National Forest System Land Management Planning

PDF Version (46 pp, 300K, About PDF)

[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]
[[Page 21468]]

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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://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

[[Page 21469]]

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).

[[Page 21470]]

• 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://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.

[[Page 21471]]

    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://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://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

[[Page 21484]]

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
developed, amended, or revised under the rule may be implemented until
the responsible official either establishes an 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.
    Comment: Contribution of EMS to the planning process. Several
respondents questioned the value of including EMS in the proposed rule.
A respondent expressed the belief that EMS is voluntary for industry
and not enforceable; however, incorporating it in the planning rule
would give it the force of law against the Agency. One respondent noted
that although the

[[Page 21485]]

effectiveness of monitoring should be tightly integrated into each
forest plan, it can be done without a burdensome and impractical EMS.
Other respondents said that the existing planning process has adequate
requirements for adaptive management, and the requirement to develop an
EMS is redundant. Another respondent found requiring EMS to be
inconsistent with the proposed rule's intent to be strategic rather
than prescriptive. Another respondent suggested the requirement for EMS
be moved to the directives and expanded to provide guidance on its
scope and use. Conversely, some respondents expressed support for
including an EMS in the rule. Several respondents expressed the opinion
that a strategic forest plan accompanied by an EMS was preferable to a
prescriptive forest plan.
    Response: EMS is based on a national standard and the procedures
for enforcing it will be established in the technical guide and
directives. The standard lays out management system elements. EMS can
be applied to any organization that wants to use it, not just industry.
The final rule requires the responsible official to establish an EMS or
conform to multi-unit, regional, or national level EMS with a land
management emphasis. By letter of direction from the Chief and through
its directives, the Forest Service will implement a national EMS
applicable to 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
adherence to 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).
    Administrative units that do not have an EMS will satisfy the
requirement in section 219.5 when they implement the national EMS and
either add significant environmental aspects and components under the
local focus area or determine that the national EMS significant
environmental aspects sufficiently identify and deal with the local
unit's concerns. The detailed procedures and requirements for a Forest
Service EMS under section 219.5 are being developed in a national
technical guide and the Forest Service directives.
    Although the Department recognizes concerns about potential
redundancy in management systems due to EMS requirements, the
Department is committed to integrating EMS with existing management
systems or modifying existing systems to be consistent with EMS. The
Department believes incorporating EMS in the planning rule better
integrates adaptive management and EMSs in Forest Service culture and
land management planning practices. This will help the Agency apply the
principles of adaptive management to Agency operations.
    Comment: EMS design and purpose. Several respondents felt that the
Agency needs to clarify the purpose and contents of its EMS. One
respondent specifically asked for clarification on the sustainable
consumption component of the national EMS framework and how the public
can be involved in the development of a unit's EMS.
    Response: The Forest Service is committed to use EMS as a national
framework for adaptive management. Details on the requirements of EMS,
including procedures for public involvement, will be placed in the
Forest Service directives. The sustainable consumption focus area of
the national EMS discusses the goals outlined in Executive Order 13423
``Strengthening Federal Environmental, Energy and Transportation
Management.''
    Comment: Applicability of International Organization of
Standardization (ISO) 14001. Some respondents expressed the view that
the ISO 14001 was designed for businesses, corporations, and facilities
that cause pollution and that it would be an awkward fit to natural
resource management agencies.
    Response: The ISO standard simply lays out management system
elements. EMS can be applied to any organization that wants to use it,
not just industry. The Forest Service will use the ISO 14001 elements
as the framework for EMS development for two reasons. It is the most
commonly used EMS model in the United States and around the world. This
will make it easier to carry out and understand (internally and
externally) because there is a significant knowledge base about ISO
14001. Second, the National Technology and Advancement Act of 1995
(NTAA) (Pub. L. 104-113) requires that Federal agencies use or adopt
applicable national or international consensus standards wherever
possible, in lieu of creating proprietary or unique standards. The
NTAA's policy of encouraging Federal agencies to adopt tested and well-
accepted standards, rather than reinventing-the-wheel, clearly applies
to this situation where there is a ready-made international and
national EMS consensus standard (through the American National
Standards Institute) that has already been successfully carried out in
the field.
    The Agency's approach to EMS under the final rule incorporates
lessons learned from the fiscal year (FY) 2006 EMS pilots. These pilots
involved all Forest Service regions and 18 national forests and
grasslands. The pilots revealed that a forest-by-forest approach to
EMS: (1) Creates many redundancies, (2) burdens field units with
unnecessarily duplicative work, (3) introduces inconsistencies, and (4)
makes it difficult to assess regional and national trends emerging from
EMS efforts because there is no standardization between units. Because
of these problems, the Forest Service now proposes to develop a single,
national EMS that will serve as the basis for environmental improvement
on each unit of the NFS and as the basis for the EMS to be implemented
on each unit. The national EMS will include three focus areas:
Sustainable consumption, land management, and local concerns. The
sustainable consumption focus area concentrates on the consumption of
resources and related environmental impacts associated with the
internal operations of the Forest Service. This focus area is the
Agency's way to achieve the goals of Executive Order 13423,
``Strengthening Federal Environmental, Energy, and Transportation
Management.'' The sustainable consumption focus area will apply to
items such as increasing energy efficiency, reducing the use of
petroleum in fleets, and improving waste prevention and recycling
programs. The land management focus area of the national EMS will
include land management activities applicable

