[Federal Register: January 5, 2005 (Volume 70, Number 3)]
[Rules and Regulations]
[Page 1023-1061]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ja05-23]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 219
RIN 0596-AB86
National Forest System Land Management Planning
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule describes the National Forest System land
management planning framework; establishes requirements for
sustainability of social, economic, and ecological systems and
developing, amending, revising, and monitoring land management plans;
and clarifies that land management plans under this final rule, absent
extraordinary circumstances, are strategic in nature and are one stage
in an adaptive cycle of planning for management of National Forest
System lands. The intended effects of the final rule are to streamline
and improve the planning process by making plans more adaptable to
changes in social, economic, and environmental conditions; to
strengthen the role of science in planning; to strengthen collaborative
relationships with the public and other governmental entities; and to
reaffirm the principle of sustainable management consistent with the
Multiple-Use Sustained-Yield Act and other authorities.
Elsewhere in this part of today's Federal Register, the Department
of Agriculture is simultaneously publishing another final rule to
remove the planning regulations adopted on November 9, 2000.
DATES: Effective Date: This rule is effective January 5, 2005.
ADDRESSES: The following information is posted on the World Wide Web/
Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fs.fed.us/emc/nfma/: (1) This final rule; (2)
supplemental responses to substantive public comments and a description
of the changes, if any, made in response to those comments and the
reasons for those changes to the 2002 proposed rule; (3) the Civil
Rights Impact Analysis for this final rule; (4) the cost-benefit
analysis for this final rule; (5) the business model cost study done to
estimate predicted costs to implement the 2000 planning rule and the
2002 proposed rule, and (6) the notice of proposed National
Environmental Policy Act implementing procedures; request for comment.
This information may also be obtained upon written request from the
Director, Ecosystem Management Coordination Staff, Forest Service,
USDA, Mail Stop 1104, 1400 Independence Avenue, SW., Washington, DC
20250-1104.
FOR FURTHER INFORMATION CONTACT: Dave Barone, Acting Assistant Director
for Planning; Ecosystem Management Coordination Staff (202) 205-1019,
or Regis Terney, Planning Specialist, Ecosystem Management Coordination
Staff (202) 205-1552.
SUPPLEMENTARY INFORMATION:
Table of Contents
1. Forest Service Directives
2. Events Since Publication of the 2002 Proposed Rule
3. Overview of the Final 2004 Rule
Major themes and areas of public comment in the final
rule.
The strategic nature of land management plans.
Role of science in planning.
Public involvement.
Sustainability.
[[Page 1024]]
Environmental management systems and adaptive
management.
National Environmental Policy Act and National Forest
Management Act planning.
Summary.
4. Department Response to Comments on the 2002 Proposed Rule
General Issues.
Issues in Response to a Specific Section.
Section 219.1--Purpose and applicability
Section 219.2--Levels of planning and planning authority
Section 219.3--Nature of land management planning
Section 219.4--National Environmental Policy Act compliance
Section 219.5--Environmental management systems
Section 219.6--Evaluations and monitoring
Section 219.7--Developing, amending, or revising a plan
Section 219.8--Application of a new plan, plan amendment, or plan
revision
Section 219.9--Public participation, collaboration, and notification
Section 219.10--Sustainability
Section 219.11--Role of science in planning
Section 219.12--Suitable uses and provisions required by NFMA
Section 219.13--Objections to plans, plan amendments, or plan
revisions
Section 219.14--Effective dates and transition
Section 219.15--Severability
Section 219.16--Definitions
5. Regulatory Certifications
Regulatory Impact.
Environmental Impacts.
Energy Effects.
Controlling Paperwork Burdens on the Public.
Federalism.
Civil Rights Impact Analysis.
Consultation with Indian Tribal Governments.
No Takings Implications.
Civil Justice Reform.-1
Unfunded Mandates.
1. Forest Service Directives
The Forest Service is developing planning directives to set forth
the legal authorities, objectives, policy, responsibilities, direction,
and overall guidance needed by Forest Service line officers, agency
employees, and others to use this planning rule. A request for public
comment on the Forest Service directives will be published in the
Federal Register as soon as possible after adoption of this final rule.
2. Events Since Publication of the 2002 Proposed Rule
The 2002 proposed rule was released for public review and comment
in Volume 67 of the Federal Register, page 72770, December 6, 2002.
Between February 18-20, 2003, during the comment period, scientists,
experts in public land management issues, resource professionals,
Tribal officials, State officials, local government officials, and the
public participated in a diversity options workshop. In addition, the
public comment period on the 2002 proposed rule was extended from March
6, 2003 to April 7, 2003 (68 FR 10420, Mar. 5, 2003). The agency
received about 195,000 comments, of which approximately 7,000 were
original letters. All of the substantive comments on the 2002 proposed
rule were carefully considered and led to a number of changes in this
final rule.
Also, interim final rules extending the transition from the 1982
planning rule to the 2000 planning rule were published in 2001 (66 FR
27552, May 17, 2001) and 2002 (67 FR 35431, May 20, 2002), the latter
rule allowing Forest Service managers to elect to continue preparing
plan amendments and revisions under the 1982 planning rule until a new
final rule is adopted. Finally, an interim rule was published in 2003
(68 FR 53294, Sept. 10, 2003) extending the date by which site-specific
project decisions must conform with provisions of the 2000 planning
rule until replaced with a new rule. To date, Forest Service officials
have elected to use the 1982 planning rule for all plan development,
amendments, and revisions.
3. Overview of the Final 2004 Rule
This final rule embodies a paradigm shift in land management
planning based, in part, on the Forest Service's 25 years of experience
developing plans under the 1982 planning rule. Having assessed the
current system's flaws and benefits during this extended period, the
Forest Service believes it is time to think differently about National
Forest System (NFS) planning and management. Thus, based on the
agency's expertise and experience, the Forest Service created this
final rule to enable a better way to protect the environment and to
facilitate working with the public. The final rule prioritizes agency
resources to monitoring and, when necessary, provides a process to
change plans to ensure that clean air, clean water, and abundant
wildlife are available for future generations. This final rule allows
the Forest Service to rapidly respond to changing conditions like
hazardous fuels, new science, and many other dynamics that affect NFS
management. Protection and management of the NFS should be based on
sound science, which is fundamental to this final rule.
This final rule assures the public an effective voice in the entire
planning process from beginning to end. Finally, because this final
rule provides for more efficient planning, more resources will be
shifted to the public's expressed priorities, that is, improved
conservation of the forests and grasslands and better responses to the
real threats the forests and grasslands face, such as critical wildfire
danger and invasive species which degrade ecological systems.
To achieve these important goals, plans under this final rule will
be more strategic and less prescriptive in nature than under the 1982
planning rule. Emphasizing the strategic nature of plans under this
rule is the most effective means of guiding NFS management in light of
changing conditions, science and technology. Specifically, plans under
this final rule will not contain final decisions that approve projects
or activities except under extraordinary circumstances. Rather, as
described further below, plans under this final rule will contain five
components, which set forth broad policies to help guide future
decisions on the ground: The plan components are desired conditions,
objectives, guidelines, suitability of areas, and special areas.
Major Themes and Areas of Public Comment in the Final Rule
The major themes of the final rule discussed in this preamble
reflect the public comments received on the 2002 proposed rule. This
final rule sets forth the process for NFS land management planning,
including the requirements for complying with the National Forest
Management Act (NFMA) of 1976 (16 U.S.C. 1600 et seq.) during
development, amendment, and revision of land management plans (plans)
for NFS units, including the national forests, grasslands, prairie, or
other comparable administrative units. The Forest Service has prepared
and revised plans more than 150 times since enactment of NFMA and
expects to complete more than 100 additional plans and revisions during
the next decade. The Forest Service has also been amending plans during
the last 25 years. Based on the experience gained and public comments
on the 2002 proposed rule, the U.S. Department of Agriculture
(Department) has concluded that this final rule should be based on the
following principles and practical considerations:
Plans should be strategic in nature.
The purpose of plans should be to establish goals for forests,
grasslands, and prairies and set forth the guidance to follow in
pursuit of those goals. Such goals can be expressed by describing:
desired conditions, objectives, guidelines, suitability or areas, and
[[Page 1025]]
special areas. Typically, a plan does not include final decisions
approving projects or activities.
Plans must be adaptive and based on current information
and science.
During the 15-year life expectancy of a plan, information, science,
and unforeseen circumstances evolve. It must be possible to adjust
plans and the plan-monitoring program and to react to new information
and science swiftly and efficiently. An environmental management system
(EMS) approach will enhance adaptive planning and should be part of the
land management framework.
Land management planning must involve the public.
Plans are prepared for public lands. Public participation and
collaboration needs to be welcomed and encouraged as a part of
planning. To the extent possible, Responsible Officials need to work
collaboratively with the public to help balance conflicting needs, to
evaluate management under the plans, and to consider the need to adjust
plans.
Plans must guide sustainable management of NFS lands.
The Multiple-Use Sustained-Yield Act (MUSYA) of 1960 (16 U.S.C.
528-531) requires that NFS lands be managed to provide a continuous
flow of goods and services to the nation. To meet this requirement,
plans must focus on providing a sustainable framework--based on social,
economic, and ecological systems--that guides on-the-ground management
of projects and activities, which provide these goods and services.
Planning must comply with all applicable laws,
regulations, and policies.
Planning must comply with all applicable laws, regulations, and
policies, although all these requirements do not need to be restated in
a plan. For example, the Clean Water Act includes requirements for
nonpoint source management programs, to be administered by the States.
The States or the Forest Service then develops Best Management
Practices (BMPs) for use in design of projects or activities on NFS
lands. BMPs are designed to meet State water quality standards and are
intended to result in prevention of adverse consequences. Specific BMPs
do not have to be repeated in the plan to be in effect and applicable
to National Forest System projects and activities.
The Strategic Nature of Land Management Plans
Land management plans are strategic in nature. A plan establishes a
long-term management framework for NFS units. Within that framework,
specific projects and activities will be proposed, approved, and
implemented depending on specific conditions and circumstances at the
time of implementation. The U.S. Supreme Court described the nature of
NFS plans in Ohio Forestry Ass'n v. Sierra Club, (523 U.S. 726, 737
(1998)) explaining that plans are ``tools for agency planning and
management.'' The Court recognized that the provisions of such plans
``do not command anyone to do anything or to refrain from doing
anything; they do not grant, withhold, or modify any formal legal
license, power, or authority; they do not subject anyone to any civil
or criminal liability; they create no legal rights or obligations''
(523 U.S. 733 (1998)).
The Supreme Court also recently recognized the similar nature of
land management plans for public lands under the jurisdiction of the
Bureau of Land Management (BLM) in Norton v. Southern Utah Wilderness
Alliance, 124 S.Ct. 2373 (2004). The Supreme Court again observed that
``land use plans are a preliminary step in the overall process of
managing public lands--`designed to guide and control future management
actions and the development of subsequent, more detailed and limited
scope plans for resources and uses.' '' In addition, ``a land use plan
is not ordinarily the medium for affirmative decisions that implement
the agency's `project[ion]s.' '' Like a NFS land management plan, a BLM
plan typically`` `is not a final implementation decision on actions
which require further specific plans, process steps, or decisions under
specific provisions of law and regulations.' '' ``The BLM's * * * land
use plans are normally not used to make site-specific implementation
decisions.'' The Supreme Court acknowledged that plans are ``tools by
which `present and future use is projected' [and] * * * generally a
statement of priorities,'' 124 S.Ct. 2373 (2004).
Under the Final Rule, plans will continue to be strategic in
nature, as described by the Supreme Court in Ohio Forestry and SUWA. As
described below, the five components of a plan under the Final Rule do
not authorize project and activity decisions, but rather characterize
general future conditions and guidance for such decisions. Only in
extraordinary circumstances will project and activity decisions be
implemented at the time of a plan development, revision, or amendment.
