends. Objectives should be measurable so progress
toward attainment of desired conditions can be determined. Variation
should be expected due to changes in environmental conditions,
available budgets, and other factors. In addition, the Department added
the concept of maintenance of desired conditions to the description of
objectives, because the desired conditions may already have been met
and only need to be maintained.
Comment: Standards. One respondent commented that clear, measurable
standards are important. One respondent identified the intent of the
proposed regulations to simplify, clarify, and minimize the standards.
Some said that only measurable standards allow the public to know what
the Forest Service is doing. Some said that NFMA requires enforceable
standards and that judicial review would be more difficult without
measurable standards. Some said that standards should be defined as
``requirements'' instead of ``limitations.'' Others wanted to make
clear that standards can be forest-wide or area-specific.
Response: As explained in the ``Overview of the Final 2004 Rule''
section of the preamble, the Department has replaced the component of
``standards'' with ``guidelines.'' The Department believes requiring
mandatory standards are too restrictive; however, guidelines will be
used and, in many cases, will be measurable. Policy contained in the
Forest Service directives will provide the detailed direction for
writing plan guidelines. The Forest Service directives will provide
criteria for guidelines, requiring they be written clearly, so decision
makers and the public know when a project is consistent with the
guidelines.
While the final rule will not require standards, the public shall
be kept informed about what the Forest Service is doing by procedures
such as: (1) Providing opportunities for the public to collaborate and
participate (Sec. 219.9(a)); (2) opportunities to object before
approving plans, plan amendments, or plan revisions (Sec. 219.13(a));
and (3) public notice requirements for land management planning (Sec.
219.9(b)), NEPA procedures for projects and activities, and annual
evaluation of monitoring results. The final rule also allows for
forest-wide and area-specific guidelines.
[[Page 1044]]
Comment: Special designations. Some respondents suggested that the
final rule should contain language that addresses presidential and
congressionally designated areas. Respondents stated that the 2000
planning rule gives the Responsible Official too much discretion when
evaluating roadless areas for special designation. Some said the final
rule should provide standards for the Responsible Official to follow
when evaluating and considering special designations of the roadless
areas. Some said these standards should ensure that evaluations of
roadless areas are completed, taking into account the best available
science, and focus on ecological sustainability. One group wanted to
ensure that special designations are not determined in a vacuum
favoring only ecological values, and the group said that social and
economic values must also be addressed. Others felt the effects of
special designations should be considered for recreational access and
mirror the increasing demand for recreation. Some said the final rule
should require that plans set specific goals, such as an amount or a
percentage of the forest for special area recommendations.
Response: Special area identification is an integral part of the
planning process. The proposed and final rules provide for the
identification of special areas in the plan. After reviewing comments,
and consideration of the Forest Service's experience with planning over
the past 25 years, the Department concluded that guidance about special
area concerns, such as roadless area evaluations or social and economic
values, are more properly included in the Forest Service directives.
Provisions in directives can be more extensive and can be more easily
changed as the agency learns how to improve its processes and as new
scientific concepts become available.
Comment: Specific uses. Many respondents suggested that the final
rule identify specific uses that should be included in plans. One
person suggested that the final rule provide for large recreational
gatherings. Another said that livestock grazing should be specifically
discussed.
Response: Plans establish desired conditions, which include
recognition of the type of societal benefits that the NFS provides. The
final rule begins with a presumption that lands are available for
multiple uses and that plans will identify suitable uses that best fit
the local situation.
Comment: Need for amendment or revision. Several respondents were
concerned about the discretion the 2002 proposed rule gives the
Responsible Official in determining when a plan amendment or plan
revision is needed. Some felt the final rule needs clear direction on
when to propose a plan amendment or plan revision. Of equal concern was
the discretion given to the Responsible Official to decide which issues
would be considered in an amendment or revision. They felt that without
specific requirements resources, such as flora and fauna, would not be
analyzed for every plan amendment or plan revision. One respondent did
not want plans to be revised or amended after disturbance events, such
as wildfire, insect epidemics, and windstorms. Others supported
limiting the analysis required in amending or revising a plan.
Response: The final rule provides the Responsible Official
discretion about whether or not to initiate a plan amendment or plan
revision (subject to the NFMA requirement that the plan be revised at
least every 15 years) and what issues to consider (Sec. 219.7(a)(4)).
The evaluations required by the final rule will document current
conditions and trends for social, economic, and ecological systems
within the area of analysis (Sec. 219.6(a)) and aid the Responsible
Official in determining if a plan amendment or plan revision is needed
and which issues need to be considered. The Responsible Official may
amend or revise the plan based on monitoring and evaluation, as well as
other factors. The Department believes that the efficiencies of the
final rule would be reduced if the final rule identified specific
issues that must be considered for every plan revision or plan
amendment.
Comment: Interim amendments. Many respondents did not support
interim amendments and suggested this provision be removed or at least
have additional parameters added. Others supported this concept.
Response: The final rule allows for an efficient plan amendment
process. Therefore, there is no need for interim amendments.
Accordingly, the interim amendment provision has been removed from the
final rule.
Comment: Significant plan amendments. Many respondents were
concerned with how ``significance'' is determined for an amendment.
Some wanted significance described, while others suggested certain
factors to determine significance. Others wanted to understand the
connection between an EIS and NFMA significance with respect to the
2002 proposed rule's provision that every amendment prepared with an
EIS would be deemed a significant amendment.
Response: The Department decided not to distinguish between
``significant'' and ``non-significant'' amendments. The Department is
not requiring an EIS with any plan amendment. The final rule treats all
amendments as ``significant,'' except when an amendment would relate
only to a proposed project or activity. Plan amendments prepared under
the procedures described in this final rule must have a 90-day comment
period (required for significant amendments by NFMA) and must have an
objection opportunity. Plan amendments associated with a proposed
project or activity will follow the NEPA documentation required for the
project or activity, as well as notice and comment requirements for the
project or activity.
Comment: Roadless area evaluation. Some respondents felt that under
the 2002 proposed rule, the requirements for evaluation and protection
of the roadless areas' ecological values had been eliminated, allowing
the Responsible Official to redefine roadless area boundaries upon a
determination of circumstances deemed necessary and appropriate. Some
felt this language was too broad, deferred too much authority to the
Responsible Official, and would eliminate many lands from consideration
for new wilderness, though they still met the physical requirements of
a roadless area. Others supported the requirement that the Responsible
Official review and validate the maps of inventoried roadless areas and
then adjust them as necessary and appropriate.
Response: The Department has moved this provision from Sec.
219.15(b)(3) in the 2002 proposed rule to Sec. 219.7(a)(5)(ii) in the
final rule. Because the 2002 proposed rule caused confusion concerning
roadless area evaluation, the Department has changed the wording to
describe these areas from ``inventoried roadless areas'' to ``lands
possessing wilderness characteristics.'' The final rule at
219.7(a)(5)(ii) directs Responsible Officials to ensure that, unless
otherwise provided by law, all NFS lands possessing wilderness
characteristics be considered for recommendation as potential
wilderness areas during plan development or revision. Policy and
guidance contained in the Forest Service directives will provide the
detailed direction for the identification of these areas and the
evaluation process to follow in carrying out this requirement.
[[Page 1045]]
Section 219.8--Application of a New Plan, Plan Amendment, or Plan
Revision
This provision, found in Sec. 219.10 in the 2002 proposed rule,
has been redesignated at Sec. 219.8 as part of the overall
reorganization of the final rule. This section of the final rule
describes how and when new plans, plan amendments, or plan revisions
are applied to new or ongoing projects or activities. The general
outline and intent of this section in the final rule is similar to the
corresponding section of the 2002 proposed rule. However, Sec.
219.10(e) of the proposed rule addressing testing and research projects
was removed from the final rule because the acknowledgement that these
projects are subject to all applicable laws is not necessary. While the
2002 proposed rule required project or activity consistency with
standards, the final rule requires consistency with the applicable
plan.
Comment: Valid existing rights. Respondents were both for and
against the 2002 proposed rule provision that new plan direction is
subject to valid existing rights. Those in favor supported respecting
these rights. Those against said that protection of ecological
conditions should take precedence.
Response: The final rule at Sec. 219.8(a)(2) is consistent with
NFMA (16 U.S.C. 1604(i)) which specifies that any revision in present
or future permits, contracts, and other instruments made pursuant to
the act shall be subject to valid existing rights.
Comment: Consistency with the desired conditions. Several
respondents commented that under the 2002 proposed rule, projects do
not need to be consistent with standards; they only have to disclose
the project's relationship with desired conditions. Some said that NFMA
requires all projects to be consistent with the plan and said that if
desired conditions are in the plan, projects need to be consistent with
them. They also said the public will be disappointed to find out that
plans have no ``teeth.'' Others were concerned that the 2002 proposed
rule emphasizes desired conditions and objectives, which by definition
may never be attained.
Response: NFMA (16 U.S.C. 1604(i)) requires that resource plans,
permits, contracts, and other instruments for the use and occupancy of
NFS lands be consistent with land management plans. In response to
public comment, Sec. 219.8(b) was added to the final rule to describe
how projects or activities developed after approval of the plan must be
consistent with applicable plan components. The Department removed two
provisions: (1) the provision limiting consistency to standards and (2)
the provision requiring disclosure of the project's relationship to
desired conditions.
In the final rule, if an existing or proposed project or activity
is not consistent with the applicable plan, the Responsible Official
must take one of the following actions: (1) Modify the existing or
proposed project; (2) reject the proposal or terminate the existing
project; or (3) amend the plan. The Department changed the final rule
so the wording conforms to 16 U.S.C. 1604(i).
Comment: Consistency with standards. Several respondents commented
on the requirements that projects or activities not consistent with
standards be either modified or rejected, or the plan be amended. Some
said projects should not be exempted from standards, while others said
that the final rule should specify that changes must be considered
within the context of NEPA.
Response: The Department changed the final rule so that projects or
activities must be consistent with the applicable plan. A project or
activity-specific amendment does not ``exempt'' a project from the
plan, but rather, the amendment changes the plan, for that project. If
a plan amendment is necessary as part of a project or activity
decision, that decision will be considered in accordance with project
NEPA procedures.
Section 219.9--Public Participation, Collaboration, and Notification
This section of the final rule consolidates 2002 proposed rule
provisions for public notifications and comment periods found in
Sec. Sec. 219.7, Amending a plan; 219.8, Revising a plan; 219.12,
Collaboration, cooperation, and consultation; and 219.21, Notice of
plan decisions and effective dates. A discussion of public involvement
is found in the ``Overview of the Final 2004 Rule'' section of the
preamble.
General comments: Some respondents expressed the belief that the
2002 proposed rule excludes the public from participation in the
planning process, and they wanted clarification of what the public's
role would be under the final rule. Some were concerned that the 2002
proposed rule no longer requires landscape goals be developed
collaboratively. Additionally, some wanted a uniform process for public
involvement. One person suggested the agency allow e-mail and other
nontraditional forms of public participation and notification. One
respondent said the Forest Service should not allow any public
participation in planning. Many supported the 2002 proposed rule
requirements for public involvement. Some respondents stressed the need
for open and vigorous public participation. One Tribal group supported
the requirement for consultation with federally recognized Indian
Tribes. Others supported a broader range of media than is currently
being used for public notification. Another felt the final rule should
be specific about where plans are made available and about local public
meetings. Some felt that a Notice of Intent should be placed in the
Federal Register for all revisions.
Response: The Department strongly supports public involvement in
planning. Public participation, collaboration, and notification
requirements found in Sec. Sec. 219.7, 219.8, and 219.12 of the 2002
proposed rule have been moved to Sec. 219.9 in the final rule to
improve clarity and readability. The final rule states that the
Responsible Official shall use a collaborative and participatory
approach to land management planning. The final rule does not exclude
the public from participation in the planning process. There is a wide
variety of methods for public involvement. For example, where
practical, Responsible Officials may give extended notice of public
meetings, including the use of unit Internet web sites. It is virtually
impossible at the national level to specify details for each type of
public involvement used during a planning process; however, the Forest
Service is developing techniques that will improve public notification
and participation in the planning process. Because planners are
constantly improving these techniques, other forms of direction, such
as the Forest Service directives, are more appropriate ways to
prescribe the ``how to'' details of public notification.
Neither the 2002 proposed rule nor the final rule used the
cooperative development of landscape goals, because this specific
activity should not be a requirement of all planning efforts. It may
not always be useful and may often be unachievable with participating
groups. The Department also believes that one standard process for
public involvement would not be effective for every unit in the NFS.
