[Federal Register: April 21, 2008 (Volume 73, Number 77)]
[Rules and Regulations]
[Page 21467-21512]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21ap08-20]
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Part III
Department of Agriculture
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Forest Service
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36 CFR Part 219
National Forest System Land Management Planning; Final Rule
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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 and record of decision.
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SUMMARY: This final rule describes the National Forest System (NFS)
land management planning framework; sets up requirements for
sustainability of social, economic, and ecological systems; and gives
directions for developing, amending, revising, and monitoring land
management plans. It also clarifies that, absent rare circumstances,
land management plans under this final rule are strategic in nature and
are one stage in an adaptive cycle of planning for management of NFS
lands. The intended effects of the rule are to strengthen the role of
science in planning; to strengthen collaborative relationships with the
public and other governmental entities; to reaffirm the principle of
sustainable management consistent with the Multiple-Use Sustained-Yield
Act of 1960 (MUSYA) and other authorities; and to streamline and
improve the planning process by increasing adaptability to changes in
social, economic, and environmental conditions. This rulemaking is the
result of a United States District Court of Northern California order
dated March 30, 2007, which enjoined the United States Department of
Agriculture (the Department, the Agency, or the USDA) from putting into
effect and using the land management planning rule published on January
5, 2005 (70 FR 1023) until it complies with the court's order regarding
the National Environmental Policy Act (NEPA), the Endangered Species
Act (ESA), and the Administrative Procedure Act (APA) (Citizens for
Better Forestry v. USDA, 481 F. Supp 2d 1059 (N.D. Cal. 2007)). The
purpose of this final rule is to respond to the district court's
ruling.
This final rule replaces the 2005 final rule (2005 rule) (70 FR
1022, Jan. 5, 2005), as amended March 3, 2006 (71 FR 10837) (which was
enjoined by the district court's ruling) and the 2000 final rule (2000
rule) adopted on November 9, 2000 (65 FR 67514) as amended on September
29, 2004 (69 FR 58055).
DATES: Effective Date: This rule is effective April 21, 2008.
ADDRESSES: For more information, including a copy of the final
environmental impact statement (EIS), refer to 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/2008_planning_rule.html.
More information may be obtained on written request from the Director,
Ecosystem Management Coordination Staff, Forest Service, USDA Mail Stop
1104, 1400 Independence Avenue, SW., Washington, DC 20250-1104
FOR FURTHER INFORMATION CONTACT: Ecosystem Management Coordination
staff's Assistant Director for Planning Ric Rine at (202) 205-1022 or
Planning Specialist Regis Terney at (202) 205-1552.
SUPPLEMENTARY INFORMATION: The following outline shows the contents of
the preamble, which is also the record of decision (ROD), for this
regulation.
Decision
Alternative M is selected as the final rule. This decision is based
upon the ``Environmental Impact Statement--National Forest System Land
Management Planning,'' USDA Forest Service, 2008, and the supporting
record. This decision is not subject to Forest Service appeal
regulations.
Public comment on the proposed action in the draft environmental
impact statement (EIS) (alternative A) supported some modifications of
the proposed rule. The Department reviewed and considered these
comments, in consultation with agency managers, and concluded the rule
could be improved if some suggested changes were incorporated. Many
suggested modifications contributed to the development of alternative M
in the final EIS.
Outline
Introduction and Background
Purpose and Need for the National Forest System Land Management
Planning Rule
Public Involvement on the Proposed Rule
How Was Public Involvement Used in the Rulemaking
Process?
What General Issues Were Identified Regarding the
Proposed Rule and Draft Environmental Impact Statement?
Alternatives Considered
What Alternatives Were Considered by the Agency?
What is the Environmentally Preferred Alternative?
Decision and Rationale
What Specific Comments Were Raised on the Proposed Rule
and What Changes Were Made in Response to Those Comments?
Compliance With the Endangered Species Act of 1973, as Amended
Regulatory Certifications
Regulatory Impacts
Environmental Impact
Energy Effects
Controlling Paperwork Burdens on the Public
Federalism
Consultation With Indian Tribal Governments
Takings Implications
Civil Justice Reform
Unfunded Mandates
Introduction and Background
The Forest and Rangeland Renewable Resources Planning Act of 1974
(88 Stat. 476 et seq.), as amended by the National Forest Management
Act of 1976 (NFMA) (90 Stat. 2949 et seq.; 16 U.S.C. 1601-1614),
requires the Secretary of Agriculture (the Secretary) to promulgate
regulations under the principles of the MUSYA that set up the process
for the development and revision of land management plans (16 U.S.C.
1604(g)).
The first planning rule, adopted in 1979, was substantially amended
on September 30, 1982 (47 FR 43026), and was amended, in part, on June
24, 1983 (48 FR 29122) and on September 7, 1983 (48 FR 40383). It is
the 1982 planning rule (1982 rule), as amended, which has guided the
development, amendment, and revision of the land management plans on
all national forests and grasslands.
The Forest Service has undertaken several reviews of the planning
process carried out under the 1982 rule. The first review took place in
1989 when the Forest Service, with the help of the Conservation
Foundation, conducted a comprehensive review of the planning process
and published the results in a summary report ``Synthesis of the
Critique of Land Management Planning'' (1990). The critique concluded
that the Agency spent too much time on planning, spent too much money
on planning, and, therefore, the Forest Service needed a more efficient
planning process.
The Forest Service published an advance notice of proposed
rulemaking on February 15, 1991 (56 FR 6508) for possible revisions to
the 1982 rule. A proposed rule was published on April 13, 1995 (60 FR
18886), however, the Secretary chose not to continue with that
proposal.
In response to comments on the 1995 proposed rule, the Secretary
convened a 13-member Committee of Scientists in late 1997 to evaluate
the Forest Service's planning process and recommend changes. In 1998,
the Committee of Scientists held meetings across the country and
invited public participation in the discussions. The Committee's
findings were issued in a final report, ``Sustaining the People's
Lands'' (March 1999). In response to many findings in the 1990
``Synthesis of the Critique of
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Land Management Planning'' and the 1999 Committee of Scientists report,
the Forest Service tried to prepare a rule that would provide a more
efficient planning process. A proposed rule was published on October 5,
1999 (64 FR 54074), and a final rule was adopted on November 9, 2000
(65 FR 67514).
After adoption of the 2000 rule, the Secretary received many
comments from individuals, groups, and organizations expressing
concerns about putting into effect the 2000 rule. In addition, lawsuits
challenging promulgation of the rule were brought by a coalition of 12
environmental groups from 7 States and by a coalition of industry
groups (Citizens for Better Forestry v. USDA, No. C-01-0728-BZ-(N.D.
Cal., filed February 16, 2001)) and (American Forest and Paper Ass'n v.
Veneman, No. 01-CV-00871 (TPJ) (D.D.C., filed April 23, 2001)). Because
of these lawsuits and concerns raised in comments to the Secretary, the
Department of Agriculture started a review of the 2000 rule focusing on
implementation. ``The NFMA Planning Rule Review,'' (USDA Forest Service
April 2001) concluded many concerns about carrying out the rule were
serious and needed immediate attention.
Having considered the reports of the review teams, the Acting
Deputy Under Secretary for Natural Resources and Environment asked the
Chief of the Forest Service to develop a proposed rule to replace the
2000 rule. A new planning rule was proposed on December 6, 2002 (67 FR
72770).
In addition, interim final rules extending the transition from the
1982 rule to the 2000 rule were published May 17, 2001 (66 FR 27552)
and May 20, 2002 (67 FR 35431). The second rule allowed Forest Service
managers to elect to continue preparing plan amendments and revisions
under the 1982 rule until a new final rule was adopted. An interim
final rule was published September 10, 2003 (68 FR 53294) extending the
date project decisions must conform to provisions of the 2000 rule
until a new rule is promulgated. Finally, an interpretive rule was
published September 29, 2004 (69 FR 58055) to clarify the intent of the
transition section of the 2000 rule regarding the consideration of the
best available science to inform project decisionmaking. The 2004
interpretive rule also explicitly states that the 1982 rule is not in
effect. Accordingly, no 1982 regulations apply to project decisions.
The final 2005 rule was published January 5, 2005 (70 FR 1022).
Shortly thereafter, Citizens for Better Forestry and others challenged
it in Federal district court. In an order dated March 30, 2007, the
United States District Court for Northern California enjoined the
Department from putting into effect and using the 2005 rule pending
additional steps to comply with the court's opinion for APA, ESA, and
NEPA (Citizens for Better Forestry v. USDA, 481 F. Supp. 2d 1059 (N.D.
Cal. 2007)). The court concluded,
[T]he agency must provide notice and comment on the 2005 Rule as
required by the APA since the court concludes the rule was not a
`logical outgrowth' of the 2002 proposed rule. Additionally, because
the 2005 Rule may significantly affect the quality of the human
environment under NEPA, and because it may affect listed species and
their habitat under ESA, the agency must conduct further analysis
and evaluation of the impact of the 2005 Rule in accordance with
those statutes.
(Citizens for Better Forestry v. USDA, 481 F. Supp. 1059, 1100 (N.D.
Cal. 2007))
Purpose and Need for the National Forest System Land Management
Planning Rule
The final rule's purpose is two-fold. The primary purpose is to
improve on the 2000 rule by providing a planning process that is
readily understood, is within the Agency's capability to carry out, is
consistent with the capabilities of NFS lands, recognizes the strategic
programmatic nature of planning, and meets the intent of the NFMA,
while making cost effective and efficient use of resources allocated to
the Agency for land management planning. This rule is needed to address
the limitations of the 2000 rule that were identified in the April 2001
``NFMA Planning Rule Review.''
This action's second purpose is in response to the court order in
Citizens for Better Forestry v. USDA that enjoined the 2005 rule. The
EIS supporting this ROD documents the analysis and evaluation of the
impact of the rule in accord with the NEPA.
Based on the results of the aforementioned reviews, principles, and
practical considerations, there is a need for a planning rule that:
Contains clear and readily understood requirements;
Makes efficient use of agency staff and collaborative
efforts;
Establishes a planning process that can be conducted
within agency planning budgets;
Provides for diversity of plant and animal species,
consistent with capabilities of NFS lands;
Requires analyses that are within the Agency's capability
to conduct;
Recognizes the strategic nature of land management plans;
Considers best available science;
Requires public involvement in development of a monitoring
strategy, taking into account key social, economic and ecological
performance measures and provides the responsible official sufficient
discretion to decide how much information is needed;
Promotes the use of adaptive management;
Involves the public;
Guides sustainable management; and
Complies with applicable laws, regulations, and policies.
Public Involvement on the Proposed Rule
How Was Public Involvement Used in the Rulemaking Process?
A notice of intent to prepare an EIS was published in the Federal
Register on May 11, 2007 (72 FR 26775) with a public comment period
ending June 11, 2007. The notice stated the Agency was considering
reinstituting planning direction like that from the 2005 rule and
specifically requested public comments on the nature and scope of
environmental, social, and economic issues that should be analyzed in
the EIS. Because of the extensive public comment already received on
the 2005 rule, the planning directives, and the Agency categorical
exclusion for land management planning, no public meetings were held
for the scoping.
The Agency received a little over 800 responses. Responses included
advocacy for a particular planning rule, as well as suggestions for
analyses to conduct, issues to consider, alternatives to the proposed
action, and calls for compliance with laws and regulations.
