[Federal Register Volume 77, Number 68 (Monday, April 9, 2012)]
[Rules and Regulations]
[Pages 21162-21276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7502]
[[Page 21161]]
Vol. 77
Monday,
No. 68
April 9, 2012
Part II
Department of Agriculture
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Forest Service
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36 CFR Part 219
National Forest System Land Management Planning; Final Rule
Federal Register / Vol. 77 , No. 68 / Monday, April 9, 2012 / Rules
and Regulations
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 219
RIN 0596-AD02
National Forest System Land Management Planning
AGENCY: Forest Service, USDA.
ACTION: Final rule and record of decision.
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SUMMARY: The U.S. Department of Agriculture is adopting a new National
Forest System land management planning rule (planning rule). The new
planning rule guides the development, amendment, and revision of land
management plans for all units of the National Forest System (NFS),
consisting of 155 national forests, 20 grasslands, and 1 prairie.
This planning rule sets forth process and content requirements to
guide the development, amendment, and revision of land management plans
to maintain and restore NFS land and water ecosystems while providing
for ecosystem services and multiple uses. The planning rule is designed
to ensure that plans provide for the sustainability of ecosystems and
resources; meet the need for forest restoration and conservation,
watershed protection, and species diversity and conservation; and
assist the Agency in providing a sustainable flow of benefits,
services, and uses of NFS lands that provide jobs and contribute to the
economic and social sustainability of communities.
DATES: Effective Date: This rule is effective May 9, 2012.
ADDRESSES: For more information, including a copy of the final PEIS,
refer to the World Wide Web/Internet at: http://www.fs.usda.gov/planningrule. More information may be obtained on 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: Ecosystem Management Coordination
staff's Assistant Director for Planning Ric Rine at (202) 205-1022 or
Planning Specialist Regis Terney at (202) 205-0895.
SUPPLEMENTARY INFORMATION:
Decision
This document records the decision that the U.S. Department of
Agriculture (USDA) reached in determining the alternative that best
meets the purpose and need for a new planning rule. The USDA based this
decision on the analyses presented in the Final Programmatic
Environmental Impact Statement, National Forest System Land Management
Planning (USDA, Forest Service, 2011) (PEIS). The PEIS was prepared in
accordance with the National Environmental Policy Act of 1969 (NEPA).
For the reasons set out in the discussion that follows, the
Department hereby promulgates a regulation establishing a National
Forest System land management planning rule as described in Modified
Alternative A of the National Forest System Land Management Planning
Rule Final Programmatic Environmental Impact Statement (USDA Forest
Service, 2011) with clarifications, and the supporting record. The
planning rule describes the process the Forest Service will use for
development, amendment, and revision of national forest and grassland
plans. It also sets out requirements for the structure of those plans
and includes requirements for their content.
This planning rule replaces the final 2000 land management planning
rule (2000 rule) as reinstated in the Code of Federal Regulations on
December 18, 2009 (74 FR 67062).
Outline
The following outline shows the contents of the preamble which
states the basis and purpose of the rule, includes responses to
comments received on the proposed rule, and serves as the record of
decision for this rulemaking.
Introduction and Background
Purpose and Need for the New Rule
Public Involvement
Summary of Alternatives Considered by the Agency
The Environmentally Preferred Alternative
Decision and Rationale
Compliance with the Endangered Species Act of 1973, as Amended
Response to Comments
Regulatory Certifications
Regulatory Planning and Review
Agency Cost Impacts
Efficiency and Cost-Effectiveness Impacts
Distributional Impacts
Proper Consideration of Small Entities
Energy Effects
Environmental Impacts
Controlling Paperwork Burdens on the Public
Federalism
Consultation with Indian Tribal Governments
Takings of Private Property
Civil Justice Reform
Unfunded Mandates
Environmental Justice
Introduction and Background
The mission of the Forest Service is to sustain the health,
diversity, and productivity of the Nation's forests and grasslands to
meet the needs of present and future generations. Responsible officials
for each national forest, grassland, and prairie will follow the
direction of the planning rule to develop, amend, or revise their land
management plans.
The new planning rule provides a process for planning that is
adaptive and science-based, engages the public, and is designed to be
efficient, effective, and within the Agency's ability to implement. It
meets the requirements under the National Forest Management Act (NFMA),
the Multiple-Use Sustained-Yield Act (MUSYA), and the Endangered
Species Act, as well as all other legal requirements. It was also
developed to ensure that plans are consistent with and complement
existing, related Agency policies that guide management of resources on
the National Forest System (NFS), such as the Climate Change Scorecard,
the Watershed Condition Framework, and the Sustainable Recreation
Framework.
The planning rule framework includes three phases: Assessment, plan
development/amendment/revision, and monitoring. The framework supports
an integrated approach to the management of resources and uses,
incorporates the landscape-scale context for management, and will help
the Agency to adapt to changing conditions and improve management based
on new information and monitoring. It is intended to provide the
flexibility to respond to the various social, economic, and ecologic
needs across a very diverse system, while including a consistent set of
process and content requirements for NFS land management plans. The
Department anticipates that the Agency will use the framework to keep
plans current and respond to changing conditions and new information
over time.
The planning rule requires the use of best available scientific
information to inform planning and plan decisions. It also emphasizes
providing meaningful opportunities for public participation early and
throughout the planning process, increases the transparency of
decision-making, and provides a platform for the Agency to work with
the public and across boundaries with other land managers to identify
and share information and inform planning.
The final planning rule reflects key themes expressed by members of
the public, as well as experience gained through the Agency's 30-year
history
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with land management planning. It is intended to create a more
efficient and effective planning process and provide an adaptive
framework for planning.
This final planning rule requires that land management plans
provide for ecological sustainability and contribute to social and
economic sustainability, using public input and the best available
scientific information to inform plan decisions. The rule contains a
strong emphasis on protecting and enhancing water resources, restoring
land and water ecosystems, and providing ecological conditions to
support the diversity of plant and animal communities, while providing
for ecosystem services and multiple uses.
The 1982 planning rule procedures have guided the development,
amendment, and revision of all existing Forest Service land management
plans. However, since 1982 much has changed in our understanding of
land management planning. The body of science that informs land
management planning in areas such as conservation biology and ecology
has advanced considerably, along with our understanding of the values
and benefits of NFS lands, and the challenges and stressors that may
impact them.
Because planning under the procedures of the 1982 rule is often
time consuming and cumbersome, it has been a challenge for responsible
officials to keep plans current. Instead of amending plans as
conditions on the ground change, responsible officials often wait and
make changes all at once during the required revision process. The
result can be a drawn-out, difficult, and costly revision process. Much
of the planning under the 1982 rule procedures focused on writing plans
that would mitigate negative environmental impacts. The protective
measures in the 1982 rule were important, but the focus of land
management has changed since then and the Agency needs plans that do
more than mitigate harm. The Agency needs a planning process that leads
to plans that contribute to ecological, social, and economic
sustainability to protect resources on the unit and maintain the flow
of goods and services from NFS lands on the unit over time.
The NFMA requires the Agency to develop a planning rule ``under the
principles of the Multiple-Use Sustained-Yield Act of 1960, that set[s]
out the process for the development and revision of the land management
plans, and the guidelines and standards'' (16 U.S.C. 1604(g)). The
Forest Service fulfills this requirement by codifying a planning rule
at Title 36, Code of Federal Regulations, part 219 (36 CFR part 219),
which sets requirements for land management planning and content of
plans.
In 1979, the Department issued the first regulations to comply with
this statutory requirement. The 1979 regulations were superseded by the
1982 planning rule, which has formed the basis for all existing Forest
Service land management plans.
In 1989, the Agency initiated a comprehensive Critique of Land
Management Planning, which identified a number of adjustments that were
needed to the 1982 planning rule. The Critique found that the 1982
planning rule process was complex, costly, lengthy, and cumbersome for
the public to provide input. The recommendations in the Critique and
the Agency's own experiences with planning led to the Agency issuing an
advance notice of proposed rulemaking for a new planning rule in 1991
and proposing a new, revised rule initially in 1995 and again in 1999.
The Department worked with a committee of scientists to develop a
final rule, which was issued in 2000. The 2000 revision of the planning
rule described a new agenda for NFS planning; made sustainability the
foundation for NFS planning and management; required the consideration
of the best available scientific information during the planning and
implementation process; and set forth requirements for implementation,
monitoring, evaluation, amendment, and revision of land management
plans. However, a review in the spring of 2001 found that the 2000 rule
was costly, complex, and procedurally burdensome. The results of the
review led the Department to issue a new planning rule in 2005 and a
revised version again in 2008; however, the U.S. District Court for
Northern District of California invalidated each of those rules on
procedural grounds (Citizens for Better Forestry v. USDA, 481 F.
Supp.2d 1059 (N.D. Cal. 2007) (2005 rule); Citizens for Better Forestry
v. USDA, 632 F. Supp.2d 968 (N.D. Cal. 2009) (2008 rule)).
This final rule replaces the 2000 rule. Because the 2000 rule was
the last promulgated planning rule to take effect and not be set aside
by a court, the 2000 rule is the rule currently in effect. While the
2000 planning rule replaced the 1982 rule in the Code of Federal
Regulations, the transition section of the 2000 rule allowed units to
use the 1982 planning rule procedures for plan amendments and revisions
until a new planning rule was issued. After the 2008 rule was
invalidated, on December 18, 2009, the Department reinstated the 2000
rule in the Code of Federal Regulations and made technical amendments
to update transition provisions as an interim measure to be in effect
until a new planning rule was issued (74 FR 67062).
The instability created by these past planning rule efforts has
caused delays in planning and confused the public. At the same time,
the vastly different context for management and improved understanding
of science and sustainability that have evolved over the past three
decades have created a need for an updated planning rule that will help
the Agency respond to new challenges in meeting management objectives
for NFS lands.
This final rule is intended to ensure that plans respond to the
requirements of land management that the Agency faces today, including
the need to provide sustainable benefits, services, and uses, including
recreation; the need for forest restoration and conservation, watershed
protection, and wildlife conservation; and the need for sound resource
management under changing conditions. The new rule sets forth a process
that is adaptive, science-based, collaborative, and within the Agency's
capability to carry out on all NFS units. Finally, the new rule is
designed to make planning more efficient and effective.
Purpose and Need for the New Rule
The NFMA requires regulations consistent with the principles of the
Multiple-Use Sustained-Yield Act of 1960, that set out the process for
the development and revision of the land management plans and the
guidelines and standards the Act prescribes (16 U.S.C. 1604(g)). The
Forest Service's experience, evolving scientific understanding of
approaches to land management, changing social demands, and new
challenges such as changing climate have made clear the need for a
revised rule to more effectively fulfill NFMA's mandate.
On August 14, 2009, Agriculture Secretary Tom Vilsack outlined his
vision for the future of our nation's forests, setting forth a
direction for conservation, management, and restoration of NFS lands.
Secretary Vilsack stated that: ``It is time for a change in the way we
view and manage America's forestlands with an eye towards the future.
This will require a new approach that engages the American people and
stakeholders in conserving and restoring both our National Forests and
our privately-owned forests.'' The Secretary emphasized that the Forest
Service planning process provides an important means for integrating
forest restoration,
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climate resilience, watershed protection, wildlife conservation,
opportunities to contribute to vibrant local economies, and the
collaboration necessary to manage our national forests. ``Our best
opportunity to accomplish this is in the developing of a new forest
planning rule for our national forests.''
The NFS currently consists of 127 land management plans, 68 of
which are past due for revision. Most plans were developed between 1983
and 1993 and should have been revised between 1998 and 2008, based on
NFMA direction to revise plans at least once every 15 years. The
efforts to produce a new planning rule over the past decade have
contributed to the delay in plan revisions. With clarity and stability
in planning regulations, land management planning can regain momentum
and units will be able to complete revisions more efficiently.
As explained in the Introduction and Background section of this
document, the present planning rule is the 2000 planning rule. Under
the transition provisions of that rule, the Agency can choose to use
either the procedures of the 2000 rule or the planning procedures of
the 1982 rule to develop, amend, or revise land management plans. Based
on the concerns about implementing the 2000 rule procedures, the Forest
Service has been relying upon the 2000 rule's transition provision to
develop, amend, and revise land management plans under the 1982
procedures until a new planning rule is in place.
The Forest Service and the Department conclude that the procedures
of neither the 2000 rule nor the 1982 rule meet the needs of the Agency
today or fulfill the Secretary's vision. Moreover, the Department and
the Forest Service have determined that the 2000 rule is beyond the
Agency's capability to implement. Even though the Agency has had the
option to use the procedures in the 2000 rule, no line officer has
chosen to use the 2000 rule to revise or amend a land management plan
because the 2000 rule is too costly, complex, and procedurally
burdensome. At the same time, the 1982 rule procedures are not current
with regard to science, knowledge of the environment, practices for
planning and adaptive management, or social values, and are also too
complex, costly, lengthy, and cumbersome.
The purpose of, and the need for, a new planning rule is to provide
the direction for National Forests and Grasslands to develop, amend,
and revise land management plans that will enable land managers to
consistently and efficiently respond to social, economic, and
ecological conditions.
The Secretary of Agriculture is vested with broad authority to make
rules ``to regulate occupancy and use and to preserve [the forests]
from destruction'' (16 U.S.C. 551). The MUSYA authorizes and directs
that the national forests be managed under the principles of multiple
use and to produce sustained yield of products and services. NFMA
directs the Secretary to promulgate regulations for the development and
revision of land management plans and prescribes a number of provisions
that the regulations shall include, but not be limited to (16 U.S.C.
1600(g)). Based on the principles of the MUSYA, the requirements of
NFMA, the Secretary's direction and nearly three decades of land
management planning experience, the Department and the Forest Service
find that a planning rule must address the following eight purposes and
needs:
1. Emphasize restoration of natural resources to make our NFS lands
more resilient to climate change, protect water resources, and improve
forest health.
2. Contribute to ecological, social, and economic sustainability by
ensuring that all plans will be responsive and can adapt to issues such
as the challenges of climate change; the need for forest restoration
and conservation, watershed protection, and species conservation; and
the sustainable use of public lands to support vibrant communities.
3. Be consistent with NFMA and MUSYA.
4. Be consistent with Federal policy on the use of scientific
information and the Agency's expertise and experience gained in over
thirty years of land management planning.
5. Provide for a transparent, collaborative process that allows
effective public participation.
6. Ensure planning takes place in the context of the larger
landscape by taking an ``all-lands approach.''
7. Be within the Agency's capability to implement on all NFS units;
be clear; provide an efficient framework for planning; and be able to
be implemented within the financial capacity of the Agency.
8. Be effective by requiring a consistent approach to ensure that
all plans address the issues outlined by the Secretary and yet allow
for land management plans to be developed and implemented to address
social, economic, and ecological needs across the diverse and highly
variable systems of the National Forest System.
Public Involvement
Public Involvement in the Development of the Proposed Rule and Draft
Environmental Impact Statement (DEIS)
The Department and the Agency engaged in an extensive public
outreach and participation process unprecedented for the development of
a planning rule. A Notice of Intent (NOI) to prepare a new planning
rule and an accompanying draft environmental impact statement (DEIS)
was published in the Federal Register on December 18, 2009 (74 FR
67165). The NOI solicited public comments on the proposal until
February 16, 2010. The notice presented a series of substantive and
procedural principles to guide development of a new planning rule.
Under each principle, the notice posed several questions to stimulate
thoughts and encourage responses. The Forest Service received over
26,000 comments in response to the notice.
The Agency held a science forum on March 29 and 30, 2010, in
Washington, DC to ground development of a new planning rule in science
and to foster a collaborative dialogue with the scientific community.
Panels made up of 21 scientists drawn from academia, research
organizations, non-government organizations, industry, and the Federal
Government presented the latest science on topics relevant to the
development of a new rule for developing land management plans. The
format was designed to encourage scientists and practitioners to share
the current state of knowledge in key areas and to encourage open
dialogue with interested stakeholders.
The Forest Service convened a series of four national roundtables
held in Washington, DC during the course of developing the proposed
planning rule. The intent was to have a national-level dialogue around
the concepts for development of the Forest Service proposed planning
rule, to get public input prior to developing the proposed rule. The
Forest Service also held 33 regional roundtables during April and May
2010 in the following States: Alaska, Arizona, California, Colorado,
Georgia, Idaho, Illinois, Montana, Nevada, New Mexico, Oregon, South
Dakota, Utah, and Wyoming.
Additionally, the Forest Service Webcast many of the national and
regional roundtables, posted materials and summaries of the roundtables
online, and hosted a blog to further encourage participation. In all,
more than 3,000 members of the public participated in these
opportunities to provide their input.
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Public Involvement in the Development of the Final Rule and Final
Programmatic Environmental Impact Statement (PEIS)
The Department and the Agency used the input provided by the public
in response to the NOI and during the roundtables to inform the
development of the proposed rule and DEIS. The proposed planning rule
and draft programmatic environmental impact statement (PEIS) were
published for comment on February 14, 2011 (76 FR 8480). The comment
period ran for 90 days through May 16, 2011. The Department received
nearly 300,000 comments during the comment period.
Early in the comment period, the Agency held a series of public
meetings that provided opportunities for interested persons to ask
questions about the proposed rule. The intent of the meetings was to
explain the proposed rule and provide information to the public as they
developed their comments on the proposed rule. Between March 10, 2011,
and April 7, 2001, the Agency held 1 national and 28 regional forums,
which reached 72 satellite locations across the country. The national
meeting was held in Washington, DC. Regional and satellite meetings
were held in the following States: Alabama, Alaska, Arizona, Arkansas,
California, Colorado, Florida, Georgia, Idaho, Illinois, Indiana,
Kentucky, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada,
New Hampshire, New Mexico, New York, North Carolina, Ohio, Oregon,
Pennsylvania, Puerto Rico, South Carolina, South Dakota, Tennessee,
Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin
and Wyoming.
Tribal Involvement
To ensure Tribes and Alaska Native Corporations were heard in a way
that gave recognition to their special and unique relationship with the
Federal Government, the Agency provided opportunities for participation
and consultation throughout the process.
To get input early in the process, the Agency hosted two national
Tribal roundtables conducted via conference call in May and August,
2010. Additionally, six Tribal roundtables were held in California,
Arizona, and New Mexico. Tribes and Alaska Native Corporations also
participated in many of the national and regional roundtables prior to
development of the proposed rule.
On September 23, 2010, the Deputy Chief for the National Forest
System sent a letter inviting 564 federally recognized Tribes and 29
Alaska Native Corporations to begin government-to-government
consultation on the proposed planning rule. The Agency held 16
consultation meetings across the country with designated Tribal
officials in November and December, 2010, prior to the publication of
the proposed rule in February, 2011. Tribal consultation continued
following the release of the proposed rule, with additional
opportunities for Tribal consultation provided in 2011.
During the public comment period on the proposed rule the Forest
Service held a Tribal teleconference to discuss with Tribes how their
previous comments were addressed in the proposed rule. Sixteen Tribes
participated in the discussion and had the opportunity to have their
questions answered by members of the rule writing team, the Ecosystem
Management Coordination Director, and the Associate Chief of the Forest
Service. Additionally consultation with Tribes continued at the local
level.
Summaries of public involvement may be viewed at http://www.fs.usda.gov/planningrule.
Issues Identified in the Programmatic Environmental Impact Statement
(PEIS)
Based on public comments, an interdisciplinary team identified a
list of issues to analyze:
Ecosystem Restoration.
Watershed Protection.
Diversity of Plant and Animal Communities.
Climate Change.
Multiple Uses.
Efficiency and Effectiveness.
Transparency and Collaboration.
Coordination and Cooperation beyond NFS Boundaries.
The PEIS analyzes six fully developed alternatives (A, Modified A,
and B through E), and considered nine additional alternatives that were
eliminated from detailed study (40 CFR 1502.14(a)). The six fully
developed alternatives, with the exception of Alternative B (No
Action), meet all aspects of the purpose and need to varying degrees
and are described below. The additional alternatives (Alternatives F
through N) were considered but eliminated from detailed study because
they did not meet some of the aspects of the purpose and need. Chapter
2 of the PEIS provides a more complete discussion of the disposition of
these alternatives.
Summary of Alternatives Considered by the Agency
The following summaries describe each alternative. A comparison of
the alternatives is available in Chapter 2 of the PEIS.
Alternative A (Proposed Action and Proposed Planning Rule)
Alternative A uses an adaptive framework. The framework consists of
a three-part learning and planning framework to assess conditions and
stressors; develop, amend, or revise land management plans based on the
need for change; and monitor to test assumptions, detect changes, and
evaluate whether progress is being made toward desired outcomes.
Alternative A would make the supervisor of the national forest,
grassland, prairie, or other comparable administrative unit the
responsible official for approving new plans, plan amendments, and plan
revisions.
This alternative would require the responsible official to take
science into account in the planning process and would require
documentation as to how science was considered.
This alternative would require the responsible official to provide
opportunities for public participation throughout all stages of the
planning process, and includes requirements for outreach, Tribal
consultation, and coordination with other planning efforts. This
alternative would require responsible officials to provide formal
public notification at various points in the process and to post all
notifications online. This alternative requires the responsible
official to encourage participation by youth, low-income, and minority
populations. Alternative A would explicitly require the responsible
official to provide the opportunity to undertake consultation with
federally recognized Indian Tribes and Alaska Native Corporations and
require the responsible official to encourage participation by
interested or affected federally recognized Indian Tribes and Alaska
Native Corporations. As part of Tribal participation and consultation,
the responsible official would invite Tribes to share native knowledge
during the planning process. Alternative A would require that the
responsible official coordinate planning with the equivalent and
related planning efforts of other Federal agencies, State and local
governments, and Indian Tribes.
Alternative A would require assessments to identify and evaluate
information needed to understand and assess existing and potential
future conditions on NFS lands in the context of the broader landscape.
These assessments would include a review of relevant information from
other governmental or non-governmental assessments, plans, reports, and
studies.
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Alternative A would require plans to include five plan components--
desired conditions, objectives, standards, guidelines, and suitability
of areas for resource management. Plans could also include goals as
option plan components. Alternative A includes direction for other
content required in the plan, including the monitoring program.
Alternative A would require plan components to provide for the
maintenance or restoration of the structure, function, composition, and
connectivity of healthy and resilient aquatic ecosystems and watersheds
in the plan area. In addition, Alternative A would include plan
components to guide the unit's contribution to social and economic
sustainability.
Under Alternative A, plan components for ecological sustainability
would be required to take into account air quality, landscape-scale
integration of ecosystems, system drivers and stressors including
climate change, and opportunities to restore fire adapted ecosystems.
Plan components would also be designed to maintain, protect and restore
various ecosystem elements including soil, water, and riparian areas.
Alternative A would require plan components for the conservation of
all native aquatic and terrestrial species with the aim of providing
the ecological conditions to contribute to the recovery of federally
listed threatened and endangered species, conserve candidate species,
and maintain viable populations of species of conservation concern.
Alternative A would also require monitoring of select ecological and
watershed conditions and focal species to assess progress towards
meeting diversity and ecological sustainability requirements.
Alternative A would require that plans provide for multiple uses
and ecosystem services, considering a full range of resources, uses,
and benefits relevant to the unit, as well as stressors, and other
important factors.
Alternative A would require plan components for sustainable
recreation, considering opportunities and access for a range of uses.
Recreational opportunities could include non-motorized, motorized,
developed, and dispersed recreation on land, water, and air. In
addition, plans should identify recreational settings and desired
conditions for scenic landscape character.
Alternative A includes requirements for plan components for timber,
consistent with the requirements of NFMA.
Alternative A provides an efficient process for amendments,
required for any substantive change to plan components, and for
administrative changes to make corrections or changes to parts of the
plan other than the plan components.
Alternative A requires plan-level and broader-scale monitoring, to
inform adaptive management.
Alternative A would require an environmental impact statement for
new plans and plan revisions. Plan amendments would require either an
environmental impact statement or an environmental assessment, or could
be categorically excluded from documentation, based on the significance
of effects pursuant to Agency NEPA procedures.
Alternative A would require that the decision document for the plan
include the rationale for approval, an explanation of how the plan
components meet the requirements for sustainability and diversity, best
available scientific information documentation, and direction for
project application.
Alternative A requires that projects and activities must be
consistent with the plan components, and provides direction for
determining consistency. It also requires that other resource plans
that apply to the plan area be consistent with the plan components.
The responsible official initiating a plan revision or development
of a new plan before Alternative A went into effect would have the
option to complete the plan revision or development of the new plan
under the prior rule or conform to the requirements of the final rule
after providing notice to the public. All plan revisions or new plans
initiated after the effective date of the final rule would have to
conform to the new planning requirements.
Alternative A includes a severability provision, stating if parts
of Alternative A are separately found invalid in litigation, individual
provisions of the rule could be severed and the other parts of the rule
could continue to be implemented.
Alternative A provides a pre-decisional administrative review
(objection) process for proposed plans, plan amendments, and plan
revisions. The objection process is based on the objection regulations
for certain proposed hazardous fuel reduction projects, found at 36 CFR
part 218, and is intended to foster continued collaboration in the
administrative review process.
The complete text of Alternative A is provided in Appendix A of the
PEIS.
Reason for non-selection: Alternative A meets the purpose and need
and responds to the significant issues displayed in the PEIS in a
manner very similar to Modified Alternative A. The Department received
a large number of public comments on Alternative A including
suggestions about how to change Alternative A, improve clarity, and
better align the text of the alternative with the Department's intent
as described in the preamble for the proposed rule. The Department
developed Modified Alternative A after considering public comments.
Modified Alternative A is described below. Alternative A was not
selected because the Agency developed Modified Alternative A in
response to public comment. For this reason, Alternative A was not
selected as the final rule.
Modified Alternative A (Final Rule)
Modified Alternative A, with clarifications, was selected as the
final rule, (see the Decision and Rationale section of this document).
Modified Alternative A includes the same concepts and underlying
principles as Alternative A, and retains much of the same content.
However, a number of changes to the rule text and organization have
been made, based on public comment on the proposed rule (Alternative A)
and the DEIS. The Forest Service considered the available option of
replacing the text of Alternative A with the text of Modified
Alternative A in the PEIS. However, because Modified Alternative A
looks different than Alternative A, the Agency included it as a new
alternative for transparency and for the ease of the reviewer in
comparing the proposed rule with the final preferred alternative.
Modified Alternative A uses an adaptive framework for planning. The
framework consists of a three-part learning and planning framework to
assess information relevant to the plan area, develop, amend, or revise
land management plans based on the need for change, and monitor to test
assumptions, detect changes, and evaluate whether progress is being
made toward desired outcomes.
Modified Alternative A would make the supervisor of the national
forest, grassland, prairie, or other comparable administrative unit the
responsible official for approving new plans, plan amendments, and plan
revisions. The Chief would be required to establish a national
oversight process for consistency and accountability.
Modified Alternative A would require the responsible official to
use the best available scientific information to inform the planning
process, plan components, and other plan content including the
monitoring program, and
[[Page 21167]]
includes requirements for documentation of how the best available
scientific information was used to inform the plan decision.
Modified Alternative A would require the responsible official to
provide opportunities for public participation throughout all stages of
the planning process, and includes requirements for outreach, Tribal
consultation, and coordination with other planning efforts. Modified
Alternative A requires the responsible official to encourage
participation by youth, low-income, and minority populations. Modified
Alternative A would explicitly require the responsible official to
provide the opportunity to undertake consultation with federally
recognized Indian Tribes and Alaska Native Corporations and require the
responsible official to encourage participation by interested or
affected federally recognized Indian Tribes and Alaska Native
Corporations. As part of Tribal participation and consultation, the
responsible official would invite Tribes to share native knowledge
during the planning process. Modified Alternative A would require that
the responsible official coordinate planning with the equivalent and
related planning efforts of other Federal agencies, State and local
governments, and Indian Tribes.
Modified Alternative A would require assessments to rapidly
identify and evaluate existing information relevant to the plan area to
understand and assess existing and potential future conditions on NFS
lands in the context of the broader landscape, focused on a set of
topics that relate to the requirements for plan components and other
plan content. These assessments would include a review of relevant
information from other governmental or non-governmental assessments,
plans, reports, and studies.
Modified Alternative A would require plans to include five plan
components--desired conditions, objectives, standards, guidelines, and
suitability of areas for resource management. Plans could also include
goals as option plan components. Modified Alternative A includes
direction for other content required in the plan, including the
monitoring program.
Modified Alternative A would require plan components to provide for
the maintenance or restoration of the ecological integrity of
terrestrial and aquatic ecosystems and watersheds in the plan area. In
addition, Modified Alternative A would include plan components to guide
the unit's contribution to social and economic sustainability.
Under Modified Alternative A, plan components for ecological
integrity would be required to take into account the interdependence of
ecosystems, impacts from and to the broader landscape, system drivers
and stressors including climate change, and opportunities to restore
fire adapted ecosystems and for landscape scale restoration. Plan
components would be also be required to maintain or restore air, soil
and water resources, and to maintain or restore the ecological
integrity of riparian areas.
Modified Alternative A would require that plans use a complementary
ecosystem and species-specific approach to provide for the diversity of
plant and animal communities and maintain the persistence of native
species in the plan area. Ecosystem plan components would be required
for ecosystem integrity and diversity, along with additional, species-
specific plan components where necessary to provide the ecological
conditions to contribute to the recovery of federally listed threatened
and endangered species, conserve proposed and candidate species, and
maintain viable populations of species of conservation concern.
Modified Alternative A would also require monitoring of select
ecological and watershed conditions and focal species to assess
progress towards meeting diversity and ecological sustainability
requirements.
Modified Alternative A would require that plans provide for
ecosystem services and multiple uses, considering a full range of
resources, uses, and benefits relevant to the unit, as well as
stressors and other important factors.
Modified Alternative A would require plan components for
sustainable recreation, including recreation settings, opportunities,
access; and scenic character. Recreational opportunities could include
non-motorized, motorized, developed, and dispersed recreation on land,
water, and air.
Modified Alternative A includes requirements for plan components
for timber management, consistent with the requirements of NFMA.
Modified Alternative A provides an efficient process for
amendments, required for any substantive change to plan components, and
for administrative changes to make corrections or changes to parts of
the plan other than the plan components.
Modified Alternative A requires plan-level and broader-scale
monitoring to inform adaptive management.
Modified Alternative A would require an environmental impact
statement for new plans and plan revisions. Plan amendments would
require either an environmental impact statement or an environmental
assessment, or could be categorically excluded from documentation,
based on the significance of effects pursuant to Agency NEPA
procedures.
Modified Alternative A would require that the decision document for
the plan include the rationale for approval; an explanation of how the
plan components meet the requirements for sustainability, diversity,
multiple use and timber; best available scientific information
documentation; and direction for project application.
Modified Alternative A requires that projects and activities must
be consistent with the plan components, and provides direction for
determining consistency. It also requires that other resource plans
that apply to the plan area be consistent with the plan components.
Modified Alternative A would require responsible officials to
provide formal public notification at various points in the process and
to post all notifications online.
The responsible official initiating a plan revision or development
of a new plan before Modified Alternative A went into effect would have
the option to complete the plan revision or development of the new plan
under the prior rule or conform to the requirements of the final rule
after providing notice to the public. All plan revisions or new plans
initiated after the effective date of the final rule would have to
conform to the new planning requirements.
Modified Alternative A includes a severability provision, stating
if parts of Alternative A are separately found invalid in litigation,
individual provisions of the rule could be severed and the other parts
of the rule could continue to be implemented.
Modified Alternative A provides a pre-decisional administrative
review (objection) process for proposed plans, plan amendments, and
plan revisions. The objection process is based on the objection
regulations for certain proposed hazardous fuel reduction projects,
found at 36 CFR part 218, and is intended to foster continued
collaboration in the administrative review process.
As is clear from this summary, Modified Alternative A includes the
same concepts and underlying principles as Alternative A, and retains
much of the same content. However, a number of changes to the rule text
and organization were made based on public comment on the proposed rule
(Alternative A) and the DEIS.
[[Page 21168]]
Many people commented that the proposed rule lacked clarity and was
ambiguous in places. Others felt that the intent stated in the preamble
of the proposed rule was at times not reflected in the actual text of
the proposed rule itself. They were concerned that this ambiguity would
lead to inconsistent implementation of the rule and that the intent as
expressed in the preamble would not be realized. Modified Alternative A
rewords the text in a number of places to improve clarity and better
reflect the Department's intent as stated in the preamble to the
proposed rule.
There are also a number of changes to the process and content
requirements of Alternative A, to address certain concerns raised by
the public, reduce process, and make other modifications in response to
public comments. A complete description of these changes is provided in
the Response to Comments section of this document.
A detailed analysis was conducted to determine if there were any
difference in programmatic effects between Alternative A and Modified
Alternative A. Because Modified Alternative A was developed to reflect
the intent of Alternative A, there were very few differences in
programmatic effects between the two alternatives. The few differences
in programmatic effects between Alternative A and Modified Alternative
A were to plan content and the planning process (requirements for
assessments, documentation, notification, plan components) or to the
costs of implementation. Any differences in effects to resources cannot
be determined at this programmatic level. However, the Department
concludes the added clarity in Modified Alternative A will lead to more
consistent implementation of the rule.
The full text of Modified Alternative A can be found in Appendix I
of the PEIS and is set out as the final rule below. A detailed
description of changes to Alternative A that led to Modified
Alternative A can be found in the Response to Comments section of this
document and in Appendix O of the PEIS. An analysis of the effects of
Modified Alternative A has been included in Chapter 3 of the PEIS.
Alternative B (No Action)
The ``No Action'' alternative, as stated by the Council on
Environmental Quality, ``may be thought of in terms of continuing with
the present course of action until that action is changed'' (Council on
Environmental Quality, Forty Most Asked Questions Concerning CEQ's
National Environmental Policy Act Regulations, 46 FR 18026, 18027
(March 23, 1981)). The ``No Action'' alternative is the 2000 planning
rule, which, since the 2008 rule was set aside by court order, is the
current rule (see 74 FR 67059 (December 18, 2009)). If the Department
chooses to take no action, the 2000 rule would remain in effect.
However, the ``present course of action'' under the 2000 rule is not to
use the 2000 rule in its entirety but to use its transition provisions
at 36 CFR 219.35, which allow use of the 1982 rule procedures to
develop, amend, and revise land management plans until a new planning
rule is in place. Since identifying a set of issues with the 2000 rule
provisions, as explained in the PEIS at Chapter 1 and in the discussion
section of Alternative F, the Forest Service has been relying upon the
2000 rule's transition wording at Sec. 219.35 to use the 1982 rule
procedures to develop, amend, and revise land management plans.
The 1982 rule, as amended, is in Appendix B of the PEIS. However,
only the provisions of that rule applicable to the development,
amendment, and revision of land management plans are available for use
pursuant to 36 CFR 219.35 of the current (2000) rule. The 1982 rule
procedures require integration of natural resource planning for
national forests and grasslands, by including requirements for
integrated management of timber, range, fish and wildlife, water,
wilderness, and recreation resources, with resource protection
activities such as fire management, and the use of other resources such
as minerals.
An appeal process has been used throughout the life of the 1982
planning rule. Under Sec. 219.35 of the current (2000) rule,
responsible officials have the option of using either a post-decisional
appeal process or a pre-decisional objection process for challenging
plan approval decisions.
The 1982 rule procedures require regional foresters to be the
responsible official for approval of new plans and plan revisions.
Alternative B would continue to require an environmental impact
statement for new plans and plan revisions. Documentation for plan
amendments would continue to be determined by the significance of
effects pursuant to Agency NEPA procedures and could, therefore, range
from categorical exclusions to environmental impact statements.
Rule text for this alternative is provided in Appendices B, C, and
D of the PEIS, which contain planning provisions, transition
provisions, and administrative review provisions respectively.
Reason for non-selection: Alternative B is the no action
alternative. The 1982 rule procedures are not current with regard to
science, knowledge of the environment, practices for planning and
adaptive management, or social values, and are unduly complex, costly,
lengthy, and cumbersome. For those reasons, the Agency has actively
been trying to promulgate a new planning rule to replace the 1982
planning procedures for over a decade (see Introduction and Background
section above).
Many plans recently revised under the 1982 planning procedures
reflect elements of the purpose and need such as emphasizing
restoration, addressing climate change, using a coarse-filter/fine-
filter approach for maintaining species diversity, and using a
collaborative approach to planning. However, the 1982 planning
procedures do not require consideration of these and other important
elements in planning that reflect current science, Agency expertise,
and best practices in planning. This has resulted in inconsistent
incorporation of the elements of the purpose and need in plans.
Alternative B reflects an approach to land management planning that
focused on producing outputs (for example, board feet of timber,
recreation visitor days, and animal months of grazing) and mitigating
the effects of management activities on other resources. The Agency
recognizes and supports the importance, value, and legal responsibility
of providing for multiple use purposes. Timber, grazing, recreation,
and other multiple uses supported on NFS lands provide jobs and income
to local communities, and products used by all Americans. However, land
management planning today focuses on managing toward desired
conditions, or outcomes, rather than focusing simply on outputs.
Outcome-based planning shifts the focus from how to get something
done to why it is done. In contemporary planning, outputs are services
that are generated as projects and activities are carried out that lead
to desired outcomes on the ground. Outcome based planning is well
supported by the Agency's experience in land management planning. This
approach to planning is also well supported by other land and urban
planning agencies at all scales--from urban planning for small cities
to international level planning efforts. It is also extensively used in
the fields of education, health care, economics, and others. Outcome
based planning can and does occur under
[[Page 21169]]
Alternative B. However, this approach is not required under this
alternative.
Alternative B does not meet several elements of the purpose and
need. Alternative B does not:
Emphasize restoration of natural resources to make our NFS
lands more resilient to climate change, protect water resources, and
improve forest health.
Ensure all plans will be responsive to issues such as the
challenges of climate change; the need for forest restoration and
conservation, and watershed protection.
Be consistent with Federal policy on the use of scientific
information and the Agency's expertise and experience gained in more
than 30 years of land management planning.
Ensure planning takes place in the context of the larger
landscape by taking an ``all-lands approach.''
Alternative B has also proven costly to implement. The 1982
planning procedures require complex analysis processes, such as
benchmark analysis, resulting in plan revisions that have, on average,
taken 5 to 7 years to complete. In 1989, the Forest Service, with the
assistance of the Conservation Foundation, conducted a comprehensive
review of the planning process and published the results in a summary
report, ``Synthesis of the Critique of Land Management Planning''
(http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5127602.pdf).
The Critique found that the planning process of the 1982 rule was very
complex, had significant costs, took too long, and was too cumbersome.
Finally, Alternative B includes planning procedures that do not
reflect current science or result in unrealistic or unattainable
expectations because of circumstances outside of the Agency's control,
particularly for maintaining the diversity of plant and animal species.
The 1982 rule at 36 CFR 219.19 requires that fish and wildlife habitat
shall be managed to maintain viable populations of existing native and
desired non-native vertebrate species in the planning area. For
planning purposes, a viable population shall be regarded as one which
has the estimated numbers and distribution of reproductive individuals
to insure its continued existence is well distributed in the planning
area. In order to insure that viable populations will be maintained,
habitat must be provided to support, at least, a minimum number of
reproductive individuals and that habitat must be well distributed so
that those individuals can interact with others in the planning area.
These requirements do not recognize that there are limitations on the
Agency's authority and the inherent capability of the land. In
addition, these requirements do not reflect the most current science.
For example:
(1) At times, circumstances that are not within the authority of
the Agency limit the Agency's ability to manage fish and wildlife
habitat to insure the maintenance of a viable population of a species
within the plan area, such as:
Forest clearing in South America--South American forests
provide important wintering areas for many Neotropical birds that nest
in North America. The clearing of these forests for agricultural
purposes poses a serious threat to the long-term viability of the
Cerulean warbler and the ability of national forests in the southern
Appalachian Mountains to maintain populations of this species.
Hydropower facilities in the Pacific Northwest and off-
shore fishing harvest practices--These facilities and practices are
primary downstream threats to Chinook salmon populations whose spawning
beds may occur on stream reaches within national forests in the
Intermountain West, thus affecting the ability of national forests
within this salmon's range to maintain viable populations of this
species on their respective units.
Land use patterns on private lands within and adjacent to
NFS units, such as the continuing agricultural uses and urbanization
that is occurring east of the Rocky Mountains--habitat fragmentation as
a result of these changes reduces available habitat and further
isolates existing swift fox populations. This affects the ability of
national grasslands in eastern Colorado to maintain viable populations
of this species.
(2) At times, it may be beyond the Agency's authority to manage
habitat to insure the maintenance of a viable population of a species
within the plan area, given that the Agency must comply with all
applicable laws and regulations. An example would be when efforts to
maintain the habitat conditions necessary for a viable population of
one species would jeopardize an endangered or threatened species, in
violation of the Agency's statutory obligations under the ESA. Another
example would be when maintaining the habitat conditions necessary for
a viable population of one species would consume the resources
available to a unit to the point of precluding other activities from
occurring on the unit that are necessary to comply with independent
statutory or regulatory requirements.
(3) Examples of circumstances that are not consistent with the
inherent capability of the plan area that limit the Agency's ability to
manage fish and wildlife habitat to insure the maintenance of a viable
population of a species within the plan area include:
Where a species is inherently rare because its members
occur at low numbers and are wide ranging individuals. For such a
species the number of breeding individuals that may occur on an
individual national forest may be too small to be considered a viable
population. The wolverine of the northern Rocky Mountains is such a
species.
Plan areas that lack sufficient land area with the
ecological capacity to produce enough habitat to maintain a viable
population within the plan area. An example is the Kisatchie National
Forest's inability to maintain a viable population of swallow-tailed
kite on the Forest due to very limited amounts of land area
ecologically capable of producing broad bottomland hardwood and cypress
swamp habitats.
Water quality conditions in Appalachian Mountain streams
that provide habitat for eastern brook trout have been altered through
acid deposition, due to past and current acid rain, rendering many of
them unsuitable for brook trout and compromising the ability of some
Appalachian national forests to maintain viable populations of this
species.
(4) Sometimes a combination of a lack of authority and the inherent
capability of the land limit the Agency's ability to manage fish and
wildlife habitat to ``insure [a vertebrate species'] continued
existence is well distributed in the planning area,'' for example, a
federally listed threatened or endangered species may face a
combination of stressors such that a population may no longer be viable
and whose recovery, in most cases, cannot be achieved within the
boundaries of a single unit.
(5) An example of an approach included in the 1982 requirements
that is no longer supported by the best available scientific
information is the concept of management indicator species (MIS). The
1982 rule is largely reliant on the ability of selected MIS and their
associated habitat conditions to adequately represent all other
vertebrates in the plan area for assessing vertebrate species
viability. Even though the process of assessing and selecting MIS has
evolved, the ability of a species or species group, on its own, to
adequately represent all associated species that rely on similar
habitat conditions is now largely unsupported in the scientific
literature.
[[Page 21170]]
For these reasons Alternative B was not selected as the final rule.
Alternative C
Alternative C was developed to meet the minimum requirements of
NFMA, with additional provisions narrowly designed to meet the purpose
and need for this rule-making effort.
Provisions to meet the purpose and need, but not otherwise required
by NFMA, were included in this alternative to ensure that plans would
be responsive to the challenges of climate change, the need for forest
restoration, and to ensure the sustainable use of NFS lands to support
vibrant communities. The full text of Alternative C is displayed in
Appendix E of the PEIS. Specifically, the multiple uses provision in
this alternative at Sec. 219.10 requires plan components to include
guidance to identify and consider climate change, forest restoration
and conservation, and social and economic elements of sustainability to
support vibrant rural communities. Provisions were also added to ensure
that plans would be developed in a collaborative manner. The public
participation provision in this alternative at Sec. 219.4 requires the
responsible official to use a collaborative and participatory approach
to land management planning. The same provisions for pre-decisional
objections found in Alternative A are also included in this
alternative.
Unlike the other alternatives considered in detail, this
alternative would not explicitly require preparation of an
environmental impact statement for development of a new plan or for a
plan revision. Instead, this alternative would rely on Agency NEPA
implementing procedures at 36 CFR part 220 to determine the level of
environmental analysis and documentation. Similar to other alternatives
considered in detail, documentation for plan amendments would be
determined by the significance of effects pursuant to Agency NEPA
procedures and could, therefore, range from categorical exclusions to
environmental impact statements.
Reason for non-selection: Alternative C imposes the fewest specific
requirements for the planning process and plan content of all
alternatives analyzed in detail. This alternative reflects the opposite
end of the spectrum from Alternative E (the most prescriptive of the
alternatives). Under Alternative C the process of plan development,
amendment, and revision would be largely guided by the Forest Service
Directives System. The result of having few requirements in a rule is
greater uncertainty as to what the effects on plan content and the
planning process would be and as a result, greater uncertainty as to
potential effects to resources over time.
Under Alternative C, the Agency would expect a range of results:
The range might vary from an expedited planning process producing very
streamlined plans on some units to a planning process and plans that
are similar to those plans that have been recently revised using the
1982 planning procedures on other units. There would be no certainty
with regard to the inclusion of any plan components beyond the minimum
required by this Alternative, and a potential lack of consistency
across the National Forest System.
A similar approach of developing a streamlined planning rule and
relying on the Forest Service directives for details of implementation
was used for the 2008 planning rule. The uncertainty of this approach
generated a great deal of distrust by many members of the public who
felt the full intent of management direction related to planning should
be reflected in the rule.
Alternative C does not expressly include an adaptive management
framework. The Department concludes that the adaptive management
framework of assessing, revising, amending, and monitoring provides a
scientifically supported foundation for addressing uncertainty,
understanding changes in conditions that are either the result of
management actions or others factors, and keeping plans current and
relevant.
This is the least costly of all of the alternatives and that is an
important consideration. However, there are other alternatives that
would reduce the current costs of planning, have broader based public
support, and that, in the Department's view, provide for a more
appropriate balance between prescriptive and non-prescriptive
approaches to planning.
Even though Agency costs are lower under Alternative C compared to
other alternatives, the Department is uncertain whether plans will be
developed, amended, or revised to the high standards of excellence the
Department expects. All units would comply with the requirements of
this alternative. However, there is higher uncertainty associated with
selecting an alternative with few requirements as the final rule. The
level of uncertainty results in a higher risk that the level of
compliance with such important elements as monitoring, public
participation, species conservation, or watershed protection may not
lead to plans that meet the Department's full objectives.
For these reasons, Alternative C was not selected as the final
rule.
Alternative D
The full text of Alternative D is displayed in Appendix F of the
PEIS. This alternative consists of Alternative A with additional and
substitute direction focused on coordination requirements at Sec.
219.4, assessment requirements at Sec. 219.6, sustainability
requirements at Sec. 219.8, species requirements at Sec. 219.9,
monitoring requirements at Sec. 219.12, and some additional and
alternative definitions at Sec. 219.19.
This alternative was designed to evaluate additional protections
for watersheds and an alternative approach to addressing the diversity
of plant and animal communities. These approaches were addressed
together because they both involve requirements for substantive plan
content for resource protection, as opposed to other issues that are
concerned with procedural requirements.
Unlike Alternative A, this alternative requires establishment of
riparian conservation areas and key watersheds, prescribes a 100-foot
width for riparian conservation areas, and places the highest
restoration priority on road removal in watersheds. Watershed
assessments would be required to provide information for defining
riparian conservation area boundaries and developing watershed
monitoring programs. The alternative would require the identification
of key watersheds to serve as anchor points for the protection,
maintenance, and restoration of habitat for species dependent on
aquatic habitat. It would also require plans to provide spatial
connectivity among aquatic and upland habitats.
This alternative would take a somewhat different approach than
Alternative A for maintaining viable populations within the plan area.
It would require an assessment prior to plan development or revision
that identifies: current and historic ecological conditions and trends,
including the effects of global climate change; ecological conditions
required to support viable populations of native species and desired
non-native species within the planning area; and current expected
future viability of focal species within the planning area. It would
also require that the unit monitoring program establish critical values
for ecological conditions and focal species that trigger reviews of
planning and management decisions to achieve compliance with the
provision for
[[Page 21171]]
maintaining viable populations within the plan area.
See Appendix F of the PEIS for Alternative D text in a side-by-side
comparison with Alternative A.
Reason for non-selection: Alternative D meets the purpose and need
in a manner similar to Alternative A. Alternative D includes additional
requirements for watershed and species protection and collaboration
that provide among the highest levels of watershed and species
conservation of all alternatives. However, Alternative D has the second
highest planning and monitoring costs of all alternatives, and there
are several requirements of Alternative D that would be difficult to
implement or not appropriate across all NFS units.
This alternative capitalizes on approaches for watershed management
that have been demonstrated to be effective in some areas of the
country--largely the Pacific Northwest. However, a single, prescriptive
approach may not be effective for improving watershed conditions across
the highly diverse watersheds of the NFS.
For example, it is unlikely that the requirements of this
Alternative that all plans establish watershed networks that can serve
as anchor points for the protection, maintenance, and restoration of
broad-scale processes and recovery of broadly distributed species and
to maintain spatial connectivity within or between watersheds would be
an effective management strategy for improving watershed conditions on
certain units, for example, where the percentage of NFS land ownership
in a given watershed is very low. Such requirements also may not be the
most effective means of maintaining or restoring watershed health on
these or other units, and attempting to meet this requirement may
preclude other more effective management options.
Alternative D includes a national standard for a minimum 100 foot
default width for riparian conservation areas. Based on the analysis in
the PEIS, a national standard setting a minimum default width
applicable to all types of waterbodies and in all geomorphic settings
is not consistent with the preponderance of scientific literature which
largely argues for scalable widths, widths tailored to geomorphic
settings or an adaptable approach matched to resource characteristics.
The national standard does provide certainty or assurance that all
riparian areas of 100 feet or less would be fully incorporated within
the riparian conservation area, even where narrower widths would be
more appropriate based on geomorphic features, conditions, or type of
water bodies. However, to expand the default width beyond 100 feet will
require a ``burden of proof'' during the planning process that some
units may not be willing or able to accomplish, which could lead to the
width being under inclusive for riparian areas in the plan area.
Alternative D requires standards to restore sediment regimes to
within a natural range of variability. While an understanding of the
natural range of variability in sediment regime could provide important
context for sediment reduction activities, standards to restore
sediment regimes to a natural range of variability might be impractical
as they require information on historical flow regimes that might not
be applicable to future conditions. Historical ranges of variation as
standards or guidelines for restoration may be inappropriate in the
face of changing hydrologic conditions brought about by climate change.
The added requirements are likely not appropriate for all NFS units,
will be data intensive, and might constrain or delay other management
actions that could address known sediment problems.
This alternative requires that road removal or remediation in
riparian conservation areas and key watersheds be considered a top
restoration priority. Setting one primary national restoration priority
for all units does not take into account the high variability of
conditions and stressors across NFS lands. Also, it does not take into
account changing conditions. While road remediation in riparian areas
will likely be the highest priority in some places or at some times, it
might not be for all units and across the entire life of a plan. For
example, it might be more important to shift restoration focus to
control a new occurrence of invasive species before it becomes
pervasive in a watershed, or to reduce hazardous fuels to reduce the
risk of negative effects to soil and water of uncharacteristic or
extreme wildfire events.
Finally, Alternative D requires that, with limited exceptions, only
management activities for restoration would be allowed in riparian
areas. The Department understands the importance and supports the
protection of healthy functioning riparian areas for water quality,
water quantity, and aquatic and terrestrial habitat. The Department
also understands the potential negative effects that management
activities or uses such as dispersed or developed recreation, grazing,
and water level management can have on riparian areas. However, the
Department concludes that decisions regarding management activities in
riparian areas are better made at the individual plan and project
levels where the effects to the resources, to the users, and to
communities can be better determined within the context of overall
watershed restoration and the maintenance and restoration of the
ecological integrity of riparian areas in the plan area.
None of the individual elements of Alternative D is inconsistent
with the final planning rule and they could be incorporated at the plan
level into plan direction where they are determined to be applicable
and effective for those units. In fact, many current plans already
incorporate elements of this alternative. However, requiring
incorporation of all elements of Alternative D does not provide enough
flexibility for effective and efficient resource management on all
units of the NFS.
For these reasons Alternative D was not selected as the final rule.
Alternative E
The full text of Alternative E is displayed in Appendix G of the
PEIS. This alternative consists of the proposed rule (Alternative A)
with additional and substitute direction focused on prescriptive
requirements for public notification at Sec. 219.4, assessment
requirements at Sec. 219.6, and monitoring requirements at Sec.
219.12.
This alternative prescribes an extensive list of monitoring and
assessment questions and requires plan monitoring programs to identify
signals for action for each question and its associated indicator.
This alternative specifies performance accountability for line
officers' management of unit monitoring and adds responsibility for the
Chief to conduct periodic evaluations of unit monitoring programs and
the regional monitoring strategies.
Alternative E adds more prescriptive requirements for public
participation in the planning process. To help connect people to the
outdoors, this alternative also includes requirements for plans to
provide for conservation education and volunteer programs.
See Appendix G of the PEIS for Alternative E text in a side-by-side
comparison with Alternative A.
Reason for non-selection: Alternative E requires more evaluation of
ecological conditions and possible scenarios during assessment for plan
revisions and more monitoring of specific conditions and responses to
restoration. The use of signal points could potentially make land
managers more aware and responsive when monitoring results are outside
of expected levels. However, the difficulty of establishing
[[Page 21172]]
statistically and temporally significant signal points related to
restoration, especially where there is insufficient data and where
conditions are changing, will increase the complexity of planning. The
prescriptive nature of the monitoring requirements could increase the
ability to aggregate and compare data between units or at higher scales
but could also result in the costly collection of data that is not
necessarily relevant to the management of particular individual units
or ecological conditions.
Requirements to identify possible scenarios in assessments would
have short-term cost increases with possible long-term gains in
efficiency. Additional requirements regarding coordination in the
assessment and monitoring process would increase initial costs, but
consistent coordination might also result in more cost-effective long-
term planning efforts to meet viability objectives. However, while
additional requirements for standardized collaboration methods might
work well for some units, other units might find that some required
steps are not relevant to their local public involvement needs. Based
on the analysis in the PEIS, collaboration strategies tailored to a
unit's particular needs are often more effective than very prescriptive
approaches to collaboration.
The PEIS points out potential benefits of more prescriptive
requirements for assessment, monitoring, and collaboration. But, the
PEIS also points out the drawbacks, particularly in trying to
efficiently apply a ``one-size-fits-all'' approach to such things as
monitoring or collaboration across highly diverse resources conditions
and communities associated with NFS Units. This Alternative also has
the highest implementation costs of all alternatives. The Department
does not believe that the potential gains in effectiveness warrant the
increased costs.
None of the individual elements of Alternative E are inconsistent
with the final planning rule and any of them can be incorporated into
plan direction where they are determined to be applicable and effective
for those units. However, requiring incorporation of all elements of
Alternative E does not provide enough flexibility for effective and
efficient resource management on all units of the NFS. For these
reasons Alternative E was not selected as the final rule.
The Environmentally Preferred Alternative
Under the Council on Environmental Quality's (CEQ) NEPA regulation,
the Department is required to identify the environmentally preferred
alternative (40 CFR 1505.2(b)). This is interpreted to mean the
alternative that will promote the national environmental policy as
expressed in NEPA's section 101 and that would cause the least damage
to the biological and physical components of the environment. The
environmentally preferred alternative best protects, preserves, and
enhances historic, cultural, and natural resources (Council on
Environmental Quality, Forty Most Asked Questions Concerning CEQ's
National Environmental Policy Act Regulations (46 FR 18026, 18028
(March 23, 1981)).
The two alternatives that best meet these criteria are Alternative
D (if it could be fully implemented) and Modified Alternative A.
Alternative D provides the highest level of resource protection,
particularly for water and riparian resources. Some requirements of
this alternative would be difficult to implement across the entire NFS,
add increased cost and complexity to the planning process for little
benefit, and may not always represent the best approach for the
resource. The additional funds spent on the planning process would not
be available for other management activities including restoration and
habitat improvement.
Modified Alternative A also provides high levels of resource
protection and can be effectively implemented across all units. It does
not preclude incorporation of elements of Alternative D into plans
where they are most suited to meet resource conditions.
The approval of a planning rule to guide development, revision, and
amendment of land management plans is a broad policy decision.
Accordingly, impacts described in the PEIS reflect issues concerning
effects over a broad geographic and time horizon. The depth and detail
of impact analysis is necessarily broad and general because a planning
rule is two steps removed from site-specific projects and activities.
Quantitative, site-specific effects can only be predicted with any
certainty when site-specific actions are proposed.
Decision and Rationale
Decision
Modified Alternative A, with clarifications, is selected as the
final planning rule. A few clarifications were made to better represent
the Department's intent, and do not substantively change Modified
Alternative A. They include:
(1) Changes made to Sec. 219.7(e)(1)(iv) and Sec. 219.15(d)(3) to
clarify that compliance with both standards and guidelines is
mandatory, with standards requiring strict adherence to their terms,
while guidelines allow for flexibility so long as the purpose for the
guideline is achieved.
(2) Changes made to Sec. 219.9(b)(1) to clarify that the
responsible official must determine whether the plan components of
paragraph (a) provide the necessary ecological conditions, or whether
additional, species-specific plan components must be included in the
plan.
(3) Changes made to the definition of designated areas in Sec.
219.19 to clarify that the examples of designated areas included in
Modified Alternative A were not intended to be exclusive.
(4) Changes throughout Subpart B to clarify that organizations,
States and Tribes are among the entities that may object, pursuant to
the other requirements in Subpart B.
This decision is based on the Programmatic Environmental Impact
Statement--National Forest System Land Management Planning, USDA Forest
Service, 2011, and its supporting record. This decision is not subject
to Forest Service appeal regulations.
Nearly 300,000 comments were received on the DEIS and the proposed
rule. The Agency also consulted with Indian Tribes, the US Fish and
Wildlife Service and the National Marine Fisheries Service. The
Department has reviewed and considered these comments, the results of
the consultations, and worked with Agency managers in concluding that
the proposed rule would be improved by clarifying the proposed wording
and incorporating the changes reflected in Modified Alternative A into
the final rule.
This decision does not authorize any projects or activities. The
planning rule describes the process the Forest Service will use for
development, amendment, and revision of land management plans for
national forests and grasslands, and includes requirements for the
structure and content of those plans. Any commitment of resources takes
place only after (1) a land management plan is approved under the
provisions of the final rule (including the completion of the
appropriate NEPA process), and (2) the Forest Service proposes projects
or activities, analyzes their effects in the appropriate NEPA process,
determines consistency with the applicable land management plan, and
authorizes the final projects or activities.
Sometimes projects or activities may be authorized at the same time
and in the same decision document when approving a plan, plan
amendment, or plan revision. One example might be opening or closing
trails to the use of
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off-highway vehicles. In these cases, the part of the decision
associated with the project or activity would represent a commitment of
resources.
Rationale for the Decision
The following paragraphs outline the rationale for the decision,
including how Modified Alternative A meets the purpose and need and
addresses the significant issues described in the final PEIS.
The Department determined Modified Alternative A best meets the
purpose and need for a new planning rule. Modified Alternative A
provides a process for planning that is adaptive and science-based,
engages the public, and is designed to be efficient, effective, and
within the Agency's ability to implement. It is designed to ensure that
plans provide for the sustainability of ecosystems and resources; meet
the need for forest restoration and conservation, watershed protection,
and species diversity and conservation; and assist the Agency in
providing a sustainable flow of benefits, services, and uses of NFS
lands that contribute to the economic and social sustainability of
communities.
The paragraphs below describe how Modified Alternative A meets the
purpose and need for a new planning rule. Many of the requirements
described for each element can be found in one or more of the
alternatives analyzed in the PEIS. However, the Department concludes
that the combination of requirements provided in Modified Alternative A
provide the best approach for developing, amending, and revising plans.
Modified Alternative A is clearer than Alternative A, better reflects
the Department's intent as described in the preamble for the proposed
rule, and reflects public comments and suggestions for improving the
proposed rule. Unlike Alternative B, it meets the purpose and need for
a new planning rule. It is also more implementable and less costly than
Alternatives D and E, and allows greater flexibility to develop plans
that best meet the ecological, social, and economic needs of units
across the very diverse National Forest System. The Department
concludes that the combination of provisions in Modified Alternative A
best meets the purpose and need for a new planning rule and provides
assurance that the Department's objectives will be met.
For those reasons, Modified Alternative A provides the best balance
among the alternatives to meet the purpose and need for a new planning
rule.
Response to Purpose and Need
All of the alternatives analyzed in detail, with the exception of
Alternative B, meet the purpose and need to varying degrees. No single
alternative can maximize all of the elements of the purpose and need.
The Department finds that Modified Alternative A provides the best
planning framework for meeting the various elements of the purpose and
need by creating a rule that:
1. Emphasizes restoration of natural resources to make NFS lands
more resilient to climate change, protect water resources, and improve
forest health. The Department concludes that Modified Alternative A
will result in plans that are adaptive and therefore more likely to
remain relevant and implementable, including by providing an adaptive
framework that will help responsible officials to respond to changing
conditions and new information.
2. Contributes to ecological, social, and economic sustainability
by ensuring that all plans will be responsive to issues such as the
challenges of climate change; the need for forest restoration and
conservation, watershed protection, and species conservation; and the
sustainable use of public lands to support vibrant communities.
3. Is consistent with NFMA and MUSYA. The Department intends that
the requirements of Modified Alternative A will be integrated into the
development or revision of a plan in a manner that provides for the
long-term ecological sustainability of the plan area while sustaining
ecosystem services and providing for multiple uses.
4. Is consistent with Federal policy on the use of scientific
information and the Agency's expertise and experience gained in more
than 30 years of land management planning. Responsible officials will
use the best available scientific information to inform the plan
components and the monitoring program. The Department concludes that
Modified Alternative A requires a planning process that is science-
based and additionally recognizes the value of local knowledge, the
Agency experience, knowledge, and information of other land managers,
and indigenous knowledge.
5. Provides for a transparent, collaborative process that allows
effective public participation. Modified Alternative A includes
requirements to engage the public, Tribes, other government agencies,
and groups and communities that have been at times under-represented in
planning, such as youth and minorities, throughout the planning
process. The Department concludes that the collaborative approach
required by Modified Alternative A will result in improved
relationships and plans that better meet the needs of diverse
communities, which in turn will translate into more successful projects
and activities developed under the plans.
6. Ensures planning takes place in the context of the larger
landscape by taking an ``all-lands approach.'' Modified Alternative A
uses an ``all-lands approach'' to consider conditions beyond the plan
area and how they might influences resources within the plan area as
well as how actions on the NFS might affect resources and communities
outside of the plan area. It also requires that responsible officials
coordinate with entities with equivalent and related planning efforts.
7. Is within the Agency's capability to implement on all NFS units.
It is clear and provides an efficient framework for planning, and is
able to be implemented within the financial capacity of the Agency.
The Department concludes that Modified Alternative A provides an
appropriate balance between the flexibility needed to address issues
unique to the plan area and the need for consistent requirements and a
consistent approach. Modified Alternative A reduces planning costs and
the time needed for a plan revision from current levels.
Response to the Issue of Ecosystem Restoration
As many respondents correctly noted, not all NFS lands are in need
of restoration and, in fact, NFS lands often provide among the highest
quality habitat and the cleanest water of all lands in the country. The
final rule provides for the maintenance of those lands. There is also
widespread consensus that some NFS lands are degraded or are at risk of
becoming degraded. From large scale pine beetle outbreaks in the
Intermountain West to watersheds across NFS lands with poorly sited or
maintained roads that cause sedimentation or block the movement of fish
and aquatic organisms, there are many restoration needs on NFS lands.
Modified Alternative A addresses the need for ecosystem maintenance and
restoration.
Modified Alternative A incorporates the concept of ecological
integrity. This concept is defined in the scientific literature as a
means of evaluating ecological conditions in terms of their
sustainability. The concept of ecological integrity is also used by the
U.S. Department of the Interior's National
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Park Service and Bureau of Land Management. Aligning approaches across
the broader landscape will facilitate an all-lands approach to
ecological sustainability.
Under Modified Alternative A, information relevant for ecosystem
maintenance and restoration will be identified and evaluated during the
assessment phase. Plan components are required for the maintenance and
restoration of the ecological integrity of riparian areas and air,
soil, and water resources. Responsible officials will consider
opportunities to restore fire adapted ecosystems and for landscape
scale restoration. The monitoring program will track ecological and
watershed conditions and measure progress towards meeting desired
conditions and objectives.
Modified Alternative A captures many of the concepts of ``best
practices'' in restoration that are already occurring on NFS lands.
Examples of such best practice efforts include the Collaborative Forest
Landscape Restoration Program established under section 4003(a) of
Title IV of the Omnibus Public Land Management Act of 2009, (http://www.fs.fed.us/restoration/CFLR/index.shtml), which promotes healthier,
safer, and more productive public lands through partnership efforts,
and the Four Forest Restoration Initiative to accomplish landscape
scale restoration of ponderosa pine ecosystems in the Southwest. These
restoration efforts bring people together to work across ownerships,
restore ecosystems, increase organizational capacity, and in the
process create jobs and economic opportunities that contribute to
sustainable economies. Modified Alternative A provides a platform for
working with the public and other land managers to identify restoration
needs across the landscape and manage NFS lands to support meeting
shared restoration objectives.
Response to the Issue of Watershed Protection
Watersheds and water resources on NFS lands are important for many
reasons: For example, they are the source of drinking water for one in
five Americans, provide important species habitat for terrestrial and
aquatic species, and support recreation opportunities in the plan area.
Modified Alternative A includes a strong set of requirements
associated with maintaining and restoring watersheds and aquatic
ecosystems, water resources, and riparian areas in the plan area. It
incorporates the protection or mitigation requirements of the 1982
rule, but goes beyond the 1982 rule in requiring a proactive approach
for maintaining or restoring terrestrial and aquatic ecosystems and
watersheds in the plan area.
Under Modified Alternative A, information relevant to watersheds,
aquatic ecosystems, and water resources will be identified and
evaluated during the assessment phase. Plans will be required to
identify priority watersheds for maintenance or restoration. Plan
components are required for the maintenance and restoration of the
ecological integrity of aquatic ecosystems and watersheds, water
quality, and water resources in the plan area, including lakes,
streams, wetlands, and sources of drinking water.
Plan components are also required for the maintenance and
restoration of the ecological integrity of riparian areas, including
structure, function, composition, and connectivity; taking into account
a number of factors; and plan components must establish widths for
riparian management zones. Because riparian resources across NFS units
are very diverse, Modified Alternative A retains the 1982 rule
requirements to give special attention to land and vegetation within
approximately 100 feet of all perennial streams and lakes and prevent
management practices that have serious or adverse impacts, but does not
require a single national width for riparian management zones. Riparian
areas may be forested or open, they are connected with all types of
streams, lakes and wetlands, and they vary widely in existing condition
and types of use. Modified Alternative A allows for the requirements to
be tailored to specific conditions on the plan area. The set of
requirements included in Modified Alternative A for riparian areas is
more implementable and less costly than the requirements in Alternative
D, and will lead to a more effective and appropriate set of plan
components across a diverse system.
Under Modified Alternative A, responsible officials must ensure
that projects and activities in riparian areas are consistent with plan
requirements for maintaining or restoring riparian areas, do not
seriously or adversely affect water resources, are suitable uses, and
are compatible with desired conditions for those lands. The consistency
requirement places the decision about what types of projects or
activities may or may not be allowed and what management direction will
guide these activities at the plan level. The Department concludes that
this is the appropriate level at which to make these decisions.
NFS lands provide some of the highest quality water in the country
and are important sources of drinking water, but there are streams that
do not meet State water quality standards. Modified Alternative A
requires that the Chief of the Forest Service establish requirements
for best management practices for water quality, and that plans ensure
implementation of those practices.
The Department concludes that Modified Alternative A appropriately
elevates the emphasis on the conservation of water and riparian
resources, can be implemented on all NFS units, and is soundly
supported by recent advances in conservation biology and ecology.
Response to the Issue of Diversity of Plant and Animal Communities
Perhaps no other aspect of the proposed planning rule has sparked
as much interest or generated as much debate as the requirement to
provide for plant and animal diversity. In particular, there is
disagreement between those who believe that without strong, specific
requirements in the rule for maintaining species diversity and
viability, the persistence of many species will be at increased risk,
and those who believe that putting specific requirements in the rule
will result in endless litigation that will keep the Agency from moving
forward with planning and with projects and activities.
The Department's intent is to provide for the diversity of plant
and animal communities, and keep common native species common,
contribute to the recovery of threatened and endangered species,
conserve proposed and candidate species, and maintain species of
conservation concern within the plan area, within Agency authority and
the inherent capability of the land.
Modified Alternative A requires that future plans be based on a
complementary ecosystem and species-specific approach to provide for
the diversity of plant and animal communities in the plan area and the
long-term persistence of native species in the plan area. This approach
is often referred to as the coarse-filter/fine-filter approach.
The ecosystem integrity and diversity requirements in Modified
Alternative A are meant to provide a coarse-filter designed to maintain
biological diversity. By working toward diverse, connected ecosystems
with ecological integrity, the Agency expects that over time,
management will create ecological conditions which support the
abundance, distribution, and long-term
[[Page 21175]]
persistence of most native species within a plan area, as well as
provide for diversity of plant and animal communities. The fine-filter
provisions are intended to provide a safety net for those species whose
specific habitat needs or other influences on their life requirements
may not be fully met under the coarse-filter provisions.
The coarse-filter/fine-filter approach is a well-developed concept
in the scientific literature and has broad support from the scientific
community and many stakeholders. It incorporates the considerable
advances of the past three decades in understanding of biological and
conservation science. The coarse-filter/fine-filter approach is already
incorporated into many recently revised plans and is yielding positive
results. For example, restoration of longleaf pine in the South is
resulting in increases in red-cockaded woodpecker populations, and
restoration of watersheds and instream habitat in the Pacific Northwest
is yielding benefits for salmon.
The provisions in Modified Alternative A recognize the importance
of maintaining biological diversity of native species on each national
forest and grassland, and the compositional, structural, and functional
components that comprise the biological diversity on each NFS unit, and
recognize the importance of native species and their contributions to
maintaining the ecological integrity of ecosystems.
Considering habitat needs for non-vertebrates is not new to the
Forest Service. Non-vertebrate species can be federally recognized as
threatened or endangered. In addition, the Agency has developed and
maintained a list of regional forester sensitive species (RFSS) for
over two decades. An RFSS list can include any native plant or animal
species. RFSS are those plant and animal species identified by a
regional forester for which population viability is a concern, as
evidenced by: significant current or predicted downward trends in
population numbers or density or significant current or predicted
downward trends in habitat capability that would reduce a species'
existing distribution. RFSS are thus similar to species of conservation
concern. The conservation and management of many RFSS has been a part
of many land management plans and projects and activities for decades.
The Department intends to provide for the persistence of all native
species by the use of the coarse-filter/fine-filter approach, within
Forest Service authority and the inherent capability of the plan area.
Modified Alternative A provides a three-fold treatment of all native
species.
First, Modified Alternative A requires coarse-filter plan
components for the maintenance and restoration of the ecological
integrity and diversity of ecosystems in the plan area. Plan components
will support the long-term persistence of most native species in the
plan area, including providing for species that are common or secure.
Second, species that are federally recognized species under ESA
(threatened, endangered, proposed, and candidate species) may not have
viable populations on NFS lands and whose recovery, in most cases,
cannot be achieved on a single NFS plan area. Modified Alternative A
requires the responsible official to develop coarse-filter plan
components, and fine-filter plan components where necessary, to
contribute to the recovery of listed species and conserve proposed and
candidate species.
Third, Modified Alternative A requires the responsible official to
develop coarse-filter plan components, and fine-filter plan components
where necessary, to provide the desired ecological conditions necessary
to maintain viable populations of species of conservation concern
within the plan area, or to contribute to maintaining a viable
population of a species of conservation concern across its range where
it is not within the Agency's authority or is beyond the inherent
capability of the plan area to provide the ecological conditions to
maintain a viable population of that species within the plan area.
Species of conservation concern are those plant and animal species
whose long-term persistence within the plan area is of known
conservation concern. The rule requires that species of conservation
concern must be ``known to occur in the plan area'' and that the
regional forester identify the species of conservation concern for
which ``the best available scientific information indicates substantial
concern about the species' capability to persist over the long term in
the plan area.''
The Department has considered the concerns raised by many that the
requirement for maintaining viable populations of species of
conservation concern on the plan area is an impossible task and that
attempting to meet this requirement will come at the cost of all other
management of the NFS lands. The Department concludes that Modified
Alternative A provides a more holistic, consistent, realistic, and
effective approach to maintaining native fish, wildlife, and plant
species on national forests and grasslands than provided under the 1982
rule, while meeting restoration goals and the mandate of multiple use.
Modified Alternative A recognizes that there are limits to the
Agency's authority and the inherent capability of the land, whereas the
1982 rule required management prescriptions to ``[p]rovide for adequate
fish and wildlife habitat to maintain viable populations of [all]
existing native vertebrate species,'' (See 1982 rule at Sec. 219.27
(a)(6)) regardless of whether there are circumstances outside of the
authority or the control of the Agency. Examples of circumstances that
may be outside of the Agency's authority or the inherent capability of
the plan area are provided above in the rationale for non-selection of
Alternative B.
The Department concludes the management emphasis on species of
conservation concern is more focused than the viability provisions
under the 1982 rule, which included all vertebrate species whether
there was concern about their persistence in the plan area or not.
Since these species may be wide ranging or may occur on multiple units,
the regional forester, in coordination with the responsible official,
will identify species of conservation concern. Requiring that the
regional forester identify species of conservation concern will
increase consistency across units and build efficiency into the
Agency's collective efforts to maintain the diversity of plant and
animal communities.
The Department also considered the challenges the Forest Service
has faced in monitoring management indicator species (MIS) under the
1982 rule. MIS monitoring has been the subject of much of the legal
debate around the species provisions of the 1982 rule. Modified
Alternative A does not include requirements to designate MIS or monitor
their population trends. The concept of MIS as a surrogate for the
status of other species is not supported by current science, and
population trends are difficult and sometimes impossible to determine
within the lifespan of a plan.
In the final rule, MIS monitoring has been replaced with monitoring
of focal species. The concept of focal species is well supported in the
scientific literature and community. Focal species are not surrogates
for the status of other species. Focal species monitoring provides
information regarding the effectiveness of the plan in providing the
ecological conditions necessary to maintain the diversity of plant and
animal communities and the persistence of native species in the plan
area. Modified Alternative A does not require
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or prohibit monitoring of population trends of focal species. Instead,
it allows the use of any existing or emerging approaches for monitoring
the status of focal species that are supported by current science.
Monitoring methods for evaluating the status of focal species may
include measures of abundance, distribution, reproduction, presence/
absence, area occupied, survival rates, or others.
The Department expects that monitoring key ecosystem and watershed
conditions along with monitoring the status of a set of well-chosen
focal species will provide timely information regarding the
effectiveness of plan components related to plant and animal diversity.
The requirements in Modified Alternative A regarding sustainability
and diversity of plant and animal communities are part of the planning
framework cycle that requires public participation, assessments, and
monitoring. Additionally, provisions in these sections require the
responsible official to coordinate with other land owners. These
requirements support cooperation and an all-lands approach to ecosystem
and species diversity and conservation.
Under plans developed under Modified Alternative A, the Department
expects NFS lands to more consistently provide the ecological
conditions necessary to maintain the diversity of plant and animal
communities and the persistence of native species. Over time, the
Department expects habitat quantity to increase and habitat quality to
improve for most native species across the NFS including aquatic and
riparian species. The Department also expects ecological conditions for
many federally listed species, species proposed, and candidates for
listing and species of conservation concern to improve within and among
plan areas because Modified Alternative A gives emphasis to maintaining
and restoring ecological conditions needed by these species. The final
rule provides for collaborative approaches to addressing the range-wide
concerns of species whose range and long term viability is associated
with lands beyond the plan area.
The Department concludes that the combination of requirements in
Modified Alternative A reflects a strong, implementable approach to
providing for the diversity of plant and animal communities and the
persistence of native species in the plan area, and is supported by the
scientific literature and community. This approach meets the
requirements of NFMA and MUSYA, and provides a holistic, consistent,
realistic, and effective approach to providing for diversity of plant
and animal communities on national forests and grasslands, while
meeting restoration goals and the mandate of multiple use and sustained
yield.
Response to the Issue of Climate Change
Consideration of changing conditions including climate in planning
is not new to the Forest Service. The Climate Change Resource Center
has been developed as a reference for Forest Service resource managers
and decision makers who need information and tools to address climate
change in planning and project implementation on NFS lands. For more
than 20 years, Forest Service scientists have been studying and
assessing climate change effects on forests and rangelands. Forest
Service Research and Development provides long term research,
scientific information, and tools that can be used by managers and
policymakers to address climate change impacts to forests and
rangelands. Climate change-related activities are carried out within
research stations covering the whole country. In 2009, the Agency
issued guidance for climate change considerations to provide the Agency
with the support needed to incorporate climate change into land
management planning and project-level NEPA documentation. Recent plan
revisions include consideration of climate change.