The size and scope of issues, the interest level of the public, and the
resources vary across the country. Therefore, the final rule requires
the Responsible Official to involve the public, but allows discretion
for the particular type of public involvement process used.
[[Page 1046]]
The final rule retains the requirement of the 2002 proposed rule
that the Responsible Official provide opportunities for individuals and
entities to participate, consult with federally recognized Indian
Tribes, and provide for a 90-day public comment period. The final rule
has added requirements that public involvement must occur in developing
and updating the comprehensive evaluation report, establishing the
components of the plan, and designing the monitoring program (Sec.
219.9(a)).
Other specific methods and timing for public participation and
involvement outside of the formal public notice and comment process
will be developed and implemented on a unit-specific basis so that they
are tailored to the context and the stakeholders. The Department did
not believe it appropriate to establish national ``one-size-fits-all''
requirements. In addition, the Department agrees with comments on the
need for publication of a Notice of Intent to revise in the Federal
Register for all plan revisions. The final rule adds the requirement
that notification of new plans and plan revisions be published in both
the Federal Register and the newspaper(s) of record.
Comment: Advisory Committees. One respondent suggested the use of
an advisory committee as a means to improve public involvement. Another
wanted a multi-agency review board. Another person wanted to know why
the Department had not required advisory committees in the 2002
proposed rule. Several respondents supported the elimination of an
advisory committee (required by the 2000 planning rule) as they felt
the general public would be left out of the planning process. Two
recreation organizations felt that this elimination was a vast
improvement and would invigorate the public participation process.
Response: The Department believes that an advisory committee, or
something similar, may be the most effective method to engage the
public in some situations, but it may not be effective in other cases.
As in the 2002 proposed rule, the final rule allows the Responsible
Official the discretion to determine the methods of public involvement
opportunities, which can include, but does not require, advisory
committees.
Comment: Local involvement. Several respondents wanted local input
to have priority over other input. Others were concerned that only
special interests were being heard.
Response: The NFS lands belong to all citizens of the United
States. The Department values involvement by all interested parties,
and understands the particular importance of local citizens and
governments in the planning process. Responsible Officials will address
local social, economic, and environmental issues in the evaluations for
plans, plan amendments, or plan revisions.
Comment: Public comment period. Some respondents suggested the
establishment of a required comment period for plans, plan amendments,
and plan revisions. Some said that all plans should have a 90-day
comment period. Others wanted the public comment period to be longer
than the NFMA requirement of 90 days (16 U.S.C. 1604(d)).
Response: The final rule includes a provision that requires a
public comment period of 90 days for plans, plan amendments (except for
a plan amendment that applies to project or activity decision), and
plan revisions. The final rule consolidates the requirements for public
notification and comment periods into this section so that it is easier
for the public to understand and the agency to follow. Section 6(d) of
NFMA requires a comment period ``of at least three months.'' The final
rule does not preclude the extension of the comment period beyond 90
days.
Section 219.10--Sustainability
The sustainability provisions found in Sec. 219.13 in the 2002
proposed rule have been redesignated at Sec. 219.10 as part of the
overall reorganization of the final rule. This section of the final
rule provides provisions for social, economic, and ecological
sustainability. The final rule retains sustainability as the overall
goal for NFS planning and retains the concept of the interdependent
social, economic, and ecological elements of sustainability (Sec.
219.10) in the 2002 proposed rule. The final rule does not include many
of the specific analytical processes and requirements set out in the
2002 proposed rule. These provisions will be placed in the Forest
Service directives. A discussion of sustainability is found in the
``Overview of the Final 2004 Rule'' section of the preamble.
The agency also hosted a workshop to provide an opportunity for
public discussion of these options and for identification of other
ideas on how to best address the statutory diversity provision.
Interested parties expressed an extremely wide range of opinions, both
in public comments and in response to the workshop. The Department
found these comments useful in developing a scientifically credible and
realistic approach for this final rule to meet legal requirements and
to meet the agency's stewardship responsibilities.
Comment: Sustainability definition. While some respondents focused
their suggestions on clarification of the actual language of the
sustainability section, other respondents suggested that a definition
of the term ``sustainability'' would help clarify this topic. Some
suggested using the 2000 planning rule's definition for sustainability,
others suggested the Department should seek legislative clarification
of definition, and others requested a definition that balances
biological productivity, human use, and economically affordable
management.
Response: The concept of sustainability is first addressed in this
final rule at Sec. 219.1, which provides that, consistent with MUSYA,
the overall goal of managing the NFS is to sustain in perpetuity the
productivity of the land and the multiple uses of its renewable
resources in a manner that best meets the needs of the American people.
Section 219.10 further clarifies that the relationship among, social,
economic, and ecological sustainability is interrelated and
interdependent.
Comment: Biological diversity and species considered. Some
respondents requested that the Forest Service maintain biodiversity on
NFS land. Similarly, there were a number of comments regarding what
categories of species to consider in the final rule. Some respondents
wanted to consider the full array of biodiversity as in Option 2 of the
2002 proposed rule and in the 2000 planning rule, and others agreed
with the focus in Option 1 of the 2002 proposed rule, that identified
only native and desired nonnative vertebrates and vascular plants.
Others did not want to go beyond the specific focus in NFMA on plant
and animal communities and tree species.
Response: The final rule affirms the commitment of the Forest
Service to meet the NFMA requirement that plans provide for diversity
of native plant and animal communities by providing for a plan
framework for sustaining native ecological systems. The final rule at
Sec. 219.10(b)(1) requires that provisions in plan components
establish a framework to provide characteristics of ecosystem diversity
in the plan area. These characteristics are parameters that describe an
ecosystem in terms of the composition (such as major vegetation types,
rare communities, aquatic systems, and riparian systems); structure
(such as successional stages, water quality, wetlands, and
floodplains); principal ecological
[[Page 1047]]
processes (such as stream flows and historic and current disturbance
regimes); and soil, water, and air resources. Providing characteristics
of ecosystem diversity is the primary means by which a plan contributes
to sustaining native ecological systems. Thus, plans provide for
sustaining systems, the systems provide for diversity, and Forest
Service meets NFMA requirements.
The final rule adopts the concept of plant and animal species
consistent with terminology in NFMA, as well as ESA. While adoption of
the concept of comprehensive biodiversity is a worthy goal, the
Department did not deem this necessary to meet the requirements of
NFMA. The concept of biodiversity includes the full variety of life and
associated processes. The Department did not think it was reasonable or
possible to include the full scope and complexity of biological
diversity from microbes to processes such as photosynthesis.
Comment: Ecosystem and species sustainability. Respondents offered
a variety of suggestions regarding the level at which to evaluate
ecosystem sustainability. Some respondents requested that the Forest
Service use a hierarchical approach to evaluate ecosystems, while
others suggested a more iterative process is needed. Some respondents
asked that analytical and evaluation requirements be spelled out in the
final rule. Other respondents wanted ecosystem sustainability in the
final rule to generate requirements for how ecosystems will be
maintained and who will be responsible for their maintenance.
Some respondents commented on the level at which species management
decisions should be made. Some respondents requested that species
management decisions be mandated by the final rule, while others asked
that decisionmaking be left at the level of individual plans. Other
respondents said that special provisions to maintain species are
unnecessary; they asserted that such provisions are not particularly
effective.
Some respondents commented that species maintenance is important
and is mandated by NFMA; they requested that the Forest Service retain
the requirements from the 2000 planning rule. A number of respondents
also requested that the Forest Service work to restore species that
have been extirpated from the plan area.
Response: The final rule adopts an overall goal for the ecological
element of sustainability to contribute to sustaining native ecological
systems by sustaining healthy, diverse, and productive ecological
systems as well as by providing ecological conditions to support
diversity of native plant and animal species in the plan area. To carry
out this goal, the final rule adopts a two-level approach to sustaining
ecological systems: ecosystem diversity and species diversity. The
overall goal demonstrates the Department's commitment to ecosystem
diversity and species conservation. This two-level approach was part of
both Options 1 and 2 of the 2002 proposed rule. The final rule
clarifies the two-level approach and leaves the specific detail
procedures for the Forest Service directives.
As part of the two-level approach, the plan area will be assessed
for remaining species diversity needs after plan components are
developed for ecosystem diversity. The Responsible Official would
evaluate the framework established by the plan components for specific
federally listed threatened and endangered species, species-of-concern,
and selected species-of-interest. If needed, the Responsible Official
would develop additional provisions for these species to maintain a
framework for providing ecological conditions within the plan area that
contributes to the conservation of these species. The Department
selected federally listed threatened and endangered species, species-
of-concern, and species-of-interest for evaluation and conservation
because: (1) These species are not secure within their range
(threatened, endangered, or species-of-concern), or (2) management
actions may be necessary or desirable to achieve ecological or other
multiple use objectives (species-of-interest). Species-of-interest may
have two elements: (1) Species that may not be secure within the plan
area and, therefore, in need of consideration for additional
protection, or (2) additional species of public interest including
hunted, fished, and other species identified cooperatively with State
fish and wildlife agencies.
Comment: Accountability for ecological conditions. Citing a need
for accountability for sustainability, a number of respondents
requested the final rule require land management plans to ``provide
measurable progress toward maintenance or restoration of ecological
conditions.'' A recommendation was made to retain the provision of the
2000 planning rule that requires the Responsible Official to be
accountable for the long-term maintenance and restoration of
ecosystems. A respondent suggested the Forest Service conduct research
on validating a broad suite of indicators that can be used to evaluate
the efficacy of planning in achieving the goal of ecological
sustainability.
Response: The Department believes that the plan components adopted
in the final rule provide accountability for ecological conditions in
that: (1) The land management plan's desired condition component
provides the overall vision; (2) the objectives component provides
measurable intentions for attaining the desired conditions; (3)
guidelines provide the recommended technical and scientific
specifications so that projects and activities conserve species; and
(4) that other provisions and monitoring ensure that the combined parts
of the plan are effective. In addition, EMS will ensure that
Responsible Officials conduct environmental improvement in a systematic
and accountable manner.
Comment: Choosing Option 1 or 2. There were wide varieties of views
on the ecological sustainability options in the 2002 proposed rule. In
general, the response from the public can be grouped into two
categories: those who did not support either option in the 2002
proposed rule and those who supported at least one of the options in
the 2002 proposed rule. Many respondents suggested that neither option
is adequate in the 2002 proposed rule, citing the lack of clarity, the
lack of a Committee of Scientists to assist in the development of the
options, and the lack of enforceability.
Other respondents considered either option to be sufficient and
remarked that both options uphold the agency's NFMA diversity
requirement. Alternative suggestions from respondents included creating
a hybrid of Option 1 and 2; retaining the 1982 viability regulation;
protecting species through monitoring; or adopting one of the new
options presented by participants at the February 2003 diversity
workshop.
Response: The final rule conceptually uses the principles of
ecological sustainability from both Options 1 and 2 of the 2002
proposed rule. The final rule includes an ecosystem diversity provision
that requires the development of plan components to establish a
framework to provide the characteristics of ecosystem diversity. These
characteristics are descriptions of ecosystem composition, structure,
and processes. Responsible Officials may identify these characteristics
for multiple spatial scales within the analysis area and
characteristics may extend to the larger landscape adjacent to and
beyond the plan area. This ecosystem diversity framework provides an
essential ecological context and identifies the unique contributions
that
[[Page 1048]]
NFS lands can make to the three elements of sustainability.
Option 2 required rigorous analysis of ecological conditions in
relation to the range of characteristics of native ecosystems within
the plan area, the range of natural variability. Forest Service
directives will set out the analytical requirements for ecosystem
diversity including abundance, distribution, and condition of selected
characteristics of ecosystem diversity compared to their range of
variation under historical disturbance regimes (or other ecological
reference).
An important principle in the framework of this final rule is the
concept that the more effective the ecosystem diversity provision is in
sustaining species within the ecosystem, the less need there is for
species-specific analysis.
Comment: Species-at-risk, management indicator species, or focal
species. Some respondents asked that the final rule require species-at-
risk and focal species to be identified and maintained. A number of
respondents wanted a survey and monitoring requirement for management
indicator species (MIS) or focal species in the final rule. There was a
suggestion to use reliable historic information to analyze the
population viability of focal species. There were comments in favor of
requiring species surveys and reviews, as well as comments not to have
mandatory survey and monitoring requirements for maintaining
populations of wildlife. Other respondents requested that the Forest
Service continue to use focal species as a means to analyze and provide
for species viability and species diversity.