Some responses raised specific issues with the proposed action
while others raised broader points of debate with management of the
national forest system (NFS). Some respondents suggested alternative
processes for promulgating a planning rule or alternative purposes for
the NFS. Besides considering comments received during the scoping
period, the Forest Service reviewed the court's opinion on the 2005
rule in Citizens for Better Forestry v. USDA and comments previously
collected during promulgation of the 2005 rule (70 FR 1022, Jan. 5,
2005), agency planning directives (72 FR 4478, Jan. 31, 2007; 71 FR
5124, Jan. 31, 2006), and the Forest Service's categorical exclusion
for land management planning (71 FR 75481, Dec. 15, 2006).
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What General Issues Were Identified Regarding the Proposed
Rule and Draft Environmental Impact Statement?
Based on comments and the aforementioned review, an
interdisciplinary team identified a list of issues to address.
Diversity of Plant and Animal Communities.
Timber Management Requirements of 16 U.S.C. 1604(g).
Identification of Lands Not Suited for Timber Production
(16 U.S.C. 1604(k)).
Standards and Prohibitions.
Environmental Impact Statement.
Best Available Science and Land Management Plans.
Management Requirements.
These issues are described in more detail later in this ROD.
The proposed rule was published on August 23, 2007 (72 FR 48514),
and the notice of availability for the supporting draft EIS was
published in the Federal Register on August 31, 2007 (72 FR 50368). A
copy of the proposed rule and the draft EIS have been available 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/2007_planning_rule.html since August 16, 2007. The proposed action and
preferred alternative identified in both documents was the 2005 rule,
as amended. Public comments were requested on both the proposed rule
and the draft EIS. The comment period for both documents ended on
October 22, 2007. The notice of availability of the final EIS was
published in the Federal Register on February 15, 2008 (73 FR 8869).
The Forest Service received 79,562 responses. Of these, about
78,500 are form letters. The remaining letters consist of original
responses or form letters with added original text. Some respondents
focused their remarks on provisions of the proposed rule, others
concentrated on the alternatives and analyses in the draft EIS and many
comments applied to both documents.
Comments received on the proposed rule and draft EIS were
consistent with, and often reiterated, the comments received during
scoping. These comments played a key role in the decisions made in this
ROD.
Alternatives Considered
The Agency fully developed six alternatives, and considered seven
alternatives that were eliminated from detailed study (40 CFR
1502.14(A)). Alternatives considered in detail are summarized below.
Seven additional alternatives (F-L) were considered but eliminated from
detailed study because they did not meet some aspects of the purpose
and need. More discussion about the eliminated alternatives can be
found in chapter 2 of the EIS.
What Alternatives Were Considered by the Agency?
Alternative A (2005 rule). This alternative is the proposed action
as originally published as a proposed rule on January 5, 2005, and
amended on March 3, 2006, with an updated effective date and transition
period date set out at section 219.14. Alternative A was the preferred
alternative in the draft EIS. This alternative was slightly modified in
response to public comments on the draft EIS. Details of this proposed
rule are in appendix A of the EIS.
The proposed rule describes the NFS land management planning
framework; sets up requirements for sustaining social, economic, and
ecological systems; and gives directions for developing, amending,
revising, and monitoring land management plans. It also clarifies that
land management plans under the proposed rule, absent rare
circumstances, are strategic, and are one stage in an adaptive
management cycle of planning for management of NFS lands. The intended
effects of the proposed rule are to strengthen the role of science in
planning; to strengthen collaborative relationships with the public and
other governmental entities; to reaffirm the principle of sustainable
management consistent with the MUSYA and other authorities; to
establish an environmental management system (EMS) for each NFS unit;
and to streamline and improve the planning process by increasing
adaptability to changes in social, economic, and environmental
conditions. Under this alternative, approval of a plan, plan amendment,
or plan revision would be done in accord with the Forest Service NEPA
procedures. It would be possible for one unit to approve a plan, plan
amendment, or plan revision with a categorical exclusion (CE), a second
unit to use an environmental assessment (EA), and a third unit might
use an EIS depending on the nature of the decisions made in each
respective plan approval.
Alternative B (2000 rule). The 2000 rule at 36 CFR part 219 as
amended is the no action alternative. Although an interim final rule
allowed responsible officials to use the 1982 rule procedures for
planning until a new final rule is adopted (67 FR 35434), this
alternative assumes that responsible officials have been using the 2000
rule procedures.
This rule would guide development, revision, and amendment of land
management plans for the NFS and to a certain extent, guide decisions
for projects and activities as well. It describes the framework for NFS
land and natural resource planning; reaffirms sustainability as the
goal for NFS planning and management; sets up requirements for the
carrying out, monitoring, evaluating, amending, and revising of land
management plans. The intended effects of the rule are to strengthen
and clarify the role of science in planning; to strengthen
collaborative relationships with the public and other government
entities, to simplify, clarify, and otherwise improve the planning
process; and to reduce burdensome and costly procedural requirements.
Plan revisions would require an EIS while plan amendments would follow
agency NEPA procedures, which prescribe the appropriate level of NEPA
documentation based on the significance of effects. The 2000 rule, as
amended, is found in appendix B of the EIS.
Alternative C (1982 rule). Under this alternative, the 1982 rule at
36 CFR part 219, as it existed before promulgation of the 2000 rule,
would guide development, revision, and amendment of land management
plans for the NFS. This rule requires integration of planning for
national forests and grasslands, including the planning for timber,
range, fish, wildlife, water, wilderness, and recreation resources. It
includes resource protection activities such as fire management and the
use of minerals and other resources. This rule also established
requirements for plan and animal diversity such as providing habitat to
ensure viable populations of native and desired non-native vertebrate
species and identifying and monitoring populations of management
indicator species. Case law has applied the monitoring of management
indicator species population trends to projects and activities. Plan
revisions and significant amendments would require an EIS while non-
significant plan amendments would follow agency NEPA procedures, which
prescribe the appropriate level of NEPA documentation based on the
significance of effects. The 1982 rule, as amended, is in appendix C of
the EIS.
Alternative D. This alternative is the same as the proposed action
(alternative A) but without either the environmental management system
(EMS) requirements or references to EMS at section 219.5 in the
proposed action. The EMS would not be part of the plan set of
documents. Setting up an EMS would not be required before plan
approval, and an EMS would not mark the end of the transition period.
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Alternative E. Alternative E is the same as the proposed action
(alternative A) but modified by (1) removing EMS requirements and all
references to EMS, (2) adding standards as a plan component, (3) adding
more direction for identifying lands suitable for timber production and
timber harvest, and (4) adding various timber management requirements
(16 U.S.C. 1604(g)) and limitations on timber removal (16 U.S.C. 1611)
from the NFMA.
Alternative M. This alternative is the preferred alternative in the
final EIS. Alternative M is the same as alternative E except that it
requires an EMS and it places requirements for long-term sustained-
yield capacity and culmination of mean annual increment in agency
directives.
Alternative M directs the Chief to establish direction for EMS in
the Forest Service directives. The directives will formally establish
national guidance, instructions, objectives, policies, and
responsibilities leading to conformance with International Organization
for Standardization (ISO) and adopted by the American National
Standards Institute (ANSI) as ``ISO 14001:2004(E) Environmental
Management Systems--Requirements With Guidance for Use.'' The ISO 14001
is presently available for a fee from the ANSI Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://webstore.ansi.org/ansidocstore/default.asp.
Under Alternative M, the EMS scope is changed so that the
responsible official is the person authorized to identify and establish
the scope and environmental aspects of the EMS, based on the national
EMS and ISO 14001, with consideration of the unit's capability, needs,
and suitability. The detailed procedures to establish scope and
environmental aspects are being developed in a national technical guide
and the Forest Service Directives System.
Alternative M allows a responsible official to conform to a multi-
unit, regional, or national level EMS as an alternative to establishing
an EMS for a specific unit of the NFS. The responsible official will
have the responsibility to deal with local concerns in the EMS. The
unit EMS will provide the opportunity either to conclude that the
higher level EMS adequately considers and addresses locally identified
scope and significant environmental aspects, or to address project-
specific impacts associated with the significant environmental aspects.
The complete details for how the Agency will do this are being
developed in a national technical guide and the Forest Service
Directives System. This guidance is planned for release during fiscal
year 2008.
Alternative M does not require an EMS prior to approving a plan,
plan revision, or plan amendment. However, it does provide that no
project or activity approved under a plan developed, amended, or
revised under the requirements of this subpart may be implemented until
the responsible official establishes an EMS or the responsible official
conforms to a multi-unit, regional, or national level EMS. Furthermore,
alternative M has several additional minor changes described in the
final EIS.
What Is the Environmentally Preferable Alternative?
The Department has identified two environmentally preferable
alternatives, alternative B and alternative M. They are identified as
environmentally preferred for different reasons. It should be noted
that the presence or absence of EMS in the rule wording of these two
alternatives is not a factor in their identification as environmentally
preferable because the Agency will establish an EMS regardless of the
alternative selected. The Agency fully intends to comply with Executive
Order 13423--Strengthening Federal Environmental, Energy, and
Transportation Management by implementing an EMS. In alternative B, all
Agency direction concerning EMS would come from Agency directives. In
alternative M, Agency direction concerning EMS would come from the
planning rule and from Agency directives.
Alternative B: Alternative B is one of two environmentally
preferable alternatives. Although neither of the environmentally
preferable alternatives has direct environmental effects, the
procedural requirements of alternative B provide more surety that
explicit environmental protections will be set up during land
management planning. For example, alternative B requires the setting up
of a national science advisory board and the possible setting up of
regional advisory boards. It calls for use of broad-scale analyses to
set the context for decisionmaking and specific actions for
coordination and interaction with other Federal agencies, State and
local governments, American Indian Tribes and Alaska Native
Corporations, interested individuals and organizations. Alternative B
calls for providing for species viability and requiring that the
planning process includes development and analysis of information about
a specified list of ecosystem and diversity components. The same
factors making alternative B one of the environmentally preferable
alternatives makes it unworkable. As previously described, alternative
B's requirements are so prescriptive they cannot be done within agency
resources. The cost and complexity of carrying out alternative B were
major factors in the Department's decision to develop a new planning
rule and in the decision not to select alternative B in this ROD.
Alternative M: Alternative M is the other environmentally
preferable alternative. The rule contains substantive requirements for
protecting important resources such as soil, water, wildlife habitat,
and aesthetics. It requires NFS lands contribute to the sustainability
of ecosystems within the capability of the land, and requires species-
specific plan components be developed in situations where broader
ecosystem diversity components might not meet the habitat needs of
threatened and endangered species, species-of-concern, and species-of-
interest. The Forest Service directives provide substantial additional
guidance aimed at ensuring resource protection and restoration. Another
reason for identifying alternative M as an environmentally preferable
alternative is the streamlined planning process it engenders will allow
units of the NFS to respond more quickly to new information or changed
conditions. The flexibility to respond quickly might, in some
situations, allow the Agency to better mitigate or avoid threats to
national forest resources by allowing variances or amendments to plans
to occur without the delay caused by time-consuming NEPA procedures.
This flexibility contributed to the decision to select alternative M.
Decision and Rationale
Decision
Alternative M is selected as the final rule. This decision is based
on the Environmental Impact Statement--National Forest System Land
Management Planning, USDA Forest Service, 2008, and its supporting
record. This decision is not subject to Forest Service appeal
regulations.
Public comment on the proposed action in the draft EIS (alternative
A) supported some modifications of the proposed rule. The Department
reviewed and considered these comments, in consultation with Agency
managers, and concluded the rule could be improved if some suggested
changes were incorporated. Many suggested modifications contributed to
the development of alternative M in the final EIS.