Modified Alternative A incorporates a strategic framework for
adaptive management: assess conditions on the ground using readily
available information, build plan components recognizing that
conditions may be changing, and monitor to determine if there are
measurable changes related to climate change and other stressors on the
plan area.
Under Modified Alternative A, responsible officials will identify
and evaluate information relevant to understanding ecological
conditions and trends and to forming a baseline assessment of carbon
stocks. Plans will include plan components to maintain or restore
ecological integrity, so that ecosystems can resist change, are
resilient under changing conditions, and are able to recover from
disturbance. Modified Alternative A also requires monitoring measurable
changes on the plan area related to climate change and other stressors
that may be affecting the plan area. Taken together, the planning
framework and these requirements will ensure that information related
to climate change will be addressed in a consistent and strategic
fashion.
Modified Alternative A is consistent with and complements the
Agency's climate change National Roadmap and Performance Scorecard, the
Watershed Condition Framework and ecological restoration and
sustainability policies. The climate change roadmap directs national
forests and grasslands to develop climate change vulnerability
assessments and identifies monitoring strategies. Elements in the
scorecard will help the Agency to determine whether assessments and
monitoring are being developed in a way that will help inform
decisionmaking at the unit level. The scorecard includes requirements
that complement or are complemented by requirements in Modified
Alternative A. The climate change roadmap and scorecard are available
online at http://www.fs.fed.us/climatechange/advisor/.
The national watershed condition framework (WCF) approach uses an
annual outcome-based performance system to measure progress toward
improving watershed condition on NFS lands. The WCF improves the way
the Forest Service approaches watershed restoration by targeting the
implementation of integrated suites of activities in those watersheds
that have been identified as priorities for restoration. A short
description of the framework is discussed in Chapter 3 of the final
PEIS under watershed protection and a Forest Service publication is
available at http://www.fs.fed.us/publications/watershed/Watershed_Condition_Framework.pdf.
Modified Alternative A capitalizes on existing Agency work such as
the baseline carbon assessments conducted under the Climate Change
Scorecard, the assessment and monitoring conducted under the Watershed
Condition Framework, and the monitoring of climate change indicators
occurring in the Forest Inventory and Analysis program, by ensuring
integration of these activities into the land management planning
process.
In selecting Modified Alternative A, the Department considered the
present capability of the Agency to address climate change in planning.
The Department also considered existing Agency policy on climate change
and the ways in which the different alternatives could be integrated
effectively with those policies. The Department concludes that the
requirements for addressing climate change in the final rule can be
carried out on all NFS units.
Response to the Issue of Multiple Uses
Modified Alternative A embraces the multiple use mandate of the
Multiple-Use Sustained-Yield Act and recognizes the importance of
multiple uses in many
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sections of the alternative. Recreation, timber, grazing, and other
multiple uses provide jobs and income to local communities, help to
maintain social cultures and long standing traditions, connect people
to the land, and contribute to the quality of life for many Americans.
The Agency has reported that spending by recreation visitors in
areas within 50 miles of national forests and grasslands amounts to
nearly $13 billion each year. Those dollars sustain more than 224,000
full and part-time jobs. Recreation accounts for more than half of all
job and income effects attributable to Forest Service programs. Harvest
of timber and other forest products from NFS lands contributed to more
than 44,000 full- and part-time jobs with labor income totaling more
than $2 billion in 2009. Livestock grazing on NFS lands contributes to
an estimated 3,695 jobs and labor income totaling $91.9 million per
year.
Timber harvest on NFS lands has declined from over 12 billion board
feet in 1985 to approximately 2 billion board feet in 2009. In 1985,
there were over 8 million cattle, sheep, and other domestic animals
grazing on NFS lands. In 2009, this number dropped to approximately 6
million. In contrast, recreation visits to NFS lands have increased
over this same period. There are many factors that influence the levels
of timber harvest, grazing, and recreation, as well as other individual
multiple uses of the NFS. These factors include increasing population,
changing cultural and social values, greater access to NFS lands,
changing rural and global economies, NFS budgets, and competing
resource concerns. It is difficult to predict at this programmatic
level the extent to which a new planning rule is likely to affect
specific multiple uses in the future. As a result, the Department
considered how each of the alternatives in the PEIS provides a
framework for supporting the continued delivery of ecosystem services
and multiple uses from the NFS.
Modified Alternative A considers ecological, economic, and social
sustainability as equal and interdependent factors. Modified
Alternative A emphasizes restoration of ecosystems so that they are
capable of sustaining multiple uses over time. Restoration activities
will produce jobs and income; at the same time; restored, functioning
ecosystems can support species diversity while allowing multiple uses
to continue. Under Modified Alternative A, timber production and
grazing will continue to provide jobs, income, and ways of life for
many Americans. Modified Alternative A emphasizes the importance of the
continued delivery of sustainable recreation. Providing high quality
recreation opportunities and a range of access to NFS lands creates
jobs and income and connects people to the land.
Under Modified Alternative A, plans must contribute to economic and
social sustainability and must provide for ecosystem services and
multiple uses in the plan area. Responsible officials will use an
integrated resource management approach to provide for multiple uses
and ecosystem services in the plan area, considering a full range of
resources, uses, and benefits relevant to the unit, as well as
stressors and other important factors. As part of the multiple use
requirements, Modified Alternative A will require plan components for
sustainable recreation, including recreation settings, opportunities,
access, and scenic character. Modified Alternative A also includes
requirements for plan components for timber management, consistent with
the requirements of NFMA.
Information relevant to multiple uses and their contributions to
local, regional, and national economies, along with information about
the benefits (ecosystem services) people obtain from the plan area,
will be identified and evaluated in the assessment phase.
Monitoring will track progress towards meeting desired conditions
and objectives for recreation and other multiple uses. Broad and unit
scale monitoring may provide information on resource and social
concerns and conflicts before they result in insurmountable challenges.
Most importantly, the Department concludes that the requirements in
Modified Alternative A for encouraging public participation, working
across boundaries, and engaging other Federal agencies, State, local,
and Tribal governments, will help identify multiple uses in the plan
area, resolve conflicts, and facilitate the forward movement of
effective land management activities.
The Department concludes that Modified Alternative A meets the
Agency's multiple-use and sustained-yield obligations under MUSYA and
provides an effective framework for sustaining the flow of goods and
services from NFS lands over time.
Response to the Issue of Efficiency and Effectiveness
Under Modified Alternative A, the Department expects that
individual plan revisions will cost less money and consume less time
than they do under the 1982 rule procedures. The 1982 rule procedures
are considered the baseline for comparing changes in cost and time for
plan revisions because, until a new planning rule is in place, the 1982
rule procedures are being used as permitted by the transition provision
of the 2000 rule to develop, revise, and amend all plans.
According to the Agency's regulatory impact analysis and cost-
benefit analysis under Modified Alternative A, the Agency estimates
that land management planning will cost an estimated $97.7 million per
year, which is $6.3 million per year less than it currently costs to
conduct planning under the 1982 procedures. More significantly, under
Modified Alternative A, the Agency estimates that plan revisions will
take, on average, 3 to 4 years as compared to 5 to 7 years under
Alternative B, and will cost, on average, $3 to $4 million as compared
to $5 to $7 million. As a result of these savings and efficiencies, the
Forest Service will be able to revise significantly more plans during
the 15-year revision cycle, than under the current planning structure.
Beyond cost and time savings, there are important ancillary
benefits to increasing the efficiency of the planning revision process.
Under shorter time frames it will be easier for the public to remain
engaged throughout the revision process. One of the common concerns
expressed by members of the public is that there is a significant
amount of turnover in key Agency staff during the long timeframes
required for plan revision under the current planning process. This can
cause disruption and confusion as established relationships are severed
and time and effort is needed to develop new relationships.
The new rule's requirements for increased collaboration and
monitoring will lead to higher costs than are projected under
Alternative B, but are expected to increase the effectiveness and
relevance of land management plans. Increased collaboration provides
benefits throughout the planning process and well into implementation.
Analysis time may be shortened, administrative objections and the time
needed to resolve them may be reduced, and projects developed under the
resulting plans may be better understood and supported. Monitoring is
important for adaptive management, and can help the Agency to test
assumptions, track changing conditions, and measure management
effectiveness over time. However, the Agency has long recognized that
monitoring efforts when viewed across the Agency as a whole have often
lacked consistency and, at times, credibility. The
[[Page 21178]]
monitoring requirements of Modified Alternative A complement broader
Agency efforts to increase the efficiency and effectiveness of its
inventory, monitoring and assessment programs, and make better use of
the money currently spent on monitoring.
While the cost of each requirement is included in the total cost
estimate of Modified Alternative A, many of the requirements involve
work that is already occurring and that will continue to occur
regardless of whether this, or another alternative is selected as the
final rule. Modified Alternative A was developed as part of an
integrated Agency framework to manage the NFS lands more efficiently.
Other initiatives and Agency priorities that will complement and
support the implementation of the new land management planning process
and address critical NFS resource issues include the Watershed
Condition Framework, Climate Change Scorecard, landscape scale
restoration, an all lands approach, and a new system for inventory,
monitoring, and assessment work that addresses core resource
information and data needs at all levels of the Agency.
Modified Alternative A is neither the least nor the most costly of
the alternatives the Department considered. Modified Alternative A
reduces the costs and time required for plan development, amendment,
and revision. However, the Department does not believe that selecting
the least costly alternative should be the overriding criterion.
Planning is an important investment. The requirements in Modified
Alternative A are designed to lead to more effective plans, to yield
greater efficiencies over time by ensuring a consistent approach to
planning, to build on existing information, to facilitate adaptive
management, and to allow the use of amendments and administrative
changes to keep plans current so that future revisions are less costly.
The Department recognizes that some of the definitions, concepts,
and terms used in Modified Alternative A are new or broadly worded.
This Alternative sets forth process and content requirements to guide
the development, amendment, and revision of land management plans
across very diverse national forests and grasslands and over a long
period of time. By setting out substantive and procedural requirements,
the rule establishes the decision space within which the planning
process is to be carried out and within which plan content must fit.
The Forest Service will develop directives (the Forest Service Manual
and Handbook) that will provide additional guidance and more detailed
interpretation to ensure consistent and effective implementation of the
rule. These directives will be available for public review and comment
before they are finalized. Plans developed, revised and amended under
the rule will be consistent with the rule and the directives.
Response to the Issue of Transparency and Collaboration
Modified Alternative A supports a transparent and collaborative
approach to planning. As described in the PEIS, best practices in
public involvement and collaboration emphasize the importance of
engaging a broad spectrum of participants. Participants might live
close to a plan area or not. What matters is they care about that area
for some reason, can contribute to an understanding of relevant issues,
can help get planning or project work done, and can help increase
organizational and community capacity. A plan revision or amendment
process that offers a broad spectrum of participation opportunities is
much more likely to produce a meaningful, shared understanding of the
social, economic, or ecological factors of importance in the plan area.
Forests and grasslands that already engage a broad spectrum of public
interests early and often report that their proposed projects and plans
more accurately incorporate public vision and interests. They further
report that upfront public involvement builds more understanding of
proposed actions, and that people typically respond more positively to
these proposals.
Under Modified Alternative A, responsible official will be required
to provide meaningful opportunities for public participation in each
phase of the planning framework. Modified Alternative A includes
requirements for outreach, Tribal consultation, and coordination with
other planning efforts. Responsible officials will continue to engage
State and local governments, Tribes, private landowners, other Federal
agencies, and the public at large, but additionally will encourage
participation by youth, low-income and minority populations, who have
traditionally been underrepresented in the planning process. Having the
forest or grassland supervisor as the responsible official provides
greater opportunity for people to interact directly with the decision
maker than under current rule procedures. Use of a pre-decisional
review (objection) process is also consistent with a more collaborative
approach.
Modified Alternative A allows flexibility at the local level to
determine the most appropriate method and scale of the public
involvement. Much of the literature on building effective collaboration
discusses the need for flexibility to select public involvement methods
appropriate for the unique needs of specific situations and
participants.
Modified Alternative A is consistent with current practice on
effective public engagement and incorporates approaches that have
proven successful and implementable on NFS units.
The requirements for public participation, notification, and
documentation required in Modified Alternative A support transparency
in planning. This alternative's requirements to consider the
accessibility of the process and of information, to use contemporary
tools to engage the public and to post all notifications online further
increase transparency.
Response to the Issue of Coordination and Cooperation Beyond NFS
Boundaries
Ecological and social systems are not confined within NFS unit
boundaries. Ecosystem services produced by national forests and
grasslands affect and are affected by land management activities on
adjacent private, State, local, and other Federal Government lands.
Under Modified Alternative A, the responsible official will
consider the landscape-scale context for management and will look
across boundaries throughout the assessment, plan development/revision,
and monitoring phases of the planning process. The assessment phase
will provide information about conditions and trends relevant to
management of the plan area in the context of the broader landscape.
Responsible officials will take an all-lands approach into account when
developing plan components for ecological sustainability and multiple
uses and ecosystem services. Plan and broader-scale monitoring, along
with direction to engage the public and other land managers in each
phase, will also support an all-lands approach. Responsible officials
will leverage their resources and knowledge with those of other
agencies to increase effectiveness and gain efficiency in planning and
future implementation of their plans.
The PEIS includes several examples of landscape scale planning,
projects, and assessments that are currently using an all-lands
approach in planning, assessment and monitoring. They have resulted
from an increased recognition
[[Page 21179]]
that NFS land management must be considered in the broader landscape
and that only this kind of approach can address problems such as
maintaining watershed conditions, conserving wide-ranging species, and
providing for effective transportation and infrastructure on and off
NFS lands. The Department concludes that Modified Alternative A
incorporates these best practices and provides a framework for
continuing and expanding them.
Compliance With the Endangered Species Act of 1973, as Amended
Beginning in September, 2010 and continuing through the development
of the final rule and its accompanying final programmatic environmental
impact statement (PEIS), representatives from the U.S. Fish and
Wildlife Service (USFWS) and the National Oceanic and Atmospheric
Administration (NOAA) Fisheries (the reviewing agencies) met regularly
with members of the Forest Service to discuss Endangered Species Act of
1973 issues related to the final rule. During that time, the three
agencies worked closely together to identify the relevant issues and
appropriate level of analysis associated with this rule and the
environmental analysis for it. They collaborated on a consultation
process and on the biological assessment (BA). The Agency requested
consultation under section 7(a)(1) and 7(a)(2) of the Endangered
Species Act of 1973 with the reviewing agencies in July, 2011.
Additionally, the Agency requested conferencing on the potential
effects of the rule on all species that are proposed for Federal
listing and currently occur on NFS lands, and those that are candidates
for Federal listing that occur on or are suspected to occur on NFS
lands. A summary of the consultation meetings between the Forest
Service, NOAA Fisheries, and the USFWS can be found in Appendix E of
the final PEIS.
NOAA Fisheries and USFWS have each prepared a biological opinion
pursuant to section 7(a)(2) of the Endangered Species Act including a
conservation review pursuant to section 7(a)(l) Act (16 U.S.C.
1536(a)(1) and (2)). Each agency issued a biological opinion that
adoption of the final planning rule is not likely to jeopardize the
continued existence of the endangered or threatened species under its
jurisdiction and is not likely to destroy or adversely modify any of
those species' critical habitat. Each agency's biological opinion also
concluded that the planning rule would set forth a system for land use
plans that would further the conservation purposes of the Endangered
Species Act under section 7(a)(1).
Copies of the biological assessment, its addendum, and the
biological opinions are in the project record and can be viewed online
at: http://www.fs.usda.gov/planningrule.
Response to Comments
The following is a description of specific comments received on the
proposed rule, responses to comments, and changes made in response to
comments. Each comment received consideration in the development of the
final rule. In addition, following the publication of the PEIS, the
Department received comments on the PEIS and the preferred alternative.
These comments were also considered by the Department in the
development of the final rule, and any changes made in response to
those comments are described below. A response to comments on the draft
EIS and the proposed rule may be found in the response to comments
appendix of the EIS located online (see ADDRESSES).
General Comments
The Department received the following comments not specifically
tied to a particular section of the 2011 proposed rule.
General Comments on Rulemaking Effort
Comment: Use of public forums for rule development and meeting
locations. A respondent was critical of the public forums, as the forum
they attended was full of private sector representatives and not
members of the public. Another respondent felt there were not enough
public meetings held on the East Coast. A respondent felt after
scoping, the proposed rule was developed ``behind closed doors.'' The
respondent felt the meetings on the proposed rule were not
opportunities to discuss specific rule wording.
Response: The public engagement effort prior to development of the
proposed rule was the most extensive, transparent and participatory
process ever used to develop a proposed planning rule. The Department
began by using the Notice of Intent (NOI) to solicit initial public
input, rather than going out with an already developed proposal. This
decision was made in recognition of the level of public interest in
this rule-making effort, and in a desire to build a proposed rule based
on public input. The Department received 26,000 comments on the NOI.
Following the NOI, the Department hosted a science forum, 4 national
roundtables, and 9 regional roundtables which reached 35 locations
around the country, using an independent facilitator to run the
roundtables and capture public feedback.
The purpose of the public forums before publication of the proposed
rule was to openly and transparently discuss possible content of the
proposed rule. Participants in the meetings were invited to suggest
specific topics and specific wording during the sessions. Materials and
summaries from the roundtables were posted online. Many roundtables
used video teleconferencing or Webcasts to provide for participation by
members of the public unable to attend in person. This use of
technology also provided opportunities for the public to participate
from their local Forest Service office. The Agency also hosted a blog
site for people to engage in dialogue and provide feedback, as well as
participate remotely in the national roundtables. More than 3,000
members of the public participated in these sessions and provided
important feedback that the Agency used in developing the proposed
rule.
After the proposed rule was published, the Agency hosted 28
regional public forums and one national public forum to answer
questions and help the public understand what was in the proposed rule.
These sessions were attended by more than 1,350 people and reached 72
satellite locations across the country. These forums were intended to
help the public submit informed comments during the comment period for
the proposed rule, but the Agency did not accept public comments
directly at the forums because of the need to have a consistent way of
accepting and recording comments.
After the public comment period closed, the Agency used the more
than 300,000 comments received to inform development of this final
rule.
Comment: Proposed rule commenting process. A respondent felt there
was no convenient way for the everyday person to provide comments on
the proposed rule.
Response: Multiple avenues for the public to submit comments on the
proposed rule were provided, including submitting comments
electronically via the respondent's choice of two Web sites, or
submitting comments using mail or fax. Information on how to submit
comments was posted on the Forest Service Web site, distributed at
public meetings, and published in the Federal Register notice.
Additionally, interested parties could sign up for a listserv that
provided updates via email.
Comment: Lack of responses. A respondent felt the 26,000 comments
received during the comment period for the notice of intent (NOI) to
develop a
[[Page 21180]]
new planning rule meant the Department must undertake further efforts
to ensure the public is sufficiently involved in the planning process
and further ensure that actions taken as a result of the rule are
supported and understood by the public.
Response: In addition to the 26,000 comments received in response
to the NOI, the Department engaged more than 3,000 people around the
country in public forums to receive input between the NOI and the
proposed rule, and received more than 300,000 public comments during
the 90-day comment period for the proposed rule. After publication of
the final rule, public participation in planning at the unit level is
mandated by Sec. 219.4, which requires the responsible official to
offer meaningful opportunities for public involvement and participation
early and throughout the development of a land management plan or plan
revision. The Agency is also exploring ways to engage more broadly with
the public to implement this final rule.
Comment: Cooperating status for rulemaking. Some respondents
expressed concern that their requests for cooperating agency status
were not granted by the Department.
Response: The National Environmental Policy Act (NEPA) allows for
cooperating agency status for States, local governments, and Tribes
with jurisdiction or special expertise for the development of an
environmental document. Several States or local governments requested
cooperating agency status. However, a national rule requires a broader
look beyond an individual State's or local government's expertise. The
Agency also took a unique and unprecedented collaborative and open
approach in reaching out to the public, governments, and Tribal
entities in developing the rule. Therefore, requests for cooperating
agency status during development of the planning rule were not granted.
The Department recognizes the valuable role of local and State
governments and Tribes in the planning process and provided multiple
opportunities for their involvement throughout the country during the
collaboration efforts for the planning rule, in addition to the formal
public comment periods.
Comment: Oral comments. Several respondents felt oral comments
during the public forums on the proposed rule should have been allowed.
Response: When applicable, the Administrative Procedures Act
directs that agencies provide an opportunity for written comment, but
allows agencies the discretion whether or not to allow oral
presentation of data or views. The Forest Service hosted open public
forums in Washington, DC, and across the country to answer questions
about the proposed rule during the public comment period. The Forest
Service held these forums to help the public understand the content of
the proposed rule. The Forest Service did not, however, accept written
formal public comments at the forums or provide an opportunity to
record oral comments, due to the anticipated volume of public comments,
to ensure proper documentation and consideration of all comments, and
in the interest of efficiency and accuracy in accepting and reviewing
comments. All comments on the proposed rule and DEIS had to be
submitted in writing during the 90-day comment period by postal system,
fax, or one of two Web sites.
Comment: Personal comments. A respondent expressed concern that
their scoping comments were not incorporated into the proposed rule.
Response: No rule can satisfy the entire spectrum of opinion. The
final rule seeks to balance different, and often competing, public
needs and perspectives on planning into a process that is practical,
workable, based on science, and reflective of overall public and Agency
values and input.
Comment: Incorrect or missing address for submission of comments,
phone contact, and Web site utility. Some respondents expressed
confusion on why the Department did not provide an email address for
comments to be sent to. Others expressed frustration that the contact
phone number was published incorrectly in the DEIS, and expressed a
desire to submit comments or ask questions by phone. Some wanted a
better sitemap on the Forest Service planning Web site to help
navigation through the site.
Response: Instead of an email address, the Department provided the
addresses of two Web sites the public could choose from to submit
comments, in addition to mail or fax options. Because of the volume of
anticipated comments, the Department concluded that comments submitted
via a Web site would be more efficient to manage than an electronic
mail in-box, and would reduce costs and the risk of human error. In
addition, comments are more efficiently and rapidly placed in the
record and made available for public inspection when submitted via a
Web site rather than email.
After being made aware of the incorrect phone number published in
the DEIS, the Department corrected the contact information immediately.
The Administrative Procedure Act requires agencies to ``give interested
persons an opportunity to participate in the rulemaking through
submission of written data, views, or arguments with or without
opportunity for oral presentation'' (5 U.S.C. 553(c)). Due to the
anticipated volume of public comments, and in the interest of
efficiency and accuracy in accepting and reviewing comments, the
Department did not accept comments over the telephone. It is not
standard practice to accept telephone comments. Opportunities to
provide comment were amply provided through the respondent's choice of
two Web sites, mail or fax.
The planning rule Web site does contain a site map link on the
left-hand menu on the main page. The Department appreciates feedback on
our Web design and seeks to continuously improve our Web presence.
Comment: Verification comments received. Some respondents wanted to
verify that their comments on the planning rule were received.
Response: Respondents are able to verify that their comments were
received by reviewing the public reading room for the planning rule at
http://contentanalysisgroup.com/fsrd/. To ensure transparency, comments
submitted during the comment period were posted to the reading room for
public review.
Comment: List serv. A respondent felt the Department should use a
listserv to keep the public apprised of the status of the planning
rule.
Response: A planning rule listserv was announced in June 2010, and
has been used since then to communicate with the public. Members of the
public may request to be added to the planning rule listserv on the
planning rule Web site, or directly at http://www.fs.fed.us/news/pr-listserv-subscribe.html.
Comment: Requests for extension of the comment period. Some
respondents requested an extension of the comment period because some
members of the public were not able to participate in Agency meetings
addressing the proposed rule. Other respondents requested an extension
of the comment deadline because of the late release of a scientific
review. Some respondents said that the public did not have enough time
to comment on the science review before the comment period closed.
Response: The Department went through extraordinary lengths to
facilitate the ability of the public to understand and comment on the
proposed rule and proposed environmental impact statement. In fact, the
Administration identified this rule as a flagship for open government
[[Page 21181]]
within the U.S. Department of Agriculture. The Department published in
the Federal Register a notice of intent to propose a new rule and
prepare its accompanying environmental impact statement on December 18,
2009, and took public comment on that notice for 60 days. The proposed
rule was informed by approximately 26,000 comments to the notice of
intent, a science forum, regional and national roundtables held in 35
locations with over 3,000 people in attendance, national and regional
Tribal roundtables, 16 Tribal consultation meetings, Forest Service
employee feedback, and over 300 comments posted to the planning rule
blog. Throughout that process, the Agency shared a clear timeline with
the public, including our intent to publish the final rule by the end
of 2011.
The Department considered all the public input, science, and the
Agency's expertise to develop the proposed rule and draft environmental
impact statement (DEIS). The proposed rule and notice of availability
for the DEIS were published in the Federal Register and included a 90-
day comment period ending on May 16, 2011. A 90-day comment period was
used because of the importance of the proposed planning rule. This was
30 days more than the Agency's customary comment period for rulemaking
and is 45 days more than the review and comment period for draft
environmental impact statements required by National Environmental
Policy Act regulations.
The Department reached well beyond its normal practices to provide
the public with information to assist in the public comment phase of
this rulemaking. During March and April, 2011, after the notices were
published in the Federal Register, the Forest Service hosted 29
national and regional public forums to provide stakeholders with
information about the proposed rule and respond to questions. The
forums were attended by almost 1,350 members of the public and reached
74 locations across the country through video and teleconferencing. The
National Forum was held within 3 weeks of the opening of the comment
period and a video of the forum and forum materials were posted on the
planning rule Web site. The regional forums were also held early in the
comment period. While the forums were designed to assist the public in
understanding the proposed rule and foster informed comments, it was
not necessary for any member of the public to attend a forum to develop
and submit comments. The Forest Service ensured that the planning rule
Web site contained background information on the proposed rule as well
as summaries of the various collaboration and public involvement
activities held during the preparation of the proposed rule. Also, the
DEIS was posted on that Web site, as published in the Federal Register
notification. In order to proactively facilitate commenting, the Forest
Service provided multiple options for members of the public to submit
comments: two Web sites, by hard copy mail, and by facsimile.
In addition, the Department contracted with a neutral third party
to arrange an independent review of the DEIS by respected and well
known scientists outside of the Forest Service to ensure that the
science behind the proposed rule and environmental analysis is current,
relevant, accurate, and appropriately applied. In order to ensure the
integrity and independence of the review process, the identity of the
reviewers and the content of their individual analysis were kept
confidential by the third party, until the review was completed. In
keeping with our open and transparent process, the Agency committed to
make the reviews in their entirety public and did so within 3 business
days of receiving them. The Agency posted the reviews on the Internet
on April 26, 2011. The summary of the reviews and each independent
review can be found on the Internet at http://www.fs.usda.gov/planningrule. Neither requesting the review nor sharing the result of
the review was legally required. The Forest Service considered the
science reviews, along with public comments, in preparing the final
programmatic environmental impact statement (PEIS) and final rule.
The Department believes the public had sufficient time to review
these materials and consider them when commenting on the proposed
planning rule. The Department decided not to extend the 90-day comment
period because extra time had been provided for comments beyond the
customary practices and an unprecedented amount of information and
access to the Agency employees to assist the public in understanding
that information was provided to the public via Web site and public
meetings.
Comment: External science review and Federal Advisory Committee
Act. Some respondents were concerned that the external science review
of the DEIS violated the Federal Advisory Committee Act (FACA) because
they believed the Agency set up an advisory committee but did not
follow the FACA requirements. Some respondents were concerned that the
Agency did not follow the National Forest Management Act (NFMA)
requirements in setting up a committee of scientists.
Response: The external science review of the DEIS did not violate
FACA. FACA applies when a Federal agency establishes, controls, or
manages a group that provides the Agency with consensus advice or
recommendations. The external science review of the DEIS was conducted
by seven non-Federal scientists, each of whom separately conducted an
independent evaluation of whether appropriate scientific information,
content, and rigor had been considered, analyzed, and synthesized in
the DEIS. These scientists did not operate as a group; they were not
established, controlled or managed as a group by the Agency; and they
did not provide the Agency with consensus advice or recommendations.
Accordingly, the external science review was not subject to FACA's
requirements.
A committee of scientists was not required for this rulemaking
effort under the NFMA: a committee of scientists was required only for
the 1979 planning rule, and that committee terminated upon promulgation
of that regulation. The NFMA states that the Secretary may, from time
to time, appoint similar committees when considering revisions of the
regulations, but the Secretary need not do so (16 U.S.C. 1604(h)(1)).
Comment: External science review and public comment. Some
respondents were concerned that science review meetings of the external
reviewers were not open to the public, and that the documents
considered and produced were not available to the public. Some
respondents were concerned that the Agency did not make the reviews
public when the proposed rule was published for comment on February 14,
2011.
Response: There were no ``science review'' meetings held by the
external reviewers. The Agency did not provide the external reviewers
with any documents that were not available to the public. Neither the
public nor the Department knew the identities of the reviewers, nor was
there interaction between Department personnel and the reviewers during
the review phase. It was only after the reviews were completed, during
the public comment phase, that the Department learned the identities of
the reviewers and the substance of their reviews. Within 3 business
days of the Department's receipt of that information, each of the
reviews (unedited), the contractor's summary of the reviews, and the
identities of the reviewers were made public. The reviews were not
available in February because the reviewers
[[Page 21182]]
received the DEIS for review at the same time as the rest of the
public.
Comment: External science review and the rule. Some respondents
were concerned that the scientists reviewed the rule and not the DEIS,
as appeared evident from their reviews.
Response: The basic charge to the science reviewers was to evaluate
how well the proposed planning rule's draft environmental impact
statement (DEIS) considered the best available science. The contractor
gave each science reviewer three key questions to address, regarding
scientific caliber, treatment of uncertainty, and comprehensiveness of
the DEIS. The reviewers were not asked to review the proposed planning
rule or to comment on the alternatives. However, the text of the
proposed planning rule and alternatives was included in the appendices
of the DEIS that was posted online and made available to the public as
well as the science reviewers. Some of the reviewers chose to provide
feedback on the proposed rule and alternatives, although they were not
asked to comment on those parts.
Comment: External science reviewers. Some respondents were
concerned that the background of the reviewers did not include
expertise that they felt was important to include, including mining,
timber, or recreation. Some suggested that the reviewers were biased in
their reviews.
Response: The Department contracted with RESOLVE to administer the
science reviews to ensure the independence of the reviews. RESOLVE is a
non-partisan organization that serves as a neutral, third-party in
policy decisionmaking. One of RESOLVE's specialties is helping to
incorporate technical and scientific expertise into policy decisions.
The Agency provided the contractor with a draft of the DEIS and
required it to select the reviewers and provide their responses to the
Agency.
Comment: External science review and CEQ documents. Some
respondents commented that the CEQ report from 1982 should not be used
because it is too old. Also, some respondents suggested that other
references used in the DEIS were too old to use.
Response: The references to which the comment referred were the
``Forty Most Asked Questions Concerning CEQ's National Environmental
Policy Act Regulations,'' which was published in the Federal Register
in 1981 (46 FR 18026 (March 23, 1981)) and the April 30, 1981
memorandum from the Executive Office of the President on scoping. Both
are current and still relevant; see the CEQ Web site on NEPA guidance
at http://ceq.hss.doe.gov/nepa/regs/guidance.html. Furthermore,
scientific literature from decades ago may still be relevant and even
considered the best science that is available on some topics. Some
classic literature from well known scientists still is used frequently
(for example, Pickett et al. 1978) and was used in the DEIS.
Comment: Some respondents commented that a concerted effort be made
to address the issues raised by the science reviewers.
Response: The planning rule team considered and responded to the
comments made by the science reviewers, along with other comments
submitted by the public. The issues raised in the reviews informed the
final PEIS, along with the other feedback received during the public
comment period.
Comment: Some respondents were concerned that only the Science
Review summary was posted online.
Response: The Science Review report included a summary of the
science review and the full and unedited reviews of each of the science
reviewers. The report was prepared by RESOLVE and was posted on the
Forest Service Web site without any changes or omissions.
General Proposed Rule Comments
Comment: Degree of compliance or restriction. Some respondents said
the rule should provide more discretion and flexibility to develop a
forest plan by reducing the use of ``shalls'' and ``musts.'' Other
respondents felt phases ``take into account'' and ``consider'' should
be removed and replaced with more prescriptive terminology as these
terms left implementation largely to the discretion of the responsible
official.
Response: The wording in the final rule was chosen to reflect the
degree of structure the Department decided as appropriate for various
aspects of the rule. The Department's goal in creating the final rule
was to create an implementable framework for planning along with a
structure and set of requirements for plan components and other plan
content that would support the purpose of the final rule. In addition,
the Department allows flexibility for plans to reflect the different
unique circumstances across the National Forest System (NFS), including
in response to best available scientific information, public input, and
information about changing conditions at the unit level. The Department
believes that the final rule strikes a good balance.
The Department recognizes that there may be significant differences
in circumstances across the NFS that make specific national standards
unworkable or not reflective of the best available scientific
information for a given plan area. The final rule balances the need for
national consistency with the need for local flexibility to reflect
conditions and information on each unit. Additional direction will be
included in the Forest Service Directives System, and a new requirement
was added to Sec. 219.2 that requires the Chief to establish a
national oversight process for accountability and consistency of
planning under this part.
Comment: Advocacy for a particular outcome or regulatory wording.
Some respondents expressed general support for or opposition to the
proposed rule. Among the items respondents supporting the proposed rule
listed are the following: the use of larger ecological regions to
provide context for forest, grassland and prairie units; cooperation
between the Agency and adjacent governmental entities in planning and
plan revision processes; public participation opportunities in the
decision making process; the approach on ecological sustainability,
watershed restoration and protection, and recognition of ecosystem
services. Supportive respondents also were in favor of the emphasis on
recreational uses and users; the streamlining and simplifying of the
planning process the use of active management techniques; the continued
emphasis on multiple use purposes including economic impacts and
benefits; the use of best available science; and the appropriate use of
regulations and management strategies to mitigate climate change
effects. Those respondents expressing a general opposition to the
proposed rule felt the way it was written and the requirements it
contained were vague, complex, unrealistic, and needed clarification.
They felt it would invite litigation; would not provide adequate
protection for wildlife and resources; or would limit public access,
use, rights, and participation. Some felt the proposed rule was
inappropriate because they felt it allowed for continued timber,
livestock, mining, and special interest groups' use; wasted tax
dollars; would harm economic benefits for rural communities; failed to
incorporate the multiple use mandate; failed to include sound science
in planning and measurable tools for management; failed to incorporate
and analyze Tribal interests and activities; allowed too much
discretion to the responsible official; failed to give recreational
uses
[[Page 21183]]
a greater priority; or failed to address cumulative effects these
regulations would cause. Additionally, they expressed concerns over
inclusion of climate change requirements. Some respondents expressed
endorsement of comments submitted by other organizations or
individuals, or referred to attachments submitted in support of their
comments.
Response: The Department has reviewed all of these comments and
enclosures, and appreciates the degree of public interest in the
proposed rule. Where changes have been made in the final rule, these
discussions can be found in the following section-by-section
discussions. Responses to these comments and their relationship with
the supporting final programmatic environmental impact statement (PEIS)
can be found in Appendix M of the final PEIS.
Comment: Preservation of the national forests for future
generations. Some respondents stated a desire for the rule to mandate
stronger standards to ensure wildlife and wildlife habitats are healthy
and resilient; for greater forests protections, and better integration
of environmental, economic, and/or social sustainability into future
plans and future generations. Some wanted inclusion of guidelines for
responsible/sustainable recreation, more restrictions on mining and
logging activities, and provisions to limit access to preserve land.
Response: The Department agrees that the preservation of our
national forests and grasslands is vital to meet the needs of present
and future generations. These comments were reviewed and changes are
discussed in the section-by-section responses below. The final rule
sets the stage for a planning process that can be responsive to the
desires and needs of present and future generations of Americans for
the multiple uses of NFS lands. The final rule does not make choices
between the multiple uses of a plan area. The unit plans developed
under the final rule will provide guidance for future projects and
activities.
Comment: General action to protect national forests and grasslands.
Some respondents expressed the need for the Forest Service to protect
and not destroy the national forests. They expressed the importance of
protection for wildlife, diverse ecosystems, riparian areas, priority
watersheds, aquatic resources, clean drinking water, endangered
species, climate change and air pollution, access for socioeconomic
purposes, cultural and traditional resource use, and the natural beauty
of the land. They suggested strengthening the wording of the proposed
rule for forest protection, compliance, and consistency; inclusion of
protection of access to land for recreation; and allowing natural
processes to occur. They felt an effective planning rule will reflect
the aspirations of diverse communities.
Response: The Department has revised the proposed wording on
sustainability, diversity of plant and animal communities, multiple
uses, and timber requirements as well as wording in other sections of
the final rule to reflect public comments and better ensure the needs
of present and future generations. See discussions under the section-
by-section response to comments.
Comment: References to individual forests, projects, and
individuals. Some respondents commented on issues important to them,
but not related to this rulemaking effort. Examples of such concerns
include the use of DDT, Millennium Ecosystem Assessment, issues with
rental housing, sustainable living, a tornado in southeast Tennessee, a
vital wildlife crossing in Montana, Willamette National Forest timber
harvest levels, and a suggested wolf/gorilla/elephant/chimpanzee/lion/
giraffe sanctuary.
Response: These and other similar comments have been determined to
be outside the scope of the development of a planning rule, because
they discuss aspects unique to specific forests, grasslands, or
municipalities. Many of the concerns raised would be more properly
addressed in specific forest and grassland plans themselves, or in the
subsequent decisions regarding projects and activities on a particular
national forest, grassland, prairie, or other administrative unit, or
may be outside the scope of NFS planning.
Comment: Wilderness evaluation procedures. Several respondents felt
``sights and sound'' should be removed Forest Service directives as a
criterion for wilderness inventories.
Response: Criteria for the evaluation of areas for wilderness
recommendations are in Forest Service directives, which are in the
process of being revised. There will be an opportunity for public
comment on the directives before they are finalized. The Department
encourages members of the public to provide comment on issues specific
to the directives during their revision.
Comment: Changes to other Forest Service regulations. Some
respondents commented about which resource uses or activities should be
supported or not supported by the Department on NFS lands. They
requested requiring, changing, or eliminating regulations for specific
activities. These activities included, but are not limited to, NEPA
implementation, grazing, mining, logging, road construction and
maintenance, special use permits, hunting, certain recreational
activities, trail use conflicts, wildland fire suppression, fuels
management, educational opportunities, cultural and historic resources,
as well as protections for wild horses and burros.
Response: The Department agrees the issues raised are important.
However, these comments have been determined to be outside the scope of
development of a planning rule. The final rule is intended to provide
overall direction for how plans are developed, revised, and amended and
for required plan components and other plan content. The final rule and
alternatives found in the supporting final PEIS do not provide
regulatory direction for the management of any specific resource,
except for the NFMA timber requirements. Agency regulations for
specific uses can be found in other sections of 36 CFR parts 200-299,
which govern management of the national forests, grasslands, and
prairie. For example, part 212 regulates administration of the forest
transportations system (roads and trails), part 222 regulates range
management, including wild horses and burros, and part 223 regulates
the sale and disposal of NFS timber. Additional direction may be found
in individual plans or in project or activity decision documents. Those
communities, groups, or persons interested in these important issues
can influence plan components, plan monitoring programs, or subsequent
projects or activities by becoming involved in unit planning efforts
throughout the process, and by submitting comments on the Forest
Service Directives System during opportunities for public comment.
Comment: Funding and staffing levels. Some respondents suggested
increased funding and staffing for the enforcement of protection and
mitigation standards; the collection of fees from and licensing
requirements for users; bonding to ensure restoration activities;
sustainable funding for fuel reduction activities; and the retention or
creation of specific Agency positions.
Response: These comments have been determined to be outside the
scope of the development of a planning rule. The U. S. Congress
determines Agency funding levels under its budgetary process. Staffing
issues are more properly addressed by specific forest and grasslands,
or regional and national offices.
[[Page 21184]]
Comment: Transparency and collaboration. Some respondents wanted
the public process of land management planning to be kept clear and
transparent. Others commented that in addition to transparency, the
specific science being used should be shared. Some respondents were
concerned that collaboration would result in too much input from local
interests and groups. A respondent stated there is no clear definition
of collaboration in the DEIS. Another respondent felt the public
participation requirements will not result in collaboration and the
Forest Service staff would still be doing all of the planning work.
Response: The Department agrees the public process for land
management planning must be clear and transparent. Section 219.3 of the
final rule requires the responsible official to document how the best
available scientific information was used to inform the assessment,
plan decision, and design of the monitoring program. Such documentation
must: identify what information was determined to be the best available
scientific information, explain the basis for that determination, and
explain how the information was applied to the issues considered. This
requirement will provide transparency and an explanation to the public
as to how the best available scientific information was used to inform
how the responsible official arrived at important decisions. Section
219.14 includes additional requirements for the plan decision document
to increase transparency and explain the rationale for decisionmaking.
Section 219.4 of the final rule lists the minimum specific points
during the planning process when opportunities for public participation
will be provided, and includes direction to provide meaningful
opportunities for public engagement and share information with the
public in an open way. To meet these requirements, the responsible
official must be proactive in considering who may be interested in the
plan, those who might be affected by a plan or a change to a plan, and
how to encourage various constituents and entities to engage, including
those interested at the local, regional, and national levels. All
members of the public will be provided opportunities to participate in
the planning process. Section 219.16 provides requirements for public
notification to ensure that information about the planning process
reaches the public in a timely and accessible manner.
Section 219.19 of the final rule includes definitions for
participation and collaboration. Because the make-up and dynamics of
the communities surrounding each planning area differ, and because the
level of interest in decisionmaking may vary, the final rule provides
the responsible official with the flexibility to select the public
participation methods that best fit specific planning needs.
Land management planning for NFS lands falls under Forest Service
authority and is a responsibility of the Agency. As such, Agency
employees are responsible for the preparation of the actual planning
documents. Section 219.5(b) states that interdisciplinary teams will be
established to prepare assessments; new plans, plan amendments, plan
revisions, and unit monitoring programs. However, under Sec. 219.4,
the public will have numerous opportunities to participate in the
process and contribute to the content of those documents.
Comment: Tribal activities. Some respondents felt the rule should
support Tribal activities on NFS land because of important Tribal
historical, cultural, sacred areas located there; should facilitate the
Tribes' exercise of treaty hunting, fishing and gathering rights; and
should require partnering with Tribal entities in the planning process.
Response: The final rule recognizes and does not change the unique
government-to-government relationship between the United States and
Indian Tribes. The final rule recognizes and does not modify prior
existing Tribal rights, including those involving hunting, fishing,
gathering, and protecting cultural and spiritual sites. The rule
requires the Agency to work with federally recognized Indian Tribes,
government-to-government, as provided in treaties and laws, and
consistent with Executive orders when developing, amending, or revising
plans. The final rule encourages Tribal participation in NFS planning.
Further, the rule recognizes the responsibility of Forest Service
officials to consult early with Tribal governments and to work
cooperatively with them where planning issues affect Tribal interests.
Nothing in the final rule should be construed as eliminating public
input or Tribal consultation requirements for future projects. The
final rule requires consideration of cultural and historic resources,
ecosystem services including cultural services, areas of Tribal
importance, and habitat conditions needed for public uses such as
hunting, fishing and subsistence, in addition to input from Tribes and
Alaska Native Corporations.
Comment: Compliance with Federal laws and regulations. Some
respondents raised concerns over compliance with Federal laws governing
the management of the national forests. Some examples cited include the
National Heritage Preservation Act, the Organic Act, the General Mining
Act of 1872, the Wilderness Act, the Endangered Species Act of 1973
(ESA), the Alaska National Interest Lands Conservation Act (ANILCA),
and the Tongass Timber Reform Act (TTRA). Some were concerned with the
influence of court decisions on the scope of the rule.
Response: All alternatives in the final PEIS are faithful to and
require compliance with all laws governing the Forest Service,
including ANILCA, TTRA, and the other laws identified by respondents.
This is reaffirmed in the final rule, Sec. 219.1(f), which states that
plans must comply with all applicable laws and regulations--some, but
not all, of which are mentioned as examples.
The Secretary has clear authority to promulgate the final rule, and
the final rule does not conflict with existing law and policy. The
foundation for any exercise of power by the Federal Government is the
U.S. Constitution. The Constitutional provision that provides authority
for management of public lands is the Property Clause (Article IV,
Section 3). The Property Clause states that Congress has the power to
dispose of and make all needful rules and regulations respecting land
or other property belonging to the United States. Using this authority,
Congress entrusted the Secretary of Agriculture with broad powers to
protect and administer the National Forest System by passing laws, such
as the Organic Administration Act of 1897 (the Organic Act), the
Multiple-Use Sustained-Yield Act of 1960 (MUSYA), and the National
Forest Management Act of 1976 (NFMA).
The duties that Congress assigned to the Secretary include
regulating the occupancy and use of National Forest System lands and
preserving the forests from destruction (16 U.S.C. 551). Through the
MUSYA, Congress directed the Secretary to administer the National
Forest System for multiple use and sustained yield of renewable
resources without impairment of the productivity of the land (16 U.S.C.
528-531), thus establishing multiple-use as the foundation for
management of national forests and grasslands. The statute defines
``multiple use'' broadly, calling for management of the various uses in
the combination that will best meet the needs of the American people
(16 U.S.C. 531). Under this framework, courts have recognized that the
MUSYA does not envision that every acre of National Forest System land
be managed for every multiple use, and does envision
[[Page 21185]]
some lands being used for less than all of the resources. As a
consequence, the Agency has wide discretion to weigh and decide the
proper uses within any area. (Wyoming v. USDA, 661 F.3d, 1209, 1267-
1268 (10th Cir. 2011); Perkins v. Bergland, 608 F.2d 803, 806-807 (9th
Cir. 1979); and City & Cnty. of Denver v. Bergland, 695 F.2d 465, 476
(10th Cir. 1982)). In passing the MUSYA, which directs the Forest
Service to administer the national forests for ``sustained yield of the
several products and services obtained therefrom.'' Congress also
affirmed the application of sustainability to the broad range of
resources the Forest Service manages, and did so without limiting the
Agency's broad discretion in determining the appropriate resource
emphasis and mix of uses.
The NFMA reaffirmed multiple use and sustained yield as the guiding
principles for land management planning of National Forest System lands
(16 U.S.C. 1600, 1604). Together with other applicable laws, the NFMA
authorizes the Secretary of Agriculture to promulgate regulations
governing the administration and management of the National Forest
Transportation System (16 U.S.C. 1608) and other such regulations as
the Secretary determines necessary and desirable to carry out the
provisions of the NFMA (16 U.S.C. 1613). These laws complement the
longstanding authority of the Secretary to regulate the occupancy and
use of the National Forest System (16 U.S.C. 551). Forest Service
regulations governing subsistence management regulations for public
lands in Alaska under the ANILCA are found at 36 CFR part 242, and
changes to those regulations are outside the scope of the development
of a planning rule.
Some of the Agency's past decisions have been challenged in court,
leading to judicial decisions interpreting the extent of Forest Service
discretion, or judgment, in managing National Forest System lands.
Courts have routinely held that the Forest Service has wide discretion
in deciding the proper mix of uses within any area of National Forest
System lands. In the words of the Ninth Circuit Court of Appeals, the
Agency's authority pursuant to the MUSYA ``breathes discretion at every
pore.'' (Perkins v. Bergland, 608 F.2d 803, 806 (9th Cir. 1979)).
Comment: Regulatory Flexibility Act (RFA) compliance. A respondent
questioned whether this rulemaking is in compliance with the RFA and
the rule's capacity to respond to the needs of small governments.
Response: The rule has been considered in light of the RFA, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1986 (5 U.S.C. 601 et seq.), as documented in the ``Forest Service
Planning--Proposed Rule: Opportunities for Small Entities Report'' (09/
22/2010). The Department has determined that the rule will not have a
significant economic impact on a substantial number of small business
entities as defined by the RFA. Therefore, a full regulatory
flexibility analysis is not required. The Department recognizes a large
number of small businesses use, extract, or otherwise benefit from
access to forest resources. The background information provided in the
``affected environment'' in the ``Efficiency and Effectiveness''
section of Chapter 3 in the PEIS describes contributions of NFS lands
to small rural and wildland dependent communities, including
contributions to jobs and income.
The rule imposes no requirements on small or large entities, nor
does it impose requirements or costs on specific types of industries or
communities. Rather, the proposed rule sets out a planning process that
is designed to provide more opportunities for all affected parties to
collaborate in all phases of planning. These opportunities will
increase capacity to consider the needs and desires of small entities
and reduce the potential for adverse economic impacts. For example,
under the final rule, requirements for considering ecosystem
sustainability and contributing to social and economic sustainability
should facilitate restoration activities and help sustain economic
opportunities linked to local or rural communities. Further discussion
of compliance with RFA is found in this document under the heading
Proper consideration of small entities.
Comment: Cooperation beyond NFS boundaries. Some respondents were
concerned that the ``all lands'' approach is not within the Forest
Service's authority.
Response: The final rule provides the framework for the
development, amendment, or revision of land management plans for
national forests, grasslands, prairies, or other administrative units
of the NFS. It does not provide the Forest Service with authority to
make management decisions for lands that are not NFS lands or
activities that are not occurring on NFS units. The Department
recognizes that conditions, resources and the management of NFS lands
can influence, or be influenced by, the ecological, social and economic
conditions and management of non-NFS lands. In recognition of this
interaction, the final rule requires the responsible official to look
beyond the unit boundary and develop an understanding of management
issues on the plan area within the context of the broader landscape,
and coordinate with and encourage participation of other relevant land
or resource managers. These requirements are found in Sec. 219.4
(public participation), Sec. 219.6 (assessment), Sec. 219.8
(sustainability), Sec. 219.9 (diversity), and Sec. 219.10 (multiple
use) of the final rule.
Specific requirements that were brought up by respondents, such as
consultation or coordination with the U.S. Fish and Wildlife Service
for species listed under the Endangered Species Act of 1973 or with
State Air Quality Boards for air quality management under the Air
Quality Act, are addressed elsewhere in Agency regulation and policy.
The final rule does not include or reiterate existing direction
provided elsewhere.
Comment: Public input on subsequent planning directives. Some
respondents felt the development of the planning directives should be
open to public comment.
Response: It is the intent of the Department that the Agency
continue to move forward with the open and collaborative approach taken
to developing the proposed and final rules. The Agency will provide a
public comment period for the planning directives.
Efficiency and Effectiveness Comments on the Proposed Rule
Comment: Process. A respondent said there are too many mandates in
the rule for the responsible official to follow, thus making the
proposed rule burdensome and difficult to implement. Another respondent
felt the amount of process requirements and paperwork in the proposed
rule would slow down the planning process.
Response: The final rule uses an adaptive management framework that
will facilitate an efficient and implementable planning process.
Overall, there are fewer procedural requirements in this final rule
than were required by the 1982 planning procedures, and the Agency
expects that individual plans will take less time and cost less money
to complete. There are a number of analysis and procedural requirements
under the 1982 Planning Rule that will no longer be required under the
final rule, which will save considerable time, effort, and money. The
1982 planning rule places a great deal of emphasis on using economic
analyses to find the solution to planning
[[Page 21186]]
problems and challenges. However, the final rule emphasizes public
participation and science. Examples of requirements from the 1982 rule
not included in the final are: planning criteria, required benchmark
alternatives as part of the analysis of the management situation, the
projections of demand using both price and non-price information,
alternative criteria including Resources Planning Act Program
alternative, present net value analysis, comparison of final plan to
maximizing present net value alternative, identification of the
management intensity for timber production for each category of land
which results in the largest excess of discounted benefits less
discounted costs, vegetation management practices chosen for each
vegetation type and circumstances, and projections of changes in
practices for at least four decades.
The framework will facilitate more collaboration with the public
and an efficient amendment process. The rule allows administrative
changes to plan content other than plan components to help the
responsible official adapt to changing conditions, while requiring the
responsible official to notify the public.
Comment: Significance of the rule. Some respondents felt that the
Forest Service fails to address the rule as ``significant'' under E.O.
12866;
Response: The proposed rule was designated as significant by the
Office of Management and Budget and, therefore subject to the Office of
Management and Budget review. The Agency reviewed this proposed rule
under the Department procedures and Executive Order (E.O.) 12866 issued
September 30, 1993, as amended by E.O. 13563 on Regulatory Planning and
Review (76 FR 3821 (Jan. 21, 2011)). The Agency prepared two Cost
Benefit Analysis reports (Jan. 25, 2011 for the proposed rule, Nov. 17,
2011 for the final rule). The reports discuss the regulatory impact
analysis requirements associated with E.O. 12866 and 13563 and OMB
circulars. In comparison to the ``no action'' alternative, which would
continue to use the 1982 procedures currently allowed under the
transition provisions of the 2000 rule, the final rule is not
considered an economically significant rule.
Comment: Cost-benefit analysis. Some respondents felt that the
Forest Service did not account for a sufficient range of costs and
benefits, including the costs, benefits, and economic impacts resulting
from implementation of revised or new plans.
Response: The analysis in the ``Efficiency and Effectiveness''
section of the DEIS and final PEIS focused primarily on evaluations of
programmatic planning efficiency. Additional details about the
potential for specific planning costs and cost effectiveness to change
under the final rule is provided in the final PEIS and Appendix A of
the Cost Benefit Analysis Report (Nov. 17, 2011) for the final rule.
Although overall planning costs for the Agency under the new rule are
not projected to be substantially different from the 1982 rule, the
projected cost per plan is expected to be lower than under the 1982
rule, the time it takes to revise a plan is projected to be shorter,
and it is expected that more plans will be revised in a 15-year period.
In addition, it is anticipated that units will have greater capacity to
maintain the currency and reliability of plans to meet the objectives
of the MUSYA, the NFMA, and the planning rule (Sec. 219.1(b)/(c)),
thereby improving the quality of plans and therefore the efficiency of
the planning process.
Comment: Economic impacts such as minerals. Some respondents felt
that the Forest Service failed to assess economic impacts that reflect
renewable and non-renewable resource sectors (for example, minerals) as
well as other sector-specific impacts.
Response: Economic impacts in terms of numbers of jobs and labor
income supported by NFS lands, by program, are provided for 2009 in
Appendix M of the final PEIS, accounting for direct, indirect, and
induced effects. Though economic impacts are not estimated, Appendix C
in the Cost Benefit Analysis report for the final rule (2011) provides
a limited qualitative discussion of potential indirect effects related
to timber, rangeland, and recreation opportunities under baseline
conditions. Jobs and income for minerals activity have been included in
baseline impact analysis, recognizing that minerals management is
administered jointly between the Department of the Interior and the
Forest Service. Impacts of the final rule to jobs within specific
industry sectors as compared to the other alternatives in the PEIS have
not been evaluated as these impacts cannot be determined in the absence
of on-the-ground project activity at the unit level.
Comment: Economic benefits of monitoring and ecosystem services.
Some respondents felt that the Forest Service should identify benefits
from comprehensive monitoring and provision of ecosystem services.
Response: The programmatic benefits of planning tasks or
requirements such as comprehensive monitoring (Sec. 219.12(b)),
development of plans to sustain multiple uses (Sec. Sec. 219.1(b) and
219.10), and accounting for ecosystem services when guiding unit
contributions to sustainability (Sec. 219.8(b)) are accounted for in
the discussion of contributions to overall planning efficiency in the
``Efficiency'' section of Chapter 3 of the final PEIS as well as the
``Cost Benefit Analysis'' for the final rule (2011).
As identified by the definition of ecosystem services in Sec.
219.19 of the final rule, benefits from provision of ecosystem services
are from provisioning services (for example, timber, forage, clean
water, and so forth), regulating services (for example, water
filtration, soil stabilization, carbon storage, and so forth),
supporting services (for example, nutrient cycling, pollination and so
forth), and cultural services (for example, spiritual, heritage,
recreational experience, and so forth).
As noted in the Cost Benefit Analysis for the final rule in the
``Efficiency and Effectiveness Impacts'' section, the programmatic
benefits of comprehensive monitoring include improved capacity to
gather information and reduce uncertainty for a number of integrated
and broader-scale conditions, trends, drivers, and stressors--including
capacity to detect effects of management within unit boundaries as well
as stressors beyond unit boundaries that affect (or are affected by)
unit conditions and action. Emphasis on coordination between unit and
broader-scale monitoring is expected to help reduce redundancy and
ensure information is complementary and consistent.
Comment: Collaboration costs. Some respondents felt that the Forest
Service did not properly identify that collaboration is not always
efficient or cost-effective, may not result in planning efficiency, and
that its use should be based on risk assessments.
Response: Collaboration and public participation costs are
projected to increase from approximately $1 million annually under the
1982 rule provisions, to $11 million annually under this final rule.
This increase reflects the requirements in the final rule for public
participation opportunities at various stages of planning. The final
rule also states that outreach and collaborative processes should be
used where feasible and appropriate (Sec. 219.4(a)). The Department
recognizes that gains in effectiveness and planning efficiency from
collaboration may vary across units and be reflective of existing
collaborative capacity. The Agency realizes collaboration cannot
guarantee a
[[Page 21187]]
successful planning process; however, the Department and the Agency
believe that the increased investment in public participation will
likely result in a more effective and ultimately more efficient
planning process, by building support early in the process. Details on
assumptions relevant to the consideration of the costs of collaboration
can be found in the final PEIS section on Efficiency in Chapter 3.
Comment: Cost of collaboration, diversity, and litigation. Some
respondents felt that the Forest Service omitted costs associated with
amendments, litigation, involvement by non-Federal participants, and
requirements related to viability and diversity so that these are not
accurately reflected or underestimated. Some respondents also felt that
the Forest Service projections about planning efficiency and cost
effectiveness gains are incorrect, particularly when considering
viability requirements, litigation, and use of collaborative processes.
Response: As noted in Sec. 219.13 of the final rule, the
requirements for amendments are simpler than requirements for plan
development or revision. The final rule allows amendments to be
proposed without completing an assessment. As a consequence, the amount
of resources associated with amendments is expected to be substantially
less than that required for plan development or revision in many cases.
Amendments allow for plans to be changed more quickly to respond to
changing conditions on the ground than plan revisions.
The Department expects that the adoption of new approaches under
the final rule for addressing species viability and diversity within
plan components, while recognizing local land and unit capabilities and
limits, will increase the feasibility as well as the effectiveness of
responding to species and ecosystem diversity, sustainability and
recovery needs. Further it is expected the final rule will increase
overall planning efficiency for both plan management planning and
project-level analysis.
Estimates of the Agency's costs do not account for litigation
costs. The costs of litigation are not included in the estimates of
annual average Agency costs in the ``Efficiency and Effectiveness''
section in Chapter 3 of the final PEIS. The sources of information used
to estimate planning costs, including past cost benefit analyses
completed for previous planning rules, did not include litigation
costs. Much of the litigation related to planning occurs at the project
level, and it is difficult to separate out litigation costs for land
management planning from other Agency expenses. Though litigation costs
are not included in the efficiency analysis, it is expected that the
pre-decisional objection process contained in subpart B of the final
rule and the investments in public participation will lower litigation
costs compared to the former post-decisional appeal process and fewer
opportunities for public input under the 1982 rule procedures.
Comment: Efficiency analysis during plan revision. Some respondents
felt it important that shifts in resources in the planning process
should not adversely affect or preclude analysis of impacts and
effects. They further emphasized that analysis of effects including
efficiency analysis are still needed to evaluate plan alternatives.
Some respondents felt the rule should outline a planning process that
reduces costs of planning and should require that plan alternatives be
economically efficient. A respondent suggested that the Agency keep the
goal of ``maximizing net public benefits'' from the 1982 planning
procedures because the respondent believes that goal is necessary to
insure consideration of economic and environmental aspects of renewable
resource management. The respondent suggested the planning rule require
evaluation of economic efficiency by a full accounting of all costs and
benefits (especially non-market) using dollars and present net value.
Response: The Department believes that the framework for adaptive
management provided in the final rule is efficient, effective, and will
reduce the cost and time needed for development, revision, and
amendment of individual plans. The final rule provides direction that
the planning process and plan components and other plan content should
be within the Agency's authority and the fiscal capability of the unit
(Sec. 219.1(g)).
Analyses will focus on outcomes and analysis of impacts and
effects. Analyses will in no way be eliminated or discouraged during
the planning process under this new rule. Under the NEPA process during
plan revisions and plan amendments, responsible officials will evaluate
potential tradeoffs among alternatives as they relate to ecological,
social, and economic sustainability and environmental effects.
The Department has chosen to emphasize a rule that supports
ecological, social, and economic sustainability as the primary goal for
management of NFS lands. The final rule does not include requirements
to demonstrate that plans will maximize net public benefits or require
valuation of economic efficiency or require present net value analysis
as the 1982 rule did. The Department believes the focus should be on
collaboration, science, and sustainability, rather than the extensive
analysis that was done under the 1982 rule procedures. The Department
decided the purpose and applicability of the final rule (Sec. 219.1)
is to produce plans under which the Forest Service will manage NFS
lands to sustain multiple uses in perpetuity while maintaining long-
term health and productivity of the land. Plans are intended to guide
management of NFS lands so they are ecologically sustainable and
contribute to social and economic sustainability while providing people
and communities with a range of benefits, consistent with MUSYA and
NFMA. Under the final rule, responsible officials have the discretion
to decide what analysis is useful to inform the public about the
effects of plans, plan amendments, and plan revisions.
Comment: Diverting of funds from projects. Some respondents felt
that the rule must weigh the resources devoted to planning against the
need to provide a foundation for management. In other words, excessive
planning costs divert funds away from land management and projects.
Response: Overall, the cost and time of completing an individual
plan, revision, or amendment is expected to be less than that needed
using the 1982 rule procedures. Under the final rule the Department:
(1) Applies flexibility within a clearly defined national-level
framework, and (2) requires plans to be developed in a more cooperative
context with both community and scientific involvement, thereby
building stakeholder trust. In addition, as compared to the 1982 rule,
the final rule changes the planning process and reallocates resources
to improve the currency, reliability, and legitimacy of plans. This
attention to building support early and throughout the process is
intended to improve the effectiveness of plans and the Agency's ability
to implement projects developed under plans.
Comment: Non-market values. Some respondents felt that the rule
should require the need to determine non-market values to comply with
NFMA requirements to consider economic aspects of various systems of
renewable resources.
Response: The NFMA requires a planning rule to insure consideration
of the economic and environmental aspects of the various systems of
renewable resource management (16
[[Page 21188]]
U.S.C. 1604(g)(3)A). The rule requires consideration of economic
aspects in the requirements for an assessment and when developing plan
components. However, the NFMA does not require the responsible official
to determine non-market values or to quantify non-market benefits.
Because of the difficult nature of quantifying and valuing non-market
goods and services, the Department has decided not to require those
calculations as a part of planning under the final rule. The rule
requires plan components to contribute to economic sustainability,
which includes consideration of market and non-market benefits.
Additionally, in a number of sections, the rule requires consideration
of ecosystem services and multiple uses, including provisioning,
regulating, and cultural services, all of which involve numerous non-
market goods and services (for example, Assessment--Sec. 219.6(b);
Social and economical sustainability--Sec. 219.8(b); and Multiple
use--Sec. 219.10(a)). These requirements, in combination with public
participation early and throughout the planning process (Sec. 219.4),
are expected to improve Agency capacity to acknowledge the relative
values of both market and non-market goods and services. Under NEPA
requirements, the responsible official will carry out effects analyses
for significant issues and the environmental documents will discuss the
comparative benefits and tradeoffs associated with non-market ecosystem
services.
Comment: Pilot testing. One respondent noted that the rule should
be pilot tested on a sample of units.
Response: The Agency intends on phasing in the implementation of
the new rule by starting several plan revisions in 2012. This initial
phase of implementation will provide opportunities for the Agency to
adapt to and refine directives and technical advice for planning under
the new rule. Units selected for the initial phase of implementation of
the final rule represent a broad spectrum of conditions and are
geographically representative. The final rule is intended to provide a
flexible planning framework that allows for continuous learning and
improvement in implementation.
Comment: Budget shortfalls. Some respondents felt that the rule
should contain guidance for planning in the event of budget shortfalls.
Response: Uncertainties at all levels of decisionmaking, due to
changing conditions outside the Agency's control as well as budget
allocations, will affect implementation. These uncertainties also
influence anticipated outcomes of the rule (see Chapter 3 of the final
PEIS, ``Staged Decisionmaking and Environmental Analysis''). It is not
appropriate to give guidance about what planning activities may be
reduced in the event of budget shortfalls in the national planning
rule, since budgets, staffing, program emphasis, and planning needs
differ among the units. However, the final rule does provide direction
that the planning process and plan components and other plan content
should be within the Agency's authority and the fiscal capability of
the unit (Sec. 219.1(g)).
Comment: Budget expectations. Some respondents felt that the rule
should require estimates of budget expectations in analysis of
efficiency and effectiveness, and plan alternatives.
Response: The final rule recognizes potential financial constraints
by requiring the responsible official to ensure that the planning
process, plan components, and other plan content be within the fiscal
capability of the unit (Sec. 219.1(g)). In the context of developing
alternative plan components, Sec. 219.7(e)(1)(ii) of the rule states
that ``Objectives should be based on reasonably foreseeable budgets.''
Also the final rule sets out the requirements for developing plan
monitoring program within the financial and technical capabilities of
the Agency (Sec. 219.12(a)(4)(ii)). The effects of plan alternatives
such as budgetary effects will be disclosed when preparing an
environmental impact statement for each new plan or plan revision.
Comment: Secured appropriations. Some respondents felt that a lack
of secured appropriations for planning rendered the rule ineffective.
Some respondents felt that future budgets are unlikely to provide full
funding for planning.
Response: If severe reductions or elimination of funding for land
management planning were to occur, it would delay or reduce the
Agency's ability to amend and revise plans. It is important to note
that the estimated costs for the new rule (Table 6 in the final PEIS)
are within the historic range of aggregate planning, inventory, and
monitoring annual budgets (1995-2010).
Comment: Economic analysis for plan revisions. Some respondents
felt that the rule should require the NEPA analysis for the plan to
include a fiscal analysis of each alternative's implementation and
mitigation costs and require that the cost of inspections, enforcement,
and monitoring be included in the plan NEPA analysis. Several
respondents felt that the planning rule should include a requirement
for explicit disclosure of a variety of costs and benefits of Agency
actions to more accurately compare plan alternatives and plan
components. Some respondents felt that the planning rule must require
the estimates of present net value (PNV) for plan alternatives and
projects and include all costs and benefits. Some respondents felt that
the planning rule must require that the dollar cost of impacts on non-
timber industries be estimated and included in estimates of PNV.
Response: Section 219.5(a)(2)(i) of the final rule states that a
new plan or plan revision requires preparation of an environmental
impact statement. The NFMA gives considerable discretion to the Agency
when considering physical, economic, and other pertinent factors. The
Department does not want the planning rule to prescribe specific
processes for assessing and evaluating economic efficiency. Cost-
benefit analyses, or net present value estimation, are not required
when evaluating plan alternatives; however, such an analysis
(quantitative and/or qualitative) may be useful in some cases to
satisfy the NEPA objectives (42 U.S.C. Sec 4331, 101 and 102(2)) and to
demonstrate fulfillment of MUSYA goals (for example, ``management of
all the various renewable surface resources of the national forests so
that they are utilized in the combination that will best meet the needs
of the American people;'' (16 U.S.C. 531(a))). The Forest Service
handbook for NEPA (FSH 1909.15, chapter 20, section 22.32) states that
if a cost benefit analysis is being considered for a proposed action
(for example, proposed plan revision), it must be incorporated by
reference or appended to the environmental impact statement as an aid
in evaluating the environmental consequences. The Forest Service
Handbook (FSH 1909.15.section 22.32) as well as NEPA regulations (40
CFR 1502.23) state that for purposes of complying with the [NEPA], the
weighing of the merits and drawbacks of the various alternatives need
not be displayed in a monetary cost-benefit analysis and should not be
when there are important qualitative considerations. The Handbook and
NEPA regulations also state that an environmental impact statement
should at least indicate those considerations, including factors not
related to environmental quality, that are likely to be relevant and
important to a decision. Those considerations and factors may include a
variety of quantified or qualitative descriptions of costs and benefits
that are linked to significant issue determinations for a particular
forest plan. The Department requires that land management plans will be
[[Page 21189]]
within the fiscal capability of the unit (Sec. 219.1(g)). The rule
requires that objectives be based on reasonably foreseeable budgets
(Sec. 219.7(e)(1)(ii)) and that the monitoring program be within the
financial and technical capabilities of the Agency (Sec.
219.12(a)(4)(ii)). Clarifications about disclosure of costs and
benefits, as well as use of cost-benefit (or PNV) analysis are more
appropriately included in the Agency directives.
Comments: Collaboration costs. Many respondents supported public
participation opportunities in the decisionmaking process. Some
respondents felt collaboration will not be cost effective. Some felt
that coordination, as mandated by law, is effective and will save time
and expense in planning, implementation, and management. They said
increased costs for collaboration are foreseeable. Some respondents
felt the assumptions that collaboration will reduce monitoring costs
and bring broader support and resolution of issues with their critics
were faulty. They felt the final PEIS should explain how collaboration
will lead to cost savings and document savings expected from each
alternative.
Response: The Department believes that involving the public early
on through a participatory, open, and meaningful process is the best
way to approach planning. The final rule sets out a planning process
that is designed to provide more opportunities for the public to
collaborate with the Agency and to become more involved in all phases
of planning, including monitoring, assessment, and development of
alternatives for land management plan revisions or amendments. Section
219.4 of the final rule requires the responsible official to engage the
public in early and meaningful opportunities for participation during
the planning process and to coordinate with other public planning
efforts, including State and local governments. However, the final rule
gives the responsible official discretion to tailor the scope, scale,
and types of participation opportunities to be congruent with the need
and level of interest, subject to the requirements of section 219.4.
Collaborative processes would be used where feasible and appropriate.
The final PEIS does not demonstrate that collaboration will lead to
Forest Service cost savings in planning. Because of the public
participation and collaboration throughout the planning process, the
Department expects that the cost for collaboration and engaging the
public during the planning process would be higher than that under the
1982 procedures. However, it is anticipated that overall planning
efficiency will be improved as other planning activities such as
analyzing and revising plan components are anticipated to be
streamlined. It is also expected that increased participation and
collaboration throughout the planning process will increase support for
eventual plan implementation.
Comment: Jobs and income. Some respondents felt that the proposed
rule could have a significant effect on jobs, labor income, production,
and competition of a particular resource during plan revision and plan
amendment.
Response: The Department recognizes that plans developed, revised,
or amended under the final rule will guide projects that could in turn
affect distribution of employment, income, and payments to local
governments. Impacts to jobs within specific industry sectors due to
the final rule compared to the other alternatives have not been
evaluated in detail as these impacts cannot be determined in the
absence of on-the-ground project activity at the unit level. Direct
effects on the levels of goods, services, and uses to which NFS lands
contribute are the end-results of on-the-ground projects or activities.
The effects of plan proposals as well as proposed projects will
continue to be evaluated in accordance with NEPA; impacts to
employment, income, and payments will likewise continue to be evaluated
as appropriate to the need to address plan or project-specific
significant issues. The Department does not want the planning rule to
prescribe specific processes for assessing and evaluating economic
effects. Such direction, guidance, advice, or approaches for effects
analysis in general are found in the Agency directives (for example FSM
1970 and FSH1909.17).
Comment: Site-specific project costs. Some respondents felt that
the Agency incorrectly assumes that the site-specific project costs are
not affected by the proposed rule.
Response: The Agency did not assume that the site-specific project
costs are not affected by the proposed rule. However, the proposed rule
cost and benefit analysis did not estimate the effects of the rule on
site-specific projects developed under land management plans, because
site-specific project costs are a function of unknown future site-
specific plan or project proposals occurring under new, revised, or
amended plans under the final rule; it is, therefore, not possible to
estimate or characterize changes in project-specific costs.
Comment: Least burden to society. Some respondents felt the Forest
Service should develop the rule in a way that imposes the least burden
on society, businesses, and communities.
Response: The Department believes that the final rule supports
management of the NFS to contribute to social and economic
sustainability. The rule does not directly regulate individuals,
individual businesses, or other entities such as local or State
governments. Impacts to small entities are addressed in the Regulatory
Flexibility Analysis (as summarized in the Regulatory Certifications
section of the preamble for the final rule).
Comment: Costs of cumulative regulations. Some respondents felt the
Forest Service should consider the costs of cumulative regulations.
Response: The potential effects of the rule in combination with
other broad Agency actions and strategies (for example, roadless rules,
strategic plans and other Agency goals, NEPA procedures, transition to
implementing the final rule, management planning direction by other
agencies, and collaboration) are presented in the ``Cumulative
Effects'' section of the final PEIS.
Comment: Costs to States (Federalism). Some respondents felt the
Forest Service incorrectly concludes that the rule will not impose
direct or compliance costs on States (that is, Federalism).
Response: Executive Order 13132 (that is, Federalism) establishes
requirements the Federal Government must follow as it develops and
carries out policy actions that affect State or local governments. The
Department concludes that the rule would not impose compliance costs on
the States (or local governments) and would not have substantial direct
effects on the States.
Section-By-Section Explanation of the Final Rule
The following section-by-section descriptions are provided to
explain the approach taken in the final rule to NFS land management
planning.
Subpart A--National Forest System Land Management Planning
Section 219.1--Purpose and Applicability
This section of the final rule describes the purpose of the rule
and its applicability to units of the NFS. This section affirms the
multiple-use, sustained-yield mandate of the Forest Service, and states
that the purpose of this part is to guide the collaborative
[[Page 21190]]
and science-based development, amendment, and revision of land
management plans that promote the ecological integrity of national
forests and grasslands and other administrative units of the NFS. The
NFMA requires the Agency to have a planning rule developed under the
principles of the Multiple-Use Sustained-Yield Act of 1960 (MUSYA). The
planning rule sets requirements for land management planning and
content of plans and applies to all units in the NFS.
The requirements in the final rule should increase Agency and plan
area capacity for adapting management plans to new and evolving
information about stressors, changing conditions, and management
effectiveness. The Department's intent is for responsible officials to
use the planning framework to keep plans and management activity
current, relevant, and effective.
Section 219.1--Response to Comments
Many comments on this section focused on consistency with MUSYA,
compliance with or applicability of valid existing rights, treaties,
and applicable laws, and the cost of the process for implementing the
rule. The Department modified the wording of the proposed rule to move
a reference to ``ecosystem services'' from paragraph (a) of this
section to paragraph (c); add at paragraph (c) ``clean air'' as a
benefit provided by ecosystem services and replace the term ``healthy
and resilient'' with ``ecological integrity;'' move direction about the
Forest Service Directives System previously in paragraph (d) of this
section in the proposed rule to Sec. 219.2(b)(5); and make other
clarifications for readability. These changes are not changes in
requirements; they are just clarifications and reorganizations.
The Department added direction at paragraph (g) of this section to
ensure that the planning process, plan components and other plan
content are within Forest Service authority, the inherent capability of
the plan area, and the fiscal capability of the unit. In the proposed
rule we had similar wording in Sec. Sec. 219.8 through 219.11. Adding
this requirement in paragraph (g) is a change because the requirement
now applies more broadly to the process and content requirements of the
final rule.
Comment: Ecosystem services. Some respondents objected to the use
of ``ecosystem services'' in Sec. 219.1(b) and throughout the rule.
One respondent felt the term diluted the congressionally honored and
sanctioned ``multiple use'' mission of the national forests.
Response: The use of the term ``ecosystem services'' has been
removed from Sec. 219.1(b), added to Sec. 219.1(c), and revised
throughout the final rule; however, the final rule retains reference to
``ecosystem services.'' The final rule states that plans must ``provide
for ecosystem services and multiple uses'' instead of ``provide for
multiple uses, including ecosystem services'' as it was stated in the
proposed rule. The Department believes this revised wording is
consistent with the MUSYA, which recognizes both resources and
services. The MUSYA requires the Forest Service is to ``administer the
renewable surface resources of the national forests for multiple use
and sustained yield of the several products and services obtained
therefrom.'' (16 U.S.C. 529). The Act defines ``multiple use'' as ``the
management of all the various renewable surface resources of the
national forests so that they are utilized in the combination that will
best meet the needs of the American people; making the most judicious
use of the land for some or all of these resources or related
services'' (16 U.S.C. 531(a)). The Department believes MUSYA
anticipated changing conditions and needs, and the meaning of ``several
products and services obtained'' from the national forests and
grasslands incorporates all values, benefits, products, and services
Americans know and expect the NFS to provide. Resources like clean air
and water are among the many ecosystem services these lands provide.
Comment: Objective of planning. Some respondents felt the MUSYA
refers expressly to five tangible objectives for forest management
(recreation, range, timber, watershed, wildlife and fish, and
wilderness), and does not include intangibles such as ``spiritual
sustenance.'' They felt intangibles should be removed from objectives.
Response: The Department believes the mandate under the NFMA and
MUSYA is not exclusive to a single resource or use, and that sustained
yield applies to all multiple use purposes, including outdoor
recreation, range, timber, watershed, wildlife and fish, and
wilderness. Development of balanced plans for national forests and
grasslands is a complex undertaking, and often there are diverse
opinions on the desired conditions and objectives set in these plans.