Planning documentation.
The final rule requires a Plan Document or Set of Documents to
contain all information relevant to the planning and EMS processes. A
Plan Document or Set of Documents includes: (1) Evaluation reports
that, among other things, document the public involvement process in
planning; (2) the plan, including applicable maps; (3) the plan
approval document; (4) National Environmental Policy Act of 1969 (NEPA)
documents; (5) the monitoring program for the plan area; (6) documents
relating to the environmental management system (EMS) established for
the unit; and (7) documentation of how science was taken into account
in the planning process.
Plan components.
The 2002 proposed rule used the term ``management direction'' to
describe the parts of a plan. This final rule uses the term ``plan
components'' to describe the elements of the plan pursuant to the final
rule. How plans are characterized and plan components operate has
evolved over the years. This evolution has occurred through an ongoing
evaluation of the role plans play, how plans guide projects, how plans
by themselves do or do not have impacts on the ground, how current
plans enable or restrict decisions to respond to changing circumstances
and science, and how more active and structured monitoring provides
better information to amend or revise plans as needed. Proposals for
action to accomplish plan goals and desired conditions, with effects
that can be meaningfully evaluated and which may be significant,
generally are made at the project and activity stage.
Through this evaluation, the agency has concluded that plans are
more effective if they include more detailed descriptions of desired
conditions, rather than long lists of prohibitive standards or
guidelines or absolute suitability determinations developed in an
attempt to anticipate and address every possible future project or
activity and the potential effects they could cause. Under this final
rule, plans have five principal components (Sec. 219.7(a)(2)): desired
conditions, objectives, guidelines, suitability of areas, and special
areas.
Desired Conditions.
Desired conditions are the social, economic, and ecological
attributes toward which management of the land and resources of the
plan area is to be directed. Desired conditions are long-term in nature
and aspirational, but are neither commitments nor final decisions
approving projects and activities. Desired conditions may be achievable
only over a period longer than the 15 years covered by the plan.
The increased attention to fire regimes provides an example of the
role of
[[Page 1026]]
``desired conditions.'' The Forest Service is challenged with unnatural
fuel levels throughout the NFS. Much of the western United States is
currently in a severe drought cycle, and fuel reduction is needed. To
facilitate moving toward a healthier and more natural condition on the
land, a plan could contain, for example, desired conditions that
include a description of desired fuel loading, along with a description
of desired tree species, structure, distribution, and density closer to
what would have occurred under natural fire regimes.
The agency, working with the public, also may seek to achieve or
maintain desired conditions for attributes, such as quietness, or a
sense of remoteness, or attributes of our cultural heritage. Desired
conditions also have a key role to play for wildlife habitat
management. During plan development, it is difficult to envision all
the site-specific factors that can influence wildlife. For example, in
the past plans might have included standards precluding vegetation
treatment during certain months or for a buffer for activities near the
nest sites of birds sensitive to disturbance during nesting. However,
topography, vegetation density, or other factors may render such
prohibitions inadequate or unduly restrictive in specific situations. A
thorough desired condition description of what a species needs is often
more useful than a long list of prohibitions. Thorough desired
condition descriptions are more useful because they provide a better
starting point for project or activity design, when the site-specific
conditions are better understood and when species conservation measures
can be most meaningfully evaluated and effectively applied. Again, a
description of what the agency, working with the public, wants to
achieve is key.
Objectives.
Objectives are concise projections of intended outcomes of projects
and activities to contribute to maintenance or achievement of desired
conditions. Objectives are measurable and time-specific and, like
desired conditions, are aspirational, but are neither commitments nor
final decisions approving projects and activities. Application of
objectives is the same as applied under the 1982 planning rule.
Guidelines.
Guidelines provide information and guidance for the design of
projects and activities to help achieve objectives and desired
conditions. Guidelines are not commitments or final decisions approving
projects and activities. Guidelines should provide the recommended
technical and scientific specifications to be used in the design of
projects and activities to contribute to the achievement of desired
conditions and objectives. They are the guidance that a project or
activity would normally apply unless there is a reason for deviation.
If deviation from plan guidelines is appropriate in specific
circumstances, the rationale for deviation should be based on project
or activity analysis and explained fully in the project decision
document. However, deviation does not require an amendment to the plan.
In the National Forest Management Act (NFMA) of 1976 (16 U.S.C.
1600 et seq.), the terms ``standards'' and ``guidelines'' are both
used, with no apparent distinction between them with respect to their
force and effect. In the 1982 planning rule and the first round of
plans, the two terms were usually written together as ``standards and
guidelines.'' Some plan revisions have designed mandatory provisions as
``standards'' and general direction with latitude for implementation as
``guidelines.'' The 2000 planning rule did not use the term
``guidelines.'' In the 2000 planning rule, a provision that is labeled
as a standard could be either mandatory or discretionary depending upon
its wording and the scope of its requirements.
The 2002 proposed rule, consistent with the approach in the 2000
planning rule, continued to use only the term ``standards'' and did not
use the term ``guidelines.'' However, in line with and to clarify the
strategic nature of plans, this final rule instead adopts the term
``guidelines'' and has removed the term ``standards'' as a plan
component. The Department decided to employ the term ``guideline'' to
reflect a more flexible menu of choices consistent with the nature of
plans set forth in this rule.
In this final rule, guidelines are described as ``information and
guidance for project and activity decisionmaking.'' Guidelines will not
contain final decisions approving activities and uses. A Responsible
Official has the discretion to act within the range of guidelines, as
well as the latitude to depart from guidelines when circumstances
warrant it. In the latter case, the Responsible Official should
document the rationale for taking such exception to guidelines.
Suitability of areas.
Suitability of areas is the identification of the general
suitability of an area in an NFS unit for a variety of uses. Areas may
be identified as generally suitable for uses that are compatible with
desired conditions and objectives for that area. The identification of
an area as generally suitable for a use or uses is neither a commitment
nor a decision approving activities and uses. The suitability of an
area for a specific use or activity is authorized through project and
activity decisionmaking.
Suitable use identification has evolved over time. Suitable use
identification has often been characterized in plans prepared under the
1982 planning rule as permanent restrictions on uses or permanent
determinations that certain uses would be suitable in particular areas
of the unit over the life of the plan. However, even under the 1982
planning rule, these identifications were never truly permanent, unless
they were statutory designations by Congress. It became apparent early
in implementation of the 1982 planning rule that plan suitability
identifications, like environmental analysis itself, always
necessitated site-specific reviews when projects or activities were
proposed.
For example, on lands identified as generally suitable for timber
production, site-specific analysis of a proposal could identify a
portion of that area as having poor soil or unstable slopes. The
project design would then exclude such portions of the project area
from timber harvest. Thus, the final determination of suitability was
never made until the project or activity analysis and decision process
was completed. This final rule better characterizes the nature and
purpose of suitability identification.
An illustration of the effect of suitability identifications in the
final rule may be helpful. Under this final rule, a plan may identify
certain portions of an NFS unit as suitable for some uses. For example,
some areas of an NFS unit may be suitable for transportation
development or motorized use. Identification of an area in a plan as
suitable for transportation development or motorized use does not mean
that construction of a road is immediately approved or is even
inevitable. Rather, the identification merely provides guidance for
where road construction may be considered suitable. Proposed projects
for construction of a road or roads would be approved after appropriate
project-specific National Environmental Policy Act (NEPA) analysis and
public involvement.
This final rule, as discussed next in this preamble, also includes
specific provisions for identification of lands generally suitable for
timber harvest and identification of lands not suitable for timber
production as required by NFMA. However, under this final rule, other
generally suitable uses may be identified in a variety of ways. A land
[[Page 1027]]
management plan may identify all uses that are generally suitable for a
particular area, may identify the major or most prominent generally
suitable uses, and/or may identify criteria to be used to determine
whether a use is compatible with the desired condition of the area.
Special areas.
Special areas are areas within the NFS designated for their unique
or special characteristics. These areas include wilderness, wild and
scenic river corridors, and research natural areas. Some of these areas
are statutorily designated. Other areas may be designated through plan
development, amendment, revision, or through a separate administrative
process with an appropriate NEPA process.
Monitoring.
The monitoring program is a central element of adaptive management
planning in this final rule because monitoring is the key to
discovering how to make project specific decisions consistent with
objectives and to discovering what ultimately may need to be changed in
a plan. Experience has shown that while some monitoring programs and
specific monitoring techniques have been adequate to assess need for
changes in plans of national forests, grasslands, prairie, or other
comparable administrative units over time, some have not. New uses,
such as mountain biking, were not contemplated 25 years ago. Noxious
weeds can infest a previously pristine landscape. New methods of
measuring water quality or wildlife habitat can be developed.
Therefore, a unit's monitoring program must be readily adaptable too.
Most plans revised under the 1982 planning rule, in fact, have removed
most monitoring operational details from the plans themselves to allow
for quicker changes to monitoring when needed.
The final rule allows the plan's monitoring program to be changed
with administrative corrections, instead of amendments, to more quickly
reflect the best available science and account for unanticipated
changes in conditions. Changes in monitoring programs will be reported
annually, and the Responsible Official has flexibility to involve the
public in a variety of ways to develop program changes.
Streamlining the planning rule and use of the Forest
Service Directive System.
Part of the strategic and adaptive nature of planning is to make
the planning rule itself more strategic and adaptive. Therefore,
procedural and technical details are being moved to the Forest Service
Directive System (Forest Service directives). Forest Service directives
are the primary basis for the Forest Service's internal management of
all its programs and the primary source of administrative direction to
Forest Service employees. The Forest Service Manual (FSM) contains
legal authorities, objectives, policies, responsibilities,
instructions, and guidance needed on a continuing basis by Forest
Service line officers and primary staff to plan and execute programs
and activities. The Forest Service Handbook (FSH) is the principal
source of specialized guidance and instruction for carrying out the
policies, objectives, and responsibilities contained in the FSM.
The public will have an opportunity to comment on both the FSM and
FSH provisions to implement this final rule. The FSH and FSM provisions
will be issued as soon as possible after release of this final rule.
Thereafter, the agency will provide the public an opportunity to
comment on future changes to the adopted provisions where there is
substantial public interest or controversy concerning the future
changes.
Role of Science in Planning
The 2002 proposed rule would have required that Forest Service
decisions be consistent with the best available science. The final rule
requires that the Responsible Official take into account the best
available science (Sec. 219.11). The actual process for taking into
account science in planning has not changed from the 2002 proposed
rule. Under the final rule, science, while only one aspect of
decisionmaking, is a significant source of information for the
Responsible Official. When making decisions, the Responsible Official
also considers public input, competing use demands, budget projections,
and many other factors as well as science.
The final rule, like the 2002 proposed rule, states that the
Responsible Official may use independent peer reviews, science advisory
boards, or other appropriate review methods to evaluate the application
of science used in the planning process. Specific procedures for
conducting science reviews will be provided in the Forest Service
directives.
The Responsible Official must take into account the best available
science, and document in the plan that science was considered,
correctly interpreted, appropriately applied, and evaluate and disclose
incomplete or unavailable information, scientific uncertainty, and
risk. This evaluation and disclosure of uncertainty and risk provide a
crosscheck for appropriate interpretation of science and helps clarify
the limitations of the information base for the plan.
Public Involvement
The final rule is similar to the 2002 proposed rule regarding
public involvement requirements, but the final rule more clearly
expresses the Department's emphasis on public involvement and
collaboration. The final rule clarifies requirements regarding public
involvement in the 2002 proposed rule by consolidating these
requirements contained in several sections of the 2002 proposed rule
into Sec. 219.9, which requires consultation with interested
individuals and organizations, State and local governments, Federal
agencies, and federally recognized Indian Tribes.