[[Page 21472]]
Rationale for the Decision
The following paragraphs describe a process of elimination for
selecting alternative M, by first discussing the alternative's
responsiveness to the purpose and need and then each alternative's
responsiveness to significant issues identified through public
comments.
Response to Purpose and Need
Alternatives A, D, and E, and M meet the purpose and need for
action previously described in this document. In contrast, alternatives
B and C do not meet the purpose and need for action.
Alternative B, the 2000 rule, was not selected because it does not
meet the purpose and need for action. The 2001 NFMA Planning Rule
Review and the subsequent 2002 business model workshop identified a
number of shortcomings with the 2000 rule and these shortcomings
constitute a large part of the purpose and need for action. This
alternative is identified as the no action alternative in the EIS.
First, alternative B does not meet the purpose and need for a rule
to have clear and readily understood requirements. This rule has both
definitions and analytical requirements that are unclear and complex,
and, therefore, subject to inconsistent implementation across the
Agency. Second, alternative B does not meet the need for a rule that
makes efficient use of agency staff and collaborative efforts. This
alternative includes unnecessarily detailed procedural requirements for
scientific peer reviews, broad-scale assessments, monitoring, and
science advisory boards. These detailed analysis requirements would
cause land management plan revisions to take an expected 6 years to
complete. Although this rule requires public involvement, it would be
difficult for members of the public to remain engaged in such a
protracted process and even agency staff turnover would likely
interrupt such a long process. With a 6-year revision process,
approximately 48 plans would be in some stage of revision during a 15-
year cycle. Funding this many simultaneous revisions would likely
exceed the Agency's budget--failing to meet another part of the purpose
and need to establish a planning process that can be conducted within
agency planning budgets. The monitoring requirements in alternative B
are overly prescriptive and do not provide the responsible official
sufficient discretion to decide how much information is needed--
contrary to the purpose and need to establish monitoring requirements
that provide the responsible official sufficient discretion to decide
how much information is needed.
Alternative C, the 1982 rule, was also not selected because it does
not meet the purpose and need for action. It should be noted that
normally an action alternative would not be studied in detail if it
does not fully meet the purpose and need. However, the Agency is in
litigation. The plaintiffs argue that the 1982 rule, not the 2000 rule,
is in effect as a result of the court's injunction of the 2005 rule.
Because the proposal is to revise an existing rule, taking no action
would entail continuing under the existing rule. Whether one believes
the 2000 rule or the 1982 rule is the existing rule or ``no action
alternative,'' both have been considered. Furthermore, all but one of
the issues concerning the proposed action is based on the public's many
years of experience with the 1982 rule. Accordingly, the 1982 rule
provides a useful basis for comparison of the alternatives.
Alternative C, like alternative B, does not meet the need to make
efficient use of agency staff and collaborative efforts because of the
detailed analysis requirements, including benchmarks that would cause
land management plan revisions to take an average of 5 years to
complete. Because of the this long planning period, Alternative C has
the same problems with the public remaining involved, agency staff
changes, and exceeding the Agency's budget as Alternative B has.
Approximately 40 plans would be in some stage of revision during a 15-
year cycle. Funding this many simultaneous revisions would likely
exceed the Agency's budget--failing to meet another part of the purpose
and need to establish a planning process that can be conducted within
Agency planning budgets. Alternative C does not meet the purpose and
need to provide for diversity of plant and animal species consistent
with capabilities of NFS lands. The requirements in alternative C to
maintain viable populations of native and desired non-native vertebrate
species do not recognize the limitations of suitability and capability
of the specific land area and are a technical impossibility given that
the cause of the decline of some species is outside the Agency's
control. Further, the requirement to monitor management indicator
species (MIS) populations at the plan and project level has proved
difficult.
With alternatives B and C eliminated, the remaining four
alternatives, A, D, E, and M, were compared with respect to the issues
identified from public comments.
Response to the Issue of Diversity of Plant and Animal
Communities
Concerns were expressed that the proposed rule procedures for
diversity weaken protection for fish and wildlife species because the
rule does not include the requirement for managing habitat to maintain
viable populations.
The NFMA requires the planning rule to specify guidelines that
provide for diversity of plant and animal communities based on the
suitability and capability of the specific land area in order to meet
multiple-use objectives and provide, where appropriate, to the degree
practicable, for steps to be taken to preserve the diversity of tree
species (16 U.S.C. 1604(g)(3)(B)). Although providing a mandate of
viability is within this authority, NFMA does not mandate viability of
species. Rather, species diversity appropriate to the area covered by a
plan is NFMA's goal. Further, viability would place an impractical
burden on the Agency.
The view held by some, that there must be 100 percent certainty
that species viability will be maintained, is a technical impossibility
given that the cause of the decline of some species is outside the
Agency's control. For example, viability of some species on NFS lands
might 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 Agency's control (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). Moreover, the number of recognized species
present on the units of the NFS is very large. It is clearly
impractical to analyze all native and desirable non-native vertebrate
species, and previous attempts to analyze the full suite of species by
groups, surrogates, and representatives has had mixed success in
practice. Furthermore, 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.
Alternatives A, D, E, and M meet the NFMA diversity requirements by
establishing a goal of providing appropriate ecological conditions for
plant and animal communities,
[[Page 21473]]
requiring a framework for sustaining these conditions in plans, and
giving the responsible official discretion to decide what plan
components should be included in the plan for species. Alternatives A,
D, E, and M require the planning directives for sustaining ecological
systems to be consistent with the concepts of ecosystem diversity and
species diversity. In addition, guidance is currently included in the
Forest Service Directives System for providing self-sustaining
populations of species-of-concern. A self-sustaining population is one
that is sufficiently abundant and has appropriate population
characteristics to provide for its persistence over many generations.
Species-of-concern are species for which the responsible official
determines that management actions might be needed to prevent listing
under the ESA. This issue did not result in the further elimination of
the remaining four alternatives, A, D, E, and M.
Response to the Issue of Requiring an Environmental Impact
Statement
There is concern that by not requiring an EIS for plan development
and plan revision, the proposed rule would not require consideration of
a full range of planning alternatives, would reduce public involvement
in land management planning, and would eliminate consideration of
cumulative effects or leave such consideration to project-level
analyses.
Alternatives A, D, E, and M allow an iterative approach to
development of a plan, plan amendment, or plan revision. Under these
alternatives, a plan is developed as various options for plan
components are merged, narrowed, adjusted, added, and eliminated during
successive rounds of the collaborative process. The term ``option'' is
used to differentiate it from ``alternative'' as used in the NEPA
process. The difference between alternatives and options is that
options are developed to address specific issues or groups of issues.
For example, a collaborative process to develop a proposal for a plan
revision or plan amendment might identify differences of opinion
concerning desired conditions for an area with respect to mechanized
use. Options for mechanized use would then be developed. Where there
are points of agreement on other desired conditions, there would be no
need to develop options. An option could also be developed as a
complete alternative to a proposal. If the responsible official
determines the plan revision or amendment can be categorically excluded
from documentation in an EA or EIS, no alternatives would be developed.
If further NEPA analysis and documentation are required, appropriate
alternatives would be developed from the options.
The difference in public participation between previous planning
rules and alternatives A, D, E, and M is whether public participation
occurs inside or outside the NEPA procedures. As discussed in the EIS,
public involvement requirements in these alternative rules exceed those
required for an EIS under NEPA. Under these alternatives, the
responsible official must provide opportunities for the public,
Federal, State, and local agencies, and Tribal governments to
collaborate and participate openly and meaningfully in the planning
process. Specifically, as part of plan development, plan amendment, and
plan revision, the responsible official must involve the public in
developing and updating a comprehensive evaluation report, establishing
the components of a plan, and designing the monitoring program. Public
notice must also be provided at initiation of plan development,
revision, or amendment. Plan development, plan revision, and plan
amendment are subject to a 90-day comment period and a 30-day objection
period. Public notice must also be provided at the point of approval.
These public involvement requirements would apply even if a land
management plan decision is categorically excluded from further
analysis and documentation in an EA or EIS.
In contrast, plan development and revision under the 1982 rule
involving an EIS required public notice at initiation of plan
development or revision, a minimum three-month public comment period
for draft plans and draft EISs, public notice in a record of decision
at the point of approval, and an administrative appeal process.
Experience in planning processes under the 2005 rule has shown that
the collaborative process is very effective and successful in engaging
the public. Alternatives A, D, E, and M all share the same requirements
for public involvement as the 2005 rule.
Throughout 28 years of land management planning, the Agency has
learned that tiering to the cumulative effects analysis in a plan EIS
did not provide nearly as much useful information at the project or
activity level as the Agency had expected. The effects analyses in plan
EISs were often too general to meet analytical needs for projects and
activities. Meaningful cumulative effects analyses cannot be conducted
until project design and location are known or at least reasonably
foreseeable. Plan-level analysis would, however, evaluate existing
conditions and broad trends at the geographic scale of the planning
area. The Department believes these rules provide for the development
and consideration of planning alternatives with much more robust public
participation than previously afforded. The Department also believes
that analysis of current conditions and trends required by these rules
constitutes an appropriate evaluation of broader scale settings and
influences that merit recognition in the planning process. Cumulative
effects analysis at the project scale will continue when designs and
locations are at least reasonably foreseeable. These issues did not
result in the further elimination of the remaining four alternatives,
A, D, E, and M.
Response to the Issue of Best Available Science
There was a concern the proposed rule requiring the responsible
official only to take into account the best available science (sec.
219.11) weakens the consideration of science, while the 2000 rule
required the responsible official to ensure the plan was consistent
with the best available science. Respondents said the planning rule
should ensure plans are consistent with best available science.
The Department believes it is essential that land management plans
be based on current, relevant science. Public comment on the EIS
clearly showed strong support for incorporating science into the
planning process. The Department believes alternatives A, D, E, and M
are equally responsive to the desire to increase effective use of
relevant science in the planning process. These alternatives have
requirements to document how science was considered and that science
was appropriately interpreted and applied. Further, these alternatives
allow the responsible official to use independent peer review, science
advisory boards, and other review methods. Alternative M differs
slightly from alternatives A, D, and E because the detailed procedural
requirements to address risks and uncertainties are currently in Agency
directives instead of the rule.
The words ``take into account'' were used in the proposed action
(alternative A) and alternatives D, E, and M instead of the words of
the 2000 rule, which used ``consistent with'' because ``take into
account'' better expresses that formal science is just one source of
information for the responsible official and only one aspect of
decisionmaking. When making decisions, the responsible
[[Page 21474]]
official also considers public input, competing use demands, budget
projections, and many other factors as well as science. The Department
believes that this wording gives clearer and stronger direction as to
what is expected of the responsible official in developing the plan
document or set of documents and in considering the best available
science.
This issue did not result in the further elimination of the
remaining four alternatives, A, D, E, and M.
Response to the Issue of Management Requirements
There is a concern the proposed planning rule does not include
minimum specific management requirements as the 1982 rule did at
section 219.27, and that the lack of management requirements in the
planning rule would reduce environmental protections resulting in
significant environmental impacts including reduced environmental
protection in project design and implementation.
The Department believes that less specific planning guidance is
needed after decades of experience implementing NFMA. The proposed
planning rule (alternative A) and alternatives D, E, and M provide a
flexible process that can be applied to issues associated with local
conditions and experience with implementing individual plans. The
minimum specific management requirements in the 1982 rule are not
required by NFMA--perhaps with good reason. The Department believes it
is important not to include overly prescriptive requirements in a
planning rule that unnecessarily limit a responsible official's
discretion to develop, revise, or amend a land management plan tailored
to local conditions.