The rule sets up a process so individual forests and grasslands are
managed with a balanced approach to best meet the needs of present and
future generations of Americans. The Department recognizes Americans
expect a range of benefits and services from the National Forest
System, which can include both tangible objectives and intangible
benefits. Under Sec. 219.4, the final rule sets forth an open process
for public collaboration, participation, and coordination to inform
desired conditions and objectives for NFS lands. The words ``spiritual
sustenance'' in Sec. 219.1(c) of the proposed rule have been changed
to ``spiritual[hellip]benefits'' in this final rule because the word
``sustenance'' was confusing.
Comment: Valid existing rights. A respondent felt the rule should
require plans to expressly state that their provisions cannot affect
valid existing rights established by statute or legal instrument.
Response: Whether the plan expressly states it or not, a land
management plan cannot affect treaty rights or valid existing rights
established by statute or legal instruments. For clarity, the final
rule acknowledges this fact in Sec. 219.1(d).
Comments: Inclusion of other laws. Some respondents requested that
the list of laws at Sec. 219.1 include the ANILCA, the Alaska Native
Claims Settlement Act, the FLPMA of 1976, the General Mining Law of
1872, the National Heritage Preservation Act, the Tongass Timber Reform
Act, amongst others.
Response: The list of laws in Sec. 219.1 is not intended to be a
complete list of laws and regulations requiring Agency compliance. The
Department did not choose to include an exhaustive list of applicable
laws and regulations, as the Agency is obligated to comply with all
applicable laws and regulations regardless of whether it is referenced
in the text of the final rule. All plans and planning decisions must
comply with applicable laws and regulations.
Comment: Use of fiscal capability. Some respondents felt the MUSYA
does not allow the fiscal capability or economic analysis to limit
management as discussed in Sec. Sec. 219.10 and 219.11 of the proposed
rule, while others felt these concepts should be applied to all
requirements.
Response: Congress determines the annual fiscal allocation to the
Agency. The Department concludes that responsible officials must
constrain the development of management direction within the plan and
planning process within a unit's expected fiscal capability. The
Department came to this conclusion because if a responsible official
develops a plan beyond a unit's fiscal capability, then management
towards the plan objectives and thus plan desired conditions will not
be realistic or possible. The Department removed the phrase ``and the
fiscal capability of the unit'' from Sec. 219.10 and Sec. 219.11, and
added at Sec. 219.1(g) that
[[Page 21191]]
the responsible official shall ensure that the planning process, plan
components and other plan content are within Forest Service authority,
the inherent capability of the plan area, and the fiscal capability of
the unit. This requirement at Sec. 219.1(g) applies to all sections of
the rule, including sections 219.8, 219.9, 219.10, and 219.11.
Section 219.2--Levels of Planning and Responsible Official
Planning occurs at three levels--national strategic planning, NFS
unit planning, and project or activity planning. Section 219.2 of the
final rule describes these levels of Agency planning, identifies the
responsible official, and describes specific attributes and
requirements for unit-level planning. This section also provides the
basic authorities and direction for developing, amending, or revising a
plan. In addition, it identifies the responsibilities of the Chief for
oversight, leadership, and direction.
Some people wanted to see very detailed requirements in the rule,
such as monitoring methods and protocols, while others emphasized the
need to keep the rule simple, so it would endure and could be
implemented across different landscapes within the NFS. This section
ensures that the Agency will establish additional needed details in the
Directives for effective implementation of the planning rule, while
allowing rule wording to remain relevant even as conditions change.
Section 219.2--Response to Comments
Many comments on this section focused on the level of the
responsible official, the appropriate scale for planning, and
consistency of plans across the NFS. The Department modified the
wording from the proposed rule to address concerns raised by the public
and other regulatory agencies that more specific requirements were
needed to ensure consistent implementation of the rule. The Department
moved wording formally in section 219.1 of the proposed rule to this
section and added paragraph (b)(5) that requires the Chief:
(i) To establish direction for NFS land management planning under
this part in the Forest Service Directives System (what was formerly
Sec. 219.1(d) in the proposed rule);
(ii) To establish and administer a national performance oversight
and accountability process to review NFS land management planning under
this part; and
(iii) To establish procedures in the Forest Service Directives
System (Directives) to guide how data on various renewable resources,
as well as soil and water will be obtained to respond to 16 U.S.C.
1604(g)(2)(B).
The addition of the oversight requirement in (ii) is a minor change
in requirements in response to the comments received. The other changes
are not changes in requirements, they are just clarifications.
Comment: Level of responsible official and consistency with
regional or national programs. Some respondents felt the proposed
change from regional forester to forest supervisor for the level of
responsible official would make the plan more responsive to local
situations. Others felt this change would result in inconsistencies
across unit boundaries, limit collaborators, and reduce the
accountability provided by a higher level responsible official. Several
respondents felt the discretion given to local responsible officials in
the proposed rule could lead to individual forest and grassland level
plans that are inconsistent with neighboring unit plans and with
regional or national programs.
Response: The responsible official will usually be the forest or
grassland supervisor, who is most familiar with the resources, issues,
and the people relevant to and interested in the unit. However, Sec.
219.2(b)(3) provides the option for higher-level officials to act as
the responsible official for a plan, plan amendment, or plan revision
across a number of plan areas. Regardless of what level they are, the
responsible official must develop, amend, or revise plans within the
framework set out by this final rule and is accountable for compliance
with the rule and the multitude of relevant laws and policies. To
ensure compliance, the final rule wording identifies in Sec. 219.2(b)
the Chief as responsible for leadership in carrying out the NFS land
management planning program, establishment of planning direction, and
administration of a national oversight process for accountability and
consistency.
There are also a number of places in the final rule that call for
coordination with other staff in the Agency, including the appropriate
research station director. The Department anticipates that the regional
forester and regional office planning and resource specialists will
continue to be involved and provide an additional level of oversight,
including reviewing draft and final products developed during the
planning process and participating in the development of those
products. Regional office engagement will help to provide consistency
in interpretation and implementation of the planning rule and other
Agency planning requirements on units within the region.
The final rule includes other requirements at Sec. 219.4 for
public participation and coordination with other planning efforts. The
final rule also requires in Sec. 219.15 that other resource plans be
consistent with the plan components. The Department anticipates that
the final rule will be implemented in the context of a mosaic of other
Agency programs, for example, the Climate Change Roadmap and Scorecard,
the Watershed Condition Framework, and the Sustainable Recreation
Framework. The Department expects that these programs and requirements
will be mutually supportive and will contribute to good land
management.
Comment: Scale of planning. Some respondents expressed different
opinions about the scale of planning. Some suggested larger or smaller
scales than the proposed administrative unit level. One respondent felt
the rule should consider a level of planning by resource. Some
respondents felt the rule should require use of the U.S. Geologic
Survey 5th field hydrologic unit as the minimum size needed to conduct
ecological coarse-filter assessments.
Response: The final rule allows planning at the most appropriate
scale to address issues and resource concerns specific to that unit.
The final rule does set forth requirements to consider other scales
while developing plans. Section 219.7(f)(1)(ii) requires the
responsible official to describe the distinctive roles and
contributions of the plan area within the context of a broader
landscape. Section 219.7(f)(1)(i), specifically discusses priority
watersheds. Section 219.7(d) requires the use of management or
geographic areas for a smaller scale geographic context and
identification of management requirements that may be needed at the
smaller scale. The final rule also provides that two or more
responsible officials may undertake joint planning for their units.
Planning at the resource level would not comply with the NFMA
requirements for interdisciplinary approach to achieve integration of
all resources to achieve integrated consideration of physical,
biological, economic, and other sciences to develop one integrated
plan.
Requirements for broader-scale assessments and assessments for each
individual watershed are not included in the final rule. Adding these
requirements would add more preliminary steps to planning that may
further delay completion of plan revisions or amendments and may not
[[Page 21192]]
be necessary for the planning process. The assessments envisioned in
the planning rule are focused on gathering and evaluating existing
information relevant to the plan or the specific plan area.
The 1982 rule required the preparation of a regional guide and a
planning process for the development of that guide. The final rule does
not include a requirement for regional planning. After several years of
developing and using regional guides, the Agency found that they added
an additional and time-consuming layer of planning that often delayed
progress of unit planning. Regional plans also tended to remain static
and did not change as new information or science became available.
Comment: Relationship of plan decisions to project-level plans and
decisions. Several respondents felt the relationship between plan
decisions and subsequent project-level decisions was unclear. A
respondent felt the rule should explicitly state a programmatic
decision is being made for the planning unit.
Response: The final rule sets the framework for the development,
amendment, and revision of unit plans: The requirements set forth in
the final rule are for plans, not for projects or activities that are
developed under the plan. Section 219.15 requires projects and
activities carried out under the plans developed under the final rule
to be consistent with the plans. Unit plans may establish constraints
on projects and identify possible activities; however, plans do not
authorize activities or projects. Forest Service NEPA procedures must
be followed when developing, revising, or amending plans. In addition,
the Forest Service NEPA procedures must be followed for proposed site-
specific projects or activities developed under the requirements of the
unit plan. Section 219.15(d) of the final rule identifies how project
and activities must be consistent with plan components.
Comment: Repeating of laws and regulations. Several respondents
felt proposed Sec. 219.2(b)(2) should clearly state plans ``may
reference, but should not repeat'' laws, regulations, and so forth.
Response: The final rule does not prohibit referencing laws,
regulations, or Forest Service directives if the responsible official
feels that doing so will add clarity.
Section 219.3--Role of Science in Planning
This section requires that the responsible official use the best
available scientific information to inform the planning process and
plan decisions, and provides requirements for documenting the use of
the best available scientific information (BASI). The intent of this
requirement is to ensure that the responsible official uses BASI to
inform planning, plan components, and other plan content, that
decisions are based on an understanding of the BASI and that the
rationale for decisions is transparent to the public. The Department
also expects that this requirement will increase the responsible
official's understanding of risks and uncertainties and improve
assumptions made in the course of decisionmaking.
Section 219.3--Response to Comments
Many people provided comments on this section of the proposed rule.
Most comments focused on whether or not to include a requirement for
use of the BASI, discretion about how science should be used, and the
potential procedural burdens created by this requirement. The
Department modified the wording of the proposed rule as follows: (1) To
clarify how scientific information is to be used in the planning
process; (2) to clarify the level of discretion the responsible
official has in using scientific information; and (3) to manage the
potentially burdensome requirements for documentation.
The Department clarified how BASI will be used in the planning
process; changing the wording from ``the responsible official shall
take into account the best available scientific information,'' to ``the
responsible official shall use the best available scientific
information to inform the planning process.'' This clarification is
consistent with the Department's intent as described in the preamble to
the proposed rule. This clarification is in response to public comments
expressing concern that the proposed rule wording would allow the
responsible official to ignore best available scientific information.
This wording makes clear that the responsible official must use the
BASI to inform the process and decisions made during the planning
process.
The Department also modified the requirement that the responsible
official ``determine what information is the most accurate, reliable,
and relevant to a particular decision or action'' to a requirement that
the responsible official ``determine what information is the most
accurate, reliable, and relevant to the issues being considered.'' This
change focuses the requirement on the issues being considered, because
the underlying issues form the basis for decisionmaking, and are the
appropriate focus for the requirement to ensure that the responsible
official uses scientific information to inform plan-related decisions.
The Department eliminated paragraphs (a), (b), and (c) of Sec.
219.3 of the proposed rule. The remaining paragraph was modified to
require the responsible official to document how the best available
scientific information was used to inform the assessment, the plan
decision, and the monitoring program. Changing these requirements is
responsive to public comments about the process associated with meeting
the requirements of this section.
Comment: Best available scientific information. A respondent felt
the term ``best available scientific information'' used in the proposed
rule is value laden and implies judgment that cited scientific
information is potentially superior to other scientific information on
the topic. This respondent felt using the term would put responsible
officials in the position of choosing one scientist over another.
Additionally, the concern was expressed that the lack of a clear
definition of ``best available scientific information'' in the rule
could allow a responsible official to use poorly constructed or
subjective information to inform planning decisions. Still other
respondents felt the proposed rule was unclear on who should determine
what the best available scientific information is.
Response: The Department decided to retain the term ``best
available scientific information'' (BASI) from the proposed rule, and
to require that such information be used to inform the assessment, the
planning process, and plan components and other plan content, including
the monitoring program. The responsible official must determine what
information is the most accurate, reliable, and relevant with regard to
the issues being considered. In some circumstances, the BASI would be
that which is developed using the scientific method, which includes
clearly stated questions, well designed investigations, and logically
analyzed results, documented clearly and subjected to peer review.
However, in other circumstances the BASI for the matter under
consideration may be information from analyses of data obtained from a
local area, or studies to address a specific question in one area. In
other circumstances, the BASI could be the result of expert opinion,
panel consensus, or observations, as long as the responsible official
has a reasonable basis for relying on that information.
The Department recognizes often there is uncertainty in science,
and
[[Page 21193]]
there may be differing or inconclusive scientific information.
Different disciplines, including the social and economic sciences as
well as ecologic science, may provide scientific information that is
the best available for the issues being considered. Gathering a range
of scientific information and acknowledging potential uncertainties is
critical to adequately inform the responsible official as well as the
public during the planning process.
The Agency already has a fundamental legal requirement to consider
relevant factors, including the relevant scientific information, and
explain the basis for its decisions. The Department included this
section in the rule, with its explicit requirements for determining and
documenting the use of the best available scientific information, to
inform the planning process and to help to ensure a consistent approach
across the National Forest System.
To respond to comments about the level of documentation for
individual units, the requirements for documentation were changed from
the proposed rule. The Department eliminated paragraphs (a), (b), and
(c) of Sec. 219.3 of the proposed rule, and replaced them with the
requirement that the responsible official document how the best
available scientific information was used to inform the assessment, the
plan decision, and the monitoring program. Section 219.14(a)(4)
requires that the plan decision document must document how the best
available scientific information was used to inform planning, plan
components, and other plan content, including the monitoring program.
The remaining paragraph was modified to require the responsible
official to document how the best available scientific information was
used to inform the design of the monitoring program, rather than in
every monitoring report, because the monitoring results are scientific
information. In addition, the new documentation requirements call for
the responsible official to explain the basis for the determination,
and explain how the information was applied to the issues considered.
The Forest Service Directives System will contain further detail on
how to document the use of the best available scientific information,
including identifying the sources of data such as peer reviewed
articles, scientific assessments, or other scientific information. In
addition, the Forest Service Directives System will contain further
detail on the Forest Services' information quality guidelines.
Direction about science reviews may be found in Forest Service Handbook
1909.12--Land Management Planning, Chapter 40--Science and
Sustainability.
The final rule is consistent with USDA policy that requires
agencies to meet science quality standards when developing and
reviewing scientific research information and disseminating it to the
public. Also, the final rule is consistent with the recent Executive
Order 13563 (2011) that states ``when scientific or technological
information is considered in policy decisions, the information should
be subject to well-established scientific processes, including peer
review where appropriate.'' Responsible officials will rely upon the
USDA Office of the Chief Information Officer guidance to determine when
the Office of Management and Budget (OMB) Information Quality Bulletin
on Peer Review applies. USDA guidelines are found at http://www.ocio.usda.gov/qi_guide/index.html.
Comment: Weight of scientific information. Some respondents felt
the proposed rule allowed science to be weighed more heavily than other
relevant information. Some respondents felt the proposed rule allows
decisions to be made based on politics or special interests rather than
science. Some respondents felt the proposed rule requirement for the
best available science to be taken into account was not strong enough,
and suggested the rule require decisions to conform to the best
science. Other respondents felt the proposed rule made use of science
mandatory rather than discretionary.
Response: The Department never intended that the responsible
official could have the discretion to disregard best available
scientific information (BASI) in making a decision. To clarify the
Department's intent, the final rule requires the responsible official
to use the BASI to inform the planning process rather than take BASI
into account. While the BASI must inform the planning process and plan
components, it does not dictate what the decision must be: BASI may
lead a responsible official to a range of possible options. There also
may be competing scientific perspectives and uncertainty in the
science. Furthermore, scientific information is one of the factors
relevant to decisionmaking. Other factors include budget, legal
authority, local and indigenous knowledge, Agency policies, public
input, and the experience of land managers.
Comment: Funding for BASI. Some respondents felt the requirements
to use the best available scientific information were going to be too
financially burdensome. Other respondents suggest the term should be
removed from the rule as it would only create delays and legal
challenges.
Response: The Agency is already required to take relevant
scientific information into account in decisionmaking. The Agency
already has a fundamental legal requirement to consider relevant
factors, including relevant scientific information, and explain the
basis for its decisions.
This section is not intended to impose a higher standard for
judicial review than the existing ``arbitrary and capricious''
standard. The requirements of this final rule section are also separate
from those of the Council on Environmental Quality's NEPA regulations,
(40 CFR 1502.22(b)), which in some circumstances require the
responsible official to seek out missing or incomplete scientific
information needed for an environmental impact statement, unless the
costs of doing so are prohibitive. This final rule section does not
change that requirement. The requirements in section 219.3 are focused
on ensuring the responsible official uses the BASI that is already
available to inform the planning process. Thus, while an assessment
report or monitoring evaluation report may identify gaps or
inconsistencies in data or scientific knowledge, the final rule does
not impose the affirmative duty that the CEQ regulation applies to
EISs--that is, to engage in new studies or develop new information, or
to document that the costs of seeking new information are prohibitive.
Including this section in the rule, with its explicit requirements,
for determining and documenting the use of the BASI to inform planning
the planning process, will help to ensure a consistent approach across
the National Forest System that will lead to more credible and
supportable plan decisions.
Comment: Transparency of science used. Some respondents felt an
addition of a requirement for the disclosure of what science was being
used would enhance transparency.
Response: Section 219.3 of the final rule requires the responsible
official to document how the BASI was used to inform the assessment,
plan decision, and design of the monitoring program. Such documentation
must: identify what information was determined to be the BASI, explain
the basis for that determination, and explain how the information was
applied to the issues considered. This requirement will provide both
transparency and an explanation to the public as to how BASI was used
by responsible officials to arrive at their decisions.
Comment: Risk, uncertainty, and the precautionary principle. A
respondent
[[Page 21194]]
stated the words ``risk'' and ``uncertainty'' found throughout the
preamble and DEIS are missing from the rule itself. The respondent felt
the rule should include wording about risks and uncertainties and
require techniques for assisting responsible officials in evaluating
risks and uncertainties. Some respondents felt the rule should adopt
the ``precautionary principle'' in planning on the NFS to account for
uncertainty. One respondent also felt the wording ``lack of full
scientific certainty shall not be used as a reason for postponing a
cost-effective measure to prevent environmental degradation'' should be
added.
Response: The Department concludes that the adaptive management
framework of assessment, revision or amendment, and monitoring in this
final rule provides a scientifically supported process for
decisionmaking in the face of uncertainty and particularly under
changing conditions. The intent of this framework is to create a
responsive planning process and allows the Forest Service to adapt to
changing conditions and improve management based on new information.
Monitoring provides the feedback for the planning cycle by testing
assumptions, tracking relevant conditions over time, and measuring
management effectiveness.
The assessment report will document information needs relevant to
the topics of the assessment and the best available scientific
information that will be used to inform the planning process.
The science of risk management is rapidly evolving. To require
specific techniques or methodologies would risk codifying approaches
that may soon be outdated. The responsible official will inform the
public about the risks and uncertainties in the environmental impact
statements and environmental assessments for plans, plan revisions, and
plan amendments.
Comment: Climate change and climate science. Some respondents felt
the rule should require use of climate change science in
decisionmaking. Others felt the rule should address and implement
regulations for mitigation of climate change while others felt the rule
should not address climate change.
Response: The rule sets forth an adaptive land management planning
process informed by both a comprehensive assessment and the best
available scientific information. Section 219.6(b)(3)-(4) requires
responsible officials to identify and evaluate information on climate
change and other stressors relevant to the plan area, along with a
baseline assessment of carbon stocks, as a part of the assessment
phase. Section 219.8(a)(1)(iv) requires climate change be taken into
account when the responsible official is developing plan components for
ecological sustainability. When providing for ecosystem services and
multiple uses, the responsible official is required by Sec.
219.10(a)(8) to consider climate change. Measureable changes to the
plan area related to climate change and other stressors affecting the
plan area are to be monitored under Sec. 219.12(a)(5)(vi). Combined
with the requirements of the Forest Service Climate Change Roadmap and
Scorecard, these requirements will ensure that Forest Service land
management planning addresses climate change and supports adaptive
management to respond to new information and changing conditions.
Section 219.4--Requirements for Public Participation
This section of the final rule requires the responsible official to
provide meaningful opportunities for public participation throughout
the planning process. It gives direction for providing such
opportunities, including for outreach, Tribal consultation, and
coordination with other public planning efforts. The intent of this
section is to emphasize the importance of active public engagement in
planning and to provide direction for the responsible official to take
an active, modern approach to getting public input, including
recognition of the need for accessibility of the process and engagement
of all publics, the responsibility for Tribal consultation, and
engagement with other land managers as part of an all lands approach.
The outcomes of public participation can include a greater
understanding of interests underlying the issues, a shared
understanding of the conditions on the plan area and in the broader
landscape that provide the context for planning, the development of
alternatives that can accommodate a wide range of interests, and the
potential development of a shared vision for the plan area, as well as
an understanding of how and why planning decisions are made. Engaging
the public early and throughout the process is expected to lead to
better decisionmaking and plans that have broader support and
relevance.
Section 219.4--Response to Comments
Many comments on this section focused on the requirements for the
kinds and level of participation opportunities and outreach,
coordination with local and State governments and planning efforts, and
Tribal consultation. This section was reorganized and new paragraph
headings were assigned to increase clarity. Wording affirming that the
Forest Service retains decisionmaking authority and responsibility for
all decisions was moved from the definition of collaboration of the
proposed rule to paragraph (a) of this section. The Department also
listed State fish and wildlife agencies, and State foresters in
paragraph Sec. 219.4(a)(1)(iv) as illustrative examples of relevant
State agencies.
The Department modified the wording about trust responsibilities in
Sec. 219.4(a)(2) that was designated at Sec. 219.4(a)(5) of the
proposed rule. The proposed rule said: the Department recognizes the
Federal Government's trust responsibility for federally recognized
Indian Tribes. The final rule says: the Department recognizes the
Federal Government has certain trust responsibilities and a unique
legal relationship with federally recognized Indian Tribes. This change
was made to ensure accurate recognition of the relationship between the
Federal Government and federally recognized Tribes.
The Department deleted the phrase, ``to the extent practicable and
appropriate,'' from the end of paragraph Sec. 219.4(b) for
coordination with other public planning efforts, in response to public
comment. The change is intended to make clear that the requirements for
coordination with other public planning efforts have not been reduced
from previous rules. However, this change is not intended to require
the Agency's planning efforts to tier to, or match the timing of other
public planning efforts. These changes are not changes in requirements,
they are clarifications.
Comment: Specific requirements for public engagement. Some
respondents felt that the rule should allow responsible officials to
have the discretion to determine public outreach methods, while others
felt the rule should contain specific method and process requirements
for public engagement because vague requirements could result in courts
second-guessing whether the public participation was sufficient. Others
felt the public participation opportunities held during planning need
to be flexible and accommodate the people living and working in the
area. Others requested specific recreation clubs and organizations be
added to proposed Sec. 219.4(a)(2). A respondent felt the responsible
official should be required to identify other non-traditional means
[[Page 21195]]
of engagement and to identify in advance the participation of specific
populations in each area with historical and traditional connections to
the land, including forestry workers, their associations, and specific
communities who retain or wish to retain historic connections to the
land. Some respondents felt individuals and organizations engaged in
forest planning should be limited to either economic stakeholders or
those with an existing interest in forest management as the Forest
Service cannot make individuals or groups with no interest or economic
stake in national forests participate in forest planning, regardless of
the effort the Agency puts into targeted scoping.
Response: The rule requires the responsible official to engage and
encourage participation by a diverse array of people and communities
throughout the planning process. This includes those interested at the
local, regional, and national levels and covers all groups and
organizations that are interested in the land management planning
process. The Department recognizes the need to engage a full range of
interests and individuals in the planning process. The national forests
and grasslands belong to all Americans and not just those who have
economic or previously expressed interest. The Department concluded it
was important for the final rule to recognize that opportunities for
public participation in the planning process must be fair and
accessible, while recognizing and taking into account the diverse
interests, responsibilities, and jurisdictions of interested and
affected parties. The final rule does not require participation from
any specific group. The rule also allows flexibility in the methods of
offering opportunities for engagement, recognizing that the best way to
engage will vary at different times and in different places. The
responsible official has the discretion to determine the scope, timing,
and methods for participation opportunities necessary to address local,
regional, and national needs, while meeting the requirements of Sec.
219.4.
The planning procedures established for land management planning in
the Forest Service Directives System will also provide further
direction to ensure consistent implementation of the requirements of
the final rule.
Comment: Clarification on collaborative process. Some respondents
felt the rule should clarify when a collaborative process would or
would not be ``feasible and appropriate.'' A respondent felt the rule
should ensure public participation occurs when forest plans are revised
and amended. Some respondents felt their local Forest Service office is
already collaborating with the public and that the proposed rule would
discourage the unit from continuing with methods already working
locally.
Response: This final rule contains a balanced approach that
requires the responsible official to engage a diverse array of people
and communities throughout the planning process. Participation
opportunities must be provided throughout all stages of the land
management planning process, including during plan revision and
amendment.
The CEQ publication Collaboration in NEPA--A Handbook for NEPA
Practitioners at: http://ceq.hss.doe.gov/ntf/Collaboration_in_NEPA_Oct_2007.pdf, describes a spectrum of engagement, including the
categories of inform, consult, involve, and collaborate. Each of these
categories is associated with a set of tools, from traditional
activities such as notice and comment on the inform end of the
spectrum, to consensus building, or a Federal advisory committee on the
collaborative end of the spectrum. Because the term ``collaboration''
is often associated with only those activities on one end of the public
engagement spectrum, the Department chose to retain the term ``public
participation'' in the final rule to make clear that the full spectrum
of tools for public engagement can be used in the planning process.
Every planning process will involve traditional scoping and public
comment; in addition, the responsible official will determine the
combination of additional public participation strategies that would
best engage a diverse set of people and communities in the planning
process.
The final rule absolutely provides the flexibility to support the
use of already working processes, including existing collaborative
processes. Because the make-up and dynamics of the communities
surrounding each planning area differ, and because the level of
interest in decisionmaking may vary, based on the scope and potential
impact of the decision being contemplated, the responsible official
needs the flexibility to select the public participation methods that
would best meet the needs of interested people and communities. The
wording ``feasible and appropriate'' provides the responsible official
the flexibility needed to develop effective participation
opportunities, including using existing opportunities for
collaboration.
Planning procedures established in the Forest Service Directives
System will provide further guidance and clarification for how the
public participation requirements of the final rule will be
implemented.
Comment: Time and cost of public involvement. Some respondents felt
the proposed public participation requirements are cumbersome and
unrealistic in regards to time and cost and the ability for individuals
to fully participate. Others felt the public participation requirements
would not result in a more efficient planning process.
Response: The final rule directs the responsible official to take
the accessibility of the process, opportunities, and information into
account when designing opportunities for public participation,
precisely because individuals may vary in their ability to engage,
including in how much time and money they have to spend on
participating in the process. Likewise, the final rule directs the
responsible official to consider the cost, time, and available staffing
when developing opportunities for public participation that meet needs
and constraints specific to the plan area. This is to ensure that the
process is feasible and efficient. In addition, Sec. 219.1(g) requires
that the planning process be within the authority of the Forest Service
and the fiscal capability of the unit.
However, the rule does place a strong emphasis on developing
opportunities early and throughout the planning process, with costs of
planning projected to be redirected toward collaboration, assessment,
and monitoring activities and away from development and analysis of
alternatives, as compared to the 1982 procedures. The public
participation requirements are expected to improve plans and increase
planning efficiency in a variety of ways. Collaborative efforts during
the early phases of planning are expected to result in improved
analysis and decisionmaking efficiency during the latter stages of
planning; lead to improved capacity to reduce uncertainty by gathering,
verifying, and integrating information from a variety of sources;
reduce the need for large numbers of plan alternatives and time needed
for plan revisions; potentially offset or reduce monitoring costs as a
result of collaboration during monitoring; improve perceptions
regarding legitimacy of plans and the planning process; increase trust
in the Agency, and potentially reduce the costs of litigation as a
result of receiving public input before developing and finalizing
decisions. Overall, it is the Department's
[[Page 21196]]
view that investment in providing opportunities for public engagement
will lead to stronger and more effective and relevant plans.
Comment: Undocumented knowledge. A respondent felt the planning
process should take into account other forms of knowledge besides
written documentation, and this knowledge should be shared with all
interests and individuals throughout the planning process.
Response: The Department recognizes that other forms of information
besides written documentation, such as local and indigenous knowledge
and public experiences, should also be taken into account.
Opportunities for the public to provide information during the
assessment phase will help the responsible official to capture other
forms of knowledge, and to reflect that information in the assessment
report that will be available to the public. This section of the final
rule requires the responsible official to encourage public
participation, thus sharing knowledge, ideas, and resources. In
addition, paragraph (a)(3) of this section requires the responsible
official to request information about native knowledge, land ethics,
cultural issues, and sacred and culturally significant sites.
Comment: Participation requirements accountability. Some
respondents felt the rule should contain measures ensuring the
responsible officials meet the public participation requirements.
Response: To ensure accountability in implementation for all of the
requirements in the final rule, the Department added Sec. 219.2(b)(5)
requiring the Chief to administer a national oversight process for
accountability and consistency of NFS land management planning. In
addition, the planning procedures established in the Forest Service
Directives System will provide further guidance and clarification for
how the public participation requirements of the final rule will be
implemented.
Comment: Decisionmaking authority. Some respondents felt the rule
must disclose the Forest Service retains full decisionmaking authority.
Response: While Sec. 219.4 of the rule commits the Agency to
public participation requirements and encourages collaboration, by law
the Forest Service must retain final decisionmaking authority and
responsibility throughout the planning process. Paragraph (a) of this
section has been modified to include the sentence ``The Forest Service
retains decisionmaking authority and responsibility for all decisions
throughout the process,'' which was previously in the definition for
collaboration in the proposed rule.
Comment: Specific requirements for youth, low-income, and minority
populations. Some respondents supported requirements to engage youth,
low-income and minority populations, and advocated including additional
requirements. One respondent felt that references to youth, low-income,
and minority populations should be removed. A respondent felt the rule
should integrate elements related to equitable recreation access for
youth, low-income, and minority populations into the assessment,
planning, and monitoring elements of the rule.
Response: Many people discussed the need for the Forest Service to
make a stronger effort to engage groups and communities that
traditionally have been underrepresented in land management planning.
This is reflected in the requirement that responsible officials
encourage the participation of youth, low-income populations, and
minority populations in the planning process and in the requirements to
be proactive and use contemporary tools to reach out to the public and
consider the accessibility of the process to interested groups and
individuals. The Department recognizes the need to engage a full range
of interests and individuals in the planning process and the
responsibility to promote environmental justice. To encourage wide-
ranging participation, the final rule retains the requirement for the
responsible official to seek participation opportunities for
traditionally underrepresented groups like youth, low-income
populations, and minority populations.
The Department added requirements in Sec. Sec. 219.8 and 10 to
take into account opportunities to connect people with nature when
developing plan components to contribute to social and economic
sustainability and for multiple uses, including recreation, in addition
to the requirements for outreach to youth, low-income, and minority
populations included in this section. Specific issues regarding
recreation access on a unit will be addressed at the local level during
the planning process.
Comment: Predominance of local or national input. Some respondents
felt the proposed Sec. 219.4 did not place enough emphasis on input
from the local community, while others felt the proposed collaboration
process would result in too much input from local interests and groups.
Other respondents felt the public participation process needs to be
all-inclusive, including at the local, State, and national levels and
should be directed at the general public and not focus on participation
from specific segments of the population. Other respondents felt the
proposed rule only provides participation opportunities for State and
local governments. A respondent felt comments or recommendations by a
local Board of Supervisors should be given equal consideration as to
those comments received from State and Federal agencies.
Response: Section 219.4(a)(1)(iv) of the final rule clarifies the
responsible official's duty for outreach to other government agencies
to participate in planning for NFS lands, including State fish and
wildlife agencies, State foresters, and other relevant State agencies,
local governments including counties, and other Federal agencies.
However, a successful planning process must be inclusive in order to
adequately reflect the range of values, needs, and preferences of
society. All members of the public would be provided opportunities to
participate in the planning process. Section 219.4(a) of the final rule
lists specific points during the planning process when opportunities
for public participation would be provided. To meet these requirements,
the responsible official must be proactive in considering who may be
interested in the plan, those who might be affected by the plan or a
change to the plan, and how to encourage various constituents and
entities to engage. Responsible officials will encourage participation
by interested individuals and entities, including those interested at
the local, regional, and national levels.
Comment: Coordination with State and local governments. Some
respondents felt the proposed rule downplayed requirements to
coordinate with State and local governments and that public
participation is elevated over coordination. Other respondents felt
State wildlife agencies should specifically be coordinated with when
designing and implementing plans, on-the-ground management activities,
monitoring, and survey design. Some respondents felt the rule should
use the wording from Sec. 219.7 of the 1982 planning rule regarding
coordination with State and local governments. Others felt wording from
Alternative D of the DEIS should be included. Some respondents felt
forest plans should be written in partnership with the States in which
the national forest or grassland is located. A respondent supported the
review of county planning and land use policies and documentation of
the review in the draft EIS as stated in proposed Sec. 219.4(b)(3).
Several
[[Page 21197]]
respondents noted the 1982 planning rule at Sec. 219.7(b) requires
county governments to be given direct notice of forest plan revisions
and oppose the proposed elimination of the requirement in the proposed
rule. A respondent stated input from local governments is required by
NFMA's mandate for coordination with local agencies that acknowledges
the contributions and responsibilities unique to local agencies,
including planning responsibilities for the private lands that fall
under the ``all lands'' umbrella.
Response: Many of the coordination requirements of the 1982
planning rule have been carried forward into Sec. 219.4(b)(1) and (2)
of the final rule. Section 219.4(b)(3) clarifies requirements for
coordination efforts.
Under Sec. 219.4(a), the final rule requires the responsible
official to encourage participation by other Federal agencies, Tribes,
States, counties, and local governments, including State fish and
wildlife agencies, State foresters and other relevant State agencies.
The final rule also requires the responsible official to encourage
federally recognized Tribes, States, counties, and other local
governments to seek cooperating agency status in the NEPA process for
planning, where appropriate, and makes clear that the responsible
official may participate in their planning efforts.
Under Sec. 219.4(b) of the final rule, the responsible official
must coordinate planning efforts with the equivalent and related
planning efforts of federally recognized Indian Tribes, Alaska Native
Corporations, other Federal agencies, and State and local governments.
The Department deleted the phrase, ``to the extent practicable and
appropriate,'' from the end of paragraph Sec. 219.4(b), in response to
public comment. This change is not intended to require the Agency's
planning efforts to tier to, or match the timing of other public
planning efforts. It was made to make clear that the requirements for
coordination with other public planning efforts have not been reduced
from previous rules.
The requirement for coordination from the 1982 rule to identify and
consider other information is found in Sec. 219.6(a) of the final
rule. Section 219.6(a) of the final rule requires consideration of
relevant information in assessments of other governmental or non-
governmental assessments, plans, monitoring evaluation reports, and
studies. The final rule does not adopt the coordination requirements of
Alternative D of the DEIS because the coordination requirements are
part of the species viability requirements of Alternative D. The final
rule does require the responsible official to coordinate to the extent
practicable with other Federal, State, Tribal, and private land
managers having management authority over lands relevant to a
population of species of conservation concern (Sec. 219.9(b)(2)(ii)).
To discuss the role of the Forest Service unit in the broader
landscape, final rule Sec. Sec. 219.4(a)(1), 219.6(a), 219.7(c)(1),
and 219.12(a) require coordination with other levels and deputy areas
within the Agency as well as the public, appropriate Federal agencies,
States, local governments, and other entities throughout the planning
process. The final rule recognizes that participants have different
roles, responsibilities, and jurisdictions, which the responsible
official will take into account in designing opportunities for
participation. The final rule does not adopt the requirement of the
1982 rule to meet with a designated State official and representatives
of Federal agencies and local governments because people can often
collaborate together without a face-to-face conference. The Department
expects responsible officials to effectively engage States, Tribes, and
local officials and other representatives in collaborative planning
processes.
Comment: Commitments to and consistency with local plans. Some
respondents felt the rule needs a stronger commitment to local
government plans, including statewide forest assessments and resource
strategies. Some respondents felt proposed Sec. 219.4(b)(3) wording
``nor will the responsible official conform management to meet non-
Forest Service objectives or policies'' should be removed because it
may contradict with the purpose of coordinating with local government.
Others felt the primary goal of coordination should be achieving
consistency between Federal and local plans within the legal mandates
applicable to all entities. Some respondents felt the analysis must
document there is no superior alternative to a proposed plan or action
as required by NEPA.
Response: When revising plans or developing new plans, under Sec.
219.4(b) the responsible official must review the existing planning and
land use policies of State and local governments, other Federal
agencies, and federally recognized Tribes and Alaska Native
Corporations, where relevant to the plan area, and document the results
of the review in the draft EIS. Section 219.4(b) requires that review
to consider a number of things, including opportunities for the unit
plan to contribute to joint objectives and opportunities to resolve or
reduce conflicts where they exist. The review would consider the
objectives of federally recognized Indian Tribes, and other Federal,
State, and local governments, as expressed in their plans and policies,
and would assess the compatibility and interrelated impacts of these
plans and policies. In addition, responsible officials in the
assessment phase are required to identify and consider relevant
existing information, which may include relevant neighboring land
management plans and local knowledge. This information may include
State forest assessments and strategies, ecoregional assessments,
nongovernmental reports, State comprehensive outdoor recreation plans,
community wildfire protection plans, public transportation plans, and
State wildlife action plans, among others.
However, plans are not required to be consistent with State forest
assessments or strategies or plans of State and local governments under
the final rule. The Forest Service must develop its own assessment and
plans related to the conditions of the specific planning unit and make
decisions based on Federal laws and considerations that may be broader
than the State or local plans. Requiring land management plans to be
consistent with local government plans would not allow the flexibility
needed to address the diverse management needs on NFS lands and could
hamper the Agency's ability to address regional and national interests
on Federal lands. In the event of conflict with Agency planning
objectives, consideration of alternatives for resolution within the
context of achieving NFS goals or objectives for the unit would be
explored. The final rule does not repeat legal requirements found in
public law, such as NEPA and NFMA, but Sec. 219.1(f) would require
plans to comply with all applicable laws and regulations.
Comment: Cooperating agencies for unit plan development. A
respondent felt the rule should identify State, Tribal, and local
governments as cooperating agencies. Other respondents asked why a
Tribe would request cooperating agency status and what the benefit
would be. Another respondent felt the role of State and local
governments is compromised, because the propose rule allows a
responsible official to decide when cooperating agency status would be
allowed. A respondent noted the Forest Service should be willing to
share information and not impose cost-prohibitive barriers to such
information, and the proposed rule does not allow cooperating agency
status for State and local governments,
[[Page 21198]]
because the process folds them into the public at large. Several
organizations commented on the preferred alternative that the final
rule should require responsible officials to grant cooperating agency
status under NEPA to entities if federally recognized Tribes, States,
counties, or local governments appropriately apply for such status.
Response: The responsible official will encourage federally
recognized Tribes, States, counties, and other local governments to
seek cooperating agency status where appropriate. The final rule does
not preclude any eligible party from seeking cooperating agency status;
rather, it provides direction to Forest Service responsible officials
to encourage such engagement where appropriate. Cooperating agency
status under NEPA is determined under the Council of Environmental
Quality (CEQ) requirements for cooperating status (40 CFR 1501.6).
Further guidance may be found at http://www.fs.fed.us/emc/nepa/index.htm. The final rule does not affect that process. For federally
recognized Tribes, cooperating agency status does not replace or
supersede the trust responsibilities and requirements for consultation
also recognized and included in the final rule. Any request for
cooperating agency status will be considered pursuant to the CEQ
requirements and Agency policy.
Comment: Tribal consultation. Some respondents felt that Alaska
Native Corporations should not be given the same status as federally
recognized Indian Tribes, while another respondent felt that the final
rule should recognize and provide for consultation with affected Alaska
Native Corporations and Tribal organizations. Several Tribes and Alaska
Native Corporations are concerned about keeping information
confidential to protect sites from vandalism.
Response: The final rule acknowledges the Federal Government's
unique obligations and responsibilities to Indian Tribes and Alaska
Native Corporations in the planning process. The statute, 25 U.S.C. 450
note, requires that Federal agencies consult with Alaska Native
Corporations on the same basis as Indian Tribes under Executive Order
13175. While the final rule requires consultation and participation
opportunities for Alaska Native Corporations, the Department engages in
a government-to-government relationship only with federally recognized
Indian Tribes, consistent with Executive Order 13175. Responsible
officials will protect confidentiality regarding information given by
Tribes in the planning process and may enter into agreements to do so.
Comment: Coordination with Tribal land management programs. Some
respondents felt the responsible official should actively engage in
coordination with Tribal land management programs and that the proposed
rule weakens requirements to coordinate planning with Tribes. One
respondent requested that the Tribal coordination provisions from the
Federal Land Policy and Management Act of 1976 (43 U.S.C. 1712(b)) be
included in the final rule.
Response: The final rule provides participation, consultation, and
coordination opportunities for Tribes during the land management
planning process, under Sec. 219.4. This section also states at Sec.
219.4(b) that the responsible official shall coordinate land management
planning with the equivalent and related planning efforts of federally
recognized Indian Tribes and Alaska Native Corporations. A citation for
43 U.S.C. 1712(b) has been added to the final rule at Sec.
219.4(b)(2). Participation in a collaborative process would be
voluntary and would supplement, not replace consultation.
Comment: Government-to-government relationship. One respondent felt
the proposed rule does not go far enough in identifying the unique
government-to-government relationship between Tribes and the Forest
Service.
Response: The Department recognizes the unique government-to-
government relationship that the Federal Government has with Tribes,
and has engaged Tribes throughout the rulemaking process. The final
rule includes requirements for engaging Tribes during the land
management planning process. At Sec. 219.4(a)(2) the final rule states
that the responsible official shall honor the government-to-government
relationship between federally recognized Indian Tribes and the Federal
Government, in accordance with Executive Order 13175. Additionally,
Sec. 219.4 requires that the responsible official provide
opportunities for participation and consultation for federally
recognized Indian Tribes and Alaska Native Corporations.
Section 219.5--Planning Framework
This section provides an overview of the framework for land
management planning, and identifies what occurs during each phase. It
also includes the requirement for the establishment of an
interdisciplinary team for planning. This framework reflects key themes
heard from the public, as well as experience gained through the
Agency's 30-year history with land management planning.
The framework requires a three-part learning and planning cycle:
(1) Assessment; (2) plan development, plan revision, or plan amendment;
and (3) monitoring. This framework is science-based (Sec. 219.3), and
provides a blueprint for an open and participatory land management
process (Sec. Sec. 219.4 and 219.16). It is intended to create a
better understanding of the landscape-scale context for management and
support an integrated and holistic approach to management that
recognizes the interdependence of ecological resources and processes,
and of social, ecological, and economic systems. The framework creates
a structure within which land managers and partners will work together
to understand what is happening on the land. It is intended to
establish a responsive process that would allow the Agency to adapt
management to changing conditions and improve management based on new
information and monitoring, using narrower, more frequent amendments to
keep plans current between revisions.
Section 219.5--Response to Comments
Many comments on this section focused on the need for more clarity
in the framework. The Department made changes to Sec. 219.5(a)(1) to
describe the assessment and emphasize that the assessment process is
intended to be rapid, and use existing information related to the land
management plan within the context of the broader landscape. The
Department removed the discussion about the preliminary need to change
the plan from paragraph (a)(1) because the discussion has been removed
from the assessment (Sec. 219.6) and discussed in paragraph (a)(2) of
this section and in Sec. 219.7. The Department removed the
introductory text of paragraph (a)(2) of this section because it was
redundant to paragraph (a)(2)(i) of this section and to Sec. 219.7(b).
Section 219.5(a)(2)(ii) was slightly modified to clarify that the first
step to amend a plan is to identify a preliminary need to change the
plan. Additional edits were made for clarity. The changes to this
section are not changes in requirements, they are just clarifications.
Comment: Planning framework. Some respondents felt more clarity was
needed on the three phases of the framework (assessment, development,
and monitoring). Further clarity was sought on how the phases are
interrelated.
Response: This section was included to provide clarity with regard
to each phase of the framework and how they are interrelated. Detailed
requirements and relationships for each phase are provided in other
sections of the rule. In
[[Page 21199]]
addition to the descriptions of what occurs during each phase provided
in this section, changes were made to Sec. Sec. 219.6, 219.7 and
219.12 to make clear that information from each phase should be used to
inform each of the other phases. In Sec. 219.6, assessments are
required for new plan development and plan revision, and a new list of
topics for the assessment was included to more closely link the
assessment requirements to the requirements for plan components and
other plan content. The responsible official must identify and consider
relevant information contained in monitoring reports during the
assessment phase. These monitoring evaluation reports are developed in
the monitoring phase as required in Sec. 219.12(d), which requires
that they be used to inform adaptive management. Section 219.7 requires
the responsible official to review relevant information from the
assessment and monitoring to identify a preliminary need for change and
to inform the development of plan components and other plan content,
including the monitoring program. In this way, the framework builds on
information gathered and developed during each phase of the planning
process and supports adaptive management for informed and efficient
planning.
Comment: Resource exclusion. Some respondents felt the proposed
rule allows too much discretion to the responsible official to exclude
resources or uses of interest under the three phases of the planning
framework.
Response: There are numerous opportunities throughout the process
for the public to identify resources and uses that are of interest to
them, along with information about those resources or uses relevant to
the plan area. If a resource or use is identified as of interest, it
will be considered during of the planning process. The responsible
official must meet all the requirements contained in the final rule,
including the requirement to identify resources present in the plan
area and consider them when developing plan components for Sec. Sec.
219.8 through 219.11, including for ecological sustainability,
diversity, and multiple use.
Comment: Composition of planning interdisciplinary teams. Several
respondents felt the rule should specify the composition of the
interdisciplinary teams required under proposed Sec. 219.5(b).
Response: The Department concluded that the responsible official
should have the discretion to determine the disciplines, or areas of
expertise, to be represented on the Agency interdisciplinary team for
preparation of assessments; new plans, plan amendments, or plan
revisions; and plan monitoring programs. Because planning efforts are
based on an identified need for change, it would not be appropriate to
require the same disciplines to be represented on every
interdisciplinary team. Also, individual team members often have broad
areas of expertise and may represent multiple disciplines.
Section 219.6--Assessments
This section sets out both process and content requirements for
assessments. In the assessment phase, responsible officials will
rapidly identify and evaluate relevant and existing information to
provide a solid base of information and context for plan
decisionmaking, within the context of the broader landscape. The final
rule identifies and provides examples of sources of information to
which the responsible official should refer, requires coordination and
participation opportunities, and requires documentation of the
assessment in a report to be made available to the public. This phase
is intended to be rapid, and changes were made to the final rule to
improve the efficiency of the assessment process. The Department
expects the assessment required by the final rule will take about 6
months to complete.
The content of assessments will be used to inform the development
of plan components and other plan content, including the monitoring
questions, and to provide a feedback loop. The final rule narrows and
clarifies the requirements for the content of plan assessments, to
increase efficiency and provide a clearer link to the requirements for
plan components and other plan content in the other sections of the
final rule. During the assessment phase, the public will have the
opportunity to bring forward relevant information. Gathering and
evaluating existing, relevant information will help both the
responsible official and the public form a clear base of information
related to management issues and decisions that will be made later in
the planning process.
Section 219.6--Response to Comments
Many comments on this section focused on concerns about the
assessment phase in the proposed rule being too open ended, lengthy and
costly, and/or not closely enough linked to the requirements for plan
components and monitoring in the other phases of the framework. The
Department determined that these concerns were valid, and made a number
of changes to this section in response. The Department reorganized the
section to clarify the process and direction for assessments.
In the introductory paragraph, the Department removed the
description of what an assessment is, and provided a cross-reference to
description of the assessment in Sec. 219.5(a)(1). This change was
made to avoid redundancy, and is not a change in requirements. Changes
to the description of the assessment in Sec. 219.5(a)(1) were made to
focus on the use of existing information in a rapid process. This
change reflects the intent for this phase as stated in the preamble to
the proposed rule, and makes that intent clear in the final rule.
Additional changes to reflect this focus were made throughout this
section. These changes reflect the preamble discussion of the proposed
rule about rapid assessments; therefore, these changes are
clarifications based on public comments to make the assessment more
efficient.
In paragraph (a) of the final rule the Department made several
changes, including:
(1) Removed specific requirements for formal notification and
encouragement of various parties to participate in the assessment
(designated at Sec. 219.6(a)(1) and (a)(2) of the proposed rule);
these specific requirements were removed in response to public
comments. Requirements for public participation and notification during
this phase are still present in Sec. Sec. 219.4 and 219.16. This is a
change in requirements that is based on public comments to make the
assessment more efficient.
(2) Moved the type of information to identify and consider from
paragraph (b)(2) of this section of the proposed rule to paragraph
(a)(1) in this section. The Department added public transportation
plans and State wildlife data to the list of example documents to
consider contained in paragraph (a)(1). The Department further
clarified in this paragraph that relevant local knowledge will be
considered if publicly available or voluntarily provided. These
additions are not changes in requirements as they clarify the
Department's intent.
(3) Changed the description of the report at paragraph (a)(3) from
a set of reports to a single assessment report; changed discussion of
additional information needs to clarify that they should be noted in
the assessment report, but that new information need not be developed
during the assessment phase; and changed the requirement from
documenting how science was ``taken into account'' to how the best
available scientific information was ``used to inform'' the assessment
for
[[Page 21200]]
consistency with Sec. 219.3. These changes reflect public comments on
making the assessment phase more efficient, as well as public comments
on Sec. 219.3.
(4) Removed the requirement for the assessment to identify the need
to change the plan from this section and added that requirement as an
early step in the planning process in Sec. 219.7. The Department moved
the requirement to Sec. 219.7 because after reading the public
comments it was decided that identifying a need to change the plan in
the assessment phase may cause confusion with the NEPA process. The
planning rule continues to emphasize a ``need for change'' approach to
planning but this now begins with a preliminary identification of the
need to change the plan identified in the beginning of plan development
(Sec. 219.7) within the formal NEPA process.
Paragraph (b) describes the content of assessments for plan
development or plan revision. The Department added a specific listing
of 15 topics that would be identified and evaluated relevant to the
plan area, and removed the requirement in the proposed rule that the
assessment report identify and evaluate information related to the
substantive sections of the plan (Sec. Sec. 219.7, 219.8, 219.9,
219.10, and 219.11). This change was made in response to comments that
the assessment phase needed to be both more efficient and more narrowly
and specifically focused on the information needed to form a basis for
developing plan components and other plan content. These changes
represent a change in requirements. Changes made to Sec. 219.7 provide
additional clarity to link the two phases.
One term in the list of 15 items may be unfamiliar to the reader:
baseline assessment of carbon stocks. The final rule requires that the
responsible official use existing information to do a baseline
assessment of carbon stocks. Carbon stocks are the amount of carbon
stored in the ecosystem, in living biomass, soil, dead wood, and
litter. This requirement was included in response to public comments to
ensure that information about baseline carbon stocks is identified and
evaluated before plan revision or development, and to link this phase
to the requirements of the Forest Service Climate Change Roadmap and
Scorecard. The Department's expectation is that this information would
be generated via implementation of the Roadmap and Scorecard prior to
planning efforts on a unit, and that the assessment phase would use
that information to meet the direction in Sec. 219.6(b)(4). The Forest
Service has developed a National Roadmap and Performance Scorecard for
measuring progress to achieve USDA strategic goals (USDA Forest Service
2010d, 2010j). The roadmap describes the Agency's strategy to address
climate change and the scorecard is an annual reporting mechanism to
check the progress of each NFS unit.
The requirements for the assessment to identify distinctive roles
and contributions and potential monitoring questions previously
included in paragraph (b) were removed from this section of the rule
because they implied there would be decisions in the assessment phase
that should be made as part of the plan decision. Both requirements are
still present in other sections of the final rule; therefore, the
removal of these requirements from this section of the rule is a minor
change.
At Sec. 219.6(c) the Department removed requirements for plan
amendments that were consolidated with requirements for plan amendments
in Sec. 219.13(b)(1) for clarity and to avoid duplication. In
addition, the Department changed the word ``issue'' to ``topic'' to
avoid confusion with the term ``issues'' as used in the NEPA process.
These changes are not changes in requirements, they are just
clarifications.
Comment: Assessment process. Some respondents felt the proposed
assessment process should be removed from the rule as it is an added
and potentially costly step to the planning process. They felt it would
be more efficient and effective if assessments used to justify an
amendment or plan revision were combined into one document for the
proposed amendment or revision. They also felt the rule should provide
more guidance and parameters for the decisionmaking occurring along
with assessment reports. Other respondents felt the proposed rule
requirements were vague on the nature of assessments and more standards
or guidelines for determining proper time frames, content, and need for
assessment is necessary. Others were concerned that the assessments
should be more comprehensive, that too much discretion was given to the
responsible official to determine what to include in the assessment,
and the responsible official should be required to use, not just
consider, the information.
Response: Section 219.6 of the final rule changes the requirements
for assessments. A single document identifying and evaluating key
information for a plan revision or amendment will serve as an important
source to set the stage for planning in both the development of the
plan and in the evaluation of environmental effects through an
environmental impact statement.
The final rule stresses the assessment as an information gathering
and evaluation process specifically linked to the development of plan
components and other plan content, in the context of the broader
landscape. The final rule requires information about the list of topics
in Sec. 219.6(b) to be identified and evaluated in the assessment. The
inclusion of this list as opposed to the broader direction included in
the proposed rule is intended to make the process both more efficient,
and more clearly focused on the specific information needed to inform
the development of plan components and other plan content as required
by other sections of the final rule.
The requirement of the proposed rule to find a ``need to change''
during the assessment phase of planning has been removed to clarify
that the assessment is not a decisionmaking process and does not
require a NEPA document to be prepared. Changes to Sec. 219.7 clarify
that the responsible official must review material gathered during the
assessment to identify a preliminary need to change the existing plan
and to inform the development of the plan components and other plan
content. The information may be used and referenced in the planning
process, including environmental documentation under NEPA. However, the
assessment report is not a decision document.
The responsible official is required to provide public
participation opportunities to all interested parties during the
assessment process, and must provide notice of such opportunities, as
well as the availability of the assessment report. The public will have
a formal opportunity to comment on information derived from the
assessment later in the NEPA process of the plan development,
amendment, or revision.
The Department decided to retain the flexibility provided in the
proposed rule for the responsible official to determine when an
assessment prior to plan amendment is needed, along with the scope,
scale, process, and content for plan amendments, in order to keep the
amendment process flexible. Amendments can be broad or they can be
narrow and focused only on a subset, or even on a single one, of the
topics identified in the list of 15 in the final rule, or on something
not on the list. Or the amendment could take place while the
information in the assessment done for the plan revision or initial
development is still up-to-date, such that a new assessment would not
be needed. The circumstances and
[[Page 21201]]
considerations for when a plan amendment assessment should occur are
too variable to specify in the final rule.
Comment: Use of existing information. Some respondents felt the
rule should clarify that the responsible official need only consider
existing information during the assessment phase. The concern raised
was that if a responsible official had to develop new information such
as new scientific studies to fill gaps in the existing science, the
planning process would be further delayed. Others expressed that
limiting the assessment to rapid evaluation of existing information may
result in lack of input from the public or actually be of little use
when the Forest Service has very little information.
Response: The Department agrees the assessment phase needs to be
efficient and effective. The Department focused the final rule on
rapidly gathering and evaluating existing information on the topics
identified in paragraph (b) of the final rule. The intent is for the
responsible official to develop in the assessment phase a clear
understanding of what is known about the plan area, in the context of
the broader landscape, in order to provide a solid context for
decision-making required during the planning phase. The Forest Service
will use relevant existing information from a variety of sources, both
internal to the Agency and from external sources. The responsible
official is required to provide public participation opportunities to
all interested parties during the assessment process. The Department
concludes that engaging the public to inform the assessment report will
help the responsible official and the interested public to develop a
common base of information to use in the planning phase, increasing the
legitimacy and integrity of future decisions.
Comment: Additional assessment considerations. Some respondents
noted reasonably foreseeable conditions, stressors, and opportunities
(for example forecasts for continued urbanization and ecological
changes resulting from climate change) need to be considered when
measuring present conditions, stressors, and opportunities. The
respondents implied this information should be calculated and
considered during the assessment phase of land management planning.
Still others indicated there should be requirements for water quality,
minerals, historic, social, economic, and other resources. Others
mentioned the responsible official should be required to accept
material submitted by universities, and should consider best available
science.
Response: The list in Sec. 219.6(b) includes the topics identified
in these comments. The Department accepts that the list included in the
final rule represents a focused set of topics relevant to the
development of plan components and other plan content required in other
sections of the final rule. The final rule requires that the best
available scientific information be used to inform all phases of the
planning process. Documents submitted by universities would be accepted
by the Agency and considered as part of the assessment.
Comment: Annual regional evaluations. Some respondents indicated
the proposed assessment process needs to provide for regular over-
arching investigations of potential need to change issues above the
individual forest level. Some suggested the final rule should provide
for annual evaluations by each Forest Service region for developing
information affecting broader-scale factors and how the information may
indicate a need to initiate forest plan revisions or amendments.
Response: The final rule does not require annual evaluations of
monitoring results by each region or for the broader-scale monitoring
strategy. The three-part planning cycle of assessments, planning, and
monitoring will provide a framework to identify changing conditions and
respond with adaptive management. Broader-scale monitoring will help to
identify and track changing conditions beyond the individual forest
level. The final rule requires consideration of information from both
the broader and plan scales of monitoring. This information would be
described in the biennial plan monitoring report for each unit if
applicable to plan area. Annual investigations and review, in addition
to what is provided for in the rule, would be procedurally difficult
and was deemed not necessary.
Comment: Assessments versus monitoring. Some respondents remarked
that the rule needs to state the Agency cannot rely on one-time
assessments in lieu of monitoring data.
Response: The Department does not intend for assessments to replace
monitoring. The final rule requires monitoring and biennial monitoring
reports. Results from monitoring will be considered when developing an
assessment and during the planning phase, just as the information
gathered during the assessment phase will inform the planning phase,
including development of the monitoring program.
Comment: Assessments and performance. Some respondents pointed out
that the rule should link the assessment process with the Agency's
integrated management reviews to assess performance in implementation
of plan priorities.
Response: While management reviews can be a tool to assess plan
progress toward meeting the intended results, the final rule does not
require management review be linked with the assessment process.
Management reviews are part of the management process for all mission
areas, and are broader in scope, looking at many issues. The final rule
is limited in scope to the planning process to develop, amend, or
revise plans.
Comment: Notification of scientists. Some respondents stated the
proposed rule's requirement to encourage and notify scientists to
participate in the process was unwieldy.
Response: The detailed notification requirements previously
included in this section have been removed in order to make the process
more efficient and clearer. However, the final rule still requires that
the responsible official coordinate with Forest Service Research and
Development, identify and evaluate information from relevant scientific
studies and reports, provide participation opportunities to the public,
and use best available scientific information to inform the planning
process.
Comment: Public comment and participation on assessment reports.
Some respondents felt the rule should provide the public with the
opportunity to review, comment, and provide additional information
during the assessment phase. Other respondents felt the proposed rule
was not clear as to what role the public would play in determining the
scope of the assessment. The desire was also expressed for the
opportunity to appeal the development or use of the assessment report.
Response: The rule requires the responsible official to provide
opportunities for the public to participate in and provide information
for the assessment process. For a new plan or plan revision, the final
rule specifies the minimum scope of the assessment. For a plan
amendment assessment, the need for and scope of the assessment will be
determined by the responsible official based on the circumstances. The
assessment is an informational document, not a decision document;
therefore, a formal comment period is not required. As such, an
opportunity to appeal or object to an assessment report is not required
by the final rule. Other opportunities for
[[Page 21202]]
formal comment and objection are provided in the rule for plan
decisions.
Comment: Distinctive roles and contributions. Some respondents felt
the requirement for assessments to identify ``distinctive roles and
contributions of the unit within the broader landscape'' should be
retained; while others felt it should be removed.
Response: The final removes this requirement from the assessment as
it implies a decision that should be made when approving the
distinctive roles and contributions of the unit as part of the other
plan content (Sec. 219.7(f)). It is retained in the requirement for
other plan content in Sec. 219.7 of the final rule.
Comment: Assessments and plan components. A respondent suggested
assessments should include development of plan components to meet the
substantive requirements of other rule provisions such as water quality
standards.
Response: Assessments do not develop plan components, but only
gather and evaluate existing information that can be used later in the
development of plan components.
Comment: Information gaps or uncertainties. Some respondents
declared the rule should require a component in the assessment
identifying information gaps or uncertainties.
Response: Section 219.6(a)(3) of the final rule requires the
assessment to document in the report information needs related to the
list of topics in paragraph (b) as part of the assessment report.
Adding a requirement for the responsible official to document all
information gaps or uncertainties could become burdensome and was
inconsistent with the rapid evaluation of existing information.
Comment: Cumulative effects disclosure. Some respondents stated
proposed Sec. 219.6(b)(3) should specifically address the need to
document cumulative effects to the condition of lands, water, and
watersheds.
Response: The final rule does not add a cumulative effects
requirement to the assessment. The assessment identifies and evaluates
information on conditions and trends related to the land management
plan. This will include influences beyond the plan area and influences
created by the conditions and trends in the plan area. Cumulative
effects analysis is part of the NEPA process and disclosed in the
environmental documentation for planning or project decisionmaking.
Section 219.7--Plan Development or Plan Revision
This section sets out requirements for how to develop a new plan or
revise an existing plan. This section has two primary topics: (1) The
process for developing or revising plans and (2) direction to include
plan components and other content in the plan. The intent of this
section is to set forth a process for planning that reflects public
input and Forest Service experience. The process set forth in the final
rule requires the use of the best available scientific information to
inform planning (Sec. 219.3), and requires public participation early
and throughout the process (Sec. 219.4). By conducting an assessment
using a collaborative approach before starting a new plan or plan
revision, and by working with the public to develop a proposal for a
new plan or plan revision, the Department expects that the actual
preparation of a plan would be much less time consuming then under the
1982 rule procedures, and that plans will be better supported. These
requirements incorporate the best practices learned from the past 30
years of planning, and the Department concludes these practices can be
carried out in an efficient and effective manner.
This section also sets out requirements for plan components. These
plan components are based on techniques widely accepted and practiced
by planners, both inside and outside of government. The set of plan
components must meet the substantive requirements for sustainability
(Sec. 219.8), plant and animal diversity (Sec. 219.9), multiple use
(Sec. 219.10), and timber requirements based on the NFMA (Sec.
219.11) as well as other requirements laid out in the plan. Except to
correct clerical errors, plan components can only be changed through
plan amendment or revision. Plan components themselves cannot compel
Agency action or guarantee specific results. Instead, they provide the
vision, strategy, objectives, and constraints needed to move the unit
toward ecological, social, and economic sustainability
In addition to the plan components, this section includes
requirements for other plan content. Other required plan content
differs from plan components in that an amendment or revision is not
required for changes to be made that reflect new information or changed
conditions.
Section 219.7--Response to Comments
Many comments on this section focused on aspects of the plan
component and NEPA requirements. The Department retains the 2011
proposed rule wording in the final rule except for minor changes and
the following:
(1) At paragraph (c)(2)(i) of this section, the Department
consolidated the requirement to identify a preliminary need to change
the plan from Sec. 219.6(a) and Sec. 219.7(a). This change is not a
change in requirement for the planning process, but moves this
requirement from the assessment phase to the start of the planning
phase. Also, in this paragraph, the Department modified the wording to
make the link between the assessment and monitoring phases with the
plan phase clearer: the final rule requires that the responsible
official review relevant information from the assessment and monitoring
to identify a preliminary need to change the plan and to inform the
development of plan components and other plan content. This change
reflects the intent of the Department as stated in the preamble to the
proposed rule and responds to public comment. It is a change in
requirement.
(2) At paragraph (c)(2)(ii) of this section, the Department added a
requirement to consider the goals and objectives of the Forest Service
strategic plan. The Department added this requirement to respond to
public comments and to address the requirement of 16 U.S.C. 1604(g)(3)
to specify guidelines for land management plans developed to achieve
the goals of the ``Program.'' Today the ``Program'' is equivalent to
the Forest Service strategic plan. This is an additional requirement to
implement the NFMA.
(3) At, paragraph (c)(2)(v) of this section, the Department edited
the wording regarding whether to recommend any additional area for
wilderness to remove the confusing term ``potential wilderness areas.''
The paragraph was also edited to clarify that lands that may be
suitable, as well as lands that are recommended for wilderness
designation, must be identified. These changes clarify the proposed
rule and respond to public comment.
(4) At paragraph (c)(2)(vii), the Department added a new
requirement to identify existing designated areas other than wilderness
or wild and scenic rivers, and determine whether to recommend any
additional areas for designation. The changes make clear that if the
responsible official has the delegated authority to designate a new
area or modify an existing area, then the responsible official may
designate such lands when approving the plan, plan revision, or plan
amendment. Based on
[[Page 21203]]
public comment, the Department added this requirement to clarify the
requirement of Sec. 219.10(b)(1)(vi) of the proposed rule.
(5) At paragraph (c)(3) the Department added the requirement for
the regional forester to identify species of conservation concern for
the plan area in coordination with the responsible official in
paragraph (c)(2) of this section. The Department added this requirement
in response to public comment to provide more consistency and
accountability in selecting the species of conservation concern. This
is a new requirement.
(6) At paragraph (d) of this section, the Department clarified that
management areas or geographic areas are required in every plan. This
is a clarification of paragraph (d) of the proposed rule and reflects
the Department's intent for the proposed rule. Under the proposed rule,
inclusion of management and/or geographic areas was implied by
paragraph (d); the change to the final rule makes clear that every plan
must include management areas or geographic areas or both, to which
plan components would apply as described in paragraph (e) of the final
rule. The Department removed the provision of the proposed rule that
stated every project and activity must be consistent with the
applicable plan components, because Sec. 219.15(b) and (d) also state
this, and this statement would be redundant. These changes are not
changes in requirements; they are clarifications.
(7) At paragraph (e)(1)(iv), the Department clarified the wording
in the description of a guideline to respond to comments on the
preferred alternative. The Department changed the word ``intent'' to
``purpose.'' The final wording is: ``a guideline is a constraint on
project and activity decisionmaking that allows for departure from its
terms, so long as the purpose of the guideline is met.'' In addition,
in the second sentence of paragraph (e)(1)(iv), Department added the
words ``or maintain'' because guidelines, like standards, may be
established to help achieve or maintain a desired conditions or
conditions.
(8) At paragraph (e)(1)(v), the Department clarified that plans
will include identification of specific lands as suitable or not
suitable for various multiple uses and activities, in response to
public comment on this section. It retains the wording that makes clear
that the suitability of an area need not be identified for every use or
activity, and adds clarifying wording stating that suitability
identifications may be made after consideration of historic uses and of
issues that have arisen in the planning process. This is a
clarification of the proposed rule paragraph (d)(1)(v) to carry out the
intent of the proposed rule.
Comment: Alternate plans. A respondent said wording contained in
the 1982 rule at Sec. 219.12(f)(5) requiring the Agency to develop
alternatives to address public concerns should be restored.
Response: The rule requires preparation of an EIS as part of the
plan revision process. The NEPA requires development of a range of
reasonable alternatives in the EIS. Therefore, a duplicative
requirement in the rule is not necessary.
Comment: Requests for revision. A respondent said there should be a
process for others to request plan revisions. The responsible official
would retain the option of determining whether such a request would
warrant starting the assessment process.
Response: The public may request a plan revision at any time. The
public does not need special process to make this request.
Comment: Combining multiple national forests under one plan. Some
respondents felt a multi-forest plan would need separate tailored
requirements for the different ecosystems, landscapes, landforms,
forest types, habitats, and stream types that exist in each of the
national forests affected.
Response: The final rule allows the responsible official the
discretion to determine the appropriateness of developing a multi-
forest plan, or a separate plan for each designated unit. Plan
components would be designed as appropriate for those units to meet the
requirements of the final rule, whether for a single or a multi-forest
plan.
Comment: Environmental Policy Act compliance and plan development,
amendment, or revision (NEPA). Some respondents felt plans should be as
simple and programmatic as possible and that the preparation of an EIS
for a new plan or plan revision is not appropriate. NEPA compliance
should occur only at the project level. One respondent wanted a clear
commitment for preparation of an EIS for forest plan revisions. Another
respondent said categorical exclusions should be used for minor
amendments, environmental assessments for more significant amendments,
and EISs should be reserved for major scheduled plan revisions. A
respondent said responsible officials should not be allowed to combine
NEPA and planning associated public notifications (Sec. 219.16). A
respondent said to please consider and discuss an efficient amendment
process in the proposed rule. Another respondent proposed Sec.
219.7(e)(1)(iv) be rewritten to clarify any aspect of any planning
document are proposals subject to NEPA.
Response: The final rule requires the preparation of an EIS for
plan revisions and new plans. Plan amendments must be consistent with
Forest Service NEPA procedures, which require an EIS, an EA, or a CE,
depending on the scope and scale of the amendment. Projects and
activities will continue to be conducted under Forest Service NEPA
procedures. The Department believes the NEPA analysis requirements are
appropriate to inform the public and help responsible officials make
decisions based on the environmental consequences. The requirements for
public participation are described in Sec. 219.4 and notifications in
Sec. 219.16. The Department retained the wording on combining
notifications where appropriate to allow for an efficient amendment
process while continuing requiring public notice.
The NEPA regulations at 40 CFR 1508.23 provides that a proposal
``exists at that stage in the 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.'' Not all aspects of
planning and planning documentation fall under this definition, and the
Department considers classifying every aspect of every planning
document as a ``proposal'' subject to NEPA would be an unnecessary and
burdensome requirement on the Agency.
Comment: Additional coordination requirements. Some respondents
suggested additional coordination requirements for noxious weed
management, reduction of the threat of wildland fire, assessment of
existing aircraft landing sites, and guidelines to ensure project
coordination across forest and grassland boundaries where discrepancies
between individual unit plans may occur.
Response: The Department agrees the issues raised are important.
The final rule does emphasize an all lands approach precisely to
address issues like these. This emphasis is in each phase of planning:
in the assessment phase, responsible officials are directed to identify
and evaluate relevant information in the context of the broader
landscape; in Sec. 219.8, the final rule requires that the responsible
official consider management and resources across the landscape; and in
Sec. 219.4 the responsible official is directed to
[[Page 21204]]
consider opportunities for the plan to address the impacts identified
or contribute to joint objectives across jurisdictions. Section 219.12
provides a framework for coordination and broader-scale monitoring.
However, the rule provides overall direction for plan components and
other plan content, and for how plans are developed, revised, and
amended. More specific guidance with regard to particular resources 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. Those
communities, groups, or persons interested in these important issues
can influence plan components and plan monitoring programs by becoming
involved in planning efforts throughout the process, including the
development and monitoring of the plan, as well as the development of
proposed projects and activities under the plan.
Comment: Scope of the responsible official's discretion. Some
respondents raised concerns over the responsible official's discretion
to determine conditions on a unit have changed significantly so a plan
must be revised, because the proposed rule fails to define significant
and does not include an opportunity for public involvement in this
determination. Other respondents felt use of the terms ``consider'' and
``appropriate,'' as in proposed Sec. 219.7(c)(2)(ii) are vague, too
discretionary, and could mean the official would look at conditions and
trends, but then fail to address them, leading to a poor assessment and
planning.
Response: A primary goal of the new rule is to create a framework
in which new information is identified and used to support adaptive
management. The Department expects the new rule to facilitate, over
time, the increased use of the amendment process to react more quickly
to changing conditions. Placing overly prescriptive requirements in
this section could inhibit the responsible official's ability to
adaptively manage within the planning rule framework. Section
219.7(c)(2)(ii) in the proposed rule, now (c)(2)(iii) in the final
rule, is simply intended as a process step to identify the relevant
resources present in plan area for the purpose of developing plan
components. This is not intended to be a new assessment, but is linked
to the requirements for the assessment in section 219.6(b) of the final
rule. Sections 219.8-219.11 contain the requirements for developing
plan components to address those resources.
Plan Components
Comment: Plan component wording, standards, and guidelines. A
respondent remarked that it was unclear if plans could meet the
requirements in this section for plan components by including only one
of each of the different kinds of plan components, or whether the
Agency is making a binding commitment to include more than one
standard, which the respondent believed to be more binding than desired
conditions or guidelines.
Response: This section of the rule identifies what plan components
are, and requires that every plan contain desired conditions,
objectives, standards, guidelines, and suitability. The intent of the
Department in the proposed rule was that the responsible official would
determine the best mix of plan components to address the rule's
substantive requirements. However, some respondents were concerned that
the rule could be interpreted to require only one of each kind of plan
component for every plan. Therefore, the final rule includes changes to
the wording in sections 219.8-11 to require that plans include ``plan
components, including standards or guidelines.''
Comment: Desired Future Condition plan component. A respondent felt
desired future condition should be included as a plan component, as it
is more than the sum total of the individual desired conditions for
each of the important ecological, social, and economic resources on the
forest and causes individual desired conditions to occur somewhat in
sync.
Response: Plans under the rule will identify the forest or
grassland's distinctive roles and contributions within the broader
landscape and the desired conditions for specific social, economic, and
ecological characteristics of the plan area. The Department believes
those requirements, combined with the requirements for public
participation and integrated resource management, will result in plans
that reflect an overall vision for the future desired condition of the
plan area as a whole.
Comment: Desired conditions. Some respondents stated defining a
desired condition as specific social, economic, and/or ecological
conditions may continue ecologically unsustainable social and economic
practices leading to unsustainable outcomes. A respondent commented
that States are responsible for setting fish and wildlife population
objectives and the wording must be changed to prevent the Agency from
taking on the role of the States. Other respondents wanted more
direction on how the responsible official determines desired
conditions.
Response: Desired conditions are a way to identify a shared vision
for a plan area. In some instances, desired conditions may only be
achievable in the long-term. At times, the desired conditions may be
the same as existing conditions. Desired conditions may be stated in
terms of a range of conditions. Other plan components would provide the
strategy and guidance needed to achieve that vision. Plans must meet
the requirements of Sec. Sec. 219.8 through 219.11, including to
provide for ecological sustainability. Projects and activities must be
consistent with desired conditions as described in Sec. 219.15. The
Forest Service Directives System will describe how desired conditions
should be written and developed.
States do have responsibilities for managing fish and wildlife, but
the rule requires plans to include plan components for ecological
conditions (habitat and other conditions) to maintain diversity of fish
and wildlife species, as required by NFMA. Responsible officials will
continue to coordinate with Federal, State, and local governments and
agencies on other public planning efforts.
Comment: Procedures for analysis. Some respondents suggested that
the final rule should include specific procedures for analysis. These
include specific economic indicators for the economic analysis part of
the planning process, the model paradigm for social and economic
resources important to rural communities, and means of weighing
relative values of multiple uses.
Response: Such guidance is not included in this final rule.
Analysis methods and technical procedures are constantly changing; the
planning rule would quickly be outdated if specific methods were
mandated. Additional guidance with regard to social and economic
resource analysis is more appropriate in the Forest Service Directives
System, and revisions to the Forest Service directives will be
available for public comment.
Comment: Objectives. Several respondents supported clear,
measurable, and specific objectives to enhance transparency and
accountability. Several respondents felt basing objectives on
reasonable foreseeable budgets unduly constrains planning analysis.
Another respondent thought a desired condition without objectives is
completely meaningless.
Response: The rule uses objectives to support measureable progress
toward a desired condition. Objectives will lead
[[Page 21205]]
to the development of a proactive program of work to achieve the
desired condition by describing the focus of management in the plan
area. Objectives will be based on achieving and monitoring progress
toward desired conditions, and will be stated in measurable terms with
specific time frames. Objectives based on budgets and other assumptions
help set realistic expectations for achievement of plan objectives over
the life of the plan and assist in building public trust in the Agency
being able to make progress towards achieving desired conditions and
objectives.
Comment: Goals. Several respondents felt goals should be mandatory
because broad general goal statements describe how the desired future
conditions will be achieved and create the overall framework for the
other plan components. Others felt they should be optional. Another
respondent suggested inclusion of a goal to connect youth, minority,
and urban populations to the national forest or grassland to better
assure required plan components incorporate and reflect the needs of
diverse populations.