Response: The concept of MIS was not included in the 2002 proposed
rule and is not in the final rule, except for transition provisions at
Sec. 219.14, because recent scientific evidence identified flaws in
the MIS concept. The concept of MIS was that population trends for
certain species that were monitored could represent trends for other
species. Through time, this was found not to be the case.
The concept of focal species that was proposed by the Committee of
Scientists and adopted in the 2000 planning rule is also not used in
the final rule. The focal species concept is untested and it would not
be prudent to potentially make the same mistake with focal species as
was made with MIS in the 1982 planning rule. However, the concept of
focal species as indicators of the ecological conditions may have merit
and may be included in the Forest Service directives as a tool to
identify monitoring approaches to assess progress towards achieving the
desired condition articulated in a plan.
To focus management attention on the at-risk species, the concepts
of ``species-at-risk'' and ``species-of-concern'' presented in the 2002
proposed rule were further developed in the final rule to make the
provision for species-level analysis clearer and efficient in the
planning process. However, the Department changed the terms used.
``Species-of-concern'' are those species for which their continued
existence is a concern and listing under the ESA may occur (Sec.
219.16). ``Species-of-interest'' are species for which the Responsible
Official determines that management actions may be necessary or
desirable to achieve ecological or other multiple use objectives (Sec.
219.16). The Forest Service directives will describe a systematic,
scientifically credible, and efficient approach, using existing
information, to identify species-of-concern and species-of-interest.
Comment: Protection of water supply, water quality, wetlands, and
riparian areas. Various respondents stated the need to protect the
nation's water supply and require land management plans to address
water quality restoration for those areas identified as water quality
limited under the Clean Water Act. Other respondents believed the final
rule should mandate the protection of wetland and riparian areas, which
are essential for environmental quality and human health.
Response: The Department agrees that water quality is important, as
is restoration of impaired watersheds. The final rule provides specific
provisions at Sec. 219.10(b)(1) for development of plan components
that establish a framework to provide the characteristics of ecosystem
diversity, which include water quality, wetlands, riparian areas, and
floodplains. It is not necessary for the final rule to repeat direction
in the Clean Water Act; in addition, water related issues are not the
same on every unit of the NFS. Forest Service directives will provide
additional provisions as needed.
Section 219.11--Role of Science in Planning
This provision was contained in Sec. 219.14 in the 2002 proposed
rule, and was redesignated as Sec. 219.11 as part of the
reorganization of the final rule. The final rule requires the
Responsible Official to take into account the best available science.
The final rule puts the burden on the Responsible Official rather than
on the plan. The words ``consistent with'' has been replaced by ``take
into account'' because this term better expresses that formal science
is just one source of information for the Responsible Official and only
one aspect of decisionmaking.
The final rule, like the 2002 proposed rule, states that the
Responsible Official may use independent peer reviews, science advisory
boards, or other review methods to evaluate science used in the
planning process. Forest Service directives will provide specific
procedures for conducting science reviews. The ``Overview of the Final
2004 Rule'' section of the preamble discusses the role of science in
planning.
Comment: Role of science. Some respondents felt that the 2002
proposed rule should add emphasis to the role of science, while others
felt that the 2002 proposed rule provided a welcome relief from the
2000 planning rule by eliminating excessive process requirements. Some
felt that the 2002 proposed rule made the use of science and the review
of science consistency optional. Others thought that the use of science
in the 2002 proposed rule appeared to be budget driven. Several
respondents suggested that public involvement should include science
and scientists. They thought that the Responsible Official should not
make a decision without the input of science and scientists. However,
one respondent felt that there should be no consultation with a panel
of scientists when drafting a plan.
Response: The Department is committed to taking into account the
best available science in developing plans, plan amendments, and plan
revisions as well as documenting the consideration of science
information. The final rule retains the emphasis in the 2002 proposed
rule on the consideration of science in planning, on documenting how
science was interpreted and applied, and on evaluating the associated
risks and uncertainties of using that science. In response to public
comment regarding the Responsible Official's obligation to
``demonstrate'' consideration of science, the final rule requires the
Responsible Official to ``document'' such consideration. The Department
believes that this change gives clearer and stronger direction as to
what is expected of the Responsible Official in developing the Plan
Document or Set of Documents and in considering the best available
science.
Under the final rule, the Responsible Official must: (1) Document
how the best available science was considered in the planning process
within the context of the issues being considered; (2) evaluate and
disclose any substantial
[[Page 1049]]
uncertainties in that science; (3) evaluate and disclose substantial
risks associated with plan components based on that science; and (4)
document that the science was appropriately interpreted and applied.
Additionally, the Responsible Official may use independent peer review,
a science advisory board, or other review methods to evaluate the
consideration of science in the planning process. Any interested
scientists can be involved at any of the public involvement stages.
Section 219.12--Suitable Uses and Provisions Required by NFMA
This section (Sec. 219.12), which was not in the 2002 proposed
rule, addresses the provisions found in Sec. Sec. 219.4(a)(3),
219.4(a)(4), 219.16, and 219.17 of the 2002 proposed rule. The final
rule requires the Chief of the Forest Service to include in the Forest
Service directives procedures to address the provisions of NFMA that
were addressed by Sec. Sec. 219.4(a)(3), 219.16, and 219.17 of the
2002 proposed rule.
Guidance for suitable uses, located in paragraph (a) in the final
rule, has been moved from Sec. 219.4(a)(4) of the 2002 proposed rule.
In addition, the Department reorganized this guidance to better
describe the overall nature of identifying suitable land uses. Overall,
NFS lands are generally suitable for a variety of multiple uses,
including timber harvest and timber production, unless administratively
withdrawn or prohibited by statute, Executive order, or regulation. On
lands generally suitable for timber, the Forest Service may harvest
timber for a variety of purposes, such as to create openings for
wildlife or for fuels reduction and restoration. If timber production
is not an objective for lands generally suitable for timber, the
Responsible Official must identify these lands as not suitable for
timber production. Provisions concerning not suitable for timber
production have been moved with modifications from Sec. 219.16 of the
2002 proposed rule to Sec. 219.12(a)(2). Additional guidance for
identification of lands not suitable for timber harvest and guidance
for timber harvest that the proposed rule addressed at Sec.
219.4(a)(3) will be placed in the Forest Service directives. A request
for public comment on the Forest Service directives will be published
in the Federal Register as soon as possible after adoption of the final
rule.
In addition, Forest Service directives will address additional NFMA
requirements. These requirements include limitations on timber harvest
(Sec. 219.17 of proposed rule) and provisions for plans to determine
forest management systems, restocking requirements, harvesting levels
in light of the multiple uses, and the potential suitability of lands
for resource management, as well as projections of proposed and
possible actions, including the planned timber sale program. The
Department made this change to provide a better balance between the
specific procedures for timber and the provisions for other sections of
the final rule.
Comment: Culmination of mean annual increment. Some respondents
said that the culmination of mean annual increment (CMAI) requirement
should not be limited to even-aged harvests and that the protection
provided by a CMAI requirement on uneven-aged harvests would protect
against over-zealous logging.
Response: CMAI is the age in the growth cycle of an even-aged stand
where average annual growth is at its maximum. By definition, CMAI
applies only to even-aged timber stands and not to uneven-aged stands.
However, detailed guidance for CMAI is moved to the Forest Service
directives because NFMA does not require this guidance to be in the
rule itself. NFMA requires establishment of guidance so that stands of
timber, not individual trees, generally have reached CMAI. The Forest
Service directives will clarify the technical limits of the CMAI
concept.
Comment: Restocking. A respondent said the rule is inconsistent
with NFMA because it does not require restocking of lands within five
years after final regeneration harvest.
Response: Section 219.16(a)(3) of the 2002 proposed rule has been
removed in the final rule. Forest Service directives will address
restocking requirements. Forest Service directives will meet the
requirement of NFMA to ensure that timber will be harvested from NFS
lands only where there is assurance that such lands can be adequately
restocked within five years after harvest. Adequate restocking may vary
depending on the purpose of a harvest and the objectives and desired
conditions for the area. Restocking is not required for lands harvested
to create openings for fuel breaks and vistas, to prevent encroaching
conifers, and other similar purposes. This will apply to all timber
harvest, including final regeneration harvest. Therefore, Responsible
Officials will include in land management plans guidance for adequate
restocking depending on the purpose of a harvest, the desired
conditions, and objectives for the area.
Comment: Suitability. Respondents both agreed and disagreed with
the presumption that lands are suitable for all uses unless identified
and determined to be not suitable. Those who agreed liked this
presumption. Those who disagreed stated that more lands are not
suitable for all uses than are suitable, so the process would be easier
to start with the presumption that lands are not suitable. Some said
that this presumption places commercial uses ahead of other
considerations like fish and wildlife.
One respondent stated that local planners should have the
discretion to manage the range of opportunities offered by the forest
and the flexibility to manage new uses unforeseen in the planning
process.
Response: The Department agrees with the Committee of Scientists
report, which holds the basic philosophy that these are the people's
lands; and therefore, it is appropriate to have a presumption in the
final rule that lands are suitable for a variety of uses. The
Department removed the declaration that lands are suitable, unless
identified and determined to be not suitable. Forest Service directives
may use that analytical and philosophical assumption. The final rule
removes the word ``determine'' and replaces it with ``identify'' to
conform to the NFMA. In the overall adaptive management process, the
starting point for identifying general suitability of land uses will
likely be the existing suitable or not-suitable use identifications in
current plans, and incremental changes will be based on public input,
review of inventory, monitoring, evaluation, and assessment
information. The final rule uses the expression ``generally suitable''
because identification of suitability is guidance and must be approved
through project and activity decisionmaking. In response to public
comment and to clarify the criteria for identifying suitability, the
final rule has changed the resources to outdoor recreation, range,
timber, watershed, and wildlife and fish purposes so that the resources
listed agree with the Multiple-Use Sustained-Yield Act (MUSYA) of 1960
(16 U.S.C. 528-531). Energy resource development and mining activities
were removed from Sec. 219.12(a)(1) of the final rule because, even
though allowable uses on many of the NFS lands, they are not renewable
surface resources listed in MUSYA.
Comment: Suitable lands. Some respondents felt that social,
economic, ecological, physical, and other factors should not be
considered when determining suitability of land for timber production.
Others felt that the Forest Service should analyze the effects on these
factors when no logging is proposed, because they felt that the
[[Page 1050]]
fiscal support of their communities is not being adequately addressed
due to the fact that there is no requirement to supply timber. One
respondent felt that the 2002 proposed rule would allow ``timber sales
that are not justified by their social, economic, or ecological
benefits.''
Response: The 2002 proposed rule language is based on the NFMA that
requires the Responsible Official to consider ``physical, economic, and
other pertinent factors to the extent feasible'' when identifying lands
which are not suited for timber production. However, the wording has
been changed to ``would not be compatible with the achievement of
desired conditions and objectives,'' because desired conditions and
objectives reflect the social, economic, and ecological attributes
toward which management is to be directed. In addition, the NFMA does
allow salvage sales and sales necessitated to protect other multiple-
use values on lands identified as not suited for timber production.
Comment: Salvage logging. There were concerns expressed by some
about salvage harvest and about timber harvest in general. While some
respondents felt there should not be any salvage logging on any lands,
others felt that salvage logging is important to improve the health of
National Forest System lands.
Response: Salvage harvest of timber is a legitimate management
practice, acknowledged by Congress in NFMA (16 U.S.C. 1604(k),
1611(b)). The Department believes that the language in this section of
the final rule on suitability and salvage is an appropriate reflection
of the intent of NFMA. The Department believes that specific decisions
on the size of salvage units, and on where salvage logging would or
would not occur, should be made at a project level and not at the
national level.
Comment: Prohibitions for logging. Some suggested that the final
rule should include more prohibitions for logging, including a
prohibition on all commercial logging on NFS lands involving riparian
areas, virgin forests, and old growth forests. Others suggested
harvesting should be limited to selective logging, salvage harvest, or
helicopter logging. One person suggested that the agency be required to
justify logging for ecological reasons.
Response: The Department believes that broad-based prohibitions on
timber harvest or timber harvest practices are not appropriate at the
national level, given the range of ecological conditions that exist
across the units of the NFS and the multiple-use mandates of MUSYA and
NFMA. Such restrictions may be put in place at the plan or project
level, but should not be part of the planning regulations.
Comment: Timber harvest. Many comments were made regarding logging.