There has always been a tension between providing needed detailed
direction in a planning rule and discretion of the responsible
official. Project and activity decisions by a responsible official are
not only constrained and guided by a large body of law, regulation, and
policy; they are also guided by public participation and administrative
oversight. Public participation plays an important role in identifying
unintended consequences of a proposed action. Additionally,
administrative oversight conducted through management reviews, and the
Agency's appeals and objections processes provide an additional check
on a responsible official's exercise of discretion. Because every issue
cannot be identified and dealt with in advance for every situation, the
Department must rely on the judgment of the responsible official to
make decisions based on laws, regulation, policy, sound science, public
participation, and oversight.
This issue did not result in the further elimination of the
remaining four alternatives, A, D, E, and M.
Response to the Issue of Timber Management Requirements of 16
U.S.C. 1604(g)
Concerns were expressed that the proposed rule guidance for timber
resource management (sec. 219.12(b)(2)) was inadequate because it did
not include the specificity of the 1982 rule. Further, some respondents
believe the timber management requirements from NFMA are legally
required to be in the regulations.
The Department believes alternatives A, D, E, and M all meet the
requirements of NFMA at section 1604(g). The difference among
alternatives with respect to this issue is whether the requirements
will be in the rule or in the Forest Service directives. The Department
believes timber management using good land stewardship practices will
occur regardless of which approach is taken. Moreover, the Department
believes the wording in the proposed rule (alternative A) meets the
NFMA requirement in 16 U.S.C. 1604(g) by directing the Chief of the
Forest Service to include the timber management requirements of section
1604(g) in the Forest Service Directives System. However, the
Department also understands and respects the view that if the
requirements are in the rule, they are afforded greater visibility.
Accordingly, to eliminate this potential controversy, alternatives E
and M were selected over alternatives A and D, because they include the
NFMA timber management requirements (16 U.S.C. 1604(g)) where
alternatives A and D do not.
Response to the Issue of Identification of Lands Not Suited
for Timber Production (16 U.S.C. 1604(k))
Concerns were expressed that the proposed rule guidance for
identifying lands not suited for timber production (sec. 219.12(a)(2))
was insufficient because it did not include the detail that was in
earlier rules and that not including this detail represented an
elimination of resource protection standards.
The Department believes alternatives A, D, E, and M all meet the
requirements of NFMA at section 1604(k). The difference among
alternatives with respect to this issue is whether the requirements
would be in the rule or in the Forest Service directives. The
Department believes the identification of lands not suited for timber
production will properly occur pursuant to section 1604(k) regardless
of which approach is taken. Both the proposed rule (alternative A) and
alternative D provide a framework for consideration of lands not suited
for timber production, but rely on the Forest Service directives as a
means to provide further detail to accomplish this requirement.
Alternatives E and M include additional procedural requirements to
identify land as not suitable for timber production where technology is
not available for conducting timber harvest without causing
irreversible damage to soil, slope, or other watershed conditions or
substantial and permanent impairment of the productivity of the land,
and where there is no reasonable assurance that such lands can be
adequately restocked within 5 years after final regeneration harvest.
As in the discussion of timber management requirements, the Department
understands and respects the view that if detailed guidance for
identifying lands not suited for timber production is in the rule, it
is afforded greater visibility. Accordingly, to eliminate this
potential controversy, alternatives E and M were selected over
alternatives A and D, because they include such detailed guidance in
the rule.
Response to the Issue of Standards and Prohibitions
Concerns were expressed that the proposed rule limited land
management plans to strategic plan components and did not specifically
allow more conventional components, such as standards, that could
regulate or limit uses and activities.
The Department believes plans are more effective if they include
more detailed descriptions of desired conditions, rather than long
lists of prohibitive standards or guidelines developed in an attempt to
anticipate and address every possible future project or activity and
the potential effects such projects could cause. For example, standards
could have been included that precluded 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.
[[Page 21475]]
In reviewing public comments, the Department concluded that the
argument for excluding standards from a planning rule so as not to
limit a responsible official's discretion cuts both ways. Just as
standards and prohibitions in a planning rule limit a responsible
official's discretion, not allowing them also limits a responsible
official's discretion in developing, revising, and amending a land
management plan. Recognizing the ecological, economic, and social
diversity across the NFS, there might be circumstances where certain
standards or prohibitions would be appropriately included in a land
management plan. Accordingly, the Department believes it is important
to explicitly allow a responsible official the flexibility to include
standards and prohibitions in a land management plan.
Alternatives E and M were selected over alternatives, A and D,
because alternatives E and M explicitly allow standards and
prohibitions to be included in land management plans.
Consideration of Environmental Management System (EMS)
After considering the preceding issues, alternatives E and M
remained for selection. EMS was included in the proposed action because
the Department is committed to complying with Executive Order 13423,
requiring the head of each Federal agency to put into effect an EMS as
the primary management approach for addressing environmental aspects of
internal agency operations and activities, and because the Department
believes it will enhance adaptive planning and should be part of the
land management framework. The Department is committed to conform to
ISO 14001. The Department is required by E.O. 13423 and instructions
for implementing the E.O. to implement an EMS by December 2008.
The Forest Service has a long history of adaptive management and
the concepts associated with EMSs. The ``Plan-Do-Check-Act'' cycle of
an EMS can be found in plan implementation strategies designed for
forest plans developed under the 1982 rule. The concept of adaptive
management has been a component of Forest Service planning rules dating
back to 1995 where it was identified as a cornerstone of ecosystem
management. Although systems were developed to provide an adaptive
approach to management, in the press of business the ``Check--Act''
portions of the system were only sporadically accomplished. The
Department considered relying solely on Agency directives to implement
the Executive order for land management planning--as reflected in
alternatives B, C, D, and E, but believes incorporating EMS in the
planning rule better integrates adaptive management and EMS in Forest
Service culture and land management planning practices.
The proposed rule (alternative A) requires the responsible official
to establish an EMS for each unit of the NFS, the scope of which was to
include at least the land management planning process. Each unit
revising a plan using the proposed rule procedures would be required to
have an EMS in place before approval of the revised plan. Plan
amendments could not be made after the end of the 3-year transition
period if an EMS was not in place. These requirements generated
management concerns during initial efforts to create unit EMSs because:
(1) EMS was perceived to be redundant to existing management systems;
(2) wording about the scope of the EMS covering the land management
planning process was too broad, resulting in inconsistent application;
(3) requiring an EMS prior to approving a revision was perceived as an
obstacle to completing the planning process, that is, it is more
logical to revise plans first, then use an EMS to manage environmental
aspects under the new plan rather than to prepare an EMS before or
concurrent with planning; (4) the proposed rule requirement at section
219.5 to create an EMS on every administrative unit of the NFS did not
permit the Agency to realize efficiencies by establishing a multi-unit,
regional, or national level EMS; and (5) independently developing of
the ISO 14001 protocol from the start for every administrative unit
proved to be too costly and unwieldy.
Although the Agency recognizes concerns about potential redundancy
in management systems due to EMS requirements, the Agency is committed
to integrating EMS with existing management systems or modifying
existing systems to be consistent with EMS. Alternative M was crafted
to address these remaining management concerns. First, regarding
redundancy with existing agency processes, this alternative would allow
the Chief of the Forest Service to establish detailed procedures in the
directives to create an EMS that reduces or eliminates redundancy.
Second, the wording stating that the scope of an EMS will include the
entire planning process described in the rule is removed in alternative
M and replaced with wording to the effect that the scope will include
environmental aspects as determined by the responsible official in a
unit EMS or established in a multi-unit, regional, or national level
EMS. The EMS scope is changed so that the responsible official is the
person authorized to identify and establish the scope and environmental
aspects of the EMS, based on the national EMS and ISO 14001, with
consideration of the unit's capability, needs, and suitability. The
detailed procedures to establish scope and environmental aspects are
being developed in a national technical guide and the Forest Service
directives. Third, alternative M does not require an EMS to be in place
before developing or revising a plan. It does, however, state that no
project or activity approved under a plan developed, amended, or
revised under the rule may be implemented until the responsible
official either establishes a unit EMS or conforms to a multi-unit,
regional, or national level EMS. The Department believes this change
from the proposed rule will improve integration of EMS into the plan
development and revision process by allowing plan components to inform
the identification of environmental aspects in an EMS. Fourth,
alternative M allows a responsible official to conform to a multi-unit,
regional, or national level EMS as an alternative to establishing an
EMS for a specific unit of the NFS. The responsible official will have
the responsibility to deal with local concerns in the EMS. The unit EMS
will provide the opportunity either to conclude that the higher level
EMS adequately considers and addresses locally identified scope and
significant environmental aspects, or to address project-specific
impacts associated with the significant environmental aspects.
Administrative units that do not have an EMS will satisfy the
requirement in section 219.5 after they develop an EMS that conforms
with the national EMS and either adds environmental aspects and
components under the local focus area or determines that the national
EMS focus areas sufficiently identify and deal with the local unit's
environmental aspects and components. The Department believes this
modification will provide the Forest Service flexibility to determine
the appropriate scope of an EMS. Finally, alternative M directs the
Chief to establish direction for EMS in the Forest Service directives.
The directives will formally establish national guidance, instructions,
objectives, policies, and responsibilities leading to conformance with
ISO 14001. By letter of direction from the Chief and through its
directives, the Forest Service will implement a national EMS applicable
to
[[Page 21476]]
all administrative units of the Forest Service.
Implementation of the EMS will be governed by the Forest Service
directives. A technical guide is being prepared for use by EMS managers
and an EMS handbook is being developed for use in the field. The scope
of the EMS will address the goals of EO 13423, nationally identified
land management environment aspects, and as appropriate, local
significant environmental aspects.
The EMS will be designed to conform to the ISO 14001 standard, as
required by section 219.5(c). Audit procedures will be established in
the technical guide or directives. Conformance will be determined by
the procedures detailed in the directives for the EMS. A ``non-
conformity'' identified by a management review or audit under these EMS
procedures is not a failure to conform to the ISO 14001 standard, per
section 219.5(c), but part of the Plan-Do-Check-Act (P-D-C-A) cycle of
continuous improvement that makes up the ISO conformant EMS. A non-
conformity would be followed up with preventive or corrective action
which leads to continuous improvement in environmental performance.
Such a ``non-conformity'' is a normal part of the EMS P-D-C-A process
and does not constitute a failure to conform to the ISO 14001 standard
as required by section 219.5(c).
Alternative M resulted as the final land management planning rule
not only through a reasoned choice among the alternatives, but also
through an iterative approach to alternative development by which the
Agency modified the proposed action and alternatives and developed an
additional alternative in response to public comments. Details
concerning each change between the proposed rule (alternative A) and
the final rule (alternative M) are discussed in the section-by-section
portion of this preamble.
What Specific Comments Were Raised on the Proposed Rule and
What Changes Were Made in Response to Those Comments?
Each comment received consideration in the development of the final
rule. A response to comments on the draft EIS and the proposed rule may
be found in the response to comments appendix of the EIS located on the
World Wide Web/Internet (see ADDRESSES).
General Comments
The Department received the following comments not specifically
tied to a particular section of the 2007 proposed rule.
Comment: Guidance for management of individual resources and uses.