Response: The proposed wording for goals is unchanged in the final
rule because the proposed optional use of goals allows responsible
officials to determine whether or not they are a useful plan component
in addressing the local situation. Inclusion of a goal for youth,
minority, and urban populations is not required in the final rule
because the final rule requires the responsible official to encourage
participation of youth, low-income populations, and minority
populations throughout the planning process, and to consider
opportunities to connect people with nature as well as to contribute to
social and economic sustainability when developing plan components. See
Sec. Sec. 219.4, 219.8(b), and 219.10(a).
Comment: Suitability for uses other than timber. Some respondents
felt the rule should require suitability determinations for multiple
uses. In addition to suitability for timber use as required under NFMA,
a respondent felt suitability of lands for livestock grazing, fire
suppression, energy developments, mineral leasing, and off highway
vehicles should be required to meet the Act. Another respondent felt
economics should be a part of the analysis and land suitability
determinations. A respondent felt identification of lands where
specific uses are not allowed is de facto regulation of those uses, and
proposed Sec. 219.2(b)(2) wording ``a plan does not regulate uses by
the public'' appears inconsistent with NFMA direction regarding the
identification of lands as suitable for resource management activities,
such as timber harvest. In addition, the respondent stated this wording
may be inconsistent with proposed Sec. 219.7(d)(1)(v) wording that a
``plan may also identify lands within the plan area as not suitable for
uses that are not compatible with desired conditions for those lands.''
Response: Determining the suitability of a specific land area for a
particular use or activity is usually based upon the desired condition
for that area and the inherent capability of the land to support the
use or activity. NFMA does not impose a requirement to make suitability
determinations for all multiple uses. The NFMA requires that plans
``determine * * * the availability of lands and their suitability for
resource management'' (16 U.S.C. 1604(e)(2).
The Department clarified the wording of paragraph (e)(1)(v) to make
clear that plans will include identification of specific lands as
suitable or not suitable for various multiple uses and activities, in
response to public comment on this section; however, the Department
decided not to require determinations in every plan for specific uses
other than timber. The final rule retains the wording that makes clear
that the suitability of an area need not be identified for every use or
activity, and adds clarifying wording stating that suitability
identifications may be made after consideration of historic uses and of
issues that have arisen in the planning process. The responsible
official will determine when to identify suitability for various uses
and activities as part of the set of plan components needed to meet the
requirements of Sec. Sec. 219.8-219.11.
The identification of suitability is not de facto regulation of
those uses. However, responsible officials may, and often do, develop
closure orders to help achieve desired conditions. If a responsible
official were to develop a closure order, that closure order is a
regulation of uses and would prohibit or constrain public use and
occupancy. Such prohibitions are made under Title 36, Code of Federal
Regulations, Part 261--Prohibitions, Subpart B--Prohibitions in Areas
Designated by Order. Issuance of a closure order may be made
contemporaneously with the approval of a plan, plan amendment, or plan
revision.
Comment: Suitability for mineral materials. Several respondents
felt the determination of the suitability of lands for energy
developments, leasing and extraction, mineral exploration, or mineral
leasing must be required. Other respondents felt the rule should not
imply the Agency has regulatory or administrative authority to
determine which portions of NFS lands are suitable for mineral
exploration and development as such a determination would be a de facto
withdrawal not in accordance with existing laws.
Response: Responsible officials should not make suitability
determinations for any resource such as minerals where another entity
has authority over the disposal or leasing. Congress has given the
Secretary of the Interior authorities over the disposal of locatable
minerals (gold, silver, lead, and so forth) and leasable minerals (oil,
gas, coal, geothermal, among others). The Secretary of Agriculture has
authority over saleable minerals (sand, gravel, pumice, among others).
The final rule or a plan developed under the final rule cannot make a
de facto withdrawal. Withdrawals occur only by act of Congress or by
the Secretary of the Interior through a process under 43 CFR 2300. The
Forest Service minerals regulation at 36 CFR 228.4(d) govern how the
Agency makes decisions about the availability of lands for oil and gas
leasing, and those decisions are not suitability determinations.
Decisions about availability of lands for oil and gas leasing under 36
CFR 228.4(d), have been made for most national forests and grasslands.
Decisions about the availability of lands for oil and gas leasing under
36 CFR 228.4(d) are not plan components; however, availability
decisions may be made at the same time as plan development, plan
amendment, or plan revision; but that is not required.
Comment: Guidelines. One respondent noted the preamble for the
proposed rule stated that guidelines are requirements, but felt
guidelines should be optional. Another respondent felt the proposed
rule eliminates the distinction between plan guidelines and standards,
making guidelines legally enforceable standards with which all projects
must comply. The respondent felt that making guidelines enforceable in
the same way as standards eliminates what the respondent believed to be
the Department's that guidelines are discretionary to provide
management flexibility. One respondent policy advocated making
guidelines binding, because if they are discretionary, why include
them. Several respondents commented on the preferred alternative that
the Department should remove the discretion to meet the rule's
substantive mandates through either standards ``or'' guidelines by
requiring ``standards and guidelines.''
Response: The final rule retains the proposed rule's distinction
between
[[Page 21206]]
standards and guidelines. Under the final rule, standards and
guidelines are both mandatory--projects and activities must be
consistent with the applicable standards and guidelines. Consistency
with a standard is determined by strict adherence to the specific terms
of the standard, while consistency with a guideline allows for either
strict adherence to the terms of the guideline, or deviation from the
specific terms of the guideline, so long as the purpose for which the
guideline was included in the plan is met (Sec. 219.15). This approach
to guidelines allows for flexibility as circumstances warrant, for
example, when there is more than one way to achieve the intended
purpose, or new information provides a better way to meet the purpose,
without lessening protections. Guidelines included in plans pursuant to
this final rule must be written clearly and without ambiguity, so the
purpose is apparent and project or activity consistency with guidelines
can be easily determined.
The final rule retains the preferred alternative's wording of
``standards or guidelines'' throughout sections 219.8-219.11. While
every set of plan components developed to meet a substantive
requirement of the rule must include standards or guidelines, including
both may not be appropriate in every circumstance.
Comment: Use of standards and guidelines to promote action. A
respondent suggested standards and guidelines should be used to promote
or mandate certain management actions, like managing suitable
timberlands towards the desired future condition or reducing fuels
around wildland-urban interface areas.
Response: The Department expects that the set of plan components
developed in response to one or more requirements in the rule will
facilitate management to move the unit towards one or more desired
conditions. Standards and guidelines set out design criteria which are
applied to projects and activities, but do not by themselves result in
specific management actions taking place.
Comment: Mandatory standards. Some respondents stated the final
rule must include measurable standards for specific resources such as
climate change, species viability, sustainable recreation, valid
existing rights, or watershed management, in order to implement the
intent of the rule and to ensure consistency. Others were opposed to
the use of standards and guidelines.
Response: The rule includes specific requirements for plan
components in Sec. Sec. 219.8 through 219.11. The final rule has been
modified to clarify that ``standards or guidelines'' must be part of
the set of plan components required by each of those sections. However,
the Department does not agree there should be specific national
standards for each of the resources or uses mentioned in the comment,
because significant differences in circumstances across the National
Forest System could make specific national standards unworkable or not
reflective of the best available scientific information for a given
plan area. The final rule balances the need for national consistency
with the need for local flexibility to reflect conditions and
information on each unit. Additional direction will be included in the
Forest Service Directives System, and a new requirement was added to
Sec. 219.2 that require the Chief to establish a national oversight
process for accountability and consistency of planning under this part.
Comment: Management areas and special areas. Some respondents
indicated management areas and prescriptions should be required plan
components and identification of areas with remarkable qualities for
special designation should be required as part of the planning process.
Response: The final rule requires each plan to include management
areas or geographic areas, allows for the plan to identify designated
or recommended areas as management areas or geographic areas, allows
the responsible official to identify or recommend new designated areas,
and clarifies the term ``designated area'' under Sec. 219.19, in
response to public comment.
Comment: Potential wilderness area evaluation and management. Some
respondents found the term ``potential wilderness area'' confusing or
inadequate, and the wilderness evaluation process unclear or in
conflict with congressional action.
Response: The final rule wording removes the term ``potential
wilderness areas'' from the final rule in response to public comments.
The wording in Sec. 219.7 clarifies that the Agency will identify and
evaluate lands that may be suitable for inclusion in the National
Wilderness Preservation System and determine whether to recommend them
for wilderness designation. Section 219.10(b)(iv) wording has also been
changed to clarify that areas recommended for wilderness designation
will be managed to protect and maintain the ecological and social
characteristics that provide the basis for their suitability for
wilderness designation. Direction for the evaluation process and
inventory criteria is listed in Forest Service Handbook 1909.12--Land
Management Planning Handbook, Chapter 70--Wilderness Evaluation.
Chapter 70 is part of the Forest Service Directives System being
revised following the final rule and the public is encouraged to
participate in the upcoming public comment period for those directives.
The wilderness evaluation requirement in the rule is not in conflict
with the law. In addition, many State wilderness acts require the
Forest Service to review the wilderness option when the plans are
revised. The Utah Wilderness Act of 1984 is one example, Public Law 98-
428. Sec. 201(b)(2); 98 Stat. 1659.
Comment: Roadless area management and inventory. Some respondents
noted that direction should be added to identify, evaluate, and protect
inventoried roadless areas, and a requirement to remove these areas
from lands suitable for timber production. Some respondents suggested
inclusion of ``unroaded areas,'' as defined in Sec. 219.36 of the 2000
planning rule, in evaluation of lands that may be suitable for
potential wilderness and protocols for such evaluation be included in
the rule. An organization commented on the preferred alternative that
the Department should clarify that the intended starting point for the
wilderness evaluation is a full inventory of all unroaded lands.
Response: Agency management direction for inventoried roadless
areas is found at 36 CFR part 294--Special Areas, and plans developed
pursuant to the final rule must comply with all applicable laws and
regulations (Sec. 219.1(f)).
The wording of Sec. 219.7(c)(2)(v) was changed in the final rule
to clarify that areas that may be suitable for inclusion in the
National Wilderness System must be identified as part of the planning
process, along with recommendations for wilderness designation. This
change makes clear that each unit will identify an inventory of lands
that may be suitable as a starting point for evaluating which lands to
recommend. Inventories of lands that may be suitable for inclusion in
the National Wilderness Preservation System will be conducted following
direction in Forest Service Handbook 1909.12--Land Management Planning
Handbook, Chapter 70 Wilderness evaluation, which also includes
criteria for evaluation. Chapter 70 is part of the Forest Service
Directives System which will be revised following the promulgation of
this rule. The public is encouraged to participate in the upcoming
public comment period for those directives. It is currently Agency
policy that unless otherwise provided by law, all roadless,
[[Page 21207]]
undeveloped areas that satisfy the definition of wilderness found in
section 2(c) of the Wilderness Act of 1964 be evaluated and considered
for recommendation as potential wilderness areas during plan
development or revision (FSM 1923).
Comment: Time limit on Congressional action. A respondent suggested
the rule should include a 10-year time limit for Wild and Scenic River
or Wilderness recommendations to be acted upon by Congress or the
Agency's recommendation is withdrawn.
Response: The Constitution does not grant the U.S. Department of
Agriculture authority to set time limits on Congressional action. The
Department decided it is not going to require responsible officials to
withdraw any such recommendations.
Other Plan Content
Comment: Forest vegetation management practices. Some respondents
requested clarification of proposed Sec. 219.7(f)(1)(iv) phrase
``proportion of probable methods of forest vegetation management
practices expected'' as it is unclear what type of management practices
must be undertaken to successfully satisfy this requirement.
Response: Section 16 U.S.C. 1604(f)(2) of the NFMA requires plans
to ``be embodied in appropriate written material * * * reflecting
proposed and possible actions, including the planned timber sale
program and the proportion of probable methods of timber harvest within
the unit necessary to fulfill the plan.'' Therefore, under the final
rule and Forest Service Directives System, the Department expects plans
to display the expected acres of timber harvest by the categories, such
as: regeneration cutting (even- or two-aged), uneven-aged management,
intermediate harvest, commercial thinning, salvage/sanitation, other
harvest cutting, reforestation, and timber stand improvement in an
appendix. Examples of such exhibits are displayed in Forest Service
Handbook 1909.12, Land Management Planning, Chapter 60, Forest
Vegetation Resource Planning is available at http://www.fs.fed.us/im/directives/fsh/1909.12/1909.12_60.doc. The list of proposed and
possible actions may also include recreation and wildlife projects. The
final rule allows the list to be updated through an administrative
change (Sec. 219.13(c)).
Comment: Distinctive roles and contributions. Some respondents said
there is no legal requirement for identification of a forest or
grassland's distinctive roles and contributions, and the requirement
will bias and polarize the planning process in favor of some uses,
products, and services and against others. Other respondents felt the
unit's distinctive roles should be plan components requiring a plan
amendment to change, or the wording strengthened to require assessment
of underrepresented ecosystems and successional classes across the
broader landscape.
Response: Under the public participation process, the Department
believes the development of the distinctive roles and contributions,
while not required by NFMA, will be a unifying concept helping define
the vision for the plan area within the broader landscape. The
preferred vision is expected to assist the responsible official in
developing plan components for the multiple uses. However, projects and
activities would not be required to be consistent with the plan area's
distinctive roles and contributions, so the Department decided to keep
this description as other plan content.
Comment: Additional plan components and content. Some respondents
suggested additional required plan components like partnership
opportunities, coordination activities, monitoring program, or specific
maps.
Response: Plan components are the core elements of plans. Projects
and activities must be consistent with plan components (Sec. 219.15),
and an amendment or revision is required to change plan components.
Plan components in the rule are usually reserved for ecological,
social, or economic aspects of the environment, but the responsible
official has discretion in developing plan components to meet the
requirements of the final rule.
Some items like a monitoring program are included as other required
content in the plan, but not as a required plan component. The final
rule allows the responsible official to add other plan content for unit
issues and conditions. Other plan content can be other information that
may be useful to Forest Service employees when designing projects and
activities under the plan components. The other content in the plan
(Sec. 219.7(f)) differs from plan components in that an amendment or
revision would not be required for changes to be made to reflect new
information or changed conditions. Monitoring is not included as a plan
component, so the monitoring program can be refined and updated without
a plan amendment in response to new information or changing conditions.
Listing of specific methods for partnership opportunities or
coordination activities as part of the plan is optional content for a
plan. The Department did not require specific maps as part of the final
rule.
Comment: Priority Watersheds. Some respondents asked what process
is used to identify priority watersheds and why priority watersheds are
not a plan component. Some respondents noted the proposed rule
requirement to identify priority watersheds for maintenance and
restoration did not include specific criteria for selecting watersheds
and did not prescribe what activities or prohibitions would occur in
priority watersheds.
Response: Section 219.7(f)(1)(i) requires identification of
priority watersheds for restoration. This will focus integrated
restoration of watershed conditions. Setting priorities can help ensure
that investments provide the greatest possible benefits. The Department
realizes that priority areas for potential restoration activities could
change quickly due to events such as wildfire, hurricanes, drought, or
the presence of invasive species. Therefore, this requirement is
included as ``other required content'' in Sec. 219.7(f)(1)(i) rather
than as a required plan component, allowing an administrative change
(Sec. 219.13) to be used when necessary to quickly respond to changes
in priority. Any changes would require notification.
The Department intends to use the Watershed Condition Framework
(WCF), http://www.fs.fed.us/publications/watershed/Watershed_Condition_Framework.pdf, for identifying priority watersheds,
developing watershed action plans and implementing projects to maintain
or restore conditions in priority watersheds. However, the WCF is a
relatively new tool that will be adapted as lessons are learned from
its use, as new information becomes available, or as conditions change
on the ground. Therefore, because the criteria for selecting watersheds
may change in the future, it is not appropriate to codify such criteria
in a rule. The adaptive management approach incorporated in the WCF
provides the best opportunity and most efficient way to prioritize
watersheds for restoration or maintenance. The Department expects that
implementation of the final rule and the WCF will be mutually
supportive.
Section 219.8--Sustainability
The requirements of this section of the final rule are linked to
the requirements in the assessment (Sec. 219.6) and monitoring (Sec.
219.12). In addition,
[[Page 21208]]
this section provides a foundation for the next three sections
regarding diversity of plant and animal communities (Sec. 219.9),
multiple use (Sec. 219.10), and timber requirements based on the NFMA
(Sec. 219.11). Together these sections of the final rule require plans
to include plan components designed to maintain or restore ecological
conditions to provide for ecological sustainability and to contribute
to social and economic sustainability.
The requirements of this section, and all sections of the rule, are
limited by the Agency's authority and the inherent capability of the
plan area. This limitation arises from the fact that some influences on
sustainability are outside the Agency's control, for example, climate
change, national or global economic or market conditions, and
urbanization on lands outside of or adjacent to NFS lands. Given those
constraints, the Department realizes it cannot guarantee ecological,
economic, or social sustainability. It is also important to note that
plan components themselves do not compel agency action or guarantee
specific results. Instead, they provide the vision, strategy, guidance,
and constraints needed to move the plan area toward sustainability. The
final rule should be read with these constraints in mind.
Additional requirements for contributing to social and economic
sustainability are found in Sec. 219.10 and Sec. 219.11.
Section 219.8--Response to Comments
Many comments on this section focused on the concepts of ecological
health, resilience and integrity, requirements for riparian area
management, the relationship between social, ecological, and economic
sustainability, and the requirements for social and economic
sustainability. The Department reorganized this section to improve
clarity, and made the following changes in response to public comment.
1. The Department changed the order of the wording of the
introductory paragraph.
2. At paragraph (a)(1) of this section, the Department changed the
caption ``Ecosystem plan components'' to ``Ecosystem Integrity.'' In
addition, the Department replaced the phrase ``healthy and resilient''
to ``ecological integrity'' in this paragraph and throughout this
subpart. The Department also modified additional wording of this
section to reflect this change. This change responds to public concern
about how to define and measure ``health'' and ``resilience.''
Ecosystem integrity is a more scientifically supported term, has
established metrics for measurement, and is used by both the National
Park Service and the Bureau of Land Management. Requirements included
in this section, as well as in Sec. 219.9 require plans to include
plan components designed to ``maintain or restore ecological
integrity.''
3. The Department modified the list of factors the responsible
official must take into account when developing plan components at
paragraph (a)(1)(i)-(v). The Department removed the term ``landscape
scale integration'' and replaced it with a requirement for the
responsible official to take into account the interdependence of
terrestrial and aquatic ecosystems, the contributions of the plan area
to the broader landscape, and the conditions of the broader landscape
that influence the plan area. The Department also added a requirement
to take into account opportunities for landscape scale restoration. The
additional wording clarifies the Department's intent that the planning
framework be designed to ensure that managers understand the landscape-
scale context for management, and the interdependence of ecosystems and
resources across the broader landscape.
The Department removed air quality from paragraph (a)(1) and added
air quality to paragraph (a)(2). This change is in response to public
comment that requested that air resources be treated in a similar
manner to soil and water resources. Additionally, the paragraph was
modified to add the term ``standards or guidelines'' to clarify here
and in similar sentences throughout Sec. Sec. 219.8 through 219.11
that standards or guidelines must be part of the set of plan components
developed to comply with requirements throughout the rule. Except for
the change for air quality, these changes to paragraph (a)(1) are not
changes in requirements, because they reflect the Department's intent
as stated in the preamble for the proposed rule, and provide additional
clarity.
4. At paragraph (a)(2) of this section, the Department changed the
caption ``Ecosystem elements'' to ``Air, soil, and water.'' This
reorganized paragraph requires the plan to have plan components,
including standards or guidelines, to maintain or restore the elements
of air, soil, and water resources. The Department also changed the
phrase ``maintain, protect, or restore'' of the proposed rule to
``maintain or restore'' here and throughout the final rule. This change
is in response to public comment, and to make the rule consistent
throughout the sections, and recognizes that the concept of protection
is incorporated as part of how a responsible official accomplishes the
direction to maintain or restore individual resources. These changes
are not changes in requirements, they are clarifications.
5. At paragraph (a)(2) the Department reorganized the elements that
plan components are designed to maintain or restore. The Department
removed the provisions about terrestrial elements and rare plant
communities from paragraph (a)(2); these items are now discussed in
Sec. 219.9(a) of the rule. At paragraph (a)(2)(iv) the Department
combined the wording about aquatic elements and public water supplies
of paragraphs (a)(2)(i) and (a)(2)(iv) of the proposed rule. The
wording about water temperatures changes, blockages of water courses,
and deposits was removed from this paragraph and is now more
appropriately discussed with riparian areas at paragraph (a)(3)(i) of
this section.
6. Paragraph (a)(3) adds specific requirements to the proposed rule
to maintain or restore riparian areas. It provides that plan components
must maintain or restore the ecological integrity of riparian areas,
including ``structure, function, composition and connectivity,'' to
make clear that the plan must provide direction for proactive
management of riparian areas. Paragraph (a)(3) also sets out a list of
elements relevant to riparian areas that must be considered when
developing plan components to maintain or restore ecological integrity,
and it changes the proposed rule's requirement for a ``default width''
for riparian areas to a requirement for a riparian management zone.
These changes respond to public comment to provide more clear and
specific direction for riparian areas. In addition, at paragraph
(a)(3), the Department added a requirement to give special attention to
the area 100 feet from the edges of perennial streams and lakes; and a
requirement that plan components must ensure that no management
practices causing detrimental changes in water temperature or chemical
composition, blockages of water courses, or deposits of sediment that
seriously and adversely affect water conditions or fish habitat shall
be permitted within the zones or the site-specific delineated riparian
areas. These requirements are carried forward from the 1982 rule. These
additional requirements were added because public comments suggested
the proposed rule was too vague or too open to interpretation with
regard to minimum requirements.
7. At paragraph (a)(4), the Department added a requirement for the
Chief to
[[Page 21209]]
establish requirements for national best management practices for water
quality in the Forest Service directives and for plan components to
ensure implementation of these practices. The public will have an
opportunity to comment on these Forest Service directives. The
Department added this requirement to respond to comments that the rule
needed provisions to protect water quality and other comments about the
use of best management practices.
8. At paragraph (b) of this section, the Department requires plan
components to guide the unit's contribution to social and economic
sustainability. The Department modified this paragraph to:
(i) Add reference to ``standards or guidelines,'' consistent with
changes in other sections.
(ii) Remove wording about distinctive roles and contributions
contained in the proposed rule, because the requirement is in Sec.
219.7. This is not a change in requirements.
(iii) Add scenic character, recreation settings, and access in
response to public comment about recreation. This change reflects the
intent of the Department as stated in the preamble to the proposed
rule.
(iv) Add a new requirement to take into account opportunities to
connect people with nature to respond to public comments about the need
to connect Americans, especially young people and underserved
communities, with the NFS. This additional requirement adds specificity
to the proposed rule direction to contribute to social sustainability
and provide for ecosystem services as defined in the proposed rule.
(v) Make additional edits for clarity.
Comment: Maintain, protect, or restore. Some respondents did not
understand why in some sections of the rule (such as Sec. 219.9) the
phrase ``maintain or restore'' was used and in other sections (such as
Sec. 219.8) the phrase ``maintain, protect, or restore'' was used.
They questioned whether the two phrases were intended to mean different
things or provide different levels of protection.
Response: The use of the two different phrases in the proposed rule
was unintended. There was no intent to impart differing levels of
protection or different requirements by the use of the two phrases.
After review of the proposed rule and the preamble, it is apparent that
the two phrases are used interchangeably and often inconsistently. To
avoid future confusion, the phrase ``maintain and restore'' has been
used consistently throughout Sec. Sec. 219.8 and 219.9. The Department
believes that ``protection'' is inherent in maintaining resources that
are in good condition and restoring those that are degraded, damaged,
or destroyed. The Department did not intend to imply that plan
components would not ``protect'' resources where the word ``protect''
was not part of the phrase. Maintenance and restoration may include
active or passive management and will require different levels of
investment based on the difference between the desired and existing
conditions of the system.
Comment: Best management practices and specificity for water
sustainability. Some respondents felt the requirements for maintaining
and restoring watersheds, sources of drinking water, and riparian areas
of the proposed rule lacked the specificity necessary to consistently
implement the rule. A respondent said the rule should reemphasize a
commitment to maintaining water quality standards--through the
limitation of uses incompatible with clean water, management for
restoration of water quality, and the mandatory use of best management
practices. One respondent suggested that plans may list best management
practices that a project is required to adopt. Other respondents said
the final planning rule should also require monitoring for water
quality standard compliance and implementation and effectiveness of
best management practices.
Response: Wording was added to Sec. 219.8 of the final rule to
clarify and add detail to the requirements for plan components for
watersheds, aquatic ecosystems, water quality, water resources
including drinking water resources, and riparian areas, in response to
public comment.
Wording was also added to require that the Chief establish
requirements for national best management practices (BMPs) for water
quality in the Forest Service Directives System, and that plan
components ensure implementation of those practices. The relevant
directives (FSM 2532 and FSH 2509.22) are currently under development
and will be published for public comment. At this time, the Department
anticipates that the proposed directives will require the use of the
national core BMPs (National Core BMP Technical Guide, FS-990a, in
press).
The final rule does not require monitoring of implementation and
effectiveness of best management practices, but does require monitoring
of select watershed and ecosystem conditions, as well as progress
toward meeting the plan's desired conditions and objectives.
These changes and the requirements in this and other sections
reflect the intent as stated in the preamble of the proposed rule to
place a strong emphasis on water resources and develop a framework that
will support watersheds, aquatic ecosystems, and water resources
throughout the National Forest System.
Comment: Riparian area management zone size. Some respondents felt
the rule should include a minimum default width for riparian areas
ranging from 100 feet to 300 feet or to the width of the 100 or 200-
year flood plain. Without specific requirements, respondents felt there
would be inconsistent implementation of the rule. Others preferred the
riparian area default width vary depending on ecological or geomorphic
characteristics approach used in the proposed rule.
Response: The Department added wording at Sec. 219.8(a)(3) to
require special attention to land and vegetation for approximately 100
feet from the edges of all perennial streams and lakes. The Department
decided to make this change to respond to public comment and retain the
special attention provided in the 1982 rule, but decided not to require
a minimum default width because the scientific literature states
riparian area widths are highly variable and may range from a few feet
to hundreds of feet. The final rule requires the responsible official
to use the best available scientific information (Sec. 219.3) to
inform the establishment of the width of riparian management zones
around all lakes, perennial and intermittent streams, and open water
wetlands. Plan components to maintain or restore the ecological
integrity of riparian areas will apply within that zone, or within a
site-specific delineation of the riparian area.
Comment: Management activities in riparian areas. Some respondents
felt the riparian area guidance in the proposed rule represented a
weakening of protection from the 1982 rule and wanted to see stronger
national standards. They felt some management activities, like grazing
and off-highway vehicle (OHV) use, should be prohibited or limited in
riparian areas as they can be harmful to riparian area health. Others
felt management activities in riparian areas should be left to only
restoration efforts. Some respondents felt the riparian management
requirements in the proposed rule were vague or too open to
interpretation. Others felt the proposed rule may preclude active
management within riparian areas.
Response: Section 219.8 has been revised in the final rule to
address these concerns. The final rule requires the
[[Page 21210]]
responsible official to give special attention to land and vegetation
for approximately 100 feet from the edges of all perennial streams and
lakes and further requires that plan components must ensure that no
management practices causing detrimental changes in water temperature
or chemical composition, blockages of water courses, or deposits of
sediment that seriously and adversely affect water conditions or fish
habitat shall be permitted within the riparian management zones or the
site-specific delineated riparian areas. The Department expects
projects and activities, including restoration projects, will occur in
riparian areas. Plans may allow for projects and activities in riparian
areas that may have short term or localized adverse impacts in order to
achieve or contribute to a plan's desired conditions or objectives, so
long as they do not seriously and adversely affect water conditions or
fish habitat.
These requirements are similar to the requirements of the 1982
rule. They are in addition to the final rule requirements in Sec.
219.8(a)(3) that plans must include plan components, including
standards or guidelines, to maintain or restore the ecological
integrity of riparian areas in the plan area, including plan components
to maintain or restore structure, function, and composition. The
changes to the proposed rule make clear that plans must provide for the
ecological integrity of riparian areas in the plan area, and must
include a set of plan components, including standards or guidelines, to
do so. The responsible official must also take into account water
temperature and chemical composition, blockages of water courses,
deposits of sediment, aquatic and terrestrial habitats, ecological
connectivity, restoration needs, and floodplain values and risk of
flood loss when developing these plan components. These requirements
are in addition to the requirements in Sec. 219.8(a)(2) to include
plan components to maintain or restore water quality and water
resources, and the requirement in Sec. 219.7(f) to identify priority
watersheds for restoration or maintenance.
The Department believes that these requirements provide strong
direction for proactive management (active and passive) of water
resources beyond what was required in the 1982 rule, while allowing the
responsible official to use the best available scientific information,
public input, and information about local conditions to inform
development of plan components in response to these requirements.
Comment: Sustainability and multiple use. Some respondents felt the
proposed rule did not adequately recognize the importance of the
multiple use mandate because the proposed rule at Sec. 219.8 omitted
any reference to multiple use.
Response: The proposed rule and the final rule both explicitly
recognize multiple uses in Sec. 219.8(b), with additional direction
provided in Sec. 219.10 with regard to management for multiple uses.
Comment: Maintain ecological conditions. Some respondents felt the
proposed requirements to maintain or restore ecological conditions in
Sec. Sec. 219.8 and 219.9 would allow for the Agency to develop plan
components maintaining current degraded ecological conditions.
Response: The intent of the rule is for plan components to maintain
desired conditions, and restore conditions where they are degraded.
However, the Department recognizes in some instances it may be
impracticable or impossible to restore all degraded, damaged or
destroyed systems that may be present in a plan area because of cost,
unacceptable tradeoffs between other resource and restoration needs, or
where restoration is outside the capability of the land or Forest
Service authority. There are also degraded areas on NFS lands where the
tools or methods are not currently available to effectively restore
them to desired conditions. The Department recognizes that at times,
management activities maintaining existing, less than desirable
conditions in the short-term may be critical to preventing further
degradation and for successful restoration towards desired conditions
over the long-term. For example, the primary management emphasis in
some areas may be controlling the spread of invasive species when
eradication is not currently feasible.
Ecological Integrity
Comment: Integration of terrestrial and aquatic ecosystems. Some
respondents felt the proposed rule was unclear in the requirement that
the responsible official take into account the integration of
terrestrial and aquatic ecosystems in the plan area when creating plan
components to maintain or restore the health and resilience of
terrestrial and aquatic ecosystems and watersheds in the plan area.
Response: The final rule adds clarifying wording to Sec. 219.8.
The word ``integration'' was changed to ``interdependence'' to better
reflect the Department's intent, and new wording was added requiring
the responsible official to consider contributions of the unit to
ecological conditions within the broader landscape influenced by the
plan area and conditions in the broader landscape that may influence
the sustainability of resources and ecosystems, as well as
opportunities for landscape scale restoration. These changes clarify
the former requirement in the proposed rule and strengthen the planning
framework by ensuring responsible officials understand the
interdependence of ecosystems in the plan area, as well as the role and
contribution of their units and the context for management within the
broader landscape.
Comment: Invasive species. Some respondents felt the rule should
have more explicit requirements on how invasive species management
would be included in plans.
Response: It is clear that the introduction of invasive species to
national forest and grassland ecosystems has had, and is continuing to
have, profound effects on the ecological integrity of these ecosystems.
The final rule explicitly addresses invasive species in Sec. 219.6,
which requires information about stressors such as invasive species to
be identified and evaluated, and in corresponding requirements in
Sec. Sec. 219.8 and 219.10. Plan components are required to maintain
or restore ecological integrity under Sec. Sec. 219.8, taking into
account stressors including invasive species, and the ability of the
ecosystems on the unit to adapt. Plan components for multiple uses must
also consider stressors, including invasive species, and the ability of
the ecosystems on the unit to adapt.
Social and Economic Sustainability
Comment: Relationship between ecological, social and economic
sustainability. Some respondents felt ecological sustainability should
be prioritized over social and economic sustainability, whereas other
felt that economic sustainability should be prioritized. Others felt
NFS lands should be managed primarily for multiple uses that contribute
to economic and social sustainability. Some respondents felt the
proposed rule incorrectly prioritizes plan components by use of
``maintain or restore'' elements of ecological sustainability over the
use of the term ``to contribute'' for social and economic
sustainability. Some respondents expressed differing opinions about the
relative importance of ecological, social, and economic sustainability
in relation to multiple uses. A respondent felt social and economic
sustainability should not be included in the rule, while another felt
[[Page 21211]]
ecological sustainability should not be included. Some respondents felt
social, environmental, and economic considerations are not competing
values but interdependent and all play a role in management. Some
respondents disagreed with the concept that the Agency has more control
over ecological sustainability than social and economic sustainability.
Some respondents felt the proposed rule definition of sustainability
was not clear.
Response: The MUSYA requires ``harmonious and coordinated
management of the various resources, each with the other, without
impairment of the productivity of the land, with consideration being
given to the relative values of the various resources, and not
necessarily the combination of uses that will give the greatest dollar
return or greatest unit output'' (16 U.S.C. 531). Under this final
rule, ecological, social, and economic systems are recognized as
interdependent, without one being a priority over another. The rule
requires the consideration of ecological, social, and economic factors
in all phases of the planning process. However, the final rule
recognizes that the Agency generally has greater influence over
ecological sustainability on NFS lands than over broader social or
economic sustainability, although it cannot guarantee sustainability
for any of three. The Department recognizes that management of NFS
lands can influence social and economic conditions relevant to a
planning area, but cannot ensure social and economic sustainability
because many factors are outside of the control and authority of the
responsible official. For that reason, the final rule requires that the
plan components contribute to social and economic sustainability, and
provide for ecological sustainability, within Forest Service authority
and the inherent capability of the plan area.
Ecological sustainability will help provide people and communities
with a range of social, economic, and ecological benefits now and in
the future. In addition, plan components will provide directly for a
range of multiple uses to contribute to social and economic
sustainability. The final rule includes a modified definition of
sustainability by defining the terms ecological sustainability,
economic sustainability, and social sustainability as part of the
definition of sustainability.
Comment: Connecting people to nature. Some respondents felt the
rule should contain wording to encourage a sense of value for public
lands necessary in maintaining these lands for enjoyment by future
generations. In an increasingly urbanized society, they felt access to
NFS lands is necessary for people to visit, learn, recreate, and
generate their livelihood.
Response: Section 219.8(b)(6) of the final rule requires the
responsible official take into account opportunities to connect people
with nature.
Comment: Cultural sustainability. Some respondents felt the rule
should include management of cultural resources as a separate aspect of
sustainability. A respondent felt proposed Sec. 219.8(b)(4) should be
expanded to include ``cultural landscapes.''
Response: The final rule does not create a separate aspect of
sustainability for management of cultural resources, but does address
cultural resources and uses. The definition in the final rule of
``social sustainability'' recognizes the ``relationships, traditions,
culture, and activities that connect people to the land and to one
another, and support vibrant communities.'' In addition: Section
219.1(c) recognizes that NFS lands provide people and communities with
a wide array of benefits, including ``cultural benefits.'' Section
219.4 requires opportunities for public and Tribal participation and
coordination throughout the planning process. Section 219.4(a)(3)
requires that the responsible official request ``information about
native knowledge, land ethics, cultural issues, and sacred and
culturally significant sites'' during consultation and opportunities
for Tribal participation. Section 219.6(b) requires the assessment to
include identification and evaluation of information about cultural
conditions and cultural and historic resources and uses. Section 219.8
in the final rule recognizes cultural aspects of sustainability by
requiring ``cultural and historic resources and uses'' be taken into
account when designing plan components to guide contributions to social
and economic sustainability. Section 219.10(b)(1)(ii) of the rule
requires ``plan components * * * for a new plan or plan revision must
provide for protection of cultural and historic resources,'' and
``management of areas of Tribal importance.'' The final rule also
includes recognition of and requirements for ``ecosystem services,''
which include ``cultural heritage values.'' These requirements, in
combination with the requirement that plan content include descriptions
of a unit's roles and contributions within the broader landscape under
Sec. 219.7(e), ensure the cultural aspects of sustainability will be
taken into account when developing plan components that guide unit
contributions to social sustainability.
Comment: Local economies, communities, and groups. Some respondents
felt the rule should require coordination with or participation of
local communities. Some respondents felt the rule should recognize that
how units are managed can greatly influence local communities and
economies. Some respondents felt the rule should include maintaining
``vibrant communities.'' Some respondents felt the proposed rule
preamble discussion about the Agency's relative influence over
ecological as compared with social and economic sustainability was
incorrect, as the Agency has more influence or impact on local
communities than the preamble implied. A respondent felt the rule
should consider all communities, not just local. A respondent felt the
proposed rule inappropriately allows the Agency to dictate social and
economic sustainability of local communities.
Response: Nothing in the final rule would dictate the social or
economic sustainability of local communities--to the contrary, the rule
recognizes that plans cannot dictate social or economic sustainability.
However, the Department recognizes that management of NFS lands can
influence local communities as well as persons and groups outside of
these communities, and that some local economies may be more dependent
on the management of the plan area and NFS resources than others.
Section 219.4 requires the responsible official to engage local
communities, as well as those interested at the regional and national
levels, as well as to coordinate with other public planning efforts,
including State and local governments, and Tribes. Section 219.6(b)
requires in the assessment phase that responsible officials identify
and evaluate existing relevant information about social, cultural, and
economic conditions, benefits people obtain from the NFS planning area,
and multiple uses and their contribution to the local, regional, and
national economies. Section 219.8 requires that plans provide plan
components to contribute to economic and social sustainability, and
section 219.10 requires plans to provide for ecosystem services and
multiple uses. Section 219.12 requires monitoring progress toward
meeting the desired conditions and objectives in the plan, including
for providing multiple use opportunities. These requirements will help
plans contribute to vibrant communities.
Comment: Specific processes for assessing social and economic
[[Page 21212]]
sustainability. Some respondents felt the final rule should include
specific processes for assessing social and economic sustainability,
such as analyzing the role of forest receipts (Federal revenues that
are shared with states and counties) on local economies. A respondent
felt the proposed rule required less involvement by social and economic
experts than by other types of experts or scientists.
Response: The final rule provides a framework for plan development,
amendment, and revision with sufficient flexibility to accommodate the
continuously evolving range of social and economic conditions across
the Forest Service administrative units. The final rule does not
prescribe a specific process for assessing and evaluating social and
economic sustainability, nor does it include descriptions of area
boundaries for social and economic impact analysis. Such direction,
guidance, or advice, is more appropriate in the Forest Service
directives. The public will be given an opportunity to review and
comment on any Forest Service Manual or Forest Service Handbook
revision associated with land management planning. Social, economic,
and ecologic experts are all welcome to participate in the planning
process: This final rule does not discriminate or give more weight to
one group or kind of expert over another.
Section 219.9--Diversity of Plant and Animal Communities
This section of the final rule fulfills the diversity requirement
of the NFMA, which directs the Forest Service to ``provide for
diversity of plant and animal communities based on the suitability and
capability of the specific land area in order to meet multiple-use
objectives, and within the multiple-use objectives of a land management
plan adopted pursuant to this section [of this Act], provide, where
appropriate, to the degree practicable, for steps to be taken to
preserve the diversity of tree species similar to that existing in the
region controlled by the plan'' (16 U.S.C. 1604(g)(3)(B)).
The final rule adopts a complementary ecosystem and species-
specific approach to provide for the diversity of plant and animal
communities and the long-term persistence of native species in the plan
area. Known as a coarse-filter/fine-filter approach, this is a well-
developed concept in the scientific literature and has broad support
from the scientific community and many members of the public. This
requirement retains the strong species conservation intent of the 1982
rule but with a strategic focus on those species that are vulnerable
paired with a focus on overall ecosystem integrity and diversity. The
final rule requires the use of the best available scientific
information to inform the development of the plan components including
the plan components for diversity. It also recognizes limits to agency
authority and the inherent capability of the plan area.
The Department's intent in providing the requirements in this
section is to provide for diversity of plant and animal communities,
and provide ecological conditions to keep common native species common,
contribute to the recovery of threatened and endangered species,
conserve candidate and proposed species, and maintain viable
populations of species of conservation concern within the plan area.
The premise behind the coarse-filter approach is that native
species evolved and adapted within the limits established by natural
landforms, vegetation, and disturbance patterns prior to extensive
human alteration. Maintaining or restoring ecological conditions
similar to those under which native species have evolved therefore
offers the best assurance against losses of biological diversity and
maintains habitats for the vast majority of species in an area, subject
to factors outside of the Agency's control, such as climate change. The
final rule recognizes the importance of maintaining the biological
diversity of each national forest and grassland, and the integrity of
the compositional, structural, and functional components comprising the
ecosystems on each NFS unit.
The coarse-filter requirements of the rule are set out as
requirements to develop plan components designed to maintain or restore
ecological conditions for ecosystem integrity and ecosystem diversity
in the plan area. Based upon the current science of conservation
biology, by working toward the goals of ecosystem integrity and
ecosystem diversity with connected habitats that can absorb
disturbance, the Department expects that over time, management would
maintain and restore ecological conditions which provide for diversity
of plant and animal communities and support the abundance,
distribution, and long-term persistence of native species. These
ecological conditions should be sufficient to sustain viable
populations of native plant and animal species considered to be common
or secure within the plan area. These coarse-filter requirements are
also expected to support the persistence of many species currently
considered imperiled or vulnerable across their ranges or within the
plan area.
For example, by maintaining or restoring the composition,
structure, processes, and ecological connectivity of longleaf pine
forests, national forests in the Southeast provide ecological
conditions that contribute to the recovery of the red-cockaded
woodpecker (an endangered species) and conservation of the gopher
tortoise (a threatened species), in addition to supporting common
species that depend on the longleaf pine ecosystem.
Similarly, maintaining or restoring shortgrass prairies on national
grasslands in the Great Plains contributes to the conservation of
black-tailed prairie dogs (regional forester sensitive species (RFSS)
of the Rocky Mountain Region), mountain plovers (proposed threatened),
and burrowing owls (RFSS), in addition to supporting common species
that depend on the shortgrass prairie ecosystem. Maintaining or
restoring watershed, riparian, and aquatic conditions in the national
forests in the Northeast contributes to the conservation of the eastern
brook trout (RFSS), in addition to supporting common species that
depend on functioning riparian areas and aquatic ecosystems in the
area.
The final rule would further require additional, species-specific
plan components, as a ``fine-filter,'' to provide for additional
specific habitat needs or other ecological conditions of certain
categories of species, when the responsible official determines those
needs are not met through the coarse-filter. The species for which the
rule requires fine-filter plan components, when necessary, are
federally listed threatened and endangered (T&E) species, proposed and
candidate species, and species of conservation concern. If the
responsible official determines that compliance with the coarse-filter
approach is insufficient to provide the ecological conditions necessary
to contribute to the recovery of federally listed threatened and
endangered species, conserve species that are proposed or candidates to
Federal listing, or maintain within the plan area a viable population
of a species of conservation concern, then additional species-specific
plan components that would do so are required, within Agency authority
and the inherent capability of the land.
Species-specific plan components provide the fine-filter complement
to the coarse-filter approach. For example, while coarse-filter
requirements to restore longleaf pine ecosystems may provide most of
the necessary ecological conditions for the endangered red-
[[Page 21213]]
cockaded woodpecker, additional fine-filter species-specific plan
components may also be needed, for example, a plan standard to protect
all known red-cockaded woodpecker cavity trees during prescribed
burning activities. Examples for other species might include requiring
proper size and placement of culverts to allow for aquatic organism
passage on all streams capable of supporting eastern brook trout, or
requiring closure devices on all cave and mine entrances to prevent the
spread of white-nose syndrome to bat populations in the plan area.
Unlike the 1982 rule, the final rule explicitly acknowledges that
there are limits to Agency authority and the inherent capability of the
land. With respect to species of conservation concern (SCC), the
responsible official may determine that those limits prevent
maintenance or restoration of the ecological conditions necessary to
maintain a viable population of a species of conservation concern
within the boundaries of the plan area. The responsible official must
then include plan components to maintain or restore ecological
conditions within the plan area to contribute to maintaining a viable
population of that species within its range. In doing so, the
responsible official would be required to coordinate to the extent
practicable with other land managers.
Examples of factors outside the control of the Agency could
include: A species needing an area larger than the unit to maintain a
viable population; non-NFS land management impacts to species that
spend significant parts of their lifecycle off NFS lands; activities
outside the plan area (for example, increasing fragmentation of habitat
or non- and point source pollution often impact species and their
habitats, both on and off NFS lands); failure of a species to occupy
suitable habitat; and climate change and related stressors, which could
impact many species and may make it impossible to maintain current
ecological conditions. Other stressors, such as invasive species,
insects, disease, catastrophic wildfire, floods, droughts, and changes
in precipitation, among others, may also affect species and habitat in
ways that the Agency cannot completely control or mitigate for.
In section 219.19, the Department defines native species as ``an
organism that was historically or is present in a particular ecosystem
as a result of natural migratory or evolutionary processes; and not as
a result of an accidental or deliberate introduction into that
ecosystem. An organism's presence and evolution (adaptation) in an area
are determined by climate, soil and other biotic and abiotic factors.''
By defining species as ``was historically or is present in a particular
ecosystem,'' the Department is not suggesting that historically native
species that are no longer present must be reintroduced. The Department
is recognizing that if such species were to return or to be
reintroduced to the area, they would still be considered native.
In addition to developing, amending, and revising plans under the
diversity requirements of this section, the final rule includes
requirements for ecological sustainability in Sec. 219.8, and in Sec.
219.10 for providing for multiple uses including wildlife and fish,
considering ecosystem services, fish and wildlife species, habitat and
habitat connectivity, and habitat conditions for wildlife, fish, and
plants commonly enjoyed and used by the public when developing plan
components for integrated resource management. Requirements in the
assessment and monitoring phases are also linked to and support the
requirements of this section.
Section 219.9--Response to Comments
The Department received many comments on this section. People
suggested a broad range of approaches, including reinstating the 1982
viability requirements; protecting and maintaining healthy habitats
with no species specific provisions; increasing viability requirements;
and mirroring the NFMA wording for diversity without including
reference to viability. In addition, some people emphasized that there
is a need to coordinate and cooperate beyond NFS unit boundaries for
purposes of identifying and protecting critical habitat, migration
corridors, and other habitat elements.
The Department also received many comments expressing concern or
confusion over the relationship between the ecosystem diversity
requirement in paragraph (a) and the species conservation requirement
in paragraph (b) in this section of the proposed rule. In particular,
there was concern over whether the complementary coarse-filter and
fine-filter strategy described in the preamble and DEIS for the
proposed rule was clearly expressed in the proposed rule wording
itself. Additionally, there was a lack of understanding of how these
two requirements would maintain both the diversity of plant and animal
communities and the persistence of native species within the plan area
as expressed in the preamble.
In response to public comments, the Department modified the
proposed rule wording and made additions to it. The result is a final
Sec. 219.9 that has the same intent as the proposed rule but is
clearer and will better effectuate the Department's approach to
providing for diversity.
The Department added wording to the introduction to explain, as
expressed in the preamble for the proposed rule, that plans adopt a
complementary ecosystem (coarse-filter) and species-specific (fine-
filter) approach to maintaining the diversity of plant and animal
communities and the persistence of native species in the plan area.
This combined approach for maintaining biological diversity over large
landscapes is a well-developed concept in the scientific literature,
and is generally supported by the science community for application on
Federal lands.
Paragraph (a) was modified with the new heading of ``Ecosystem plan
components,'' and subdivided into 2 parts. The new paragraph (a)(1) has
a heading of ``Ecosystem integrity'' and includes the requirements of
paragraph (a) of the proposed rule, consistent with the equivalent
requirement in Sec. 219.8(a). As in Sec. 219.8 the ``health and
resilience'' of the proposed rule was replaced with ``ecological
integrity'' as described in the discussion of 219.8. The concept of
ecological integrity is also being advanced by the U.S. Department of
the Interior for National Park System lands. Having similar approaches
to assessing and evaluating ecological conditions across the broader
landscape will facilitate an all-lands approach to ecological
sustainability.
The Department added a new paragraph ((a)(2)), which retains the
proposed rule heading of ``ecosystem diversity.'' This paragraph
includes new wording to make clear that the plan must include plan
components to maintain the diversity of ecosystems and habitat types in
the plan area. This change was made to explain, as described in the
preamble to the proposed rule that plans provide for ecosystem
diversity. As part of providing for this requirement, paragraph (a)(2)
includes direction to provide plan components to maintain and restore
key characteristics of ecosystem types (similar to requirements of
proposed rule Sec. 219.8(2)(i) and (ii)), rare native plant and animal
communities (moved from proposed rule Sec. 219.8(a)(2)(iii)), and
diversity of native tree species (moved from paragraph (c) of proposed
Sec. 219.9). Both subsections of paragraph (a) direct that the
responsible official include ``standards or guidelines'' in the set of
plan components developed to meet these requirements.
[[Page 21214]]
The heading of paragraph (b) was changed from ``Species
Conservation'' to ``Additional, species-specific plan components'' to
clarify the fact that both the ecosystem plan components (coarse-
filter) and the additional species-specific plan components (fine-
filter) contribute to species conservation. Paragraph (b)(1) adds
proposed species to candidate species as species to be conserved. The
substance of paragraph (b) was modified in the final rule to make it
clear that the plan components required by this paragraph are intended
to complement and supplement the coarse-filter requirements, where
necessary.
In response to comments on the preferred alternative, a change was
made to the wording in Sec. 219.9(b)(1) to clarify the Department's
intent that the responsible official must make a determination as to
whether additional, species-specific plan components are required. The
final rule states that ``the responsible official shall determine
whether or not the plan components required by paragraph (a) provide
the ecological conditions necessary to: contribute to the recovery of
federally listed threatened and endangered species, conserve proposed
and candidate species, and maintain a viable population of each species
of conservation concern within the plan area.''
The ``if then'' statement in paragraph (b)(1) conveys the
Department's expectation that for most native species, including
threatened, endangered, proposed, candidate, and species of
conservation concern, the ecosystem integrity and ecosystem diversity
requirements (coarse-filter) would be expected to provide most or all
of the ecological conditions necessary for those species' persistence
within the plan area. However, for threatened, endangered, proposed,
candidate, and species of conservation concern, the responsible
official must review the coarse-filter plan components, and if
necessary, include additional, species-specific (fine-filter) plan
components to provide the ecological conditions to contribute to
recovery of threatened and endangered species, to conserve proposed and
candidate species, and to maintain viable populations of species of
conservation concern in the plan area. As in many places in the final
rule, paragraph (b) clarifies that the responsible official will
include ``standards or guidelines'' in the set of plan components
developed to meet these requirements. The word ``developed'' in this
paragraph was changed to the word ``included'' to be consistent with
similar construction in this and other sections that the plan will
include plan components to meet various requirements.
Within paragraph (b)(1), the Department changed the requirement for
ecological conditions to maintain ``viable populations of species of
conservation concern'' (Sec. 219.9 (b)(3) of the proposed rule) to ``a
viable population of each species of conservation concern'' (emphasis
added). The change reflects the Department's intent from the proposed
rule, but provides clarity in response to confusion about whether the
proposed rule wording referred to populations of different species or
multiple populations of the same species in the plan area, as well as
concern that the proposed rule wording could be interpreted to mean
that plans did not have to address every species of conservation
concern. This clarification is consistent with the preamble of the
proposed rule which discusses the agency's obligation in terms of
maintaining ``a viable population of a species of conservation concern
* * * to maintain the long-term persistence of that species.'' 76 FR
8493 (February 14, 2011).
As in the proposed rule, the ecosystem and species-specific
requirements in the final rule are both limited by Forest Service
authority and the inherent capability of the plan area. As in the
proposed rule, the final rule provides an alternative standard for
species of conservation concern if it is beyond the Forest Service's
authority or the inherent capability of the plan area to provide
ecological conditions to maintain a viable population of a species of
conservation concern within the plan area. In such cases, the final
rule requires that the responsible official document that determination
(new requirement in the final rule) and include plan components,
including standards or guidelines, to maintain or restore ecological
conditions within the plan area to contribute to maintaining a viable
population of the species within its range. The words ``to the extent
practicable'' following the word ``contribute'' were removed from the
final rule because they caused confusion and were unnecessary given
other provisions of the rule, including Section 219.1(g). The final
rule retains a modified requirement that in providing such plan
components, the responsible official shall coordinate to the extent
practicable with other Federal, State, Tribal, and private land
managers having management authority over lands ``relevant to that
population,'' to reflect the need for a cross boundary approach to
species conservation.
The Department added paragraph (c) to the final rule to modify and
clarify the definition of species of conservation concern, formerly in
section 219.19. The new wording clarifies that the species of
conservation concern must be ``known to occur in the plan area,'' that
the regional forester is the line officer who identifies the species of
conservation concern, and the standard for that is ``the best available
scientific information indicates substantial concern about the species'
capability to persist over the long term in the plan area.''
The Department believes these revisions more clearly describe the
application of the coarse-filter/fine-filter strategy for maintaining
biological diversity as discussed in scientific literature and the
PEIS. As plan components designed to meet these requirements are
created and complied with, the broad spectrum of habitat and other
ecological conditions necessary to support the diversity of plant and
animal communities and the persistence of native plant and animal
species would be expected through this complementary strategy.
Comment: Relationship between ecosystem diversity and species
conservation. Some respondents felt the proposed rule was confusing in
its description of the relationship between the ecosystem diversity
requirement in proposed Sec. 219.9(a) and the species conservation
requirement in Sec. 219.9(b). They felt the complementary coarse-
filter/fine-filter strategy described in the preamble and DEIS was not
clearly expressed in the proposed rule wording. Additionally, they felt
it was unclear on how these two requirements would maintain the
diversity of plant and animal communities and the persistence of native
species within the plan area.
Response: In response to public comments, the Department clarified
the proposed rule wording and made additions to the final rule. The
coarse-filter/fine-filter approach used in the final rule and the
modifications made to the proposed rule are explained in the
introductory paragraphs of the response to comments on section 219.9.
Comment: Threatened, and endangered species. Some respondents felt
the Department should consult with the U.S. Fish and Wildlife Service
and the National Marine Fisheries Service on potential effects to
threatened and endangered species as a result of the proposed planning
rule. Others felt recovery plans are not legally enforceable documents;
therefore, they are not mandatory for Federal agency adoption.
[[Page 21215]]
Response: Beginning in 2009 and continuing through the development
of this planning rule and its accompanying PEIS, representatives from
the U.S. Fish and Wildlife Service and the National Marine Fisheries
Service met regularly with the Forest Service to discuss ESA issues
related to the rule. The three agencies worked together to identify the
relevant issues and appropriate level of analysis associated with the
final rule and environmental analysis, and have collaborated on a
consultation process and on the biological assessment. The Agency
requested consultation with these regulatory agencies in July 2011.
Additionally, the Agency requested conferencing on the potential
effects of the rule on all species proposed for Federal listing that
currently occur on NFS lands and those that are candidates for Federal
listing occurring on or are suspected to occur on NFS lands. The Agency
completed consultation, as discussed in this preamble in the section
with the caption of: Compliance with the Endangered Species Act of
1973, as Amended.
NFS lands are a major contributor to threatened and endangered
species recovery plans and actions, maintaining habitat for such
species as red-cockaded woodpecker, Canada lynx, bull trout, steelhead,
and many other listed species. As part of the Forest Service mission,
the actions needed to recover T&E species and maintain or restore
critical habitats are a high priority. These species are at risk of
extinction and are protected under the ESA. Under the ESA, the Forest
Service is to carry out ``programs and activities for the conservation
of endangered species and threatened species'' (16 U.S.C. 1536(a)(1))
and ``insure that any action authorized, funded or carried out by [it]
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of [designated critical habitat]'' (16 U.S.C. 1635(a)(2)).
As did the proposed rule, the final rule requires that the plan
include plan components to provide ecological conditions in the plan
area necessary to contribute to the recovery of T&E species, using
coarse-filter plan components and adding species-specific plan
components where necessary. While the 1982 rule at section 219.19(a)(7)
did have specific requirements for protection of T&E critical habitat,
and required objectives to remove T&E species from listing, where
possible, through appropriate conservation measures, the requirement in
the final rule that requires plan components to provide ecological
conditions to ``contribute to the recovery of'' T&E species is more
comprehensive. The final rule recognizes that these species may not be
viable or have a viable population at this time, and in many cases may
rely on lands and conditions outside NFS boundaries and beyond Agency
control. Thus an individual NFS unit rarely can fully meet the recovery
needs of a listed species. Under this final rule, the Department
anticipates that plan components, including standards or guidelines,
for the plan area would address conservation measures and actions
identified in recovery plans relevant to T&E species. When implemented
over time, these requirements would be expected to result in plans that
will be proactive in the recovery and conservation of the threatened,
endangered, proposed, and candidate species in the plan areas. These
requirements will further the purposes of Sec. 7(a)(1) of the ESA, by
actively contributing to threatened and endangered species recovery and
maintaining or restoring the ecosystems upon which they depend.
The Forest Service frequently collaborates with the U.S. Fish and
Wildlife Service (USFWS) and the National Oceanic and Atmospheric
Administration (NOAA) in the development and implementation of recovery
plans for many species. The Forest Service will continue to work with
USFWS, NOAA, States, and other partners to conserve and recover
federally listed plant and animal species. The responsible official may
also contribute to other recovery actions, such as species
reintroductions to increase species distribution and threatened and
endangered species monitoring programs. In addition, the Agency will
continue to evaluate effects of proposed management actions to T&E
species or designated critical habitat. Consultation with the
appropriate regulatory agency(s) will also occur at the plan
development, amendment, or revision stage and again at the project
stage, if they may affect any federally listed species or designated
critical habitat. Additional guidance will be forthcoming on procedures
for conducting ESA section 7(a)(1) conservation reviews of plans in the
Forest Service directives.
Complementary sections of the final rule, Sec. Sec. 219.3, 219.4,
and 219.6, in combination emphasize: the role of science in preparing,
revising, or amending a plan; collaboration, including coordination
with other planning efforts; consideration of objectives of other
agencies and entities; the encouragement of appropriate agencies and
entities to participate in determining assessment needs and identify
contributions of relevant broad-scale assessments and plans of other
agencies and governments; and the incorporation of broad-scale
monitoring to address questions that are more appropriately answered at
scales beyond NFS boundaries. These processes, programs, and activities
would be incorporated into future unit planning processes and plans,
and as these plans are implemented, they will actively contribute to
ESA goals.
Comment: Candidate and proposed species. Many respondents supported
the proposed rule requirement to conserve species that are candidates
for Federal listing. Other respondents questioned why the proposed rule
requires candidate species conservation as these species have not
received Federal protection under ESA, and this may lead to more
petitions for species listings being filed in the future and further
limit the management options of the Agency.
Response: The Department added definitions for ``candidate
species,'' and ``proposed species,'' and ``conserve'' to Sec. 219.19
of the final rule to clarify the definitions of these terms and to
avoid misunderstanding. Under the ESA, candidate and proposed species
do not receive the special legal protections afforded to threatened and
endangered species. However, the Department believes it is important to
develop plan components for those plant and animal species that are
proposed or candidates for Federal listing that occur on NFS lands, in
order to assist in their recovery such that a Federal listing is no
longer required. Similar to T&E species, candidate and proposed species
may not have a viable population that can be maintained in the plan
area at this time. In the final rule, the Agency would provide coarse-
filter, and where necessary, additional fine-filter plan components for
ecological conditions that would conserve candidate and proposed
species, reducing risks to those species and providing for the
maintenance or restoration of needed ecological conditions.
Comment: Authority for viability. Some respondents felt the
proposed rule's concept of species viability may be outside the
Agency's authority to implement; they take the position that managing
for species diversity and viability is the responsibility of State
agencies, the National Marine Fisheries Service, and the U.S. Fish and
Wildlife Service.
Response: The requirement, to ``provide for diversity of plant and
animal communities'' as set forth under
[[Page 21216]]
Sec. 1604(g)(3)(B) of the NFMA, does not specifically reference the
diversity or viability of particular species. It is a statutory
requirement that there be a planning rule that provides for diversity.
However, it is within the Department's authority to require that plans
provide ecological conditions to maintain viable populations of species
of conservation concern. The Department's ability to maintain the
diversity of plant and animal communities is dependent on protecting
the plant and animal species and the interactions and processes the
species perform. The Department developed the final rule in recognition
that many Agency plans, programs, and activities are important
influences on providing the desired ecological conditions for plant and
animal communities and native species on NFS lands. In accordance with
the MUSYA, plans must also provide for multiple uses including wildlife
and fish.
The provisions in this final rule are focused on providing the
ecological conditions necessary to support the diversity and
persistence of native plant and animal species. The final rule
maintains and provides additional direction to work with State fish and
wildlife agencies, other Federal agencies, as well as others, to
conserve fish, wildlife, and plant habitats and populations on NFS
lands and to contribute to shared goals, such as those provided in
state wildlife action plans or in threatened or endangered species
recovery plans. Requirements in Sec. Sec. 219.4, 219.6, 219.10, and
219.12 of this final rule complement and support interagency
collaboration on habitat and species conservation.
Comment: Species of Conservation Concern (SCC) and Viability. Some
respondents felt the rule should include the following wording from
Sec. 219.19 of the 1982 rule: ``Fish and wildlife habitat shall be
managed to maintain viable populations of existing native and desired
non-native vertebrate species in the planning area.'' Some felt this
standard should be extended to plants and invertebrates as well as
vertebrates, and not only to SCC. Some respondents felt the proposed
rule weakens current protections for plant and animal species
therefore, the rule needs inclusion of clear, strong requirements
focused on protecting and maintaining all native species within a plan
area. On the other hand several respondents felt the proposed
requirement to maintain viability of SCC is too expensive and
cumbersome to implement. They felt this requirement is unattainable and
procedurally impossible to demonstrate. Some respondents were opposed
to providing protections for species other than vertebrates as it could
lead to the possibility of maintaining viable populations of
invertebrates, fungi, microorganisms, and other life forms, which these
respondents suggest is inappropriate and beyond the Agency's authority.
Response: The Department concludes that managing ecological
conditions for species protection is well within the authority of the
Forest Service to manage the NFS for multiple use, and that the
requirements of this section are more strategic and implementable than
the 1982 rule while providing strong requirements focused on
maintaining diversity and the persistence of native species within the
plan area. The 1982 rule required that ``habitat shall be managed to
maintain viable populations of existing native and desired non-native
vertebrate species in the planning area.'' There may be hundreds of
vertebrate species on a particular plan area. For some vertebrate
species there may be little scientific information about their life
requirements and habitat relationships, even though they may be
considered common and secure within habitats provided on a NFS unit.
For other vertebrate species, the requirement to maintain viable
populations in the planning area may be unattainable, for reasons
outside of the Agency's control.
The final rule instead relies on current scientific literature to
adopt the complementary ecosystem and species-specific approach
described above in the introduction to this section, and to focus
species-specific management attention on those species that are
vulnerable. Ecosystem (coarse-filter) plan components are expected to
provide the necessary ecological conditions for species that are
common, with viable populations in the plan area and no reason for
concern about their ability to persist in the plan area over the long
term. For species that are known to be imperiled (threatened,
endangered, proposed and candidate species), the final rule requires
coarse-filter, and where necessary, fine-filter plan components to
provide ecological conditions that contribute to recovery or
conservation of the species, recognizing that there is likely not a
viable population of such species in the plan area at the time of plan
approval.
The final rule provides direction for a third category of species:
species that are vulnerable within the plan area, but not federally
recognized for purposes of the ESA. These are species known to occur in
the plan area, for which the best available scientific information
indicates a substantial concern about the species' capability to
persist in the plan area over the long term. The Department called this
category ``species of conservation concern.''
For this category of species, the final rule requires coarse-
filter, and where necessary, fine-filter plan components to provide
ecological conditions to maintain a viable population of such species
within the plan area, where it is within Forest Service authority and
the inherent capability of the land to do so. If providing the
ecological conditions to maintain a viable population within the plan
area is beyond Forest Service authority or the inherent capability of
the land, then the final rule requires coarse-filter, and where
necessary, fine-filter plan components to provide ecological conditions
to contribute to maintaining a viable population of the species within
its range. For example, if a unit is incapable of providing a
sufficient amount of the ecological conditions necessary to maintain a
viable population of a species of conservation concern within the plan
area, then the responsible official must include plan components that
provide the ecological conditions in the plan area necessary to
contribute to a viable population of that species in the broader
landscape. The rule requires the responsible official to work in
coordination with other relevant land managers when developing such
plan components.
Species of conservation concern, like the categories of common
species and imperiled species, is not limited to native and desired
non-native vertebrates (as in the 1982 rule); it may include any native
plant or animal species that meets the definition. The Department has
the authority to include requirements for species other than vertebrate
species under the NFMA and the MUSYA. Non-vertebrate species can be
federally recognized as threatened or endangered. In addition, in each
NFS region, the regional forester has developed and maintained a list
of regional forester sensitive species (RFSS) for over two decades. The
RFSS list can include any native plant or animal species. RFSS are
those plant and animal species identified by a regional forester for
which population viability is a concern, as evidenced by: significant
current or predicted downward trends in population numbers or density;
or significant current or predicted downward trends in habitat
capability that would reduce a species' existing distribution. RFSS are
similar to SCC. The conservation and management of many RFSS has been a
part of many land management
[[Page 21217]]
plans and projects and activities for decades.
The projected costs of carrying out the rule are found in the
Regulatory Planning and Review section of the preamble and in the final
PEIS supporting this final rule. These costs are not expected to be too
expensive or cumbersome to be carried out by the Agency. Because these
requirements adopt a scientifically supported approach, acknowledge
that there are limits to Agency control, and focus management attention
more strategically on ecosystem plan components that will provide for
most species and where necessary on additional species-specific plan
components for species that are vulnerable, the Department believes
that the requirements of this section, combined with the requirements
in other sections of the rule for public participation, assessment and
monitoring, will result in a strong, more effective, efficient, and
implementable framework for providing for species diversity and
persistence.
Comment: Distribution of species or habitat. Some respondents
raised concerns that the definition of a viable population and the
requirements for species of conservation concern do not include the
requirement that these species or habitats be ``well-distributed'' as
is required in the 1982 rule and they feel that this omission results
in a lessening of protection for species between the 1982 rule and this
final planning rule.
Response: NFMA does not require that species or habitats be well-
distributed within the plan area. The 1982 rule stated at Sec. 219.19
that: ``Fish and wildlife habitat shall be managed to maintain viable
populations of existing native and desired non-native vertebrate
species in the planning area. For planning purposes, a viable
population shall be regarded as one which has the estimated numbers and
distribution of reproductive individuals to insure its continued
existence is well distributed in the planning area. In order to insure
that viable populations will be maintained, habitat must be provided to
support, at least, a minimum number of reproductive individuals and
that habitat must be well distributed so that those individuals can
interact with others in the planning area.''
This final rule includes requirements to restore or maintain
ecological conditions to support viable populations of species of
conservation concern. It requires that the responsible official
determine whether or not the plan components required by paragraph (a)
``provide the ecological conditions necessary to * * * maintain a
viable population of each species of conservation concern within the
plan area. If the responsible official determines that the plan
components required in paragraph (a) are insufficient to provide such
ecological conditions, then additional, species-specific plan
components, including standards or guidelines, must be included in the
plan to provide such ecological conditions in the plan area'' (Sec.
219.9(b)(1)). The rule defines a viable population as: ``A population
of a species that continues to persist over the long term with
sufficient distribution to be resilient and adaptable to stressors and
likely future environments'' (Sec. 219.19) (emphasis added).
The intent behind both the 1982 provisions and the final rule
provisions is the same: To provide habitat to maintain viable
populations. However, there are a number of reasons for the
Department's decision not to include the term ``well-distributed'' in
the final rule and instead used the phrase ``with sufficient
distribution to be resilient and adaptable.'' The term is not defined
in the 1982 rule, has been inconsistently interpreted in plans, and has
been applied in many different ways.
Importantly, the term ``well-distributed'' on its own is not
clearly biological: Many people have interpreted the term in a
geographical context as opposed to a biological context. This
geographic interpretation has proven problematic at times, because the
plan area is not an ecological boundary; it is an administrative
boundary that may overlap completely or only partially with a species'
natural ecological range. In addition, for some species, those areas of
overlap may be changing in response to changing conditions.
Since 1982, we have learned more about what is important for a
species to persist on the landscape, with an evolving understanding of
important ecological concepts like resilience, connectivity, and
adaptability, and of stressors such as climate change. For these
reasons, instead of relying on the term ``well-distributed,'' the
Department chose instead to include a more ecologically-based
definition of a viable population, ``with sufficient distribution to be
resilient and adaptable to stressors and likely future environments''
such that the population ``continues to persist over the long term.''
Combined with the requirement in section 219.3 to use the best
available scientific information to inform the plan, this definition is
intended to focus the development of plan components on providing
ecological conditions where they will be most useful and important to
the species, which may or may not lead to habitat that is evenly or
``well'' distributed across the plan area for every species. For some
species, that may mean having the appropriate ecological conditions
throughout the plan area. For others, it may mean focusing on a small
portion of the plan area. For others, it may mean working to restore or
provide ecological conditions for a species whose range is migrating in
response to changing conditions. For still others, it may mean
providing a corridor or corridors to connect habitat.
The change from ``well distributed'' to ``sufficient distribution
to be resilient and adaptable'' is intended to clarify that we are
using ``distribution'' in an ecological context to support species'
long term persistence and to help increase consistency in
implementation. The Department recognizes that the long-term security
of species improves as distribution increases and habitat and other
ecological conditions are maintained or improved. Whether distribution
is ``sufficient'' will be evaluated in the context of what a population
needs for resilience and adaptability such that it can continue to
persist over the long term, considering the species' natural history,
the ability of individuals to interact, historical distribution and
potential future distribution, and recognizing that habitat and species
distribution will be dynamic over time. The responsible official will
use the best available scientific information to inform this
evaluation. In making this evaluation, it is the Department's
expectation that for the purposes of this subpart, the individuals of a
species of conservation concern that exist in the plan area will be
considered to be members of one population of that species. The
responsible official would consider the distribution of individuals or
groups that would support a viable population of that species in the
plan area. Additional guidance will be included in the directives,
which will be available for public notice and comment.
It is important to recognize that the requirements of Sec.
219.9(b)(1) and the definition of viable population support and are
part of a broader set of requirements in the final rule that are
important for species conservation, including the requirements in
Sec. Sec. 219.8 and 219.9 to maintain or restore ecological integrity,
including connectivity of ecosystems in the plan area; and the
requirement in Sec. 219.9(a) to provide a diversity of ecosystem types
throughout the plan area.
Combined, the requirements in the final rule are expected to
provide the
[[Page 21218]]
conditions that support the persistence of native species in the plan
area and maintain the diversity of plant and animal communities. For
these reasons, the Department believes that the set of requirements in
the final rule is not a lessening of protection from the 1982 rule, and
represents a science-based approach to species conservation.
Comment: Identification and definition of species of conservation
concern. Some respondents felt the proposed rule was unclear on who the
responsible official for identifying SCC was, what criteria would be
used to identify SCC; and whether or not that criteria should be
established in the planning rule. Some respondents offered suggested
criteria for identifying SCC. Several respondents expressed concern the
proposed rule provides too much discretion to the responsible official
in deciding which species will receive protection.
Response: In response to these comments, the definition of species
of conservation concern was moved from Sec. 219.19 to a new paragraph
(c) in this section and was modified. The Department changed the line
officer who identifies the SCC for the plan area from the responsible
official (normally the forest supervisor) to the regional forester in
the final rule. The change was made to provide additional consistency
and promote efficiency in identifying species of conservation on and
among national forests and grasslands within a region. The broader-
scale monitoring strategy will also be developed by the regional
forester.
The final rule's definition of SCC makes the criterion for
identifying such species narrower and more scientific than the
definition in the proposed rule. The species must be ``known to occur
in the plan area,'' and ``the best available scientific information''
must indicate ``substantial concern'' about the species' capability to
persist over the long-term in the plan area.
Additional guidance for the identification of species of
conservation concern will be included in the Forest Service Directives
System, with an opportunity for public comment. The Department expects
that State or Tribal lists of endangered, threatened, rare, endemic, or
other classifications of species, such as those listed as threatened
under State law; and other sources such as the NatureServe conservation
status system may be used to inform the identification of SCC.
Comment: Circumstances not within Forest Service authority,
consistent with the inherent capability of the plan area. Some
respondents felt the rule needs to clarify what is meant by ``within
Forest Service authority, and consistent with the inherent capability
of the plan area,'' to provide consistency in their application and
intent. Others felt use of these terms allowed the Agency to avoid
responsibilities for maintaining the diversity of plant and animal
communities and the persistence of native species within the plan area.
Still others felt the rule should describe the types of circumstances
that make the Agency's ability to meet the requirement for maintaining
viable populations of species of conservation concern infeasible or
impractical. Some respondents said the rule should provide more
discretion and flexibility.
Response: The acknowledgment of limits to Agency authority and the
inherent capability of the land do not ``allow'' the Agency to avoid
responsibility for maintaining the diversity of plant and animal
communities and the persistence of native species within the plan area.
These limits exist whether they are acknowledged in the rule or not.
The Department believes it is more transparent and effective to require
a robust and scientifically supported approach to providing for the
diversity of plant and animal communities and the persistence of native
species within the plan area and openly acknowledge that there are some
circumstances outside of Agency control, allowing responsible officials
to adjust, adapt, and work more collaboratively with other land
managers to protect species in the context of the broader landscape.
The ``inherent capability of the land'' is defined in Sec. 219.19
of the final rule as: ``The ecological capacity or ecological potential
of an area characterized by the interrelationship of its physical
elements, its climatic regime, and natural disturbances'' Examples of
circumstances where the plan area may lack the inherent capability to
maintain a viable population of a species include where a plan area is
not large enough to produce sufficient habitat on the unit or where,
due to current or projected changes in climate, it would be impossible
for the plan area to produce or maintain the required amount or quality
of habitat conditions necessary to sustain a viable population of the
species within the plan area. Additional examples of circumstances
outside the Agency's control, including those that may be outside the
Agency's authority or the inherent capability of the land, are
discussed earlier in this document as part of the rational for non-
selection of Alternative B (No Action).
There may also be circumstances where the plan area has the
inherent capability over time to provide for certain ecological
conditions, but cannot produce such ecological conditions within the
lifetime of the plan: for example, where a species needs old growth or
late successional habitat where there is none (for example, where bark
beetle has killed all of the late successional stands in a plan area).
The plan would include plan components to move the plan area towards
providing that habitat in the future, but would not have the capability
to produce it instantly.
Examples of circumstances not within the authority of the Agency
include land use patterns on private lands within or adjacent to NFS
units that fragment and reduce habitat for a species whose range
extends well beyond the plan area, habitat loss or degradation along
important migration routes or wintering grounds for a species who
spends some of its life history on other lands or in other countries,
or the influence of disease or invasive species.
Section 219.3 requires the use of the best available scientific
information to inform the plan components required by this section, and
Sec. 219.14 requires the responsible official to document how the
requirements of this section were met. Section 219.2 requires that the
Chief establish a national oversight process for accountability and
consistency. The Forest Service Directives System will include
additional direction for implementing the requirements of this section,
and will be available for public comment.
Comment: Diversity of tree and other plant species. Some
respondents felt the rule is not protective enough of the diversity of
tree and other plant species. Others felt the rule should have specific
requirements for old growth and large, intact blocks of forest; leaving
more snags and dead wood; reforestation guidelines that include diverse
tree mixtures; and use of herbicides.
Response: The Department based the requirements of Sec.
219.9(a)(2)(iii) on the NFMA.
The final rule requires in paragraph (a)(2)(i) and (ii) plan
components to provide for key characteristics associated with
terrestrial and aquatic ecosystem types and rare aquatic and
terrestrial plant and animal communities, which may include old growth
stands, meadows, snags, or other characteristics. These characteristics
are similar to what was required in the proposed rule at Sec.
219.8(2)(i) and (ii) and (iii)). More specific requirements were not
included in the final rule, because these issues are best identified
and determined at the forest or grassland level, reflecting ecosystems
[[Page 21219]]
and plant and animal communities on the unit. Further direction will be
provided in the Forest Service Directives System and in individual
plans.
Comment: Additional species comments. Some respondents felt the
rule should include direction on species assessments, developing the
coarse-filter, and disclosing specific environmental effects.
Response: The Department agrees the issues raised are important.
The final rule is intended to provide overall planning direction
applicable throughout the entire National Forest System. The type of
guidance requested by these respondents is more appropriately found in
the Forest Service Directives System and/or 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. Some of the requested guidance, such as how to do
assessments for particular species, would not apply to planning
throughout the entire System. Other types of guidance, instructing the
Agency on how to carry out the rule's requirements, may be so detailed
that if, included in the rule, may make it unmanageably long and
complicated. Also, including instructions in the rule on how to carry
out various planning tasks may tie the Agency to procedures even when
it learns better ways to carrying out those tasks. The Department
concludes that placing such direction in Forest Service directives,
which can change more readily than a rule, or allowing the Agency to
try out various ways to carry out the rule, is likely to result in more
effective and efficient planning than including such detail in the
final rule itself.