The Department expects that, compared with prior planning rules,
this final rule will allow more members of the public to be more
effectively engaged because development of a plan, plan amendment, or
plan revision will be simpler, more transparent, and faster. The public
will have the opportunity to be engaged collaboratively in the
development, amendment, or revision of a plan, in monitoring and in the
unit's environmental management system (EMS). In addition, the public
will have an opportunity to comment on a plan, plan amendment, or plan
revision, and to object prior to approval if concerns remain.
The final rule requires opportunities for public involvement in the
unit's land management planning process (Sec. 219.9) and in monitoring
(Sec. 219.6(b)(3)). In response to public comments on the 2002
proposed rule, the final rule eliminates the prohibition on the use of
duplicative materials, such as form letters, when filing an objection
to a plan, thus removing a perceived barrier to wider public
participation (Sec. 219.13).
One of the more important changes in public involvement is how the
Forest Service will work with the public to collaboratively develop,
amend, or revise a plan. The Forest Service has found that the
traditional way of developing plan alternatives under the 1982 planning
rule was not very useful. The traditional approach of developing and
choosing among discrete alternatives that were carried throughout the
entire planning process often proved divisive, because it often
maintained adversarial positions, rather than helping people seek
common ground.
To overcome this tendency, the final rule allows an iterative
approach to planning. The Department recognizes
[[Page 1028]]
that people have many different ideas about how NFS lands should be
managed. Furthermore, a plan could potentially include a variety of
different desired conditions, objectives, identification of potential
suitable uses, guidelines, and special area designations. The
Department also recognizes that the public should be involved in
determining what plan components should be. Therefore, the final rule
provides for participation and collaboration with the public at all
stages of plan development, plan amendment, or plan revision.
The Responsible Official and the public will review the various
options to respond to the need to change the plan, and together they
will successively narrow potential options until a proposed plan is
developed. However, the final rule also recognizes that it is not
always possible or desirable to present only one proposed plan for
public comment and, therefore, options to the proposed plan can be
provided for public comment when appropriate.
The process for plan development will be transparent to the public.
Key steps in development of the proposed plan will be documented in the
Plan Document or Set of Documents, which will be available to the
public. While the final rule requires the Responsible Official to
collaborate with the public and that a record of that collaboration be
kept, it does not require in-depth social, economic, or ecological
analysis of every potential option for a plan. In-depth analysis,
documented in an evaluation report, is required only for the proposed
plan and the options that remain after public collaboration.
The plan approved by the Responsible Official will be a result of
public participation and collaboration that will have included
consideration of a variety of different ways to manage a national
forest, grassland, prairie, or other comparable administrative unit.
Although the Responsible Official will continue to have the
responsibility and the authority to make the final decision, the
proposed plans that the Forest Service will present for public comment
will be plans jointly and collaboratively developed with the public.
The Department hopes this approach to plan development will serve to
encourage people to work together to understand each other and find
common solutions to the important and critical planning issues the
agency faces. In summary, the final rule emphasizes collaboration and
provides for effective public involvement.
Sustainability
This final rule retains the concept of the interdependent social,
economic, and ecological elements of sustainability (Sec. 219.10) in
the 2002 proposed rule. However, the final rule does not include many
of the specific analytical processes and requirements set out in the
2002 proposed rule. Appropriate processes will be included in the
Forest Service directives. The Department believes it is more
appropriate to put specific procedural analytical requirements in the
Forest Service directives rather than in the rule itself so that the
analytical procedures can be changed more rapidly if new and better
techniques emerge. As for other portions of the Forest Service
directives, public notice and comment is required where there is
substantial public interest or controversy.
As did the 2000 planning rule and the 2002 proposed rule, the final
rule makes sustainability the overall goal for NFS planning. Managing
NFS lands for sustainability of their renewable resources meets the
MUSYA mandate that the Secretary develop and administer the renewable
surface resources of the National Forests for multiple use and
sustained yield (16 U.S.C. 529). Managing for sustainability will
provide for management of the various renewable resources without
impairment of the productivity of the land, as required by the MUSYA.
Sustaining the productivity of the land and its renewable resources
means meeting present needs without compromising the ability of those
lands and resources to meet the needs of future generations. The final
rule is similar to the 2002 proposed rule for social and economic
sustainability requirements. However, as stated, there are changes from
the 2002 proposed rule for ecological sustainability.
NFMA requires guidelines for land management plans which provide
for diversity of plant and animal communities (16 U.S.C. 1604
(g)(3)(B)) based on the suitability and capability of the land area to
meet overall multiple-use objectives. Almost 30 years after passage of
the NFMA, the concepts of biological diversity at different spatial and
temporal scales, including genetic diversity, species diversity,
structural diversity, and functional diversity have been substantially
refined and developed. Today, the agency has a vast array of methods
available to provide for diversity. The complexity of biological
diversity often results in a corresponding complicated array of
concepts, measures, and values from several scientific disciplines.
The Department developed the final rule based on the following
concepts related to diversity. First, maintenance of the diversity of
plant and animal communities starts with an ecosystem approach. In an
ecosystem approach, the plan will provide a framework for maintaining
and restoring ecosystem conditions necessary to conserve most species.
Second, where the Responsible Official determines that the
ecosystem approach does not provide an adequate framework for
maintaining and restoring conditions to support specific federally
listed threatened or endangered species, species-of-concern, and
species-of-interest, then the plan must include additional provisions
for these species. This final rule defines species-of-concern as those
species for which the Responsible Official determine that continued
existence is a concern and listing under the Endangered Species Act
(ESA) may become necessary. This final rule defines species-of-interest
as those species for which the Responsible Official determines that
management actions may be necessary or desirable to achieve ecological
or other multiple-use objectives. Forest Service directives will
identify lists of species developed by an objective and scientifically
credible third party, such as the U.S. Fish and Wildlife Service or
NatureServe (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.natureserve.org/).
Third, agency managers should concentrate their efforts on
contributing to the persistence of species where Forest Service
management activities may affect species rather than on species
management where the cause of species decline is outside the limits of
agency authority or the capability of the plan area.
Fourth, the presence of all native and desired non-native species
in a plan area is important. However, the Responsible Official should
have the flexibility to determine the degree of conservation to be
provided for the species that are not in danger of ESA listing, to
better balance the various multiple uses, including the often-competing
needs of different species themselves.
Fifth, the planning framework should provide measures for
accounting for progress toward ecosystem and species diversity goals.
The final rule and the Forest Service directives provide a framework
within which efforts to maintain and restore species will be monitored.
Progress toward desired conditions and objectives will be monitored and
the results made available to the public. The adaptive monitoring and
feedback process will help maintain and improve diversity.
[[Page 1029]]
The 2002 proposed rule included two different approaches to the
NFMA diversity requirement labeled ``Option 1'' and ``Option 2'' and
asked for comments on both options. The agency also hosted a workshop
to provide an opportunity for public discussion of these options and
for identification of other ideas on how to best meet the statutory
diversity requirement. An extremely wide range of opinions was
expressed, both in public comments and during the workshop. The
Department found these comments useful in developing a scientifically
credible and realistic approach for this final rule and the Forest
Service directives to meet legal requirements and the agency's
stewardship responsibilities.
The final rule incorporates features of both Options 1 and 2. In
common with both options, the final rule approaches diversity at two
levels of ecological organization: the ecosystem level and the species
level. This concept has considerable support among scientists, has
already been tested by a number of NFS administrative units developing
or revising plans under the 1982 planning rule, and was included in the
planning rule adopted in 2000.
The final rule is less detailed than either Options 1 or 2 with
respect to specific ecosystem analysis requirements. After reviewing
public comments, and after consideration of the Forest Service's
experience with planning over the past 25 years, the Department
concluded that such detail regarding analysis is more properly included
in the Forest Service directives. These directives can be more
extensive and can be more easily changed as the agency learns how to
improve its analytic processes and as new scientific concepts and new
technological capabilities become available.
In common with Options 1 and 2, the final rule focuses on ecosystem
diversity as the primary means of providing for the diversity of plant
and animal communities. The final rule differs from Option 2 in not
explicitly requiring analysis of ecosystem diversity at multiple
temporal and spatial scales, analysis of disturbance regimes, or
analysis of the landscape context. Guidance on appropriate analysis
will be included in the Forest Service directives. The agency will seek
public comment on this guidance.
Another point in common between this final rule and Options 1 and 2
is the concept that the more effective the ecosystem management
guidance is in sustaining species habitat, the less need there is for
analysis and planning at the species level of ecological organization.
Option 1, Option 2, and this final rule all recognize that some
additional analysis and additional plan provisions may be needed for
some species. However, the final rule differs from Option 1 in that it
does not include a requirement to provide for viable populations of
plant and animal species. Such a requirement had previously been
included in both the 1982 planning rule and the 2000 planning rule.
The species viability requirement was not adopted for several
reasons. First, the experience of the Forest Service under the 1982
planning rule has been that ensuring species viability is not always
possible. For example, viability of some species on NFS lands may not
be achievable because of species-specific distribution patterns (such
as a species on the extreme and fluctuating edge of its natural range),
or when the reasons for species decline are due to factors outside the
control of the agency (such as habitat alteration in South America
causing decline of some Neotropical birds), or when the land lacks the
capability to support species (such as a drought affecting fish
habitat).
Second, the number of recognized species present on the units of
the NFS is very large. It is clearly impractical to analyze all
species, and previous attempts to analyze the full suite of species via
groups, surrogates, and representatives have had mixed success in
practice.
Third, focus on the viability requirement has often diverted
attention and resources away from an ecosystem approach to land
management that, in the Department's view, is the most efficient and
effective way to manage for the broadest range of species with the
limited resources available for the task.
Requirements for species population monitoring are not included in
this final rule. Population data are difficult to obtain and evaluate
because there are so many factors outside the control of the Forest
Service that affect populations. The Department believes that it is
best to focus the agency's monitoring program on habitat on NFS land
where the agency can adjust management to meet the needs of certain
species. Desired conditions are often a focus of the monitoring
program. The agency will identify species-of-concern and species-of-
interest (Sec. 219.16). Where ecological conditions for these species
are identified as desired conditions, the habitat could be monitored to
assist in avoiding future listing of these species. However, the final
rule does not preclude population monitoring. Plans may include
population monitoring as appropriate.
In summary, in compliance with NFMA, the ecological sustainability
provisions in the final rule provide the foundation for the plan to
provide for diversity of plant and animal communities. The final rule
provides a complementary ecosystem and species diversity approach for
ecological sustainability. The final rule at Sec. 219.7(a)(2)
establishes requirements for developing plan components to guide
projects and activities. All parts of the land management framework,
including plan components, monitoring, and plan adjustment, are
designed to work together to contribute to sustainability.
Environmental Management Systems and Adaptive Management
Adaptive management and land management planning.
Plans must adapt to ever-changing conditions. Agency policy may
change, new laws may be enacted, or court decisions can change
interpretation of existing laws. Fires, invasive species, or outbreaks
of insects or disease can substantially change environmental
conditions. Changes in market conditions or public values may shift the
demand for specific goods and services. Scientific findings can change
our understanding of the environment and of the effects of specific
management activities. Better monitoring techniques or ways to achieve
objectives may be found. Land management plans must reflect the fact
that change and uncertainty are inevitable. Consequently, plans must
allow for quick response to these ever-changing conditions.
The National Association of Professional Forestry Schools and
Colleges and others commented on the 2002 proposed rule regarding the
importance, from the scientific perspective, of using adaptive
management when dealing with complex ecosystems. In 1999, the Committee
of Scientists developed recommendations that strongly encouraged the
use of adaptive management. The Committee of Scientists recommended
setting a high priority on developing ongoing analyses that are based
on monitoring to continually adjust or change land management planning
decisions. In response to these comments and recommendations for a
greater emphasis on and commitment to adaptive management, the
Department has chosen to include environmental management systems (EMS)
in the land management framework.