Many respondents felt that there should be more restrictions placed on
logging and that social and economic analysis should eliminate areas
from timber harvest if such harvests would produce below-cost sales.
Conversely, some felt that profit was emphasized too much and there
needed to be more emphasis placed on the effects to the environment.
One person felt there should be a minimum mean annual increment
threshold of timber growth, such as 50 cubic feet per acre per year, to
determine if lands were suitable for timber. Some felt that there
should be more requirements for evaluation of effects that timber
harvests have on fish, woody debris, watershed, and wildlife habitat.
Another felt that timber sales should be made affordable to local
purchasers. Still others wanted analysis to consider the social and
economic effects on timber-dependent communities.
Response: Consistent with NFMA (16 U.S.C. 1604(k)), the final rule
(Sec. 219.12(a)(2)) requires the Responsible Official to identify
lands as not suitable for timber production, if timber production would
not be compatible with the achievement of desired conditions and
objectives. These provisions give the Responsible Official the
flexibility to develop criteria that are appropriate for the specific
plan area. The Department feels that detailed national direction would
not meet the social, economic, and ecological concerns of the
individual NFS unit. The final rule establishes parameters that provide
for conscientious decisions to be made at the local level.
Comment: Suitability for off-highway vehicle use. Many respondents
were particularly concerned about management for off-highway vehicle
(OHV) use, because of the presumption that lands are open for use
unless determined to be closed. Others said that the travel management
component of plans has been particularly challenging. They said that
plans have often failed to regulate OHV as new technology has enabled
expanded use. Other commentators wrote that land management plans need
to clearly establish limits to OHV use while others said the Forest
Service should inventory and evaluate lands declared unsuitable for OHV
and other recreational uses to determine if restoration or mitigation
measures could make them suitable.
Response: As a general matter, responsible and carefully managed
OHV travel is an appropriate use of NFS lands. Under this final rule,
travel management guidance will be expressed in desired conditions,
objectives, guidelines, and identification of general suitability of
areas for various uses. That guidance, in and of itself, would not
close those lands to these uses; such a restriction would require a
subsequent travel management decision and closure order pursuant to 36
CFR part 261, subpart B. Additionally, if a plan identifies an area as
generally suitable for OHV travel where currently restricted, the plan
would not open those lands to these uses; a subsequent project and
activity NEPA analysis and decision would be necessary to effect the
preliminary identification of the plan. Guidance for resource
conservation is established in the plan and will be considered in the
subsequent travel management decision. The final rule allows for levels
and trends of OHV use to be monitored and changed as appropriate.
Comment: Fuels treatment. Several respondents, citing recent fire
seasons, suggested that the final rule should allow for more timber
harvest than is currently being harvested to reduce fuels, and they
felt that the final rule would accomplish that goal. There was a
concern that much of the dead and down material was being wasted and
that this biomass could be used to meet energy and wood supply needs.
Others, however, felt that logging of commercial-size trees was not
necessary for fuels reduction and the final rule would do a disservice
by allowing it. One respondent suggested that the fuels problem could
be solved by using prescribed fire only. Others felt that fuels
treatment should be allowed only in areas near urban centers to protect
structures.
Response: The Department believes that the final rule, which is
national in application, should not set out direction so specific that
it cannot take into account the widely varying conditions found across
the NFS. Such direction is better developed at the local level.
Comment: Allowable sale quantity. Some respondents request that the
Forest Service retain the use of Allowable Sale Quantity (ASQ) to
inform timber purchasers, communities who support timber industry, and
the public what the future timber production forecast will be.
Response: This concept has long caused confusion for those
concerned with the management of the NFS lands. While under the 1982
rule, ASQ was the upper limit of timber that the Responsible Official
may sell from the lands suitable for timber production,
[[Page 1051]]
ASQ has commonly been misinterpreted as an absolute commitment to a
timber production target. Neither the 2002 proposed rule nor this final
rule provide for ASQ. Forest Service directives will address the upper
limit of timber and will likely use the concept of long-term sustained
yield as proposed in the 2002 proposed rule as the upper limit of
timber that the Forest Service may harvest during the planning period.
The 2002 proposed rule used long-term sustained yield because this
requirement is adequate, and removing the provision that planning
establish an ASQ reduces the risk of misperception that ASQ is a target
to be achieved, rather than a limit to harvest.
Comment: Sustained yield. Most respondents agreed that the concept
of sustained yield is, in principle, a positive goal. However, some
took exception to how this requirement will actually be implemented.
They felt that salvage logging and other types of timber sales not
undertaken for timber production purposes should be included in the
sustained-yield calculations. Others felt that the use of ``multiple-
use objectives'' gives too much flexibility in determining sustained
yield, and there is actually no real limit. One person felt the harvest
limits should mirror forest mortality rates.
Response: This provision for estimating the quantity of timber that
can be removed annually in perpetuity is tied directly to NFMA (16
U.S.C. 1611(a)). The final rule moves detailed instructions on how
sustained yield is calculated (found in the 2002 proposed rule at Sec.
219.17) to the Forest Service directives.
Section 219.13--Objections to Plans, Plan Amendments, or Plan Revisions
This provision found in Sec. 219.19 of the 2002 proposed rule has
been redesignated at Sec. 219.13 as part of the overall reorganization
of the final rule. This section establishes the objection process by
which the public can challenge plans, plan revisions, or plan
amendments.
The Committee of Scientists, in their 1999 report, recommended that
the Forest Service seek to harmonize its administrative appeal process
with those of other Federal agencies. The Committee of Scientists said
a pre-decisional process would encourage internal Forest Service
discussion, encourage multi-agency collaboration, and encourage public
interest groups to collaborate and work out differences. Therefore, to
be more consistent with the Bureau of Land Management (BLM) and to
improve public participation efforts, the Department is adopting the
pre-decisional objection process (Sec. 219.13) to replace the appeals
process. The objection process complements the public participation
process because the objectors and the Reviewing Officer can
collaboratively work through concerns before a Responsible Official
approves a plan.
The 30-day objection period specified in this final rule is the
same amount of time provided in the BLM protest process. The final rule
does not specify a time limit for agency responses; the final rule has
adopted the BLM requirement that the Reviewing Officer promptly render
a decision on the objection. It is in the interest of the agency to
render a decision promptly to move forward. Because Responsible
Officials would not typically develop plans, plan amendments, or plan
revisions using EISs, EAs, the Department removed unnecessary language
in the final rule concerning NEPA documents. The final rule also
eliminates details on responding to objections because this information
is more appropriate in the Forest Service directives. The final rule
also removes the requirement that objectors may only submit original
substantive comments as objections. These changes make the final rule
easier to read and follow.
References to appeals of plan amendments in site-specific
decisions, previously at Sec. 219.20 of the 2002 proposed rule, have
been moved to Sec. 219.13(a)(1) in the final rule to have requirements
for objections and the reference to appeals in the same section.
Specific requirements for administrative review of plan amendments
approved contemporaneously with a project or activity decision are
addressed in 36 CFR 215 and 218, subpart A.
Comment: Objection and appeals process. Some respondents felt that
the final rule should include provisions to allow post-decisional
appeals of plans. Some wanted both a pre-decisional objection process
and a post-decisional appeals process. One person felt that the rule
should require an objection process for plan amendments made in
conjunction with site-specific project decisions and that the rule
should require an appeals process for other plan amendments.
Some respondents were concerned that the objection process would
reduce the influence that the current appeals process provides, and
they claimed the 30-day objection period is insufficient time to
identify issues and to prepare an objection. Although some respondents
felt that the objection process is an inadequate protection of public
interests, others supported the objection process and felt that
requirements for standing to object should be much more stringent to
prevent what they characterized as needless obstruction. Some
respondents were concerned that there was no time limit for the agency
to respond to objections.
Response: The objection process in the final rule retains the 2002
proposed rule's application of the objection process to plans, plan
amendments, or plan revisions not associated with a project or activity
decision (Sec. 219.13(a)). Unlike the provisions at 36 CFR, part 217,
applicable to plan development, plan amendment, and plan revision under
the 1982 planning rule, this final rule, like the 2002 proposed rule,
integrates the objection process with public participation prior to
plan approval. The objection process is expected to resolve many
potential conflicts by encouraging resolution before a plan, plan
amendment, or plan revision is approved.
Under the 36 CFR part 217 appeal process, the agency and the public
expend significant human and financial resources in fulfillment of
procedural requirements. Often an appeal leads to a polarized
relationship where there is no real incentive to address natural
resource issues and there is a squandering of human and financial
capital, often without long-lasting solutions to problems.
Under this final rule, as in the 2002 proposed rule, the
Responsible Official, the Reviewing Officer, and the objector have the
opportunity to seek reasonable solutions to conflicting views of plan
components before a Responsible Official approves a plan, plan
amendment, or plan revision. The objection process allows discretion
for joint problem solving to resolve issues.
Comment: Public participation. Several respondents expressed the
opinion that the final rule should require participation in the
planning process as a qualification for objection.
Response: The 2002 proposed rule did not require participation in
the planning process to file an objection; however, the Department
agrees that participation should be a prerequisite to submitting an
objection. Therefore, the final rule at Sec. 219.13(a) requires
participation in the planning process through the submission of a
written comment to have standing to submit an objection.
Comment: Consistency with law. Some respondents supported the
requirement in the 2002 proposed rule that objectors must explain their
position that the plan, plan amendment, or plan revision is
inconsistent with law, regulation, or policy as well as provide any
recommendation for
[[Page 1052]]
change. Others felt this requirement curtailed public input and
required legal advice to object.
Response: The Department agrees that a person should be able to
object to a plan, plan amendment, or plan revision even if the plan is
consistent with law, regulation, or policy. Therefore, the final rule
allows persons to object if they otherwise disagree with the decision.
Accordingly, Sec. 219.13(b)(3) of the final rule retains the main
elements of this requirement from the 2002 proposed rule, so that the
Reviewing Officer will know why an objector objects as well as what the
objector recommends for change. The term ``Executive order'' has been
removed from the final rule because Executive orders are already
covered under the term ``policy.'' The Forest Service directives will
set forth the specific requirements of the Reviewing Officer working
with the objector(s) to resolve their issue(s).
Section 219.14--Effective Dates and Transition
This direction found in Sec. Sec. 219.21 and 219.22 of the 2002
proposed rule has been combined at Sec. 219.14 to organize similar
concepts in one location. This section specifies when a plan, plan
amendment, or plan revision will take effect as well as how Responsible
Officials may modify ongoing planning efforts to conform to the
requirements of the final rule. The Department modified this section
from the transition language in the 2002 proposed rule, primarily to
account for integration of EMS into land management planning.
With this rule, the Department is simultaneously repealing the 2000
rule and including the transition provisions of the former rule.
Recently, the Department clarified that projects were subject to the
requirements of the former transition rule during the transition period
until the completion of the plan revision process under the 2000 rule
(69 FR 58055, September 29, 2004). The transition period of the former
rule thus terminates with its repeal. This section defines, for
purposes of pending or future plan documents, the applicable rules
during the transition period. During the transition period, pending or
proposed projects remain subject to the applicable forest plan.
This section also contains new direction on application of
management indicator species (MIS) for units that will continue to use
the 1982 planning rule for plans, plan amendments, and plan revisions
during transition. There has been uncertainty regarding the application
of provisions of the 1982 planning rule, particularly with respect to
obligations regarding MIS (69 FR 58055, September 29, 2004). For those
units with plans developed, amended, or revised under the 1982 planning
rule, including those amended or revised during the transition period
for the 2000 planning rule, Sec. 219.14(f) provides that MIS
obligations may be met by considering data and analysis relating to
habitat unless the plan specifically requires population monitoring or
population surveys. Other tools can often be useful and more
appropriate in predicting the effects of projects that implement a land
management plan (such as examining the effect of proposed activities on
the habitat of specific species); using information identified,
obtained, or developed through a variety of methods (such as
assessments, analysis, and monitoring results); or using information
obtained from other sources (such as State fish and wildlife agencies
and organizations like The Nature Conservancy). The final rule also
clarifies the appropriate scale for MIS monitoring which is the plan
area.
Providing explicitly for MIS monitoring flexibility will allow for
monitoring of habitat conditions as a surrogate for population trend
data. It is appropriate for a range of methods to be available to
estimate, or approximate, population trends for MIS. The Responsible
Official will determine the which monitoring method or combination of
monitoring methods to use for a given MIS.