Comment: ``survey and manage.'' Several respondents requested the
planning rule require ``survey and manage'' procedures currently
employed in the Pacific Northwest under the Northwest Forest Plan.
Several respondents said one foreseeable outcome could be court ordered
service-wide requirements for ``survey and manage'' as they believe is
currently mandated in the Northwest Forest Plan. One respondent
believes by expanding the requirements for viability beyond vertebrates
the Forest Service will be forced to use ``survey and manage''
procedures of the Northwest Forest Plan on a nationwide basis.
Response: The final rule does not require ``survey and manage''
procedures similar to those in the Northwest Forest Plan. ``Survey and
manage'' is a Northwest Forest Plan program where, before ground
disturbing projects can be approved, the Forest Service must inventory
late successional and old structure stands for nearly 400 species
including fungi, lichens, bryophytes, mollusks, and several vascular
plants, arthropods and vertebrates. None of the species are listed
under ESA, but little is known about them. The final rule requires an
assessment of existing, relevant information, and the use of best
available scientific information to inform plan components to meet the
species and diversity requirements of the rule. The final rule
clarifies that species of conservation concern must be known to occur
in the plan area and that the best available scientific information
must indicate substantial concern about the species' capability to
persist over the long term in the plan area.
Section 219.10--Multiple Use
This section requires that plans provide for ecosystem services and
multiple uses, including outdoor recreation, range, timber, watershed,
wildlife, and fish, within Forest Service authority and the inherent
capability of the plan area, through integrated resource management.
The responsible official must consider a range of uses, resources,
services, and opportunities relevant to the plan area when developing
plan components to provide ecosystem services and multiple uses, along
with reasonably foreseeable risks to ecological, social, and economic
sustainability. In addition, this section includes specific
requirements for plan components for a new plan or plan revision. This
section builds on the requirements in Sec. 219.8 for plans to provide
for ecological sustainability and contribute to social and economic
sustainability.
Section 219.10--Response to Comments
Many comments on this section focused on multiple use requirements,
requirements for ecosystem services, recreation, cultural and historic
resources, wilderness and wild and scenic rivers, and designated areas.
In response to public comment, the Department made a number of changes
to this section to clarify intent.
The Department rearranged the wording of the introductory paragraph
of this section to clarify the intent of the Agency that plans must
provide for ecosystem services and multiple uses. The Department
removed the term ``fiscal capability'' from the introductory paragraph
because direction about fiscal capability is now included in Sec.
219.1(g), and to be consistent with Sec. Sec. 219.8 and 219.9.
The Department modified the requirements of paragraph (a) to
clarify the wording, make these requirements parallel to other sections
of the rule, and to respond to public comments. The Department added a
requirement to have plan components, including standards or guidelines,
for integrated resource management to provide for ecosystem services
and multiple uses in the plan area. This change is in response to
public comment to clarify that plan components for integrated resource
management are to provide for ecosystem services and multiple uses, and
to require standards or guidelines as part of the set of plan
components developed to comply with the requirements of paragraph (a).
As in earlier sections, the Department also changed the phrase
``multiple uses, including ecosystem services'' to ``ecosystem services
and multiple uses,'' consistent with the MUSYA (see response to
comments for Sec. 219.1). The Department added a definition of
integrated resource management in Sec. 219.19, reflecting the
interdependence of ecological resources as well as economic,
ecological, and social systems.
Paragraph (a)(1) to (a)(10) includes a list of elements the
responsible official shall consider when developing plan components for
integrated resource management to provide for ecosystem services and
multiple uses in the plan area. The Department modified this list in
response to public comments; some of these modifications are additional
requirements. The Department modified the list as follows: In paragraph
(a)(1), changed the term recreational values to recreation
opportunities to make the wording consistent with other sections and
with paragraph (b)(1), and added ``and uses'' to the end of the list in
paragraph (a)(1) to recognize that the list includes both resources and
uses and that there may be other resources and uses relevant to the
plan area; in paragraph (a)(3), added the words ``appropriate placement
of infrastructure'' to recognize that there may be new infrastructure
needs or proposals in addition to the need for sustainable management
of already existing infrastructure; in paragraph (a)(5), modified
wording to emphasize that responsible officials, in addition to meeting
the requirements in Sec. 219.9 for diversity and species and providing
for wildlife and fish as part of the earlier direction in Sec. 219.10
and paragraph (a)(1), should specifically consider habitat conditions
for species that are used or enjoyed by the public for recreational
opportunities such as
[[Page 21220]]
hunting and fishing, or for subsistence, and added a requirement that
the responsible official collaborate with other land managers in doing
so; in paragraph (a)(6), dropped the wording in the proposed rule to
consider ``the landscape context for management as identified in the
assessment'' because it was redundant with modifications made to the
requirements in Sec. 219.7, and moved the text at proposed paragraph
(a)(7) to the final paragraph (a)(6); moved the text from proposed rule
paragraphs (a)(7), (8) and (9), with some modifications, to the final
rule paragraphs (a)(6),(7), and (8); in paragraph (a)(9) in the final
rule added a new requirement, to consider ``public water supplies and
associated water quality,'' in recognition of the role that national
forests and grasslands play in providing drinking water to nearly one
in five Americans; and added a requirement at (a)(10), to require
consideration of opportunities to connect people to nature, recognizing
that plans should consider both the resources on the plan area and
people's connection to them.
Paragraph (b)(1)(i) to (b)(1)(vi) sets forth a list of requirements
for plan components for new plans or plan revisions, adding the
requirement that the set of plan components developed to meet these
requirements include standards or guidelines, consistent with similar
changes in other sections. The Department modified the requirements of
paragraph (b) to clarify the wording, make these requirements parallel
to other sections of the rule, and to respond to public comments. In
paragraph (b)(1)(i), the Department slightly modified the requirement
to require that plans must provide for sustainable recreation,
including recreation settings, opportunities, and access; and scenic
character; and to make clear in this section that recreation
opportunities may include non-motorized, motorized, developed, and
dispersed recreation on land, water, and in the air.
In addition, the Department modified paragraph (b) by: Changing the
wording for protection of wilderness and management of areas
recommended for wilderness to be clearer; adding a requirement for
management of rivers ``determined suitable'' for inclusion in the Wild
and Scenic River System; changed paragraph (b)(1)(vi) to be consistent
with changes made to Sec. 219.7(c)(2)(vii) that clarify that the
responsible official may establish new designated areas as part of the
plan; and made additional edits for clarity. Some of these are
additional requirements to respond to public comment.
Comment: Inclusion of MUSYA, multiple use. Some respondents felt
proposed Sec. 219.10 does not specifically reference MUSYA. Other
respondents felt that administering the NFS lands for multiple uses
should not be included in the final rule. Some respondents requested
the rule include specific uses.
Response: The Department made changes to this section to clarify
that plans must include plan components to provide for multiple uses.
The MUSYA has guided NFS management since it was enacted in 1960, and
will continue to do so, regardless of whether it is specifically
referenced in this section, or any other section, of the rule. The
MUSYA expanded upon the original purposes for which national forests
may be established and administered, which were identified in the
Organic Administration Act: ``to improve and protect the forest within
the boundaries, or for the purpose of securing favorable conditions of
water flows, and to furnish a continuous supply of timber for the use
and necessities of citizens of the United States.'' (Act of June 4,
1897 (16 U.S.C. 475)).
The MUSYA states that the Forest Service is to ``administer the
renewable surface resources of the national forests for multiple use
and sustained yield of the several products and services obtained
therefrom.'' (16 U.S.C. 529). The Act defines ``multiple use'' as ``The
management of all the various renewable surface resources of the
national forests so that they are utilized in the combination that will
best meet the needs of the American people; making the most judicious
use of the land for some or all of these resources or related services
* * *.'' (16 U.S.C. 531(a)).
The Department acknowledges and applies the MUSYA throughout the
final rule. In the very first section of the final rule, Sec. 219.1(b)
states that the Forest Service manages the NFS to sustain the multiple
use of its renewable resources in perpetuity while maintaining the long
term health and productivity of the land, consistent with MUSYA. The
rest of the sections in subpart A give additional direction on how to
do that. The assessment phase and public participation will help the
responsible official determine the range of ecosystem services and
multiple uses provided by the unit. Section 219.10 requires plan
components to provide for ecosystem services and multiple uses, using
an integrated approach to resource management. These plan components
will be informed by the assessment, public input, and the best
available scientific information, as well as monitoring.
Comment: Ecosystem services and methods for assessing multiple use.
Some respondents felt the proposed rule improperly expands the MUSYA's
specified multiple use purposes to include ecosystem services, which
the proposed rule defines as educational, aesthetic, spiritual, and
cultural heritage values. Some respondents felt ecosystem services
should be determined by research.
Response: The phrase ``multiple uses, including ecosystem
services'' has been changed throughout the rule to ``ecosystem services
and multiple uses.'' The Department believes this revised wording is
consistent with the MUSYA, which directs the Agency to ``develop and
administer the renewable surface resources of the national forests for
multiple use and sustained yield of the several products and services
obtained therefrom'' (16 U.S.C. 529). MUSYA anticipated and provided
for ``periodic adjustments in use to conform to changing needs and
conditions.'' (16 U.S.C 531). ``Ecosystem services'' may be a
relatively new term, but it is entirely within the scope of the Act to
acknowledge that the ``several products and services obtained'' from
national forests and grasslands incorporates the full range of values,
resources, uses and benefits that these lands provide.
Research has provided insights into the ecosystem services to be
obtained from the NFS. During the planning process, the assessment
phase, public input, monitoring, and the best available scientific
information will help the responsible official identify and develop
plan components to provide for the ecosystem services to be obtained
from each NFS unit.
Comment: Relationship of ecosystem services to other multiple uses.
Some respondents felt proposed Sec. 219.10 gave ecosystem services
higher priority than other multiple uses.
Response: The final rule does not give ecosystem services higher
priority than multiple uses. It provides an integrated resource
management approach, where interdependent elements of sustainability
are considered as a whole, instead of as separate resources or uses.
The mix of plan components included in each plan will reflect local
conditions in the broader landscape, the best available scientific
information, and public input.
Comment: Procedures for economic analysis. Some respondents felt
the rule should include specific economic indicators for the economic
analysis, the model paradigm for social and economic resources, and
means of weighing relative values of multiple uses. Some respondents
suggested the
[[Page 21221]]
rule should include specific procedures for analysis of ecosystem
services. Several respondents suggested the rule include specific
methods for assessing multiple uses.
Response: The final rule does not include this type of guidance as
it is more appropriate in the Agency's directives, because methods,
models, and indicators will alter over time. Forest Service directives
will be developed for the final rule, and members of the public will
have the opportunity to comment on them. In addition, economic
information and models represent one kind of best available scientific
information that the responsible official must use to inform the
planning process and plan components.
Comment: Identification of those providing multiple use
information. Some respondents felt the rule should specify who should
be included to provide information about multiple uses.
Response: Section 219.4 of the final rule requires the responsible
official to provide opportunities for public participation in all
phases of the planning framework. Section 219.3 requires the
identification and use of the best available scientific information to
inform the planning process. Section 219.6 requires identifying and
evaluating existing information relevant to the plan area, including
with regard to multiple uses. Monitoring will also provide information
about multiple uses. Communities, groups, or individuals interested in
these issues can provide input on plan components for multiple uses by
becoming engaged in the public participation process required under
this section.
Comment: Specific objectives, prohibitions, and inclusion of
specific multiple uses and ecosystem services. Several respondents felt
the final rule should establish specific objectives for resources and
prohibitions of uses. Several respondents requested that the rule
include specific uses. Some respondents were for and others against a
rule requirement for specific ecosystem services. Some respondents felt
the rule provides the responsible official with too much discretion
over multiple uses and instead should prioritize multiple uses or
require inclusion of specific multiple uses. Some respondents felt it
was unclear if multiple uses listed in proposed Sec. 219.10 would have
priority over those not listed.
Response: The final rule recognizes that conditions on each plan
area will vary. The final rule therefore focuses on providing a
framework for sustainability and integrated resource management and
requiring associated plan components, including standards and
guidelines. Objectives for resources and constraints on uses will be
established by the responsible official in the plans themselves, or in
the subsequent decisions regarding projects and activities. Agency
regulations at 36 CFR part 261 establish certain national prohibitions.
The final rule provides a planning framework to be used on all units in
the NFS. As part of the planning process, the final rule includes
direction for the responsible official to identify, evaluate, and
consider all relevant resources when developing plan components for
ecosystem services and multiple uses. Section 219.6 includes general
direction to identify and evaluate existing relevant information for
ecosystem services and multiple uses, in addition to direction to
identify and evaluate information about specific resources and uses
such as air, soil, water, and recreation. Section 219.7 includes
direction to develop a list of relevant resources as part of the plan
revision or development process, building on the assessment and any
additional information developed in the planning process. Sections
219.8-219.11 include requirements for some specific resources, in
addition to the requirement in Sec. 219.10(a) to consider all relevant
resources and uses in developing plan components. Throughout, the
responsible official will use the best available scientific
information, and will be informed by public participation.
The final rule does not prioritize multiple uses; rather, it
requires the responsible official to provide plan components for
integrated resource management, based on the resources and uses
relevant to the plan area. Specific direction or guidance for specific
uses will be included in the Forest Service Directives System, the
plans themselves, and/or in the subsequent decisions regarding projects
and activities.
Comment: Mineral exploration and development. Some respondents felt
that the Forest Service should establish specific, detailed
requirements to address mining of mineral resources on NFS lands while
some respondents felt the Forest Service fails to address delays and
impediments to mineral exploration and development caused by the
failure of the rule to address minerals consistent with applicable
statutes.
Response: The planning rule does not impose requirements that would
create inconsistencies with existing laws or regulations governing
mineral exploration and development on Federal lands. Plans developed
under the final rule must comply with all applicable laws and
regulations (Sec. 219.1(f)). It is not expected that the rule will
cause delays or impede mineral exploration and development on NFS
units. Section 219.10(a) specifically recognizes mineral resources and
directs the responsible official to consider mineral resources when
developing plan components for integrated resource management for
multiple use and sustained yield under the MUSYA. In addition, Sec.
219.8 requires the responsible official take into account multiple uses
that contribute to the local, regional or national economies.
Comment: Relationship of livestock grazing with ecological
sustainability and other uses. Some respondents felt range resource
activities should not be supported in the rule, while others felt it
should be supported. Some respondents felt the rule should include more
specific direction for livestock grazing.
Response: The final rule sets the stage for a planning process that
is responsive to the multiple use desires and needs of present and
future generations of Americans. Rangeland ecosystems are part of many
units, and the MUSYA specifically provides that range is one of the
multiple uses for which the national forests are managed. The
appropriate level of grazing on a unit or other direction regarding
range use in the plan area is best determined in individual plans and
at the site-specific level, so that direction is appropriate to the
conditions in the plan area.
Comment: Game species. Some respondents felt the rule should
include requirements for species that are hunted, fished, or trapped,
including recognition of their social and economic importance to
sportsman, photographers, and other enthusiasts who enjoy viewing all
wildlife. Several Indian Tribes and State game and fish departments
said that certain species play a special role in contributing to
social, cultural, and economic sustainability, and that plans should
consider habitat for those species beyond what is required to provide
diversity.
Response: The Agency recognizes the important role of NFS lands in
providing the habitat for these species. Plan components designed to
meet the ecosystem integrity and ecosystem diversity requirements of
Sec. 219.9, along with additional components where needed if the
species is in the categories listed in Sec. 219.9(b), will provide the
habitat and other ecological conditions necessary to support these
species.
[[Page 21222]]
Sections 219.6, 219.8 and 219.12 also recognize the importance of
outdoor recreation opportunities and uses, including hunting and
fishing. In addition, section 219.10 of the final rule retains the
provision of the proposed rule that specifically requires consideration
of habitat conditions for wildlife, fish, and plants commonly enjoyed
and used by the public for hunting, fishing, trapping, gathering,
observing, and subsistence. The final rule adds a provision that such
consideration is to be done in collaboration with federally recognized
Tribes, Alaska Native Corporations, other Federal agencies, and State
and local governments. This addition, combined with the requirements of
Sec. Sec. 219.4 and 219.6, should ensure appropriate consideration is
given to species of importance to these groups and entities. The final
rule is not intended to require that units maintain ecological
conditions that meet all population goals of State agencies.
Comment: Recreational priority and opportunities. Several
respondents felt recreation and its relationship with ecological
sustainability deserves greater importance in the rule, including
discussion of specific recreational opportunities under a separate
section. Other respondents felt more specific requirements for
recreational activities and opportunities should be included in the
rule. Some respondents felt it was inappropriate to include
recreational facilities with transportation and utility corridors as
examples of infrastructure.
Response: The final rule recognizes the importance of recreation,
both for its contributions to economic and social sustainability, and
as an important use connecting people to the land. The high value
placed on recreation has been a common theme throughout the public
participation process leading to this final rule. Americans make over
170 million visits to national forests and grasslands each year. These
visits provide an important contribution to the economic vitality of
rural communities as spending by recreation visitors in areas
surrounding national forests amounts to nearly 13 billion dollars
annually. Recreation is also a critical part of social sustainability,
connecting people to nature, providing for outdoor activities that
promote long-term physical and mental health, enhancing the American
public's understanding of their natural and cultural environments, and
catalyzing their participation and stewardship of the natural world.
Providing for sustainable recreation is one of the biggest challenges
and opportunities facing the Forest Service, and land management
planning is a critical process in meeting this need.
The final rule provides direction for sustainable recreation
throughout the planning process. The final rule retains the term
``sustainable recreation'' to recognize that planning should identify,
evaluate, and provide a set of recreational settings, opportunities and
access for a range of uses, recognizing the need for that set to be
sustainable over time. Ecosystem services include ``cultural services''
such as recreational experiences, and social sustainability recognizes
the activities and traditions that connect people to the land. The rule
recognizes and states in Sec. 219.10 and the definition section in
Sec. 219.19 that recreational opportunities include non-motorized,
motorized, developed, and dispersed recreation on land, water, and in
the air. Examples include activities such as hiking, biking, hunting,
fishing, horseback riding, skiing, off-highway vehicle use, camping,
picnicking, bird and other wildlife watching, canoeing, kayaking,
geocaching, recreational aviation, hang gliding, and many more. A
detailed list was not included in Sec. 219.10 so as not to
inadvertently leave a recreation use out, and also in recognition that
new recreational uses are always being developed.
In the assessment phase (Sec. 219.6), the responsible official
must identify and evaluate existing information relevant to recreation
settings, opportunities, and access, in addition to recreational
infrastructure, benefits people obtain from the plan area and the
contribution of multiple uses to the local, regional, and national
economies. Section 219.8 requires the responsible official to take
sustainable recreation and scenic character into account when
developing plan components to contribute to social and economic
sustainability.
Section 219.10 requires plan components to provide for multiple
uses including outdoor recreation. In paragraph (a), responsible
officials must consider aesthetic values, ecosystem services,
recreation settings and opportunities, and habitat conditions
specifically for species used and enjoyed by the public for
recreational opportunities such as hunting, fishing, and wildlife
observation. Responsible officials must also consider placement and
management of infrastructure, including recreational facilities. It is
appropriate to refer to such facilities as infrastructure because
recreational facilities are fixed capital installations that enhance
recreational experiences. These facilities include: campgrounds, roads,
trails, backcountry airstrips, and drinking water and wastewater
infrastructure. In paragraph (b), the final rule requires that plan
revisions and new plans include plan components to provide for
sustainable recreation; including recreation settings, opportunities,
access; and scenic character. Section 219.12 requires monitoring for
visitor use and progress toward meeting recreational objectives.
These requirements are in response to public comment and in
recognition of the importance of recreation.
Comment: Objectives, standards and guidelines for sustainable
recreation. Several respondents felt the rule should require the plan
to identify objectives, standards and guidelines for sustainable
recreation. A respondent felt the rule should use the term ``must''
instead of ``should'' with respect to identifying recreational
settings, and desired conditions for scenic landscape character. Some
respondents felt the proposed rule provision that the plan should
identify desired conditions for ``scenic landscape character'' was too
narrow; others felt it expanded Agency authorities beyond legal
mandates.
Response: The requirement in Sec. 219.10(b)(1)(i) is changed in
the final rule; where the proposed rule provided that the plan ``should
identify recreational settings and desired conditions for scenic
landscape character,'' the final rule requires that a new plan or plan
revision must include plan components, including standards or
guidelines, to provide for sustainable recreation; including recreation
settings, opportunities, and access; and scenic character. The term
``landscape character'' in proposed Sec. 219.19 has been replaced in
the final rule with ``scenic character'' to clarify what resource is
being considered. The scenic resource falls under the Agency's multiple
use and sustained yield mandate. ``Landscape character'' in the
proposed rule was defined in terms of visual and cultural identity;
``scenic character'' is defined in the final rule in terms of scenic
identity.
Comment: Use of land allocations. Some respondents felt the rule
should require land allocations to allow the Agency to establish a
recreation zoning system.
Response: Section 219.7(d) of the final rule requires management
areas or geographic areas in every plan. A plan could include
management areas based on recreation settings and opportunities.
Comment: Preservation easement. A respondent expressed concern the
Agency is considering putting grazing allotments under a ``preservation
easement.''
Response: ``Preservation easements'' were not proposed for
inclusion in the
[[Page 21223]]
planning rule and are not included in the final rule.
Comment: Protection of cultural and historic resources. Several
respondents felt the proposed rule would allow responsible officials to
damage or destroy cultural and historic resources if done for the
purpose of achieving other resources objectives. Some respondents felt
specific direction for management of cultural and historic resources
and uses should be added to the rule. Some respondents suggested that
Sec. 219.10(b)(1)(ii) include protection of the ``uses'' and
``cultural landscapes.'' Other respondents felt the rule should
establish priorities between cultural and historic resources and other
resource objectives.
Response: The Department considers cultural and historic resources
to be very important for social sustainability as well as important
economic contributors. Benefits of cultural and historic sites include:
expanded knowledge and understanding of history; cultural and spiritual
connections to our heritage; scientific data about past cultures or
historical conditions and similar matters; and tourism that benefits
rural economies. The final rule provides direction for cultural and
historic resources throughout the planning process. The assessment
phase requires identifying and evaluating information about cultural
and historic resources and uses and areas of Tribal importance, in
addition to ecosystem services, which include ``cultural services.''
Section 219.8 also requires the responsible official to take cultural
and historic resources on the plan area into account when developing
plan components to contribute to economic sustainability and social
sustainability, which includes the traditions and culture that connect
people to the land.
In Sec. 219.10, paragraph (a) requires that the responsible
official consider cultural and heritage resources, habitat conditions
for species used and enjoyed by the public, and opportunities to
connect people with nature, when developing plan components for
integrated resource management to provide for ecosystem services and
multiple uses, which include cultural and historic resources and uses.
Paragraph (b) retains the requirement of the proposed rule that plan
components must provide for the protection of cultural and historic
resources. The use of the word ``protect'' is to ensure that the
responsible official takes into account the effect a plan may have on
cultural and historic values and provide for these resources, within
the context of managing for multiple use purposes. It does not create a
preservation mandate, but where actions might impair the resources or
use, the Department expects that the responsible official would seek to
avoid or minimize potential harm by following established procedures
for cultural and historic resource management. The rule does not remove
or change Agency obligations to meet the National Historic Preservation
Act and other laws and Executive orders for the protection of these
resources.
The final rule does not include more specific direction for
cultural and historic uses or activities and does not establish
priorities among the multiple uses. Additional process requirements and
guidance are more appropriately located in Agency directives, land
management plans, and projects or activities.
Comment: Non-Tribal indigenous rights. Several respondents stated
the final rule should address the management of areas of importance for
non-Tribal indigenous entities with pre-existing cultural and natural
resources access, maintenance and use rights based on historical and
documented claims to lands now managed by the Forest Service.
Response: Section 219.1(d) of the final rule states that the
planning rule ``does not affect treaty rights or valid existing rights
established by statute or legal instruments.'' Section 219.4(a) of the
final rule requires the responsible official to provide opportunities
for public participation, during which non-Tribal indigenous entities
can inform the responsible official of areas of importance to them.
Section 219.6(a)(1) requires the responsible official to identify and
consider, ``relevant information, including local knowledge,'' and to
identify areas of Tribal importance, as well as cultural and historic
resources and uses. Section 219.10 requires plan components to provide
for management of areas of Tribal importance. Specific issues of access
and use will be addressed at the levels of unit planning or project or
activity planning.
Comment: Spiritual sustenance. Some respondents felt the rule
should not provide for spiritual sustenance, because there is no legal
mandate for doing it. A respondent stated that the First Amendment
prohibits ``making of any law respecting an establishment of
religion.''
Response: Plans are not required to provide for spiritual
sustenance. The final rule recognizes in Sec. 219.1(c) and in the
definition of ``ecosystem services'' that spiritual values is one of
the benefits people derive from the NFS. To contribute to social and
economic sustainability, plans must provide for ecosystem services and
multiple uses as provided in this section. Managing NFS lands and
resources such that they provide opportunities for spiritual benefits
does not establish a religion, and no preference is given to one
religion over another.
Comment: Management of wilderness areas and areas recommended for
wilderness designation. Some respondents felt the rule should ensure
wilderness protection is not extended to recommended wilderness areas
so de facto wilderness areas are not created by the Agency. Some
respondents felt the rule should address activities affecting
designated wilderness areas or with the potential to degrade areas
recommended for wilderness and reduce their potential for designation.
One respondent states the rule should include wilderness management
direction parallel to the Wilderness Act wording. Another respondent
felt the rule should provide wilderness management flexibility to
respond to changing conditions.
Response: Wilderness areas provide important places for recreation,
solitude, and renewal; are refuges for species; and can attract tourism
that benefits rural economies. Section 219.1 of the final rule states
plans must comply with all applicable laws and regulations, including
the Wilderness Act. The Department changed the wording of Sec.
219.10(b)(iv) of the final rule from ``protection of wilderness areas
as well as the protection of recommended wilderness areas to protect
the ecologic and social values and character for which they might be
added to the National Wilderness System,'' in the proposed rule to
``protection of congressionally designated wilderness areas as well as
management of areas recommended for wilderness designation to protect
and maintain the ecological and social characteristics that provide the
basis for their suitability for wilderness designation.'' The changes
were made to increase clarity and better reflect the Department's
intent from the proposed rule. This requirement, in addition to related
requirements in Sec. Sec. 219.6, 219.7, and 219.10(a)(1), reflect the
Agency's responsibilities under the Wilderness Act and are consistent
with the recognition in the MUSYA that wilderness is consistent with
its purposes and provisions.
The protection of designated wilderness areas is a requirement of
law. Management of areas recommended for wilderness designation to
protect and maintain the characteristics that provide the basis for
[[Page 21224]]
their suitability for designation is lawful and within the Agency's
authority. In fact, many State wilderness acts require that any areas
recommended for wilderness designation are to be managed for the
purpose of protecting the area's suitability for wilderness. The Utah
Wilderness Act of 1984 is one example (Pub. L. 98-428. Sec. 201(b)(4);
98 Stat 1660).
The Department believes the requirement in the final rule meets the
Agency's intent to ensure that the types and levels of use allowed
would maintain wilderness character and would not preclude future
designation as wilderness. Specific direction regarding incompatible
uses in recommended wilderness areas will be found in the Forest
Service Directives System and in plans themselves.
Comment: Responsible official discretion to recommend areas for
wilderness designation. Some respondents felt the proposed rule
provides the responsible official with too much discretion about
evaluations for, determinations of, and management of areas recommended
for wilderness designation.
Response: Section 219.7 of the final rule was modified to require
the identification and evaluation of areas that may be suitable for
inclusion in the National Wilderness Preservation System. Public input
during the opportunities for public participation will help the
responsible official determine whether to recommend any such areas for
wilderness designation. State wilderness acts, typically require the
Forest Service to review the wilderness option of areas during plan
revision. The Utah Wilderness Act of 1984 is one example (Pub. L. 98-
428. Sec. 201(b)(2); 98 Stat. 1659). The responsible official's
recommendation in a plan is not the President's recommendation to
Congress. So, the recommendation is not necessarily what is recommended
to Congress. The Agency's process for identifying and evaluating areas
for recommendation is established in the Forest Service Directives
System in the Forest Service Handbook 1909.12, which will be revised
and made available for public comment. Specific direction and
requirements for management of wilderness areas are also included in
the Forest Service Directives System, and are in the process of being
revised and put out for public comment.
Comment: Wilderness designation. Several respondents felt that the
Agency should increase wilderness areas, while others felt that the
Agency should reduce wilderness areas.
Response: Only Congress has the authority to designate wilderness
areas or change the boundaries of designated wilderness areas, under
the Wilderness Act of 1964. Wilderness areas provide a number of
benefits, and the MUSYA recognizes wilderness as consistent with its
multiple use purposes and provisions. The responsible official will
determine whether or not to recommend any new areas for designation as
part of the planning process.
Comment: Wild and scenic river protection. Some respondents
supported protection of rivers not designated as a wild and scenic
river, while others did not. One respondent commented that proposed
Sec. 219.10(b)(1)(v) provides protection for only eligible rivers.
Response: The final rule has been changed to include suitable
rivers in Sec. 219.10(b)(1)(v). The Wild and Scenic Rivers Act
requires ``every wild, scenic, or recreational river in its free-
flowing condition, or upon restoration to this condition, shall be
considered eligible for inclusion in the national wild and scenic river
system.'' To be eligible for inclusion, a river must be free-flowing
and, with its adjacent land area, possess one or more ``outstandingly
remarkable'' values. The determination of eligibility is an assessment
that does not require a decision or approval document, although the
results of this inventory need to be documented as a part of the plan
document or plan set of documents.
Once a river is determined to be eligible, a suitability study
gives the basis for determining which rivers to recommend to Congress
as potential additions to the National Wild and Scenic Rivers System
(National System). Therefore, the Department decided it is appropriate
and consistent with the Act for the Agency to protect rivers determined
to be suitable until Congress decides on designation and those eligible
until the Agency determines if the rivers are suitable for the values
for which they may be included in the national wild and scenic river
system.
Comment: Special designations. Some respondents felt the rule
should provide for special designations including a comprehensive list
of designated or recommended special areas. Several respondents felt
the rule should include specific procedures for identifying areas for
special designation. A respondent felt the rule should provide the
responsible official the opportunity to designate special areas.
Response: The Agency manages many kinds of designated areas in
addition to wilderness areas and wild and scenic rivers, including
experimental forests, national heritage areas, national monuments,
national recreational areas, national scenic trails, research natural
areas, and scenic byways. These areas can contribute in important ways
to social and economic sustainability as well as ecologic
sustainability.
The definition of designated areas in Sec. 219.19 has been
modified so that it is clear that designated areas may be established
in the land management planning process or by a separate process by
statute or by an administrative process in accord with NEPA
requirements and other applicable laws. Section 219.7(c)(2) has been
modified to make clear that responsible officials may designate an area
if they have the delegated authority to do so. Section 219.10(b)(1)(vi)
of the final rule requires plan components to provide for the
``appropriate management of other designated or recommended special
areas in the plan area, including research natural areas.'' Specific
guidance on designation procedures is more appropriate for the Agency's
directives, and is not found in the rule.
Section 219.11--Timber Requirements Based on the NFMA
This section of the final rule includes provisions for identifying
lands as not suitable for timber production and for limitations on
timber harvest. This section meets the statutory requirements of the
NFMA related to management of the timber resource. The NFMA, along with
the requirements of this section, would provide for mitigation of the
effects of timber harvest on other resources and multiple uses. Other
sections of the final rule contain provisions that supplement the
requirements of this section.
Timber is one of the multiple use purposes of the NFS, as
recognized by the MUSYA and the Act of 1897, also known as the Organic
Administration Act. Timber is also recognized by Sec. 219.10 of this
subpart. The National Forest Management Act of 1976 signaled a new
direction for the planning and management of NFS lands, especially with
regard to management of the timber resource and impacts to other
resources. Management and use of timber harvest on NFS lands continues
to evolve. Today, harvest of timber on NFS lands occurs for many
different reasons, including ecological restoration, community
protection in wildland urban interfaces, habitat restoration, and
protection of municipal water supplies. Timber harvest also supports
economic sustainability through the production of timber, pulp for
paper, specialty woods for furniture, and fuel for small-scale
renewable
[[Page 21225]]
energy projects. Timber harvesting, whether for restoration or wood
production objectives, also supports employment and provides payments
in lieu of taxes in many counties throughout the country.
This final rule provides the guidance for developing plans, not
guidance for individual projects, and it is important to recognize that
any individual timber project or activity could not provide for all
aspects of social, economic, or ecological sustainability. However, all
projects and activities must be consistent with the plan components in
the plan, including those developed to meet the requirements of
sustainability, diversity, multiple use, and timber (Sec. Sec. 219.8
through 219.11), as required by Sec. 219.15.
Section 219.11--Response to Comments
Many concerns were raised over direction for timber harvest for
purposes other than timber production, responsible official discretion
in determining timber harvest on lands not suited for timber
production, and suitability of lands for timber production. For
clarity, the Department modified this section from the wording of the
proposed rule.
In the opening paragraph of this section, the Department removed
the phrase ``the plan must provide for multiple uses and ecosystem
services including timber'' because that requirement is found in Sec.
219.10 and replaced that phrase with the words ``the plan must include
plan components, including standards or guidelines, and other plan
content regarding timber management'' to more accurately reflect the
requirements of this section. The Department changed the term
``capability'' to ``inherent capability'' to be consistent with other
sections of this subpart. The Department defines the term inherent
capability in Sec. 219.19. The Department removed the term ``fiscal
capability'' from this section. Fiscal capability is now discussed in
Sec. 219.1 and is an overarching consideration throughout the planning
process, rather than being pointed out for only selected portions of
the planning process. Other minor wording changes were made for
clarity.
Paragraph (a) has a new caption of ``Lands not suited for timber
production.'' In paragraph (a)(1) of this section, in the discussion of
identifying lands not suitable for timber production, the Department
removed the sentence ``The responsible official may determine,
considering physical, economic, and other pertinent factors, that lands
are not suitable for timber production.'' The Department removed this
sentence about factors because the criteria at paragraphs (a)(1)(i)
through (a)(1)(vi) are the physical, economic, and other pertinent
factors to deal with the requirements of the statute (16 U.S.C.
1604(k)), and include the consideration of other desired conditions and
objectives in the plan. In particular, paragraph (a)(1)(iii) of this
section deals with the economic factors as the responsible official
develops desired conditions to provide for social, economic, and
ecological sustainability (Sec. Sec. 219.8-219.11).
The provision discussing the 10-year review of lands not suitable
for timber production that was in paragraph (a) of the proposed rule
has been removed from paragraph (a)(1) and moved to modified paragraph
(a)(2) of this section.
The specific factors in paragraph (a) for identifying lands not
suitable for timber production are based on the NFMA requirements
limiting timber harvest (16 U.S.C. 1604(g)(3)(E)) and the Agency
policy. Paragraph (a)(1)(iv) of this section contains a specific
criterion that would not allow lands to be identified as suitable for
timber production unless technology is currently available for
conducting timber harvest without causing irreversible damage to soil,
slope, or other watershed conditions. Available technology may vary
from place to place, and could be, for example: horse logging, ground
based skidding, aerial systems, or cable logging systems. This
provision has been in place since the 1979 rule, to meet the NFMA
obligation to consider physical factors to determine the suitability of
lands for timber production. The factor has been effective in
protecting watershed conditions. However, the Department removed the
words ``or substantial and permanent impairment of the productivity of
the land'' from paragraph (a)(1)(iv) in the final rule because it
caused confusion and the Department's intent was captured by the
remaining term ``irreversible damage to soil, slope, or watershed
conditions.''
Paragraph (a)(2) of this section now discusses the requirements of
the 10-year review of lands not suitable for timber production. This
paragraph combines and modifies discussions from paragraph (a)(1) and
paragraph (a)(3) of the proposed rule for clarity.
Paragraph (a)(2) of the proposed rule has been modified and
redesignated as paragraph (b) with a new caption of ``Timber harvest
for the purposes of timber production.'' The Department removed the
wording of the proposed rule about lands which are not identified in
the plan as ``not suitable'' for timber production are suited for
timber production because some respondents believed this required the
designation of these lands as suitable for timber production, which was
not the Department's intent. In addition, the Department added a
requirement in paragraph (b) of this section to clarify that where a
plan identifies lands as suitable for timber production the plan must
include plan components to guide timber harvest for timber production
or for other multiple purposes on such lands.
Modified paragraph (c) of this section combined provisions from
paragraph (b)(2) and paragraph (c) of the proposed rule. Paragraph (c)
has a new caption of ``timber harvest for purposes other than timber
production.''
Paragraph (c) of this section sets forth that the plan may include
plan components to allow for timber harvest for purposes other than
timber production as a tool to assist in achieving or maintaining one
or more applicable desired condition(s) or objective(s) of the plan in
order to protect other multiple-use values, and for salvage,
sanitation, or public health or safety. The wording ``in order to
protect other multiple-use values'' was added for consistency with the
intent of the NFMA, which allows for timber harvest ``necessitated to
protect * * * multiple use values'' other than timber production on
lands not suited for timber production (16 U.S.C. 1604(k)). The wording
of this paragraph also reflects longstanding Agency practices of using
timber harvest to protect other multiple use values and public health
and safety in areas not suited for timber production.
In modified paragraph (d) of this section, the rule discusses the
limitations on timber harvest based on statutory requirements,
incorporating and modifying wording from the paragraphs (b)(1) and (d)
of this section of the proposed rule. Paragraph (d)(1) of this section
in the final rule states the same requirement as paragraph (b)(1) of
the proposed rule.
At paragraph (d)(2) in this section, the rule includes the
provision that plan components shall ensure timber harvest would occur
only where soil, slope, or other watershed conditions would not cause
irreversible damage, which is a requirement of NFMA (16 U.S.C.
1604(g)(3)(E)(i)); the proposed rule (at paragraph (d)(1)) included a
citation to this part of NFMA, therefore this change does not add a new
requirement.
Paragraph (d)(3) of this section includes the same requirement as
paragraph (d)(2) of the proposed rule.
[[Page 21226]]
In paragraphs (d)(4)(i) through (d)(4)(iii) of this section, the
rule directs that plan components must ensure that plans include size
limits for regeneration of even-aged stand of trees in one harvest
operation. The rule retains wording of paragraphs (d)(3), (d)(3)(i),
(d)(3)(ii), and (d)(3)(iii) of the proposed rule, with minor changes
for clarity. The changes include: (1) Clarifying what the plan may or
may not provide, rather than set out a prohibition on projects; (2) the
term ``areas to be cut in one harvest operation'' has been replaced
with ''openings that may be cut in one harvest operation;'' and (3) the
discretion for plans to exceed the default maximum size of paragraph
(d)(3)(i) of the proposed rule has been changed from ``Cut openings
larger than those specified may be permitted where larger units will
produce a more desirable combination of benefits'' to ``Plan standards
may allow for openings larger than those specified in paragraph (d)(4)
of this section to be cut in one harvest operation where the
responsible official determines that larger harvest openings are
necessary to help achieve desired ecological conditions in the plan
area.'' These changes in wording from the proposed to the final rule
are not changes in requirements, but simply clarify the Department's
intent.
In paragraph (d)(5) of this section, the rule directs that plan
components must ensure that timber will be harvested only where the
harvest complies with resource protection requirements of the NFMA.
Paragraph (d)(5) is a modification of paragraph (d)(1) of the proposed
rule and this modification is not a change in requirements. These
requirements reference the provisions of NFMA to limit harvest to
situations where the productivity of the land could be sustained and
harvesting prescriptions are appropriately applied. For example, by
referencing NFMA paragraph (d)(5) requires plan components for even-
aged timber harvest that: (1) Limit clearcutting to locations where it
is determined to be the optimum method for regenerating the site; (2)
require interdisciplinary review of the harvest proposal; and (3)
require cutting to be blended with the natural terrain. These
requirements are referenced but not repeated in the final rule because
the Department believes they are incorporated and enhanced by the
requirements for resource protection in other sections of the rule and
plan consistency requirements of Sec. 219.15. In addition, some
requirements are not repeated because they are addressed by other
regulations; for example, the NEPA regulations direct environmental
analysis and the use of interdisciplinary teams.
In paragraph (d)(6) of this section, the rule directs that plan
components must set forth the limit on the quantity of timber that may
be sold in the national forest. The Department modified the wording of
paragraph (d)(4) of the proposed rule, and moved the provision to
paragraph (d)(6) of the final rule as follows:
(1) The proposed rule required plan components to limit the
quantity of timber that can be removed annually in perpetuity on a
sustained-yield basis. The final rule says plan components must ensure
the quantity of timber that may be sold from the national forest is
limited to an amount equal to or less than that which can be removed
from such forest annually in perpetuity on a sustained-yield basis.
This change was made to agree with the NFMA wording.
(2) The Department added a sentence that this limit may be measured
on a decadal basis to reflect the Agency practice, and 16 U.S.C. 1611.
Note that under this paragraph the quantity sold in any given year may
exceed the annual average for the decade, but the total quantity sold
over a 10-year period may not exceed the decadal limit.
(3) The Department changed the provision that required the plan to
``provide for departure from the limit, as provided by NFMA'' to ``The
plan may provide for departures from this limit as provided by the NFMA
where departure would be consistent with the plan's desired conditions
and objectives.''
(4) The Department added that exceptions for departure from this
limit on the quantity sold must be made with a public review and
comment period of at least 90 days, to be consistent with the NFMA.
The Department concludes that these changes in wording at revised
paragraphs (d)(6) of this section clarify the Department's intent and
reflect the requirements of the NFMA.
In paragraph (d)(7) of this section, the rule directs that plan
components must ensure that the regeneration harvest of even-aged
stands of trees is limited to stands that generally have reached the
culmination of mean annual increment of growth (CMAI). The Department
retains the wording of paragraphs (d)(5) of the proposed rule, with
minor changes for clarity. The changes include: Changing the provision
that ``Exceptions, set out in 16 U.S.C. 1604(m), are permitted only if
consistent with the land management plan'' to ``Plan components may
allow for exceptions, set out in 16 U.S.C. 1604(m), only if such
harvest is consistent with other plan components of the land management
plan.'' The Department removed the provision of the proposed rule at
paragraph (d)(5) that stated: ``If such exceptions are anticipated, the
responsible official should include those exceptions in the land
management plan as standards or guidelines'' because it is now
redundant with the sentence ``Plan components may allow for exceptions
* * *.'' The Department removed the provision about directives and
CMAI, because that sentence is redundant with the provision at Sec.
219.2(b)(5)(i) requiring Forest Service directives. These modifications
at revised paragraphs (d)(7) of this section are not changes in
requirements but clarify the Department's intent and reduce redundancy.
Comment: Timber harvest for other purposes. Some respondents felt
the proposed rule at Sec. 219.11(b)(2) was either too discretionary or
too restrictive in meeting NFMA's allowance for salvage sales and other
limited timber harvest on lands not suited for timber production. Some
respondents felt the proposed rule should prohibit timber harvesting on
unsuitable lands or specify that timber salvage on those lands be
solely for non-commercial purposes.
Response: Today, timber harvest is often used to achieve ecological
conditions and other multiple use benefits for purposes other than
timber production. Therefore, the Department clarified at Sec.
219.11(c) that a plan may include plan components to allow for timber
harvest for purposes other than timber production as a tool to assist
in achieving or maintaining one or more applicable desired conditions
or objectives of the plan to protect other multiple-use values.
Consistent with Section 1604(k) of NFMA, Sec. 219.11(c) of the
proposed rule also allows timber harvest for salvage, sanitation or
public health or safety in areas not suitable for timber production.
The Department believes that the provisions of this section provide a
balanced approach recognizing that timber harvest will be necessary in
many places to assist the Agency in accomplishing restoration and other
multiple use objectives.
Section 219.11(d)(1) of the final rule restates the prohibition
that had been in the proposed rule at 219.11(b)(1), that no harvest for
the purpose of timber production may occur on lands not suitable for
timber production. The final rule at Sec. 219.11(d) also requires plan
components to ensure no timber harvest may occur on lands where timber
harvest would cause irreversible damage to soil, slope, or other
watershed
[[Page 21227]]
conditions. Timber harvest must be consistent with the desired
conditions set out in the plan (Sec. 219.15).
Comment: Responsible official discretion in determining timber
harvest on lands not suited for timber production. Some respondents
felt the proposed rule allows the responsible official too much
discretion in allowing or permitting timber harvesting on lands not
suited for timber production.
Response: This section, as well as other sections of the rule,
provides sideboards to the responsible official's discretion. The rule
identifies factors to be considered by the responsible official in
paragraph (c) of this section consistent with the NFMA, specific
limitations that require standards or guidelines for timber harvest,
and consistency with other applicable plan components.
Section 219.3 of the rule requires the responsible official to use
the best available scientific information. The rule also allows those
interested communities, groups, or persons to engage in the public
participation process for the development of plan components and
monitoring programs and for the subsequent development of proposed
projects and activities under the plan. Individual proposed projects
for timber harvesting will still undergo additional opportunities for
public involvement during the project's NEPA process. The Department
believes that these requirements provide an appropriate balance of
requirements and discretion.
Comment: Suitability of lands with a primary conservation focus. A
respondent felt the rule should state that timber production is not
suitable on lands managed with a primary conservation or restoration
focus, including inventoried roadless areas, old-growth forests,
priority and municipal watersheds, and riparian areas.
Response: The proposed rule provides overall direction for how
plans are developed, revised, and amended. Section 219.11(a)(1)(iii)
requires that where timber production would not be compatible with
desired conditions and objectives established by the plan, including
those established in accordance with the requirements for suitability
(Sec. 219.8), diversity (Sec. 219.9), and multiple use (Sec.
219.10), the responsible official shall identify such lands as not
suitable for timber production. Additional guidance regarding
suitability of lands will be 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. The rule also allows those interested communities, groups, or
persons to engage in the public participation process for the
development of plans. Public participation will also be used during the
subsequent development of proposed projects and activities under the
plan, during which concerns regarding suitability of lands may be
raised.
Comment: Cost and revenues of timber harvesting. Some respondents
felt the rule should require full and explicit disclosure of costs and
benefits of timber harvesting in order for the public to more
accurately compare plan alternatives and plan components. They felt
timber harvesting should only be allowed where direct revenues will
exceed all direct costs, and lands not cost-efficient should be
designated unsuitable. Some felt the Government should not subsidize
the logging industry or compete against private timber forest owners.
Response: The costs and benefits of each alternative for a plan
developed under the final rule is required to be disclosed under the
NEPA process at the time of plan development, revision, or (if
relevant) amendment. The Department recognizes that the cost of timber
harvest is a major concern. The real measure of the worth of the timber
program; however, is not net cost versus revenues, but costs versus
public benefits. The final rule requires plan components for
restoration which will likely result in projects to achieve multiple
benefits. Some of these benefits can be measured as receipts; others
are public benefits for which revenues are not received, such as
restored watersheds; improved wildlife habitat; and improved bird
watching, fishing, and hunting opportunities. The emphasis of the final
rule is sustainability; and managing vegetation can help attain
sustainability. Selling timber and managing vegetation is a key tool
for restoration and providing wildlife habitat (cover types and age
classes), creating diversity in the visual appearance of the landscape,
improving the overall ecological integrity, producing timber products,
providing jobs, and providing additional recreational opportunities by
increasing forest access. Increasingly, the Agency uses stewardship
contracts to offer projects to achieve multiple objectives including
harvesting timber for restoration purposes.
For lands to be identified in the plan as suitable for timber
production, timber production on those lands must be compatible with
the achievement of the desired conditions and objectives established by
the plan. The desired conditions include those to meet requirements for
plan development or revision (Sec. 219.7); social, economic, and
ecological sustainability (Sec. 219.8); plant and animal diversity
(Sec. 219.9); multiple use (Sec. 219.10); and timber (Sec. 219.11).
The responsible official will establish management areas with different
desired conditions based on providing social, economic, and ecological
sustainability. This suitability determination is complex and will be
based on analysis of costs, benefits, and values.
Additional rule requirements for a detailed analysis of costs and
benefits other than the final rule requirement for an EIS for plan
development and plan revision and that plans be amended to be
consistent with Forest Service NEPA procedures are not necessary.
Comment: Review of lands suitable for timber production. A
respondent felt lands suitable and not suitable for timber production
should be reviewed every 10 years to ensure these designations are
still appropriate. A respondent said the proposed rule has incorrectly
expanded and interpreted the base requirements of the NFMA by: (1)
falsely stating that the NFMA requires the identification of lands
suitable for timber production (the respondent declared that the NFMA
only requires identification of land not suited for timber production);
and (2) stating that all lands not identified as not suitable are
therefore suitable.
Response: The NFMA requires a review of lands designated not
suitable every 10 years, and the rule follows this mandate. The rule
requires identification of land not suited for timber production and
imposes specific factors to be considered. The purpose of identifying
lands not suitable for timber production is to identify the land base
upon which timber production harvest levels are subsequently calculated
(lands suitable for timber production). To avoid confusion, the
provision saying that ``all lands not identified in the plan as not
suitable for timber production are suited for timber production'' has
been removed from the final rule. The Department believes the
respondent's assumption behind this comment is that all lands except
those determined to be not suitable will be harvested. That is not the
Agency's expectation. The identification of lands suitable for timber
production is not a final decision compelling or approving projects and
activities. A final determination of suitability is made through
project and activity decisionmaking.
[[Page 21228]]
Comment: Aesthetic resources. A respondent felt ``aesthetic
resources'' should be removed from proposed Sec. 219.11(d)(2) wording
because timber harvesting can create less appealing aesthetics but can
be an integral part of sustaining high quality wildlife habitat.
Response: The final rule retains the wording of the proposed rule
at Sec. 219.11(d) ensuring timber harvesting is consistent with
protection of aesthetic resources, because the wording matches the NFMA
at 16 U.S.C. 1604(g)(3)(F)(v). However, the Department recognizes that
selling timber and managing vegetation are important tools for
providing wildlife habitat (cover types and age classes), creating
diversity in the visual appearance of the landscape, and improving the
overall forest health.
Comment: Allowable sale quantity. A respondent felt the planning
rule should include a requirement for allowable sale quantity as in the
1982 rule.
Response: Section 219.11 includes timber requirements based on the
NFMA. The term ``allowable sale quantity'' (ASQ) is a term of art of
the 1982 rule. The term ASQ is used in the NFMA in discussions about
departures that exceed the quantity of timber that may be sold from the
national forest (16 U.S.C. 1611). However, the NFMA does not require
that the term be used in the implementing regulations (16 U.S.C. 1604).
The term has caused confusion about whether ASQ is a target or an upper
limit under the 1982 rule procedures, the Agency wants to avoid this
confusion under this final rule. Plans will have an upper limit for
timber harvest for the quantity of timber sold as required in Sec.
219.11(d)(6). The requirements in Sec. 219.7(f) that plan content must
include information about the planned timber sale program and timber
harvesting levels, and in Sec. 219.11(d)(6) that the plan must limit
the quantity of timber that may be sold from the national forest to
that which can be removed annually in perpetuity on a sustained-yield
basis, provide a more practicable way to give direction than using the
term ``ASQ.'' Additional requirements will be found in the Forest
Service Directive System.
Comment: Changing plan harvest levels relationship with plan
amendments. A respondent felt changing the timber harvesting level
specified in the unit plan should be done through a revision or
amendment of the unit plan because timber harvesting is an important
objective.
Response: Any change to plan components related to timber
harvesting level requires a plan amendment under this final rule. Such
plan components may include objectives for annual timber harvest or
standards limiting the amount of timber harvested in the first decade.
However, changing the tables or graphs of associated timber information
in other plan content (Sec. 219.7(f)) may be done with an
administrative change.
Comment: Levels of timber harvest. A respondent felt the rule
should require forest plans to identify three timber production levels.
Those three levels were: (1) The long-term sustained-yield capacity,
which is the theoretical maximum sustainable level in perpetuity; (2)
the timber harvest level associated with achieving the desired future
conditions contemplated in the plan; and (3) the probable timber
harvest level given anticipated budgets and other priorities.
Response: Final rule Sec. Sec. 219.7(f) and 219.11(d)(6) require
determination of the long-term sustained-yield capacity (the quantity
of timber that may be sold from the national forest) and require
determination of the planned timber sale program. A requirement for the
timber harvest level associated with achieving the desired future
conditions is not included because the NFMA does not require such a
calculation and it would be a highly speculative harvest level that
would not likely be realistic. Harvest levels must be within the fiscal
capability of the unit.
Comment: Timber harvest unit size limits. Some respondent felt the
proposed rule standards for maximum size limits for areas to be cut in
one regeneration harvest operation should be determined by local
conditions, individual forest plans objectives, based on science, and
mimic historic forest disturbance regimes.
Response: These limits on the maximum opening sizes were
established in the 1979 planning rule and have been in use under the
1982 rule. In 1979, the committee of scientists recommended the maximum
size for openings created by timber cutting be set by regional plans or
regional silvicultural guides, not be set as a national standard.
However, the Department decided in 1979 to set maximum size of harvest
cut openings (40-, 60-, or 100-acre maximums depending on geographic
location) with exceptions provided for through regional plans where
larger openings will produce more desirable combinations of benefits.
In the final rule, the Department continues these standards with the
exceptions provided through the responsible official, who is normally
the forest or grassland supervisor. The procedure for varying these
limits is an established process that has worked effectively, providing
a limit on opening size and public involvement with higher level
approval for exceeding the limits. The Department believes that the
procedure for varying from these limits may be particularly justifiable
in the future for ecological restoration, species recovery, improvement
of vegetation diversity, mitigation of wildland fire risk, or other
reasons. For example, some rare species are adapted to large patch
sizes with similar habitat attributes for critical parts of their life
cycle.
Comment: Limiting the quantity of timber removed annually. Some
respondents felt the proposed rule was unclear on direction for
limiting the quantity of timber removed annually in perpetuity on a
sustained-yield basis as it simply repeats NFMA wording.
Response: The Department changed the wording in paragraph (d)(6) of
this section of the final rule to add clarity. In addition, the
Department requires the Chief to set forth procedures for planning in
the Forest Service Directives System to further explain the methods for
determining the limit of the quantity of timber removed annually in
perpetuity on a sustained-yield basis for an individual unit plan
(Sec. 219.11(d)(6)).
Comment: Use of culmination of mean annual increment. A respondent
felt the proposed use of culmination of mean annual increment (CMAI) of
growth to limit regeneration harvests of even-aged stands will not
address issues of poor forest health, and the likelihood of
uncharacteristic insect, disease, and fire. Another respondent felt
CMAI should also be used where timber is cut in non-even-aged stands.
Response: The Department does not agree that the national policy of
CMAI as required by 16 U.S.C. 1604(m) has caused problems with issues
of forest heath and the likelihood of uncharacteristic insect, disease,
and fire. The national policy gives the Agency authority for exceptions
from this standard for recreation, wildlife habitat, and other
purposes. The NFMA requires that standards shall not preclude the use
of sound silvicultural practices, such as thinning or other stand
improvement measures. CMAI does not apply to uneven-aged stands as
these stands are multi-aged; therefore, the final rule continues to
limit the use of CMAI to regeneration harvests of even-aged stands.
Section 219.12--Response to Comments
Many comments on this section focused on requirements for the plan
monitoring program, broad-scale monitoring strategies, and use of the
monitoring information and the monitoring report. Throughout this
section of the final rule, the Department
[[Page 21229]]
made minor edits for clarity and changed the name from ``unit
monitoring program'' in the proposed rule to the ``plan monitoring
program'' In the final rule. This change to the name clarifies that
monitoring is intended to focus on the plan components and is not
geographically defined or applicable to other resource program
monitoring on the unit. Additionally, the Department added a sentence
to paragraph (a) to draw a clearer link between the monitoring program
and the use of monitoring information for adaptive management of the
plan area.
The Department removed the requirements for science in paragraph
(a)(4)(ii) because the requirements of Sec. 219.3 apply to the entire
subpart and therefore do not need to be repeated here. The Department
is committed to using science to inform monitoring and the decisions
based on monitoring information.
At paragraph (a)(5) of this section, the Department corrected the
phrase monitoring ``questions or indicators'' to ``questions and
associated indicators'' to better reflect the way questions and
indicators are used for monitoring. In response to public comment the
Department made several changes to the list of required monitoring
questions and associated indicators of paragraph (a)(5) as follows:
(1) At paragraph (a)(5)(ii) of this section, the Department added
direction that the monitoring for the status of select ecological
conditions include questions and indicators for key characteristics of
terrestrial and aquatic ecosystems, to link this monitoring requirement
to the ecological requirements in Sec. Sec. 219.8 and 219.9.
(2) At paragraph (a)(5)(iii) of this section, the Department
clarified that questions and indicators for the status of focal species
are to assess the ecological conditions required under Sec. 219.9, to
link this monitoring requirement more clearly to the coarse-filter
requirements.
(3) At paragraph (a)(5)(iv) the Department added a new requirement
for questions and indicators for the status of a select set of
ecological conditions required under Sec. 219.9 to contribute to the
recovery of federally listed threatened and endangered species;
conserve proposed and candidate species; and maintain a viable
population of each species of conservation concern. This change was
made in response to comments to more closely link monitoring with the
need to assess progress towards meeting plan components for the species
requirements in Sec. 219.9. Additional discussion of this addition is
discussed in the comment on monitoring of at risk species.
(4) At paragraph (a)(5)(v), the Department added the status of
visitor satisfaction to the requirement for questions and indicators
for the status of visitor use designated at paragraph (a)(5)(iv) of the
proposed rule, in response to public comment.
(5) At paragraph (a)(5)(vi), the Department retained the
requirement for questions and indicators related to climate change
designated at paragraph (a)(5)(v) of the proposed rule, and changed the
words ``and other stressors on the unit'' to ``and other stressors that
may be affecting the plan area.''
(6) The Department removed the requirement for questions and
indicators for the carbon stored in above ground vegetation previously
designated at paragraph (a)(5)(vi) of the proposed rule. This change is
accompanied by a change to Sec. 219.6(b)(4) that requires responsible
officials to identify and evaluate existing information for a baseline
assessment of carbon stocks as part of the assessment. This change in
requirements will lead to a more comprehensive assessment of carbon
stocks (as opposed to carbon stored in above ground vegetation) earlier
in the planning process. The Department retains the requirement to
monitor changes related to climate change and other stressors (Sec.
219.12(a)(5)(vi).
(7) At paragraph (a)(5)(vii), the Department removed the
requirement for questions and indicators for the progress toward
fulfilling the unit's distinctive roles and contributions and added a
requirement for questions and indicators addressing the progress toward
meeting the desired conditions and objectives in the plan, including
for providing multiple use opportunities. This change more accurately
reflects what the Department intended to accomplish with the previous
requirement at paragraph (a)(5)(vii) and the other requirements of
(a)(5), and will help inform management effectiveness.
(8) At paragraph (a)(5)(viii), the Department changed the term
``management system'' to ``each management system'' to use words of the
NFMA at 16 U.S.C. 1604(g)(3)(C) and respond to public comments.
The Department added wording to paragraph (a)(7) to clarify that
project and activity monitoring may be used to gather information for
the plan monitoring program, and that plan monitoring may inform the
development of specific projects and activities; but that the plan
monitoring requirements of this section are not a prerequisite for
making a decision to carry out a project or activity.
At paragraph (c) of this section on timing and process, the
Department removed the requirement at paragraph (c)(1) where the
proposed rule required the responsible official to work with the public
to identify potential monitoring needs during the assessment. The
Department removed this requirement from the assessment phase in
response to public comments to make the assessment phase more efficient
and focused. As required in Sec. 219.7, the assessment information
will inform the development of monitoring questions and indicators
during the plan development or revision phase.
The Department removed paragraph Sec. 219.12(c)(4) of the proposed
rule, the requirement that responsible officials ensure that scientists
are involved in the design and evaluation of unit and broad-scale
monitoring, because wording of the requirement was confusing and the
substance of the requirement was redundant with the coordination
requirements at Sec. Sec. 219.12(a)(1) and (b)(2) of the rule.
The Department reorganized paragraph (d) for clarity. The
Department removed the second sentence of paragraph (d)(1) of the
proposed rule and moved to paragraph (d)(2) the requirement the
monitoring evaluation report indicate whether a change to plan
components or other plan content may be warranted. In addition, at
paragraph (d)(2) the Department added the requirement that the report
must be used to inform adaptive management of the unit.
At paragraph (d)(1)(iii) of the proposed rule the Department
removed the requirement that the monitoring evaluation report must
describe how best available science was taken into account, because the
report is intended to be an evaluation of data and information gathered
by the plan monitoring program, which must be informed by best
available scientific information. A new requirement was added to
section 219.14(a)(4) to make clear that the plan decision document must
document how the responsible official used best available scientific
information to inform the plan monitoring program.
In addition, paragraph (d)(3) of the proposed rule is now paragraph
(d)(1)(iii) of the final rule, paragraph (d)(2) of the proposed rule is
now (d)(3) of the final rule, but no changes to these requirements were
made.
Comment: Scope of monitoring. Some respondents felt the proposed
rule was unclear as to the extent of topics, including ones for desired
conditions, responsible officials could consider when choosing the
scope and scale of
[[Page 21230]]
plan monitoring. A respondent felt the rule should require the scope of
the monitoring question be as complete as possible even if the scope of
the final monitoring program cannot address all the questions.
Response: Because the information needs most critical for informed
and adaptive management will vary by unit, the rule allows the
responsible official the discretion to set the scope and scale of the
plan monitoring program, subject to the minimum requirements in
paragraph (a)(5) of this section. Paragraph (a)(2) directs that
questions and indicators should be based on one or more desired
conditions, objectives, or other plan component(s), but makes clear
that not every plan component needs to have a corresponding monitoring
question. Furthermore, the questions and indicators must be designed to
inform the management of resources on the plan area, including by
testing assumptions, tracking changes, and measuring management
effectiveness and progress towards achieving or maintaining the plan's
desired conditions or objectives. This direction allows the responsible
official to develop the most strategic, effective and useful monitoring
program for the plan area, based on the plan components in the plan and
informed by best available scientific information and public input.
This direction also recognizes possible limits to the technical or
financial capabilities of the Agency: not all parts of a plan, or every
acre, can be monitored each year--and it may not be a strategic
investment to do so.
However, section 219.12(a)(5) of the final rule provides direction
for a set of monitoring questions and associated indicators that must
be part of every plan monitoring program. The list reflects substantive
requirements of the final rule and links to the assessment phase. The
responsible official can always consider additional factors and add
questions and indicators.
Every plan monitoring program would contain one or more questions
and associated indicators that address each of the following: (1) The
status of select watershed conditions; (2) the status of select
ecological conditions including key characteristics of terrestrial and
aquatic ecosystems; (3) the status of focal species to assess the
ecological conditions required under Sec. 219.9; (4) the status of a
select set of ecological conditions required under Sec. 219.9 to
contribute to the recovery of federally listed threatened and
endangered species; conserve proposed and candidate species; and
maintain a viable population of each species of conservation concern
within the plan area; (5) the status of visitor use, visitor
satisfaction, and progress toward meeting recreation objectives; (6)
measurable changes on the plan area related to climate change and other
stressors affecting the plan area; (7) progress toward meeting the
desired conditions and objectives in the plan, including for providing
multiple use opportunities; and (8) the effects of each management
system to determine that they do not substantially and permanently
impair the productivity of the land.
Comment: Accountability and public oversight for monitoring: Some
respondents felt the rule should provide sufficient opportunity for
public enforcement of monitoring quality and for public input on the
Agency's use of monitoring information affecting project decisions.
Several respondents felt the proposed rule did not establish
accountability for monitoring and suggested the rule either require
review by the Chief or specify the consequences of not conducting
monitoring. Another suggested that the monitoring effort be
periodically reviewed objectively by disinterested parties. Some
respondents felt to improve accountability findings from monitoring
program reports, the reports should be decisions subject to review.
Response: The rule cannot grant enforcement authorities to the
public. Those authorities can only be granted by Congress. However, the
rule's public participation and reporting requirements allow for a more
transparent Government and holds officials accountable for sharing
monitoring information and data with the public. This data will be open
to public scrutiny, criticism, and objective review. The public will be
able to evaluate and provide input on the Agency's use of the
monitoring information to inform future decisions during opportunities
for public participation and comment for those decisions, including
future plan amendments, plan revisions, projects, and activities.
Accountability is achieved through the rule by requiring officials
to develop monitoring, plan monitoring programs with questions and
indicators and broader-scale monitoring strategies, and to prepare
biennial monitoring reports. All these requirements allow for public
involvement and review. Section 219.2(b)(5) of the rule further
requires the Chief of the Forest Service to administer a national
oversight and accountability process to review NFS land management
planning which includes monitoring programs. The Agency already follows
Departmental standards for the objectivity of information used to
inform significant decisions under the Information Quality Act (Section
515 of Public Law 106-554). In addition, the responsible official is
subject to performance review and accountability for fulfilling
requirements of the rule and policies of the Agency. The Forest Service
is required to report monitoring information consistent with the USDA
Strategic Plan. (http://www.ocfo.usda.gov/usdasp/sp2010/sp2010.pdf).
Monitoring reports (like assessment reports) will include
information that will be used to inform decisions, but are not decision
documents because they do not compel an action or make a decision on an
action; therefore, subjecting monitoring specifications to objection or
appeal procedures is not necessary.
Comment: Monitoring requirements. A respondent felt the rule should
include monitoring requirements for scientific grounding, thoughtful
design, and sufficient funding, regularly scheduled, and analysis of
cumulative impacts.
Response: The final rule requires the use of the best available
scientific information to inform the monitoring program, requires the
responsible official to identify the fundamental questions and
indicators that will inform the design of monitoring programs, and will
lead to a robust monitoring program that will be used to inform
management. The public will have opportunities to provide input into
the design of the monitoring program and to review the monitoring data.
The monitoring information can be used in a number of ways, including
analyzing cumulative effects. The final rule includes direction to take
financial and technical capabilities of the Agency into account in
designing the monitoring program, and requires in Sec. 219.1(g) that
the plan be within the fiscal capability of the unit.
Comment: Monitoring and consistency of methods. Some respondents
felt the rule should include national monitoring standards to enable
consistency across units so each national forest and grassland could be
compared to others. Some respondents felt units could not develop
monitoring programs efficiently in the absence of regional or national
standards or guidance. Some respondents felt units will need additional
guidance to enable them to design and conduct monitoring because the
necessary resources and expertise is not often available on each unit.
A respondent felt clarification was needed for how broader-scale
monitoring could be associated with
[[Page 21231]]
assessments by the plan unit in the absence of regional guidelines. A
respondent felt specific terminology should be used regarding
monitoring types: range and distribution monitoring, status and change
monitoring, and cause and effect monitoring. Some respondents felt the
rule should require technical details like methods for data collection,
sampling methods, specific measurements to sample, statistically sound
set of monitoring guidelines, reference conditions or baseline data,
cause-effect designs for monitoring, or possible contaminants to water
quality, or that schedules of work be required in monitoring programs
and documented in plans.
Response: The Department and Agency recognize the importance of
having a system of monitoring that allows for information to be
collected, used and compared across planning units. For that reason the
final rule directs that the plan monitoring program must be coordinated
and integrated with broader scale monitoring strategies to ensure that
monitoring is complementary and efficient, and gathered at the
appropriate scales, along with direction to coordinate with Research
and Development, State and Private Forestry, and others. To support
implementation of these requirements, the Agency is currently reviewing
its inventory and monitoring system. However, the final rule does not
include national monitoring standards for consistency across units
because there is no fully tested national approach available at this
time. The kinds of things to be monitored are varied, monitoring
techniques and protocols evolve and improve over time, and different
techniques may be more or less appropriate depending on what is being
monitored and the information needs most critical to inform adaptive
management on the unit. In addition, monitoring techniques may vary by
partner, impacting opportunities to coordinate monitoring across
landscapes and among neighboring land managers.
For these reasons the Department concluded it would be more
appropriate to include additional direction and guidance, including for
the kinds of technical specifications identified by the respondents, in
the Forest Service Directives and in the unit plans. The final rule
makes clear in paragraph (a)(6) of this section that a range of
monitoring techniques may be used to carry out the monitoring required
by this section: different questions and indicators will require the
use of different, and evolving, techniques or methodologies. The
responsible officials will use the best available scientific
information to inform those choices. Monitoring protocols and methods
would be coordinated with the regional forester and Forest Service
State and Private Forestry and Research and Development.
Comment: Monitoring triggers. Some respondents thought that the
monitoring program should include triggers or thresholds for action.
Response: The rule did not include triggers or thresholds because
not all monitoring elements and indicators are suited to triggers.
Establishing triggers can be complex and time consuming. The rule does
not preclude the inclusion of triggers where they can be developed and
where they are informed by the best available scientific information.
The Department does intend the three phases of planning to be
connected, and for each phase to inform the others. The information
gathered and evaluated in the assessment phase will help the
responsible official to develop a strategic monitoring program, and the
information from monitoring will be used to indicate whether a new
assessment is warranted, and to inform future assessments and plan
components and other plan content. Wording was added to Sec. 219.7 to
make clear that the assessment and monitoring reports should be used to
inform the plan development or revision, and to Sec. 219.12 to make
clear that the monitoring report should be used to inform adaptive
management.
Comment: Use of non-agency data. Some respondents felt the Agency
is reluctant to accept monitoring data about environmental conditions
from a third party, like livestock permittees, and that the proposed
rule funding requirements would further reduce funding available for
monitoring. These conditions would cause the Agency to unfairly
restrict some special uses, like grazing. Other respondents felt the
rule should clearly provide opportunities for the responsible official
to use information and assistance from non-agency organizations and
individuals to contribute to monitoring programs. Other respondents
felt non-agency data must meet Agency data standards. Still others felt
the rule should allow the public opportunity to assist in gathering and
submitting data.
Response: The rule provides more encouragement to use secondary
data including sources external to the Agency than previous planning
rules. Section 219.4 requires opportunities for public participation
throughout the planning process, including developing the monitoring
program. Section 219.12(c)(3)(i and ii) specifically directs the
responsible official to take into account existing NFS and non-NFS
inventory, monitoring and research programs, and to take into account
opportunities to design and carry out multi-party monitoring. Many
current monitoring programs and assessments rely on secondary data from
a variety of sources, governmental and non-governmental sources.
Monitoring data will be used to inform adaptive management. The
requirements in this rule are intended to result in a more strategic
use of monitoring dollars, and to leverage those investments where it
is feasible and appropriate to do so.
Comment: Collection of data beyond unit boundaries. Some
respondents felt the proposed rule inappropriately makes the
responsible officials undertake broader-scale monitoring analyses,
monitoring of significant areas not federally owned, and to collect
data beyond unit boundaries.
Response: The final rule does not impose a requirement for
responsible officials or regional foresters to monitor non-NFS lands.
The monitoring requirements do not give responsible officials license
to monitor where they lack authority.
It is appropriate and efficient to recognize that some monitoring
questions are best evaluated at scales broader than one unit, to best
inform management of a 193 million acre National Forest System that
spans the country. The final rule directs the regional forester to
develop a broader-scale monitoring strategy, in coordination with
others, and encourages identifying opportunities for multi-party
monitoring. The rule encourages responsible officials to coordinate
monitoring across NFS units. The rule allows the Agency to continue
efforts to use data from other agencies and sources because monitoring
cooperation is in the best interest of Americans and the land,
informing effective management and facilitating the strategic use of
monitoring dollars.
Comment: Use of the Forest Inventory and Analysis system (FIA). A
respondent suggests the rule should use the FIA system to monitor the
health of forests and changes related to climate change.
Response: Many Agency units actively use FIA information as an
integral part of their monitoring programs. The final rule directs the
responsible official to take into account existing national and
regional inventory, monitoring, and research programs, including from
Forest Service State and
[[Page 21232]]
Private Forestry and Research and Development which includes FIA data.
Comment: Scientist involvement in plan and broader-scale monitoring
design. A respondent felt the proposed rule sets too high a standard of
ensuring scientists are involved in plan and broader-scale monitoring
design. Another respondent felt the proposed rule did not specify in
detail how the external scientific community would be involved.
Response: The requirement under Sec. 219.12(c)(4) of the proposed
rule for scientists to be involved in the design and evaluation of unit
and broader-scale monitoring has been removed in response to public
comment because the requirement was confusing and can be met through
the coordination requirements at Sec. Sec. 219.12(a)(1), (b)(2) and
(c)(3)(ii) of the final rule. The final rule requires the use of best
available scientific information to inform the design and content of
the monitoring program, opportunities for public participation, and
coordination in development of the monitoring program with Forest
Service Research and Development, along with other partners and the
public. The external science community may be involved in variety of
ways, for example, through public participation opportunities or the
use of external scientific reports.
Comment: Changes to specific subjects to be addressed in monitoring
programs. A respondent suggested the responsible official discretion
would be improved by deleting proposed wording ``related to climate
change and other stressors'' and ``carbon stored in vegetation.''
Others felt requirements to monitor accomplishment of plan objectives
and progress towards achieving plan ``desired conditions'' should be
added. Some respondents felt the proposed rule's monitoring
requirements for specific resource areas unduly limited responsible
official discretion in determining what questions and indicators to
include in the unit monitoring program. Some respondents felt specific
subjects should be required in all plan monitoring programs including:
grazing impacts, off-road vehicle use, species populations, vegetation,
ecological conditions, social and economic sustainability, effects of
long-term uses, noise pollution, water quality, recreational use
satisfaction, and public safety, among others. Some respondents felt
the proposed rule would limit monitoring programs to consider only one
monitoring question or indicator.
Response: Section 219.12(a)(5) of the rule requires the responsible
official to develop a plan monitoring program that describes, at a
minimum, one or more questions and associated indicators on eight
specific topics. The number of monitoring questions and indictors may
vary by topic. The Department believes that the set of minimum
requirements for the plan monitoring program included in paragraph
(a)(5) of the final rule is appropriate, reflects the substantive
requirements of the final rule, builds on the information gathered
during the assessment phase, and is focused on informing adaptive
management of the plan area.
Paragraph (a)(5) does not limit the questions and indicators in any
given plan. The responsible official has the authority to determine
whether additional monitoring elements are warranted or necessary to
inform management decisions if they are within the fiscal capability of
the unit to implement. The Department's intent is for the responsible
official to determine what information needs are most critical for
informed and adaptive management of the plan area. Because most
resource management concerns vary by forests or grasslands, the rule
allows the responsible official discretion to set priorities for
monitoring where it is most needed. This discretion is also important
for fostering opportunities to coordinate monitoring with other
government agencies and non-government entities. Therefore, an
extensive list of other possible monitoring requirements in addition to
the set in paragraph (a)(5) is not included in the final rule.
The requirements to include questions and associated indicators to
monitor measurable changes on the plan area related to climate change
and other stressors was retained in the final rule, because it is
important to track changing conditions. The final rule removes the
monitoring requirement for carbon stored in above ground vegetation
because the Department added a requirement in the assessment phase
(Sec. 219.6(b)) to identify and evaluate existing information for a
baseline assessment of carbon stocks. This change reflected comments to
this section and the assessment section, and is consistent with the
Agency's Climate Change Scorecard which also requires a baseline
assessment of carbon stocks. The Department added a requirement for the
plan monitoring program to monitor progress toward meeting the plan's
desired conditions and objectives and a requirement to monitor visitor
satisfaction in Sec. 219.12(a)(5) of the final rule.
Comment: Ecological Conditions and Focal Species (Sec. 219.9).
Some respondents felt the required monitoring questions and indicators
of Sec. 219.12(a) of the proposed rule did not adequately address fish
and wildlife populations or gauge progress towards meeting the
requirements of Sec. 219.9 of the proposed rule.
Response: In response to these comments, the Department added
wording to the required questions and indicators of Sec. 219.12 to
link them to the ecological conditions required by Sec. Sec. 219.8 and
219.9, added the requirement in paragraph (a)(5)(iv) to monitor
ecological conditions associated with the species requirements in Sec.
219.9, and modified two definitions. The changes to the requirements
for questions and indicators are explained in the introduction to the
response to comments of this section. The Department modified the
definition of ``ecosystem'' to explain these interrelated ecosystem
elements so the relationship between monitoring questions and
indicators are clearly related to the ecological conditions of
Sec. Sec. 219.8 and 219.9. The Department modified the definition of
focal species to clarify the intended role of focal species in
assessing the effectiveness of the plan in maintaining the diversity of
plant and animal communities in the plan area.
Comment: Questions about focal species. Respondents asked questions
about focal species. (1) What are they? (2) What do they represent? (3)
What criteria will be used to select them? (4) How many will there be
for a particular plan area? (5) How will they be monitored?
Response: (1) The inclusion of the focal species (Sec. 219.19) in
the monitoring section is based on concepts from the March 15, 1999,
Committee of Scientists report, which recommended focal species as an
approach to monitor and assess species viability. The term ``focal
species'' is defined in the rule as: A small subset of species whose
status permits inference to the integrity of the larger ecological
system to which it belongs and provides meaningful information
regarding the effectiveness of the plan in maintaining or restoring the
ecological conditions to maintain the diversity of plant and animal
communities in the plan area. Focal species would typically be selected
on the basis of their functional role in ecosystems.