[[Page 21486]]

to all national forests and grasslands. A review of the 2006 EMS pilot
program and review of the Agency's Strategic Plan found each local unit
EMS will at a minimum include: (1) Vegetation management, (2) wildland
fire management, and (3) transportation system management as
significant aspects. The activities covered under the sustainable
consumption and the land management focus areas include aspects and
components that will be discussed in a national level EMS. Therefore
the change in the final rule at section 219.5 that allows the
responsible official to conform to multi-unit, regional, or national
level EMS will allow the responsible official to cover the sustainable
consumption and land management focus areas. The uniform approach to
sustainable consumption and land management aspects and components in
the national EMS will enable the Forest Service to track progress in
achieving the objectives of the Forest Service Strategic Plan and unit
land management plans and supply a feedback loop that will help improve
the Agency's response when goals and objectives are not being met. The
local focus area allows local units to include aspects and components
specific to an individual unit's environmental conditions and programs.
Each Forest Service unit's implementation of the national EMS could differ
with respect to the locally identified significant environmental aspects.
    Several administrative units established EMSs as a part of the
pilot effort before the Forest Service adopted a consistent national
approach. Those administrative units' EMSs include locally unique
environmental aspects and components as well as the environmental
aspects and components they have in common with other units. Those
common environmental aspects and components are similar to the
environmental aspects and components that will be developed under the
sustainable consumption and land management focus areas of the national
EMS. Because an EMS includes procedures to add new requirements, these
administrative units have procedures to transition to the requirements
developed under the national EMS and they will subsequently conform to
the national EMS. Therefore, the EMS requirement under section 219.5(d)
is met for those units. Administrative units that do not have an EMS
will satisfy the requirement in section 219.5 after they implement the
national EMS and either add significant environmental aspects and
components under the local focus area or determine that the national
EMS significant environmental aspects sufficiently identify and deal
with the local unit's concerns.
    Comment: EMS as substitute for NEPA or NFMA requirements. Some
respondents expressed the opinion that EMS appears to be an entirely
inappropriate substitute for NEPA to advance the public's interest in
protecting the environmental integrity of the national forests. Another
respondent expressed the opinion that EMS should not be a replacement
for the standards and limits required by NFMA.
    Response: The final rule requires all forest plans to be consistent
with NFMA requirements, and an EMS will not be a replacement for these
requirements. The final rule also requires the responsible official to
select the appropriate level of NEPA analysis. The Forest Service will
apply EMS as a tool for monitoring and effective adaptive management.
EMS is not an environmental ``analysis'' system and is not a substitute
for appropriate NEPA analysis.