Where Responsible Officials conduct actual population monitoring
for MIS, population trend data are most efficiently collected using a
sampling program rather than a total enumeration. In a sampling
program, population data are collected at a selection of sites
throughout the geographic range of the population. These sites might be
systematically designated (for example, using a grid of specific
dimension), established randomly, or selected in some other way. For
species that use distinct seasonal ranges (for example, elk that use
winter ranges distinct from their summer ranges), data may be collected
primarily on the winter range.
The area over which sampling is conducted should relate to the
geographic range occupied by the population, and will generally far
exceed the area of a single management project. Because of using
sampling procedures within the overall geographic area used by a
population, individual project areas might or might not be part of a
sampling program designed to estimate the overall population trend of a
population. Based on the foregoing, for most species it would be
technically and practically inappropriate to conduct population trend
sampling at the scale of individual project areas. Consequently, where
Responsible Officials conduct actual population monitoring for MIS,
that monitoring should be carried out at the scale most appropriate to
the species within the overall national forest, grassland, prairie, or
other administrative comparable unit. Monitoring populations at the
sites of individual projects is not part of this requirement.
Therefore, the transition language at Sec. 219.14 clarifies that MIS
monitoring is appropriate at the times and places appropriate to the
specific species, and is not required within individual project or
activity areas.
Comment: Effective date. One respondent was concerned that there
was a difference in the effective date of plan amendments depending on
whether or not they were significant amendments and suggested the final
rule should not differentiate between the types of amendments when
determining an effective date.
Response: In the final rule, the only difference related to the
effective date of plan amendments is dependent on if a plan amendment
is approved contemporaneously with a project or activity decision and
the plan amendment applies only to the project or activity; in which
case, 36 CFR, part 215 or part 218, subpart A applies, not the planning
regulations at part 219. All other amendments have a 30-day effective
date.
Section 219.15--Severability
The Department has chosen to add a new section to address the issue
of severability, in the event that portions of this rule are separately
challenged in litigation. It is the Department's intent that the
individual provisions of this rule be severable from each other.
Section 219.16--Definitions
This direction was found in Sec. 219.23 in the 2002 proposed rule,
but has been redesignated at Sec. 219.16 as part of overall
reorganization of the final rule. This section sets out and defines the
special terms used in the final rule. A detailed discussion on
definitions removed, added, or unchanged is found in the supplemental
response to public comments located on the World Wide Web/Internet (see
ADDRESSES).
Comment: Collaboration. A few respondents asked that collaboration
be defined. They said that a ``collaborative'' process is generally a
specific type of planning process involving shared power and total
stakeholder involvement. One person
[[Page 1053]]
wanted the process of collaboration to be distinguished from processes
authorized under the Federal Advisory Committee Act.
Response: The Forest Service cannot ``share'' its administrative
authority over the NFS and must make the decisions for NFS management,
including approval of plans, plan amendments, and plan revisions. The
agency and the Department are committed to stakeholder involvement in
planning; however, the Department does not believe it is necessary to
set the boundaries of how this process may operate in planning through
a definition of the process.
Comment: Silvicultural terminology. Some respondents said that the
2002 proposed rule (Sec. 219.4) confuses silvicultural objectives (for
example, achieving an even-aged stand condition) with harvesting
methods. They said that silvicultural definitions should be taken from
the Society of American Foresters handbook.
Response: The Dictionary of Forestry reflects current professional
acceptance and use of terms and definitions. Because the Dictionary of
Forestry has wide acceptance, it was reviewed and the silvicultural
definitions of the final rule at Sec. 219.16, and other silvicultural
terminology in the final rule are largely consistent with definitions
found in the Dictionary of Forestry (Bethesda, MD, Society of American
Foresters, 1998).
5. Regulatory Certifications
Regulatory Impact
This final rule has been reviewed under U.S. Department of
Agriculture (Department) procedures and Executive Order 12866 issued
September 30, 1993 (E.O. 12866) on Regulatory Planning and Review. It
has been determined that this is not an economically significant rule.
This final 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 final rule will neither interfere with an action
taken or planned by another agency nor raise new legal or policy
issues. Finally, this final rule will not alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients of such programs. However, because of the
extensive interest in National Forest System (NFS) planning and
decisionmaking, this final rule has been designated as significant and,
therefore, is subject to Office of Management and Budget review under
E.O. 12866.
A cost-benefit analysis was conducted to compare the costs and
benefits of implementing this final rule to the baseline, 1982 planning
rule. This analysis is posted on the World Wide Web/Internet at http://www.fs.fed.us/emc/nfma/, along with other documents associated with
this final rule. The 1982 planning rule was used as the baseline
because all the land management plan revisions completed to date have
used the requirements of the 1982 planning rule. Quantitative
differences among the final rule, the 2000 rule, and the 2002 proposed
rule were also estimated. Primary sources of data used to estimate the
costs and benefits of the 2000 planning rule and the 2002 proposed rule
are from the results of a 2002 report entitled ``A Business Evaluation
of the 2000 and Proposed NFMA Rules'' produced by the Inventory and
Monitoring Institutes of the Forest Service. The report is also
identified as the ``2002 NFMA Costing Study,'' or simply as the
``Costing Study.'' The Costing Study used a business modeling process
to identify and compare major costs for both the 2000 planning rule and
the 2002 proposed rule. The main source of data used to approximate
costs under the 1982 planning rule is from a recent report to Congress
on planning costs, along with empirical data and inferences from the
Costing Study.
The cost-benefit analysis focuses on key activities in land
management planning for which costs can be estimated under the 1982
planning rule, the 2000 planning rule, the 2002 proposed rule, and this
final rule. The key activities include regional guides, collaboration,
consideration of science, evaluation of the sustainability of decisions
and diversity requirements under the National Forest Management Act
(NFMA) of 1976 (16 U.S.C. 1600 et seq.), monitoring, evaluation, and
the resolution of disputes regarding the proposed plan decisions
through the administrative processes of appeals and objections.
The final rule would reduce the cost of producing a plan or
revision by shortening the length of the planning process and providing
the Responsible Official with more flexibility to decide the scope and
scale of the planning process. The final rule, by requiring inclusion
of environmental management systems into the land management framework,
requires a comprehensive evaluation during plan development and plan
revision that will be updated at least every five years. Some upfront
planning costs, such as analyzing and developing plan components, and
documenting the land management planning process, are anticipated to
shift to monitoring and evaluation to better document cumulative
effects of management activities and natural events when preparing a
comprehensive evaluation of the plan under the final rule.
Based on costs that can be quantified, implementation of this final
rule is expected to have an estimated annual average cost savings of
$4.6 million when compared to the 1982 planning rule, and an estimated
annual average savings of $36.9 million when compared to estimates of
implementation of the 2000 planning rule. When compared to the 2002
proposed rule, implementation of the final rule is estimated to cost
$19 million less than the 2002 proposed rule with Option 1 and $24.9
million more than the 2002 proposed rule with Option 2. The higher cost
over the 2002 proposed rule is due to increased monitoring and
evaluation requirements in the final rule.
From this cost-benefit analysis, the estimated total costs for
implementing the final rule are expected to be lower than the 2000
planning rule; however, the estimated cost savings are less than that
predicted on the 2002 proposed rule because costs for monitoring and
evaluation are expected to be higher. In other words, although the
final rule is expected to be less costly than the 2000 planning rule,
some of those saved costs are expected to be shifted to monitoring and
evaluation.
This final rule has also been considered in light of the Regulatory
Flexibility Act, as amended (5 U.S.C. 601 et seq.), and it has been
determined that this action will not have a significant economic impact
on a substantial number of small business entities as defined by the
Regulatory Flexibility Act. Therefore, a regulatory flexibility
analysis is not required for this final rule. The final rule imposes no
requirements on either small or large entities. Rather, the final rule
sets out the process the Forest Service will follow in land management
planning for the NFS. The final rule should provide opportunities for
small businesses to become involved in the national forest, grassland,
prairie, or other comparable administrative unit plan approval.
Moreover, by streamlining the land management planning process, the
final rule should benefit small businesses through more timely
decisions that affect outputs of products and services.
Environmental Impacts
This final rule establishes the administrative procedures to guide
developing, amending, and revising NFS land management plans. This
final rule, like earlier planning rules, does
[[Page 1054]]
not dictate how administrative units of the NFS are to be managed. The
Department does not expect that this final rule will directly affect
the mix of uses on any or all units of the NFS. Section 31.12 of FSH
1909.15 excludes from documentation in an EA or EIS ``rules,
regulations, or policies to establish Service-wide administrative
procedures, program processes, or instruction.'' This final rule
clearly falls within this category of actions and the Department has
determined that no extraordinary circumstances exist that would require
preparation of an EA or an EIS.
Energy Effects
This final rule has been reviewed under Executive Order 13211
issued May 18, 2001 (E.O. 13211), ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use.'' It has been
determined that this final rule does not constitute a significant
energy action as defined in E.O. 13211. Procedural in nature, this
final rule would guide the development, amendment, and revision of NFS
land management plans. These plans are strategic documents that provide
the guidance for making future project or activity-level resource
management decisions. As such, these plans will address access
requirements associated with energy exploration and development within
the framework of multiple-use, sustained-yield management of the
surface resources of the NFS lands. These land management plans may
identify major rights-of-way corridors for utility transmission lines,
pipelines, and water canals. While these plans consider the need for
such facilities, they do not authorize construction of them; therefore,
the final rule and the plans developed under it do not have energy
effects within the meaning of E.O. 13211. The effects of the
construction of such lines, pipelines, and canals are, of necessity,
considered on a case-by-case basis as specific construction proposals
are made. Consistent with E.O. 13211, direction to incorporate
consideration of energy supply, distribution, and use in the planning
process is being included in the agency's administrative directives for
implementing the final rule.
Controlling Paperwork Burdens on the Public
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), the information collection or reporting requirements for
the objection process were previously approved by the Office of
Management and Budget (OMB) and assigned control number 0596-0158,
expiring on October 31, 2003 for the 2000 planning rule.
The OMB has extended this approval through December 31, 2006 for
this final planning rule, using the same control number. This extension
was made after the Forest Service provided the public an opportunity to
comment on the extension as required by the Paperwork Reduction Act (68
FR 50512, August 21, 2003). The Forest Service received no comments
regarding extension.
The information required by 36 CFR 219.13 is needed for an objector
to explain the nature of the objection being made to a proposed land
management plan, plan amendment, or plan revision. This final rule
retains but simplifies the objection process established in the 2000
planning rule. The final rule removes the requirements previously
provided in the 2000 planning rule for interested parties, publication
of objections, and formal requests for meetings (36 CFR 219.32). These
changes will result in a minor reduction in the number of burden hours
approved by OMB.
Federalism
The agency has considered this final rule under the requirements of
Executive Order 13132 issued August 4, 1999 (E.O. 13132),
``Federalism.'' The agency has made an assessment that the final rule
conforms with the Federalism principles set out in this Executive
order; 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, nor on the distribution
of power and responsibilities among the various levels of government.
Therefore, the agency concludes that the final rule does not have
Federalism implications. Moreover, Sec. 219.9 of this final rule shows
sensitivity to Federalism concerns by requiring the Responsible
Official to meet with and provide opportunities for involvement of
State and local governments in the planning process.
In the spirit of E.O. 13132, the agency consulted with State and
local officials, including their national representatives, early in the
process of developing the proposed regulation. The agency has consulted
with the Western Governors' Association and the National Association of
Counties to obtain their views on a preliminary draft of the 2002
proposed rule. The Western Governors' Association supported the general
intent to create a regulation that works, and placed importance on the
quality of collaboration to be provided when the agency implements the
regulation. Agency representatives also contacted the International
City and County Managers Association, National Conference of State
Legislators, The Council of State Governments, Natural Resources
Committee of the National Governors Association, U.S. Conference of
Mayors, and the National League of Cities to share information about
the 2002 proposed rule prior to its publication. Based on comments
received on the 2002 proposed rule, the agency has determined that
additional consultation was not needed with State and local
governments.
Civil Rights Impact Analysis
A civil rights impact analysis was conducted for this final rule.
This analysis is posted on the World Wide Web/Internet at http://www.fs.fed.us/emc/nfma/, along with other documents associated with
this final rule. The analysis found that there no adverse civil rights
or environmental justice impacts anticipated to the delivery of
benefits or other program outcomes on a national level for any under-
represented population or to other United States populations or
communities.