(2) The requirement for monitoring questions that address the
status of focal species is linked to the requirement of Sec. 219.9 of
the final rule to provide for ecosystem integrity and diversity, which
describes the coarse-filter approach for providing diversity of plant
and animal
[[Page 21233]]
communities and the persistence of native species in the plan area. The
rule requires plan components designed to maintain or restore a range
of ecological conditions at a variety of spatial and temporal scales
(Sec. Sec. 219.8 and 219.9). Appropriate monitoring of focal species
will provide information about the integrity of the ecosystem and the
effectiveness of the plan components in maintaining diversity of plant
and animal communities in the plan area. In other words, focal species
monitoring is used as means of understanding whether a specific
ecological condition or set of conditions is present and functioning in
the plan area. Focal species monitoring is not intended to provide
information about the persistence of any individual species. The rule
does not require managing habitat conditions for focal species, nor
does it confer a separate conservation requirement for these species
simply based on them being selected as focal species.
(3) The Committee of Scientists report said focal species may be
indicator species, keystone species, ecological engineers, umbrella
species, link species, or species of concern. Agency directives will
provide guidance for considering the selection of a focal species from
these or other categories. Criteria for selection may include: the
number and extent of relevant ecosystems in the plan area; the primary
threats or stressors to those ecosystems, especially those related to
predominant management activities on the plan area; the sensitivity of
the species to changing conditions or their utility in confirming the
existence of desired ecological conditions; the broad monitoring
questions to be answered; factors that may limit viability of species;
and others. This does not preclude the use of an invasive species as a
focal species, whose presence is a major stressor to an ecosystem.
(4) The final planning rule does not require a specific number or
numeric range of focal species to be selected. The number will vary
from unit to unit. The definition of focal species requires a small
subset of species. The responsible official has discretion to choose
the number of focal species that he or she determines will be useful
and reasonable in providing the information necessary to make informed
management decisions. It is not expected that a focal species be
selected for every element of ecological conditions.
(5) The rule does not specify how to monitor the status of focal
species. Monitoring methods may include measures of abundance,
distribution, reproduction, presence/absence, area occupied, survival
rates, or others. The objective is not to choose the monitoring
technique(s) that will provide the most information about the focal
species, but to choose a monitoring technique(s) for the focal species
that will provide useful information with regard to the purpose for
which the species is being monitored.
The final rule does not require monitoring species population
trends. Species population trend monitoring is costly, time intensive,
and may not provide conclusive or relevant information. In addition,
traditional monitoring of species population size and trend is not
reliable for many species because of wide variations in population
size. For certain species, for example, a more reliable method may be
presence-absence data obtained through non-invasive genetic sampling.
Presence-absence modeling could be used to map and predict species
distribution, help model habitat requirements and use occurrence data
to help estimate the probability of a species being present in
sustainable numbers within a geographic area. Genetic sampling, which
is drawing DNA from physical species evidence collected at sites under
evaluation, can be used to acquire data for this approach. Other
monitoring techniques in addition to these examples may be more
appropriate in a given circumstance. Therefore, although population
trend monitoring may be used where feasible and appropriate, the final
rule explicitly provides discretion to the responsible official to
choose the most appropriate methods for monitoring, using the best
available scientific information to inform the monitoring program.
Specific guidance on focal species selection and monitoring
methodology is expected to be further described in the Agency's
planning directives. Some focal species may be monitored at scales
beyond the plan area boundary, while others may be more appropriately
monitored and assessed at the plan area scale.
Comment: Focal species vs. management indicator species. Many
respondents expressed concern or confusion over the role of focal
species monitoring in meeting the requirements of Sec. 219.9; and how
focal species would be used differently from management indicator
species (MIS) as required under the 1982 planning rule.
Response: The Department's decision to require monitoring of focal
species as well as select ecological and watershed conditions is a
shift from the 1982 rule's requirement to specifically monitor
population trends of ``management indicator species,'' or MIS. The
theory of MIS has been discredited since the 1982 rule. Essentially,
monitoring the population trend of one species should not be
extrapolated to form conclusions regarding the status and trends of
other species. The requirement for monitoring questions that address
the status of focal species is linked to the requirement of Sec. 219.9
of the final rule to provide for ecosystem integrity and diversity,
which describes the coarse-filter approach for providing diversity of
plant and animal communities and the persistence of native species in
the plan area. Focal species are not intended to provide information
about the persistence of any individual species.
In addition, population trends for most species are extremely
difficult to determine within the 15-year life of a plan, as it may
take decades to establish accurate trend data, and data may be needed
for a broader area than an individual national forest or grassland. Nor
is this data the most useful to inform management for the purposes of
meeting the diversity requirements of the rule. Instead, the Agency
expects to take advantage of recent technological advancements in
monitoring the status of focal species, such as genetic sampling to
estimate area occupied by species.
The provisions under Sec. 219.9 of the final planning rule are
focused on maintaining or restoring the ecological conditions necessary
to maintain the diversity of plant and animal communities and support
the persistence of native species in the plan area. Because of the
problems with MIS as stated above, and because the concept of
monitoring focal species, as described by the Committee of Scientists
report of March 15, 1999, is used to assess the integrity of ecological
systems, the final planning rule incorporates the concept of focal
species for monitoring the ecological conditions required in Sec.
219.9. Focal species are not intended to be a proxy for other species.
Instead, they are species whose presence, numbers, or status are useful
indicators that are intended to provide insight into the integrity of
the larger ecological system, the effects of management on those
ecological conditions, and the effectiveness of the Sec. 219.9
provisions. The monitoring questions and associated indicators required
in Sec. 219.12(a)(5)(i-iv) as discussed above are expected to assess
progress towards meeting the desired ecological conditions required
under Sec. Sec. 219.8 and 219.9, and the effectiveness of those
conditions in maintaining the diversity of plant and animal communities
and
[[Page 21234]]
supporting the persistence of native species in the plan area.
Comment: Selection and monitoring of focal species. Respondents
felt the rule should require 3 items for selection and monitoring of
focal species: (1) The best available scientific information; (2) the
engagement of research, state fish and wildlife agencies, and others;
and (3) a broader spatial scale then one plan area.
Response: The rule requires (1) all aspects of planning to use the
best available scientific information to inform the planning process,
plan components, and other plan content, including the monitoring
program (Sec. Sec. 219.3 and 219.14); (2) coordination with research,
and consideration of opportunities to design and carry out monitoring
with a variety of partners including state agencies (Sec. Sec.
219.12(a)(1), (b)(2), and (c)(3)(ii)); and (3) broader-scale monitoring
strategies be developed in addition to the plan monitoring program, to
address questions that are best answered at a broader scale than one
plan area (Sec. 219.12(b)), which may include monitoring for one or
more focal species.
Comment: Monitoring of at risk species. Some respondents felt the
rule should require monitoring of populations of federally listed
threatened and endangered species, species that are candidates for
Federal listing, and species of conservation concern.
Response: In response to public comments, the Department added a
requirement to the rule for monitoring questions and associated
indicators to monitor the status of a select set of the ecological
conditions required under Sec. 219.9 to contribute to the recovery of
federally listed threatened and endangered species; conserve proposed
and candidate species; and maintain a viable population of each species
of conservation concern within the plan area (Sec. 219.12(a)(5)(iv).
It is expected that monitoring a select set of the ecological
conditions required by these species will give the responsible official
information about the effectiveness of the coarse and fine-filter plan
components included to meet the requirements of at risk species. The
intent of the term ``a select set'' is to focus the monitoring on a few
important ecological conditions that may be monitored in an efficient
way. Monitoring for watershed conditions, other ecological conditions,
and focal species will also provide information about the effectiveness
of plan components for at risk species.
In some circumstances, a threatened, endangered, proposed, or
candidate species, or a species of conservation concern may be the most
appropriate focal species for assessing the ecological conditions
required by Sec. 219.9. However, as explained in earlier responses in
this section, population trend monitoring is not required by the final
rule.
Comment: Monitoring of habitat conditions. Respondents felt that
monitoring habitat conditions only, specifically related to vegetation
composition and structure, will not adequately address the reasons why
species may or may not occupy those habitats; and that there may be
other stressors unrelated to habitat that make suitable habitat
conditions unsuitable for occupation by a particular species.
Response: The final rule requires monitoring the status of select
ecological conditions. The concept of ecological conditions as defined
in the proposed rule and the final rule includes more than vegetation
composition and structure: it is designed to encompass those factors as
well as others, including stressors that are relevant to species and
ecological integrity.
Examples of ecological conditions include the abundance and
distribution of aquatic and terrestrial habitats, connectivity, roads
and other structural developments, human uses, and invasive species.
Comment: Distinctive roles and contributions. A respondent felt
``distinctive roles and contributions'' wording in proposed Sec.
219.12(a)(5)(vii) is inappropriate and should be stricken from the
monitoring section.
Response: The final rule removes ``distinctive roles and
contributions'' from Sec. 219.12 in response to public comment because
the Department has decided that the new requirement at paragraph
(a)(5)(vii) for questions and indicators addressing the progress toward
meeting the desired conditions and objectives in the plan, including
for providing multiple use opportunities, more accurately reflects what
the Department intended to accomplish with the previous requirement at
paragraph (a)(5)(vii) in the proposed rule and the other proposed
requirements of (a)(5).
Comment: Management systems in NFMA. Some respondents felt the
proposed rule misinterprets the NFMA reference to management systems by
not repeating the word ``each'' and by overly restricting the types of
management systems.
Response: The final rule adds the word ``each'' to the monitoring
requirement for management systems. As clarification, Sec. 219.19 of
the final rule also includes a definition of management system as a
timber management system such as even-aged management or uneven-aged
management. Management system is a term of art of the NFMA (16 U.S.C.
1604(g)(3)(C)). The term management system must be understood in the
context of the NFMA which was developed to give guidance to the Agency
in how to manage timber. The Department understands the intent of
Congress was that research and evaluation would be done on a sample
basis. The Forest Service Research and Development staff began the
long-term soil productivity program in 1989 to examine the long term
consequences of soil disturbance on fundamental forest productivity
through a network of designed experiments. (Powers, R.F. 2006. Long-
Term Soil Productivity: genesis of the concept and principles behind
the program. Can. J. For. Res. 36:519-528.)
Comment: Monitoring effects of management procedures. A respondent
felt the 1982 provisions for requiring documentation of the measured
prescriptions and effects of management procedures (practices) are
superior to the monitoring requirements of the proposed rule. The
respondent felt the proposed provisions would fail to ensure that
actions do not jeopardize biodiversity.
Response: The Department requires monitoring questions and
indicators to monitor eight topics including the status of ecological
conditions. Ecological conditions include vegetation composition and
structure, abundance and distribution of aquatic and terrestrial
habitats, connectivity, roads and other structural developments, human
uses, and invasive species. Questions and indicators associated with
the required topics in Sec. 219.12(a)(5) of the final rule can be used
to evaluate effects of management procedures (practices) based on the
outcomes observed in ecological conditions. The Department concludes
that these monitoring requirements support the substantive requirements
for ecological integrity and ecosystem and species diversity in the
final rule.
Comment: Conservation education: A respondent felt monitoring
should include conservation education.
Response: Conservation education can be a valuable outcome from
collaborative planning and reaching out to engage others in design of
monitoring programs. The rule gives discretion to the responsible
officials to consider the extent and methods chosen to address
conservation education. Other sections direct the responsible official
to
[[Page 21235]]
consider opportunities to connect people to nature. However, a specific
requirement for monitoring conservation education was not added to the
final rule.
Comment: Financial feasibility of monitoring. Some respondents felt
the proposed rule was obligating the Agency to undertake unaffordable
or unachievable monitoring work, in particular broad-scale monitoring
extending beyond the boundaries of NFS lands. Some felt the monitoring
requirements may cause the Agency to increase fees to cover costs or
that broad-scale monitoring would become a precondition before issuing
special use permits.
Response: The proposed rule does not obligate the Agency to monitor
beyond its fiscal means. Final rule Sec. Sec. 219.1(g),
219.12(a)(4)(ii) and 219.12(b)(3) ensures that responsible officials
must exercise discretion to develop technically and financially
feasible monitoring programs. Although monitoring information will be
used by responsible officials to inform the need to change plan
components, including standards or guidelines, the rule specifically
makes clear in Sec. 219.12(a)(7) that monitoring is not a prerequisite
for carrying out a project or activity such as the renewal of special
use permits.
Comment: Financial feasibility of monitoring economic and social
structures of communities. A respondent felt the financial feasibility
of monitoring under the proposed rule was unattainable and additional
discussion was needed on how economic and social structures of local
communities will be monitored.
Response: The rule requires certain subjects be addressed with one
or more questions and associated indicators as the basis for plan
monitoring. The NEPA compliance in support of proposed plans and
projects will disclose the economic and social effects to local
communities, and paragraph (a)(5)(vii) of this section requires
monitoring progress towards meeting desired conditions and objectives
in the plan, which will include plan components developed to contribute
to social and economic sustainability. However, there is no requirement
to monitor the economic and social structures of local communities. The
Department believes that the monitoring requirements of the final rule
will be achievable.
Comment: Feasibility of climate change monitoring. Some respondents
felt the requirement for plan monitoring programs to include one
question and indictor associated with measurable changes on the unit
related to climate change and other stressors would be neither
affordable nor achievable.
Response: The Department believes that including monitoring
questions and indicators associated with measureable changes on the
unit related to climate change and other stressors is achievable. The
Agency is already conducting monitoring for climate change and other
stressors such as insects, diseases, invasive species, wildfire, and
more. In addition, the Agency is implementing the Climate Change
Roadmap and Scorecard, which includes monitoring for climate change.
This section allows the responsible official to use and build on other
data and programs, encourages coordination with others and multi-party
monitoring, and recognizes that some monitoring questions may best be
answered at a scale broader than on plan area. The flexibility provided
in this section will allow the responsible official to develop a
strategic, effective, and financially achievable monitoring program,
while meeting the requirements of paragraph (a)(5).
Comment: Project monitoring. Some respondents felt project
monitoring requirements should be included in the rule. Citing
Department of Army regulations, a respondent felt the rule should
require project monitoring funding be allocated before project
implementation. Some respondents felt proposed Sec. 219.12(a)(7) meant
project monitoring would not occur.
Response: The Department agrees project monitoring is important and
is a valuable means of understanding the effects of projects and can
provide information useful to adapt future project plans to improve
resource protection and restoration. The Department added wording to
paragraph (a)(7) to clarify that project and activity monitoring may be
used to gather information for the plan monitoring program, and that
plan monitoring may inform the development of specific projects and
activities. The Department anticipates that project and activity
monitoring will be used as part of the plan monitoring program, but the
responsible official has the discretion to strategically select which
projects to monitor and the monitoring questions related to those
projects that will best inform the monitoring program and test
assumptions, track changing conditions, or evaluate management
effectiveness. However, the final rule makes clear the monitoring
requirements of this section are not a prerequisite for making a
decision to carry out a project or activity. Each project carried out
under the plan will not automatically include the monitoring
requirements for the plan.
Project monitoring may also occur for purposes other than
supporting the plan monitoring program, and the final rule does not
preclude project-specific monitoring requirements developed as part of
project or activity decisions. The planning rule does not discuss
requirements for project monitoring; therefore, funding of project
monitoring is an issue outside the scope of the planning rule.
Comment: Risks from lack of monitoring or monitoring information.
Some respondents felt the lack of monitoring, or information not
available through monitoring, could delay management actions or
foreclose activities and projects because of uncertainties. A
respondent felt the rule should clearly state monitoring goals are not
preconditions to approve, continue, or renew special use permits or
provide for public uses, or State fish and wildlife management
activities.
Response: Although monitoring information may be used by
responsible officials to inform the need to change the plan, monitoring
is not a precondition of conducting projects or carrying out management
actions. The rule establishes those elements of monitoring necessary to
inform adaptive management of the resources on the unit. None of the
requirements of monitoring for the plan monitoring program apply to
individual projects or activities. These monitoring requirements do not
delay or foreclose management activities.
Comment: Monitoring and extractive actions. A respondent felt the
rule should require all extractive actions to cease on a unit until
timely monitoring has been completed.
Response: The planning rule does not apply to any ongoing projects
or activities except as provided by Sec. 219.15.
Comment: Monitoring and assessment data. A respondent felt the rule
should specifically state new and accurate data is important to the
success of monitoring and assessment, and use of new and accurate data
is required.
Response: The final rule requires the use of best available
scientific information to inform the development of the monitoring
program. However, the final rule does not add the requirement suggested
by the respondent as some monitoring questions or indicators may be
adequately addressed with existing data. Accuracy in data is met
through data protocols and quality control standards covered in other
Agency guidance outside the planning regulations.
Comment: Feedback needed from monitoring to planning and
[[Page 21236]]
management actions. Some respondents felt the proposed rule lacks
feedback between monitoring and changes to plan components. Some
respondents felt the rule should include accountability measures and
explicitly include ``adaptive management'' requirements rather than
just describing a framework for planning consistent with principles of
``adaptive management.''
Response: The Department made changes in response to public
comments to make clear the focus on adaptive management. The monitoring
program is required to be designed to inform management (Sec.
219.12(a)). The final rule requires that the monitoring evaluation
report be used to inform adaptive management of the plan area (Sec.
219.12(d)(2)), in addition to the requirement that the report indicate
whether new information indicates that changes are warranted. The final
rule requires that the responsible official review relevant information
from both the assessment and monitoring to inform the development of
plan components and other plan content (Sec. 219.7(c)(2)(i)). Section
219.5(a) sets forth a responsive planning process that informs
integrated resource management and allows the Agency to adapt to
changing conditions, including climate change, and improve management
based on new information and monitoring. The final rule also requires
the Chief to administer a national oversight process for accountability
and consistency to review NFS land management planning in the context
of this framework (Sec. 219.2(b)(5)).
Comment: Biennial evaluations. Some respondents felt the proposed
biennial evaluations requirement would be too costly, time consuming
and complex. Others felt the rule should require an annual evaluation.
Others thought the biennial evaluation time is too short because of
long-term aspects, such as climate change, require long periods of time
before meaningful evaluations can be conducted. Still others felt the
rule should require a public comment period on the biennial evaluation.
One respondent felt the rule should not allow the responsible official
to publish monitoring evaluation reports without approval at a higher
level. Some respondents felt the proposed requirement for biennial
reporting would not meet NFMA's requirement for continuous monitoring.
Response: The Department decided to retain the requirement that the
responsible official conduct a biennial evaluation of the monitoring
information and issue a written report of the evaluation and make it
available to the public. The biennial evaluation of monitoring is
intended to collect, evaluate, and report on new data or results that
provide information for adaptive management: for example, information
about management effectiveness, progress towards meeting desired
conditions or objectives, changing conditions, or validation (or
invalidation) of assumptions. The biennial monitoring evaluation does
not need to evaluate all questions or indicators on a biennial basis
but must focus on new data and results that provide new information for
adaptive management. The responsible official may postpone the
monitoring evaluation for 1 year after providing notice to the public
in the case of exigencies such as a natural disaster or catastrophic
fire. The Department believes that this requirement is implementable
and important to inform adaptive management.
The Agency's experience is that an annual evaluation is too
frequent to determine trends or to accumulate meaningful information
and the 5-year time frame (Sec. 219.10(g) of the 1982 rule) is too
long to wait in order to respond to changing conditions or new
information. Therefore, the Department determined the monitoring
evaluation would occur at a 2-year interval. The Department recognizes
some kinds of monitoring indicators require longer time frames for
thorough evaluation of results, but a biennial review of what
information has been collected will ensure evaluation of available
information is timely and can be used to inform planning and adaptive
management of the unit.
The Department also retained the requirement that the responsible
official publish the monitoring evaluation report, so that it is
available to the public. Section 219.4(a) of the final rule requires
the responsible official to provide opportunities for the public to
participate in reviewing the results of monitoring information. The
responsible official may elect various methods for this participation,
but the rule does not direct any specific form for this participation
such as requiring formal comment on the biennial evaluation. Public
notice of the availability of the monitoring evaluation report is
required, and must be posted online. Additional notice may be made in
any way the responsible official deems appropriate. Any changes to the
monitoring program require consideration of public comment.
Section 219.5(a)(3) of the final rule states that under the
planning framework ``monitoring is continuous.'' The biennial
monitoring evaluation report would not halt monitoring; it would simply
report new information obtained from that monitoring.
Comment: Evaluation reports and changes to plan components based on
information from petition(s). A respondent suggested the biennial
evaluation report incorporate science contained in environmental
analyses and the plan be updated to incorporate information from
petition(s).
Response: The requirement in this section for a biennial evaluation
report is focused on providing systematic and transparent reporting and
evaluation of information obtained pursuant to the monitoring program
established consistent with this section. The report will be used to
inform adaptive management on the unit. As part of the planning
process, the responsible official may also consider any additional
relevant information contained in other sources, such as petitions or
new environmental analyses.
Comment: Required actions in response to monitoring. Some
respondents felt monitoring results might be of no consequence if there
are no requirements in the rule to take specific actions to respond to
monitoring results. These changes should not wait for another planning
cycle. Others felt the rule should include criteria as to when a need
to change the plan is indicated by monitoring. A respondent suggested
unit monitoring incorporate efforts to focus on non-native invasive
species not present but can reasonably be foreseen as posing a risk to
eventually enter the plan area. Another respondent felt proposed Sec.
219.12(a)(7) would result in monitoring programs not dealing with
watershed degradation associated with projects or activities, such as
grazing, and the rule should focus on watersheds in poor condition,
degraded riparian and upland habitats, substantial and permanent losses
in soil productivity, and streams. A respondent felt the requirement to
monitor ``the status of select watershed conditions'' was vague and
could lead to the collection of disparate types of information across
planning units and could create local conflicts over the requirement's
interpretation. A respondent felt more explanation was necessary in the
rule on why topics were not included in requirements under Sec.
219.12(a)(5). A respondent felt the rule should require the monitoring
program to substantiate why certain portions of the plan do not warrant
monitoring. A respondent suggested the rule specify a framework for
reporting on forest conditions such as the Montreal Protocol.
[[Page 21237]]
Response: The final rule requires that the monitoring evaluation
report indicate whether a change to the plan, management activities,
the monitoring program, or a new assessment may be warranted based on
the new information. It also requires that the monitoring evaluation
report be used to inform adaptive management of the plan area to ensure
that the plan remains effective and relevant. The responsible official
will need to evaluate when the information warrants a change to the
plan. The public will have the opportunity to review the biennial
monitoring report, and is welcome to provide input to the responsible
official. The Department modified the requirements of paragraph (a)(5)
in response to public comments and to more closely link the monitoring
requirements to the assessment topics and to the substantive
requirements in Sec. Sec. 219.7 through 219.11. The responsible
official is not limited to the monitoring requirements identified in
paragraph (a)(5) of this section. The responsible official may add
questions and indicators to reflect the monitoring needs most
appropriate to inform effective management for that unit. In addition,
the broader-scale monitoring strategies will identify questions and
indicators best monitored at a broader geographic scale than the plan
area.
The Department concluded that the set of monitoring requirements in
the final rule provides an appropriate balance between requiring core
monitoring on each unit and recognizing that there will be a wide and
diverse array of monitoring needs across each system, including with
regard to what specific questions and indicators may be most relevant
for the topics in paragraph (a)(5) of this section. The responsible
official will need to document the rationale for decisionmaking, as
well as how best available scientific information was used to inform
the monitoring program. Additional direction will be included in the
Forest Service Directive System, and may be provided as a result of the
Agency's ongoing review of its monitoring system.
The final rule requires monitoring of watershed conditions, as well
as ecological conditions associated with aquatic ecosystems, and
progress towards meeting desired conditions and objectives. The
Department believes that these monitoring requirements will support the
substantive requirements in the final rule for plan components for
watersheds, water quality, water resources, and riparian areas,
including those considerations with regard to water identified in the
comment, and will inform management effectiveness and adaptive
management.
The Department expects monitoring will be informed by FIA data. The
FIA program inventories and reports on changing conditions across all
forested lands and provides information that reflects many Montreal
Process indicators.
Comment: Adjusting plans without adequate monitoring information. A
respondent felt the proposed rule's emphasis on making rapid changes
may cause the responsible official to make changes to plan components
without the benefit of monitoring over an appropriate period of time,
as some monitoring questions and indicators cannot be adequately
evaluated annually. A respondent felt the proposed rule's support of
rapid adjustment of management through monitoring could lead to
mistakes when causal factors are not understood. Another respondent
felt the adaptive management approach was too vague and the rule needed
wording to endorse a precautionary approach when the responsible
official has only limited data available for a decision about a
significant change in resource management.
Response: The Department agrees numerous monitoring questions and
indicators could take many years of monitoring data collection before
the information can be credibly evaluated. The use of the monitoring
information is one factor in deciding when and how to change a plan.
Any amendment or revision conducted as a result of new information from
monitoring would be carefully done in accordance with the NEPA and the
requirements of this final rule. Rapid, narrow amendments can help
plans stay current and relevant, while recognizing that more
information will be available over time. Since responsible officials
already have discretion to consider precautionary measures when risks
to resources are uncertain during NEPA analysis, the Department decided
it is not necessary to add precautionary wording to the final rule. Any
significant change in resource management would need to be consistent
with the sustainability and other requirements in the final rule.
Comment: Administrative change applied to monitoring program. A
respondent felt modifying monitoring programs with an administrative
change would pose a risk of not conducting good monitoring because
changes could be done too easily.
Response: Section 219.2 requires national oversight and process for
accountability for planning. In addition, a substantive change to a
monitoring program via an administrative change can only be made after
public notice and consideration of public comment. Monitoring design
and specification of details about measurement quality objectives,
techniques, and frequency are subject to changing scientific knowledge.
The final rule allows monitoring programs to be changed in a timely way
to respond to evolving science and to maintain scientific credibility.
Additionally, monitoring programs do not rely exclusively on protocols
authored by the Agency. For example, other agencies such as
Environmental Protection Agency, US Geological Survey, and National
Park Service possess expertise and have already incurred substantial
expense developing, reviewing, and testing protocols. It will be
important, especially for multi-party monitoring, to be able to
evaluate and incorporate these protocols when appropriate in the plan
monitoring program as new partnerships are formed.
Section 219.13--Plan Amendment and Administrative Changes
This section of the rule sets out the process for changing plans
through plan amendments or administrative changes. The section would
allow the responsible official to use new information obtained from the
monitoring program or other sources and react to changing conditions to
amend or change the plan. The Department's intent is that plans will be
kept more current, effective, and relevant by the use of more frequent
and efficient amendments, and administrative changes over the life of
the plan, also reducing the amount of work needed for a full revision.
Plan Amendments
Plan amendments incrementally change the plan as need arises. Plan
amendments could range from project specific amendments or amendments
of one plan component, to the amendment of multiple plan components.
For example, a monitoring evaluation report may show that a plan
standard is not sufficiently protecting streambeds, indicating that a
change to that standard may be needed to achieve an objective or
desired condition in the plan for riparian areas. In that case, the
responsible official could choose to act quickly to propose an
amendment to change that particular standard.
The process requirements for plan amendments and administrative
changes are simpler than those for new plan development or plan
revisions in order to allow responsible officials to keep plans current
and adapt to new information or changed conditions.
[[Page 21238]]
As discussed in Sec. 219.6, the final rule does not require an
assessment prior to initiating a plan amendment, because a new
assessment will not always be necessary or useful. However, the
responsible official can always choose to conduct an assessment and
take additional time to develop a proposal when the potential amendment
is broader or more complex or requires an updated understanding of the
landscape-scale context for management. For example, a monitoring
evaluation report may indicate that a new invasive species is affecting
forest health on the plan area. The responsible official may want to
conduct a new, focused assessment to synthesize new information about
the spread of that species, how other plan areas or land management
agencies are dealing with the threat, what stressors make a resource
more vulnerable to the species, how the species may be impacting social
or economic values, or how neighboring landowners are approaching
removal of the species. The responsible official, consistent with the
requirements for public participation in Sec. 219.4, would then
collaboratively develop a proposal to amend several plan components to
deal with the invasive species.
All plan amendments must comply with Forest Service NEPA
procedures. This final rule provides that appropriate NEPA
documentation for an amendment could be an EIS, an environmental
assessment (EA), or a categorical exclusion (CE) depending upon the
scope and scale of the amendment and its likely effects. A proposed
amendment that may create a significant environmental effect and thus
require preparation of an EIS is considered a significant change in the
plan for the purposes of the NFMA.
Administrative Changes
Administrative changes allow for rapid correction of errors in the
plan components. In addition, other content in the plan, as identified
in Sec. 219.7(f), could be altered with an administrative change,
including the monitoring plan, the identification of watersheds that
are a priority for maintenance or restoration, the plan area's
distinctive roles and contributions, and information about proposed or
possible actions that may occur on the plan area during the life of the
plan. This final rule requires the responsible official to provide
public notice before issuing any administrative change. If the change
would be a substantive change to the monitoring program, the
responsible official must also provide an opportunity for the public to
comment on the intended change and consider public concerns and
suggestions before making a change. The Department believes that
allowing administrative changes to other content, other than plan
components, would help the responsible official rapidly adapt that
content to changing conditions and respond to new information, while
requiring the responsible official to keep the public informed. For
example, a major fire event may make a particular watershed a new
priority, or a new collaborative monitoring effort may require the
addition of one or more monitoring questions.
Section 219.13--Response to Comments
The Department made minor modifications to the wording of this
section from the 2011 proposed rule for clarity.
At the end of paragraph (a), the words ``(including management
areas or geographic areas)'' were added to reflect the modifications of
Sec. 219.7, and to clarify that an amendment is required for any
change in how or whether plan components apply to those areas.
The Department merged provisions about plan amendments found in two
sections of the proposed rule (Sec. Sec. 219.6(c) and 219.13(b)(1))
into one paragraph (paragraph (b)(1) of this section) of the final
rule, for clarity. The provisions were removed from Sec. 219.6(c) of
the final rule.
The Department added a sentence to the end of paragraph (b)(3) of
this section to make clear that a proposed amendment that may have a
significant environmental effect and thus require preparation of an EIS
is considered a ``significant change in the plan'' for purposes of the
NFMA. The NFMA at 16 U.S.C. 1604(f)(4) states that plans shall be
amended in any matter whatsoever after public notice, and, if such
amendment would result in a significant change in a plan, the plan must
be amended in accordance to the requirements of 16 U.S.C. 1604(e) and
(f) and public involvement required by 16 U.S.C. 1604(d). Likewise, as
part of the NEPA process, the responsible official must determine
whether the significance of the proposed amendment's impact on the
environment would require an environmental impact statement. This
addition to the final rule makes the NEPA and NFMA findings of
``significance'' one finding. If under NEPA a proposed amendment may
have a significant effect on the environment and an EIS must be
prepared, the amendment would automatically be considered a significant
change to a plan.
The Department finds that the process requirements for an EIS, the
90-day public comment period required by this final rule, and the
additional requirements for amendments under this final rule meet the
requirements for a amendment that results in a significant change to
the plan under 16 U.S.C. 1604(f)(4). Thus, the responsible official
must make only one determination of significance, under the well-known
standards of NEPA.
For other plan amendments, less detailed levels of NEPA compliance
such as the preparation of environmental assessment or a decision memo
using a categorical exclusion may be appropriate. There is the same
opportunity for persons to file objections to all proposed amendments
as there is for proposed revisions (subpart B of the final rule).
Paragraph (c)(1) of both the proposed and the final rule provide
that changes to ``other plan content,'' may be made via an
administrative change (unlike the plan components, which require an
amendment to make substantive changes). Because of the importance of
the monitoring program to the public, the proposed rule provided and
the final rule retained a requirement that substantive changes to the
monitoring program made via an administrative change can be made only
after notice and consideration of public comment. In the final rule,
the Department added the word ``substantive'' to convey the
Department's intent that minor changes or corrections to the monitoring
program can be made via an administrative change without providing an
opportunity for public comment.
Comment: Appropriate NEPA for plan amendments. Some respondents
felt plans should be as simple and programmatic as possible and NEPA
compliance should occur only at the project level. Another respondent
said categorical exclusions should be used for minor amendments,
environmental assessments for more significant amendments. Some
respondents felt any action requiring an amendment should be considered
a significant action, therefore requiring development of an EIS to
disclose the anticipated effects of the amendment. A respondent felt it
was unclear as to when an EIS was done for an amendment and when it was
done for a plan revision. Other respondents felt use of categorical
exclusions was inappropriate for a plan amendment as any changes to the
plan should be subject to careful environmental review, scrutiny, and
analysis.
[[Page 21239]]
Response: Requiring an EIS for all amendments would be burdensome,
and unduly expensive for amendments with no significant environmental
effect. It would also inhibit the more frequent use of amendments as a
tool for adaptive management to keep plans relevant, current and
effective between plan revisions based on changing conditions and new
information. The Department requires the responsible official to follow
NEPA procedures and choose the appropriate level of analysis: EIS, EA,
or CE, based on the scale and scope of the amendment. As clarification,
Sec. 219.13 of the final rule clarifies that any plan amendment that
may create a significant environmental effect and therefore require
preparation of an EIS will be considered ``a significant change in the
plan'' for the purposes of the NFMA; requiring a 90-day comment period
under Sec. 219.16. An EIS is always required for a plan revision or
for development of a new plan.
Comment: Amendment verses administrative change. Some respondents
felt the proposed rule was confusing regarding when an amendment and
when an administrative change was to be used.
Response: Plan components are the plan's desired conditions,
objectives, standards, guidelines, suitability of areas, or goals
described in Sec. 219.7. An amendment is required if a change, other
than correction of a clerical error or a change needed to conform to
new statutory or regulatory requirements, needs to be applied to any of
these plan components.
Administrative changes are made to correct clerical errors to plan
components, to alter content in the plan other than the plan
components, or to achieve conformance of the plan to new statutory or
regulatory requirements. A clerical error is an error of the
presentation of material in the plan such as phrasing, grammar,
typographic errors, or minor errors in data or mapping that were
appropriately evaluated in the development of the plan, plan revision,
or plan amendment. An administrative change could not otherwise be used
to change plan components or the location in the plan area where plan
components apply, except to conform the plan to new statutory or
regulatory requirements. Changes that could be made through an
administrative change may also be made as part of a plan amendment or
revision instead.
Comment: Thirty-day comment period on environmental assessments
(EAs). Some respondents felt more than 30 days was needed for public
review of a large and complicated plan amendment supported by an EA.
They proposed a three tiered public response period: 90 days for
proposals requiring an EIS, 60 days for those requiring an EA, and 30
days for all others.
Response: The final rule retains the 30-day minimum comment period
for a plan amendment (Sec. 219.16(a)). Agency practice shows 30 days
can be reasonable when an EA is prepared.
Comment: Project specific plan amendments. Some respondents
expressed concern with the use of project specific plan amendments
because they felt that they do not get sufficient analysis, review,
public input, and may not use the best available science. A respondent
felt these amendments should only be allowed for unforeseen events or
special circumstances. Another respondent felt the supporting NEPA
documentation should include a `no amendment' alternative which
accomplishes the proposed action without amending the plan.
Response: No change was made to this provision in the final rule.
Project-specific amendments are short-lived with the project, and
localized to the project area. The point of a project-specific
amendment is to allow a project that would otherwise not be consistent
with the plan to be authorized and carried out in a manner appropriate
to the particular time and place of the project, without changing how
the plan applies in other respects. Project specific amendments give a
way to deal with exceptions. An exception is similar to a variance to a
county zoning ordinance. If the amendment changed plan components that
would apply to future projects, the exception would not be applicable.
Section 219.16(b) requires use of the Agency's notification
requirements used for project planning at 36 CFR parts 215 or 218 for
project-specific of amendment.
Comment: Amending plans under existing regulations. A respondent
felt the rule should allow for the option of amending existing plans
under the existing planning regulations.
Response: Final rule Sec. 219.17(b)(2) allows amendments to
existing plans to be initiated for a period of 3 years under the
provisions of the prior planning regulation. This provision is
unchanged from the proposed rule.
Comment: Administrative changes. Some respondents felt allowing
wilderness area boundaries to be changed with administrative changes
was inappropriate. Some respondents felt changes to monitoring programs
should not be done administratively as these changes should be
transparent and have public accountability.
Response: Wilderness area boundaries may only be changed by an act
of Congress, therefore a change to the wilderness area boundaries
identified in the plan would only be made to conform the plan to the
congressionally mandated change, with no discretion available to the
responsible official or to the public. When there is no agency
discretion, an administrative change to the plan is appropriate.
The rule requirements for administrative changes will facilitate
more rapid adjustment of plans. The technical aspects of monitoring may
need adjustment due to new information or advances in scientific
methods, or a change may be needed to reflect a new monitoring
partnership or for other reasons. The responsible official must involve
the public in the development of the plan monitoring program and post
notice of changes to the monitoring program online. If the change to
the monitoring program is substantive, the public must be given an
opportunity to comment. These requirements are intended to keep the
public engaged and informed of the monitoring program, while allowing
the program to build on new information and stay current.
Section 219.14--Decision Documents and Planning Records
This section of the rule requires the responsible official to
record approval of a new plan, plan revision, or amendment in a
decision document prepared according to Forest Service's NEPA
procedures and this section. This section describes requirements for
decision documents and associated records for approval of plans, plan
amendments, or plan revisions. These requirements will increase the
transparency of the decision and the rationale for approval, and
require the responsible official to document how the plan complies with
the requirements in this final rule.
This section also sets forth basic requirements for the responsible
official to maintain public documents related to the plan and
monitoring program. It requires the responsible official to ensure that
certain key documents are readily accessible to the public online and
through other means, and that the planning record be available to the
public.
Section 219.14--Response to Comments
Comments on this section focused on the availability of documents.
The Department largely retained the wording from the 2011 proposed
rule; however,
[[Page 21240]]
the Department did make changes for consistency in this section to
reflect changes made in other sections of the rule.
At paragraph (a)(2) the proposed rule wording of ``An explanation
of how the plan components meet the sustainability requirements of
Sec. 219.8 and the diversity requirements of Sec. 219.9, taking into
account the limits of Forest Service authority and the capability of
the plan area'' was modified to ``An explanation of how the plan
components meet the sustainability requirements of Sec. 219.8, the
diversity requirements of Sec. 219.9, the multiple use requirements of
Sec. 219.10, and the timber requirements of Sec. 219.11.'' The
Department added the requirements to explain how plan components meet
the requirements of Sec. Sec. 219.10 and 219.11 to cover all the
substantive requirements for plan components. The Department removed
the words taking into account the limits of Forest Service authority
and the capability of the plan area, because they are part of
Sec. Sec. 219.8-11 and Sec. 219.1(g).
At paragraph (a)(4), the Department changed the wording from the
proposed rule wording of ``taken into account and applied in the
planning process,'' to ``how the best scientific information was used
to inform planning, the plan components, and other plan content,
including the plan monitoring program'' to be consistent with the final
rule wording of Sec. 219.3. This change was made to make clear that
Sec. 219.3 applies to every aspect of planning, and the public must be
able to see and understand how it has been applied. Additional minor
edits were made for clarity.
Comment: Content of decision document. Some respondents felt these
proposed requirements should be reduced to what is required by the
NEPA. Others felt a discussion on multiple use and timber requirements
per the NFMA, and use of best available scientific information should
be included.
Response: The Council on Environmental Quality NEPA regulations at
40 CFR 1505.5 requires a record of decision to identify and discuss all
factors and essential considerations of national policy which were
balanced by the Agency in making its decision and state how those
considerations entered into its decision. The plan only provides the
management direction approved by the decision, while the decision
document provides the rationale for the decision; therefore, the
factors used in decisionmaking are most appropriate for the discussion
in the decision document. The requirements of this section will help
increase transparency and public understanding of the responsible
official's decisions. Based on public comment, the Department added the
multiple use requirements of Sec. 219.10 and the timber requirements
of Sec. 219.11 to the list of items (Sec. 219.14(a)(2)) that the
responsible official address in explaining how plan components meet the
requirements of the rule. Section 219.14(a)(4) of the final rule also
requires the decision document to document how the best available
scientific information was used to inform the planning process, the
plan components, and other plan content.
Comment: Availability of planning documents on the Internet. Some
respondents supported the proposed requirement to make available online
assessment reports; plan decision documents; proposed plans, plan
revisions, or plan amendments; public notices and environmental
documents associated with a plan; the monitoring program and monitoring
evaluation reports. Some respondents felt the plan should also include
all documents supporting analytical conclusions made and alternatives
considered throughout the planning process source data, including GIS
data, the monitoring program, and any plan revision. Some respondents
made specific requests about when and how documents are made available
online.
Response: Section 219.14(b)(1) of the final rule requires online
availability of documents including assessments, the monitoring
evaluation report, the current plan and proposed plan changes or
decision documents, and any public notices or environmental documents
associated with the plan. The final rule keeps the wording of the
proposed rule that these documents must be ``readily accessible''
online; the expectation is that the documents would be posted as soon
as they are finished and formatted for public viewing. Documents that
require formal notifications will be posted when formal notice is made,
if not before. In addition, the final rule requires that documents
identified in Sec. 219.52(c)(1) must be available online at the time
of notification of the start of the objection period.
Making all data and information used in the planning process
available online would be very time-consuming and expensive. However,
to ensure that units continue to make all planning records available
for those who may be interested, the final rule requires the
responsible official to make all documents available at the office
where the plan, plan revision, or amendment was developed. The final
rule does not prohibit the responsible official from using other means
of making documents available.
Comment: Availability of NEPA documents. Some respondents stated
the final EIS supporting a plan should be made available no later than
the start of objection process.
Response: The Department requires the objection process to begin
after the NEPA documents are final and made available. Section
219.52(c) lists the required items that the public notice must contain
in notifying the public of the beginning of the objection process
including a draft plan decision document. In addition, the final rule
requires that documents identified in Sec. 219.52(c)(1) must be
available online at the time of notification of the start of the
objection period.
Section 219.15--Project and Activity Consistency With the Plan
This section of the final rule provides that projects and
activities authorized after approval of a plan, plan revision, or plan
amendment developed pursuant to the final rule must be consistent with
plan components as set forth in this section. The NFMA requires that
``resource plans and permits, contracts and other instruments for the
use and occupancy of National Forest System lands shall be consistent
with the land management plans'' (16 U.S.C. 1604(i)). However, no
previous planning rule provided specific criteria to evaluate
consistency of projects or activities with the plan.
This section provides that every project and activity authorized
after approval of a plan, plan amendment, or plan revision developed
pursuant to the final rule must be consistent with the plan and the
applicable plan components as set forth in this section. Project
decision documents must describe how the project or activity is
consistent with the plan. This final rule specifies criteria to use to
evaluate consistency with the plan components.
The Agency has experienced difficulty in the past in determining
how new plan components and content in a plan apply to projects and
activities approved prior to the effective date of a plan amendment or
revision. With respect to such projects and activities, the rule
requires that: 1) the plan decision document must expressly allow such
projects to go forward or continue, and thus deem them consistent, or
2) in the absence of such express provision, the authorizing instrument
(permit, contract, and so forth) approving the use, occupancy, project,
or activity must be adjusted as soon as practicable to be consistent
with
[[Page 21241]]
the plan, plan amendment, or plan revision, subject to valid existing
rights.
Other types of plans may be developed for the lands or resources of
the planning area. These resource plans, such as travel management
plans, wild and scenic river plans, and other resource plans, may be
developed for the lands or resources of the planning area. This section
requires that other resource plans be consistent with the land
management plan and applicable plan components. If such plans are not
consistent, modifications of the resource plan must be made or
amendments to the land management plan must be made to resolve any
inconsistencies.
Section 219.15--Response to Comments
The Department retained the wording of the proposed rule, except
for three modifications. The Department clarified the first sentence of
paragraph (a)(1) to say every decision document approving a plan, plan
amendment, or plan revision must state whether authorizations of
occupancy and use made before the decision document may proceed
unchanged.
At paragraph (d), the Department added that every project and
activity must be consistent with the applicable plan components and
removed those words from Sec. 219.7(d) of the proposed rule, because
this provision is more appropriate in this section of the final rule.
At paragraph (d)(3), in response to comments received on the
preferred alternative, the Department modified the direction for
determining consistency with guidelines to make the Department's intent
more clear. Paragraph (d)(3)(i) was modified to reflect the structure
of the requirement for standards in paragraph (d)(2), and now reads:
``Complies with applicable guidelines as set out in the plan.'' In
paragraph (d)(3)(ii), the Department replaced ``carrying out the
intent'' to ``achieving the purpose'' of the applicable guidelines.
The Department removed the wording at Sec. 219.15(d)(3)(ii) of the
proposed rule that repeated text from Sec. 219.7(e)(1)(iv), to avoid
duplication and because the reference to Sec. 219.7(e)(1)(iv) is
adequate.
Comment: Consistency requirement. Some respondents felt the
proposed rule was too vague and unclear about project or activity
consistency with the plan. They felt the rule needs specific criteria
for determining if a project or activity is consistent with the plan,
and achieving consistency may not be feasible unless guidelines are
made mandatory.
Response: No previous planning rule provided specific criteria to
evaluate consistency of projects or activities with the plan. The
Forest Service policy was that consistency could only be determined
with respect to standards and guidelines, or just standards, because an
individual project alone could almost never achieve objectives and
desired conditions. See the 1991 Advanced Notice of Proposed Rulemaking
56 FR 6508, 6519-6520 (Feb 15, 1991) and the 1995 Proposed Rule, at 60
FR 18886, 18902, 18909 (April 13, 1995).
The Department continues to believe that the consistency
requirement cannot be interpreted to require achievement of the desired
conditions or objectives of a plan by any single project or activity,
but we believe that we can provide direction for consistency to move
the plan area toward desired conditions and objectives, or to not
preclude the eventual achievement of desired conditions or objectives,
as well as direction for consistency with the other plan components.
This section requires that every project and activity authorized
after the approval of a plan, plan revision or plan amendment must be
consistent with the plan as provided in paragraph (d) of this section.
Paragraph (d) specifies criteria to evaluate consistency, and requires
that project approval documents describe how the project or activity is
consistent. Given the very large number of project and activities, and
the wide variety of those projects and activities, it is not feasible
to provide any direction more specific than that set out in paragraph
(d).
Section 219.16--Public Notifications
In this section, the final rule sets forth requirements for public
notification designed to ensure that information about the planning
process reaches the public in a timely and accessible manner. This
section describes when public notification is required, how it must be
provided, and what must be included in each notice. This section of the
final rule is meant to be read with Sec. 219.4 of the rule in mind,
which sets forth direction for responsible officials to engage the
public and provide opportunities for interested individuals, entities,
and governments to participate in the planning process.
This final rule represents a significant new investment in public
engagement designed to involve the public early and throughout the
planning process. The Department is making this investment in the
belief that public participation throughout the planning process will
result in a more informed public, better plans, and plans that are more
broadly accepted by the public than in the past. The requirements in
this section respond to the consensus that people want to be informed
about the various stages of the planning process, with clear parameters
for when and how they can get involved.
Public input at several points during the development of the rule
emphasized the importance of updating the way we provide notice to the
public to ensure that we successfully reach a diverse array of people
and communities and inform them about the process and how they could
participate. Many people said that using only one outreach method would
not reach all needed communities. In response, this section directs
responsible officials to use contemporary tools to provide notice to
the public, and, at a minimum, to post all notices on the relevant
Forest Service Web site.
This section of the final rule provides that ``notifications may be
combined where appropriate.'' This provision would allow flexibility
for plan amendments to have a more streamlined, efficient process than
new plans or plan revisions, where appropriate. This approach is in
keeping with the public's desire and the Agency's need for a process
that allows plan areas to quickly and efficiently adapt to new
information and changing conditions. (see Sec. 219.13 for further
discussion.)
Section 219.16--Response to Comments
The Department made the following changes to this section of the
final rule:
In the introduction to paragraph (a) the Department changed the
term ``formal notifications'' to ``notifications.'' This change is a
clarification.
The Department removed the requirement at paragraph (a)(1) for a
formal notice for the preparation of an assessment, in response to
public comments on the efficiency of the assessment process. A
requirement for notice of opportunities to provide information for
assessments is now in paragraph (c)(6) of this section: notice must be
posted online, and additional notice may be provided in any way the
responsible official deems appropriate.
The wording of paragraph (a)(1) in the final rule, formerly
paragraph (a)(2) in the proposed rule, was modified to remove the words
``when appropriate'' before plan amendment. The change reflects the
Department's intent in the proposed rule and responds to public
comments about confusion over whether notice to initiate the
development of plan amendments is required (it is). This change is not
a change in requirement, this is a clarification.
[[Page 21242]]
At paragraph (c)(3) the Department added a new paragraph that
requires that when the notice is for the purpose of inviting comments
on a proposed plan, plan revision, or plan amendment, and a draft EIS
is prepared, the Environmental Protection Agency (EPA) Federal Register
notice of availability of an EIS shall serve as the required Federal
Register notice. This change makes the procedure similar to the prior
rule procedures and eliminates an additional Federal Register notice at
the time of a DEIS.
At paragraph (c)(6), the Department modified ``plan amendment
assessments'' to ''assessment reports'' in the list of public notices
that may be made in any way the responsible official deems appropriate
that was in paragraph (c)(5) of the proposed rule. This change
clarifies how the public will receive notice of a completed assessment
report. The word ``additional'' was added to the beginning of paragraph
(c)(6) to make clear that, at a minimum, notice for the items in the
paragraph must be posted online. This change is a clarification.
At paragraph (d), the Department added an exception for the content
for public notices when the notice is for the purpose of inviting
comments on a proposed plan, plan amendment, or plan revision for which
a draft EIS is prepared. This change is necessary because of the change
at paragraph (c)(3), stating that the Federal Register notice of
availability for the draft EIS will serve as the required public
notice. The EPA has a standard format for notices that does not include
the requirements of paragraph (d). The public will be able to find the
additional information online.
Comment: When appropriate. Some respondents felt proposed rule
Sec. 219.16(a)(2) wording ``when appropriate'' should be removed in
reference to public notification of plan amendments.
Response: The final rule removes the wording ``when appropriate''
in relation to plan amendments in what is now Sec. 219.16(a)(1) in the
final rule, in response to public comment and to clarify the
Department's intent from the proposed rule.
Comment: Notification. Some respondents felt the words ``deems
appropriate'' in paragraph (c)(5) of the proposed rule should be
removed, and requested clarification of what contemporary tools would
be used. Some respondents requested direct notification, or
notification of changes to a specific use. A respondent felt Federal
Register notice should be mandatory for all plan amendments and any
other notification such as administrative changes. Some respondents
suggested changes to the proposed notification process to better inform
those individuals and groups who would be most affected and interested
in these activities. Some respondents felt that use of a newspaper of
record is not effective since newspaper subscriptions are declining
across the country.
Response: Section 219.16 of the final rule requires, at a minimum,
that all public notifications must be posted online and the responsible
official should use contemporary tools to provide notice to the public.
These could include an array of methods, such as meetings, town halls,
email, or Facebook posts. The best forms of notice will vary by plan
area and over time, therefore the rule does not seek to predetermine
what those tools might be. The wording ``deems appropriate'' in
paragraph (c)(6) for the notices not listed in paragraph (a) allows the
responsible official the flexibility to determine the notification
method that best meets the needs of interested individuals, groups, and
communities; therefore, it has been retained in the final rule.
Additionally, there are requirements outlined in (c)(1)-(5) for
posting notices in the Federal Register and applicable newspaper(s) of
record for the notices required in paragraph (a). The use of the
Federal Register to give notice for all amendments and administrative
changes would be inefficient for the Agency; therefore the requirements
in paragraph (c) vary.
Persons desiring notification of changes to a specific use on a
national forest or grassland should contact that office. A requirement
for direct notification has not been added. The Department concludes
that such a requirement would be unworkable, and that the forms of
public notice required by this section, including the requirement that
all notices be posted online, will enable informed and active public
engagement.
Section 219.17--Effective Dates and Transition
This section of the final rule describes when approval of plans,
plan revisions, or plan amendments would take effect and when units
must begin to use the new planning regulations.
Section 219.17--Response to Comments
Many comments on this section focused on the efficiency of the
process, clarity, and potential additional requirements. The Department
retained the wording from the proposed rule except for the following
changes:
The Department changed the wording of paragraph (a) of the proposed
rule about effective dates of the proposed rule in response to public
comments about the efficiency of the planning process. The final rule
retains the requirement that a plan or plan revision, is effective 30
days after publication of notice of approval, and also retains that
requirement for a plan amendment for which an EIS is prepared. The
final rule removes the 30 day delay for amendments that do not require
an EIS; such amendments are effective immediately upon publication of
the notice of approval. This change in requirements improves the
efficiency of amendments.
Paragraphs (b)(1)-(3) were modified slightly to reflect that the
effective date of the final rule will be 30 days after the date of
publication of the final rule in the Federal Register.
In paragraph (b)(2) of this section, the Department modified the
wording and added a new first sentence to clarify that all new plan
amendments initiated after the effective date of this rule must use the
objections process of subpart B, even if the amendment is developed
using the planning procedures of the prior planning regulation. This is
a change made to require that subpart B apply to all plans, plan
revisions and plan amendments initiated after the effective date of the
final rule. In the rest of paragraph (b)(2) the Department: Revised the
sentences to improve the ease, flow, and clarity of this paragraph, and
clarified that when initiating plan amendments the optional appeal
procedures are not available.
In paragraph (b)(3) of this section, the Department clarified that
the objection process of subpart B of this part applies if the
responsible official completing a plan process initiated prior to this
part chooses objections instead of optional appeal procedures. This
change was made to avoid confusion about which objection procedures
would apply in that case (prior rule of December 18, 2009, or subpart B
of this final rule). In addition, the Department clarified that the
objection process of subpart B may be chosen only if the public is
provided the opportunity to comment on a proposed plan, plan amendment,
or plan revision, and associated environmental analysis. These
clarifications are not a change in requirements.
In paragraph (c) the Department added wording in response to public
comments to clarify that existing plans will remain in effect until
revised, and that the final rule does not compel a
[[Page 21243]]
change to any existing plan, except as required in Sec. 219.12(c)(1).
In addition the Department added wording that none of the requirements
of this part apply to projects or activities on units with plans
developed or revised under a prior planning rule until the plan is
revised under this part, except that projects and activities must be
consistent with plan amendments developed under this final rule. These
changes are not changes in requirements; the changes clarify the intent
of the Department in the proposed rule. This paragraph in the final
rule is needed for clarity so that all NFS units understand they are
subject to the new planning rule for plan development, plan amendment,
and plan revision, while still requiring NFS units to follow the plan
provisions of their current plans.
Comment: Timing of compliance. Some respondents felt the rule
should establish a time limit beyond which any action which is being
performed under a previous regulation must be brought into compliance
with this part, and the responsible official should not have discretion
to apply prior planning regulation in completing a plan development,
plan amendment, and plan revisions initiated before the effective date
of this part. A respondent felt newly started plan amendments should
follow the new planning direction without exception. Another respondent
felt the rule should allow the option of amending existing plans under
either the existing planning regulations or the new planning rule
requirements until the current plan is revised under the new rule. Some
respondents felt the rule's transition provisions should state the
Agency will operate under existing plans until all legal challenges to
a new plan or plan revision are resolved to avoid disruption of
existing contracts.
Response: There is no transition period for new plans or plan
revisions initiated after the effective date of the final rule: all new
plans and plan revisions must conform to the new planning requirements
in subpart A. Plan revisions that are currently ongoing or initiated
prior to the effective date of the final rule may be completed using
either the previous rule or the final rule. Many of the ongoing plan
revision efforts have taken many years, and it could be expensive in
terms of both time and costs to require them to follow the new
procedures, in addition to delaying needed improvements to outdated
plans. It could also be unfair to the public who have invested time in
these efforts. The responsible official does have the discretion to
conform an ongoing revision effort to the requirements of the new rule
after providing notice to the public, if doing so would be feasible and
appropriate for that effort.
For amendments, there would be a 3-year transition window during
which amendments may be initiated and completed using the 2000 rule,
including the 1982 procedures via the 2000 rule's transition
provisions, or may conform to the new rule. After 3 years, all new plan
amendments must conform to the new rule. This transition period for new
amendments would give the responsible official the option to facilitate
amendments for plans developed under previous rules for a limited time,
using a familiar process, until full familiarity with the new rule
develops.
Plan decisions will not be approved until the Agency has resolved
any objections filed under subpart B. This delay of the effective date
until after the objections are resolved should adequately avoid
disruptions. Many legal challenges to plans go on for years, however,
and it would not be workable to wait to implement a plan until after
all legal challenges are resolved.
Comment: Climate change requirements for 1982 revisions. A
respondent felt the rule's transition provisions should require forests
currently planning revisions under the 1982 planning rule to consider
climate change impacts and actions to address climate change and to
reduce stressors to provide for greater habitat resiliency.
Response: The Department decided not to include this requirement in
the transition provisions of the final rule. However, all NFS units are
working to implement the climate change roadmap released in 2009, and
are using the climate change scorecard, which requires consideration of
climate change impacts, vulnerability, and adaptability, as well as
monitoring and other requirements. The Department decided that the
Roadmap and Scorecard implementation is the most appropriate method for
working to address climate change in plan revisions currently being
conducted under the 1982 rule.
Comment: Conflicts between rules. A respondent felt the proposed
rule's transition section is confusing because there will be situations
where the old rule can be in conflict with the new rule and the final
rule should therefore include guidance to handle those conflicting
situations. Another respondent also felt the entire section needs more
clarity.
Response: The transition provision is important to provide a smooth
change to the new rule, and is workable. Changes were made as described
above to improve clarity.
Comment: Planning schedule for revisions. A respondent felt the
rule should establish some schedule by which overdue plans, or ones due
within the next year or two, will be revised as currently 68 plans of
127 plans are past due for revision.
Response: The Agency does not have the resources to revise all 68
plans that need revision within the next few years. The Agency posts
the Chief's schedule for plan revision online at http://www.fs.fed.us/emc/nfma/index.htm.
Comment: Compliance with regulatory scheme. A respondent felt the
Forest Service should eliminate the proposed rule Sec. 219.2(c) (none
of the requirements of the final rule applies to projects) and Sec.
219.17(c) (projects completed under existing forest plans need only be
consistent with the plan and not the 1982 rule). They believe the
provisions are inconsistent with case law. They cite several judicial
decisions. Another respondent felt Sec. 219.17(c) of the proposed rule
allows plans to be revised free of any obligation to demonstrate
compliance with the regulatory scheme under which it was developed.
Response: The Ninth Circuit and Tenth Circuits Court of Appeals
have confirmed the Agency's position that the 1982 rule was superseded
by the 2000 Rule, and no longer applies. See, Land Council v. McNair,
537 F. 3d 981, 989 n. 5 (9th Cir. 2008); Forest Guardians v. U.S.
Forest Service, 641 F. 3d. 423 (10th Cir. 2011). This provision is
needed for clarity so that all NFS units understand they are subject to
the new planning rule for plan development, plan amendment, and plan
revision, but otherwise are governed by the plan provisions of their
current plans. Responsible officials, who continue plan development,
revisions or amendments initiated prior to the effective date of the
final rule using the procedures of the 1982 rule, must comply with the
1982 rule procedures in developing those plans, plan revisions or
amendments. Plan amendments initiated after the effective date of this
rule, may for three years follow the 1982 rule procedures or the
requirements of this rule for amendments.
Comment: Delay of project-specific plan amendments. Some
respondents felt the rule should require a 30-day delay for the
effective date of all project-specific plan amendments, as plan
amendments are significant actions and no amendment may apply only to a
single concurrent project.
[[Page 21244]]
Response: Not all plan amendments are significant actions. The
final rule does not require a 30 day-delay for project-specific plan
amendments, and provides for site-specific project amendments, in
keeping with the Department's intent that the amendment process be
efficient and used more frequently.
Section 219.18--Severability
If any part of this final rule is held invalid by a court, this
section provides that the invalid part would be severed from the other
parts of the rule, which would remain valid.
Section 219.18--Response to Comments
This section explains that it is the Department's intent that the
individual provisions of the final rule be severable from each other.
The Department retains the 2011 proposed rule wording in the final
rule.
Comment: Invalidation of entire rule. A respondent felt if any part
of the proposed rule is judged invalid by a court the rule should state
the entire rule is invalid.
Response: The Department retained the provision in the final rule,
because rulemaking is an extensive Departmental and public undertaking,
and the entire rule should not be dismissed if a court finds only a
portion of the rule is inappropriate.
Section 219.19--Definitions
This section sets out and defines the special terms used in the
final subpart A. Changes to this section were made in response to
public comments.
The Department added definitions for: best management practices,
candidate species, conserve, disturbance regime, ecological integrity,
inherent capability of the plan area, integrated resource management,
maintain, management system, native species, persistence, proposed
species, recreation opportunity, restore, recovery, riparian management
zone, scenic character, and stressors for clarity and to define new
terms.
The Department removed definitions for: Health(y), landscape
character, potential wilderness areas, and resilience, because the
terms are not used in the final rule. The Department moved a modified
definition of species of conservation concern from Sec. 219.19 to
Sec. 219.9. The Department removed the definition of system drivers,
because the term is defined in the rule in Sec. 219.6 as disturbance
regimes, dominant ecological processes, and stressors--including
wildland fire, invasive species, and climate change.
The Department modified the definitions for: assessment,
collaboration, connectivity, conservation, designated areas, ecological
conditions, ecosystem, focal species, landscape, multiple use,
recreation setting, restoration, riparian areas, sole source aquifer,
sustainability, and sustainable recreation to improve clarity.
The Department modified the definition of ``ecosystem'' to further
explain and describe the key characteristics related to ecosystem
composition, structure, function, and connectivity so the relationship
between monitoring questions and indicators are clearly related to the
ecological conditions of Sec. Sec. 219.8 and 219.9.
Section 219.19--Response to Comments
Comment: Definitions for various terms. Some respondents felt more
detailed definitions or explanations about specific terms should be
included in the rule, including: access, aesthetic value, air quality,
capability, clerical error, concurrence, coordination, cultural images,
cultural sustenance, decision document, documented need, ecological
integrity, educational, evaluation, extent practicable, feedbacks,
fiscal capability of the unit, grasslands, identify, Indian, interested
parties, irreversible damage, landscape character, no reasonable
assurance, opportunity, partners, reasonably foreseeable budgets,
renewable energy projects, renewable resources, scenic attractiveness,
scenic integrity, small-scale reasonably foreseeable risks, spatial
mosaic, spiritual, substantial and permanent impairment, sustainable
management of infrastructure, transportation and utility corridors,
valid existing rights, and watershed conditions.
Response: Some of the requested definitions were included in the
final rule, where including a definition provides additional meaning or
clarity, or where the term is uncommon terms or used with a specific
meaning. Other requested definitions were not included, either because
the term was not included in the final rule, or the Department used the
terms in their ordinary meaning.
Comment: Requests for inclusion of definitions. Some respondents
felt additional definitions should be included in the rule, including:
airstrip, alternate disputes resolution methods, animal welfare,
appropriately interpreted and applied, biodiversity, biological
integration, completeness or wholeness, cost effectiveness, cost
efficiency, default width, ecological unit, ecologically sustainable,
economic efficiency, efficiency, environmental justice, healthy and
resilient ecosystem, incidental recreation, Indian land, internal
trailheads, materially altered, measureable progress, national historic
trails, net public benefits, non-Tribal indigenous entity, primitive
road, reasonable basis, recreational values, roadless area, scenic
landscape character, science-based understanding, silviculture,
soundscape, substantive way, sustainable multiple uses, and timely
manner.
Response: The final rule either does not use the term; therefore, a
definition is not provided or the final rule uses the commonly
understood meaning, making definition unnecessary.
Comment: Definition of assessment. A respondent felt the definition
of assessment should be revised to allow for the development of new
information if and when it is necessary for a successful assessment.
Response: The Department has modified the definition to be clear
that an assessment is to focus on and rapidly evaluate existing
information to provide an informed basis and context for initiating a
change to a plan or plan development. The need for new information may
be identified in the assessment report, but development of new
information is not required or intended during the assessment process.
Comment: Definition of collaboration processes. A respondent felt
the Agency should define collaborative process. A respondent requested
the Agency add the concept of feedback to collaboration definition.
Response: The proposed rule defined collaboration; the final rule
defines both collaboration and collaborative process using the proposed
rule's definition of collaboration. The definition is unchanged except
that the last sentence of the proposed rule's definition was moved to
Sec. 219.4. The concept of feedback is indirectly included in the
proposed rule definition. The concept of feedback is an important part
of why the Department supports an adaptive framework that provides
meaningful opportunities for public participation early and throughout
the process. The moved sentence clarifies that under collaboration the
Forest Service retains decisionmaking authority and responsibility for
all decisions throughout the process.
Comment: Definitions for congressionally designated areas and
administratively designated areas. A respondent felt separating of
congressionally designated and administratively designated areas
through the definition would help in clarifying their differences,
including a
[[Page 21245]]
definition for national scenic and historic trail. A comment was
received on the preferred alternative, asking if the lists in the
definition of designated areas were exhaustive.
Response: The Department clarified the definition of designated
areas in the final rule. The definition encompasses both
congressionally and administratively designated areas, and provides
examples of areas that are designated by each process. National scenic
trails are referenced as one of the examples of a designated area, but
a separate definition was not added to the final rule. The final rule
provides direction for wilderness and wild and scenic rivers in Sec.
219.10(b) separately from other designated or recommended areas because
their associated legislation contains specific requirements for the
Secretary of Agriculture. The final rule in Sec. 219.10(b)(vi)
provides for appropriate management of other designated or recommended
areas, which would include areas such as congressionally designated
national historic trails. To respond to the comment on the preferred
alternative, the Department clarified the definition of designated
areas to explicitly show that the list of examples is not exhaustive by
removing the word ``include'' and added the words: Examples of * * *
designated areas are.
Comment: Definition of connectivity. Some respondents felt the
definition should remove the word ``separate'' so that it includes
connectivity both within and between national forests at multiple
scales, reflecting the disparate needs of different species with
different capacities for mobility. A respondent said the term is not
appropriate because it might trigger counterproductive litigation.
Response: Connectivity is an important part of the concept of
ecological integrity. The Department therefore retained the term in the
final rule, and modified it in response to public comments. The
Department modified the definition of connectivity, removing the words
that would limit the concept to ``separate national forest or grassland
areas.'' The final rule definition is worded to apply to several scales
and to identify the types of the biophysical aspects of ecological
functions that the term encompasses.
Comment: Definition of conservation. Respondents felt the proposed
rule definition fails to include elements of resource use and wise use,
or should not include preservation or should not include management.
Response: The Department retains the definition of conservation
because the definition is consistent with the use of the term in the
rule. However, the Department added species to the list of resources
included in the definition so that conservation is defined as the
protection, preservation, management, or restoration of natural
environments, ecological communities, and species.
Comment: Definition of disturbance. A respondent felt the
definition of disturbance should go beyond biological resources and
extend to cultural, historic, recreational, and aesthetic resources as
well.
Response: In the final rule, the concept of disturbance is limited
to any disruption of an ecosystem, watershed, plant and animal
community, or species population: therefore the Department retained the
proposed rule definition. Such disturbance may result in impacts to
cultural, historic, recreation, aesthetic, or other resources or uses.
Comment: Definition of diversity. A respondent felt the rule needs
a definition of ``diversity.'' One respondent requested a definition of
biodiversity.
Response: When the term diversity is used alone in the rule, its
meaning is the commonly understood use of the term and therefore no
rule definition of the term is necessary. The final rule retains a
definition of the term ecosystem diversity. The term biodiversity is
not in the rule, and therefore no definition of that term is needed.
Comment: Definition of ecosystem services. Some respondents felt
specific aspects of services should be included in the definition.
Other respondents felt the proposed definition is too limiting to
``direct human utility.'' A respondent felt the proposed rule
definition mixes services with uses and resources, making the term
``ecosystem services'' confusing.
Response: The final rule retains the proposed definition, which
focuses on the ``benefits people obtain from ecosystems.'' The
definition is consistent with the MUSYA mandate to ``administer the
renewable surface resources of the national forests for multiple use
and sustained yield of the several products and services obtained
therefrom'' (16 U.S.C. 529), and allows for changing conditions and
needs.
Comment: Definition of focal species. A respondent felt the
definition of focal species is too narrow: it should not be limited to
a small number because of fiscal capability.
Response: The Department changed the definition of focal species
based on public comment to clarify the intended role of focal species
in assessing the effectiveness of the plan in maintaining the diversity
of plant and animal communities in the plan area, as required in Sec.
219.9. The Department retained the concept of a small number in the
final rule because the responsible official has discretion to choose
the small subset of focal species that he or she determines will be
useful and reasonable in providing the information necessary to make
informed management decisions. The Department does not expect a focal
species to be selected for every element of ecological conditions.
Comment: Definition of integrated resource management. Several
respondents felt the phrase ``integrated resource management'' needed
to be defined.
Response: In the final rule the term has been defined as multiple-
use management that recognizes the interdependence of ecological
resources and is based on the need for integrated consideration of
ecological, social, and economic factors. The approach of integrated
resource management considers all relevant interdependent elements of
sustainability as a whole, instead of as separate resources or uses.
``Integrated resource management'' is not the same as the ``all-lands
approach.'' ``Integrated resource management'' refers to the way in
which the resources are to be considered, as a whole instead of by
individual resource. The ``all-lands approach'' refers to the area of
analysis for the planning phases, which can extend beyond the national
forest and grassland boundary.
Comment: Definition of landscape. A respondent felt landscapes
should not be defined as being irrespective of ownership.
Response: The Department recognizes and respects ownership
boundaries. The definition applies to a perspective for assessment
purposes for resources and influences that may extend beyond the NFS
boundary. The Department retained the landscape term in the final rule
because conditions and trends across the broader area may influence, or
be influenced by projects or activities on NFS lands. Plan components
would apply only the NFS lands, but the responsible official should be
informed by an understanding of the broader landscape when developing
plan components.
Comment: Definition of local and indigenous knowledge. Some
respondents felt the rule should provide a definition for local and
indigenous knowledge, and this knowledge should not be considered on
the same level as scientifically- or historically-based information.
Response: Section 219.19 of the final rule retains the proposed
rule's
[[Page 21246]]
definition for native knowledge. The final rule requires the use of the
best available scientific information to inform decisions. The final
rule strikes a balance for using science as an integral and
foundational, but not the sole, influence on planning, allowing for
other sources of information or input, including native knowledge, to
be considered during the planning process.
Comment: Definition of monitoring. A respondent felt the definition
of monitoring should be revised to capture the concept of measuring the
response of resources to land management over time. Another respondent
felt the definition should include the concepts of inventory,
continuity, desired conditions, public participation, and open and
transparent process.
Response: The final rule revised the proposed rule definition to
remove the words ``over time and space'' to ensure that the definition
is broad enough to incorporate the concept of measuring the response of
resources to land management over time, or at a single instant, at a
broad geographic scale, or at a specific location, depending on the
objective for an individual monitoring question or indicator. The rule
framework itself is based on the concept that the set of monitoring
questions and indicators that make up the monitoring program will be
used to inform adaptive management on the unit over time. The terms
that the commenter wishes added to the definition are key concepts and
terms in the rule, but adding them to the definition of monitoring is
unnecessary.
Comment: Multiple use definition. Some respondents requested
specific inclusions and exclusions from the definition of ``multiple
use. Other respondents requested more detailed definitions or
explanations about specific terms associated with Sec. 219.10 Multiple
use, such as access, aesthetic value, small-scale renewable energy
projects and transportation and utility corridors.
Response: The definition does not reference specific uses or
services. The definition was established by Congress at 16 U.S.C. 531.
The type of direction requested by the respondents is more appropriate
as part of the specific requirements of the final rule, as part of
plans, or as part of projects or activities carried out under the
plans.
Other terms used in Sec. 219.10 are defined where necessary; see
the first response to comments in this section for additional
discussion.
Comment: Definition of participation. A respondent felt that the
definition of participation be defined as engagement in activities.
Response: The Department retained the proposed rule definition for
participation because the Department cannot require engagement; but it
can offer participation opportunities.
Comment: Definition of productivity. A respondent felt the current
definition of ``productivity'' should be amended to include economic
productivity.
Response: The Department's use of the term productivity in the rule
does not include economic productivity; therefore, the proposed rule
definition is retained in the final rule.
Comment: Definition of restoration. Several respondents felt the
definition should not include the concept of going back to ecosystem
conditions that once existed, especially under changing climatic
conditions. Still others felt that the definition should be clearer and
more in line with definitions found in the scientific literature.
Response: The final planning rule adopts the definition advanced by
the Society for Ecological Restoration International, but retains from
the proposed rule (with minor word changes) the additional explanation
that ecological restoration focuses on reestablishing the composition,
structure, pattern, and ecological processes necessary to facilitate
terrestrial and aquatic ecosystem sustainability, resilience, and
health under current and future conditions. Chapter 3 of the Final PEIS
discusses the relevance of evaluating the range of natural variation in
the ``Historical Range of Variability (HRV) as a Way of Understanding
the Historical Nature of Ecosystems and Their Variation'' under the
``Dynamic Nature of Ecosystems'' portion of the Affected Environment
discussion.
Comment: Definition of riparian area vs. riparian management zones.
Some respondents felt the use of the terms ``riparian areas'' and
``riparian management zones'' between the preamble and the proposed
rule were inconsistent. Some felt the proposed definition of riparian
areas was outdated and did not reflect current science and
understanding of riparian areas function and management.
Response: The final rule rewords the proposed rule's definition for
``riparian areas'' and adds a definition for ``riparian management
zone.'' Riparian areas are ecologically defined areas of transition
between terrestrial and aquatic systems and have unique
characteristics, values, and functions within the landscape. Riparian
management zones are portions of watersheds areas where riparian-
dependent resources receive primary emphasis. ``Riparian areas'' are
defined in physical and biological terms; riparian management zones are
defined in administrative terms. A riparian area and a riparian
management zone would overlap, but one may be wider or narrower than
the other.
Comment: Definition of risk. A respondent felt the definition of
``risk'' should refer to ``probability'' and ``magnitude.''
Response: The Department retains the definition of the proposed
rule for risk because ``probability and magnitude'' are equivalent to
``likelihood and severity'' in the proposed rule definition, which is
``a combination of the likelihood that a negative outcome will occur
and the severity of the subsequent negative consequences.''
Comment: Definition of social science. A respondent felt the final
rule should define social science.
Response: The term ``social science'' was not in the proposed rule
and is not in the final rule, and therefore need not be defined. The
final rule includes reference to social sustainability in the
definition for sustainability.
Comment: Definition of stressor. A respondent felt the Agency
should define the term stressor.
Response: The Department defines the term stressor in the final
rule as a factor that may directly or indirectly degrade or impair
ecosystem composition, structure, or ecological process in a manner
that may impair its ecological integrity, such as invasive species,
loss of connectivity, or the disruption of a natural disturbance
regime.
Comment: Definition of sustainable recreation. A respondent felt
the term was defined vaguely and should be deleted from the rule. A
respondent felt ecosystem services and sustainable recreation are
equivalent concepts but defined differently so that it is confusing. A
respondent felt the definition should include the predictability of
opportunities, programs, and facilities over time. A respondent said
the definition should include ecologically sustainable, economically
sustainable, fiscally sustainable, socially sustainable, and be focused
on outcomes. A respondent objected to the inclusion of the undefined
term ``social sustainability'' in the definition of sustainable
recreation, because social sustainability might be an opportunity to
remove hunting and fishing from the NFS.
Response: The Department decided to keep the term but modify the
definition for clarity. The definition in the rule is: ``the set of
recreation settings and opportunities on the National Forest System
that is ecologically, economically, and socially sustainable
[[Page 21247]]
for present and future generations.'' In addition, the Department
defined the terms economic sustainability and social sustainability as
part of the definition of sustainability. The socially sustainable part
of sustainable recreation (when considered within the boundaries of the
NFS, which is how we have now defined it) deals largely with addressing
conflicts between uses.
The Department's use of the term socially sustainable is intended
to give the opposite direction as the respondent's concern, leading to
support for hunting and fishing opportunities because hunting and
fishing are important to sustain traditions and connect people to the
land and to one another.
Comment: Definition of viable population. Some respondents felt the
rule should replace ``sufficient distribution to be resilient and
adaptable'' in the proposed definition and incorporate the phrase
``well-distributed in habitats throughout the plan area'' and ``high
likelihood'' over a specified time period (50 years) into the
definition of viable population.
Response: See the response to comments to section 219.9 for a
discussion of the term well-distributed.
The final planning rule does not specifically incorporate ``high
likelihood'' or a specified time period into the definition of viable
population because it is difficult to interpret and measure
consistently and because estimating the probabilities of maintaining a
viable population of a particular species of conservation concern over
a certain period time will vary from species to species and from unit
to unit, depending on existing conditions and potential existing and
future threats and stressors, especially those related to climate
change, that may affect species differently on different NFS units.
Subpart B--Pre-Decisional Administrative Review Process
Introduction to This Subpart
Subpart B sets forth the requirements for the objection process in
this final rule.