Section 219.6--Evaluations and Monitoring

    This section specifies requirements for plan evaluation and plan
monitoring. The Department retains the 2007 proposed rule wording in
the final rule except for minor changes. In paragraph (a)(1), the
Department added that a comprehensive evaluation report may be combined
with other documents, including NEPA documents. This change to the
provision about comprehensive evaluation was done to eliminate a
perception among Forest Service managers that two documents may be
required if an EA or an EIS were prepared. In paragraph (b)(2), the
Department removed the provision requiring the monitoring program to
provide for monitoring of multiple-use objectives because paragraph
(b)(2) also requires the monitoring program provide for monitoring of
``the degree to * * * making progress toward * * * objectives for the
plan,'' which includes multiple-use objectives. Because multiple-use
objectives will still be monitored, this is not a substantive change.
    In paragraph (b)(2), the Department changed the provision requiring
the monitoring program to determine the effects of the various resource
management activities within the plan area on the productivity of the
land. The term ``productivity'' refers to all of the multiple uses,
such as outdoor recreation, range, timber, watershed, and wildlife and
fish. Use of this term is broader than just commercial uses. The
Department changed the provision to require the monitoring program to
provide for monitoring to assist in evaluating the effects of each
management system to the end that it will not produce substantial and
permanent impairment of the productivity of the land. The Department
made this change in wording based on comments from Forest Service
managers that the proposed rule wording was confusing. Therefore, the
Department used the same words as NFMA at 16 U.S.C. 1604(g)(3)(C). The
term ``management system'' in this provision means vegetation
management system, such as, even-aged system, two-aged system, or
uneven-aged system. Because the revised wording still carries out the
intent of the NFMA, this is not a substantive change.
    Because of a request by Alaska Native Corporations, the Department
added the name Alaska Native Corporation to the list of possible
partners for joint monitoring.
    The final rule allows the monitoring program to be changed with
administrative corrections and public notification, instead of
amendments, to enable the Forest Service to implement improved
techniques and eliminate those proven not to be effective, and account
for unanticipated changes in conditions. Changes in a monitoring
program will be reported annually, and the responsible official has
flexibility to involve the public in a variety of ways in developing
changes to the program.
    Comment: Guidance or requirements for monitoring. A respondent
commented that the proposed rule failed to provide any guidance on what
or how to monitor and evaluate. The respondent said that adaptive
management requires compatible or standardized information to allow
managers to learn from current management and make appropriate
modifications, but that the proposed rule does not require such a
system or provide guidance in how to set up a successful monitoring
system. The rule does not require monitoring of any specific resources
or actions such as monitoring wildlife or fuels reduction projects.
With no system in place, a forest manager could selectively monitor
some resources and activities and ignore others.
    Response: The Department agrees standardized information collection
through monitoring is an important part of adaptive management. The
final rule includes a core set of requirements for establishing a
monitoring system. These

[[Page 21487]]