Consultation With Indian Tribal Governments
Pursuant to Executive Order 13175 of November 6, 2000,
``Consultation and Coordination with Indian Tribal Governments,'' the
agency has assessed the impact of this final rule on Indian Tribal
governments and has determined that the final rule does not
significantly or uniquely affect communities of Indian Tribal
governments. The final rule deals with the administrative procedures to
guide the development, amendment, and revision of NFS land management
plans and, as such, has no direct effect regarding the occupancy and
use of NFS land. At Sec. 219.9(a)(3), the final rule requires
consultation with federally recognized Tribes when conducting land
management planning.
The agency has also determined that this final rule does not impose
substantial direct compliance cost on Indian Tribal governments. This
final rule does not mandate Tribal participation in NFS planning.
Rather, the final rule imposes an obligation on Forest Service
officials to consult early with Tribal governments and to work
cooperatively with them where planning issues affect Tribal interests.
No Takings Implications
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12630 issued March 15, 1988,
and it has
[[Page 1055]]
been determined that the final rule does not pose the risk of a taking
of Constitutionally protected private property.
Civil Justice Reform
This final rule has been reviewed under Executive Order 12988 of
February 7, 1996, ``Civil Justice Reform.'' The Department 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
final rule. Nevertheless, in the event that such a conflict was to be
identified, the final rule would preempt State or local laws or
regulations found to be in conflict. However, in that case, (1) no
retroactive effect would be given to this final rule; and (2) the final
rule does not require the use of 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), the agency has assessed the effects of this final
rule on State, local, and Tribal governments and the private sector.
This final 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.
0
Therefore, for the reasons set forth in the preamble, add subpart A to
part 219 of title 36 of the Code of Federal Regulations to read as
follows:
PART 219--PLANNING
Subpart A--National Forest System Land Management Planning
Sec.
219.1 Purpose and applicability.
219.2 Levels of planning and planning authority.
219.3 Nature of land management planning.
219.4 National Environmental Policy Act compliance.
219.5 Environmental management systems.
219.6 Evaluations and monitoring.
219.7 Developing, amending, or revising a plan.
219.8 Application of a new plan, plan amendment, or plan revision.
219.9 Public participation, collaboration, and notification.
219.10 Sustainability.
219.11 Role of science in planning.
219.12 Suitable uses and provisions required by NFMA.
219.13 Objections to plans, plan amendments, or plan revisions.
219.14 Effective dates and transition.
219.15 Severability.
219.16 Definitions.
Subpart B [Reserved]
Authority: 5 U.S.C. 301; 16 U.S.C. 1604, 1613.
Sec. 219.1 Purpose and applicability.
(a) The rules of this subpart set forth a process for land
management planning, including the process for developing, amending,
and revising land management plans (also referred to as plans) for the
National Forest System, as required by the Forest and Rangeland
Renewable Resources Planning Act of 1974, as amended by the National
Forest Management Act of 1976 (16 U.S.C. 1600 et seq.), hereinafter
referred to as NFMA. This subpart also describes the nature and scope
of plans and sets forth the required components of a plan. This subpart
is applicable to all units of the National Forest System as defined by
16 U.S.C. 1609 or subsequent statute.
(b) Consistent with the Multiple-Use Sustained-Yield Act of 1960
(16 U.S.C. 528-531), the overall goal of managing the National Forest
System is to sustain the multiple uses of its renewable resources in
perpetuity while maintaining the long-term productivity of the land.
Resources are to be managed so they are utilized in the combination
that will best meet the needs of the American people. Maintaining or
restoring the health of the land enables the National Forest System to
provide a sustainable flow of uses, benefits, products, services, and
visitor opportunities.
(c) The Chief of the Forest Service shall establish planning
procedures for this subpart for plan development, plan amendment, or
plan revision in the Forest Service Directive System.
Sec. 219.2 Levels of planning and planning authority.
Planning occurs at multiple organizational levels and geographic
areas.
(a) National. The Chief of the Forest Service is responsible for
national planning, such as preparation of the Forest Service Strategic
Plan required under the Government Performance and Results Act of 1993
(5 U.S.C. 306; 31 U.S.C. 1115--1119; 31 U.S.C. 9703-9704), which is
integrated with the requirements of the Forest and Rangeland Renewable
Resources Planning Act of 1974, as amended by the NFMA. The Strategic
Plan establishes goals, objectives, performance measures, and
strategies for management of the National Forest System, as well as the
other Forest Service mission areas.
(b) Forest, grassland, prairie, or other comparable administrative
unit. (1) Land management plans provide broad guidance and information
for project and activity decisionmaking in a national forest,
grassland, prairie, or other comparable administrative unit. The
Supervisor of the National Forest, Grassland, Prairie, or other
comparable administrative unit is the Responsible Official for
development and approval of a plan, plan amendment, or plan revision
for lands under the responsibility of the Supervisor, unless a Regional
Forester, the Chief, or the Secretary chooses to act as the Responsible
Official.
(2) When plans, plan amendments, or plan revisions are prepared for
more than one administrative unit, a unit Supervisor identified by the
Regional Forester, or the Regional Forester, the Chief, or the
Secretary may be the Responsible Official. Two or more Responsible
Officials may undertake joint planning over lands under their
respective jurisdictions.
(3) The appropriate Station Director must concur with that part of
a plan applicable to any experimental forest within the plan area.
(c) Projects and activities. The Supervisor or District Ranger is
the Responsible Official for project and activity decisions, unless a
higher-level official chooses to act as the Responsible Official.
Requirements for project or activity planning are established in the
Forest Service Directive System. Except as specifically provided, none
of the requirements of this subpart applies to projects or activities.
(d) Developing, amending, and revising plans. (1) Plan development.
If a new national forest, grassland, prairie, or other administrative
unit of the National Forest System is established, the Regional
Forester, or a forest, grassland, prairie, or other comparable unit
Supervisor identified by the Regional Forester must either develop a
plan for the unit or amend or revise an existing plan to apply to the
lands within the new unit.
(2) Plan amendment. The Responsible Official may amend a plan at
any time.
(3) Plan revision. The Responsible Official must revise the plan if
the Responsible Official concludes that conditions within the plan area
have significantly changed. Unless otherwise provided by law, a plan
must be revised at least every 15 years.
[[Page 1056]]
Sec. 219.3 Nature of land management planning.
(a) Principles of land management planning. Land management
planning is an adaptive management process that includes social,
economic, and ecological evaluation; plan development, plan amendment,
and plan revision; and monitoring. The overall aim of planning is to
produce responsible land management for the National Forest System
based on useful and current information and guidance. Land management
planning guides the Forest Service in fulfilling its responsibilities
for stewardship of the National Forest System to best meet the needs of
the American people.
(b) Force and effect of plans. Plans developed in accordance with
this subpart generally contain desired conditions, objectives, and
guidance for project and activity decisionmaking in the plan area.
Plans do not grant, withhold, or modify any contract, permit, or other
legal instrument, subject anyone to civil or criminal liability, or
create any legal rights. Plans typically do not approve or execute
projects and activities. Decisions with effects that can be
meaningfully evaluated (40 CFR 1508.23) typically are made when
projects and activities are approved.
Sec. 219.4 National Environmental Policy Act compliance.
(a) In accordance with 16 U.S.C. 1604(g)(1) this subpart clarifies
how the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4346)
(hereinafter referred to as NEPA) applies to National Forest System
land management planning.
(b) Approval of a plan, plan amendment, or plan revision, under the
authority of this subpart, will be done in accordance with the Forest
Service NEPA procedures and may be categorically excluded from NEPA
documentation under an appropriate category provided in such
procedures.
(c) Nothing in this subpart alters the application of NEPA to
proposed projects and activities.
(d) Monitoring and evaluations, including those required by Sec.
219.6, may be used or incorporated by reference, as appropriate, in
applicable NEPA documents.
Sec. 219.5 Environmental management systems.
The Responsible Official must establish an environmental management
system (EMS) for each unit of the National Forest System. The scope of
an EMS will include, at the minimum, the land management planning
process defined by this subpart. An EMS for any unit may include
environmental aspects unrelated to the land management planning process
under this subpart.
(a) Plan development, plan amendment, or plan revision must be
completed in accordance with the EMS and Sec. 219.14. An EMS may be
established independently of the planning process.
(b) The EMS must conform to the consensus standard developed by the
International Organization for Standardization (ISO) and adopted by the
American National Standards Institute (ANSI) as ``ISO 14001:
Environmental Management Systems--Specification With Guidance For Use''
(ISO 14001). The ISO 14001 describes EMSs and outlines the elements of
an EMS. The ISO 14001 is available from the ANSI website at http://webstore.ansi.org/ansidocstore/default.asp.
(c) Pursuant to Sec. 219.1(c), the Chief of the Forest Service
shall establish procedures in the Forest Service Directive System to
ensure that appropriate EMSs are in place. The Responsible Official may
determine whether and how to change and improve an EMS for the plan
area, consistent with applicable Forest Service Directive System
procedures.
Sec. 219.6 Evaluations and monitoring.
(a) Evaluations. The Responsible Official shall keep the Plan Set
of Documents up to date with evaluation reports, which will reflect
changing conditions, science, and other relevant information. The
following three types of evaluations are required for land management
planning: comprehensive evaluations for plan development and revision,
evaluations for plan amendment, and annual evaluations of monitoring
information. The Responsible Official shall document evaluations in
evaluation reports, make these reports available to the public as
required in Sec. 219.9, and include these reports in the Plan Set of
Documents (Sec. 219.7(a)(1)). Evaluations under this section should be
commensurate to the level of risk or benefit associated with the nature
and level of expected management activities in the plan area.
(1) Comprehensive evaluations. These evaluate current social,
economic, and ecological conditions and trends that contribute to
sustainability, as described in Sec. 219.10. Comprehensive evaluations
and comprehensive evaluation reports must be updated at least every
five years to reflect any substantial changes in conditions and trends
since the last comprehensive evaluation. The Responsible Official must
ensure that comprehensive evaluations, including any updates necessary,
include the following elements:
(i) Area of analysis. The area(s) of analysis must be clearly
identified.
(ii) Conditions and trends. The current social, economic, and
ecological conditions and trends and substantial changes from
previously identified conditions and trends must be described based on
available information, including monitoring information, surveys,
assessments, analyses, and other studies as appropriate. Evaluations
may build upon existing studies and evaluations.
(2) Evaluation for a plan amendment. An evaluation for a plan
amendment must analyze the issues relevant to the purposes of the
amendment and may use the information in comprehensive evaluations
relevant to the plan amendment. When a plan amendment is made
contemporaneously with, and only applies to, a project or activity
decision, the analysis prepared for the project or activity satisfies
the requirements for an evaluation for an amendment.
(3) Annual evaluation of the monitoring information. Monitoring
results must be evaluated annually and in accordance with paragraph
(b)(2) of this section.
(b) Monitoring. The plan must describe the monitoring program for
the plan area. Monitoring information in the Plan Document or Set of
Documents may be changed and updated as appropriate, at any time. Such
changes and updates are administrative corrections (Sec. 219.7(b)) and
do not require a plan amendment or revision.
(1) The plan-monitoring program shall be developed with public
participation and take into account:
(i) Financial and technical capabilities;
(ii) Key social, economic, and ecological performance measures
relevant to the plan area: and
(iii) The best available science.
(2) The plan-monitoring program shall provide for:
(i) Monitoring to determine whether plan implementation is
achieving multiple use objectives;
(ii) Monitoring to determine the effects of the various resource
management activities within the plan area on the productivity of the
land;
(iii) Monitoring of the degree to which on-the-ground management is
maintaining or making progress toward the desired conditions and
objectives for the plan; and
(iv) Adjustment of the monitoring program as appropriate to account
for unanticipated changes in conditions.
[[Page 1057]]
(3) The Responsible Official may conduct monitoring jointly with
others, including but not limited to, Forest Service units, Federal,
State or local government agencies, federally recognized Indian Tribes,
and members of the public.
Sec. 219.7 Developing, amending, or revising a plan.
(a) General planning requirements.
(1) Plan Documents or Set of Documents. The Responsible Official
must maintain a Plan Document or Set of Documents for the plan. A Plan
Document or Set of Documents includes, but is not limited to,
evaluation reports; documentation of public involvement; the plan,
including applicable maps; applicable plan approval documents;
applicable NEPA documents, if any; the monitoring program for the plan
area; and documents relating to the EMS established for the unit.
(2) Plan components. Plan components may apply to all or part of
the plan area. A plan should include the following components:
(i) Desired conditions. Desired conditions are the social,
economic, and ecological attributes toward which management of the land
and resources of the plan area is to be directed. Desired conditions
are aspirations and are not commitments or final decisions approving
projects and activities, and may be achievable only over a long time
period.