Some respondents commented on a variety of issues such as access, air,
conversion of hardwood stands to pine monoculture, soil and water,
carbon storage, climate change, developed recreation, dispersed
recreation, eco-tourism, ecosystem services, grazing, habitat for
threatened and endangered species, habitat for fish and wildlife,
heritage resources, historic range of variability, hunting, late
successional reserves, mining, non-Federal lands, off-road vehicle use,
oil and gas development, old growth forest conservation, parks and
preserves, preservation, recreation, resilience to disturbance,
restoration, rural communities, soil conservation, timber harvest,
water quality, watersheds, weed-free ecosystems, wilderness, and
wildlife. The respondents wanted issues about the management of these
resources discussed in the final rule or for the rule to require
management toward a particular emphasis, such as protection or
conservation of biodiversity, ecosystem integrity, ecosystem
sustainability, grizzly bears, heritage resources, national forests,
old growth, opportunities for education and scientific research,
primitive recreational opportunities, roadless area protection,
roadless characteristics, scenery, soils, undisturbed forests, viable
populations of wildlife, watershed protection, wilderness, wildlife, or
the production of timber, minerals, oil and gas, or other commodities.
One respondent suggested the final rule should incorporate specific,
enforceable timetables for the processing of right-of-way applications
for wireless communications infrastructure and encourage the
infrastructure on NFS lands. The Virginia Department of Environmental
Quality supplied suggestions to protect water quality and other
resources for national forests in the State of Virginia.
Response: The Agency agrees the issues raised are important.
However, the final rule is intended to provide overall direction for
how plans are developed, revised, and amended. The final rule does not
provide direction for the management of any specific resource. This
type of guidance is properly found in the plans themselves or in the
subsequent decisions regarding projects and activities on a particular
national forest, grassland, prairie, or other comparable administrative
unit. Those communities, groups, or persons interested in these
important issues can influence plan components and monitoring programs
by becoming involved in planning efforts throughout the process,
including the development and monitoring of the plan, as well as the
development of proposed projects and activities under the plan. The
Agency is committed to reducing threats to the Nation's forests and
grasslands, as discussed in the USDA Forest Service Strategic Plan: FY
2007-2012. These threats include: (1) The risk of loss from
catastrophic wildland fire caused by hazardous fuel buildup; (2) the
introduction and spread of invasive species; (3) the loss of open space
and resulting fragmentation of forests and grasslands that impair
ecosystem function; and (4) unmanaged recreation, particularly the
unmanaged use of off-highway vehicles. The Agency forwarded comments
from the State of Virginia to the staff of the George Washington and
Jefferson National Forests.
Comment: Climate change. Some respondents felt it was imperative
the rule contain specific direction to address the problem of global
warming and climate change. They suggested the rule should set forth a
strategy and require plans that anticipate and provide for the likely
effects of climate change and result in NFS lands being managed to
reduce global warming. Some believe that the proposed rule would lead
to an increase in livestock grazing, oil and gas development, and
timber harvest, and that these increases would add to problems of
global warming.
Response: The Agency agrees the problem of climate change is
important. The land management planning process is informed by both a
comprehensive evaluation and the best available science to evaluate the
situation of the individual forest unit with respect to climate change.
The final rule is intended to guide how plans are developed, revised,
and amended. It does not provide direction that is more appropriately
addressed in the plans themselves, or in the subsequent decisions about
projects and activities on a particular national forest, grassland,
prairie, or other comparable administrative unit. These activities
would be guided by land management plans and subsequent and separate
decisions made at the project level with appropriate NEPA documents.
Because it is not possible to estimate these subsequent and separate
decisions, there is no basis to conclude that the rule will lead to
increases or decreases in grazing, oil and gas, timber harvest, or
global warming.
Comment: Timeline for developing the rule. Several respondents said
the Agency rushed the rulemaking and EIS
[[Page 21477]]
process. Others requested a rule be developed for the benefit of all
citizens and not be unduly influenced by politics and special
interests. Other respondents expressed support for the proposed rule
and urged the Forest Service to finalize the rule as soon as possible
so ongoing plan revisions can be completed.
Response: The process of developing a new planning rule has been
ongoing since recommendations for more effective planning were
documented in the 1989 ``Synthesis of the Critique of Land Management
Planning.'' The final rule was developed considering recommendations of
the 1999 Committee of Scientists and public and internal input on the
2000 and the 2005 rules. Although every effort has been made to
promptly complete rulemaking tasks, the Agency believes there has been
ample time for public comment, agency analysis of alternatives, and
ultimately the selection of this final rule. The final rule was
developed to ensure efficient and effective land use planning
procedures and was not unduly influenced by political considerations.
Comment: Consultation with a committee of scientists. Several
respondents were concerned there was no consultation with a committee
of scientists in developing the proposed rule. Some said the 1999
Committee of Scientists should be reconvened, others said previous
recommendations of the past Committee should be reviewed.
Response: The National Forest Management Act (NFMA) does not
require a committee of scientists for revision of the planning rule.
Nonetheless, the Department based the final 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 final rule, were recommendations of that report. The
Department realizes that scientific knowledge will continue to expand.
Therefore, the responsible official must take into account the best
available science when plans are developed, revised, or amended.
Comment: Compliance with the court decision enjoining the 2005
rule. Some respondents commented that because the proposed rule is
identical to the enjoined 2005 rule, it does not comply with the
Administrative Procedure Act (APA), National Environmental Policy Act
(NEPA), Endangered Species Act (ESA), and other environmental laws.
Some respondents disagreed with the reasoning of the district court in
Citizens for Better Forestry v. USDA and were concerned that
preparation of an EIS to adopt a planning rule may set precedent that
in addition to the environmental analysis underlying the development of
a categorical exclusion, a redundant EIS must be prepared to determine
the effects of using the categorical exclusion.
Response: On March 30, 2007, the United States District Court for
the Northern District of California in Citizens for Better Forestry v.
USDA, 481 F. Supp 2d 1059 (N.D. Cal. 2007) enjoined the Agency from
carrying out and using the 2005 rule until the Agency took certain
additional steps concerning the APA, NEPA, and ESA. The Forest Service
decided to undertake these processes to expedite much needed plan
revisions and plan amendments.
The Department is committed to transparent rulemaking and public
participation under the APA. In the final 2005 rule, the Department
changed the provisions for timber management requirements, changed the
provisions for making changes to the monitoring program, and added
provisions for environmental management system (EMS). The court found
that the Forest Service did not provide sufficient notice to the public
of these changes to the 2005 rule such that the 2005 rule was not the
logical outgrowth of the 2002 proposed rule. Therefore, the Agency
provided notice and comment of the 2007 proposed rule (72 FR 48514,
August 23, 2007) which included the final 2005 rule's provisions for
timber management, monitoring, and EMS.
Regarding NEPA, the court found the 2005 rule did not fit the
Agency's categorical exclusion for servicewide administrative
procedures. The categorical exclusion for administrative procedures was
developed with public participation and the use of categorical
exclusions is a recognized method for NEPA compliance. Under the
court's order, further environmental analysis under NEPA was required.
Accordingly, the Agency prepared a draft EIS on the proposed rule and a
final EIS.
Finally, the court found the Agency was required to prepare a
biological assessment or to consult on the impact of the 2005 rule
under ESA. Based upon an analysis for the 2005 rule, the Agency had
concluded that adoption of the 2005 rule alone would have no effect on
listed species or critical habitat. The court, however, found that
conclusion unlawful absent some type of consultation with the United
States Fish and Wildlife Service (USFWS) and the National Oceanic and
Atmospheric Administration (NOAA) Fisheries or a biological assessment.
Accordingly, the Agency has prepared a biological assessment, which
concludes that the final rule, in itself, will have no effect on
threatened, endangered, or proposed species or to designated or
proposed critical habitat. Since initiating the development of the
current proposed planning rule, the Forest Service has consulted with
NOAA Fisheries and USFWS to discuss the programmatic nature of the
planning rule, to explain the Forest Service's tiered decisionmaking
framework (regulation, land management plan, and project) and to
consider the potential of the 2008 planning rule to affect threatened,
endangered and proposed species, and designated and proposed critical
habitat. We concluded this consultation by reaching a ``no effect''
determination. The Forest Service was aware that USFWS and NOAA
Fisheries had agreed with the Forest Service's similar ``no effect''
determination for the 2000 planning rule. However, the Forest Service
ultimately concluded that, because our ``no effect'' determination
fulfilled the consultation requirement, it was not necessary to submit
this biological assessment to the NOAA Fisheries or USFWS seeking
agreement with our finding.
The APA notice and comment opportunity, the EIS, and the
preparation of the biological assessment fully address the procedural
defects identified by the district court. The court did not require any
substantive changes in the 2005 rule.
Comment: Compliance with the Multiple-Use, Sustained-Yield Act, and
other laws governing the Forest Service. Some respondents commented on
whether the proposed rule complies with laws affecting the Agency,
including the MUSYA, NFMA, NEPA, Federal Land Policy and Management Act
(FLPMA), Forest and Rangeland Renewable Resource Planning Act (RPA),
ESA, Telecommunication Act of 1996, and applicable State laws,
including best management practices, providing environmental safeguards
and public involvement.
Response: All alternatives are faithful to compliance with all laws
governing the Forest Service, including applicable State laws. NFMA
requires the use of the MUSYA to provide the substantive basis for
forest planning. As used in the rule, sustainability embodies these
congressional mandates, including the requirements of FLPMA, RPA, and
other laws. The interrelated and interdependent elements of
sustainability are social, economic, and ecological as described in
section 219.10. The final rule sets the stage for
[[Page 21478]]
a planning process that can be responsive to the desires and needs of
present and future generations of Americans, for the multiple uses of
NFS lands. The final rule does not make choices among the multiple
uses; it describes the processes by which those choices will be made as
a preliminary step during development of plans. The plans developed
provide guidance for future projects and activities.
Moreover, an EIS has been prepared for the rule under the
requirements of NEPA, and the Forest Service has reached a ``no
effect'' determination under the ESA after preparing a biological
assessment. Since initiating the development of the current proposed
planning rule, the Forest Service has consulted with NOAA Fisheries and
USFWS to discuss the programmatic nature of the planning rule, to
explain the Forest Service's tiered decisionmaking framework
(regulation, land management plan, and project) and to consider the
potential of the 2008 planning rule to affect threatened, endangered
and proposed species, and designated and proposed critical habitat. We
concluded this consultation by reaching a ``no effect'' determination.
The Forest Service was aware that USFWS and NOAA Fisheries had agreed
with the Forest Service's similar ``no effect'' determination for the
2000 planning rule. However, the Forest Service ultimately concluded
that, because our ``no effect'' determination fulfilled the
consultation requirement, it was not necessary to submit this
biological assessment to NOAA Fisheries or USFWS seeking agreement with
our finding.
Comment: Placing procedures in directives rather than the rule.
Some respondents commented the proposed rule does not meet all
requirements of NFMA, such as provisions for determining timber harvest
levels, identification of lands not suitable for timber production, use
of the clearcutting harvest system, and providing for a diversity of
plant and animal communities based on the suitability and capability of
the land. They also expressed concerns that carrying out these
requirements through the Agency's Directives System, rather than the
plan rule itself, would not meet NFMA's mandatory and enforceable
requirements, because the requirements would no longer have the force
and effect of law. Other respondents said NFMA requirements have the
force and effect of law, and if the Agency does not have mandatory
requirements in regulations, a responsible official could end up
violating NFMA and a lawsuit could shut down the national forest and
perhaps the entire NFS. Respondents noted that directives do not
require a mandatory public comment and agency response as is required
through the regulatory process provided in the APA (5 U.S.C. 551);
therefore, changes could be made to the directives without public
input.
Response: The Agency is committed to meeting all the requirements
of NFMA for all projects. Individual projects must meet NFMA's
requirements for soil and water protection, restocking, restrictions on
the use of clearcutting, esthetic quality, and so forth, regardless of
whether those requirements are set out in regulation or agency
directives.