include that monitoring must provide for determining whether management
systems are producing substantial and permanent impairment of the
productivity of the land and the extent to which on-the-ground
management is maintaining or making progress toward the desired
conditions and objectives of the plan (sec. 219.6(b)(2)). There is
further guidance that monitoring must be prepared with public
participation and take into account key social, economic, and
ecological performance measures, and best available science (sec.
219.6(b)(1)). The Forest Service Directives System and other technical
guidance provide information on how to design and conduct a monitoring
program.
    Rather than impose through this planning rule a standardized list
of resources or activities for monitoring, the Agency believes that
monitoring needs are best determined for each individual unit.
Requiring standard information to be collected on fuels may be a
critical element to fire-prone forests, but it is not to wet forests
where fire is a less important ecological process. The reality of
limited financial and technical capabilities makes it particularly
important that forest managers be allowed to develop a monitoring
program appropriate for the information needs of each forest without
the additional burden of providing standardized information of limited
utility to some forests.
    Comment: Need for wildlife monitoring. Several respondents stated
wildlife monitoring must be done to ascertain the effects of projects
on wildlife.
    Response: The final rule establishes a process for developing,
amending, and revising land management plans for the NFS (sec.
219.1(a)). If the responsible official determines that provisions in
plan components, in addition to those required for ecosystem diversity
are needed to provide appropriate ecological conditions for specific
threatened and endangered species, species-of-concern, and species-of-
interest, then the plan must include additional provisions for these
species. The rule also requires plans to include monitoring of the
degree to which on-the-ground management is maintaining or making
progress toward the desired conditions and objectives for the plan.
Accordingly, a forest plan's monitoring program would include
monitoring of effects on wildlife where appropriate.
    Comment: Monitoring detail in the rule. Some respondents were
concerned that the proposed rule did not include requirements for
detailed monitoring of objectives and standards.
    Response: The rule requires a plan's monitoring program to take
into account financial and technical capabilities, key social,
economic, and ecological performance measures relevant to the plan
area, and best available science in monitoring the degree to which on-
the-ground management is maintaining or making progress toward the
desired conditions and objectives for the plan. Because plan components
such as desired conditions, objectives, and standards (if a plan
includes them) will reflect management specific to a particular unit of
the NFS, the plan's monitoring program will need to be tailored to that
unit as well. By requiring a plan's monitoring program to focus on the
achievement of desired conditions and objectives, the rule strikes a
balance between providing needed detailed direction and discretion of
the responsible official.
    Comment: Collecting relevant and necessary information. Some
respondents noted there is no process for assuring the Agency will
collect relevant and necessary information. Permitting merely the use
of available information (especially if no information is available)
gives the Agency an excuse for not collecting the right monitoring
information. One respondent said the proposed rule abdicates the Forest
Service's responsibility to monitor species and perform population
assessments, shifting that burden to the public, which will have little
or no record of data from the Agency on which to rely.
    Response: As described in section 219.6(b)(1) in the final rule,
the monitoring program will be developed with public participation and
will take into account the best available science. Section 219.6(a)(3)
of the final rule requires an annual evaluation of monitoring
information. These steps would help assure that the monitoring program
gets the right information.
    Comment: Need for evaluation of current conditions. Respondents
stated it is imperative the Forest Service evaluate current conditions
that resulted from past management decisions before making changes in
management direction.
    Response: Under the final rule baseline information would be
collected as needed to establish trends for social, economic, and
ecological sustainability. Section 219.6(a) of the final rule requires
three types of evaluations. These include comprehensive evaluations for
plan revisions that must be updated every 5 years (sec. 219.6(a)(1)),
evaluation for a plan amendment (sec. 219.6(a)(2)), and annual
evaluations of the monitoring information (sec. 219.6(a)(3)).
    Comment: Monitoring of goals and objectives. Some respondents
stated the lack of any requirements in the planning rule for meeting
forest plan goals and objectives assures that any monitoring plan will
be meaningless.
    Response: The final rule provides for monitoring the degree to
which management is making progress toward the desired conditions and
objectives for the plan (sec. 219.6(b)). Section 219.6(a)(3) of the
final rule calls for an annual evaluation to be made of this monitoring
information. Under the final rule, if plan objectives are not realized
due to budget constraints, changed conditions, or other reasons, the
desired conditions may not be realized. If monitoring and evaluation
indicates that certain objectives and/or desired conditions are not
achievable, the responsible official would consider the need for a plan
amendment or revision or may consider stepping up on-the-ground management
to actually improve progress toward desired conditions and objectives.
    Comment: Substantial changes in evaluation reports. A respondent
was concerned that the term `substantial changes in conditions and
trends' as described in section 219.6(a)(1) was not defined and thus
did not allow the public to review and understand what is expected in
the updated comprehensive evaluation.
    Response: Section 219.9(a) of the final rule requires public
involvement in the updating of the comprehensive evaluation report. It
is expected that the update of the comprehensive evaluation will
involve a general review of relevant conditions and trends with
emphasis on those whose changes that are considered substantial.
Accordingly, the public will have an opportunity to tell the
responsible official what they believe are substantial changes in
conditions and trends.
    Comment: Analysis for a project or activity should not be
sufficient for a plan amendment. A respondent disagreed with the
proposed rule at section 219.6(b)(2) that states that the analysis
prepared for a project or activity satisfied requirements for an
evaluation for an amendment. The concern is there would be no analysis
to evaluate how an exception made for the project or activity will
affect the plan.
    Response: The project or activity analysis that satisfies the
requirements for an evaluation report for a plan amendment that only
applies to the project or activity decision must also meet the
requirements in section 219.6(a) and section 219.6(a)(2). These

[[Page 21488]]

include an evaluation commensurate to the levels of risk or benefit
associated with the nature and level of expected management in the plan
area and an analysis of the issues relevant to the purposes of the
amendment.