(ii) Objectives. Objectives are concise projections of measurable,
time-specific intended outcomes. The objectives for a plan are the
means of measuring progress toward achieving or maintaining desired
conditions. Like desired conditions, objectives are aspirations and are
not commitments or final decisions approving projects and activities.
(iii) Guidelines. Guidelines provide information and guidance for
project and activity decisionmaking to help achieve desired conditions
and objectives. Guidelines are not commitments or final decisions
approving projects and activities.
(iv) Suitability of areas. Areas of each National Forest System
unit are identified as generally suitable for various uses (Sec.
219.12). An area may be identified as generally suitable for uses that
are compatible with desired conditions and objectives for that area.
The identification of an area as generally suitable for a use is
guidance for project and activity decisionmaking and is not a
commitment or a final decision approving projects and activities. Uses
of specific areas are approved through project and activity
decisionmaking.
(v) Special areas. Special areas are areas within the National
Forest System designated because of their unique or special
characteristics. Special areas such as botanical areas or significant
caves may be designated, by the Responsible Official in approving a
plan, plan amendment, or plan revision. Such designations are not final
decisions approving projects and activities. The plan may also
recognize special areas designated by statute or through a separate
administrative process in accordance with NEPA requirements (Sec.
219.4) and other applicable laws.
(3) Changing plan components. Plan components may be changed
through plan amendment or revision, or through an administrative
correction in accordance with Sec. 219.7(b).
(4) Planning authorities. The Responsible Official has the
discretion to determine whether and how to change the plan, subject to
the requirement that the plan be revised at least every 15 years. A
decision by a Responsible Official about whether or not to initiate the
plan amendment or plan revision process and what issues to consider for
plan development, plan amendment, or plan revision is not subject to
objection under this subpart (Sec. 219.13).
(5) Plan process. (i) Required evaluation reports, plan, plan
amendments, and plan revisions must be prepared by an interdisciplinary
team; and
(ii) Unless otherwise provided by law, all National Forest System
lands possessing wilderness characteristics must be considered for
recommendation as potential wilderness areas during plan development or
revision.
(6) Developing plan options. In the collaborative and participatory
process of land management planning, the Responsible Official may use
an iterative approach in development of a plan, plan amendment, and
plan revision in which plan options are developed and narrowed
successively. The key steps in this process shall be documented in the
Plan Set of Documents.
(b) Administrative corrections. Administrative corrections may be
made at any time and are not plan amendments or revisions.
Administrative corrections include the following:
(1) Corrections and updates of data and maps;
(2) Corrections of typographical errors or other non-substantive
changes;
(3) Changes in the monitoring program and monitoring information
(Sec. 219.6(b));
(4) Changes in timber management projections; and
(5) Other changes in the Plan Document or Set of Documents, except
for substantive changes in the plan components.
(c) Approval document. The Responsible Official must record
approval of a new plan, plan amendment, or plan revision in a plan
approval document, which must include:
(1) The rationale for the approval of the plan, plan amendment, or
plan revision;
(2) Concurrence by the appropriate Station Director with any part
of the plan applicable to any experimental forest within the plan area,
in accordance with Sec. 219.2(b)(3);
(3) A statement of how the plan, plan amendment, or plan revision
applies to approved projects and activities, in accordance with Sec.
219.8;
(4) Science documentation, in accordance with Sec. 219.11; and
(5) The effective date of the approval (Sec. 219.14(a)).
Sec. 219.8 Application of a new plan, plan amendment, or plan
revision.
(a) Application of a new plan, plan amendment, or plan revision to
existing authorizations and approved projects or activities. (1) The
Responsible Official must include in any document approving a plan
amendment or revision a description of the effects of the plan, plan
amendments, or plan revision on existing occupancy and use, authorized
by permits, contracts, or other instruments implementing approved
projects and activities. If not expressly excepted, approved projects
and activities must be consistent with applicable plan components, as
provided in paragraph (e) of this section. Approved projects and
activities are those for which a Responsible Official has signed a
decision document.
(2) Any modifications of such permits, contracts, or other
instruments necessary to make them consistent with applicable plan
components as developed, amended, or revised are subject to valid
existing rights. Such modifications should be made as soon as
practicable following approval of a new plan, plan amendment, or plan
revision.
(b) Application of a new plan, plan amendment, or plan revision to
authorizations and projects or activities subsequent to plan approval.
Decisions approving projects and activities
[[Page 1058]]
subsequent to approval of a plan, plan amendment, or plan revision must
be consistent with the plan as provided in paragraph (e) of this
section.
(c) Application of a plan. Plan provisions remain in effect until
the effective date of a new plan, plan amendment, or plan revision.
(d) Effect of new information on projects or activities. Although
new information will be considered in accordance with agency NEPA
procedures, nothing in this subpart requires automatic deferral,
suspension, or modification of approved decisions in light of new
information.
(e) Ensuring project or activity consistency with plans. Projects
and activities must be consistent with the applicable plan. If an
existing (paragraph (a) of this section) or proposed (paragraph (b) of
this section) use, project, or activity is not consistent with the
applicable plan, the Responsible Official may take one of the following
steps, subject to valid existing rights:
(1) Modify the project or activity to make it consistent with the
applicable plan components;
(2) Reject the proposal or terminate the project or activity,
subject to valid existing rights; or
(3) Amend the plan contemporaneously with the approval of the
project or activity so that it will be consistent with the plan as
amended. The amendment may be limited to apply only to the project or
activity.
Sec. 219.9 Public participation, collaboration, and notification.
The Responsible Official must use a collaborative and participatory
approach to land management planning, in accordance with this subpart
and consistent with applicable laws, regulations, and policies, by
engaging the skills and interests of appropriate combinations of Forest
Service staff, consultants, contractors, other Federal agencies,
federally recognized Indian Tribes, State or local governments, or
other interested or affected communities, groups, or persons.
(a) Providing opportunities for participation. The Responsible
Official must provide opportunities for the public to collaborate and
participate openly and meaningfully in the planning process, taking
into account the discrete and diverse roles, jurisdictions, and
responsibilities of interested and affected parties. Specifically, as
part of plan development, plan amendment, and plan revision, the
Responsible Official shall involve the public in developing and
updating the comprehensive evaluation report, establishing the
components of the plan, and designing the monitoring program. The
Responsible Official has the discretion to determine the methods and
timing of public involvement opportunities.
(1) Engaging interested individuals and organizations. The
Responsible Official must provide for and encourage collaboration and
participation by interested individuals and organizations, including
private landowners whose lands are within, adjacent to, or otherwise
affected by future management actions within the plan area.
(2) Engaging State and local governments and Federal agencies. The
Responsible Official must provide opportunities for the coordination of
Forest Service planning efforts undertaken in accordance with this
subpart with those of other resource management agencies. The
Responsible Official also must meet with and provide early
opportunities for other government agencies to be involved,
collaborate, and participate in planning for National Forest System
lands. The Responsible Official should seek assistance, where
appropriate, from other State and local governments, Federal agencies,
and scientific and academic institutions to help address management
issues or opportunities.
(3) Engaging Tribal governments. The Forest Service recognizes the
Federal Government's trust responsibility for federally recognized
Indian Tribes. The Responsible Official must consult with, invite, and
provide opportunities for federally recognized Indian Tribes to
collaborate and participate in planning. In working with federally
recognized Indian Tribes, the Responsible Official must honor the
government-to-government relationship between Tribes and the Federal
Government.
(b) Public notification. The following public notification
requirements apply to plan development, amendment, or revision, except
when a plan amendment is approved contemporaneously with approval of a
project or activity and the amendment applies only to the project or
activity, in which case 36 CFR part 215 or part 218, subpart A,
applies:
(1) When formal public notification is provided. Public
notification must be provided at the following times:
(i) Initiation of development of a plan, plan amendment, or plan
revision;
(ii) Commencement of the 90-day comment period on a proposed plan,
plan amendment, or plan revision;
(iii) Commencement of the 30-day objection period prior to approval
of a plan, plan amendment, or plan revision;
(iv) Approval of a plan, plan amendment, or plan revision; and
(v) Adjustment to conform to this subpart of a planning process for
a plan, plan amendment, or plan revision initiated under the provisions
of a previous planning regulation.
(2) How public notice is provided. Public notice must be provided
in the following manner:
(i) All required public notices applicable to a new plan, plan
revision, or adjustment of any ongoing plan revision as provided at
Sec. 219.14(e) must be published in the Federal Register and
newspaper(s) of record.
(ii) Required notifications that are associated with a plan
amendment or adjustment of any ongoing plan amendment as provided at
Sec. 219.14(e) and that apply to one plan must be published in the
newspaper(s) of record. Required notifications that are associated with
plan amendments and adjustment of any ongoing plan amendments (as
provided at Sec. 219.14(e)) and that apply to more than one plan must
be published in the Federal Register.
(iii) Public notification of evaluation reports and monitoring
program changes may be made in a manner deemed appropriate by the
Responsible Official.
(3) Content of the public notice. Public notices must contain the
following information:
(i) Content of the public notice for initiating a plan development,
plan amendment, or plan revision. The notice must inform the public of
the documents available for review and how to obtain them; provide a
summary of the need to develop a plan or change a plan; invite the
public to comment on the need for change in a plan and to identify any
other need for change in a plan that they feel should be addressed
during the planning process; and provide an estimated schedule for the
planning process, including the time available for comments, and inform
the public how to submit comments.
(ii) Content of the public notice for a proposed plan, plan
amendment, or plan revision. The notice must inform the public of the
availability of the proposed plan, plan amendment, or plan revision,
including any relevant evaluation report; the commencement of the 90-
day comment period; and the process for submitting comments.
(iii) Content of the public notice for a plan, plan amendment, or
plan revision prior to approval. The notice must inform the public of
the availability of the plan, plan amendment, or plan revision; any
relevant evaluation report; and the commencement of the 30-day
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objection period; and the process for objecting.
(iv) Content of the public notice for approval of a plan, plan
amendment, or plan revision. The notice must inform the public of the
availability of the approved plan, plan amendment, or plan revision,
the approval document, and the effective date of the approval (Sec.
219.14(a)).
(v) Content of the public notice for an adjustment to an ongoing
planning process. The notice must state how a planning process
initiated before the transition period (Sec. 219.14(b) and (e)) will
be adjusted to conform to this subpart.
Sec. 219.10 Sustainability.
Sustainability, for any unit of the National Forest System, has
three interrelated and interdependent elements: social, economic, and
ecological. A plan can contribute to sustainability by creating a
framework to guide on-the-ground management of projects and activities;
however, a plan by itself cannot ensure sustainability. Agency
authorities, the nature of a plan, and the capabilities of the plan
area are some of the factors that limit the extent to which a plan can
contribute to achieving sustainability.
(a) Sustaining social and economic systems. The overall goal of the
social and economic elements of sustainability is to contribute to
sustaining social and economic systems within the plan area. To
understand the social and economic contributions that National Forest
System lands presently make, and may make in the future, the
Responsible Official, in accordance with Sec. 219.6, must evaluate
relevant economic and social conditions and trends as appropriate
during plan development, plan amendment, or plan revision.
(b) Sustaining ecological systems. The overall goal of the
ecological element of sustainability is to provide a framework to
contribute to sustaining native ecological systems by providing
ecological conditions to support diversity of native plant and animal
species in the plan area. This will satisfy the statutory requirement
to provide for diversity of plant and animal communities based on the
suitability and capability of the specific land area in order to meet
overall multiple-use objectives (16 U.S.C. 1604(g)(3)(B)). Procedures
developed pursuant to Sec. 219.1(c) for sustaining ecological systems
must be consistent with the following:
(1) Ecosystem diversity. Ecosystem diversity is the primary means
by which a plan contributes to sustaining ecological systems. Plan
components must establish a framework to provide the characteristics of
ecosystem diversity in the plan area.
(2) Species diversity. If the Responsible Official determines that
provisions in plan components, in addition to those required by
paragraph (b)(1) of this section, are needed to provide appropriate
ecological conditions for specific threatened and endangered species,
species-of-concern, and species-of-interest, then the plan must include
additional provisions for these species, consistent with the limits of
agency authorities, the capability of the plan area, and overall
multiple use objectives.
Sec. 219.11 Role of science in planning.