The adaptive management approach includes land management plans
along
[[Page 1030]]
with comprehensive evaluations, an environmental management system,
monitoring, evaluation, and research. Adaptive management requires
careful coordination of the work performed through these programs. It
does not require equal emphases among these various programs, but
rather requires organizational learning, an active pursuit of best
available scientific information, evaluation and disclosure of
uncertainties and risks about scientific information, and a response to
change.
A land management plan starts the adaptive management cycle.
Managers then pursue ways to achieve desired conditions and objectives
described in the plan. The comprehensive evaluation may describe the
risks and uncertainties associated with implementing the plan. Managers
prioritize risks and develop strategies to control them.
Monitoring and evaluations check for status and change across the
administrative unit. Monitoring results may show that the desired
conditions are not being achieved through projects. This may trigger
future project changes to reach desired conditions. Alternatively,
monitoring results may lead to conclusions that the land management
plan should be changed through a plan amendment.
Research is an important part of adaptive management. Through
experimentation, researchers investigate cause and effect relationships
of management practices on the environment. Experiments test hypotheses
and researchers develop reliable knowledge about effects of management
practices. The new information may be used to amend plans, change
project level work, or update an environmental management system.
Land management plans, adaptive management, and
environmental management systems.
This final rule requires each national forest, grassland, prairie,
or other comparable administrative unit to develop and implement an EMS
based on the international consensus standard published by the
International Organization for Standardization as ``ISO 14001:
Environmental Management Systems--Specification With Guidance For Use''
(ISO 14001). Each unit's EMS should be designed and implemented to more
efficiently meet legal obligations, including supporting the creation
of effective land management plans, ensuring public participation in
the process, and providing a framework for adaptive management.
The administrative units' EMS will be a systematic approach to
identify and manage environmental conditions and obligations to achieve
improved performance and environmental protection. Each unit's EMS will
identify and prioritize environmental conditions; set objectives in
light of Congressional, agency, and public goals; document procedures
and practices to achieve those objectives; and monitor and measure
environmental conditions to track performance and verify that
objectives are being met. Agency management personnel will regularly
review performance, and information about environmental conditions will
be regularly updated to continually improve land management and
environmental performance.
By systematically collecting and updating information about
environmental conditions and practices (for example, through
monitoring, measurement, research, and public input), the units' EMS
will provide a foundation for effective adaptive management, plan
amendments, or even changing specific project or work practices. The
agency expects that, whenever possible, EMS and land management plan
documentation will be coordinated and integrated to avoid unnecessary
duplication.
The units' EMS will more efficiently meet legal obligations, will
improve public participation in the land management planning process,
and enhance the agency's ability to identify and respond to public
input. Creating a transparent and consistent framework that describes
how units are managed will improve the public's ability to effectively
participate in land management. The units' EMS will not replace any
legal obligations that the agency has under NFMA, MUSYA, NEPA, or any
other statute, nor will the EMS diminish the public's ability to
participate in the land management process or its rights under any law.
To the contrary, EMS will significantly improve the public's ability to
effectively participate in the process.
The agency chose ISO 14001 as the EMS model for several reasons.
First, it is the most commonly used EMS model in the United States and
around the world. This will make it easier to implement and understand
(internally and externally) because there is a significant knowledge
base about ISO 14001. Second, the National Technology and Advancement
Act of 1995 (NTAA) (Pub. L. 104-113) requires that Federal agencies use
or adopt applicable national or international consensus standards
wherever possible, in lieu of creating proprietary or unique standards.
The NTAA's policy of encouraging Federal agencies to adopt tested and
well-accepted standards, rather than reinventing-the-wheel, clearly
applies to this situation where there is a ready-made international and
national EMS consensus standard (through the American National
Standards Institute) that has already been successfully implemented in
the field for almost a decade. Third, it has been a long-standing
policy that Federal agencies implement EMS to improve environmental
performance (Executive Order 13148 issued April 21, 2000 (E.O. 13148),
titled ``Greening the Government Through Leadership in Environmental
Management'' and an April 1, 2002, Memorandum from the Chair of the
Council on Environmental Quality and the Director of the Office of
Management and Budget to the heads of all Federal agencies). Federal
agencies that have been implementing EMS in response to the E.O. 13148
have typically been using ISO 14001 as their model.
The implementation of ISO 14001 in NFS administrative units will
have to reflect the legal and public obligations of the agency, as well
as the environmental conditions and issues relevant to land management,
such as sustainability and long-term issues, including cumulative
effects. For example, while ISO 14001 requires implementing
organizations to identify their ``environmental aspects,''
administrative units implementing their EMS under this rule will
include the concept of environmental conditions in land management
planning in this step. Another example reflecting the legal and public
obligations of the agency is that the units' EMS must include the
public participation requirements of this rule, which are much stronger
than the public communication provisions of ISO 14001. Therefore, the
agency will interpret and implement ISO 14001 in a manner consistent
with the agency's legal obligations, its duty to the public, and the
unique circumstances of land management.
National Environmental Policy Act and National Forest Management Act
Planning
The application of NEPA to the planning process as identified in
this final rule is the next iterative step in an evolution that began
with the promulgation of the 1979 planning rule, revised in 1982. In
developing the NEPA provisions of this final rule, the Department took
into account the nature of the five plan components under this final
rule, experience the agency has gained over the past 25 years from
[[Page 1031]]
developing, amending, and revising land management plans; the
requirements of NEPA and NFMA, the Council on Environmental Quality
(CEQ) regulations, and the comments by the Supreme Court in Ohio
Forestry Ass'n v. Sierra Club and Norton v. Southern Utah Wilderness
Alliance regarding the nature of plans themselves.
The 1979 planning rule required an environmental impact statement
(EIS) for development of plans, significant amendments, and revisions.
This requirement continued in the revised rule adopted in 1982. At the
time, the Forest Service believed that the NEPA document prepared for a
plan would suffice for making most project-level decisions. However,
the agency came to understand that this approach to complying with NEPA
was impractical, inefficient, and sometimes inaccurate. Over the course
of implementing NFMA during the past 25 years, the agency has learned
that environmental effects of projects and activities cannot be
meaningfully evaluated without knowledge of the specific timing and
location of the projects and activities.
At the time of plan approval, the Forest Service does not have
detailed information about what projects and activities will be
proposed over the 15-year life of a plan, how many projects will be
approved, where they will be located, or how they will be designed. At
the point of plan approval, the Forest Service can only speculate about
the projects that may be proposed and budgeted and the natural events,
such as fire, flood, insects, and disease that may occur that will make
uncontemplated projects necessary or force changes in the projects and
the effects of projects that were contemplated. Indeed, the Forest
Service has learned that over the 15-year life of a plan it can only
expect the unexpected.
In the course of completing NEPA analysis on the first generation
of NFMA plans, the Forest Service also became more aware of the
difficulties of scale created by the size of the national forests and
grasslands. The National Forest System includes 192 million acres, and
individual planning units, such as the Tongass National Forest, may be
as large as 17 million acres. These vast landscapes contain an enormous
variety of different ecosystems, which will respond differently to the
same management practices. As the Committee of Scientists said on page
26 of the Committee of Scientists Report:
Because of the wide variation in site-specific practices and
local environmental conditions (e.g., vegetation type, topography,
geology, and soils) across a given national forest or rangeland, the
direct and indirect effects of management practices may not always
be well understood or easily predicted. (Committee of Scientists
Report, March 15, 1999, U.S. Department of Agriculture, Washington,
DC 193 p.)
The result is that it is usually infeasible to do environmental
analysis for a national forest as a whole that is sufficiently site-
specific to allow projects to be carried out without further detailed
NEPA analysis after the plan has been approved.
The agency has found itself preparing much more extensive NEPA
documentation for projects than it had anticipated when it adopted the
1979 and 1982 planning rules. Moreover, the extensive changes to
conditions in the plan area that occurred during the 15-year life of
each plan made it increasingly impractical to tier project-level NEPA
documentation to the plan EIS. The requirements of the 1979 and 1982
planning rules created an inefficient and ineffective system for
complying with NEPA.
The 2000 planning rule furthered the existing presumption of
requiring an EIS for plan development or revision, notwithstanding
concerns raised by the Committee of Scientists. Secretary Glickman
named the Committee of Scientists (COS) on December 11, 1997. The
charter for the COS stated that the Committee's purpose was to provide
scientific and technical advice to the Secretary of Agriculture and the
Chief of the Forest Service on improvements that can be made in the
National Forest System Land and Resource Management Planning Process.
The Committee of Scientists said, on page 117 of the Committee of
Scientists Report:
Perhaps the most difficult problem is that the current EA/EIS
process assumes a one-time decision. The very essence of small-
landscape planning is an adaptive management approach, based upon
monitoring and learning. Although small-landscape planning can more
readily do real-time cumulative effects analysis * * *, this kind of
analysis is difficult to integrate with a one-time decision
approach. Developing a decision disclosure and review process that
is ongoing and uses monitoring information to adjust or change
treatments and activities will need to be a high priority * * *.
(Committee of Scientists Report, March 15, 1999, U.S. Department of
Agriculture, Washington, DC 193 p.)
In addition to concern about timely and accurate disclosure of
environmental effects, the agency's experience with planning has
demonstrated the need to clarify what plans, in fact, actually do.
Neither the 1982 nor the 2000 planning rule clearly described or
contrasted the differences between the effects of plans and the effects
of projects and activities. This has been confusing to the public and
agency employees. As discussed previously in the guidelines and the
suitability discussions, plan components have not been applied or
interpreted consistently throughout the agency and often have been
characterized as the functional equivalent of final project-level
decisions or actions, rather than guidance for projects and activities
over time.
This final rule clarifies that plans will be strategic rather than
prescriptive in nature absent extraordinary circumstances. Plans will
describe the desired social, economic, and ecological conditions for a
national forest, grassland, prairie, or other comparable administrative
unit. Plan objectives, guidelines, suitable uses, and special area
identifications will be designed to help achieve the desired
conditions. While plans will identify the general suitability of lands
for various uses, they typically will not approve projects or
activities with accompanying environmental effects. Decisions approving
projects or activities with environmental effects that can be
meaningfully evaluated will typically be made subsequent to the plan.
In essence, a plan simply is a description of a vision for the future
that coupled, with evaluation, provides a starting point for project
and activity NEPA analysis. Therefore, under this rule approval of a
plan, plan amendment, or plan revision typically will not have
environmental effects.
The formulation of plans under the final rule as being merely
strategic rather than prescriptive is further evident in the five
components of plans under the final rule. As described above, none of
the five components is intended to directly dictate on the ground
decisions which have impacts on the environment. Rather, they state
general guidance and goals to be considered in project and activity
decisions. These five components thus do not have any significant
effect on the environment.
Notwithstanding their strategic nature, approval of a plan, plan
amendment, or plan revision is a final action under the CEQ
regulations. Further, such actions may have environmental effects in
some extraordinary circumstances, such as when a plan amendment or
revision includes final decisions approving projects or activities. For
example, an amendment or revision including a decision approving a
project to thin
[[Page 1032]]
certain trees to reduce fire hazards may have environmental affects
that could be significant.
NFMA requires the Secretary of Agriculture to determine how to
comply with NEPA during the course of NFMA planning. Section 106(g)(1)
of NFMA directs the Secretary to specify in land management regulations
procedures to insure that plans are prepared in accordance with NEPA,
including direction on when and for what plans an EIS is required (16
U.S.C. 1604(g)(1)). The CEQ regulations direct Federal agencies to
adopt procedures that designate major decision points for the agency's
principal programs likely to have a significant effect on the human
environment and ensuring that the NEPA process corresponds with them
(40 CFR 1505.1(b)).