The Agency believes the NFMA requirement that the planning
regulation ``shall include, but not be limited to * * * specifying
guidelines for land management plans developed to achieve the goals of
the Program which'' [provide for diversity, ensure timber harvest will
only occur if certain conditions are met, etc.] affords the Agency
discretion to provide policy guidance either through regulations or
directives (16 U.S.C. 1604(g)). Directives are available at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fs.fed.us/im/directives.
In keeping with the strategic and adaptive nature of planning, the
Agency is striving to make rulemaking more strategic and adaptive.
Therefore, many procedural and technical details have been 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 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 FSH is the principal source of specialized guidance
and instruction for carrying out the policies, objectives, and
responsibilities in the FSM.
Furthermore, the Agency requires that Federal, State, and local
governments and the public have adequate notice and opportunity to
comment on the formulation of standards, criteria, and guidelines
applicable to land management planning when substantial public interest
or controversy concerning a directive can be expected. For example, in
the March 23, 2005, Federal Register (70 FR 14637), the Agency gave
notice and requested public comment concerning issuance of interim
directives related to carrying out the 2005 rule. The issuance of the
final directives and response to comments received was published on
January 31, 2006 (71 FR 5124).
A similar process will be done for directives carrying out the
final planning rule. The directives for land management planning are
composed of two manual chapters and nine handbook chapters. Manual
chapters FSM 1900--Planning--Chapter Zero Code, and FSM Chapter 1920--
Land Management Planning. FSM 1900 will need to be amended to update a
few definitions. FSM 1920 will need updating to reflect the final rule
for timber management requirements. FSH 1909.12 is composed of ten
chapters as follows: Chapter--Zero Code, Chapter 10--Land Management
Plan, Chapter 20--The Adaptive Planning Process, Chapter 30--Public
Participation and Collaboration, Chapter 40--Science and
Sustainability, Chapter 50--Objection Process, Chapter 60--Forest
Vegetation Resource Planning, Chapter 70--Wilderness Evaluation,
Chapter 80--Wild and Scenic River Evaluation, and Chapter 90--
References. Chapters 10, 20, 60, and 90 will need updating to reflect
the final rule. The changes to the final rule do not directly affect
chapters Zero Code, 30, 40, 50, 70, and 80 of the handbook. However,
the Agency has received comments on the existing directives and will
take a comprehensive look at these directives to see if improvements
can be made.
Although directives have been held not subject to judicial
enforcement, (Western Radio Services Co., inc. v. Espy, 79 F 3d 896
(9th Cir. 1996)), they are enforced in the Forest Service. The Agency
has a variety of methods for determining whether policy is being put
into practice. First, the public involvement process allows for direct
input into the planning process and management decisions on-the-ground.
This local collaboration serves as an important check on agency
practices. Second, the Agency has administrative appeals and objections
processes through which the public can raise concerns about projects
and land management plans. Third, the Forest Service conducts regular
management reviews designed to assess to what degree the Agency is
complying with rules and policies.
The Department also understands and respects the view expressed in
a number of public comments that if certain requirements are in the
rule, they are afforded greater visibility. In response to these
comments, the Department has included the NFMA timber management
requirements (16 U.S.C. 1604(g)) and detailed requirements for
identifying
[[Page 21479]]
lands not suited for timber production (16 U.S.C. 1604(k)) in the final
rule.
Comment: Compliance with the ESA. Some respondents raised concerns
the proposed rule, without a strong viability or ecological
sustainability requirement, does not ensure protection of federally-
listed threatened or endangered species (such as the Canada lynx), will
not help with their recovery, and will not forestall the listing of
other species. Some stated that if the needs of these species are not
met through a meaningful NFMA process, they will have to be met through
an ESA process, thereby requiring greater application of the ESA to
future project operations.
Response: The final rule is intended to provide a framework to
contribute to sustaining native ecological systems by providing
appropriate ecological conditions to support diversity of native plant
and animal species in the plan area. Plan components establish a
framework to provide the characteristics of ecosystem diversity in the
plan area. Plans are to include provisions in plan components that the
responsible official determines are needed to provide appropriate
ecological conditions or protective measures for specified threatened
and endangered species, consistent with limits of agency authorities,
the capability of the plan area, and multiple-use objectives
(219.10(b)(2)).
Under the ESA, the Agency has responsibilities to insure its
actions do not jeopardize the continued existence of threatened and
endangered species, or destroy or adversely modify habitat designated
as critical habitat for such species. This is done where applicable
when the Forest Service is proposing to take a particular action,
through the use of ESA section 7(a)(2) consultation with the USFWS and
NOAA Fisheries on potential effects of agency proposals to such species
and to designated critical habitat. The Agency also coordinates with
the USFWS and NOAA Fisheries under ESA section 7(a)(1) to carry out
programs and activities for the conservation of endangered and
threatened species and the ecosystems on which they depend.
Comment: Consistency with the intent of Congress as expressed in
the Appeals Reform Act (ARA). One respondent asserted that the use of a
predecisional objection process for plans rather than a post-decisional
appeal process runs counter to the intent of Congress when they passed
the Appeals Reform Act (ARA). This respondent believes that, although
the ARA addresses only project-level appeals, Congress intended to
leave unaffected the forest plan appeal process that was then in place.
Response: There is nothing in the Appeals Reform Act or its
legislative history that would indicate Congress had any intent of
addressing appeals processes other than those for ``proposed actions of
the Forest Service concerning projects and activities implementing land
and resource management plans.'' On the other hand, NFMA only requires
``public participation in the development, review, and revision of land
management plans'' without specifying any post-decision review (16
U.S.C. 1604(d)). The Department believes the proposed predecisional
objection process provides an opportunity for public concerns to be
reviewed at a higher administrative level using a process that is more
collaborative and less confrontational. The predecisional objection
process provides an opportunity to make needed or appropriate
adjustments to a plan before it is approved. The Agency's experience
with post-plan decision appeals is that it is difficult to make needed
changes. Often a separate amendment process must be carried out to
respond to an appeal.
Comment: Integration of Minerals Management. Some respondents
raised concerns the proposed rule does not ensure integration of
mineral and energy resource development with the management of
renewable resources. They believe without specific procedures for
integration, the Agency will not meet its obligations under the Mining
and Minerals Policy Act, Forest Service Minerals Program Policy, and
the Forest Service Energy Implementation Plan.
Response: Increased production and transmission of energy and
mineral resources in a safe and environmentally sound way is essential
to the well-being of the American people. Like other agencies, the
Forest Service is charged to take appropriate actions, to the extent
consistent with applicable law, to expedite projects that will increase
the production, transmission, or conservation of energy and mineral
resources. In most instances, the Agency meets this responsibility by
assuring that mineral activities on NFS lands are conducted in a way
that minimizes environmental impacts on the renewable surface resources
as directed by the MUSYA, NFMA, and various other statutes. Management
responsibility for non-renewable, subsurface mineral resources
primarily rests with the Secretary of the Interior. Where applicable,
plan components will be developed considering the various conditions
and uses of each individual unit, including the mineral and energy
resource and opportunities for development of that resource. Forest
planning is one, but certainly not the only, means to integrate the
exploration and development of mineral and energy resources with the
use and protection of the various goods and services provided from the
NFS.
Comment: Legal requirements. Several respondents commented that
various laws have made changes to some legal requirements, which must
be addressed in the rule. For example, the Alaska Native Interest Lands
Conservation Act requirement under section 1326(b) that ``no further
studies of Federal lands in the State of Alaska for the single purpose
of considering the establishment of a conservation system unit,
national recreation area, or for related or similar purposes shall be
conducted unless authorized by this Act or by further Act of
Congress.''
Response: Wording at section 219.7(a)(6)(ii) in the final rule
accounts for such situations by stating that wilderness recommendations
must be considered ``unless otherwise prohibited by law.'' Although
this provision of the final rule discusses only wilderness
recommendations, no planning actions will be taken if in conflict with
Federal law.
Comment: Court oversight. Some respondents commented the proposed
rule makes it more difficult to challenge agency decisions in court.
Response: 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 providing discretion
for 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 Agency believes the final rule is fully compatible with the
nature of forest planning as described by the U.S. Supreme Court in
Ohio Forestry v. Sierra Club 523 U.S. 726 (1998) (Ohio Forestry). The
Agency 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 accord with Ohio Forestry.
As a general matter, and consistent with the Ohio Forestry decision, a
plan by itself is not expected to be reviewable by
[[Page 21480]]
the courts at the time the plan is developed, revised, or amended. The
Department does not believe this rule makes judicial review any harder
to obtain than was the case in Ohio Forestry. 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
relevant to that action.
Comments in Response to Specific Sections
The following is a section-by-section discussion of comments
received on specific sections of the proposed rule, the Agency's
response, and a discussion on the differences between the 2007 proposed
rule and the final rule and why the Department made the changes. The
Agency ordered the rule sections from general to specific. The first
section introduces the reader to what is covered in the final rule and
acknowledges the Forest Service's multiple-use and sustained-yield
mandate (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. 219.3 and 219.4), a
discussion of environmental management systems (sec. 219.5), followed
by the specific plan requirements (sec. 219.6-219.16). Throughout the
final rule minor edits have been made for clarity.
Section 219.1--Purpose and Applicability
This section introduces the reader to what is covered in the final
rule, acknowledges the Forest Service's multiple-use and sustained-
yield mandate, and directs the Chief of the Forest Service to establish
planning procedures in the Forest Service directives. The Department
retains the 2007 proposed rule wording in the final rule, with the
minor change of replacing ``required components'' with ``plan
components'' to be consistent with section 219.7.
Comment: Meaningful, definitive plans. Several respondents urged
that regulations provide for meaningful plans that give the American
people a good idea of how lands will be managed. These respondents
stated plans should not be vague, but rather be a contract with the
public about how lands and resources will be managed. To be definitive
in this regard, the plans must have standards that require or prohibit
certain activities, standards and guidelines for management areas,
other items required by NFMA, and supported by an EIS. One respondent
commended the intent of defining measurable objectives toward desired
conditions along with a structure for monitoring and evaluation.
Response: The Department believes plans are more effective if they
include more detailed descriptions of desired conditions, rather than
long lists of prohibitive standards or guidelines developed in an
attempt to anticipate and address every possible future project or
activity and the potential effects such projects could cause. For
example, standards could have been included that precluded 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.
In reviewing public comments, the Department concluded that the
argument for excluding standards from a planning rule so as not to
limit a responsible official's discretion cuts both ways. Just as
standards and prohibitions in a planning rule limit a responsible
official's discretion, not allowing them also limits a responsible
official's discretion in developing, revising, and amending a land
management plan. Recognizing the ecological, economic, and social
diversity across the NFS, there might be circumstances where certain
standards or prohibitions would be appropriately included in a land
management plan. Accordingly, the final rule explicitly allows a
responsible official the flexibility to include standards and
prohibitions in a land management plan.
Comment: Desired conditions, modeling parameters, information gaps.
Some respondents asked that the final rule identify parameters that
would guide the development of vegetation simulation models; clarify
how desired conditions guide a project level EIS or EA, and how
information gaps would be rectified when existing science is lacking.
Response: As with many other procedures, those that would guide the
development of vegetation simulation models are properly discussed in
technical guides rather than the planning rule. This allows selected
models to change as technology evolves. The final rule defines a
consistent approach to analysis and evaluation at broad scales and the
local level. The final rule at section 219.6(a) would require the
responsible official to keep the plan set of documents up to date with
evaluation reports to show changing conditions, science, and other
relevant information.