Section 219.7--Developing, Amending, or Revising a Plan

    This section discusses plan components; planning authorities;
planning process, including the process for review of areas with
potential for wilderness recommendation; administrative corrections;
plan document or set of documents; and the plan approval document. The
Department retains the 2007 proposed rule wording in the final rule
except for minor changes: In paragraph 219.7(a)(1), the Department
changed the wording about EMS documents from ``documents relating to
the EMS established for the unit'' to ``applicable EMS documents, if
any.'' This change to the description of documents was made because the
Forest Service will maintain separate records for EMS. Separate records
are necessary because the responsible official may conform to multi-
unit, regional, or national level EMS. In paragraph 219.7(a)(2)(iv),
the Department added wording to acknowledge that the responsible
official may identify an area as generally unsuitable for various uses.
The Department added these words to avoid confusion. Some public
comments indicated that identification of an area as generally not
suitable for uses would be perceived as a final decision. Therefore the
Department clarified its intent. The Department views this as an
outgrowth of the proposed rule's suitability provisions and not a
substantive change. In paragraph 219.7(a)(3) the Department added a
paragraph to explicitly list standards as a possible plan component. As
discussed in the decision and rationale section of this preamble, the
Department added that standards may be included in a plan in response
to public comments and the Agency's desire to include standards as a
plan component when appropriate. This clarifies the Department's intent
that standards are an option for the responsible official as described
in the preamble to the proposed rule (72 FR 48528). This is not a
substantive change because this option was available under the proposed
rule and because this was considered in the range of alternatives in
the EIS.
    In paragraph 219.7(b)(4), the Department added wording to allow
administrative corrections for projections of uses or activities in
addition to timber management projections. This change was made at the
request of Forest Service managers to allow planners to update
projections of other uses besides timber to be updated. If the Forest
Service is allowed to update timber projections, then updates should
similarly be allowed for other resources. Because projections of use
are not decisions, this is not a substantive change. In paragraph
219.7(c)(6), the Department added wording that if a plan approval
document is the result of an EA or EIS process, the plan approval
document would be done in accord with Forest Service NEPA procedures.
This wording was added to ensure that a plan approval document in these
circumstances would meet both the requirements of the final rule and
agency NEPA procedures. This is not a substantive change as the
addition ensures the planning rule is consistent with existing Forest
Service NEPA procedures.
    Section 219.7(b) provides for administrative corrections to include
changes in the plan document or set of documents, except for
substantive changes in the plan components. This is done to allow for
continual inclusion of new science and other information into the plan
document or set of documents. Changes to the plan document or set of
documents may also occur when outdated documents are removed, for
example, when a new inventory replaces an older one.
    Comment: Triggering an amendment or revision. Some respondents
stated concerns about how the proposed rule describes the way plan
revisions will be triggered. One concern is the perception that the
responsible official will have unfettered discretion to amend or revise
the plan without any guidance as to what types of events would be
rational for changing the plan. These respondents urge that the rule
include a representative list of the general types of events that might
trigger a plan amendment or revision. Some respondents urge that an EIS
and public involvement be required when forest plans are changed.
    Response: The final rule provides the responsible official
discretion about whether to initiate a plan amendment or plan revision,
subject to the NFMA requirement that the plan be revised at least every
15 years. The periodic evaluations required by the final rule would
document current conditions and trends for social, economic, and
ecological systems in the area of analysis (sec. 219.6(a)) and aid the
responsible official in determining if a plan amendment or plan
revision is needed and what issues need to be considered. The
responsible official will be able to amend or revise the plan based on
information obtained by monitoring and evaluation, as well as other
factors. The Department believes that the efficiencies of the final
rule would be reduced if the planning rule attempted to identify every
specific event that must occur before a plan revision or plan amendment
can be initiated.
    Plan amendments prepared under the procedures described in the
final rule will have a 90-day comment period and will have a 30-day
objection opportunity. If a NEPA document is part of a plan
development, plan amendment, or plan revision the NEPA document will be
prepared in accord with Forest Service NEPA procedures.

Section 219.7(a)(2)(i)--Plan Components--Desired Conditions

    Comment: Addressing elements of sustainability in desired
conditions. Some respondents urged that the components of
sustainability (social, economic, ecological) be given equal footing in
the descriptions of desired conditions. They stated that very specific
detailed descriptions are needed in order to establish meaningful
objectives and without detailed desired condition descriptions,
objectives will not be met.
    Response: Under the final rule, desired conditions will be the
social, economic, and ecological attributes toward which management of
the land and resources of the plan area are to be directed. The Agency
agrees that well defined desired condition descriptions are useful,
because they provide a clear basis for project or activity design and
are needed to effectively establish objectives.

Section 219.7(a)(2)(ii)--Plan Components--Objectives

    Comment: Nature of objectives. One respondent expressed concern
that objectives are described as aspirational rather than being defined
as concrete, measurable, and time specific as in previous rules.
    Response: Under the final rule, the objectives are measurable
projections of time specific intended outcomes and are a means for
measuring progress toward reaching desired conditions (sec.
219.7(a)(2)(ii)). These objectives can be thought of as a prospectus of
anticipated outcomes, based on past performance and estimates of future
trends. These objectives must be measurable, so progress toward
attainment of desired conditions can be determined. Variation in
accomplishing objectives would be expected due to changes in

[[Page 21489]]

environmental conditions, available budgets, and other factors.
    Comment: Timber production objectives. Some respondents are
concerned that if the timber sale program quantity (TSPQ) and the acres
and volumes of projected management practices are objectives and the
basis for achieving the desired conditions, then if the Agency does not
meet these objectives the desired condition will never be achieved.
    Response: We agree. Under the final rule, if plan objectives are
not realized due to budget constraints, changed conditions, or other
reasons, the desired conditions may not be realized. If monitoring and
evaluation indicates that certain objectives and/or desired conditions
are not achievable, the responsible official would consider the need
for a plan amendment or revision or may consider stepping up on-the-
ground management to actually improve progress toward desired
conditions and objectives.