Under NEPA and the CEQ regulations, an EIS is required for every
report or recommendation on proposals for legislation and other major
Federal actions significantly affecting the quality of the human
environment (16 U.S.C. 4321 et seq., 40 CFR 1502.3). CEQ regulations
define ``major Federal action'' as including ``actions with effects
that may be major.'' The regulations explain that ``Federal actions''
generally tend to fall within several categories. Although these
categories include adoption of formal agency plans within the
definition of ``federal action,'' not all federal actions are major
federal actions. As applied to the final rule, land management plans
under this final rule, as evidenced by their five components, are
strategic and aspirational in nature and generally will not include
decisions with on-the-ground effects that can be meaningfully evaluated
and that may be major. During plan development, amendment, or revision,
the agency generally is not at the stage in National Forest planning of
proposing actions to accomplish the goals in land management plans. CEQ
regulations define ``proposals'' that can trigger the requirement for
an EIS as ``that stage in development of an action when an agency
subject to the Act has a goal and is actively preparing to make a
decision on one or more alternative means of accomplishing that goal
and the effects can be meaningfully evaluated (40 CFR 1508.23).
Proposals for action to accomplish plan goals and desired conditions,
with effects that can be meaningfully evaluated and which may be
significant, generally are made at the project and activity stage.
While a plan includes desired conditions, goals, and objectives, the
Forest Service does not actively prepare to make a decision on an
action aimed at achieving desired conditions, goals, or objectives
until the agency proposes projects and activities. Thus, the decision
to adopt, amend, or revise a plan, therefore, is typically not the
point in the decisionmaking process at which the agency is proposing an
action likely to have a significant effect on the human environment.
The approach in this final rule is consistent with the nature of
Forest Service land management plans acknowledged in Ohio Forestry
Ass'n v. Sierra Club, 523 U.S. 726 (1998). As described above, in Ohio
Forestry, the Supreme Court held that the timber management provisions
of land management plans are tools for further agency planning and
guide, but do not direct future management. When considering the role
of land management plans with respect to timber harvesting, the Supreme
Court explained that:
Although the Plan sets logging goals, selects the areas of the
forest that are suited to timber production, and determines which
``probable methods of timber harvest'' are appropriate, it does not
itself authorize the cutting of any trees. Before the Forest Service
can permit the logging, it must: (a) Propose a specific area in
which logging will take place and the harvesting methods to be used;
(b) ensure that the project is consistent with the Plan; (c) provide
those affected by proposed logging notice and an opportunity to be
heard; (d) conduct an environmental analysis pursuant to the
National Environmental Policy Act of 1969, to evaluate the effects
of the specific project and to contemplate alternatives; and (e)
subsequently make a final decision to permit logging, which affected
persons may challenge in an administrative appeals process and in
court.
The Supreme Court repeated its description of plans as merely
strategic without any immediate on the ground impact in the recent SUWA
decision described above. Both cases reinforce the observations of the
FS in reflecting on 25 years of completing EISs for plans, and buttress
the approach to planning and NEPA compliance described in the final
rule.
In accordance with NFMA, NEPA, and the CEQ regulations, this final
rule will ensure that Forest Service NEPA analysis will be timed to
coincide with those stages in agency planning and decisionmaking likely
to have a significant effect on the human environment. The final rule
emphasizes the clear distinction between the mere adoption, revision or
amendment of a plan and projects and activities having on-the-ground
environmental effects. In this final rule, the Department is clarifying
the nature of National Forest land management plans, and based on the
nature of plans, specifying that plans, plan amendments, and plan
revisions may be categorically excluded from NEPA documentation as
provided in agency NEPA procedures.
The CEQ regulations (40 CFR 1500) require that each agency
establish specific criteria for and identification of three types of
actions: (1) Those that normally require preparation of an
environmental impact statement (EIS); (2) those that normally require
the preparation of an environmental assessment (EA); and (3) those that
normally do not require either an EA or EIS. Actions qualifying for
this third type of action are defined as categorical exclusions because
they do not individually or cumulatively have a significant impact on
the human environment; therefore, neither an environmental assessment
nor an environmental impact statement is required (40 CFR 1508.4).
A categorical exclusion is not an exemption from the requirements
of NEPA. Categorical exclusions are an essential part of NEPA that
provide a categorical determination that certain actions do not result
in significant impacts, eliminating the need for individual analyses
and lengthier documentation for those actions. CEQ regulations at 40
CFR 1500.4(p), 1507.3 and 1508.4 direct agencies to use categorical
exclusions to define categories of actions which do not individually or
cumulatively have a significant effect on the human environment and do
not require the preparation of an environmental assessment or an
environmental impact statement, thereby reducing excessive paperwork.
Current Forest Service procedures for complying with and implementing
NEPA are set out in Forest Service Handbook (FSH) 1909.15.
Simultaneously with this rulemaking, the Forest Service is
proposing to revise its NEPA procedures to provide a new categorical
exclusion for plan development, amendment, and revision. The proposed
categorical exclusion describes the extraordinary circumstances that
may require preparation of an EIS or an EA. The Forest Service is
seeking comment on the proposed categorical exclusion.
The Forest Service presented and sought public comment on this
approach to NEPA and NFMA planning in the 2002 proposed rule. The 2002
proposed rule at Sec. 219.6(b) provided that if the Responsible
Official determines that a new plan, plan amendment, or plan revision,
or a component thereof, would be an action significantly affecting the
quality of the human environment, or authorizes an action that commits
funding or
[[Page 1033]]
resources that could have a significant effect on the quality of the
human environment, then an EIS would be required. Otherwise, a new
plan, plan amendment, or plan revision may be categorically excluded
from documentation in an EA or EIS as provided in agency NEPA
procedures. The categorical exclusion proposed in connection with this
final rule clarifies that plan development, plan amendment or plan
revisions in accordance with this final rule do not significantly
affect the environment, and thus are categorically excluded from
further NEPA analysis, unless extraordinary circumstances are present.
Of course, the FS will comply with all applicable NEPA requirements,
including preparation of an EA or an EIS where appropriate, when
considering specific projects or making other project-specific
decisions affecting the environment.
The public identified three key concerns related to the proposal to
categorically exclude plans from documentation. First, many people
commented that they were unsure about how they would be involved in
planning if an EIS process were not used. Second, they questioned how
planning analysis would be documented in the absence of an EIS. Third,
some asked how cumulative effects would be accounted for if a
Categorical Exclusion (CE) were relied upon. The Department has fully
considered the concerns raised by the public and believes the final
rule addresses the concerns as follows:
Public participation.
This final rule provides extensive opportunity for public
participation that exceeds requirements for public participation under
NEPA and improves the clarity of the process for public notification
(Sec. 219.9).
Evaluations and documentation.
This final rule requires comprehensive and other evaluations in
Sec. 219.6. Evaluation reports will document existing social,
economic, and ecological conditions and trends; and will be available
to the public and included in the Plan Document or Set of Documents.
Evaluations are prepared for plan development, plan amendment, and plan
revision (Sec. 219.6); use a systematic and interdisciplinary approach
(Sec. 219.7(a)); and consider environmental amenities and values along
with economic and technical considerations (Sec. 219.10).
The Plan Document or Set of Documents will be supplemented with
annual evaluation reports and with other information as appropriate to
form a continually refreshed and current analytical base of
information. Because of this more current information base, evaluations
will provide a much stronger and more robust source of information for
projects and activities than an EIS prepared under the 1982 planning
rule.
Cumulative effects.
To account for cumulative effects of management and natural events,
this final rule requires (Sec. 219.6(a)): (1) A comprehensive
evaluation for the development of a new plan or plan revision; (2)
annual plan monitoring and evaluation; and (3) review of the
comprehensive evaluations at least every 5 years. These evaluations, as
opposed to predictive EIS's that grow increasingly stale over time,
will provide more timely and informed consideration of cumulative
effects. The Plan Document or Set of Documents provides for a robust
information base for the consideration of cumulative effects of
management in NEPA documents prepared for projects or activities.
The relationship between EMS and NEPA.
Implementing EMS will improve the quality of agency NEPA analysis
for projects and activities. In a September 2003 report, titled
``Modernizing NEPA Implementation,'' the CEQ NEPA Task Force stated at
page 54, ``Federal agencies, having made the connection between EMS and
adaptive management, would be integrating NEPA-related adaptive
management actions into their developing EMSs.'' The task force also
said that NEPA and EMS provide ``a synergy that can encourage a robust
analysis when the EMS information is extensive, current, and available
for use in the NEPA analy[sis].'' The Department agrees with the task
force's conclusions and believes that requiring each unit to implement
an EMS will improve environmental performance and effective land
management in addition to enhancing NEPA analysis and documentation.
Under the existing process, information about environmental
conditions is collected for the purposes of preparing detailed NEPA
analysis and documentation for plan development, plan amendment, or
plan revision. There is no effective system for keeping this
information current, because the collection and analysis of information
often typically ceases when the NEPA analysis and documentation is
completed. Therefore, the information collected for the environmental
documents for 126 NFS units can grow stale as environmental, social,
and economic conditions change. Further, the focus of the information
collection and analysis process is on NEPA analysis and documentation,
rather than for use in the ongoing management of the administrative
unit. Therefore, the large volume of information and analysis that is
so expensively created over a long period is often used as a snapshot
for purposes of making a single decision, instead of being integrated
into a dynamic, ongoing system to effectively manage units.
This rule will improve this situation by requiring each
administrative unit to implement an EMS that includes defined
procedures for identifying environmental conditions, keeps that
information current, and includes monitoring and measurement procedures
for continually evaluating conditions in the unit. The EMS requirement
is separate from any obligations to develop EISs, EAs, or CEs.
Therefore, the obligation to keep this information current and make it
available for public review is separate from the obligation to create
any particular NEPA document. This information will be used in
formulating the land management plans that are subject of this rule,
managing administrative units on an ongoing basis, as well as for
specific project and activity proposals that trigger the need for EISs,
EAs, or CEs. Therefore, through the implementation of EMS,
administrative units will be continually collecting and evaluating the
data necessary to create any documents that may be required by NEPA.
This will make the creation of accurate and relevant NEPA documents
more efficient. More importantly, it will make available to
administrative unit managers and the public a ``library'' of current
information, analyses, and research that, through EMS, will be used to
manage the administrative unit on an ongoing basis, and better adapt
management practices to avoid unwanted environmental effects.
Summary
This final rule represents a paradigm shift in planning. It
emphasizes the strategic nature of NFMA land management plans and will
permit more flexibility in implementing projects in response to
evolving scientific doctrines and changing conditions on the ground,
such as unforeseen natural disasters. It requires that each NFS unit
develop an EMS that will be used to continually improve environmental
performance and conditions. It requires that Responsible Officials take
into account the best available scientific information. It requires
public involvement and collaboration throughout the entire cycle of
planning, plan development, plan amendment, plan revision, project
[[Page 1034]]
and activity decisionmaking, and monitoring of environmental
performance. The final rule requires plans to focus on the social,
economic, and ecological sustainability of the management of the NFS,
and it has specific provisions for biological diversity at both the
ecosystem and species level. It clarifies the nature of plans and
explains how the planning process complies fully with the requirements
of NEPA. Plans developed and maintained using the EMS and other
processes required by this final rule will improve the performance,
accountability, and transparency of NFS land management planning.
4. Department Response to Comments on the 2002 Proposed Rule
The Forest Service received approximately 7,000 original letters
and 195,000 total comments from a wide variety of respondents on the
2002 proposed rule. Each comment received consideration in the
development of the final rule. The following is a summary of comments
and response to issues raised by these comments. A response to less
substantive issues may be found in the supplemental response to
comments located on the World Wide Web/internet (see ADDRESSES).
General Issues
The Department received the following comments not specifically
tied to a particular section of the 2002 proposed rule.
Comment: Compliance with NFMA. Some respondents thought the 2002
proposed rule would allow more timber harvest and road construction
than currently exists and therefore would violate the National Forest
Management Act (NFMA) of 1976 (16 U.S.C. 1600 et seq.). Other
respondents believed the timber industry, other commercial interests,
or Forest Service employees unduly influenced the 2002 proposed rule;
moreover, they perceived that the 2002 proposed rule would degrade the
environment. Some contended the 2002 proposed rule was influenced by
campaign contributions.