Prior to the 2000 rule, the administrative review process for plan
decisions provided an opportunity for a post-decisional appeal. With
this process, a plan was generally put into effect before the appeal
was resolved. This scenario has often been problematic because when
reviewing appeals, if a reviewing officer finds fault with a plan
already in effect, the remedy can be costly to both the Forest Service
and the public in terms of time and money. Such a situation can also
damage public trust in the planning process. Interim direction is often
put into place while the responsible official prepares further analysis
and other appropriate corrections.
After receiving initial public input, reviewing public comments,
and taking into account agency history and experience regarding pre- or
post-decision administrative appeal processes, the Department decided
to include a pre-decisional administrative review process, called an
objection process, in the final rule. An objection prompts an
independent administrative review by an official at a level above the
deciding official and a process for resolution of issues. This process
allows interested individuals to voice objections and point out
potential errors or violations of law, regulations, or agency policy
prior to approval and implementation of a decision. The Forest Service
has successfully used a similar process since 2004 for administrative
review of hazardous fuel reduction projects developed pursuant to the
Healthy Forests Restoration Act.
Section 219.50--Purpose and Scope
This section states that the purpose of the subpart is to establish
a process for pre-decisional administrative review of plans, plan
amendments, and plan revisions.
Section 219.50--Response to Comments
This subpart describes a pre-decisional administrative review
(objection) process for plans, plan amendments, or plan revisions. The
Department retains the 2011 proposed rule wording in the final rule of
Sec. 219.50. To respond to comments on the preferred alternative, the
Department changed the wording in Sec. 219.50 and throughout subpart B
to clarify that the parties that may object include States and Tribes
as well as organizations and individuals. The preferred alternative and
the proposed rule used the terms ``individual'' and ``organization''
for those who may file an objection. States and Tribes are not
organizations; therefore, the Department changed the term
``organization'' to ``entity'' in sections 219.50, 219.53, 219.55 and
219.61. These modifications to subpart B are clarifications, not
changes in requirements,
Comment: Objection process over appeals process. Some respondents
expressed support for the objection process while some respondents want
the objection process removed and replaced with the appeals process, or
want to see both processes used.
Response: The Department's choice of this approach is based on two
primary considerations. First, a pre-decisional objection is more
consistent with the collaborative nature of this final rule and
encourages interested parties to bring specific concerns forward
earlier in the planning process, allowing the Forest Service a chance
to consider and respond to potential problems in a plan or decision
before it is approved and implemented. Second, pre-decisional
objections lead to a more timely and efficient planning process,
reducing waste of taxpayer and agency time and dollars spent
implementing projects under plans subsequently found to be flawed.
With a pre-decisional objection process, the responsible official,
the reviewing official, interested parties, 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. This approach fits well with a
collaborative approach to planning, and encourages resolution before a
plan, plan amendment, or plan revision is approved.
The Department believes that having both a pre-decisional objection
process and a post decision appeals process would be redundant and
inefficient.
Section 219.51--Plans, Plan Amendments, or Plan Revisions Not Subject
To Objection
This section identifies those plans, plan amendments, or plan
revisions that would not be subject to the pre-decisional objection
process under the final rule.
Section 219.51--Response to Comments
The Department retains the 2011 proposed rule wording in the final
rule except to change the term formal comments to substantive formal
comments. This change was made throughout this subpart.
Comment: Secretary decisions subject to administrative review. Some
respondents felt decisions made by the Secretary or the Under Secretary
for Natural Resources and Environment affecting the Forest Service
should be subject to administrative review.
Response: Land management plan decisions made by the Secretary or
Under Secretary for Natural Resources and Environment have never been
subject to appeal or objection. The Department chooses not to change
this approach. The Agency anticipates that approvals of plans, plan
amendments, or plan revisions by the Secretary or
[[Page 21248]]
Under Secretary will continue to be rare occurrences.
Section 219.52--Giving Notice of a Plan, Plan Amendment, or Plan
Revision Subject To Objection Before Approval
Section 219.52 provides additional information for providing the
public notice, required by Sec. 219.16 subpart A, that would begin the
objection filing period. This notice serves three particular purposes:
(1) To notify parties eligible to file objections that the objection
filing period is commencing; (2) to notify parties eligible to file
objections and others of the availability of planning documents and how
to obtain those documents; and, (3) to establish a publicly and legally
verifiable start date for the objection filing period.
Section 219.52 would require the Forest Service to make a special
effort to ensure the public understands how the objection process in
this subpart would be used for each plan, plan amendment, and plan
revision. Specifically, the responsible official would be required to
disclose the objection procedures by stating that this process will be
used during scoping under the NEPA process and in the appropriate NEPA
documents. Early disclosure will help ensure that those parties who may
want to file objections are aware of the necessary steps to be
eligible.
The final rule also requires the responsible official to make the
public notice for beginning the objection filing period available to
those who have requested the environmental documents or who are
eligible to file an objection. This requirement is intended to ensure
that the necessary information reaches those who have specifically
requested it and those who could have a particular interest in the
start of the objection filing period by virtue of their eligibility to
file an objection.
Paragraph (c) outlines the format and content of the public notice
to ensure potential objectors have necessary procedural information,
can find underlying documents, and understand the process, timing, and
requirements for filing an objection.
Section 219.52--Response to Comments
Changes were made to wording in this section to be consistent with
changes made in response to public comments on other sections in this
subpart, including changing the term ``formal comments'' to
``substantive formal comments'' and the objection periods from 30 days
in the proposed rule to 45 days, or 60 days if an EIS was prepared.
The Department added a sentence to paragraph (a) of this section to
allow the responsible official to choose to use the objection process
for a plan, plan amendment, or plan revision initiated before the
effective date of the rule even when the scoping notice had not
indicated that an objection process would be used. To ensure meaningful
notice is given, however, the notice that the objection process will be
used must be given prior to an opportunity to provide substantive
formal comment on a proposed plan, plan amendment, or revision and
associated environmental analysis.
A requirement to make the documents identified in paragraph (c)(1)
of this section available online at the time of public notice was added
for clarity, to reflect the Department's intent.
Comment: Notice of a plan, plan amendment, or plan revision subject
to objection. Some respondents felt ``making available'' the public
notice for the beginning of the objection period for a plan, plan
amendment, or plan revision was not adequate notification.
Response: Section 219.16(a)(3) of subpart A requires formal
notification of the beginning of the objection period by posting the
information online, and via the Federal Register and/or the newspaper
of record as set forth in Sec. 219.16(c). The term ``making
available'' is used in this section to allow the responsible official
the flexibility to use other tools at his or her disposal for
notification, for example, sending an email to a list of interested
parties or issuing a news release, in addition to the formal
notifications identified in Sec. 219.16.
Comment: Specific date for the start of the objection process. Some
respondents felt there is a need for a specific publication date for
the beginning of the objection period.
Response: The Department believes the matter is best addressed by
having the objection filing deadline begin the day after publication of
the public notice as outlined in Sec. 219.56(b)(2). Although the
Agency can request newspapers publish notices on a certain date, a
publication date is not guaranteed. When publication occurs on a
different date than estimated, the result could lead to confusion. By
not publishing a (potentially different) starting date, the Department
believes the potential for confusion is reduced or eliminated and
leaves all parties with the same information.
Comment: Need to guess and predict decision. Some respondents said
the objection process forces the public to guess and predict what the
actual decision will be.
Response A draft plan decision document is one of the items Sec.
219.52 (c) requires to be made available to the public when public
notice of the beginning of the objection process is given. If no
objections are filed, the draft, once signed would become the decision.
If an objection is filed, there may be changes made for the final
decision. The objection process allows objectors and interested parties
to meet with the reviewing officer to try to resolve issues raised in
an objection before a final plan decision. This process is more
efficient and more consistent with the participatory approach used in
the final rule.
Section 219.53--Who May File an Objection
This section of the rule identifies eligibility requirements for
filing an objection under this subpart. This section is written in the
context of Sec. 219.4 in subpart A, which expresses the Agency's
intent to involve the public early and throughout the planning process
in keeping with the collaborative nature of this final rule.
Section 219.53--Response to Comments
Except for minor corrections of editorial errors, the Department
retains the proposed rule wording. The Department changed the term
``formal comments'' to ``substantive formal comments.'' In the proposed
rule, we used both terms; in the final rule, we used the term
``substantive formal comments'' consistently throughout. The Department
clarified in paragraph (a) that objections must be based on previously
submitted substantive formal comments ``attributed to the objector'' to
be consistent with Sec. 219.54(c)(7). As discussed in response to
comments for Sec. 219.50, the Department changed the term
``organizations'' to ``entities'' in this section. These changes are
not changes in requirements, but are clarifications.
Comment: Substantive formal comment. Some respondents requested the
rule define ``substantive formal comment.''
Response: The proposed rule included a definition for ``formal
comments.'' The final rule includes instead a definition of
``substantive formal comments,'' the term used throughout this subpart
in the final rule, at Sec. 219.62 of the final rule, in response to
this comment. The definition is consistent with the definition used in
Agency appeal regulations 36 CFR part 215 for ``substantive comment.''
Comment: Who may file an objection? Some respondents felt limiting
the opportunity for filing an objection to
[[Page 21249]]
those who have participated in providing substantive formal comments
was the correct approach. Other respondents felt anyone should be able
to file an objection.
Response: The rule requires the responsible official to engage the
public early and throughout the planning process in an open and
transparent way, providing opportunities for meaningful public
participation to inform all stages of planning. The requirement for
limiting the opportunity for filing an objection to those who have
provided substantive formal comments during at least one public
participation opportunity is intended to encourage public engagement
throughout the planning process and help ensure that the Agency has the
opportunity to hear and respond to potential problems as early as
possible in the process. Without this requirement some substantive
problems might not be identified until the end of the planning process.
This requirement will increase the efficiency of the planning
process and the effectiveness of plans by encouraging early and
meaningful public participation. Engaging the public early and often
results in better identification of issues and concerns and allows the
Agency to respond earlier in the process and in a way that is
transparent to all members of the public.
Comment: Substantive comment submittal requirement. Some
respondents felt the proposed rule requirement for participation by a
formal comment submittal in order to file an objection is an undue
burden on the public because organizations and individuals with limited
resources cannot be expected to participate in all public involvement
opportunities. Others felt it places an unreasonable limitation on the
ability of citizens to participate in the objection process. Still
others disagree with the basic concept of not submitting formal
comments equates to not having an opportunity to object.
Response: Because the final rule requires significant investment in
providing opportunities for public participation, the Department
believes it is important to honor that process and ensure that issues
arise as early in the process as possible, when then can best be
addressed. The Department does not believe it is too high a burden for
a potential objector to first engage in and provide formal substantive
comments during at least one of the numerous opportunities for public
participation during the planning process for a plan, plan amendment,
or plan revision. Subpart B does not require participation in every one
of those opportunities. This requirement should assist in the timely
involvement of the public. The objection process is expected to resolve
many potential conflicts by encouraging resolution before a plan, plan
amendment, or plan revision is approved.
Comment: Objection eligibility. Some respondents felt the objection
process forces the public to submit comments on everything in order to
preserve their right to object based on submitted comments. A number of
respondents stated objections should be permitted on issues raised by
any party at any time.
Response: The planning process is intended to engage interested
individuals and entities in an ongoing dialogue in which all
substantive issues and concerns are identified. The Department decided
to retain the requirements in this section to make sure that issues are
identified as early as possible, by the parties interested in those
issues. At the same time, this subpart recognizes that there may be
issues that arise after the opportunities for public comment, and
allows parties who have participated earlier to object on those issues.
Comment: Objections by other Federal agencies and Federal
employees. A respondent stated that objections from other Federal
agencies should be allowed. Another respondent stated that a Federal
employee should be allowed to file an objection and should be allowed
to include and discuss non-public information in their objection.
Response: The objection process is an administrative review
opportunity for individuals and entities, other than Federal agencies.
Federal agencies have other avenues for working together to resolve
concerns, including consultations required by various environmental
protection laws. It is expected that Federal agencies will work
cooperatively during the planning process.
Federal employees who meet eligibility requirements of Sec.
219.53(a) and choose to file an objection may do so, but not in an
official capacity. They must not be on official duty or use Government
property or equipment in the preparation or filing of an objection, nor
may they include information only available to them in their official
capacity as Federal employees.
Section 219.54--Filing an Objection
This section of the final rule sets out how to file an objection,
and the minimum content that must be included.
Section 219.54--Response to Comments
Minor changes were made to this section in response to public
comment. Paragraph (a) was changed to clarify that all objections must
be submitted to the reviewing officer for the plan. The Department
added ``other published Forest Service documents'' to (b)(2) of this
section to indicate that, along with Forest Service Directives System
documents and land management plans, published Forest Service documents
may be referenced rather than included in an objection. The Department
also clarified in Paragraph (b) that any documents not listed in
(b)(1)-(4) that are referenced in an objection must be included with
the objection or a web link must be provided. These minor changes and
clarifications reflect public comments.
Comment: Proposed prohibition on incorporation by reference. Some
respondents felt the proposed prohibition on incorporation by reference
is unduly burdensome. Some felt the wording on what references are
required to be included in an objection were unclear.
Response: Section 219.54(b) of the final rule retains the proposed
rule wording. The Department believes the requirements are clear, and
will help the reviewing officer understand the objection and review it
in a timely way. The documents that can be included by reference
include: Federal laws and regulations, Forest Service Directives System
documents, land management plans, and other published documents,
documents referenced by the Forest Service in the planning
documentation related to the proposal subject to objection, and formal
comments previously provided to the Forest Service by the objector
during a proposed plan, plan amendment, or plan revision comment
period. The final rule was modified to allow for published Forest
Service documents to be included by reference as well. All documents
not identified in the list in Sec. 219.54(b), or Web links to those
documents, must be included with the objection, if referenced in the
objection.
Comment: Internet submission of objections. Some respondents felt
the rule should allow filing of objections via Internet communication.
Response: An email submittal to the appropriate email address is an
acceptable form of filing an objection.
Comment: Remedy inclusion requirement. Some respondents felt
requiring inclusion of a potential remedy presents an obstacle for
participation in the objection process.
[[Page 21250]]
Response: The objection process sets the stage for meaningful
dialogue on how a proposed plan, plan amendment, or plan revision could
be improved. The objection, including suggesting about how the proposed
plan may be improved, can be concise, but should provide a basis for
dialogue to resolve concerns. The reviewing officer should be able to
use the objection to engage with the objector and other interested
parties during the objection period to determine an appropriate course
of action.
Section 219.55--Objections Set Aside From Review
This section describes the various circumstances that would require
a reviewing officer to set aside an objection from review and the
notification requirements related to setting an objection aside.
Section 219.55--Response to Comments
The Department made minor changes for clarity and consistency.
Comments on this section were answered in response to comments
regarding Sec. 219.53. As discussed in response to comments for Sec.
219.50, the Department changed the term ``organization'' to ``entity''
in this section.
Section 219.56--Objection Time Periods and Process
This section details the time in which objections can be filed, how
time periods are calculated, the evidence required to demonstrate a
timely filing, the role and responsibilities of the reviewing officer,
publication of notifications, and the reviewing officer's response
requirements.
Section 219.56--Response to Comments
Two changes were made to this section. The Department lengthened
the amount of time from 30 days to 60 days to file an objection if an
EIS has been prepared and the Department lengthened the time from 30
days to 45 days if an EIS is not prepared. This change in procedural
requirements was made to give more time to the public in response to
public comment on the proposed rule. Changes to other sections in this
subpart were made to be consistent with this change.
In addition, in paragraph (e) of this section, the Department added
the requirement that for an objection or part of an objection related
to the selection of species of conservation concern, the reviewing
officer may not be the regional forester who identified those species,
but must be a different line officer. The Chief may be the reviewing
officer or may delegate the reviewing officer authority and
responsibility to a line officer at the same administrative level as
the regional forester. In addition, the Department added a requirement
for the reviewing officer for the plan to convey any such objections to
the appropriate line officer. These changes in requirements are needed
because of the change in Sec. 219.9(c) subpart A requiring that the
regional forester, rather than the responsible official for the plan,
identify the species of conservation concern.
Comment: Thirty-day comment period. Some respondents felt the 30-
day time limit for filing an objection is too short.
Response: Section 219.56 was changed to modify the objection filing
period to 60 days for a new plan, plan revision, or a plan amendment
for which an EIS is prepared, and 45 days for amendments for which an
EIS is not prepared in response to this comment.
Comment: Interested person's timeframe. Some respondents felt the
proposed interested person's timeframe of 10 days is insufficient and
would limit interested parties ability to fully participate in the
objection process.
Response: The final rule retains the 10-day requirement. Persons
who have been participating throughout the process should already be
familiar with those issues, and should be able to file a request to
participate within this timeframe. Granting a longer timeframe for
filing a request to participate in an objection would affect the
reviewing officer's ability to schedule meetings in a timely manner to
discuss issues raised in the objection with the objector and interested
parties, thereby delaying resolution of an objection and impacting the
reviewing officer's ability to respond to all objections within the
timeframe provided by Sec. 219.57.
Section 219.57--Resolution of Objections
This section explains the Department's requirements for the process
and responsibilities related to the resolution of objectives. The
intent of this process is to have a meaningful dialogue with objectors
and interested parties in order to resolve as many concerns as possible
prior to approval of a plan, plan amendment, or plan revision.
Section 219.57--Response to Comments
The Department retains the proposed rule wording in the final rule.
Comment: Some respondents felt that not requiring a point by point
written response to objections is contrary to the objective of
resolving issues before decisions are made.
Response: It is the intent of the Agency that all issues raised
through objection will be responded to, although the responses may not
necessarily address each issue individually. Consolidating objection
issues and answering with a single response may be appropriate for
objection issues of a similar or related nature. Consolidated responses
allow similar issues to be examined and responded to consistently and
efficiently.
Section 219.58--Timing of a Plan, Plan Amendment, or Plan Revision
Decision
This section describes when a responsible official could approve a
plan, plan amendment, or plan revision.
Section 219.58--Response to Comments
Other than a minor correction to paragraph (c) to change ``30-day
time period'' to ``allotted filing period'' to be consistent with the
option of either the 60-day or 45-day time period for filing of an
objection under Sec. 219.56, the Department retains the proposed rule
wording in the final rule.
Comment: A respondent felt that the 5-day business period following
the objection period should be increased to 10 days.
Response: The Department determined that 5 business days are an
adequate time period for an objection that was timely filed to be
received by the reviewing officer, under any delivery option.
Section 219.59--Use of Other Administrative Review Processes
This section would allow for the use of other administrative review
processes in lieu of the objection process in certain circumstances
when the Forest Service is participating in a multi-Federal agency
planning process or when a plan amendment is approved in a decision
document approving a project or activity.
Section 219.59--Response to Comments
The proposed rule authorized the reviewing officer to choose
whether to adopt the administrative review procedure of another Federal
agency. The final rule instead gives the responsible official this
authority, to better reflect the Department's intent, and consistent
with the requirement for the responsible official to notify the public
early in the planning process that a review process other than the
objection process of this subpart would be used.
Comment: Public burden. Some respondents expressed concern about
the unreasonable and unfair burden placed on the public for site-
specific
[[Page 21251]]
plan amendments by having to respond to two processes, the NEPA appeal
of project level activity and the planning NFMA objection process for
planning decision.
Response: The Department recognizes there may be limited
circumstances when a plan amendment decision applicable to a project
and all future projects in the plan area is made at the same time as
that project or activity decision. In such circumstances, the objection
process applies to the plan amendment decision, and the review process
of 36 CFR part 215 or 218 would apply to the project or activity
decision (Sec. 219.59(b)). In these circumstances, while the NEPA
analysis for amendment and project may be combined, the responsible
official is making two separate decisions: A project or activity
decision and a plan amendment that applies to all future projects or
activities. Each action, project, and amendment, should be reviewed
under its appropriate review procedures. A person or entity may seek
review of either or both, depending upon the person's or entity's
concerns.
The Department requires the public be notified during the NEPA
process that the objection process will be used (unless the option
provided by paragraph (a) of this section to use another process is
available and chosen). The Agency's NEPA requirements serve to assure
ample opportunities for notification of the public of the use of the
objection process as well as the beginning of the objection process.
Section 219.60--Secretary's Authority
This section clarifies that nothing in this subpart restricts the
statutory authority of the Secretary of Agriculture regarding the
protection, management, or administration of NFS lands.
Section 219.60--Response to Comments
The section of the final rule is unchanged from the proposed rule.
No comments were submitted by the public on this section.
Section 219.61--Information Collection Requirements
This section explains that this subpart's requirements regarding
information that an objector must provide are ``information collection
requirements'' as defined by 5 CFR part 1320 and that these
requirements have been approved by the Office of Management and Budget.
Section 219.61--Response to Comments
This section of the final rule is unchanged from the proposed rule.
No comments were submitted by the public on this section.
Section 219.62--Definitions
This section defines some of the terms and phrases used in subpart
B of the proposed rule.
Section 219.62--Response to Comments
The Department has made a few minor changes throughout this
section.
The final rule dropped the definition of ``formal comments'' and
added a definition of ``substantive formal comments.'' This definition
includes the definition of the proposed rule's term, ``formal
comments,'' and added wording to clarify when comments are considered
substantive. The final rule also modified the definition of ``objection
period'' by replacing the proposed rule's ``30 calendar day period''
with ``allotted filing period.'' As discussed in response to comments
for Sec. 219.50, the Department changed the term ``organization'' to
``entity'' in this section.
Comment: Substantive formal comment: Some respondents requested the
rule define ``substantive formal comment.''
Response: In response to this comment, and because the term
``substantive formal comment'' is now used consistently throughout this
subpart, the final rule defines ``substantive formal comments.'' The
definition is consistent with the definition used in Agency appeal
regulations 36 CFR 215 for ``substantive comment.''
Regulatory Certifications
Regulatory Planning and Review
The Agency reviewed this final rule under U.S. Department of
Agriculture (Department) procedures and Executive Order (E.O.) 13563
issued January 18, 2011, and E.O. 12866 issued September 30, 1993.
Executive Orders 13563 and 12866 direct agencies to assess all costs
and benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). E.O. 13563 emphasizes the
importance of quantifying both costs and benefits, of reducing costs,
of harmonizing rules, and of promoting flexibility.
The final rule will not have an annual effect of $100 million or
more on the economy or adversely affect productivity, competition,
jobs, the environment, public health or safety, or State or local
governments. This final rule will not interfere with an action taken or
planned by another Agency. 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 rule has been designated a
significant regulatory action, although not economically significant,
under section 3(f) of Executive Order 12866. Accordingly, the rule has
been reviewed by the Office of Management and Budget (OMB).
A cost benefit analysis, including the regulatory impact analysis
requirements associated with Executive Orders 13563 and 12866 and OMB
circulars, has been developed. The analysis evaluates the regulatory
impact and compares the costs and benefits of implementing the final
rule to the baseline, which assumes planning pursuant to the 1982 rule
procedures, as allowed by the transition provisions of the 2000
planning rule (36 CFR 219.35(b), 74 FR 67073 (December 18, 2009)). This
analysis is posted on the World Wide Web at: http://www.fs.usda/planningrule, along with other documents associated with this final
rule.
The scope of this analysis is limited to programmatic or agency
procedural activities related to plan development, plan revision, and
plan amendment of land management plans for management units (for
example, national forests, grasslands, prairies) within the NFS. No
costs or benefits associated with on-the-ground projects or activities
are characterized or projected. Potential procedural effects evaluated
in the analysis include potential changes in agency costs for planning
and changes in overall planning efficiency. In this analysis, costs
refer to planning costs to the Agency. Benefits refer to the benefits
of the alternatives in terms of planning efficiency and capacity for
land management plans to maintain long-term health and productivity of
the land for the benefits of human communities and natural resources.
This analysis identifies and compares the costs and benefits associated
with developing, maintaining, revising, and amending NFS land
management plans under six alternatives: Alternative A the proposed NFS
planning rule (proposed rule); Modified Alternative A modification of
the proposed rule (final rule); Alternative B the implementation of
1982 rule procedures under the 2000 rule (No Action); Alternative C the
minimum to meet the National Forest
[[Page 21252]]
Management Act (NFMA) and purpose and need; Alternative D a modified
version of the proposed rule with an alternative approach to species
diversity and an emphasis on watershed health; Alternative E a modified
version of the proposed rule with emphasis on monitoring performance
and collaboration. Alternative B is the no action alternative and
therefore the baseline for this analysis.
The final rule includes the same concepts and underlying principles
as the proposed rule. However, there are a number of changes to the
rule text and to the document structure. The changes are based on
public comment received during the comment period on the DEIS and the
proposed rule (Alternative A).
The cost and benefits of the final rule are evaluated within the
context of a planning framework consisting of the three-part learning
and planning cycle: Assessment, development/revision/amendment, and
monitoring. The cost-benefit analysis focuses on key activities related
to this three-part planning cycle for which agency costs can be
estimated with the 1982 rule procedures as a baseline. Differences in
costs across alternatives are estimated when possible, but benefits are
discussed qualitatively as potential changes in procedural or
programmatic efficiency. The key activities for which costs were
analyzed include: (1) Assessments (for example, identification and
evaluation of existing information relevant to the plan area to
establish a basis of information and the landscape-scale context for
management prior to changing the plan); (2) public participation (for
example, collaboration and public participation activities not
including those required by the NFMA and NEPA); (3) development and
analysis of plan revision and amendment decisions (developing of
alternatives to address the need to change the plan, analyzing and
comparing the effects of alternatives, notification and comment
solicitation requirements under NEPA, and finalizing and documenting
plan revision and plan amendment decisions); (4) science support
(activities for assuring identification and use of the best available
scientific information); (5) resolution of issues regarding plan
revisions or plan amendments through the administrative processes of
appeals or objections; (6) monitoring (limited to those monitoring
activities that support planning); and (7) minimum plan maintenance
(minimum expenses to maintain a plan during non-revision years,
excluding assessment, collaboration, and analysis/decision costs
associated specifically with plan amendments).
Primary sources of data used to estimate agency costs include
recent cost-benefit analyses, business evaluations, and budget
justifications for planning rules issued between 2000 and 2008 and
recent historical data (1996-2009) regarding regional and unit-level
budget allocations and paid expenditures for planning and monitoring
activities related to planning. The 1982 rule procedures are considered
the baseline for this analysis. Until a new planning rule is in place,
the 1982 rule procedures are being used, as permitted by the transition
provision of the 2000 rule, to develop, revise, and amend all plans.
Agency costs are initially estimated for the 1982 rule procedures and
then used as a baseline from which adjustments are made, based on
explicit differences in planning procedures, to estimate the
incremental impact of the final rule. However, it should be noted that
cost projections of the final rule are speculative because there are
challenges anticipating the process costs of revising and amending
plans at this programmatic level of analysis. Annual costs are
estimated separately for years during which units (with regional
support) are engaged in plan revision and the years units are engaged
in plan maintenance/amendment. The estimated costs are then aggregated
to estimate total planning costs. Based on past studies and analyses of
plan revisions under the 1982 rule procedures, the agency determines
that plan revisions under the 1982 rule procedures will take
approximately 5 years. These studies and analyses indicate that plan
revisions for some units may take 7 years or longer. For estimation of
average agency costs for planning over a 15-year planning cycle, it is
assumed that management units will be engaged in plan revision for 3 to
4 years under the final rule and 5 years under the 1982 rule
procedures, assuming annual plan maintenance or more frequent but
shorter amendments than the 1982 rule procedures will be occurring for
the remaining years between revision cycles.
Monitoring is assumed to occur every year, but monitoring differs
slightly for plan revision years compared to maintenance years. Shorter
revision periods reflect the expectation that the process for revising
plans will be more efficient under the final rule because of procedural
changes described below (see ``Efficiency and Cost Effectiveness
Impacts''). It is also assumed that approximately 120 management units
will initiate plan revision over the next 15 years (2012 through 2026).
Total costs are assumed to cover activities directly related to
planning (and monitoring for planning purposes) at the unit and
regional office levels, as well as indirect or overhead (cost pools)
activity for supporting planning activities, but do not include
project-level costs. Costs associated with planning at the national
office and research stations are assumed to remain relatively constant
across alternatives; these costs are unknown but not expected to be
substantial compared to other costs evaluated. Total costs (2009
dollars ($)) are estimated for a 15-year planning cycle and then
annualized assuming a 3 percent and 7 percent discount rate. Annualized
costs accrued over the 15-year period reflect the annual flow of costs
that have been adjusted to acknowledge society's time value of money.
Due to the programmatic nature of the final action, the benefits
derived from land management plans developed, revised, or amended under
the different alternatives are not quantified. Instead, the benefits of
the alternatives are assessed qualitatively for procedural or
programmatic efficiency. Efficiency is a function of (1) the time and
resources used (costs) to complete and maintain plans, and (2) the
degree to which those plans are capable of providing direction for
resource monitoring, management, and use/access that sustains multiple
uses (including ecosystem services) in perpetuity and maintains long-
term health and productivity of the land for the benefit of human
communities and natural resources, giving due consideration to relative
values of resources (that is, meets the objectives of the NFMA and
other key guiding legislation).
Agency Cost Impacts
Results of the cost analysis indicate agency costs increase for
some key activities and decrease for others under the final rule and
alternatives. However, total annual planning costs are not projected to
be substantially different between the final rule and the 1982 rule
procedures. Estimates of potential differences in planning costs are
complicated by the unknown effects of any future Forest Service
directives that might be developed to support the final rule.
As shown in Table 1, the annual average undiscounted cost to the
Agency for all planning-related activities under the final rule ($97.7
million per year) are estimated to be $4.8 million per year lower
compared to the proposed rule ($102.5 million per year), and $6.3
million per year lower
[[Page 21253]]
compared to the 1982 rule procedures ($104 million per year).
Table 1--Summary of Estimated Annual Average Costs of Alternative Rules
[In million $ per year *]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated annual average costs Net savings/(cost) comparisons
------------------------------------------------------------------------------------
Final rule to
Final rule Proposed rule 1982 rule Final rule to 1982 rule
procedures proposed rule procedures
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual average undiscounted costs.................................. 97.7 102.5 104 4.8 6.3
Annualized discounted costs at 3%.................................. 97 102 103 5 6
Annualized discounted costs at 7%.................................. 96.3 101.2 102.2 4.9 5.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Estimates are in 2009 dollars.
Assuming a 3 percent discount rate, the projected annualized cost
for the final rule is estimated to be $97 million, while the projected
annualized cost for the proposed rule is $102 million, implying an
annualized cost difference between the final rule and the proposed rule
of $5 million, while the projected annualized cost for the 1982 rule
procedures is $103 million, implying a projected annualized cost
difference of $6 million. Assuming a 7 percent discount rate for the
same timeframe, the projected annual cost estimate for the final rule
is $96.3 million compared to $102.2 million under the 1982 rule
procedures.
Given the relatively small change in estimated costs, combined with
the uncertainty associated with costing assumptions, estimated annual
planning costs for the final rule are not projected to be substantially
different from the proposed rule and the 1982 procedures. However, over
a 15-year period more plan revisions and amendments are expected to be
completed under the final rule as compared to the 1982 rule procedures
for about the same amount of cost estimated. It is anticipated that
units will have greater capacity to maintain the currency, reliability,
and legitimacy of plans to meet the objectives of the MUSYA, the NFMA,
and the planning rule (Sec. 219.1(b) and (c)): Thereby improving the
quality of plans and therefore the efficiency of the planning process.
Based on the above quantitative comparison, annual average planning
costs to the Agency are projected to be similar for the final rule, the
proposed rule, and the 1982 procedures. A learning curve is expected
under the final rule. During the initial efforts by management units to
develop, revise, or amend plans under the new rule, costs are expected
to reflect additional time and resources needed to adjust to a new
planning framework, including training. It is likely the cost of
training will decrease gradually over time. Therefore, during the first
15-year period, planning costs will be slightly elevated and not
significantly different from the no-action alternative as units adjust
to the new planning process and build collaborative capacity. In
subsequent 15-year periods, planning costs are likely to decrease as
the new process becomes more established. Planning costs in subsequent
planning cycles are expected to decrease, recognizing there will still
be efficiency gains during the initial planning efforts.
The cost and benefit analysis assumed eight management units will
start plan revision annually. Therefore, approximately 120 management
units will at least initiate plan revision over the next 15 years (2012
through 2026). This analysis also assumed each management unit would
take 3 to 4 years to revise a plan under the final rule and 5 years
under the 1982 rule procedures. Given these assumptions, over a 15 year
period, there would be approximately 104 plan revisions completed under
the final rule in contrast to an estimated 88 plans revised under the
1982 rule procedures, a net increase of 16 plans revised under the
final rule.
Efficiency and Cost-Effectiveness Impacts
The numerous public meetings, forums, and roundtable discussions
revealed growing concern about a variety of risks, stressors, and
challenges to planning (for example, climate change; insects and
disease; recreation, timber, and other shifts in demands; population
growth, and other demographic shifts; water supply protection and other
ecosystem support services). Addressing these types of risks and
contingencies requires a larger landscape perspective, information from
a broad spectrum of sources, and a framework that can facilitate
adaptation to new information. The new procedural requirements under
the rule are designed to recognize these needs. The requirements are
intended to increase agency capacity to adapt management plans in
response to new and evolving information about risks, stressors,
contingencies, and management constraints as described in the section
above. It is anticipated under the final rule that the Agency will be
able to establish plans that are efficient and legitimate frameworks
for managing resources that meet public demand in a sustainable fashion
and satisfy the goals of the MUSYA and the NFMA, and that management
units will be better able to keep plans updated and current with
evolving science and public concerns without substantial changes in
planning costs over a 15-year period.
Under the final rule, costs are projected to be redirected toward
collaboration, assessment, and monitoring activities and away from
development and analysis of alternatives compared to the 1982 rule
procedures. Costs are also expected to be redirected more toward
maintenance or plan amendments under the final rule, due in part to
expectations that less time will be needed to complete plan revisions.
These effects are projected to occur, in part, because of broader
support and resolution of issues at earlier stages of plan revision,
achieved through collaboration as well as other procedural changes.
The reallocation of efforts and costs across different phases of
planning, and across key planning activities under the final rule is
expected to improve overall planning efficiency. Shifts in emphasis and
resources under the final rule are projected to improve the currency,
reliability, and legitimacy of plans to serve as a guide for: (1)
Reducing uncertainty by identifying and gathering existing and new
information about conditions, trends, risks, stressors, contingencies,
vulnerabilities, values/needs, contributions, and management
[[Page 21254]]
constraints; (2) integrating and assessing ecological, social, and
economic information to determine if outputs and outcomes related to
unit contributions to ecological, social, and economic conditions
indicate a need to change the plan; and (3) responding to the need for
change in management activities, projects, or revisions and amendments
to plan components. Potential increases and/or reallocation of costs
associated with assessment, analysis, and monitoring requirements for
elements such as diversity and sustainability are expected to provide
clearer direction for subsequent project planning. Project-level costs
are not included in the analysis of land management planning costs.
Agency planning costs under the final rule are estimated to be
slightly lower compared to the proposed rule and the 1982 rule
procedures, however, due to relatively small differences in estimated
costs, combined with uncertainty associated with costing assumptions,
the estimated agency costs are not projected to be substantially
different between the proposed rule, the final rule, and the 1982 rule
procedures. Changes in rule requirements under the final rule will
enhance planning efficiency, and more plan revisions and amendments, as
well as more effective plans, are expected as a result of the final
rule. Details about the potential effects of specific procedural
changes on agency costs and planning efficiency are described below, by
activity category.
Assessment: Slight increases in assessment costs (compared to the
cost of doing an analysis of the management situation under the 1982
rule procedures) are anticipated under the final rule. This is due to
an increased emphasis on characterizing factors such as assessing
conditions, trends, and sustainability within a broader ecological and
geographic context (landscapes), ecosystem and species diversity,
climate change, as well as other system drivers, risks, threats, and
vulnerabilities. Gains in cost effectiveness are achieved through other
elements such as direction to rely on existing information and the
removal of required prescriptive benchmark analysis. Changes in the
assessment requirements and guidance are expected to increase planning
efficiency and effectiveness by improving capacity to assimilate and
integrate existing and new information to inform changes to the plan.
Assessments would identify and evaluate information at landscape
levels and at a geographic scale based on ecological, economic, or
social factors relevant to the plan area, rather than reliance on
administrative boundaries. This broader approach would enhance capacity
to incorporate information about conditions outside of NFS boundaries
relevant to management of the plan area.
Risks and vulnerabilities to ecosystem elements and functions would
be considered in assessments thereby encouraging consideration of the
effects of long-term environmental or social/economic variability,
events, and trends on future outputs, ecosystem services, and outcomes.
For the final rule, the level of effort, or reallocation of effort
(and cost) to the assessment phase is reduced as compared with the
proposed rule, due to a narrower focus on rapid review and evaluation
of existing information (for example, assessments completed by States
and other entities, and so forth), as well as the inclusion of a
specific set of topics to focus on for the assessment, as opposed to
the broader direction in the proposed rule. Requirements to discuss
roles and contributions, ``need-to-change,'' as well as monitoring
questions have been removed under the final rule. The `benefits people
obtain from NFS planning areas' (ecosystem services) have been
highlighted under the final rule. Direction to gather and evaluate
information about potential species of conservation concern is more
explicit (and transparent) under the final rule. The changes in
assessment requirements under the final rule are expected to improve
the cost effectiveness of assessments. These changes are also designed
to increase the likelihood of improving capacity to respond to changes
in conditions and trends, as originally intended under the proposed
rule.
Public Participation: Requirements for public participation
(including collaboration) have not changed between the proposed and
final rules. Costs associated with public participation are projected
to increase under the final rule as compared to the 1982 rule
procedures due primarily to requirements that opportunities for
participation, including collaboration where feasible and appropriate,
be provided throughout the planning process. Gains in cost
effectiveness may occur, in part, by providing responsible officials
with discretion to design collaborative strategies that meet unit-
specific needs and constraints and recognize local collaborative
capacity. Costs for some units may be higher where potential barriers
to collaboration are present (for example, pre-existing relationships
may exacerbate perceived inequities; absence of pre-existing social
networks or capacity; or false commitments). Recognizing these
challenges, the final rule provides responsible officials with
discretion to determine the scope, methods, and timing of opportunities
for public participation that are appropriate to the circumstances
specific to the action being taken, and the final rule states that
opportunities for collaboration be offered when feasible and
appropriate. However, changes in guidance and requirements for public
participation under the final rule are expected to increase planning
efficiency, especially as related to the relevance and effectiveness of
plans, because of the following:
(1) Improved analysis and decisionmaking efficiency during latter
stages of planning due to increases in public input during early
phases;
(2) Improved capacity to reduce uncertainty by gathering,
verifying, and integrating information from a variety of sources,
including Tribal or other forms of knowledge, within and beyond unit
boundaries;
(3) Potential to offset or reduce agency monitoring costs as a
result of collaboration during monitoring plan development and
monitoring itself;
(4) Improved capacity to consider values and concerns for all
economic sectors and social segments, including amenity-driven
demographic shifts associated with local or rural communities in
wildland dependent counties;
(5) Reduced need for large numbers of plan alternatives as well as
time needed to complete plan revisions as a consequence of broader
support and resolution of issues achieved through public participation
and collaboration during early phases of final plan development;
(6) Improved perceptions regarding the legitimacy of plans and the
planning process and improved ability to address issues and concerns
prior to the need for litigation by increasing transparency, developing
awareness of the values and expected behavior of others, and seeking
greater understanding about values, needs, tradeoffs, and outcomes
during earlier stages of planning; and,
(7) Building unit (and regional) capacity to overcome existing
barriers to collaboration (for example, absence of social networks or
capacity; perceptions about pre-existing power relationships) through
training and facilitation.
Analysis and decisions (plan development, plan revision or
amendment): Costs associated with analysis and decisions are estimated
to decrease overall under the final rule due primarily to the effect of
fewer prescriptive requirements (relative to
[[Page 21255]]
1982 rule procedures) regarding probable (management) actions, timber
program elements, number and types of alternatives, evaluation of
alternatives, and minimum management requirements. The forces affecting
the cost include (1) increased emphasis on consideration of resource
attributes and conditions such as sustainability, watershed health, and
water supply, and (2) adaptation to new approaches for addressing
species viability and diversity in the short-term (with long-term
potential for gains in cost-effectiveness).
The following elements associated with the final rule are expected
to increase planning efficiency by facilitating plan revisions and
amendments, expanding capacity for adaptive management, and improving
guidance for responding to diverse determinations of a need to change
the plan:
The adoption of a coarse-filter/fine-filter approach for addressing
species viability and diversity within plan components, combined with
the recognition of land management and resource limits which constrain
the Agency, is expected to make management units better able to develop
plans that provide feasible or realistic direction for responding to
species and ecosystem sustainability and recovery needs and meeting
requirements for plant and animal diversity.
A greater emphasis on sustainability and ecosystem integrity in
plan components is expected to facilitate restoration responses
triggered by new information regarding environmental, social, and
economic risks and stressors, including climate change and changes in
demand for goods and services. Expected results include reduced effects
from anthropogenic stressors, thereby helping to restore healthy
ecosystems and compatible uses (especially in areas sensitive to
disturbance and changing conditions) as well as increased protection of
riparian area function.
Refocusing the use of the term ``restoration'' to focus on recovery
of resiliency and ecosystem functions (instead of historical reference
points) provides greater flexibility to respond to need-for-change
regarding damaged ecosystems.
Greater emphasis placed on identifying each unit's role in
providing ecosystem services within a broader landscape or region
should facilitate the design of management responses that recognize the
marginal effects or contributions of ecological, social, or economic
conditions originating from outside of the traditional unit study area
boundaries.
More frequent amendments expected under the final rule could
potentially lead to fewer need-for-change determinations when plans are
revised. Assessments and proposal steps may not be needed for some
amendments.
Under the final rule, slightly more effort is re-directed to
activities associated with development and analysis of plan revisions
(or amendments) compared to the proposed rule. Examples of changes
under the final rule that can enhance overall planning efficiency
include:
Moving ``Need-to-change'' determinations from assessments
to the plan revision phase to clarify the separation between the
assessment and NEPA phases;
Clarifying how plan area ecosystems are integrated into
landscape-level ecological, social, and economic sustainability;
Refining and clarifying requirements for riparian zones;
and
Clarifying unit responsibilities for the diversity of
plant and animal communities.
These changes are expected to contribute to planning efficiency by
improving the capacity of plans to provide for sustainability and
diversity.
Science support: Slight cost increases for science support may
occur under the final rule due in part to more prescriptive wording to
use the best available scientific information during the planning
process to inform the planning process, plan components, and other plan
content, including the monitoring program. On the other hand,
requirements under the final rule for using the best available
scientific information to inform decisions contribute to planning
efficiency by maximizing coverage of scientific input from diverse
sources, integrating science throughout all stages of planning, and
taking advantage of scientific knowledge from external partners and
agency research stations, thereby strengthening the decisionmaking
process. Also the final rule has fewer documentation requirements,
concentrating the burden of documentation on the most relevant and
appropriate points in the planning process. Additional changes are made
to clarify the responsible official's use of best available scientific
information in informing the planning process.
Resolutions: The cost effect of a shift from a post-decisional
appeals process (under the 1982 rule procedures) to a pre-decisional
objection period under the final rule is difficult to project. Ongoing
litigation under the current planning rule is costly and time consuming
and may continue under the new rule. However, the new planning
framework (i) places greater emphasis on public participation and
collaboration early and throughout the planning process, (ii) adopts a
pre-decisional objection process, and (iii) changes the regional office
responsible official from regional forester to forest supervisor. These
changes are expected to improve legitimacy and trust in the planning
process and contribute to more efficient resolution of issues early in
the process, prior to the plan development, plan revision or plan
amendment approval. Making a decision on an objection before plan
approval can be less disruptive than an appeal decision which can come
months after plan implementation begins. The more frequent use of
amendments expected under the final rule will keep plans more current
and is expected to narrow the focus of changes over time. In addition,
the assessment and monitoring phases of the planning framework are
expected to build public support and improve the legitimacy and
relevance of plans by providing and continually updating a transparent
base of information to inform management decisions. There is no
expectation of unanimous support for any given proposed plan
development, plan revision or plan amendment under any of the
alternatives, however early resolution of issues is expected to occur
and contribute to overall planning efficiency under the final rule.
Efficiency gains under the final rule are expected to be similar to the
proposed rule for resolution of issues, recognizing that the objection
period for actions involving environmental impact statements is
extended to 60 days under the final rule and to 45 days when there is
no environmental impact statement.
Monitoring: Relative increases in monitoring costs as compared to
the 1982 rule procedures are anticipated as a consequence of a greater
emphasis on broader input and participation in the design and
implementation of monitoring, new approaches for characterizing
diversity and resiliency, and two-level (plan and broad-scale)
monitoring. However, over time, the two-level approach to monitoring is
expected to increase monitoring efficiencies and decrease the cost of
other planning related activities. Under the final rule, the two-level
approach to monitoring is intended to inform the plan area management
and make progress toward desired outcomes. By testing assumptions,
tracking changing conditions, and assessing management effectiveness,
monitoring information will inform adaptive management and lead to more
effective and relevant
[[Page 21256]]
plans. Plan monitoring and broader-scale monitoring levels are related.
The monitoring framework would require monitoring to be more consistent
across units of the NFS. The final rule would mobilize multi-party
monitoring resources by working across all Forest Service branches and
engage partners and other Government agencies in its monitoring efforts
to help reduce the cost of added monitoring requirements and provide
for monitoring efforts that are complementary. There is also potential
that collaboration would result in more cooperative monitoring programs
with other agencies and the public. This could help leverage resources
to accomplish additional monitoring.
Changes in guidance and requirements for monitoring under the final
rule as compared to the 1982 rule procedures are expected to increase
planning effectiveness by improving capacity to gather information and
reduce uncertainty for a number of integrated ecological, social, and
economic conditions, trends, risks, stressors, constraints, and values
within and beyond unit boundaries.
Monitoring under the final rule focuses to a greater extent on
ecosystems, habitat diversity, and smaller numbers of species to
monitor (relative to MIS under Alternative B), with the intent that
tracking of species diversity and habitat sustainability will be more
cost-effective and reflective of unit-specific capabilities. Two-level
monitoring is intended to create a more systematic and unified
monitoring approach to detect effects of management within unit
boundaries as well as track risks, stressors, and conditions beyond
unit boundaries that affect, or are affected by, unit conditions and
actions.
Emphasis on coordination between plan area monitoring and broader-
scale monitoring helps ensure information is complementary, is gathered
at scales appropriate to monitoring questions, reduces redundancy, and
improves cost-effectiveness.
Efficiency gains under the final rule are expected to be similar to
the proposed rule. Changes to monitoring requirements under the final
rule should enhance those gains by: (1) Clarifying that monitoring
information should inform need-to-change, (2) modifying requirements
for engaging various partners in developing the monitoring program, and
(3) clarifying the connection between the monitoring requirements and
the requirements for diversity in Sec. 219.9.
Distributional Impacts
Due to the programmatic nature of this rule, it is not feasible to
assess distributional impacts (for example, changes in jobs, income, or
other measures for social and economic conditions across demographics
or economic sectors) in detail. Under the final rule, units would
continue to use their timber sale program and other forest management
activities to enhance timber and other forest resource values and
benefits over time (similar to the 1982 procedures). Continued
monitoring of recreation use is expected under the final rule as a
result of continuation of the national visitor use monitoring system.
Collaboration under the final rule would help assure consideration of a
broad spectrum of recreational values and an integrated mix of
sustainable recreation opportunities relevant to each NFS unit.
Grazing allotments are parcels or designated areas of rangeland
leased or permitted to a livestock grazer. Their use is planned and
monitored to maintain sustainable production and rangeland health.
Plans would include plan components to maintain or restore ecological
integrity of lands, including rangelands, and grazing allotment
management plans would continue to be modified to be consistent with
plans developed under the final rule, as they are for plans developed
using the 1982 rule procedures.
In general, the final rule is designed to facilitate engagement and
involvement throughout all phases of planning, thereby improving
capacity to consider and incorporate values and concerns for all
economic sectors and social segments affected by any given plan, plan
revision, or plan amendment. The final rule is also intended to
facilitate assimilation of existing or new information about local or
rural, as well as national, concerns and values throughout the planning
process. Increased opportunities for considering and addressing social
and economic concerns through participation and collaboration under the
final rule therefore apply evenly across all sectors and populations.
The final rule requires plans to have plan components that ``guide
the plan area's contributions to social and economic sustainability.''
The final rule also requires that plans include a statement of the
roles and contributions of the unit within a broader landscape and that
assessments, plan component development, and monitoring consider social
and economic conditions, including a broad spectrum of goods and
services. These requirements provide a flexible means for acknowledging
the varying and relative importance of plan area contributions to
social and economic sustainability as it relates to a range of economic
sectors and populations across units and regions.
The final rule is more prescriptive about considering and
facilitating restoration of damaged resources as well as improving
resource capacity to withstand environmental risks and stressors (that
is, resiliency), thereby providing greater capacity for sustaining
local or rural economic opportunities to benefit from forest resources
and ecosystem services, including recreation/tourism and water supply/
watershed health as well as restoration based activities.
Proper Consideration of Small Entities
The final rule has also been considered in light of Executive Order
13272 regarding proper consideration of small entities and the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), which
amended the Regulatory Flexibility Act (5 U.S.C. 601 et. seq.). The
Department has determined this action will not have a significant
economic impact on a substantial number of small entities as defined by
the E.O. 13272 and SBREFA, because the final rule imposes no
requirements or costs on small entities, nor does it impose
requirements or costs on specific types of industries or communities.
In addition, the final rule provides more opportunities for small
entities to engage with the Department and become more involved in all
phases of planning, thereby expanding capacity to identify and consider
the needs and preferences of small entities. Timelier planning and
management decisions under the final rule should increase opportunities
for small entities to benefit from implementation of updated land
management plans. Additional emphasis on ecosystem resiliency to
facilitate restoration activities and on sustainable recreation
opportunities should help sustain economic opportunities linked to
local or rural communities, many of which are host to small entities.
Therefore, a regulatory flexibility analysis is not required for this
final rule.
Energy Effects
This final rule has been reviewed under Executive Order (E.O.)
13211 issued May 18, 2001), ``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
[[Page 21257]]
defined in E.O. 13211. While the Agency does not manage subsurface
minerals, mineral exploration and development does occur on NFS lands.
Similarly, the Agency recognizes the growing demand for geothermal,
wind, and solar energy development on NFS lands. Agency management of
the renewable resources mandated by MUSYA recognizes ongoing and
potential exploration and development while protecting and conserving
these renewable resources. The final rule set out administrative
procedural requirements whereby NFS land management plans are
developed, revised, and amended. The final rule recognizes in Sec.
219.10 that development of renewable and non-renewable energy resources
are among the potential uses in a plan area. However, the final rule
does not dictate the activities that may occur or not occur on
administrative units of the NFS. Accordingly, the final rule does not
have energy requirements or energy conservation potential.
Plans developed under the final rule will provide the guidance for
making future project or activity resource management decisions. The
final rule recognizes in Sec. 219.10 that the placement and
maintenance of infrastructure such as transmission lines are among the
potential uses in a plan area. Land management plans may identify major
rights-of-way corridors for utility transmission lines, pipelines, and
water canals. The effects of the construction of utility transmission
lines, pipelines, and canals are, of necessity, considered on a case-
by-case basis as specific construction proposals. While these plans may
consider the need for such facilities and may include standards and
guidelines that may constrain energy exploration and development, they
would not authorize construction of them; therefore, the final rule
does not constitute a significant energy action within the meaning of
E.O. 13211. Consistent with E.O. 13211, direction to incorporate
consideration of energy supply, distribution, and use in the planning
process will be included in the Agency's administrative directives for
carrying out the final rule.
Environmental Impacts
This final rule establishes the administrative procedures to guide
development, amendment, and revision of NFS land management plans. The
Agency has prepared a final programmatic environmental impact statement
to analyze possible environmental effects of the final rule, present
several alternatives to the final rule, and disclose the potential
environmental impacts of those alternatives. The final programmatic
environmental impact statement is available on the Web at http://www.fs.usda.gov/planningrule.
The final rule requires plan development, amendment, or revision to
follow NEPA procedures. The rule requires an EIS for plan development
and plan revisions. The rule also requires that plan amendments comply
with Forest Service NEPA procedures. The appropriate NEPA documentation
for an amendment may be an EIS, an EA, or a CE, depending upon the
scope and scale of the amendment and its likely effects.
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 0596-0172 for
the objection process included in the Title 36, Code of Federal
Regulations, Part 218--Predecisional Administrative Review Processes,
Subpart. A--Predecisional Administrative Review Process for Hazardous
Fuel Reduction Projects Authorized by the Healthy Forests Restoration
Act of 2003.
The information required by subpart B of this rule is needed for an
objector to explain the nature of the objection being made to a land
management plan, plan amendment, or plan revision. This final rule
retains the objection process established in the CFR 218 objection
regulation and does not require additional information be provided from
the public. This rule does instead give direction that is more detailed
to both the public and Forest Service personnel on the timelines,
requirements, and procedures of the objection process.
Federalism
The Agency has considered this final rule under the requirements of
Executive Order (E.O.) 13132 issued August 4, 1999, ``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 this final rule does not have Federalism
implications. Moreover, Sec. 219.4(a) of this final rule shows
sensitivity to Federalism concerns by requiring the responsible
official to encourage participation of State and local governments and
Indian Tribes in the planning process. In addition, Sec. 219.4(b)
requires the responsible official to coordinate planning with State and
local governments and Indian Tribes.
In the spirit of E.O. 13132, the Agency provided many opportunities
for State and local officials, including their national
representatives, to share their ideas and concerns in developing the
final regulation. Respondents to the February 14, 2011, proposed rule
included the following: 113 county government agencies or elected
officials, 62 State government agencies, elected officials, or
associations, and 18 American Indian government agency, or elected
officials. Many Tribal, State, and local government agencies submitted
comments requesting that collaboration and coordination be mandatory
before beginning plan revisions. Some respondents suggested that forest
plans be made locally and adapted to ``local management,'' ``local
control,'' and ``local collaboration.'' Intergovernmental planning
coordination was supported by many respondents as well. Many
respondents cited Federal, Tribal, State, local, and other types of
planning they felt the Agency should be careful to consider and
integrate into forest plans. Respondents often agreed that the Agency's
planning efforts are strengthened when achieved in careful
collaboration with local governments and other local interests.
Comments of this nature were sometimes followed up with considerations
for ``cooperating agency'' provisions to solidify the process and
outcomes to be achieved through the participation of cooperating
agencies. The Department carefully considered these comments when
making changes to the rule.
Consultation With Indian Tribal Governments
On September 23, 2010, the Deputy Chief for the National Forest
System sent letters inviting more than 600 federally recognized Tribes
and Alaska Native Corporations to begin consultation on the proposed
planning rule. The Forest Service continued to conduct government-to-
government consultation on the planning rule while developing the final
rule. The Forest Service considers Tribal consultation as an ongoing,
iterative process through the issuance of the final rule.
The Agency held 16 consultation meetings across the country in
November and December 2010. During these meetings, Forest Service
leaders
[[Page 21258]]
met with Tribal and Alaska Native Corporation leaders, or their
designees, to discuss a Tribal consultation paper, which described how
the draft proposed rule discussed concerns Tribes had raised during the
collaborative sessions held earlier in the year. Forest Service leaders
also met one-on-one with Tribal leaders that requested consultation in
this manner. In July 2011, the Deputy Chief for the National Forest
System sent letters encouraging federally recognized Tribes and Alaska
Native Corporations to continue consult prior to release of the final
rule. Tribes have continued to consult one-on-one with Forest Service
leaders, as well as through regional or sub-regional consultation
meetings. All of the consultation meetings that have occurred
throughout development of the proposed and final rule have strengthened
the government-to-government relationship with the Tribes as well as
improved the final rule. Consultation is an ongoing process and can
occur at any time, including following publication of the final rule.
The Agency incorporated the input received through consultation
before December 13, 2010, into the proposed rule. Those concerns heard
during Tribal consultation after December 13 and which were given to
the Agency by October 21, 2011, were considered for incorporation in
the final rule.
The Agency also held two national Tribal roundtable conference
calls to provide additional opportunities for Tribes and Tribal
associations to comment prior to the development of the proposed
planning rule. More than 45 Tribes and Tribal associations participated
in the First National Tribal Roundtable on May 3, 2010, and more than
35 Tribes and Tribal associations participated in the Second National
Tribal Roundtable on August 5, 2010. Transcripts and summaries of these
meetings are available on the planning rule Web site. Additionally, six
Tribal roundtables were held in California, Arizona, and New Mexico.
On March 11, 2011, after publication of the proposed rule, the
Forest Service held a Tribal teleconference to provide information on
the proposed rule and answer questions. Sixteen Tribes participated in
the discussion and had the opportunity to have their questions answered
by the Ecosystem Management Coordination Director and the Associate
Chief of the Forest Service. A number of Tribes submitted comments on
the proposed rule during the public comment period and the content of
these letters has been carefully considered in developing the final
rule.
The Agency heard from Tribal leaders that the rule should clearly
state how the special rights and interests of Tribes would be provided
for in the planning process and show how Tribes will be engaged early
throughout the planning process. They emphasized the obligation the
Forest Service has to Tribes to fulfill treaty obligations and trust
responsibilities, protect and honor reserved rights, and fully
recognize the unique government-to-government relationship that exists
between the Federal Government and Tribes. Tribal leaders also stated
that the role of science in the planning process must account for
traditional Tribal knowledge. In response to these concerns, the final
rule recognizes and does not modify the unique government-to-government
relationship between the United States and Indian Tribes. The final
rule recognizes and does not modify prior existing Tribal rights,
including those involving hunting, fishing, gathering, and protecting
cultural and spiritual sites. The rule requires the agency to work with
federally recognized Indian Tribes, government-to-government, as
providing in treaties and laws and consistent with Executive orders
when developing, amending, or revising plans. The final rule encourages
Tribal participation in NFS planning. Further, the rule recognizes the
responsibility of Forest Service officials to consult early with Tribal
governments and to work cooperatively with them where planning issues
affect Tribal interests. Nothing in the final rule should be construed
as eliminating public input or Tribal consultation requirements for
future projects conducted in accordance with the final rule. The
responsible official shall request information from Tribes about native
knowledge, including information about land ethics, cultural issues,
and sacred and culturally significant sites, during the planning
process.
At Sec. 219.4(b)(2), for plan development or revision, the
responsible official shall review the planning and land use policies of
federally recognized Indian Tribes, Alaska Native Corporations, other
Federal agencies, and State and local governments. The results of the
review would be displayed in the environmental impact statement for the
plan. The final rule at Sec. 219.4(a)(1)(v) requires, where
appropriate, the responsible official to encourage federally recognized
Tribes to seek cooperating agency status. This provides an additional
opportunity for Tribes to be engaged in the planning process and
provides further avenues for Tribes to provide input during the
planning process. Additionally, the responsible official may
participate in planning efforts of federally recognized Indian Tribes
and Alaska Native Corporations, where practicable and appropriate. For
federally recognized Tribes, cooperating agency status does not replace
or superseded the trust responsibilities and requirements for
consultation also recognized and included in the final rule.
Tribal leaders stated that they want to see non-federally
recognized Tribes and groups included in the consultation or planning
process, as well as the involvement of youth. Non-federally recognized
groups and Tribes would be able to participate in the planning process
under the public requirements in Sec. 219.4. Section 219.4(a)(1)(ii)
requires the responsible officials to encourage participation by youth,
as well as low-income and minority populations.
Tribes place great emphasis on protection of water resources and
want to see the planning rule include stipulations for water
protection. Water resources are discussed throughout this final rule,
including specifically in Sec. 219.7 (New plan development or plan
revision), Sec. 219.8 (Sustainability), Sec. 219.9 (Diversity of
Plant and Animal Communities), and Sec. 219.10 (Multiple Use). Tribes
support a management approach that moves away from monoculture
management and promotes sustainable and diverse populations of plants
and animals. Section 219.9 of the final rule requires land management
plans to contain components, including standards or guidelines, to
maintain or restore the ecological integrity of terrestrial and aquatic
ecosystems and watersheds in the plan area.
The definition of native knowledge in Sec. 219.19 has been
retained based on the feedback that we received during consultation.
The definition acknowledges that native knowledge is a way of knowing
or understanding the world derived from multiple generations of
indigenous peoples' interactions, observations, and experiences with
their ecological systems, and that it is also place-based and culture-
based knowledge in which people learn to live in and adapt to their own
environment through interactions, observations, and experiences with
their ecological system.
Many Tribes had a variety of concerns regarding social, economic,
and ecological sustainability, and suggested that the Agency
specifically discuss cultural sustainability within the final rule and
protect cultural resources. The definition in the final rule of
[[Page 21259]]
``sustainability'' notes that ``social sustainability refers to the
capability of society to support the network of relationships,
traditions, culture, and activities that connect people to the land and
to one another, and support vibrant communities.'' In addition, Sec.
219.1(c) recognizes that NFS lands provide people and communities with
a wide array of benefits, including ``cultural benefits.'' Section
219.4 requires opportunities for public and Tribal participation and
coordination throughout the planning process. Section 219.4(a)(3)
requires that the responsible official request ``information about
native knowledge, land ethics, cultural issues, and sacred and
culturally significant sites'' during consultation and opportunities
for Tribal participation. Section 219.6(b) requires assessment content
to include cultural conditions and cultural and historic resources and
uses. Section 219.8 in the final rule recognizes cultural aspects of
sustainability by requiring ``cultural and historic resources and uses
``be taken into account when designing plan components to guide
contributions to social and economic sustainability.'' Section
219.10(b)(1)(ii) of the rule requires ``plan components * * * for a new
plan or plan revision must provide for protection of cultural and
historic resources,'' and ``management of areas of Tribal importance.''
The final rule also includes recognition of and requirements for
``ecosystem services,'' which include ``cultural heritage values.''
These requirements, in combination with the requirement that plan
content include descriptions of a unit's roles and contributions within
the broader landscape under Sec. 219.7(e), ensure the cultural aspects
of sustainability will be taken into account when developing plan
components that guide unit contributions to social sustainability.
During the consultation meetings, the Agency heard from Tribal
leaders that confidentiality is a big concern. To explicitly discuss
confidentiality, Sec. 219.1(e) states that the responsible official
shall comply with Section 8106 of the Food, Conservation, and Energy
Act of 2008, Executive Order 13007 of May 24, 1996, Executive Order
13175 of November 6, 2000, laws and other requirements with respect to
disclosing or withholding under the Freedom of Information Act certain
information regarding reburial sites or other information that is
culturally sensitive to Indian Tribe or Tribes.
The Agency has heard from Tribal leaders that they want to see
sacred sites protected. The final rule requires that responsible
officials request information from Tribes about sacred sites, and
provides for protection of cultural and historic resources and
management of areas of Tribal importance. In addition, a separate
initiative by the USDA Office of Tribal Relations and the Forest
Service is conducting a policy review concerning sacred sites and is
consulting with Tribes during their effort. The Agency has informed
Tribes of this separate initiative and how they can participate during
the consultation meetings. Information that the Agency received during
the planning rule consultation process regarding sacred sites has been
shared with the USDA Office of Tribal Relations and the Forest Service
initiative.
The Forest Service received many other comments during the Tribal
consultation meetings. A number of these comments were regarding
concerns that are outside of the scope of the national planning rule or
that will be discussed at the local level during the development of
land management plans. Tribes received responses to these comments in
separate documents, which were mailed to those Tribes and Alaska Native
Corporations that participated in the October and November 2010
consultation meetings following the publication of the proposed rule.
Additionally, a document summarizing the comments and responses from
these meetings was made available to federally recognized Tribes and
Alaska Native Corporations as part of the consultation documents
provided in August 2011.
Many of the public participation and other requirements in the
final rule have significant potential to involve Tribes and tribal
members in NFS planning and management, and to incorporate information
into the process that will be relevant with regard to local effects of
management on individual units, including to Tribal communities.
However, pursuant to Executive Order 13175 of November 6, 2000,
``Consultation and Coordination with Indian Tribal Governments,'' the
final rule itself does not have ``substantial direct effects.''
Effects, both positive and adverse, may occur at the local planning
level, which is one of the many reasons the final rule includes
requirements for tribal consultation as well as outreach to Tribes
during public participation opportunities. Effects may also occur at
the project or activity level, which have additional opportunities for
public engagement.
The Agency has also determined that this final rule does not impose
substantial direct compliance costs 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 provide Tribes an opportunity to consult and to reach out
early to engage them throughout the planning process.
Takings of Private Property
The Agency analyzed this rule in accordance with the principles and
criteria contained in Executive Order 12630 issued March 15, 1988, and
the Agency determined that the rule does not pose the risk of a taking
of private property.
Civil Justice Reform
The Agency reviewed the rule under Executive Order 12988, ``Civil
Justice Reform.'' The Agency has not identified any State or local laws
or regulations that are in conflict with this regulation or that would
impede full implementation of this rule. Nevertheless, in the event
that such conflicts were to be identified, the final rule, if
implemented, would preempt the State or local laws or regulations found
to be in conflict. However, in that case, (1) no retroactive effect
would be given to this final rule; and (2) the Department would not
require the use of administrative proceedings before parties could 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 Sec. 202 of the Act is not
required.
Environmental Justice
The Department considered impacts of the final rule to civil rights
and environmental justice (pursuant to Executive Order 12898 (59 FR
7629, February 16, 1994)). If implemented, with outreach, public
engagement and using NEPA procedures to document effects, this analysis
concludes that no adverse civil rights or environmental justice impacts
from the planning rule are anticipated to the delivery of benefits or
other program outcomes on a national level for any under-represented
population or to other U.S. populations or communities from the
adoption of the final planning rule.
While national level impacts are not expected to be
disproportionate, yet-to-
[[Page 21260]]
be-identified adverse impacts may be possible on a regional or local
scale at the unit planning level. Differences in national level effects
and regional/local level effects are the result of uneven distribution
of minorities, low-income populations, and variations in regional,
cultural, or traditional use, and differences in local access to
resources. Impacts on the national forest level will be further
examined at the unit level, including NEPA analysis for plan
development, plan revision, or plan amendment and site-specific
projects.
The participation efforts required by the final rule have
significant potential to reach and involve diverse segments of the
population that historically have not played a large role in NFS
planning and management. Section 219.4(a) requires that when developing
opportunities for public participation, the responsible official shall
take into account the discrete and diverse roles, jurisdictions,
responsibilities, and skills of interested and affected parties as well
as the accessibility of the process, opportunities, and information.
The responsible official is required to be proactive and use
contemporary tools, such as the Internet, to engage the public, and
share information in an open way with interested parties. Requirements
of Sec. 219.4 to consider accessibility and requirements to encourage
participation by youth, low-income populations, and minority
populations may improve environmental justice outcomes.
The final rule includes provisions for filing an objection before
the final decision if the objector has filed a substantive formal
comment related to a new plan, plan revision, or plan amendment. In the
past, substantive formal comments were required to be in writing and
submitted during the formal comment period when developing land
management plans. The final rule expands the definition of a
substantive formal comment to include written or oral comments
submitted or recorded during an opportunity for public participation
provided during the local unit's planning process (Sec. Sec. 219.4 and
219.16).
If implemented, there are no anticipated adverse or
disproportionate impacts to underserved, protected groups, low income,
or socially disadvantaged communities. The final rule requirements,
including outreach and collaboration, and the requirement for NEPA
analysis are designed to avoid adverse or disproportionate effects;
therefore, mitigating measures are not necessary or appropriate for
adopting or implementing the planning rule. Local site-specific
mitigation may occur as NFS projects and activities are planned and
executed consistent with Department policy.
List of Subjects in 36 CFR Part 219
Administrative practice and procedure, Environmental impact
statements, Indians, Intergovernmental relations, National forests,
Reporting and recordkeeping requirements, Science and technology.
Therefore, for the reasons set forth in the preamble, the Forest
Service revises 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 responsible officials.
219.3 Role of science in planning.
219.4 Requirements for public participation.
219.5 Planning framework.
219.6 Assessment.
219.7 New plan development or plan revision.
219.8 Sustainability.
219.9 Diversity of plant and animal communities.
219.10 Multiple use.
219.11 Timber requirements based on the NFMA.
219.12 Monitoring.
219.13 Plan amendment and administrative changes.
219.14 Decision document and planning records.
219.15 Project and activity consistency with the plan.
219.16 Public notifications.
219.17 Effective dates and transition.
219.18 Severability.
219.19 Definitions.
Subpart B--Pre-Decisional Administrative Review Process
219.50 Purpose and scope.
219.51 Plans, plan amendments, or plan revisions not subject to
objection.
219.52 Giving notice of a plan, plan amendment, or plan revision
subject to objection before approval.
219.53 Who may file an objection.
219.54 Filing an objection.
219.55 Objections set aside from review.
219.56 Objection time periods and process.
219.57 Resolution of objections.
219.58 Timing of a plan, plan amendment, or plan revision decision.
219.59 Use of other administrative review processes.
219.60 Secretary's authority.
219.61 Information collection requirements.
219.62 Definitions.
Authority: 5 U.S.C. 301; 16 U.S.C. 1604, 1613.
Subpart A--National Forest System Land Management Planning
Sec. 219.1 Purpose and applicability.
(a) This subpart sets out the planning requirements for developing,
amending, and revising land management plans (also referred to as
plans) for units of the National Forest System (NFS), 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.) (NFMA). This subpart also sets out the requirements for plan
components and other content in land management plans. This part is
applicable to all units of the NFS 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) (MUSYA), the Forest Service manages the NFS to
sustain the multiple use of its renewable resources in perpetuity while
maintaining the long-term health and productivity of the land.
Resources are managed through a combination of approaches and concepts
for the benefit of human communities and natural resources. Land
management plans guide sustainable, integrated resource management of
the resources within the plan area in the context of the broader
landscape, giving due consideration to the relative values of the
various resources in particular areas.
(c) The purpose of this part is to guide the collaborative and
science-based development, amendment, and revision of land management
plans that promote the ecological integrity of national forests and
grasslands and other administrative units of the NFS. Plans will guide
management of NFS lands so that they are ecologically sustainable and
contribute to social and economic sustainability; consist of ecosystems
and watersheds with ecological integrity and diverse plant and animal
communities; and have the capacity to provide people and communities
with ecosystem services and multiple uses that provide a range of
social, economic, and ecological benefits for the present and into the
future. These benefits include clean air and water; habitat for fish,
wildlife, and plant communities; and opportunities for recreational,
spiritual, educational, and cultural benefits.
(d) This part does not affect treaty rights or valid existing
rights established by statute or legal instruments.
(e) During the planning process, the responsible official shall
comply with Section 8106 of the Food, Conservation, and Energy Act of
2008 (25 U.S.C. 3056), Executive Order 13007 of May
[[Page 21261]]
24, 1996, Executive Order 13175 of November 6, 2000, laws, and other
requirements with respect to disclosing or withholding under the
Freedom of Information Act (5 U.S.C. 552) certain information regarding
reburial sites or other information that is culturally sensitive to an
Indian Tribe or Tribes.
(f) Plans must comply with all applicable laws and regulations,
including NFMA, MUSYA, the Clean Air Act, the Clean Water Act, the
Wilderness Act, and the Endangered Species Act.
(g) The responsible official shall ensure that the planning
process, plan components, and other plan content are within Forest
Service authority, the inherent capability of the plan area, and the
fiscal capability of the unit.
Sec. 219.2 Levels of planning and responsible officials.
Forest Service planning occurs at different organizational levels
and geographic scales. Planning occurs at three levels--national
strategic planning, NFS unit planning, and project or activity
planning.
(a) National strategic planning. 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 Modernization Act of 2010 (5 U.S.C. 306; 31 U.S.C. 1115-1125;
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 NFS, as well
as the other Forest Service mission areas: Research and Development,
State and Private Forestry, and International Programs.
(b) National Forest System unit planning. (1) NFS unit planning
results in the development, amendment, or revision of a land management
plan. A land management plan provides a framework for integrated
resource management and for guiding project and activity decisionmaking
on a national forest, grassland, prairie, or other administrative unit.
A plan reflects the unit's expected distinctive roles and contributions
to the local area, region, and Nation, and the roles for which the plan
area is best suited, considering the Agency's mission, the unit's
unique capabilities, and the resources and management of other lands in
the vicinity. Through the adaptive planning cycle set forth in this
subpart, a plan can be changed to reflect new information and changing
conditions.
(2) A plan does not authorize projects or activities or commit the
Forest Service to take action. A plan may constrain the Agency from
authorizing or carrying out projects and activities, or the manner in
which they may occur. Projects and activities must be consistent with
the plan (Sec. 219.15). A plan does not regulate uses by the public,
but a project or activity decision that regulates a use by the public
under 36 CFR Part 261, Subpart B, may be made contemporaneously with
the approval of a plan, plan amendment, or plan revision. Plans should
not repeat laws, regulations, or program management policies,
practices, and procedures that are in the Forest Service Directive
System.
(3) 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; the Under Secretary, Natural Resources and
Environment; or the Secretary acts as the responsible official. Two or
more responsible officials may undertake joint planning over lands
under their respective jurisdictions.
(4) A plan for a unit that contains an experimental area may not be
approved without the concurrence of the appropriate research station
director with respect to the direction applicable to that area, and a
plan amendment applicable to an experimental area may not be approved
without the concurrence of the appropriate research station director.
(5) The Chief is responsible for leadership and direction for
carrying out the NFS land management planning program under this part.
The Chief shall:
(i) Establish planning procedures for this part in the Forest
Service Directive System in Forest Service Manual 1920--Land Management
Planning and in Forest Service Handbook 1909.12--Land Management
Planning Handbook.
(ii) Establish and administer a national oversight process for
accountability and consistency of NFS land management planning under
this part.
(iii) Establish procedures in the Forest Service Directive System
for obtaining inventory data on the various renewable resources, and
soil and water.
(c) Project and activity planning. The supervisor or district
ranger is the responsible official for project and activity decisions,
unless a higher-level official acts as the responsible official.
Requirements for project or activity planning are established in the
Forest Service Directive System. Except as provided in the plan
consistency requirements in Sec. 219.15, none of the requirements of
this part apply to projects or activities.
Sec. 219.3 Role of science in planning.
The responsible official shall use the best available scientific
information to inform the planning process required by this subpart. In
doing so, the responsible official shall determine what information is
the most accurate, reliable, and relevant to the issues being
considered. The responsible official shall document how the best
available scientific information was used to inform the assessment, the
plan decision, and the monitoring program as required in Sec. Sec.
219.6(a)(3) and 219.14(a)(4). Such documentation must: Identify what
information was determined to be the best available scientific
information, explain the basis for that determination, and explain how
the information was applied to the issues considered.
Sec. 219.4 Requirements for public participation.
(a) Providing opportunities for participation. The responsible
official shall provide opportunities to the public for participating in
the assessment process; developing a plan proposal, including the
monitoring program; commenting on the proposal and the disclosure of
its environmental impacts in accompanying NEPA documents; and reviewing
the results of monitoring information. When developing opportunities
for public participation, the responsible official shall take into
account the discrete and diverse roles, jurisdictions,
responsibilities, and skills of interested and affected parties; the
accessibility of the process, opportunities, and information; and the
cost, time, and available staffing. The responsible official should be
proactive and use contemporary tools, such as the Internet, to engage
the public, and should share information in an open way with interested
parties. Subject to the notification requirements in Sec. 219.16, the
responsible official has the discretion to determine the scope,
methods, forum, and timing of those opportunities. The Forest Service
retains decisionmaking authority and responsibility for all decisions
throughout the process.
(1) Outreach. The responsible official shall engage the public--
including Tribes and Alaska Native Corporations, other Federal
agencies, State and local
[[Page 21262]]
governments, individuals, and public and private organizations or
entities--early and throughout the planning process as required by this
part, using collaborative processes where feasible and appropriate. In
providing opportunities for engagement, the responsible official shall
encourage participation by:
(i) Interested individuals and entities, including those interested
at the local, regional, and national levels.
(ii) Youth, low-income populations, and minority populations.
(iii) Private landowners whose lands are in, adjacent to, or
otherwise affected by, or whose actions may impact, future management
actions in the plan area.
(iv) Federal agencies, States, counties, and local governments,
including State fish and wildlife agencies, State foresters and other
relevant State agencies. Where appropriate, the responsible official
shall encourage States, counties, and other local governments to seek
cooperating agency status in the NEPA process for development,
amendment, or revision of a plan. The responsible official may
participate in planning efforts of States, counties, local governments,
and other Federal agencies, where practicable and appropriate.
(v) Interested or affected federally recognized Indian Tribes or
Alaska Native Corporations. Where appropriate, the responsible official
shall encourage federally recognized Tribes to seek cooperating agency
status in the NEPA process for development, amendment, or revision of a
plan. The responsible official may participate in planning efforts of
federally recognized Indian Tribes and Alaska Native Corporations,
where practicable and appropriate.
(2) Consultation with federally recognized Indian Tribes and Alaska
Native Corporations. The Department recognizes the Federal Government
has certain trust responsibilities and a unique legal relationship with
federally recognized Indian Tribes. The responsible official shall
honor the government-to-government relationship between federally
recognized Indian Tribes and the Federal government. The responsible
official shall provide to federally recognized Indian Tribes and Alaska
Native Corporations the opportunity to undertake consultation
consistent with Executive Order 13175 of November 6, 2000, and 25
U.S.C. 450 note.