Desired conditions under the final rule are the social, economic,
and ecological attributes toward which land management under the plan
will aspire. A plan's desired conditions will contribute to the purpose
and need for action articulated in a project EA or EIS. Responsible
officials propose to carry out various projects and activities designed
to meet a particular purpose and need for action, which should move
toward or maintain desired conditions and achieve objectives described
in the plan. The comprehensive evaluation report under the final rule
may describe the risks and uncertainties associated with carrying out
management consistent with the plan. At the project stage, where gaps
in information are apparent, the Council on Environmental Quality
Regulations for Implementing the Procedural Provisions of the NEPA at
40 CFR 1502.22 (incomplete or unavailable information) would be
followed, and the Agency would acknowledge when information is lacking
or either obtain it or
the agency shall include within the environmental impact statement:
(1) A statement that such information is incomplete or unavailable;
(2) a statement of the relevance of the incomplete or unavailable
information to evaluating reasonably foreseeable significant adverse
impacts on the human environment; (3) a summary of existing credible
scientific evidence which is relevant to evaluating the reasonably
foreseeable significant adverse impacts on the human environment,
and (4) the agency's evaluation of such impacts based upon
theoretical approaches or research methods generally accepted in the
scientific community. For the purposes of this section, ``reasonably
foreseeable'' includes impacts which have catastrophic consequences,
even if their probability of occurrence is low, provided that the
analysis of the impacts is supported by credible scientific
evidence, is not based on pure conjecture, and is within the rule of
reason (40 CFR 1502.22).
Managers prioritize risks and develop strategies to control them.
These strategies may include specific monitoring and evaluation to
gather additional information.
Section 219.2--Levels of Planning and Planning Authority
This section describes planning in general, how planning occurs at
many organizational levels and geographic areas in the Agency, and
provides the basic authorities and direction for developing, amending,
or revising a plan. The Department retains the 2007 proposed rule
wording in the final rule.
[[Page 21481]]
Comment: Addressing statewide issues. One respondent discussed past
difficulty resolving statewide issues under the 2005 rule, and
expressed concern the proposed rule will have the same problems.
Another respondent commented that some planning issues are best
answered at the regional level.
Response: The final rule has provisions for plan development and or
revision to occur at a multiple forest level (sec. 219.2(b)(2)). Under
the 1982 rule, responsible officials have routinely coordinated
planning across unit and regional boundaries and will continue to do so
as plans are developed under the final rule. In addition, the final
rule provides the option for higher-level officials to act as the
responsible official for a plan, plan amendment, or plan revision
across a number of plan areas when needed.
Comment: Levels of authority. Some respondents were concerned the
further up the authority ladder a decision is made, the further it is
removed from the local level, and there is excessive discretion and
lack of accountability in the rule, including unrestricted license to
amend plans through project decision-making in violation of the NFMA.
Response: In compliance with NFMA, the final rule establishes a
planning rule as a broad framework where issues specific to a plan area
can be identified and resolved in an efficient and reasonable way,
where responsible officials and the public can be informed by the
latest data and scientific assessments, and where the public
participates collaboratively. Like the 2000 rule, the responsible
official will typically be the forest supervisor under the final rule;
not the regional forester as under the 1982 rule.
Regardless of the administrative level, the responsible official
must develop, amend, or revise plans within the framework set out by
the planning rule and is accountable for compliance with the planning
rule and the multitude of relevant laws and policies. About project
decisionmaking, the NFMA allows plans to ``be amended in any manner
whatsoever after final adoption after public notice'' (16 U.S.C.
1604(f)(4)). Furthermore, the Agency has been doing project amendments
under the 1982 rule since the 1980s.
Comment: Inconsistency between responsible officials. Several
respondents said the proposed rule would guarantee inconsistent
application across the Agency because it leaves virtually all
definitional and methodological decisions to the responsible official.
Moreover, several respondents said that the Agency needs to put an end
to inconsistency that occurs between responsible officials.
Response: Responsible officials currently coordinate across unit
boundaries and would continue to do so because the areas of analysis
for evaluations described in sections 219.6, 219.7, and 219.10 would
often extend beyond the unit's boundaries to adjacent or nearby NFS
units. In addition, the final rule provides the option for higher-level
officials to act as the responsible official for a plan, plan
amendment, or plan revision across a number of plan areas when
consistency is needed. The Forest Service already has directives which
ensure consistency as needed for Tribal or public consultation or for
social, economic, or ecological resource related issues. The final rule
supplies discretion for the responsible official because the Agency
believes that the responsible official is the person most familiar with
the resources and the people on the unit and is usually the most
appropriate person to make decisions affecting those lands.
Section 219.3--Nature of Planning and Land Management Plans
This section describes the nature of planning, and the force and
effect of plans. The Department retains the 2007 proposed rule wording
in the final rule.
Comment: Strategic nature of planning. Many respondents were
concerned about the strategic nature of plans. Some respondents were
concerned that if strategic plans do not create legal rights, then
there is no need for projects to be consistent with the plan; a
circumstance that would violate NFMA. Other respondents said that if
plans do not control on-the-ground activities and are only
``aspirational,'' the plans become meaningless paper exercises. On the
other hand, some respondents were concerned that plans were too
restrictive because forest staff would refuse to consider activities
not consistent with management zones designated in the plan. Some
respondents disagreed that plans do not usually include final decisions
approving projects. They cited decisions made in the recently issued
plan revisions in the Forest Service's Southern region. Other
respondents agree plans are strategic and are not actions that
significantly impact the human environment and, therefore, that the
preparation of an EIS is not required. Others stated that plans should
focus on goals rather that specific prescriptions or prohibitions.
Response: The NFMA (16 U.S.C. 1604(i)) requires that resource
plans, permits, contracts, and other instruments for the use and
occupancy of NFS lands be consistent with land management plans. The
final rule's approach to the project consistency requirement is
consistent with the Supreme Court's observation of the characterization
of plans in Norton v. Southern Utah Wilderness Alliance, 124 S. Ct.
2373 (2004), 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.' ''
An ``aspirational'' plan establishes a long-term management
framework for NFS units. A framework is not a meaningless paper
exercise. Within the framework, specific projects and activities are
proposed, approved, and carried out depending on specific conditions
and circumstances at the time of accomplishment. The final rule is
consistent with the Supreme Court's description of plan decisions and
the nature of plans in Ohio Forestry v. Sierra Club (523 U.S. 726, 737
(1998)). This ruling explains 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.''
The use of a framework for identifying suitable uses has evolved.
Determining suitable uses was often characterized in plans prepared
under the 1982 rule as permanent restrictions on uses or permanent
determinations as to which uses would be suitable in particular areas
of the unit over the life of the plan. However, even under the 1982
rule, Forest Service staff realized these identifications were never
permanent, unless they were a statutory designation by Congress.
Section 219.8 of the final rule lists actions that must be taken if an
existing or proposed project or activity is found to be inconsistent
with the applicable plan.
Recent plan revisions for NFS's Southern region did include project
and activity decisions, but those revisions were done under the 1982
rule. Project and activity decisions can be in a plan but would likely
be rare exceptions under the strategic approach used for the final
rule.
Section 219.4--National Environmental Policy Act Compliance
This section of the final rule describes how planning will comply
with NEPA.
[[Page 21482]]
The Department retains the 2007 proposed rule wording in the final rule
except for a change to paragraph (b). Within paragraph (b), the
Department removed the wording about categorical exclusion so that it
now says approval of a plan, plan amendment, or plan revision, under
the authority of this subpart, will be done in accord with the Forest
Service NEPA procedures. As categorical exclusions are part of those
procedures, this is not a substantive change.
Comment: Plans as major Federal actions. Although some respondents
supported categorically excluding land management plans from
documentation in an EIS or EA, other respondents believed land
management plans significantly affect the environment and are
therefore, major Federal actions triggering the NEPA requirements for
an EIS (40 CFR 1508.18). Some stated NEPA requirements for an EIS are
triggered because land management plans are in the category of Federal
actions that are described as ``formal plans'' in the Council on
Environmental Quality (CEQ) regulations at 40 CFR 1508.18 (b)(2). Some
respondents expressed the view that by determining the types of land
uses that will occur in areas of a national forest, the Forest Service
makes decisions in its land management plans that ultimately can result
in significant effects even though the plans themselves may not approve
specific projects or activities. Other respondents believed
extraordinary circumstances in the plan area would always preclude the
use of a categorical exclusion.
Response: CEQ regulations define ``major Federal action'' as
including ``actions with effects that may be major'' and state, ``major
reinforces but does not have a meaning independent of significantly''
(40 CFR 1508.18). The CEQ regulations state that Federal actions fall
within several categories, one of which is the ``[a]doption of formal
plans, such as official documents prepared or approved by Federal
agencies which guide or prescribe alternative uses of Federal
resources'' (40 CFR 1508.18). However, not all Federal actions are
major Federal actions significantly affecting the quality of the human
environment. Plans developed under the final rule would typically not
approve projects and activities, or command anyone to refrain from
undertaking projects and activities, or grant, withhold, or modify
contracts, permits, or other formal legal instruments. Such plans have
no independent environmental effects. Plan components would guide the
design of projects and activities in the plan area. The environmental
effects of proposed projects and activities will be analyzed under NEPA
once they are proposed. Furthermore, the final rule does not preclude
preparation of an EA or EIS for a land management plan where
appropriate to the decisions being made in a plan approval.
The Forest Service conducted an analysis for categorically
excluding land management plan decisions and published a proposed
category for public comment in 2005 (70 FR 1062). The Agency's final
category was published in the Federal Register on December 15, 2006 (71
FR 75481). The land management planning categorical exclusion states
that a decision approving projects and activities, or that would
command anyone to refrain from undertaking projects and activities, or
that would grant, withhold, or modify contracts, permits, or other
formal legal instruments are outside the scope of this category.
Proposals outside the scope of the categorical exclusion must be
documented in an EA or EIS. Accordingly, land management plans,
depending on their content, can be subject to various levels of NEPA
documentation.
The Department acknowledges that extraordinary circumstances can
preclude the use of a categorical exclusion, but believes that, absent
plan decisions with on-the-ground effects, extraordinary circumstances
are not likely.
Forest Service NEPA procedures provide that a responsible official,
when considering whether to rely upon a categorical exclusion must
determine whether there are extraordinary circumstances, which would
preclude the use of a categorical exclusion. The procedures describe
resource conditions to be considered when determining whether there are
extraordinary circumstances. The procedures make clear that ``The mere
presence of one or more of these resource conditions does not preclude
use of a categorical exclusion. It is (1) the existence of a cause-
effect relationship between a proposed action and the potential effect
on these resource conditions and (2) if such a relationship exists, the
degree of the potential effect of a proposed action on these resource
conditions that determines whether extraordinary circumstances exist.''
Although the responsible official must consider whether there are
extraordinary circumstances precluding use of a categorical exclusion
for a plan, the Department expects that typically the nature of the
plan will be such that its potential effects on the resource conditions
will not involve extraordinary circumstances.
Comment: Desired conditions as a final agency decision. Some
respondents believe that the establishment in plans of desired
conditions and general suitability determinations (sec.
219.7(a)(2)(iv)) for management areas are final agency actions that
will preclude certain uses from occurring. They also note the preamble
for the 2005 rule (70 FR 1031) admits the approval of a forest plan is
a final agency decision.
Response: The Department agrees that the approval of a plan, plan
amendment, or plan revision is a final agency action under CEQ
regulations, and that such actions may have environmental effects in
some extraordinary circumstances, such as when a plan amendment or
revision includes final decision approving projects or activities.