Response: The final rule is not intended to, and will not,
determine the choices among the multiple uses. The NFMA requires the
Secretary of Agriculture to develop regulations under the principles of
the Multiple-Use Sustained-Yield Act (MUSYA) of 1960 (16 U.S.C. 528-
531). Congress gave the Secretary broad discretion in interpreting how
these principles are applied. This final rule affirms the overall goal
of MUSYA and provides a framework for plans to reflect contemporary
priorities and values. Pursuant to MUSYA, this final rule adopts
social, economic, and ecological sustainability as the goal of National
Forest System (NFS) management. Furthermore, timber production from NFS
lands has been reduced dramatically since NFMA was written. The sale of
timber has fallen from an annual level of 10 to 12 billion board feet
in the 1970s and 1980s to three billion board feet in the early 1990s
and below three billion board feet since then. Finally, the final rule
does not promote or discourage other uses of NFS lands, such as outdoor
recreation, range, wildlife and fisheries, and so forth. The planning
process itself will determine the desired conditions and objectives for
each NFS unit.
Comment: Plan oversight and resource conservation. Some respondents
commented that the 2002 proposed rule would prevent court oversight of
plans, eliminate restrictive plan requirements, inappropriately
increase Forest Service discretion, and result in decreased
conservation of resources such as wildlife. Several respondents wanted
the 2002 planning rule to be stricter, attributing the collapse of
Enron to inadequate regulatory oversight. Other respondents were
concerned about the possibility of increased litigation and thought
streamlined planning would shift more of the analysis burden to
projects, thus slowing project completion.
Response: The final rule establishes a planning process that
complies with NFMA and provides a broad planning framework within which
issues specific to a plan area can be resolved in an efficient and
reasonable manner informed by the latest data and scientific
assessments and public participation and collaboration.
With respect to concerns that Forest Service discretion may be
unchecked, there has always been a tension between providing needed
detailed direction in the planning rule and discretion of the
Responsible Official. However, the decisions of the Responsible
Official are constrained and guided by a large body of law, regulation,
and policy, as well as public participation and oversight. Because
every issue cannot be identified and dealt with in advance for every
situation, the Forest Service must rely on the judgment of the
Responsible Official to make decisions based on laws, regulation,
policy, sound science, public participation, and oversight.
The Department of Agriculture (Department) believes that the final
rule is fully compatible with the nature of forest planning as
described by the U.S. Supreme Court in Ohio Forestry Ass'n v. Sierra
Club 523 U.S. 726 (1998) (A discussion of this case is found in the
``Overview of the Final 2004 Rule'' section of the preamble.) The
Department expects public oversight and legal review of planning, as
well as an assessment of the environmental impacts of specific projects
under NEPA, to occur under the final rule in accordance with Ohio
Forestry. As a general matter, and consistent with the Ohio Forestry
Ass'n decision, a plan by itself is not expected to be reviewable by
the courts at the time the plan is developed, revised or amended; but
when the agency decides on a specific action, an aggrieved party will
be able to challenge that action and, if appropriate, seek review of
that part of the plan that is relevant to that action.
After years of experience with previous planning rules, the
Department is ready to embrace the latest thinking in management
techniques and believes this final rule provides the proper balance of
regulatory requirements and flexibility needed to resolve issues on the
ground. By streamlining the planning process, requiring environmental
management systems (EMS), and emphasizing collaboration and public
involvement, the final rule will result in plans that are more up to
date, and should have broader public support. Similarly, the continual
updating of the evaluations and analyses associated with plans is
expected to reduce the amount of analysis needed at the project level.
These concepts of collaboration, EMS, evaluations, and public
involvement are described in detail in the ``Overview of the Final 2004
Final Rule'' section of the preamble.
Comment: Consultation with a committee of scientists. Several
respondents were concerned that there was no consultation with a
committee of scientists in developing the 2002 proposed rule. Several
felt that an independent review was necessary. Some respondents also
felt that the 2002 proposed rule should reflect current scientific
knowledge.
Response: The NFMA does not require a committee of scientists for
revision of the planning rule. Nonetheless, the Department based the
2002 proposed rule on the major recommendations from the 1999 Committee
of Scientists report. Sustainability, public participation, adaptive
management, monitoring and evaluation, the role of science, and the
objection process, all concepts in the proposed and final rule, were
recommendations of that report. The Department realizes that scientific
knowledge will continue to expand. Therefore, the Responsible Official
must
[[Page 1035]]
take into account the best available science when plans are developed,
revised, or amended (Sec. 219.11).
Comment: Environmental conservation. Several respondents commented
that the 2002 planning rule should conserve wildlife, wilderness,
historic and cultural sites, special habitat, watersheds, genetic
material, and reduce fragmentation. One person commented that planning
should be done on whole ecosystems.
Response: The final rule provides the processes through which
Responsible Officials conserve and manage resources with regard to the
issues relevant in the plan area. Those communities, groups, or persons
interested in these important resource issues can influence plan
components and monitoring programs by becoming involved in planning
efforts throughout the process, including the development and
monitoring of the plan, as well as the development and implementation
of proposed projects and activities.
The Department agrees that better quality planning is often
accomplished when the appropriate scale is used. For species or
watersheds, evaluation often needs to be completed at a broader scale
than for an individual unit. The Department anticipates that the Forest
Service, in its plan evaluations, will continue to look at issues at
the appropriate scale.
Comment: The 2000 planning rule was never adequately tested. Some
respondents disagreed with the 2002 proposed rule discussion of the
difficulty of implementing the 2000 planning rule, since the 2000
planning rule was never used.
Response: The costing study, ``A Business Evaluation of the 2000
planning rule and the Proposed NFMA Planning Rules,'' analyzed each of
the work activities of the 2000 planning rule and used experienced
planners and resource professionals to estimate how those work
activities would be carried out. The Department believes that this
analysis on the 2000 planning rule was adequate to determine how well
that rule could be implemented.
Comment: Costing study of the 2000 Planning Rule. Several
respondents said the report on cost and ability to implement the 2000
planning rule was not available.
Response: The Federal Register notice for the 2002 proposed rule
explained how all associated studies were available for review. These
studies have been, and still are, available on the Forest Service's
World Wide Web/Internet site (see ADDRESSES) and available from the
Director, Ecosystem Management Coordination Staff, Forest Service,
USDA, Mail Stop 1104, 1400 Independence Avenue, SW., Washington, DC
20250-1104, as described in the ADDRESSES section.
Comment: Inability to complete revisions. Several respondents said
that the inability of the Forest Service to comply with a statutorily
mandated revision timeline was due to reasons other than the
requirements of the 1982 or 2000 planning rules.
Response: The Forest Service experience showed that the cost and
unnecessary complexity of the planning process for the 1982 planning
rule were the major causes of plan delays; this experience and the
costing study indicated that the 2000 planning rule would exacerbate
these concerns.
Comment: Cost study and the cost-benefit analysis for 1982 planning
rule. Some respondents said the cost study of the 2000 planning rule
and the 2002 proposed rule should also have considered the 1982
planning rule and that the cost-benefit analysis should have considered
the costs of the 1982 planning rule, which is the rule that was
actually being implemented at the time of the study.
Response: When the 2000 planning rule was developed, the costs to
the Forest Service to implement it were unknown, while the costs
associated with the 1982 planning rule were known. The cost-benefit
analysis considered the costs of implementing the 1982 planning rule,
the anticipated cost of implementing the 2000 planning rule, and the
anticipated cost of implementing the 2002 proposed rule. The cost-
benefit analysis used information from a business evaluation and
costing study for the 2000 planning rule and the 2002 proposed rule.
Although the 1982 planning rule was not included in the business
evaluation, 1982 planning rule costs were included in the cost-benefit
analysis using applicable costs from the business evaluation and
historical cost information.
Comment: Biological assessment. Some respondents commented that the
rule should consider the ``degree to which the action [the rule] may
adversely affect an endangered or threatened species or their habitat
that has been determined to be critical under the Endangered Species
Act (ESA) of 1973.'' They assert that a biological assessment of the
2002 proposed rule is needed to analyze its impacts on threatened and
endangered species and that the agency must also consult on the 2002
proposed rule with the agencies responsible for implementing the ESA.
Response: The ESA, as amended (16 U.S.C. 1531 et seq.), requires
consultation for actions authorized, funded, or carried out by a
Federal agency. This final rule simply establishes a process for
planning. The final rule is not an action having a direct effect on
threatened or endangered species. The agency's obligations for
conservation of threatened, endangered, and proposed species remains
unchanged by this final rule; no consultation is required as part of
the final rule's development.
Comment: Planning certification. One organization commented that a
nationally recognized third party should certify sustainability of
National Forests.
Response: The Department believes that the body of laws that govern
management of NFS lands, the Forest Service Strategic Plan (Strategic
Plan) required under the Government Performance and Results Act, the
planning process itself, the expertise of career professionals, and the
opportunity for public participation are adequate to ensure
sustainability. Recognizing the point made by the respondent of the
value of using recognized standards for forest management, this final
rule requires units to develop and implement an EMS that conforms to
ISO 14001 to manage natural resources and further the adaptive
management approach advocated by other respondents. ISO 14001 is the
internationally and nationally recognized standard for EMSs. The Forest
Service understands that ISO 14001 is not itself a program for forest
sustainability certification and does not contain specific natural
resource provisions or requirements. Natural resource management
requirements and priorities are properly set by Congress and open
public participation, rather than by non-governmental standards setting
bodies that are not directly answerable to the citizens of the United
States.
ISO 14001 provides a well-accepted management process that will
improve the Forest Service's ability to identify and meet the natural
resource goals that are set by Congress in the NFMA and MUSYA and the
Forest Service's commitments to sustainability, good science, and
public involvement in a disciplined, systematic, and transparent
manner.
Comment: Benchmarks in the 1982 planning rule were useful. Several
respondents said that benchmarks, such as those required in the 1982
planning rule, are useful and should still be required.
Response: The agency's experience with the 1982 planning rule is
that benchmarks have not been useful. In theory, benchmarks define the
range of
[[Page 1036]]
production possibilities and ecosystem limits. In practice, however,
they are difficult to develop due to limited data and uncertainty at
the time plans are developed. However, the final rule does not prohibit
benchmark analysis when it would provide meaningful information.
Comment: Fix the 1982 planning rule. Several respondents thought
the agency should consider analyzing and correcting the 1982 planning
rule instead of developing an entirely new rule.
Response: In many ways, the final rule reflects the 1982 planning
rule. However, it makes improvements based on over 25 years of
experience. The final rule includes the basic plan components set out
in the 1982 planning rule, includes the provisions required by NFMA,
and expands the public involvement requirements in the 1982 planning
rule by requiring additional public involvement opportunities and
emphasizing collaboration.
Comment: The final rule should be subject to NEPA. Some respondents
commented that adoption of the final rule is itself subject to the
National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C.
4321-4346), and this rulemaking is a major Federal action having a
significant effect on the human environment. Others questioned why
previous rulemaking efforts were accompanied by environmental
assessments and why this rulemaking was not.
Response: The Department disagrees that this rulemaking is a major
Federal action that has significant effects on the environment because
the final rule, which sets out a process for developing plans, plan
amendments, and plan revisions, does not have environmental effects.
The Forest Service Handbook (FSH) 1909.15, section 31.12, paragraph 2,
specifically provides that procedures for amending or revising land
management plans may be categorically excluded from NEPA documentation.
The Forest Service produced an environmental assessment for the
2000 planning rulemaking efforts, but asserted at the time that it was
going beyond the requirements of the law or policy. In the spirit of
efficiency and streamlining inherent in this rulemaking effort, it
seemed inconsistent to produce a NEPA document that was not required or
useful. In summary, this final rule does not significantly affect the
quality of the human environment and does not trigger NEPA obligations.