(3) Native knowledge, indigenous ecological knowledge, and land
ethics. As part of tribal participation and consultation as set forth
in paragraphs (a)(1)(v) and (a)(2) of this section, the responsible
official shall request information about native knowledge, land ethics,
cultural issues, and sacred and culturally significant sites.
(b) Coordination with other public planning efforts. (1) The
responsible official shall coordinate land management planning with the
equivalent and related planning efforts of federally recognized Indian
Tribes, Alaska Native Corporations, other Federal agencies, and State
and local governments.
(2) For plan development or revision, the responsible official
shall review the planning and land use policies of federally recognized
Indian Tribes (43 U.S.C. 1712(b)), Alaska Native Corporations, other
Federal agencies, and State and local governments, where relevant to
the plan area. The results of this review shall be displayed in the
environmental impact statement (EIS) for the plan (40 CFR 1502.16(c),
1506.2). The review shall include consideration of:
(i) The objectives of federally recognized Indian Tribes, Alaska
Native Corporations, other Federal agencies, and State and local
governments, as expressed in their plans and policies;
(ii) The compatibility and interrelated impacts of these plans and
policies;
(iii) Opportunities for the plan to address the impacts identified
or contribute to joint objectives; and
(iv) Opportunities to resolve or reduce conflicts, within the
context of developing the plan's desired conditions or objectives.
(3) Nothing in this section should be read to indicate that the
responsible official will seek to direct or control management of lands
outside of the plan area, nor will the responsible official conform
management to meet non-Forest Service objectives or policies.
Sec. 219.5 Planning framework.
(a) Planning for a national forest, grassland, prairie, or other
comparable administrative unit of the NFS is an iterative process that
includes assessment (Sec. 219.6); developing, amending, or revising a
plan (Sec. Sec. 219.7 and 219.13); and monitoring (Sec. 219.12).
These three phases of the framework are complementary and may overlap.
The intent of this framework is to create a responsive planning process
that informs integrated resource management and allows the Forest
Service to adapt to changing conditions, including climate change, and
improve management based on new information and monitoring.
(1) Assessment. Assessments rapidly evaluate existing information
about relevant ecological, economic, and social conditions, trends, and
sustainability and their relationship to the land management plan
within the context of the broader landscape. The responsible official
shall consider and evaluate existing and possible future conditions and
trends of the plan area, and assess the sustainability of social,
economic, and ecological systems within the plan area, in the context
of the broader landscape (Sec. 219.6).
(2) Plan development, plan amendment, or plan revision.
(i) The process for developing or revising a plan includes:
Assessment, preliminary identification of the need to change the plan
based on the assessment, development of a proposed plan, consideration
of the environmental effects of the proposal, providing an opportunity
to comment on the proposed plan, providing an opportunity to object
before the proposal is approved, and, finally, approval of the plan or
plan revision. A new plan or plan revision requires preparation of an
environmental impact statement.
(ii) The process for amending a plan includes: Preliminary
identification of the need to change the plan, development of a
proposed amendment, consideration of the environmental effects of the
proposal, providing an opportunity to comment on the proposed
amendment, providing an opportunity to object before the proposal is
approved, and, finally, approval of the plan amendment. The appropriate
NEPA documentation for an amendment may be an environmental impact
statement, an environmental assessment, or a categorical exclusion,
depending upon the scope and scale of the amendment and its likely
effects.
(3) Monitoring. Monitoring is continuous and provides feedback for
the planning cycle by testing relevant assumptions, tracking relevant
conditions over time, and measuring management effectiveness (Sec.
219.12). The monitoring program includes plan-level and broader-scale
monitoring. The plan-level monitoring program is informed by the
assessment phase; developed during plan development, plan amendment, or
plan revision; and implemented after plan decision. The regional
forester develops broader-scale monitoring strategies. Biennial
monitoring evaluation reports document whether a change to the plan or
change to the monitoring program is warranted based on new information,
whether a new assessment may be needed, or whether there is no need for
change at that time.
(b) Interdisciplinary team(s). The responsible official shall
establish an interdisciplinary team or teams to
[[Page 21263]]
prepare assessments; new plans, plan amendments, and plan revisions;
and plan monitoring programs.
Sec. 219.6 Assessment.
The responsible official has the discretion to determine the scope,
scale, and timing of an assessment described in Sec. 219.5(a)(1),
subject to the requirements of this section.
(a) Process for plan development or revision assessments. An
assessment must be completed for the development of a new plan or for a
plan revision. The responsible official shall:
(1) Identify and consider relevant existing information contained
in governmental or non-governmental assessments, plans, monitoring
reports, studies, and other sources of relevant information. Such
sources of information may include State forest assessments and
strategies, the Resources Planning Act assessment, ecoregional
assessments, non-governmental reports, State comprehensive outdoor
recreation plans, community wildfire protection plans, public
transportation plans, State wildlife data and action plans, and
relevant Agency or interagency reports, resource plans or assessments.
Relevant private information, including relevant land management plans
and local knowledge, will be considered if publicly available or
voluntarily provided.
(2) Coordinate with or provide opportunities for the regional
forester, agency staff from State and Private Forestry and Research and
Development, federally recognized Indian Tribes and Alaska Native
Corporations, other governmental and non-governmental parties, and the
public to provide existing information for the assessment.
(3) Document the assessment in a report available to the public.
The report should document information needs relevant to the topics of
paragraph (b) of this section. Document in the report how the best
available scientific information was used to inform the assessment
(Sec. 219.3). Include the report in the planning record (Sec.
219.14).
(b) Content of the assessment for plan development or revision. In
the assessment for plan development or revision, the responsible
official shall identify and evaluate existing information relevant to
the plan area for the following:
(1) Terrestrial ecosystems, aquatic ecosystems, and watersheds;
(2) Air, soil, and water resources and quality;
(3) System drivers, including dominant ecological processes,
disturbance regimes, and stressors, such as natural succession,
wildland fire, invasive species, and climate change; and the ability of
terrestrial and aquatic ecosystems on the plan area to adapt to change;
(4) Baseline assessment of carbon stocks;
(5) Threatened, endangered, proposed and candidate species, and
potential species of conservation concern present in the plan area;
(6) Social, cultural, and economic conditions;
(7) Benefits people obtain from the NFS planning area (ecosystem
services);
(8) Multiple uses and their contributions to local, regional, and
national economies;
(9) Recreation settings, opportunities and access, and scenic
character;
(10) Renewable and nonrenewable energy and mineral resources;
(11) Infrastructure, such as recreational facilities and
transportation and utility corridors;
(12) Areas of tribal importance;
(13) Cultural and historic resources and uses;
(14) Land status and ownership, use, and access patterns; and
(15) Existing designated areas located in the plan area including
wilderness and wild and scenic rivers and potential need and
opportunity for additional designated areas.
(c) Plan amendment assessments. Where the responsible official
determines that a new assessment is needed to inform an amendment, the
responsible official has the discretion to determine the scope, scale,
process, and content for the assessment depending on the topic or
topics to be addressed.
Sec. 219.7 New plan development or plan revision.
(a) Plan revisions. A plan revision creates a new plan for the
entire plan area, whether the plan revision differs from the prior plan
to a small or large extent. A plan must be revised at least every 15
years. But, the responsible official has the discretion to determine at
any time that conditions on a plan area have changed significantly such
that a plan must be revised (16 U.S.C. 1604(f)(5)).
(b) New plan development. New plan development is required for new
NFS units. The process for developing a new plan is the same as the
process for plan revision.
(c) Process for plan development or revision. (1) The process for
developing or revising a plan includes: Public notification and
participation (Sec. Sec. 219.4 and 219.16), assessment (Sec. Sec.
219.5 and 219.6), developing a proposed plan, considering the
environmental effects of the proposal, providing an opportunity to
comment on the proposed plan, providing an opportunity to object before
the proposal is approved (subpart B), and, finally, approving the plan
or plan revision. A new plan or plan revision requires preparation of
an environmental impact statement.
(2) In developing a proposed new plan or proposed plan revision,
the responsible official shall:
(i) Review relevant information from the assessment and monitoring
to identify a preliminary need to change the existing plan and to
inform the development of plan components and other plan content.
(ii) Consider the goals and objectives of the Forest Service
strategic plan (Sec. 219.2(a)).
(iii) Identify the presence and consider the importance of various
physical, biological, social, cultural, and historic resources on the
plan area (Sec. 219.6), with respect to the requirements for plan
components of Sec. Sec. 219.8 through 219.11.
(iv) Consider conditions, trends, and stressors (Sec. 219.6), with
respect to the requirements for plan components of Sec. Sec. 219.8
through 219.11.
(v) Identify and evaluate lands that may be suitable for inclusion
in the National Wilderness Preservation System and determine whether to
recommend any such lands for wilderness designation.
(vi) Identify the eligibility of rivers for inclusion in the
National Wild and Scenic Rivers System, unless a systematic inventory
has been previously completed and documented and there are no changed
circumstances that warrant additional review.
(vii) Identify existing designated areas other than the areas
identified in paragraphs (c)(2)(v) and (c)(2)(vi) of this section, and
determine whether to recommend any additional areas for designation. If
the responsible official has the delegated authority to designate a new
area or modify an existing area, then the responsible official may
designate such area when approving the plan, plan amendment, or plan
revision.
(viii) Identify the suitability of areas for the appropriate
integration of resource management and uses, with respect to the
requirements for plan components of Sec. Sec. 219.8 through 219.11,
including identifying lands which are not suitable for timber
production (Sec. 219.11).
(ix) Identify the maximum quantity of timber that may be removed
from the plan area (Sec. 219.11(d)(6)).
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(x) Identify questions and indicators for the plan monitoring
program (Sec. 219.12).
(xi) Identify potential other content in the plan (paragraph (f) of
this section).
(3) The regional forester shall identify the species of
conservation concern for the plan area in coordination with the
responsible official.
(d) Management areas or geographic areas. Every plan must have
management areas or geographic areas or both. The plan may identify
designated or recommended designated areas as management areas or
geographic areas.
(e) Plan components. Plan components guide future project and
activity decisionmaking. The plan must indicate whether specific plan
components apply to the entire plan area, to specific management areas
or geographic areas, or to other areas as identified in the plan.
(1) Required plan components. Every plan must include the following
plan components:
(i) Desired conditions. A desired condition is a description of
specific social, economic, and/or ecological characteristics of the
plan area, or a portion of the plan area, toward which management of
the land and resources should be directed. Desired conditions must be
described in terms that are specific enough to allow progress toward
their achievement to be determined, but do not include completion
dates.
(ii) Objectives. An objective is a concise, measurable, and time-
specific statement of a desired rate of progress toward a desired
condition or conditions. Objectives should be based on reasonably
foreseeable budgets.
(iii) Standards. A standard is a mandatory constraint on project
and activity decisionmaking, established to help achieve or maintain
the desired condition or conditions, to avoid or mitigate undesirable
effects, or to meet applicable legal requirements.
(iv) Guidelines. A guideline is a constraint on project and
activity decisionmaking that allows for departure from its terms, so
long as the purpose of the guideline is met. (Sec. 219.15(d)(3)).
Guidelines are established to help achieve or maintain a desired
condition or conditions, to avoid or mitigate undesirable effects, or
to meet applicable legal requirements.
(v) Suitability of lands. Specific lands within a plan area will be
identified as suitable for various multiple uses or activities based on
the desired conditions applicable to those lands. The plan will also
identify lands within the plan area as not suitable for uses that are
not compatible with desired conditions for those lands. The suitability
of lands need not be identified for every use or activity. Suitability
identifications may be made after consideration of historic uses and of
issues that have arisen in the planning process. Every plan must
identify those lands that are not suitable for timber production (Sec.
219.11).
(2) Optional plan component: goals. A plan may include goals as
plan components. Goals are broad statements of intent, other than
desired conditions, usually related to process or interaction with the
public. Goals are expressed in broad, general terms, but do not include
completion dates.
(3) Requirements for the set of plan components. The set of plan
components must meet the requirements set forth in this part for
sustainability (Sec. 219.8), plant and animal diversity (Sec. 219.9),
multiple use (Sec. 219.10), and timber (Sec. 219.11).
(f) Other content in the plan. (1) Other required content in the
plan. Every plan must:
(i) Identify watershed(s) that are a priority for maintenance or
restoration;
(ii) Describe the plan area's distinctive roles and contributions
within the broader landscape;
(iii) Include the monitoring program required by Sec. 219.12; and
(iv) Contain information reflecting proposed and possible actions
that may occur on the plan area during the life of the plan, including:
the planned timber sale program; timber harvesting levels; and the
proportion of probable methods of forest vegetation management
practices expected to be used (16 U.S.C. 1604(e)(2) and (f)(2)). Such
information is not a commitment to take any action and is not a
``proposal'' as defined by the Council on Environmental Quality
regulations for implementing NEPA (40 CFR 1508.23, 42 U.S.C.
4322(2)(C)).
(2) Optional content in the plan. A plan may include additional
content, such as potential management approaches or strategies and
partnership opportunities or coordination activities.
Sec. 219.8 Sustainability.
The plan must provide for social, economic, and ecological
sustainability within Forest Service authority and consistent with the
inherent capability of the plan area, as follows:
(a) Ecological sustainability. (1) Ecosystem Integrity. The plan
must include plan components, including standards or guidelines, to
maintain or restore the ecological integrity of terrestrial and aquatic
ecosystems and watersheds in the plan area, including plan components
to maintain or restore structure, function, composition, and
connectivity, taking into account:
(i) Interdependence of terrestrial and aquatic ecosystems in the
plan area.
(ii) Contributions of the plan area to ecological conditions within
the broader landscape influenced by the plan area.
(iii) Conditions in the broader landscape that may influence the
sustainability of resources and ecosystems within the plan area.
(iv) System drivers, including dominant ecological processes,
disturbance regimes, and stressors, such as natural succession,
wildland fire, invasive species, and climate change; and the ability of
terrestrial and aquatic ecosystems on the plan area to adapt to change.
(v) Wildland fire and opportunities to restore fire adapted
ecosystems.
(vi) Opportunities for landscape scale restoration.
(2) Air, soil, and water. The plan must include plan components,
including standards or guidelines, to maintain or restore:
(i) Air quality.
(ii) Soils and soil productivity, including guidance to reduce soil
erosion and sedimentation.
(iii) Water quality.
(iv) Water resources in the plan area, including lakes, streams,
and wetlands; ground water; public water supplies; sole source
aquifers; source water protection areas; and other sources of drinking
water (including guidance to prevent or mitigate detrimental changes in
quantity, quality, and availability).
(3) Riparian areas. (i) The plan must include plan components,
including standards or guidelines, to maintain or restore the
ecological integrity of riparian areas in the plan area, including plan
components to maintain or restore structure, function, composition, and
connectivity, taking into account:
(A) Water temperature and chemical composition;
(B) Blockages (uncharacteristic and characteristic) of water
courses;
(C) Deposits of sediment;
(D) Aquatic and terrestrial habitats;
(E) Ecological connectivity;
(F) Restoration needs; and
(G) Floodplain values and risk of flood loss.
(ii) Plans must establish width(s) for riparian management zones
around all lakes, perennial and intermittent streams, and open water
wetlands, within which the plan components required by paragraph
(a)(3)(i) of this section will apply, giving special attention to land
and vegetation for approximately 100 feet from the edges of all
perennial streams and lakes.
[[Page 21265]]
(A) Riparian management zone width(s) may vary based on ecological
or geomorphic factors or type of water body; and will apply unless
replaced by a site-specific delineation of the riparian area.
(B) Plan components must ensure that no management practices
causing detrimental changes in water temperature or chemical
composition, blockages of water courses, or deposits of sediment that
seriously and adversely affect water conditions or fish habitat shall
be permitted within the riparian management zones or the site-specific
delineated riparian areas.
(4) Best management practices for water quality. The Chief shall
establish requirements for national best management practices for water
quality in the Forest Service Directive System. Plan components must
ensure implementation of these practices.
(b) Social and economic sustainability. The plan must include plan
components, including standards or guidelines, to guide the plan area's
contribution to social and economic sustainability, taking into
account:
(1) Social, cultural, and economic conditions relevant to the area
influenced by the plan;
(2) Sustainable recreation; including recreation settings,
opportunities, and access; and scenic character;
(3) Multiple uses that contribute to local, regional, and national
economies in a sustainable manner;
(4) Ecosystem services;
(5) Cultural and historic resources and uses; and
(6) Opportunities to connect people with nature.
Sec. 219.9 Diversity of plant and animal communities.
This section adopts a complementary ecosystem and species-specific
approach to maintaining the diversity of plant and animal communities
and the persistence of native species in the plan area. Compliance with
the ecosystem requirements of paragraph (a) is intended to provide the
ecological conditions to both maintain the diversity of plant and
animal communities and support the persistence of most native species
in the plan area. Compliance with the requirements of paragraph (b) is
intended to provide for additional ecological conditions not otherwise
provided by compliance with paragraph (a) for individual species as set
forth in paragraph (b). The plan must provide for the diversity of
plant and animal communities, within Forest Service authority and
consistent with the inherent capability of the plan area, as follows:
(a) Ecosystem plan components. (1) Ecosystem integrity. As required
by Sec. 219.8(a), the plan must include plan components, including
standards or guidelines, to maintain or restore the ecological
integrity of terrestrial and aquatic ecosystems and watersheds in the
plan area, including plan components to maintain or restore their
structure, function, composition, and connectivity.
(2) Ecosystem diversity. The plan must include plan components,
including standards or guidelines, to maintain or restore the diversity
of ecosystems and habitat types throughout the plan area. In doing so,
the plan must include plan components to maintain or restore:
(i) Key characteristics associated with terrestrial and aquatic
ecosystem types;
(ii) Rare aquatic and terrestrial plant and animal communities; and
(iii) The diversity of native tree species similar to that existing
in the plan area.
(b) Additional, species-specific plan components. (1) The
responsible official shall determine whether or not the plan components
required by paragraph (a) of this section provide the ecological
conditions necessary to: contribute to the recovery of federally listed
threatened and endangered species, conserve proposed and candidate
species, and maintain a viable population of each species of
conservation concern within the plan area. If the responsible official
determines that the plan components required in paragraph (a) are
insufficient to provide such ecological conditions, then additional,
species-specific plan components, including standards or guidelines,
must be included in the plan to provide such ecological conditions in
the plan area.
(2) If the responsible official determines that it is beyond the
authority of the Forest Service or not within the inherent capability
of the plan area to maintain or restore the ecological conditions to
maintain a viable population of a species of conservation concern in
the plan area, then the responsible official shall:
(i) Document the basis for that determination (Sec. 219.14(a));
and
(ii) Include plan components, including standards or guidelines, to
maintain or restore ecological conditions within the plan area to
contribute to maintaining a viable population of the species within its
range. In providing such plan components, the responsible official
shall coordinate to the extent practicable with other Federal, State,
Tribal, and private land managers having management authority over
lands relevant to that population.
(c) Species of conservation concern. For purposes of this subpart,
a species of conservation concern is a species, other than federally
recognized threatened, endangered, proposed, or candidate species, that
is known to occur in the plan area and for which the regional forester
has determined that the best available scientific information indicates
substantial concern about the species' capability to persist over the
long-term in the plan area.
Sec. 219.10 Multiple use.
While meeting the requirements of Sec. Sec. 219.8 and 219.9, the
plan must provide for ecosystem services and multiple uses, including
outdoor recreation, range, timber, watershed, wildlife, and fish,
within Forest Service authority and the inherent capability of the plan
area as follows:
(a) Integrated resource management for multiple use. The plan must
include plan components, including standards or guidelines, for
integrated resource management to provide for ecosystem services and
multiple uses in the plan area. When developing plan components for
integrated resource management, to the extent relevant to the plan area
and the public participation process and the requirements of Sec. Sec.
219.7, 219.8, 219.9, and 219.11, the responsible official shall
consider:
(1) Aesthetic values, air quality, cultural and heritage resources,
ecosystem services, fish and wildlife species, forage, geologic
features, grazing and rangelands, habitat and habitat connectivity,
recreation settings and opportunities, riparian areas, scenery, soil,
surface and subsurface water quality, timber, trails, vegetation,
viewsheds, wilderness, and other relevant resources and uses.
(2) Renewable and nonrenewable energy and mineral resources.
(3) Appropriate placement and sustainable management of
infrastructure, such as recreational facilities and transportation and
utility corridors.
(4) Opportunities to coordinate with neighboring landowners to link
open spaces and take into account joint management objectives where
feasible and appropriate.
(5) Habitat conditions, subject to the requirements of Sec. 219.9,
for wildlife, fish, and plants commonly enjoyed and used by the public;
for hunting, fishing, trapping, gathering, observing, subsistence, and
other activities (in
[[Page 21266]]
collaboration with federally recognized Tribes, Alaska Native
Corporations, other Federal agencies, and State and local governments).
(6) Land status and ownership, use, and access patterns relevant to
the plan area.
(7) Reasonably foreseeable risks to ecological, social, and
economic sustainability.
(8) System drivers, including dominant ecological processes,
disturbance regimes, and stressors, such as natural succession,
wildland fire, invasive species, and climate change; and the ability of
the terrestrial and aquatic ecosystems on the plan area to adapt to
change (Sec. 219.8);
(9) Public water supplies and associated water quality.
(10) Opportunities to connect people with nature.
(b) Requirements for plan components for a new plan or plan
revision. (1) The plan must include plan components, including
standards or guidelines, to provide for:
(i) Sustainable recreation; including recreation settings,
opportunities, and access; and scenic character. Recreation
opportunities may include non-motorized, motorized, developed, and
dispersed recreation on land, water, and in the air.
(ii) Protection of cultural and historic resources.
(iii) Management of areas of tribal importance.
(iv) Protection of congressionally designated wilderness areas as
well as management of areas recommended for wilderness designation to
protect and maintain the ecological and social characteristics that
provide the basis for their suitability for wilderness designation.
(v) Protection of designated wild and scenic rivers as well as
management of rivers found eligible or determined suitable for the
National Wild and Scenic River system to protect the values that
provide the basis for their suitability for inclusion in the system.
(vi) Appropriate management of other designated areas or
recommended designated areas in the plan area, including research
natural areas.
(2) Other plan components for integrated resource management to
provide for multiple use as necessary.
Sec. 219.11 Timber requirements based on the NFMA.
While meeting the requirements of Sec. Sec. 219.8 through 219.10,
the plan must include plan components, including standards or
guidelines, and other plan content regarding timber management within
Forest Service authority and the inherent capability of the plan area,
as follows:
(a) Lands not suited for timber production. (1) The responsible
official shall identify lands within the plan area as not suited for
timber production if any one of the following factors applies:
(i) Statute, Executive order, or regulation prohibits timber
production on the land;
(ii) The Secretary of Agriculture or the Chief has withdrawn the
land from timber production;
(iii) Timber production would not be compatible with the
achievement of desired conditions and objectives established by the
plan for those lands;
(iv) The technology is not currently available for conducting
timber harvest without causing irreversible damage to soil, slope, or
other watershed conditions;
(v) There is no reasonable assurance that such lands can be
adequately restocked within 5 years after final regeneration harvest;
or
(vi) The land is not forest land.
(2) The responsible official shall review lands identified in the
plan as not suited for timber production at least once every 10 years,
or as otherwise prescribed by law, to determine whether conditions have
changed so that they have become suitable for timber production. As a
result of this 10-year review, the plan may be amended to identify any
such lands as suitable for timber production, if warranted by changed
conditions.
(b) Timber harvest for purposes of timber production. A plan that
identifies lands as suitable for timber production must include plan
components, including standards or guidelines, to guide timber harvest
for timber production or for other multiple use purposes on such lands.
(c) Timber harvest for purposes other than timber production.
Except as provided in paragraph (d) of this section, the plan may
include plan components to allow for timber harvest for purposes other
than timber production throughout the plan area, or portions of the
plan area, as a tool to assist in achieving or maintaining one or more
applicable desired conditions or objectives of the plan in order to
protect other multiple-use values, and for salvage, sanitation, or
public health or safety. Examples of using timber harvest to protect
other multiple use values may include improving wildlife or fish
habitat, thinning to reduce fire risk, or restoring meadow or savanna
ecosystems where trees have invaded.
(d) Limitations on timber harvest. Whether timber harvest would be
for the purposes of timber production or other purposes, plan
components, including standards or guidelines, must ensure the
following:
(1) No timber harvest for the purposes of timber production may
occur on lands not suited for timber production.
(2) Timber harvest would occur only where soil, slope, or other
watershed conditions would not be irreversibly damaged;
(3) Timber harvest would be carried out in a manner consistent with
the protection of soil, watershed, fish, wildlife, recreation, and
aesthetic resources.
(4) Where plan components will allow clearcutting, seed tree
cutting, shelterwood cutting, or other cuts designed to regenerate an
even-aged stand of timber, the plan must include standards limiting the
maximize size for openings that may be cut in one harvest operation,
according to geographic areas, forest types, or other suitable
classifications. Except as provided in paragraphs (d)(4)(i) through
(iii) of this section, this limit may not exceed 60 acres for the
Douglas-fir forest type of California, Oregon, and Washington; 80 acres
for the southern yellow pine types of Alabama, Arkansas, Georgia,
Florida, Louisiana, Mississippi, North Carolina, South Carolina,
Oklahoma, and Texas; 100 acres for the hemlock-Sitka spruce forest type
of coastal Alaska; and 40 acres for all other forest types.
(i) Plan standards may allow for openings larger than those
specified in paragraph (d)(4) of this section to be cut in one harvest
operation where the responsible official determines that larger harvest
openings are necessary to help achieve desired ecological conditions in
the plan area. If so, standards for exceptions shall include the
particular conditions under which the larger size is permitted and must
set a maximum size permitted under those conditions.
(ii) Plan components may allow for size limits exceeding those
established in paragraphs (d)(4) and (d)(4)(i) of this section on an
individual timber sale basis after 60 days public notice and review by
the regional forester.
(iii) The plan maximum size for openings to be cut in one harvest
operation shall not apply to the size of openings harvested as a result
of natural catastrophic conditions such as fire, insect and disease
attack, or windstorm (16 U.S.C. 1604(g)(3)(F)(iv)).
(5) Timber will be harvested from NFS lands only where such harvest
would comply with the resource protections set out in sections
6(g)(3)(E) and (F) of the NFMA (16 U.S.C. 1604(g)(3)(E) and (F)). Some
of these
[[Page 21267]]
requirements are listed in paragraphs (d)(2) to (d)(4) of this section.
(6) The quantity of timber that may be sold from the national
forest is limited to an amount equal to or less than that which can be
removed from such forest annually in perpetuity on a sustained-yield
basis. This limit may be measured on a decadal basis. The plan may
provide for departures from this limit as provided by the NFMA when
departure would be consistent with the plan's desired conditions and
objectives. Exceptions for departure from this limit on the quantity
sold may be made only after a public review and comment period of at
least 90 days. The Chief 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, and
exceptions, consistent with 16 U.S.C. 1611.
(7) The regeneration harvest of even-aged stands of trees is
limited to stands that generally have reached the culmination of mean
annual increment of growth. This requirement would apply only to
regeneration harvest of even-aged stands on lands identified as
suitable for timber production and where timber production is the
primary purpose for the harvest. Plan components may allow for
exceptions, set out in 16 U.S.C. 1604(m), only if such harvest is
consistent with the other plan components of the land management plan.
Sec. 219.12 Monitoring.
(a) Plan monitoring program. (1) The responsible official shall
develop a monitoring program for the plan area and include it in the
plan. Monitoring information should enable the responsible official to
determine if a change in plan components or other plan content that
guide management of resources on the plan area may be needed. The
development of the plan monitoring program must be coordinated with the
regional forester and Forest Service State and Private Forestry and
Research and Development. Responsible officials for two or more
administrative units may jointly develop their plan monitoring
programs.
(2) The plan monitoring program sets out the plan monitoring
questions and associated indicators. Monitoring questions and
associated indicators must be designed to inform the management of
resources on the plan area, including by testing relevant assumptions,
tracking relevant changes, and measuring management effectiveness and
progress toward achieving or maintaining the plan's desired conditions
or objectives. Questions and indicators should be based on one or more
desired conditions, objectives, or other plan components in the plan,
but not every plan component needs to have a corresponding monitoring
question.
(3) The plan monitoring program should be coordinated and
integrated with relevant broader-scale monitoring strategies (paragraph
(b) of this section) to ensure that monitoring is complementary and
efficient, and that information is gathered at scales appropriate to
the monitoring questions.
(4) Subject to the requirements of paragraph (a)(5) of this
section, the responsible official has the discretion to set the scope
and scale of the plan monitoring program, after considering:
(i) Information needs identified through the planning process as
most critical for informed management of resources on the plan area;
and
(ii) The financial and technical capabilities of the Agency.
(5) Each plan monitoring program must contain one or more
monitoring questions and associated indicators addressing each of the
following:
(i) The status of select watershed conditions.
(ii) The status of select ecological conditions including key
characteristics of terrestrial and aquatic ecosystems.
(iii) The status of focal species to assess the ecological
conditions required under Sec. 219.9.
(iv) The status of a select set of the ecological conditions
required under Sec. 219.9 to contribute to the recovery of federally
listed threatened and endangered species, conserve proposed and
candidate species, and maintain a viable population of each species of
conservation concern.
(v) The status of visitor use, visitor satisfaction, and progress
toward meeting recreation objectives.
(vi) Measurable changes on the plan area related to climate change
and other stressors that may be affecting the plan area.
(vii) Progress toward meeting the desired conditions and objectives
in the plan, including for providing multiple use opportunities.
(viii) The effects of each management system to determine that they
do not substantially and permanently impair the productivity of the
land (16 U.S.C. 1604(g)(3)(C)).
(6) A range of monitoring techniques may be used to carry out the
monitoring requirements in paragraph (a)(5) of this section.
(7) This section does not apply to projects or activities. Project
and activity monitoring may be used to gather information for the plan
monitoring program, and information gathered through plan monitoring
may be used to inform development of projects or activities. But, the
monitoring requirements of this section are not a prerequisite for
making a decision to carry out a project or activity.
(b) Broader-scale monitoring strategies. (1) The regional forester
shall develop a broader-scale monitoring strategy for plan monitoring
questions that can best be answered at a geographic scale broader than
one plan area.
(2) When developing a monitoring strategy, the regional forester
shall coordinate with the relevant responsible officials, Forest
Service State and Private Forestry and Research and Development,
partners, and the public. Two or more regional foresters may jointly
develop broader-scale monitoring strategies.
(3) Each regional forester shall ensure that the broader-scale
monitoring strategy is within the financial and technical capabilities
of the region and complements other ongoing monitoring efforts.
(4) Projects and activities may be carried out under plans
developed, amended, or revised under this part before the regional
forester has developed a broader-scale monitoring strategy.
(c) Timing and process for developing the plan monitoring program
and broader-scale strategies. (1) The responsible official shall
develop the plan monitoring program as part of the planning process for
a new plan development or plan revision. Where a plan's monitoring
program has been developed under the provisions of a prior planning
regulation and the unit has not initiated plan revision under this
part, the responsible official shall modify the plan monitoring program
within 4 years of the effective date of this part, or as soon as
practicable, to meet the requirements of this section.
(2) The regional forester shall develop a broader-scale monitoring
strategy as soon as practicable.
(3) To the extent practicable, appropriate, and relevant to the
monitoring questions in the plan monitoring program, plan monitoring
programs and broader-scale strategies must be designed to take into
account:
(i) Existing national and regional inventory, monitoring, and
research programs of the Agency, including from the NFS, State and
Private Forestry, and Research and Development, and of other
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governmental and non-governmental entities;
(ii) Opportunities to design and carry out multi-party monitoring
with other Forest Service units, Federal, State or local government
agencies, scientists, partners, and members of the public; and
(iii) Opportunities to design and carry out monitoring with
federally recognized Indian Tribes and Alaska Native Corporations.
(d) Biennial evaluation of the monitoring information. (1) The
responsible official shall conduct a biennial evaluation of new
information gathered through the plan monitoring program and relevant
information from the broader-scale strategy, and shall issue a written
report of the evaluation and make it available to the public.
(i) The first monitoring evaluation for a plan or plan revision
developed in accordance with this subpart must be completed no later
than 2 years from the effective date of plan decision.
(ii) Where the monitoring program developed under the provisions of
a prior planning regulation has been modified to meet the requirements
of paragraph (c)(1) of this section, the first monitoring evaluation
must be completed no later than 2 years from the date the change takes
effect.
(iii) The monitoring evaluation report may be postponed for 1 year
in case of exigencies, but notice of the postponement must be provided
to the public prior to the date the report is due for that year (Sec.
219.16(c)(6)).
(2) The monitoring evaluation report must indicate whether or not a
change to the plan, management activities, or the monitoring program,
or a new assessment, may be warranted based on the new information. The
monitoring evaluation report must be used to inform adaptive management
of the plan area.
(3) The monitoring evaluation report may be incorporated into other
planning documents if the responsible official has initiated a plan
revision or relevant amendment.
(4) The monitoring evaluation report is not a decision document
representing final Agency action, and is not subject to the objection
provisions of subpart B.
Sec. 219.13 Plan amendment and administrative changes.
(a) Plan amendment. A plan may be amended at any time. Plan
amendments may be broad or narrow, depending on the need for change,
and should be used to keep plans current and help units adapt to new
information or changing conditions. The responsible official has the
discretion to determine whether and how to amend the plan. Except as
provided by paragraph (c) of this section, a plan amendment is required
to add, modify, or remove one or more plan components, or to change how
or where one or more plan components apply to all or part of the plan
area (including management areas or geographic areas).
(b) Amendment process. The responsible official shall:
(1) Base an amendment on a preliminary identification of the need
to change the plan. The preliminary identification of the need to
change the plan may be based on a new assessment; a monitoring report;
or other documentation of new information, changed conditions, or
changed circumstances. When a plan amendment is made together with, and
only applies to, a project or activity decision, the analysis prepared
for the project or activity may serve as the documentation for the
preliminary identification of the need to change the plan;
(2) Provide opportunities for public participation as required in
Sec. 219.4 and public notification as required in Sec. 219.16. The
responsible official may combine processes and associated public
notifications where appropriate, considering the scope and scale of the
need to change the plan; and
(3) Amend the plan consistent with Forest Service NEPA procedures.
The appropriate NEPA documentation for an amendment may be an
environmental impact statement, an environmental assessment, or a
categorical exclusion, depending upon the scope and scale of the
amendment and its likely effects. A proposed amendment that may create
a significant environmental effect and thus require preparation of an
environmental impact statement is considered a significant change in
the plan for the purposes of the NFMA.
(c) Administrative changes. An administrative change is any change
to a plan that is not a plan amendment or plan revision. Administrative
changes include corrections of clerical errors to any part of the plan,
conformance of the plan to new statutory or regulatory requirements, or
changes to other content in the plan (Sec. 219.7(f)).
(1) A substantive change to the monitoring program made outside of
the process for plan revision or amendment may be made only after
notice to the public of the intended change and consideration of public
comment (Sec. 219.16(c)(6)).
(2) All other administrative changes may be made following public
notice (Sec. 219.16(c)(6)).
Sec. 219.14 Decision document and planning records.
(a) Decision document. The responsible official shall record
approval of a new plan, plan amendment, or revision in a decision
document prepared according to Forest Service NEPA procedures (36 CFR
220). The decision document must include:
(1) The rationale for approval;
(2) An explanation of how the plan components meet the
sustainability requirements of Sec. 219.8, the diversity requirements
of Sec. 219.9, the multiple use requirements of Sec. 219.10, and the
timber requirements of Sec. 219.11;
(3) A statement of how the plan, plan amendment, or plan revision
applies to approved projects and activities (Sec. 219.15);
(4) The documentation of how the best available scientific
information was used to inform planning, the plan components, and other
plan content, including the plan monitoring program (Sec. 219.3);
(5) The concurrence by the appropriate research station director
with any part of the plan applicable to any experimental forests or
experimental ranges (Sec. 219.2(b)(4)); and
(6) The effective date of the plan, amendment, or revision.
(b) Planning records. (1) The responsible official shall keep the
following documents readily accessible to the public by posting them
online and through other means: assessment reports (Sec. 219.6); the
plan, including the monitoring program; the proposed plan, plan
amendment, or plan revision; public notices and environmental documents
associated with a plan; plan decision documents; and monitoring
evaluation reports (Sec. 219.12).
(2) The planning record includes documents that support analytical
conclusions made and alternatives considered throughout the planning
process. The responsible official shall make the planning record
available at the office where the plan, plan amendment, or plan
revision was developed.
Sec. 219.15 Project and activity consistency with the plan.
(a) Application to existing authorizations and approved projects or
activities. Every decision document approving a plan, plan amendment,
or plan revision must state whether authorizations of occupancy and use
made before the decision document may proceed unchanged. If a plan
decision document does not expressly allow such occupancy and use, the
permit, contract, and other authorizing instrument for the use and
occupancy must be made
[[Page 21269]]
consistent with the plan, plan amendment, or plan revision as soon as
practicable, as provided in paragraph (d) of this section, subject to
valid existing rights.
(b) Application to projects or activities authorized after plan
decision. Projects and activities authorized after approval of a plan,
plan amendment, or plan revision must be consistent with the plan as
provided in paragraph (d) of this section.
(c) Resolving inconsistency. When a proposed project or activity
would not be consistent with the applicable plan components, the
responsible official shall take one of the following steps, subject to
valid existing rights:
(1) Modify the proposed project or activity to make it consistent
with the applicable plan components;
(2) Reject the proposal or terminate the project or activity;
(3) Amend the plan so that the project or activity will be
consistent with the plan as amended; or
(4) Amend the plan contemporaneously with the approval of the
project or activity so that the project or activity will be consistent
with the plan as amended. This amendment may be limited to apply only
to the project or activity.
(d) Determining consistency. Every project and activity must be
consistent with the applicable plan components. A project or activity
approval document must describe how the project or activity is
consistent with applicable plan components developed or revised in
conformance with this part by meeting the following criteria:
(1) Goals, desired conditions, and objectives. The project or
activity contributes to the maintenance or attainment of one or more
goals, desired conditions, or objectives, or does not foreclose the
opportunity to maintain or achieve any goals, desired conditions, or
objectives, over the long term.
(2) Standards. The project or activity complies with applicable
standards.
(3) Guidelines. The project or activity:
(i) Complies with applicable guidelines as set out in the plan; or
(ii) Is designed in a way that is as effective in achieving the
purpose of the applicable guidelines (Sec. 219.7(e)(1)(iv)).
(4) Suitability. A project or activity would occur in an area:
(i) That the plan identifies as suitable for that type of project
or activity; or
(ii) For which the plan is silent with respect to its suitability
for that type of project or activity.
(e) Consistency of resource plans within the planning area with the
land management plan. Any resource plans (for example, travel
management plans) developed by the Forest Service that apply to the
resources or land areas within the planning area must be consistent
with the plan components. Resource plans developed prior to plan
decision must be evaluated for consistency with the plan and amended if
necessary.
Sec. 219.16 Public notifications.
The following public notification requirements apply to plan
development, amendment, or revision. Notifications may be combined
where appropriate.
(a) When formal public notification is required. Public
notification must be provided as follows:
(1) To initiate the development of a proposed plan, plan amendment,
or plan revision;
(2) To invite comments on a proposed plan, plan amendment, or plan
revision, and associated environmental analysis. For a new plan, plan
amendment, or a plan revision for which a draft environmental impact
statement (EIS) is prepared, the comment period is at least 90 days.
For an amendment for which a draft EIS is not prepared, the comment
period is at least 30 days;
(3) To begin the objection period for a plan, plan amendment, or
plan revision before approval (Sec. 219.52);
(4) To approve a final plan, plan amendment, or plan revision; or
(5) To announce whenever a plan, plan amendment, or plan revision
process initiated under the provisions of a previous planning
regulation will be conformed to meet the provisions of this part (Sec.
219.17(b)(3)).
(b) Project or activity plan amendments. When a plan amendment is
approved in a decision document approving a project or activity and the
amendment applies only to the project or activity, the notification
requirements of 36 CFR part 215 or part 218, subpart A, applies instead
of this section.
(c) How public notice is provided. The responsible official should
use contemporary tools to provide notice to the public. At a minimum,
all public notifications required by this part must be posted online,
and:
(1) When the Chief, the Under Secretary, or the Secretary is the
responsible official, notice must be published in the Federal Register.
(2) For a new plan or plan revision, when an official other than
the Chief, the Under Secretary, or the Secretary is the responsible
official, notice must be published in the Federal Register and the
applicable newspaper(s) of record.
(3) When the notice is for the purpose of inviting comments on a
proposed plan, plan amendment, or plan revision for which a draft EIS
is prepared, the Environmental Protection Agency (EPA) Federal Register
notice of availability of a draft EIS shall serve as the required
Federal Register notice.
(4) For a plan amendment when an official other than the Chief, the
Under Secretary, or the Secretary is the responsible official, and for
which a draft EIS is not prepared, notices must be published in the
newspaper(s) of record.
(5) If a plan, plan amendment, or plan revision applies to two or
more units, notices must be published in the Federal Register and the
newspaper(s) of record for the applicable units.
(6) Additional public notice of administrative changes, changes to
the monitoring program, opportunities to provide information for
assessments, assessment reports, monitoring evaluation reports, or
other notices not listed in paragraph (a) of this section may be made
in any way the responsible official deems appropriate.
(d) Content of public notices. Public notices required by this
section except for notices applicable to paragraph (c)(3) of this
section, must clearly describe the action subject to notice and the
nature and scope of the decisions to be made; identify the responsible
official; describe when, where, and how the responsible official will
provide opportunities for the public to participate in the planning
process; and explain how to obtain additional information.
Sec. 219.17 Effective dates and transition.
(a) Effective dates. (1) A plan or plan revision is effective 30
days after publication of notice of its approval.
(2) Except as provided in paragraph (a)(3) of this section, a plan
amendment for which an environmental impact statement (EIS) has been
prepared is effective 30 days after publication of notice of its
approval; a plan amendment for which an EIS has not been prepared is
effective immediately.
(3) A plan amendment that applies to only one specific project or
activity is effective on the date the project may be implemented in
accordance with administrative review regulations at 36 CFR parts 215
and 218.
(b) Plan amendment and plan revision transition. For the purposes
of this section, initiation means that the Agency has issued a notice
of intent or other notice announcing the beginning of the process to
develop a proposed plan, plan amendment, or plan revision.
(1) Initiating plan development and plan revisions. Plan
development and plan revisions initiated after May 9,
[[Page 21270]]
2012 must conform to the requirements of this part.
(2) Initiating plan amendments. All plan amendments initiated after
May 9, 2012 are subject to the objection process in subpart B of this
part. With respect to plans approved or revised under a prior planning
regulation, including the transition provisions of the reinstated 2000
rule (36 CFR part 209, published at 36 CFR parts 200 to 209, revised as
of July 1, 2010), plan amendments may be initiated under the provisions
of the prior planning regulation for 3 years after May 9, 2012, and may
be completed and approved under those provisions (except for the
optional appeal procedures of the prior planning regulation); or may be
initiated, completed, and approved under the requirements of this part.
After the 3-year transition period, all plan amendments must be
initiated, completed, and approved under the requirements of this part.
(3) Plan development, plan amendments, or plan revisions initiated
before this part. For plan development, plan amendments, or plan
revisions that were initiated before May 9, 2012, the responsible
official may complete and approve the plan, plan amendment, or plan
revision in conformance with the provisions of the prior planning
regulation, including its transition provisions (36 CFR part 209,
published at 36 CFR parts 200 to 209, revised as of July 1, 2010), or
may conform the plan, plan amendment, or plan revision to the
requirements of this part. If the responsible official chooses to
complete an ongoing planning process under the provisions of the prior
planning regulation, but chooses to allow for an objection rather than
an administrative appeal, the objection process in subpart B of this
part shall apply. When the responsible official chooses to conform an
ongoing planning process to this part, public notice must be made
(Sec. 219.16(a)(5)). An objection process may be chosen only if the
public is provided the opportunity to comment on a proposed plan, plan
amendment, or plan revision, and associated environmental analysis.
(c) Plans developed, amended, or revised under a prior planning
regulation. This part supersedes any prior planning regulation. No
obligations remain from any prior planning regulation, except those
that are specifically included in a unit's existing plan. Existing
plans will remain in effect until revised. This part does not compel a
change to any existing plan, except as required in Sec. 219.12(c)(1).
None of the requirements of this part apply to projects or activities
on units with plans developed or revised under a prior planning rule
until the plan is revised under this part, except that projects or
activities on such units must comply with the consistency requirement
of Sec. 219.15 with respect to any amendments that are developed and
approved pursuant to this part.
Sec. 219.18 Severability.
In the event that any specific provision of this part is deemed by
a court to be invalid, the remaining provisions shall remain in effect.
Sec. 219.19 Definitions.
Definitions of the special terms used in this subpart are set out
as follows.
Alaska Native Corporation. One of the regional, urban, and village
native corporations formed under the Alaska Native Claims Settlement
Act of 1971.
Assessment. For the purposes of this subpart, an assessment is the
identification and evaluation of existing information to support land
management planning. Assessments are not decisionmaking documents, but
provide current information on select topics relevant to the plan area,
in the context of the broader landscape.
Best management practices for water quality (BMPs). Methods,
measures, or practices selected by an agency to meet its nonpoint
source control needs. BMPs include but are not limited to structural
and nonstructural controls and operation and maintenance procedures.
BMPs can be applied before, during, and after pollution-producing
activities to reduce or eliminate the introduction of pollutants into
receiving waters.
Candidate species. (1) For U.S. Fish and Wildlife Service candidate
species, a species for which the U.S. Fish and Wildlife Service
possesses sufficient information on vulnerability and threats to
support a proposal to list as endangered or threatened, but for which
no proposed rule has yet been published by the U.S. Fish and Wildlife
Service.
(2) For National Marine Fisheries Service candidate species, a
species that is:
(i) The subject of a petition to list and for which the National
Marine Fisheries Service has determined that listing may be warranted,
pursuant to section 4(b)(3)(A) of the Endangered Species Act (16 U.S.C.
1533(b)(3)(A)), or
(ii) Not the subject of a petition but for which the National
Marine Fisheries Service has announced in the Federal Register the
initiation of a status review.
Collaboration or collaborative process. A structured manner in
which a collection of people with diverse interests share knowledge,
ideas, and resources while working together in an inclusive and
cooperative manner toward a common purpose. Collaboration, in the
context of this part, falls within the full spectrum of public
engagement described in the Council on Environmental Quality's
publication of October, 2007: Collaboration in NEPA--A Handbook for
NEPA Practitioners.
Connectivity. Ecological conditions that exist at several spatial
and temporal scales that provide landscape linkages that permit the
exchange of flow, sediments, and nutrients; the daily and seasonal
movements of animals within home ranges; the dispersal and genetic
interchange between populations; and the long distance range shifts of
species, such as in response to climate change.
Conservation. The protection, preservation, management, or
restoration of natural environments, ecological communities, and
species.
Conserve. For purposes of Sec. 219.9, to protect, preserve,
manage, or restore natural environments and ecological communities to
potentially avoid federally listing of proposed and candidate species.
Culmination of mean annual increment of growth. See mean annual
increment of growth.
Designated area. An area or feature identified and managed to
maintain its unique special character or purpose. Some categories of
designated areas may be designated only by statute and some categories
may be established administratively in the land management planning
process or by other administrative processes of the Federal executive
branch. Examples of statutorily designated areas are national heritage
areas, national recreational areas, national scenic trails, wild and
scenic rivers, wilderness areas, and wilderness study areas. Examples
of administratively designated areas are experimental forests, research
natural areas, scenic byways, botanical areas, and significant caves.
Disturbance. Any relatively discrete event in time that disrupts
ecosystem, watershed, community, or species population structure and/or
function and changes resources, substrate availability, or the physical
environment.
Disturbance regime. A description of the characteristic types of
disturbance on a given landscape; the frequency, severity, and size
distribution of these characteristic disturbance types; and their
interactions.
Ecological conditions. The biological and physical environment that
can affect the diversity of plant and animal communities, the
persistence of native species, and the productive capacity of
ecological systems. Ecological
[[Page 21271]]
conditions include habitat and other influences on species and the
environment. Examples of ecological conditions include the abundance
and distribution of aquatic and terrestrial habitats, connectivity,
roads and other structural developments, human uses, and invasive
species.
Ecological integrity. The quality or condition of an ecosystem when
its dominant ecological characteristics (for example, composition,
structure, function, connectivity, and species composition and
diversity) occur within the natural range of variation and can
withstand and recover from most perturbations imposed by natural
environmental dynamics or human influence.
Ecological sustainability. See sustainability.
Ecological system. See ecosystem.
Economic sustainability. See sustainability.
Ecosystem. A spatially explicit, relatively homogeneous unit of the
Earth that includes all interacting organisms and elements of the
abiotic environment within its boundaries. An ecosystem is commonly
described in terms of its:
(1) Composition. The biological elements within the different
levels of biological organization, from genes and species to
communities and ecosystems.
(2) Structure. The organization and physical arrangement of
biological elements such as, snags and down woody debris, vertical and
horizontal distribution of vegetation, stream habitat complexity,
landscape pattern, and connectivity.
(3) Function. Ecological processes that sustain composition and
structure, such as energy flow, nutrient cycling and retention, soil
development and retention, predation and herbivory, and natural
disturbances such as wind, fire, and floods.
(4) Connectivity. (see connectivity above).
Ecosystem diversity. The variety and relative extent of ecosystems.
Ecosystem services. Benefits people obtain from ecosystems,
including:
(1) Provisioning services, such as clean air and fresh water,
energy, fuel, forage, fiber, and minerals;
(2) Regulating services, such as long term storage of carbon;
climate regulation; water filtration, purification, and storage; soil
stabilization; flood control; and disease regulation;
(3) Supporting services, such as pollination, seed dispersal, soil
formation, and nutrient cycling; and
(4) Cultural services, such as educational, aesthetic, spiritual
and cultural heritage values, recreational experiences and tourism
opportunities.
Environmental assessment (EA). See definition in Sec. 219.62.
Environmental document. For the purposes of this part: an
environmental assessment, environmental impact statement, finding of no
significant impact, categorical exclusion, and notice of intent to
prepare an environmental impact statement.
Environmental impact statement (EIS). See definition in Sec.
219.62.
Even-aged stand. A stand of trees composed of a single age class.
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 under the
Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
Focal species. A small subset of species whose status permits
inference to the integrity of the larger ecological system to which it
belongs and provides meaningful information regarding the effectiveness
of the plan in maintaining or restoring the ecological conditions to
maintain the diversity of plant and animal communities in the plan
area. Focal species would be commonly selected on the basis of their
functional role in ecosystems.
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 non-forest 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.
Geographic area. A spatially contiguous land area identified within
the planning area. A geographic area may overlap with a management
area.
Inherent capability of the plan area. The ecological capacity or
ecological potential of an area characterized by the interrelationship
of its physical elements, its climatic regime, and natural
disturbances.
Integrated resource management. Multiple use management that
recognizes the interdependence of ecological resources and is based on
the need for integrated consideration of ecological, social, and
economic factors.
Landscape. A defined area irrespective of ownership or other
artificial boundaries, such as a spatial mosaic of terrestrial and
aquatic ecosystems, landforms, and plant communities, repeated in
similar form throughout such a defined area.
Maintain. In reference to an ecological condition: To keep in
existence or continuance of the desired ecological condition in terms
of its desired composition, structure, and processes. Depending upon
the circumstance, ecological conditions may be maintained by active or
passive management or both.
Management area. A land area identified within the planning area
that has the same set of applicable plan components. A management area
does not have to be spatially contiguous.
Management system. For purposes of this subpart, a timber
management system including even-aged management and uneven-aged
management.
Mean annual increment of growth and culmination of mean annual
increment of growth. Mean annual increment of growth is the total
increment of increase of volume of a stand (standing crop plus
thinnings) up to a given age divided by that age. Culmination of mean
annual increment of growth is the age in the growth cycle of an even-
aged stand at which the average annual rate of increase of volume is at
a maximum. In land management plans, mean annual increment is expressed
in cubic measure and is based on the expected growth of stands,
according to intensities and utilization guidelines in the plan.
Monitoring. A systematic process of collecting information to
evaluate effects of actions or changes in conditions or relationships.
Multiple use. The management of all the various renewable surface
resources of the NFS so that they are utilized in the combination that
will best meet the needs of the American people; making the most
judicious use of the land for some or all of these resources or related
services over areas large enough to provide sufficient latitude for
periodic adjustments in use to conform to changing needs and
conditions; that some land will be used for less than all of the
resources; and harmonious and coordinated management of the various
resources, each with the other, without impairment of the productivity
of the land, with consideration being given to the relative values of
the various resources, and not necessarily the combination of uses that
will give the greatest dollar return or the greatest unit output,
consistent with the Multiple-Use Sustained-Yield Act of 1960 (16 U.S.C.
528-531).
National Forest System. See definition in Sec. 219.62.
Native knowledge. A way of knowing or understanding the world,
including traditional ecological and social knowledge of the
environment derived from multiple generations of indigenous peoples'
interactions, observations, and
[[Page 21272]]
experiences with their ecological systems. Native knowledge is place-
based and culture-based knowledge in which people learn to live in and
adapt to their own environment through interactions, observations, and
experiences with their ecological system. This knowledge is generally
not solely gained, developed by, or retained by individuals, but is
rather accumulated over successive generations and is expressed through
oral traditions, ceremonies, stories, dances, songs, art, and other
means within a cultural context.
Native species. An organism that was historically or is present in
a particular ecosystem as a result of natural migratory or evolutionary
processes; and not as a result of an accidental or deliberate
introduction into that ecosystem. An organism's presence and evolution
(adaptation) in an area are determined by climate, soil, and other
biotic and abiotic factors.
Newspaper(s) of record. See definition in Sec. 219.62.
Objection. See definition in Sec. 219.62.
Online. See definition in Sec. 219.62.
Participation. Activities that include a wide range of public
involvement tools and processes, such as collaboration, public
meetings, open houses, workshops, and comment periods.
Persistence. Continued existence.
Plan area. The NFS lands covered by a plan.
Plan or land management plan. A document or set of documents that
provide management direction for an administrative unit of the NFS
developed under the requirements of this part or a prior planning rule.
Plant and animal community. A naturally occurring assemblage of
plant and animal species living within a defined area or habitat.
Productivity. The capacity of NFS lands and their ecological
systems to provide the various renewable resources in certain amounts
in perpetuity. For the purposes of this subpart, productivity is an
ecological term, not an economic term.
Project. An organized effort to achieve an outcome on NFS lands
identified by location, tasks, outputs, effects, times, and
responsibilities for execution.
Proposed Species. Any species of fish, wildlife, or plant that is
proposed by the U.S. Fish and Wildlife Service or the National Marine
Fisheries Service in the Federal Register to be listed under Section 4
of the Endangered Species Act.
Recovery. For the purposes of this subpart, and with respect to
threatened or endangered species: The improvement in the status of a
listed species to the point at which listing as federally endangered or
threatened is no longer appropriate.
Recreation. See Sustainable recreation.
Recreation opportunity. An opportunity to participate in a specific
recreation activity in a particular recreation setting to enjoy desired
recreation experiences and other benefits that accrue. Recreation
opportunities include non-motorized, motorized, developed, and
dispersed recreation on land, water, and in the air.
Recreation setting. The social, managerial, and physical attributes
of a place that, when combined, provide a distinct set of recreation
opportunities. The Forest Service uses the recreation opportunity
spectrum to define recreation settings and categorize them into six
distinct classes: primitive, semi-primitive non-motorized, semi-
primitive motorized, roaded natural, rural, and urban.
Responsible official. See definition in Sec. 219.62.
Restoration. The process of assisting the recovery of an ecosystem
that has been degraded, damaged, or destroyed. Ecological restoration
focuses on reestablishing the composition, structure, pattern, and
ecological processes necessary to facilitate terrestrial and aquatic
ecosystems sustainability, resilience, and health under current and
future conditions.
Restore. To renew by the process of restoration (see restoration).
Riparian Areas. Three-dimensional ecotones of interaction that
include terrestrial and aquatic ecosystems that extend down into the
groundwater, up above the canopy, outward across the floodplain, up the
near-slopes that drain to the water, laterally into the terrestrial
ecosystem, and along the water course at variable widths.
Riparian management zone. Portions of a watershed where riparian-
dependent resources receive primary emphasis, and for which plans
include plan components to maintain or restore riparian functions and
ecological functions.
Risk. A combination of the likelihood that a negative outcome will
occur and the severity of the subsequent negative consequences.
Scenic character. A combination of the physical, biological, and
cultural images that gives an area its scenic identity and contributes
to its sense of place. Scenic character provides a frame of reference
from which to determine scenic attractiveness and to measure scenic
integrity.
Social sustainability. See sustainability.
Sole source aquifer. Underground water supply designated by the
Environmental Protection Agency (EPA) as the ``sole or principle''
source of drinking water for an area as established under section
1424(e) of the Safe Drinking Water Act (42 U.S.C. 300h-3(e)).
Source water protection areas. The area delineated by a State or
Tribe for a public water system (PWS) or including numerous PWSs,
whether the source is ground water or surface water or both, as part of
a State or tribal source water assessment and protection program (SWAP)
approved by Environmental Protection Agency under section 1453 of the
Safe Drinking Water Act (42 U.S.C. 300h-3(e)).
Stressors. For the purposes of this subpart: Factors that may
directly or indirectly degrade or impair ecosystem composition,
structure or ecological process in a manner that may impair its
ecological integrity, such as an invasive species, loss of
connectivity, or the disruption of a natural disturbance regime.
Sustainability. The capability to meet the needs of the present
generation without compromising the ability of future generations to
meet their needs. For purposes of this part, ``ecological
sustainability'' refers to the capability of ecosystems to maintain
ecological integrity; ``economic sustainability'' refers to the
capability of society to produce and consume or otherwise benefit from
goods and services including contributions to jobs and market and
nonmarket benefits; and ``social sustainability'' refers to the
capability of society to support the network of relationships,
traditions, culture, and activities that connect people to the land and
to one another, and support vibrant communities.
Sustainable recreation. The set of recreation settings and
opportunities on the National Forest System that is ecologically,
economically, and socially sustainable for present and future
generations.
Timber harvest. The removal of trees for wood fiber use and other
multiple-use purposes.
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.
Viable population. A population of a species that continues to
persist over the long term with sufficient distribution to be resilient
and adaptable to stressors and likely future environments.
Watershed. A region or land area drained by a single stream, river,
or drainage network; a drainage basin.
[[Page 21273]]
Watershed condition. The state of a watershed based on physical and
biogeochemical characteristics and processes.
Wild and scenic river. A river designated by Congress as part of
the National Wild and Scenic Rivers System that was established in the
Wild and Scenic Rivers Act of 1968 (16 U.S.C. 1271 (note), 1271-1287).
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).
Subpart B--Pre-Decisional Administrative Review Process
Sec. 219.50 Purpose and scope.
This subpart establishes a pre-decisional administrative review
(hereinafter referred to as objection) process for plans, plan
amendments, or plan revisions. This process gives an individual or
entity an opportunity for an independent Forest Service review and
resolution of issues before the approval of a plan, plan amendment, or
plan revision. This subpart identifies who may file objections to a
plan, plan amendment, or plan revision; the responsibilities of the
participants in an objection; and the procedures that apply to the
review of the objection.
Sec. 219.51 Plans, plan amendments, or plan revisions not subject to
objection.
(a) A plan, plan amendment, or plan revision is not subject to
objection when the responsible official receives no substantive formal
comments (Sec. 219.62) on that proposal during the opportunities for
public comment (Sec. 219.53(a)).
(b) Plans, plan amendments, or plan revisions proposed by the
Secretary of Agriculture or the Under Secretary for Natural Resources
and Environment are not subject to the procedures set forth in this
section. A decision by the Secretary or Under Secretary constitutes the
final administrative determination of the U.S. Department of
Agriculture.
(c) A plan, plan amendment, or plan revision is not subject to
objection under this subpart if another administrative review process
is used consistent with Sec. 219.59.
(d) When a plan, plan amendment, or plan revision is not subject to
objection under this subpart, the responsible official shall include an
explanation with the signed decision document.
Sec. 219.52 Giving notice of a plan, plan amendment, or plan revision
subject to objection before approval.
(a) The responsible official shall disclose during the NEPA scoping
process and in the appropriate NEPA documents that the proposed plan,
plan amendment, or plan revision is subject to the objection procedures
in this subpart. This disclosure is in addition to the public notice
that begins the objection filing period, as required at Sec. 219.16.
When a responsible official chooses to use the objection process of
this subpart for a plan, plan amendment, or plan revision process
initiated before the effective date of this rule, notice that the
objection process will be used must be given prior to an opportunity to
provide substantive formal comment on a proposed plan, plan amendment,
or revision and associated environmental analysis.
(b) The responsible official shall make available the public notice
for the beginning of the objection period for a plan, plan amendment,
or plan revision (Sec. 219.16(a)(3)) to those who have requested the
environmental documents or are eligible to file an objection consistent
with Sec. 219.53.
(c) The content of the public notice for the beginning of the
objection period for a plan, plan amendment, or plan revision before
approval (Sec. 219.16(a)(3)) must:
(1) Inform the public of the availability of the plan, plan
amendment, or plan revision, the appropriate final environmental
documents, the draft plan decision document, and any relevant
assessment or monitoring evaluation report; the commencement of the
objection filing period under 36 CFR part 219 Subpart B; and the
process for objecting. The documents in this paragraph will be made
available online at the time of public notice.
(2) Include the name of the plan, plan amendment, or plan revision,
the name and title of the responsible official, and instructions on how
to obtain a copy of the appropriate final environmental documents; the
draft plan decision document; and the plan, plan amendment, or plan
revision.
(3) Include the name and address of the reviewing officer with whom
an objection is to be filed. The notice must specify a street, postal,
fax, and email address; the acceptable format(s) for objections filed
electronically; and the reviewing officer's office business hours for
those filing hand-delivered objections.
(4) Include a statement that objections will be accepted only from
those who have previously submitted substantive formal comments
specific to the proposed plan, plan amendment, or plan revision during
any opportunity for public comment as provided in subpart A.
(5) Include a statement that the publication date of the public
notice in the applicable newspaper of record (or the Federal Register,
if the responsible official is the Chief) is the exclusive means for
calculating the time to file an objection (Sec. 219.56).
(6) Include a statement that an objection, including attachments,
must be filed with the appropriate reviewing officer (Sec. 219.62)
within 60 days, if an environmental impact statement has been prepared,
otherwise within 45 days of the date of publication of the public
notice for the objection process.
(7) Include a statement describing the minimum content requirements
of an objection (Sec. 219.54(c)).
Sec. 219.53 Who may file an objection.
(a) Individuals and entities who have submitted substantive formal
comments related to a plan, plan amendment, or plan revision during the
opportunities for public comment as provided in subpart A during the
planning process for that decision may file an objection. Objections
must be based on previously submitted substantive formal comments
attributed to the objector unless the objection concerns an issue that
arose after the opportunities for formal comment. The burden is on the
objector to demonstrate compliance with requirements for objection.
Objections that do not meet the requirements of this paragraph may not
be accepted; however, objections not accepted must be documented in the
planning record.
(b) Formal comments received from an authorized representative(s)
of an entity are considered those of the entity only. Individual
members of that entity do not meet objection eligibility requirements
solely based on membership in an entity. A member or an individual must
submit substantive formal comments independently to be eligible to file
an objection in an individual capacity.
(c) When an objection lists multiple individuals or entities, each
individual or entity must meet the requirements of paragraph (a) of
this section. Individuals or entities listed on an objection that do
not meet eligibility requirements may not be considered objectors,
although an objection must be accepted (if not otherwise set aside for
review under Sec. 219.55) if at least one listed individual or entity
meets the eligibility requirements.
(d) Federal agencies may not file objections.
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(e) Federal employees who otherwise meet the requirements of this
subpart for filing objections in a non-official capacity must comply
with Federal conflict of interest statutes at 18 U.S.C. 202-209 and
with employee ethics requirements at 5 CFR part 2635. Specifically,
employees may not be on official duty nor use government property or
equipment in the preparation or filing of an objection. Further,
employees may not include information unavailable to the public, such
as Federal agency documents that are exempt from disclosure under the
Freedom of Information Act (5 U.S.C. 552(b)).
Sec. 219.54 Filing an objection.
(a) All objections must be filed, in writing, with the reviewing
officer for the plan. All objections must be open to public inspection
during the objection process.
(b) Including documents by reference is not allowed, except for the
following list of items that may be referenced by including the name,
date, page number (where applicable), and relevant section of the cited
document. All other documents or Web links to those documents, or both
must be included with the objection, if referenced in the objection.
(1) All or any part of a Federal law or regulation.
(2) Forest Service Directive System documents and land management
plans or other published Forest Service documents.
(3) Documents referenced by the Forest Service in the planning
documentation related to the proposal subject to objection.
(4) Formal comments previously provided to the Forest Service by
the objector during the proposed plan, plan amendment, or plan revision
comment period.
(c) At a minimum, an objection must include the following:
(1) The objector's name and address (Sec. 219.62), along with a
telephone number or email address if available;
(2) Signature or other verification of authorship upon request (a
scanned signature for electronic mail may be filed with the objection);
(3) Identification of the lead objector, when multiple names are
listed on an objection (Sec. 219.62). Verification of the identity of
the lead objector if requested;
(4) The name of the plan, plan amendment, or plan revision being
objected to, and the name and title of the responsible official;
(5) A statement of the issues and/or the parts of the plan, plan
amendment, or plan revision to which the objection applies;
(6) A concise statement explaining the objection and suggesting how
the proposed plan decision may be improved. If applicable, the objector
should identify how the objector believes that the plan, plan
amendment, or plan revision is inconsistent with law, regulation, or
policy; and
(7) A statement that demonstrates the link between prior
substantive formal comments attributed to the objector and the content
of the objection, unless the objection concerns an issue that arose
after the opportunities for formal comment (Sec. 219.53(a)).
Sec. 219.55 Objections set aside from review.
(a) The reviewing officer shall set aside and not review an
objection when one or more of the following applies:
(1) Objections are not filed in a timely manner (Sec. 219.56);
(2) The proposed plan, plan amendment, or plan revision is not
subject to the objection procedures of this subpart pursuant to
Sec. Sec. 219.51 and 219.59;
(3) The individual or entity did not submit substantive formal
comments (Sec. 219.53) during opportunities for public comment on the
proposed decision (Sec. 219.16(a)(1) and (a)(2));
(4) None of the issues included in the objection is based on
previously submitted substantive formal comments unless one or more of
those issues arose after the opportunities for formal comment;
(5) The objection does not provide sufficient information as
required by Sec. 219.54(c);
(6) The objector withdraws the objection in writing;
(7) The objector's identity is not provided or cannot be determined
from the signature (written or electronically scanned), and a
reasonable means of contact is not provided (Sec. 219.54(c)); or
(8) The objection is illegible for any reason and a legible copy
cannot easily be obtained.
(b) When an objection includes an issue that is not based on
previously submitted substantive formal comments and did not arise
after the opportunities for formal comment, that issue will be set
aside and not reviewed. Other issues raised in the objection that meet
the requirements of this subpart will be reviewed.
(c) The reviewing officer shall give written notice to the objector
and the responsible official when an objection or part of an objection
is set aside from review and shall state the reasons for not reviewing
the objection in whole or part. If the objection is set aside from
review for reasons of illegibility or lack of a means of contact, the
reasons must be documented in the planning record.
Sec. 219.56 Objection time periods and process.
(a) Time to file an objection. For a new plan, plan amendment, or
plan revision for which an environmental impact statement (EIS) is
prepared, written objections, including any attachments, must be filed
within 60 days following the publication date of the public notice for
a plan, plan amendment, or plan revision before approval (Sec. Sec.
219.16 and 219.52). For an amendment for which an EIS is not prepared,
the time to file an objection is within 45 days. It is the
responsibility of the objector to ensure that the reviewing officer
receives the objection in a timely manner.
(b) Computation of time periods. (1) All time periods are computed
using calendar days, including Saturdays, Sundays, and Federal holidays
in the time zone of the reviewing officer. However, when the time
period expires on a Saturday, Sunday, or Federal holiday, the time is
extended to the end of the next Federal working day (11:59 p.m. for
objections filed by electronic means such as email or facsimile
machine).
(2) The day after publication of the public notice for a plan, plan
amendment, or plan revision before approval (Sec. Sec. 219.16 and
219.52), is the first day of the objection filing period.
(3) The publication date of the public notice for a plan, plan
amendment, or plan revision before approval (Sec. Sec. 219.16 and
219.52), is the exclusive means for calculating the time to file an
objection. Objectors may not rely on dates or timeframe information
provided by any other source.
(c) Evidence of timely filing. The objector is responsible for
filing the objection in a timely manner. Timeliness must be determined
by one of the following indicators:
(1) The date of the U.S. Postal Service postmark for an objection
received before the close of the fifth business day after the objection
filing date;
(2) The electronically generated posted date and time for email and
facsimiles;
(3) The shipping date for delivery by private carrier for an
objection received before the close of the fifth business day after the
objection filing date; or
(4) The official agency date stamp showing receipt of hand
delivery.
(d) Extensions. Time extensions for filing are not permitted except
as provided at paragraph (b)(1) of this section.
[[Page 21275]]
(e) Reviewing officer role and responsibilities. The reviewing
officer is the U.S. Department of Agriculture (USDA) or Forest Service
official having the delegated authority and responsibility to review an
objection filed under this subpart. The reviewing officer is a line
officer at the next higher administrative level above the responsible
official; except that:
(1) For a plan amendment, that next higher-level line officer may
delegate the reviewing officer authority and responsibility to a line
officer at the same administrative level as the responsible official.
Any plan amendment delegation of reviewing officer responsibilities
must be made prior to the public notification of an objection filing
period (Sec. 219.52).
(2) For an objection or part of an objection specific to the
identification of species of conservation concern, the regional
forester who identified the species of conservation concern for the
plan area may not be the reviewing officer. The Chief may choose to act
as the reviewing officer or may delegate the reviewing officer
authority to a line officer at the same administrative level as the
regional forester. The reviewing officer for the plan will convey any
such objections or parts thereof to the appropriate line officer.
(f) Notice of objections filed. Within 10 days after the close of
the objection period, the responsible official shall publish a notice
of all objections in the applicable newspaper of record and post the
notice online.
(g) Response to objections. The reviewing officer must issue a
written response to the objector(s) concerning their objection(s)
within 90 days of the end of the objection-filing period. The reviewing
officer has the discretion to extend the time when it is determined to
be necessary to provide adequate response to objections or to
participate in discussions with the parties. The reviewing officer must
notify all parties (lead objectors and interested persons) in writing
of any extensions.
Sec. 219.57 Resolution of objections.
(a) Meetings. Prior to the issuance of the reviewing officer's
written response, either the reviewing officer or the objector may
request to meet to discuss issues raised in the objection and potential
resolution. The reviewing officer must allow other interested persons
to participate in such meetings. An interested person must file a
request to participate in an objection within 10 days after publication
of the notice of objection by the responsible official (Sec.
219.56(f)). The responsible official shall be a participant in all
meetings involving the reviewing officer, objectors, and interested
persons. During meetings with objectors and interested persons, the
reviewing officer may choose to use alternative dispute resolution
methods to resolve objections. All meetings are open to observation by
the public.
(b) Response to objections. (1) The reviewing officer must render a
written response to the objection(s) within 90 days of the close of the
objection-filing period, unless the allowable time is extended as
provided at Sec. 219.56(g). A written response must set forth the
reasons for the response but need not be a point-by-point response, and
may contain instructions to the responsible official. In cases
involving more than one objection to a plan, plan amendment, or plan
revision, the reviewing officer may consolidate objections and issue
one or more responses. The response must be sent to the objecting
party(ies) by certified mail, return receipt requested, and posted
online.
(2) The reviewing officer's review of and response to the
objection(s) is limited to only those issues and concerns submitted in
the objection(s).
(3) The response of the reviewing officer will be the final
decision of the U.S. Department of Agriculture on the objection.
Sec. 219.58 Timing of a plan, plan amendment, or plan revision
decision.
(a) The responsible official may not issue a decision document
concerning a plan, plan amendment, or plan revision subject to the
provisions of this subpart until the reviewing officer has responded in
writing to all objections.
(b) A decision by the responsible official approving a plan, plan
amendment, or plan revision must be consistent with the reviewing
officer's response to objections.
(c) When no objection is filed within the allotted filing period,
the reviewing officer must notify the responsible official. The
responsible official's approval of the plan, plan amendment, or plan
revision in a plan decision document consistent with Sec. 219.14, may
occur on, but not before, the fifth business day following the end of
the objection-filing period.
Sec. 219.59 Use of other administrative review processes.
(a) Where the Forest Service is a participant in a multi-federal
agency effort that would otherwise be subject to objection under this
subpart, the responsible official 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. When such an
agreement is reached, the responsible official for the Forest Service
shall ensure public notice required in Sec. 219.52 sets forth which
administrative review procedure is to be used.
(b) When a plan amendment is approved in a decision document
approving a project or activity and the amendment applies only to the
project or activity, the administrative review process of 36 CFR part
215 or part 218, subpart A, applies instead of the objection process
established in this subpart. When a plan amendment applies to all
future projects or activities, the objection process established in
this subpart applies only to the plan amendment decision; the review
process of 36 CFR part 215 or part 218 would apply to the project or
activity part of the decision.
Sec. 219.60 Secretary's authority.
Nothing in this subpart restricts the Secretary of Agriculture from
exercising any statutory authority regarding the protection,
management, or administration of NFS lands.
Sec. 219.61 Information collection requirements.
This subpart specifies the information that objectors must give in
an objection to a plan, plan amendment, or plan revision (Sec.
219.54(c)). As such, this subpart contains information collection
requirements as defined in 5 CFR part 1320 and have been approved by
the Office of Management and Budget and assigned control number 0596-
0158.
Sec. 219.62 Definitions.
Definitions of the special terms used in this subpart are set out
as follows.
Address. An individual's or entity's current mailing address used
for postal service or other delivery services. An email address is not
sufficient.
Decision memo. A concise written record of the responsible
official's decision to implement an action that is categorically
excluded from further analysis and documentation in an environmental
impact statement (EIS) or environmental assessment (EA), where the
action is one of a category of actions which do not individually or
cumulatively have a significant effect on the human environment, and
does not give rise to extraordinary circumstances
[[Page 21276]]
in which a normally excluded action may have a significant
environmental effect.
Environmental assessment (EA). A public document that provides
sufficient evidence and analysis for determining whether to prepare an
EIS or a finding of no significant impact, aids an agency's compliance
with the National Environmental Policy Act (NEPA) when no EIS is
necessary, and facilitates preparation of a statement when one is
necessary (40 CFR 1508.9; FSH 1909.15, Chapter 40).
Environmental impact statement (EIS). A detailed written statement
as required by section 102(2)(C) of the National Environmental Policy
Act (NEPA) of 1969 (40 CFR 1508.11; 36 CFR 220).
Formal comments. See substantive formal comments.
Lead objector. For an objection submitted with multiple
individuals, multiple entities, or combination of individuals and
entities listed, the individual or entity identified to represent all
other objectors for the purposes of communication, written or
otherwise, regarding the objection.
Line officer. A Forest Service official who serves in a direct line
of command from the Chief.
Name. The first and last name of an individual or the name of an
entity. An electronic username is insufficient for identification of an
individual or entity.
National Forest System. The National Forest System includes
national forests, national grasslands, and the National Tallgrass
Prairie.
Newspaper(s) of record. The newspaper(s) of record is (are) the
principal newspaper(s) 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.
Objection. The written document filed with a reviewing officer by
an individual or entity seeking pre-decisional administrative review of
a plan, plan amendment, or plan revision.
Objection period. The allotted filing period following publication
of a public notice in the applicable newspaper of record (or the
Federal Register, if the responsible official is the Chief) of the
availability of the appropriate environmental documents and draft
decision document, including a plan, plan amendment, or plan revision
during which an objection may be filed with the reviewing officer.
Objection process. Those procedures established for pre-decisional
administrative review of a plan, plan amendment, or plan revision.
Objector. An individual or entity who meets the requirements of
Sec. 219.53, and files an objection that meets the requirements of
Sec. Sec. 219.54 and 219.56.
Online. Refers to the appropriate Forest Service Web site or future
electronic equivalent.
Responsible official. The official with the authority and
responsibility to oversee the planning process and to approve a plan,
plan amendment, and plan revision.
Reviewing officer. The USDA or Forest Service official having the
delegated authority and responsibility to review an objection filed
under this subpart.
Substantive formal comments. Written comments submitted to, or oral
comments recorded by, the responsible official or his designee during
an opportunity for public participation provided during the planning
process (Sec. Sec. 219.4 and 219.16), and attributed to the individual
or entity providing them. Comments are considered substantive when they
are within the scope of the proposal, are specific to the proposal,
have a direct relationship to the proposal, and include supporting
reasons for the responsible official to consider.
Dated: March 23, 2012.
Harris D. Sherman,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2012-7502 Filed 4-6-12; 8:45 am]
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