As discussed at section 219.12 of the final rule, NFS lands are
generally suitable for a variety of multiple uses, such as outdoor
recreation, range, timber, watershed, and wildlife and fish purposes,
and a plan could designate the same area as suitable for multiple uses
which when any one is authorized, precludes other uses. Such
identification is guidance for project and activity decisionmaking, is
not a permanent land designation, and is subject to change through plan
amendment or plan revision. Specific uses of specific areas are
approved through project and activity decisionmaking. At the time of
plan approval, the Forest Service does not typically have detailed
information about what projects and activities will be proposed and
approved over the life of the a plan, where they will be located, or
how they will be designed. Under the final rule, plans will be
strategic rather than prescriptive in nature, absent rare
circumstances. Plans would 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 would be designed to
help achieve the desired conditions. None of the plan components are
intended to directly dictate an on-the-ground decision that has impacts
on the environment. Rather, they state guidance and goals to be
considered in project and activity decisions.
Comment: Desired condition and suitability determinations as
irretrievable and irreversible decisions: A respondent commented that
plans make irretrievable and irreversible decisions because desired
future
[[Page 21483]]
conditions require certain management and identifying a timber base
assures that certain actions will occur and impacts will result.
Another respondent commented that the zoning of certain forest lands in
the plan has a direct impact on how national forests will be managed
and what impacts will be acceptable.
Response: The identification of desired conditions in a plan will
not require any activities to actually occur or describe the precise
activities to be undertaken to bring a forest or grassland to those
conditions. Although a statement of desired conditions will typically
influence the choice and design of future proposed projects and
activities in the plan area it does not by itself have any effects on
the environment. Likewise identifying a particular area as suitable for
timber production does not require or approve any projects or
activities, command anyone to refrain from undertaking projects and
activities, or grant, withhold, or modify contracts, permits, or other
formal legal instruments. Nor does it mean that a particular set of
management prescriptions will be the only set considered when future
projects are proposed in that area.
Comment: Standards and guidelines as final agency decisions: A
respondent stated that standards and guidelines ensure that protective
or impacting activities will occur.
Response: Standards and guidelines provide constraints,
information, and guidance that will be applied to future proposed
projects or activities to contribute to achieving or maintaining
desired conditions. Standards and guidelines may even determine whether
a potential project is feasible. Furthermore, standards and guidelines
will typically influence the design of proposals for future projects
and activities in the plan area. The influence standards and guidelines
have on the direct, indirect, and cumulative effects of future projects
or activities are not known and cannot be meaningfully analyzed until
such projects or activities are proposed by the Agency. If a plan
standard or guideline were to approve projects and activities, or
command anyone to refrain from undertaking projects and activities, or
grant, withhold, or modify contracts, permits, or other formal legal
instruments, such a plan component would be subject to appropriate NEPA
analysis and documentation.
Comment: Roadless inventory, wilderness or wild and scenic rivers
recommendations, and oil and gas leasing as final agency decisions.
Some respondents did not agree that plans do not typically make final
decisions subject to NEPA, citing the determination of roadless areas,
recommendations for wilderness or wild and scenic rivers, and the
decisions to open areas to oil and gas leasing. Other respondents agree
with the Forest Service that plans do not approve or execute any
particular action; that management is more dynamic when it is closest
to the ground.
Response: The planning process includes inventories and analysis
that provide information but this information is not a decision.
Inventories identifying areas meeting certain criteria for potential
wilderness areas are an example. Only the Congress can make the
decision to designate wilderness or wild and scenic rivers. Unless
otherwise provided by law, based on inventories and analysis, the
responsible official will consider all NFS lands possessing wilderness
characteristics for recommendation as potential wilderness areas during
plan development or revision. Congress may consider recommendations in
the plan, but has no obligation to designate wilderness consistent with
the plan's recommendations. The final rule ensures that NEPA analysis
would coincide with those stages in agency planning and decisionmaking
likely to have a measurable effect on the human environment. If the
Chief decides to forward preliminary recommendations of the forest
supervisor to the Secretary, an applicable NEPA document shall
accompany these recommendations.
If the responsible official proposes to determine what oil and gas
lands are administratively available for oil and gas under 36 CFR
228.102(d), this would be a separate decision, which the plan may
cross-reference. However, this is an activity decision under 36 CFR
228.102(d), this is not a plan decision or plan component.
Comment: Disclosure of the environmental effects of a plan. Many
respondents were concerned that using a categorical exclusion instead
of an EIS for land management planning eliminates disclosure of
environmental effects of a land management plan. Some were concerned
that without disclosure of environmental effects, scientists and the
public would not have a basis for providing meaningful comments. Some
respondents believed the proposed categorical exclusion would eliminate
cumulative effects analysis of management activities across the NFS in
violation of NEPA.
Response: A categorical exclusion is one method of complying with
NEPA. A categorical exclusion represents a Forest Service determination
that the actions encompassed by the category ``do not individually or
cumulatively have a significant effect on the human environment'' (40
CFR 1508.4). Plans developed under the final rule would typically not
include a decision approving projects and activities, nor that command
anyone to refrain from undertaking projects and activities, nor that
grant, withhold or modify contracts, permits, or other formal legal
instruments. Plan components would provide guidance and a strategic
framework-they would not compel changes to the existing environment.
Achieving desired conditions depends on future management decisions.
Thus, without a decision approving projects and activities, or that
commands anyone to refrain from undertaking projects and activities, or
that grants, withholds or modifies contracts, permits, or other formal
legal instruments, the plan components would not be linked in a cause-
effect relationship over time and within the geographic area to any
resource. Therefore, such a plan would not have a significant effect on
the quality of the human environment.
The final rule would provide for extensive analysis, as set out in
section 219.6 and section 219.7. A comprehensive evaluation of current
conditions and trends would be done for plan development and revision
and updated at least every 5 years (sec. 219.6(a)(1)). This evaluation,
along with information from annual evaluations and other sources, would
be part of the continually updated plan documents or set of documents
that would be considered in project analysis. These up-to-date plan
documents or set of documents would provide a better context for
project cumulative effects disclosures than previously provided by
programmatic plan EISs under the 1982 rule; therefore, the Forest
Service would make better informed management decisions at the time it
decides to propose projects under the plan. However, the comprehensive
evaluation report will not have a cumulative effects disclosure like
the EISs under the 1982 rule had.
The Forest Service is required to address the cumulative effects of
projects and activities. Those cumulative effects will be analyzed and
disclosed at the time the projects and activities are proposed, which
is the time when the Forest Service has a goal, is actively preparing
to make a decision about one or more alternatives to achieve that goal,
and the effects can be meaningfully evaluated (40 CFR 1508.23).
Comment: Plan alternatives. Several respondents commented that by
not
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using an EIS for land management planning, no alternatives will be
considered other than the one proposed by the Forest Service. They were
concerned this would preclude the consideration of alternatives
proposed by the public. Some suggested that alternatives play an
important role in educating the public about the possible outcomes for
national forests and grasslands. Others believed evaluating
alternatives allows Forest Service managers to make decisions that are
more informed.
Response: With the 1982 rule, the Forest Service believed the most
efficient planning approach was to integrate the rule's regulatory
requirement to formulate alternatives to maximize net public benefit
with the NEPA alternative requirement (i.e., 40 CFR 1502.14). However,
the final rule would not require alternatives because it envisions an
iterative approach to plan development, in a way that plan options are
developed and narrowed successively (sec. 219.7(a)(7)). The Department
recognizes that people have many different ideas about how NFS lands
should be managed and agrees that the public should be involved in
determining what the plan components should provide. Therefore, the
final rule provides for participation and collaboration with the public
at all stages of plan development, plan amendment, or plan revision.
Under the final rule, the responsible official and the public may
iteratively develop and review various options for plan components,
including options offered by the public. Responsible officials and the
public would work collaboratively to narrow the options for a proposed
plan instead of focusing on distinct alternatives that would be carried
through the entire process. The Forest Service developed this iterative
option approach under the final rule to encourage people to work
together, to understand each other's values and interests, and to find
common solutions to the important and critical planning issues.
Comment: Efficiency of future project and activity decisionmaking.
Some respondents believed categorically excluding land management plans
will increase the analysis needed for project or activity decisions and
therefore, reduce efficiency gained during the planning process. Some
stated that without a plan EIS, cumulative effects and impacts to
forest-wide resources would now have to be evaluated in each project
decision.
Response: Inherent in these comments is the assumption that
programmatic land management plan EISs consistently provided useful and
up-to-date information for project or activity analysis including
sufficient cumulative effects analysis for reasonably foreseeable
projects and activities. After 28 years of NFMA planning experience,
the Forest Service has determined that plan EIS cumulative and
landscape-level effects analyses are mostly speculative and quickly out
of date. Landscape conditions, social values, and budgets change
between when a plan's effects analysis occurs and when most project and
activity decisions are made. Large-scale disturbances, such as drought,
insects and disease, fires, and hurricanes can dramatically and
unexpectedly change conditions on hundreds to thousands of acres. Use
of a plan area can change dramatically in a relatively short time, as
has occurred with the increased numbers of off-highway vehicles in some
areas or the listing of a species under the ESA. Hence, the Forest
Service has found that a plan EIS typically does not provide useful,
current information about potential direct, indirect, and cumulative
impacts of project or activity proposals. Such effects will be better
analyzed and disclosed when the Forest Service knows the proposal's
design and the environmental conditions of the specific location.
Section 219.5--Environmental Management Systems
This section of the final rule describes environmental management
systems (EMS) provisions. The EMS provisions will enhance the Agency's
ability to monitor and adaptively respond to changes in the
environmental aspects in its land management activities. The Department
modified the wording of the proposed rule to (1) permit the Agency to
establish a multi-unit, regional, or national level EMS; (2) clarify
that the scope of an EMS will include land management environmental
aspects as determined by the responsible official; and (3) add a
requirement that no project or activity approved under a plan
developed, amended, or revised may be implemented until the responsible
official has established an EMS.
The Department decided to allow the responsible official to conform
to a multi-unit, regional, or national level EMS because this
modification will provide the Forest Service flexibility to determine
the appropriate scope of an EMS and allow the Agency to set EMS
procedures at the appropriate organizational level to improve
environmental efficiency and effectiveness. The responsible official
will have the responsibility to deal with local concerns in the EMS.
The unit EMS will provide the opportunity either to conclude that the
higher level EMS adequately considers and addresses locally identified
scope and significant environmental aspects, or to address project-
specific impacts associated with the significant environmental aspects.
The complete details for how the Agency will do this are being
developed in a national technical guide and the Forest Service
directives.
The Department changed the scope of an EMS so that the responsible
official is the person authorized to identify and establish the scope
and environmental aspects of the EMS, based on the national EMS and ISO
14001, with consideration of the unit's capability, needs, and
suitability. The detailed procedures to establish scope and
environmental aspects are being developed in a national technical guide
and the Forest Service Directives System which are planned for release
in fiscal year 2008. The Department made this change because the
wording about scope in the proposed rule was too broad to be
effectively implemented.
The Department is requiring the Chief to establish direction for
EMS in the Forest Service directives. The directives will formally
establish national guidance, instructions, objectives, policies, and
responsibilities leading to conformance with International Organization
for Standardization (ISO) and adopted by the American National
Standards Institute (ANSI) as ``ISO 14001:2004(E) Environmental
Management Systems--Requirements with Guidance for Use.''
The Department decided to remove the requirement that an EMS be in
place prior to developing or revising a plan. However, the Department
added the requirement that no project or activity approved under a plan
d