Comment: Integration of planning process requirements. One
respondent commented that the 2002 proposed rule listed many
requirements and was unclear how these requirements were to be
integrated into a plan.
Response: The Department agrees that it was difficult to track the
planning process steps in the 2002 proposed rule. This difficulty is
one of the primary reasons the Department substantially reorganized the
final rule.
Comment: Research. One professional organization felt that the
final rule should support ``bold and imaginative'' research on NFS
lands.
Response: The Department believes that the final rule does support
research. The strong emphasis on monitoring, evaluation, and the
Department's recognition of the value of environmental management
systems produce an adaptable process where scientific experimentation
is encouraged. Topics to be researched, however, are properly not set
out in the final rule.
Comment: Forest Service directives. Several respondents expressed
concern about placing management direction in the Forest Service
Directive System (Forest Service directives) and said that the Forest
Service directives have not been subject to rulemaking procedures and
do not have the full force and effect of law. They said that NFMA
requires direction to be in the planning rule and they are concerned
that use of directives will foster distrust and a confusing system of
malleable and unenforceable guidelines.
Some respondents were concerned that placing direction in the
Forest Service directives instead of in the final rule would reduce
meaningful public participation. Others endorsed the idea of using the
Forest Service directives for technical details rather than burden the
final rule with these ``how to'' requirements. Some said that the
Forest Service should retain greater flexibility and should be able to
make decisions more cost effectively. Finally, some respondents said
that they would like the Forest Service directives to be updated and
published for public review concurrent with the planning rule
development.
Response: The Forest Service directives are the primary basis for
the internal management and control of all programs and the primary
source of administrative direction to Forest Service employees. The
Forest Service Manual (FSM) contains legal authorities, objectives,
policies, responsibilities, instructions, and guidance needed on a
continuing basis by Forest Service line officers and primary staff to
plan and execute assigned programs and activities. The Forest Service
Handbook (FSH) is the principal source of specialized guidance and
instruction for carrying out the direction issued in the FSM. Because
the Forest Service directives are easier to change and more easily
adopt the latest technology and science, they are the appropriate place
for specific technical guidance.
As stated in the ``Forest Service Directives'' section in the
preamble, the Forest Service is developing planning directives to
provide overall guidance needed to use this final rule for Forest
Service line officers, agency employees, and others. The Forest Service
will provide the public with the opportunity to comment on planning
directives as soon as they are prepared through notice in the Federal
Register.
Comment: Other issues. Some respondents commented on a variety of
important issues such as roads, recreation, timber harvest, taxes,
recycling, access, travel management, public safety, effects on
spiritual values, land exchanges and purchases, fire protection, paying
for restoration, job creation, certain kinds of motorized use, and
roadless areas and they wanted those issues addressed in the final
rule.
Response: The Department agrees that the issues raised are
important. However, the final rule is intended to guide how plans are
developed, revised, and amended. The final rule provides the overall
direction for planning. The final rule does not provide direction that
is properly found in the plans themselves, or in the subsequent
decisions regarding projects and activities on a particular national
forest, grassland, prairie, or other comparable administrative unit.
Issues in Response to Specific Sections
Following are discussions and responses to public comments received
on specific sections in 36 CFR part 219 during the Department's comment
period on the 2002 proposed rule, including discussion on the
differences between the 2002 proposed rule and the final rule and why
these changes were made. The Department reorganized the final rule. As
a result, some sections have new titles and/or a new designation as
shown in the following table 1. In addition, the heading for subpart A
in the 2002 proposed rule, ``National Forest System Planning for Land
and Resource Management Plans,'' has been shortened and simplified in
the final rule to ``National Forest System Land Management Planning,''
which is a term also used in the National Forest Management Act of
1976.
[[Page 1037]]
Table 1.--Section-by-Section Comparison of the 2002 Proposed Rule With
the Final Rule
------------------------------------------------------------------------
------------------------------------------------------------------------
[2002 Proposed Rule]............... [Final Rule]
Proposed section number and title.. Final section number and title
Sec. 219.1 Purpose and Sec. 219.1 Purpose and
applicability. Applicability.
[some direction moved to Sec. Sec.
219.2 and 219.3]
Sec. 219.2 Nature and scope of a [redesignated at Sec. 219.3;
land and resource management plan. planning process requirements
incorporated in Sec. 219.7]
Sec. 219.2 Levels of planning and
planning authority.
Sec. 219.3 Levels of planning and [redesignated at Sec. 219.2]
planning authority.
Sec. 219.3 Nature of land
management planning.
Sec. 219.4 Decisions embodied in [incorporated in Sec. Sec. 219.7
plans. and 219.12]
Sec. 219.4 National Environmental
Policy Act compliance.
Sec. 219.5 Indicators of need to [incorporated in Sec. 219.6 or
amend or revise a plan. the Directive Systems.]
Sec. 219.5 Environmental
management systems.
Sec. 219.6 Compliance with [redesignated at Sec. 219.4]
National Environmental Policy Act.
Sec. 219.6 Evaluations and
monitoring.
Sec. 219.7 Amending a plan....... [incorporated in Sec. Sec.
219.2, 219.7 and 219.9]
Sec. 219.7 Developing, amending,
or revising a plan.
Sec. 219.8 Revising a plan....... [incorporated in Sec. Sec.
219.2, 219.7, 219.8 and 219.9]
Sec. 219.8 Application of a new
plan, plan amendment, or plan
revision.
Sec. 219.9 Developing a new plan. [incorporated in Sec. Sec. 219.2
and 219.7]
Sec. 219.9 Public participation,
collaboration, and notification.
Sec. 219.10 Application of plan [incorporated in Sec. 219.8]
direction.
Sec. 219.10 Sustainability.
Sec. 219.11 Monitoring and [incorporated in Sec. 219.6]
evaluation..
Sec. 219.11 Role of science in
planning.
[2002 Proposed Rule]............... [Final Rule]
Proposed section number and title.. Final section number and title
Sec. 219.12 Collaboration, [incorporated in Sec. 219.9]
cooperation, and consultation.
Sec. 219.12 Suitable uses and
provisions required by NFMA.
Sec. 219.13 Sustainability....... [redesignated at Sec. 219.10]
Sec. 219.14 The consideration of [redesignated at Sec. 219.11]
science in planning.
Sec. 219.15 Special designations. [incorporated in Sec. Sec.
219.7]
Sec. 219.16 Determination of [redesignated at Sec. 219.12]
lands available for timber harvest
and suitable for timber production.
Sec. 219.13 Objections to plans,
plan amendments, or plan
revisions.
Sec. 219.17 Limitation on timber [redesignated at Sec. 219.12]
harvest.
Sec. 219.14 Effective dates and
transition.
Sec. 219.18 Plan documentation, [incorporated in Sec. Sec.
maintenance, and availability. 219.6, 219.7, and 219.9]
Sec. 219.15 Severability.
Sec. 219.16 Definitions.
Sec. 219.19 Objections to [redesignated at Sec. 219.13]
amendments or revisions of plans.
Sec. 219.20 Appeals of plan [incorporated in Sec. 219.13]
amendments in site-specific
project decisions.
Sec. 219.21 Notice of plan [incorporated in Sec. Sec. 219.9
decisions and effective dates. and 219.14]
Sec. 219.22 Transition........... [incorporated in Sec. 219.14]
Sec. 219.23 Definitions.......... [redesignated at Sec. 219.16]
------------------------------------------------------------------------
In this final rule, the Department reorganized sections of the 2002
proposed rule to improve clarity and reduce redundant material. The
discussion of each section follows the numbering and titles adopted in
the final rule, with references to where the text was located in the
2002 proposed rule. These new sections are ordered from general to
specific. The first section introduces the reader to what is covered in
the final rule and acknowledges the multiple-use and sustained yield
productivity mandate of the Forest Service (remainder of Sec. 219.1).
Section 219.2 describes planning in general and the levels of planning
in the agency. Then, the final rule contains a general description of
plans (Sec. Sec. 219.3 and 219.4), followed by the specific plan
requirements (Sec. Sec. 219.5-219.16).
Section 219.1--Purpose and Applicability
This section is coded the same in the final rule as it was in the
2002 proposed rule and introduces the reader to what is covered in the
final rule, acknowledges the multiple-use and sustained-yield
productivity mandate of the Forest Service, and directs the Chief of
the Forest Service to establish planning procedures in the Forest
Service directives. The 2002 proposed rule language is retained in the
final rule, with some clarification regarding the overall goal to
sustain the multiple uses of its renewable resources in perpetuity
while maintaining the long-term productivity of the land.
Comment: Overall goals of planning. There were varied comments on
the overall goal of National Forest System (NFS) planning. Some said
that the purpose of planning should reflect sustainability priorities
and values. Some respondents stated that the best approach to the
purpose and applicability section is to state that ecological
sustainability is the desired condition to be achieved through land
management. Some requested that the Forest Service's vision statement
be changed to reflect a philosophy of preservation and sustainability
and that the Forest Service not make management decisions based on a
productivity paradigm. They stated that good decisions that restore the
forest will be approved quickly without controversy and lawsuits, while
bad decisions should be stopped and the decisionmaker held accountable.
Others requested that the Forest Service give attention to how plans
affect tourism and recreation.
[[Page 1038]]
Response: The Department agrees that the mandate under the National
Forest Management Act (NFMA) of 1976 and Multiple-Use Sustained Yield
Act (MUSYA) of 1960 is not exclusively for production or for
preservation because ``multiple use and sustained yield'' applies to
all renewable resources, including outdoor recreation, range, timber,
watershed, wildlife and fish, and wilderness. These laws direct the
management of all the various renewable resources of the lands so that
they are used in the combination that will best meet the needs of
present and future generations of Americans. Planning for NFS lands is
not simple, and often there is little agreement on how these lands
should be managed. While relying on the expertise of the Forest Service
and taking into account the best available science, this final rule
also provides an open process for public collaboration and
participation.
Finally, other overarching planning guidance, such as the intent of
planning to produce responsible land management and how a plan aids the
agency to fulfill its stewardship responsibilities, is discussed in
Sec. 219.3.
Comment: Multiple-Use Sustained-Yield Act (MUSYA). Some respondents
pointed out that ``multiple use'' is part of the law and ``ecosystem
management'' is not. Active forest management, they asserted, is
necessary for forest health, maintaining biological diversity, and
sustaining wildlife populations. These respondents requested that the
final rule uphold what they believe are the active forest management
principles mandated by the MUSYA. Further, they stated that timber
harvesting is a goal of the MUSYA. They asked that the Forest Service
provide a high-level sustained yield of renewable timber resources.
Some respondents requested that the Forest Service comply with
MUSYA by managing lands according to what they call its ``wood, water,
wildlife, range, and recreation'' formula. Others stated that the 2002
proposed rule violates the MUSYA requirement that NFS lands be used to
best meet the needs of the American people. These respondents requested
that emphasis be placed on recreation, aesthetics, air and water
quality, species habitat, and ecosystem integrity, rather than natural
resource development.
Response: The final rule is faithful to NFMA, which requires the
use of the MUSYA to provide the substantive basis for forest planning.
As used in the final rule, sustainability embodies these Congressional
mandates. The interrelated and interdependent elements of
sustainability are social, economic, and ecological as described in
Sec. 219.10. The final rule sets the stage for a planning process that
can be responsive to the desires and needs of both present and future
generations of the Americans for the multiple uses of NFS lands. The
final rule does not make choices among the multiple uses; it describes
the processes by which those choices will be made as a preliminary step
during development of plans. Later, the plan provides guidance for
projects and activities.
Comment: Forest planning versus project planning. Some respondents
said that, unlike the 2000 planning rule, the 2002 proposed rule
correctly focused only on the forest planning level and not on project
planning.