(a) The Responsible Official must take into account the best
available science. For purposes of this subpart, taking into account
the best available science means the Responsible Official must:
(1) Document how the best available science was taken into account
in the planning process within the context of the issues being
considered;
(2) Evaluate and disclose substantial uncertainties in that
science;
(3) Evaluate and disclose substantial risks associated with plan
components based on that science; and
(4) Document that the science was appropriately interpreted and
applied.
(b) To meet the requirements of paragraph (a) of this section, the
Responsible Official may use independent peer review, a science
advisory board, or other review methods to evaluate the consideration
of science in the planning process.
Sec. 219.12 Suitable uses and provisions required by NFMA.
(a) Suitable uses. (1) Identification of suitable land uses.
National Forest System lands are generally suitable for a variety of
multiple uses, such as outdoor recreation, range, timber, watershed,
and wildlife and fish purposes. The Responsible Official, as
appropriate, shall identify areas within a National Forest System unit
as generally suitable for uses that are compatible with desired
conditions and objectives for that area. Such identification is
guidance for project and activity decisionmaking, is not a permanent
land designation, and is subject to change through plan amendment or
plan revision. Uses of specific areas are approved through project and
activity decisionmaking.
(2) Identification of lands not suitable for timber production. (i)
The Responsible Official must identify lands within the plan area as
not suitable for timber production (Sec. 219.16) if:
(A) Statute, Executive order, or regulation prohibits timber
production on the land; or
(B) The Secretary of Agriculture or the Chief of the Forest Service
has withdrawn the land from timber production; or
(C) The land is not forest land (as defined at Sec. 219.16); or
(D) Timber production would not be compatible with the achievement
of desired conditions and objectives established by the plan for those
lands.
(ii) This identification is not a final decision compelling,
approving, or prohibiting projects and activities. A final
determination of suitability for timber production is made through
project and activity decisionmaking. Salvage sales or other harvest
necessary for multiple-use objectives other than timber production may
take place on areas that are not suitable for timber production.
(b) NFMA requirements. (1) The Chief of the Forest Service must
include in the Forest Service Directive System procedures for
estimating the quantity of timber that can be removed annually in
perpetuity on a sustained-yield basis in accordance with 16 U.S.C.
1611.
(2) The Chief of the Forest Service must include in the Forest
Service Directive System procedures to ensure that plans include the
resource management guidelines required by 16 U.S.C. 1604(g)(3).
(3) Forest Service Directive System procedures adopted to fulfill
the requirements of this paragraph shall provide public involvement as
described in 36 CFR part 216.
Sec. 219.13 Objections to plans, plan amendments, or plan revisions.
(a) Opportunities to object. Before approving a plan, plan
amendment, or plan revision, the Responsible Official must provide the
public 30 calendar days for pre-decisional review and the opportunity
to object. Federal agencies may not object under this subpart. During
the 30-day review period, any person or organization, other than a
Federal agency, who participated in the planning process through the
submission of written comments, may object to a plan, plan amendment,
or plan revision according to the procedures in this section, except in
the following circumstances:
(1) When a plan amendment is approved contemporaneously with a
project or activity decision and the plan amendment applies only to the
project or activity, in which case the administrative review process of
36 CFR part 215 or part 218, subpart A, applies
[[Page 1060]]
instead of the objection process established in this section; or
(2) When the Responsible Official is an official in the Department
of Agriculture at a level higher than the Chief of the Forest Service,
in which case there is no opportunity for administrative review.
(b) Submitting objections. The objection must be in writing and
must be filed with the Reviewing Officer within 30 days following the
publication date of the legal notice in the newspaper of record of the
availability of the plan, plan amendment, or plan revision. Specific
details will be included in the Forest Service Directive System. An
objection must contain:
(1) The name, mailing address, and telephone number of the person
or entity filing the objection. Where a single objection is filed by
more than one person, the objection must indicate the lead objector to
contact. The Reviewing Officer may appoint the first name listed as the
lead objector to act on behalf of all parties to the single objection
when the single objection does not specify a lead objector. The
Reviewing Officer may communicate directly with the lead objector and
is not required to notify the other listed objectors of the objection
response or any other written correspondence related to the single
objection;
(2) A statement of the issues, the parts of the plan, plan
amendment, or plan revision to which the objection applies, and how the
objecting party would be adversely affected; and
(3) A concise statement explaining how the objector believes that
the plan, plan amendment, or plan revision is inconsistent with law,
regulation, or policy or how the objector disagrees with the decision
and providing any recommendations for change.
(c) Responding to objections. (1) The Reviewing Officer (Sec.
219.16) has the authority to make all procedural determinations related
to the objection not specifically explained in this subpart, including
those procedures necessary to ensure compatibility, to the extent
practicable, with the administrative review processes of other Federal
agencies. The Reviewing Officer must promptly render a written response
to the objection. The response must be sent to the objecting party by
certified mail, return receipt requested.
(2) The response of the Reviewing Officer shall be the final
decision of the Department of Agriculture on the objection.
(d) Use of other administrative review processes. Where the Forest
Service is a participant in a multi-Federal agency effort that would
otherwise be subject to objection under this subpart, the Reviewing
Officer may waive the objection procedures of this subpart and instead
adopt the administrative review procedure of another participating
Federal agency. As a condition of such a waiver, the Responsible
Official for the Forest Service must have agreement with the
Responsible Official of the other agency or agencies that a joint
agency response will be provided to those who file for administrative
review of the multi-agency effort.
(e) Compliance with the Paperwork Reduction Act. The information
collection requirements associated with submitting an objection have
been approved by the Office of Management and Budget and assigned
control number 0596-0158.
Sec. 219.14 Effective dates and transition.
(a) Effective dates. A plan, plan amendment, or plan revision is
effective 30 days after publication of notice of its approval (Sec.
219.9(b)), except when a plan amendment is approved contemporaneously
with a project or activity and applies only to the project or activity,
in which case 36 CFR part 215 or part 218, subpart A, apply.
(b) Transition period. For each unit of the National Forest System,
the transition period begins on January 5, 2005 and ends on the unit's
establishment of an EMS in accordance with Sec. 219.5 or on January 7,
2008 whichever comes first.
(c) Initiation of plans, plan amendments, or plan revisions. For
the purposes of this section, initiation means that the agency has
provided notice under Sec. 219.9(b) or issued a Notice of Intent or
other public notice announcing the commencement of the process to
develop a plan, plan amendment, or plan revision.
(d) Plan development, plan amendments, or plan revisions initiated
during the transition period. (1) Plan development and plan revisions
initiated after January 5, 2005 must conform to the requirements of
this subpart.
(2) Plan amendments initiated during the transition period may
continue using the provisions of the planning regulations in effect
before November 9, 2000 (See 36 CFR parts 200 to 299, Revised as of
July 1, 2000) or may conform to the requirements of this subpart if the
Responsible Official establishes an EMS in accordance with Sec. 219.5.
(3) Plan amendments initiated after the transition period must
conform to the requirements of this subpart.
(e) Plan development, plan amendments, or plan revisions previously
initiated. Plan development, plan amendments, or plan revisions
initiated before the transition period may continue to use the
provisions of the planning regulations in effect before November 9,
2000 (See 36 CFR parts 200 to 299, Revised as of July 1, 2000), or may
conform to the requirements of this subpart, in accordance with the
following:
(1) The Responsible Official is not required to halt the process
and start over. Rather, upon the unit's establishment of an EMS in
accordance with Sec. 219.5, the Responsible Official may apply this
subpart as appropriate to complete the plan development, plan
amendment, or plan revision process.
(2) The Responsible Official may elect to use either the
administrative appeal and review procedures at 36 CFR part 217 in
effect prior to November 9, 2000, (See 36 CFR parts 200 to 299, Revised
as of July 1, 2000), or the objection procedures of this subpart,
except when a plan amendment is approved contemporaneously with a
project or activity and applies only to the project or activity, in
which case 36 CFR part 215 or part 218, subpart A, apply.
(f) Management indicator species. For units with plans developed,
amended, or revised using the provisions of the planning rule in effect
prior to November 9, 2000, the Responsible Official may comply with any
obligations relating to management indicator species by considering
data and analysis relating to habitat unless the plan specifically
requires population monitoring or population surveys for the species.
Site-specific monitoring or surveying of a proposed project or activity
area is not required, but may be conducted at the discretion of the
Responsible Official.
Sec. 219.15 Severability.
In the event that any specific provision of this rule is deemed by
a court to be invalid, the remaining provisions shall remain in effect.
Sec. 219.16 Definitions.
Definitions of the special terms used in this subpart are set out
in alphabetical order.
Adaptive management: An approach to natural resource management
where actions are designed and executed and effects are monitored for
the purpose of learning and adjusting future management actions, which
improves the efficiency and responsiveness of management.
Area of analysis: The geographic area within which ecosystems,
their
[[Page 1061]]
components, or their processes are evaluated during analysis and
development of one or more plans, plan revisions, or plan amendments.
This area may vary in size depending on the relevant planning issue.
For a plan, an area of analysis may be larger than a plan area. For
development of a plan amendment, an area of analysis may be smaller
than the plan area. An area of analysis may include multiple
ownerships.
Diversity of plant and animal communities: The distribution and
relative abundance or extent of plant and animal communities and their
component species, including tree species, occurring within an area.
Ecological conditions: Components of the biological and physical
environment that can affect diversity of plant and animal communities
and the productive capacity of ecological systems. These components
could include the abundance and distribution of aquatic and terrestrial
habitats, roads and other structural developments, human uses, and
invasive, exotic species.
Ecosystem diversity: The variety and relative extent of ecosystem
types, including their composition, structure, and processes within all
or a part of an area of analysis.
Environmental management system: The part of the overall management
system that includes organizational structure, planning activities,
responsibilities, practices, procedures, processes, and resources for
developing, implementing, achieving, reviewing, and maintaining the
environmental policy of the planning unit.
Federally recognized Indian Tribe: An Indian or Alaska Native
Tribe, band, nation, pueblo, village, or community that the Secretary
of the Interior acknowledges to exist as an Indian Tribe pursuant to
the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
Forest land: Land at least 10 percent occupied by forest trees of
any size or formerly having had such tree cover and not currently
developed for nonforest uses. Lands developed for non-forest use
include areas for crops; improved pasture; residential or
administrative areas; improved roads of any width and adjoining road
clearing; and power line clearings of any width.
ISO 14001: A consensus standard developed by the International
Organization for Standardization and adopted by the American National
Standards Institute that describes environmental management systems and
outlines the elements of an environmental management system.
Newspaper(s) of record: The principal newspapers of general
circulation annually identified and published in the Federal Register
by each Regional Forester to be used for publishing notices as required
by 36 CFR 215.5. The newspaper(s) of record for projects in a plan area
is (are) the newspaper(s) of record for notices related to planning.
Plan: A document or set of documents that integrates and displays
information relevant to management of a unit of the National Forest
System.
Plan area: The National Forest System lands covered by a plan.
Productivity: The capacity of National Forest System lands and
their ecological systems to provide the various renewable resources in
certain amounts in perpetuity. For the purposes of this subpart it is
an ecological, not an economic, term.
Public participation: Activities that include a wide range of
public involvement tools and processes, such as collaboration, public
meetings, open houses, workshops, and comment periods.
Responsible Official: The official with the authority and
responsibility to oversee the planning process and to approve plans,
plan amendments, and plan revisions.
Reviewing Officer: The supervisor of the Responsible Official. The
Reviewing Officer responds to objections made to a plan, plan
amendment, or plan revision prior to approval.
Species: Any member of the currently accepted and scientifically
defined plant or animal kingdoms of organisms.
Species-of-concern: Species for which the Responsible Official
determines that management actions may be necessary to prevent listing
under the Endangered Species Act.
Species-of-interest: Species for which the Responsible Official
determines that management actions may be necessary or desirable to
achieve ecological or other multiple use objectives.
Timber production: The purposeful growing, tending, harvesting, and
regeneration of regulated crops of trees to be cut into logs, bolts, or
other round sections for industrial or consumer use.
Visitor opportunities: The spectrum of settings, landscapes,
scenery, facilities, services, access points, information, learning-
based recreation, wildlife, natural features, cultural and heritage
sites, and so forth available for National Forest System visitors to
use and enjoy.
Wilderness: Any area of land designated by Congress as part of the
National Wilderness Preservation System that was established in the
Wilderness Act of 1964 (16 U.S.C. 1131-1136).
Dated: December 22, 2004.
Mark Rey,
Under Secretary, Natural Resources and Environment.
[FR Doc. 05-21 Filed 1-4-05; 8:45 am]
BILLING CODE 3410-11-P