Response: The final rule retains the focus of the 2002 proposed
rule on land management plans, while at the same time explaining on how
plans and projects or activities are linked. Inclusion of an EMS in the
land management framework provides a current scientific and
informational foundation for the effective development and
implementation of projects and activities. This framework ensures the
continued relevance of the entire cycle of planning while maintaining
the distinction between strategic planning and projects and activities.
As previously noted, there will be a comprehensive table in the Forest
Service directives that includes guidance on what direction is
appropriate for the plan level, what decisions are properly made at the
project or activity level, and what scheduling, prioritization, or
analysis may take place in between.
Section 219.2--Levels of Planning and Planning Authority
This section was located in the proposed rule at Sec. 219.3, but
has been re-designated at Sec. 219.2 as part of the overall
reorganization of the final rule. This section describes planning in
general, the levels of planning in the agency, and provides the basic
authorities and direction for developing, amending, or revising a plan.
Comment: Consistency of decisions across units and the Responsible
Official. Some respondents were concerned that plans developed for
individual units, each with a different Responsible Official, would not
be consistent within larger areas. They said that the planning
framework should be similar within each State or ecological region.
Some said that without a regional context, the planning efforts of each
forest or grassland would seem to take place in a vacuum. Some
commented that plans needed to address species management plans and
conservation agreements for wide ranging species in a consistent
manner. Some commented that planning needed to use consistent
consultation procedures with Tribes.
Several respondents commented on the provision that the Supervisor
is usually the Responsible Official. Those in favor of this provision
said that local Supervisors and staff are involved with actual hands-on
project implementation and can better gauge success or failure of the
planning process. Some said that Supervisors are close to the problem
areas and are better able than Regional Foresters to seek solutions
proactively and act upon them more quickly. These respondents felt that
Supervisors are in a better position to facilitate citizen
participation and negotiation between competing groups and to
coordinate with local or State plans.
Those opposed to this provision were concerned that the local
pressure for employment in forest products industry may outweigh the
preservation of our national heritage if decisionmaking was left in
local hands. They said that Supervisors are susceptible to political
pressure or abuse of their authority. Still others said Supervisors
sometimes do not have sufficient experience or expertise to make
adequate plan decisions. Some said that local staff may not understand
how to use inventory data, monitoring, or ecosystem or species
evaluations and will simply copy what was done in other locations,
causing endless escalation of planning efforts. Several respondents
said that the current system has worked well with the Regional Forester
as the Responsible Official.
Still others said that both national and local level staffs are
necessary, because local staff cannot reasonably understand complex and
overlapping policies, regulations, and laws, and national staff cannot
efficiently study local conditions or gain local consensus. Finally,
one respondent observed that if the planning process becomes so
burdensome that local officials do nothing but plan, the system would
once again break down. Some respondents wanted the final rule to
clarify the conditions under which officials ranking higher than the
Supervisor can act as the Responsible Official and to explain the types
of decisions that these officials can make.
Response: Supervisors currently coordinate across unit and Regional
boundaries and will continue to do so because the evaluations described
in Sec. Sec. 219.6, 219.7, and 219.10 will often cross boundaries of
adjacent NFS units. In addition, the final rule provides the option for
higher-level officials to act as
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the Responsible Official for a plan, plan amendment, or plan revision
across a number of plan areas when consistency is needed. Additional
procedural guidance will be placed in the Forest Service directives to
ensure consistency as needed for Tribal or public consultation or for
social, economic, or ecological resource related issues.
The Department intends the final rule be flexible in addressing
different issues that may arise at different levels. Therefore, the
Department does not believe that the final rule should provide the
specific criteria for when a higher-ranking official becomes the
Responsible Official.
The final rule retains the provision in the 2002 proposed rule for
the Supervisor to be the Responsible Official because the Department
believes that the Supervisor is the person most familiar with the
resources and the people on their unit and is usually the most
appropriate person to make decisions affecting those lands. This
provision has not changed from the 2000 planning rule. Together,
environmental management systems, science, monitoring, evaluation,
interdisciplinary teams, public participation, objection process, and
other laws and direction all aid in providing relevant information for
the decisionmaker.
However, the final rule retains the provision in the 2002 proposed
rule to allow higher-level officials to serve as Responsible Officials.
Also, the final rule retains the provision of the 2002 proposed rule
for an objection process in which the Reviewing Officer, who is the
supervisor of the Responsible Official, must respond to objections
before approval of a plan, plan amendment, or plan revision (Sec. Sec.
219.13 and 219.16).
Comment: Forest Service Strategic Plan. Some respondents observed
that the 2002 proposed rule only acknowledges the existence of the
Strategic Plan and does not provide guidance about using the Strategic
Plan in new plans, plan amendments, or plan revisions.
Response: The Strategic Plan provides an overall vision for
management of the NFS. Land management plans, projects, and activities
contribute to the vision and Responsible Officials approve them within
the context of the Strategic Plan. The Department believes that
decisions regarding how plans should use the Strategic Plan are best
made at the national forest, grassland, prairie, or other comparable
administrative unit level.
Section 219.3--Nature of Planning and Land Management Plans
The direction found in Sec. 219.2 of the 2002 proposed rule has
been redesignated at Sec. 219.3 as part of the reorganization of the
final rule. The direction found in Sec. 219.3 of the 2002 proposed
rule has been moved to Sec. 219.2 of the final rule. Section 219.3
describes the nature of planning, and the force and effect of plans.
Comment: Desired conditions as the purpose of planning. Some
respondents believed that the final rule should establish desired
conditions as the fundamental purpose of a plan and that this section
of the final rule provides a clear statement of what a plan will do.
Others said that the focus on desired conditions may be too narrow in
light of the overall goals of multiple use and sustained yield. Others
commented that the primary purpose should be to integrate human
activities and ecological processes. Still others said that the term
``desired conditions'' was too susceptible to multiple interpretations
and the purpose of a plan should be changed to ``fulfill multiple-use
objectives to ensure ecological sustainability.''
Response: The Department concluded that, while ``desired
conditions'' may drive how the other plan components are developed,
``desired conditions'' are not the ``primary purpose'' of a plan. The
final rule has been changed at Sec. 219.7(a) to clarify that plans
also provide objectives, guidelines, suitability of areas, and special
areas. There is further discussion of desired conditions in the
preamble to the final rule in the section entitled ``The strategic and
adaptive nature of land management plans.'' Plans are developed in
light of the overall goal of managing the NFS lands as described in
Sec. 219.1, which is to sustain the multiple uses of its renewable
resources in perpetuity while maintaining the long-term productivity of
the land.
Comment: Oil and gas leasing decisions. Some respondents felt that
the 2002 proposed rule's emphasis on the programmatic nature of plans
is contrary to the Federal Onshore Oil and Gas Leasing Reform Act (Oil
and Gas Leasing Reform Act) of 1987 (Pub. L. 100-203, 101 Stat. 1330-
256, 30 U.S.C. 181, 226, 226-3), Forest Service regulations, and the
Mining and Minerals Policy Act of 1970 (30 U.S.C. 21a), which these
respondents say, require project or activity decisions to be made in a
plan.
Response: The Forest Service directives will include guidance on
making an initial availability decision for oil and gas leasing where
there is the geologic potential for the occurrence of such resources or
where there has been an expression of interest in leasing. There is no
irretrievable or irreversible commitment of resources unless and until
the Department of the Interior decides to issue a lease, giving certain
exclusive rights to the lessee. Ground-disturbing activity and the
final irreversible and irretrievable commitment of resources occur only
when a decision approves a surface use plan of operations. Exploration
or development of a lease requires additional environmental analysis,
public disclosure, and specific project decisions by the appropriate
regulatory agencies.
Because plans include plan components that describe which lands are
generally suitable for consideration for energy and mineral leasing,
they meet the intent of the Oil and Gas Leasing Reform Act, the Forest
Service regulations for oil and gas resources, and the Mining and
Minerals Policy Act. Specific project decisions to explore or develop a
lease or mining claim are properly deferred to the project or activity
level.
Comment: Management zone authorities. Some respondents said that
only counties have authority to create zoning ordinances. Others said
that the zoning system creates a dominant or single use that is
contrary to multiple-use.
Response: The Forest Service is responsible for managing the lands
of the NFS under NFMA and other laws. The terms ``zoning'' or ``zone''
were not in the text of the 2002 proposed rule, nor are they in the
text of the final rule. The Forest Service is not issuing zoning
ordinances. The preamble to the 2002 proposed rule described plans as
creating ``zones'' in the forest. The Department used the term as a
metaphor to help describe how plans may identify suitability of areas.
Section 219.4--National Environmental Policy Act Compliance
Compliance with NEPA was addressed in Sec. 219.6 in the 2002
proposed rule. This section has been redesignated at Sec. 219.4 as
part of the overall reorganization of the final rule. This section of
the final rule describes how planning will comply with NEPA.
Comment: Applicability of NEPA, NEPA documentation, NEPA
``significance,'' and the nature of forest plans. Some respondents said
that NEPA is not applicable to planning, noting that a plan should
provide a framework for future project and activity decisionmaking and
that the
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disclosure of effects in plan-level NEPA documents is necessarily
speculative; some said that plans do not significantly affect the
environment. Others said that it might be more advantageous to make as
many project-level decisions during the forest planning process as
possible, because one NEPA analysis document could be used to make
numerous decisions. Another said that failure to make decisions at the
plan level would delay implementation of projects.
Some respondents supported categorically excluding plans from NEPA
documentation, while others suggested that the criteria for
categorically excluding plans were unclear, or that extraordinary
circumstances in the plan area would always preclude the use of a
categorical exclusion (CE). Some respondents thought the criteria for
determining whether a CE is appropriate gives the Responsible Official
too much discretion; others thought the degree of discretion
appropriate. Some respondents indicated that they did not see the
relationship between categorically excluding plans from NEPA
documentation and achieving a more streamlined, adaptive planning
system and holding the Forest Service accountable for its plans. Some
interpreted categorically excluding plans from NEPA documentation as
not complying with NEPA, rather than application of a provision of the
NEPA regulations.
Many questioned how certain procedures, such as plan analysis and
public involvement, would occur if a CE is used. Many people questioned
how cumulative effects would be considered if a CE was used, and how
monitoring would occur. Some wanted clearer and stronger direction for
when a plan might be categorically excluded and when an environmental
impact statement (EIS) would be required. Some respondents asked the
Forest Service to distinguish between effects to the environment and
effects to the human environment.
Respondents stated a number of reasons in support of an EIS for
plans. Some respondents commented that plans, by their very nature, are
controversial and therefore should require an EIS. Some commented that
the requirement of the 1982 and 2000 planning rules to prepare an EIS
for plans and revisions was an acknowledgment that plans are major
Federal actions having significant effects on the environment. Others
suggested that a substantial change in the existing situation on the
ground or a substantial change to an existing plan would trigger an
EIS. Some respondents said that the 2002 proposed rule misconstrued the
role of a plan and thus the applicability of NEPA, saying that a plan
is not just a simple framework, but rather creates changes on-the-
ground that have environmental consequences. Some said that if a plan
acts as a zoning document and authorizes increased motorized
recreational uses, detailed analysis would have to occur in the plan
analysis for all affected sites. Some respondents thought that the 2002
proposed rule differentiated between whether an EIS would be required
for plan revisions, as opposed to new plan development, arguing that
existing plans must need ``significant'' changes because conditions had
changed since the plans were originally adopted.
However, some said that a better approach, instead of focusing on
``zones,'' would be to describe where in the plan area certain uses
would have dominance over other uses. Others said that plans should set
timber sale schedules; indicate what areas are available for logging,
grazing, off-road vehicles use, and mineral extraction; and establish
unique areas for protection, and that NEPA documentation would be
necessary to make such decisions. They said that plans should establish
measurable and enforceable standards and objectives. Others said that
management activities must be analyzed on a site-by-site basis in a