Section 219.7(a)(2)(iii)--Plan Components--Guidelines

    Comment: Mandatory protections. Several respondents raised concerns
because they felt the proposed rule removes mandatory protections for
resources such as water and wildlife and removes the restraints on
clearcutting that have been in place for over 25 years. Most of these
respondents requested the final planning rule provide at least the
minimum protections from the 1982 rule and these protections and those
required by the NFMA not be weakened. Other respondents said the
flexibility incorporated in the 2007 proposed rule better allows the
Agency to carry out its mission and adapt to changing conditions. Other
respondents are pleased the proposed rule featured the use of
guidelines as opposed to standards.
    Response: The final rule provides for inclusion of standards as a
plan component (sec. 219.7(a)(3)). Standards are constraints on project
and activity decisionmaking and may be established to help achieve the
desired conditions and objectives of a plan and to comply with
applicable laws, regulations, Executive orders, and agency decisions.
When a plan contains standards, a project or activity must be designed
in accord with the applicable standard(s) in order to be consistent
with the plan. If a proposed project would be inconsistent with the
plan, the responsible official must modify the proposal, reject the
proposal, or amend the plan.
    NFMA requirements for timber harvest are in the final rule text
(sec. 219.12(b)) including provisions for protection of soil,
watershed, and other resources during timber harvest. The final rule
depends on the Forest Service Directive System to further specify how
to meet the NFMA requirements. Existing directives are available at
http://www.fs.fed.us/im/directives.  These directives will be
revised to be consistent with the final rule.
    Current guidance for timber harvest is provided in the 1920 section
of the FSM and in FSH 1909.12, chapter 60 for even-aged harvest,
reforestation, and stocking requirements, suitability determinations,
calculation of long-term sustained yield, and calculation of timber
sale program quantities. Detailed direction on watershed protection and
management may be found in FSM 2520.
    About the comments on guidelines removing the protections from the
1982 rule for wildlife, the final rule and directives are explicitly
designed to work together and provide for ecological sustainability
through the combination of ecosystem diversity and species diversity
approaches. Under the existing directives adopted to carry out the 2005
planning rule, species-of-concern would be identified based on
NatureServe rankings (FSH 1909.12 section 43.22b). Under the existing
directives species-of-interest would be identified considering many
sources including those listed by states as threatened or endangered
and those identified in state comprehensive plans as species of
conservation concern (FSH 1909.12 section 43.22c). Under the final
rule, the primary purpose for identifying species-of-concern is to put
in place provisions that will contribute to keeping those species from
being listed as threatened or endangered. The combined criteria for
species-of-concern and species-of-interest currently in the Forest
Service directives would lead to identification of all species for
which there are conservation concerns. Particularly, criterion five for
species-of-interest (FSH 1909.12, sec. 43.22(c)), which directs
identifying ``additional species that valid, existing information
indicates are of regional or local conservation concern due to factors
that may include significant threats to populations or habitat,
declining trends in populations or habitat, rarity, or restricted
ranges.'' Species for which there are no conservation concerns would be
adequately conserved through the ecosystem diversity approach.

Section 219.7(a)(2)(iv)--Plan Components--Suitability of Areas

    Comment: Applicability of suitability and other plan components in
restricting or prohibiting projects or activities. Some respondents
recommended the description of objectives, guidelines, suitability of
areas, and special areas be clarified so decisions on these components
do not constitute a final commitment restricting or prohibiting
projects or activities. Other respondents said the plan must make a
clear decision on priority land use if the plan is to be of use in
guiding management. Still others agreed general suitability
determinations are appropriate for a strategic forest plan.
    Response: Under the final rule section 219.7(a)(2), plan
objectives, guidelines, suitability of uses, and special areas
designations are not commitments or final decisions approving projects
and activities. Plan components provide guidance for future project and
activity decisionmaking. The responsible official will identify
suitable uses that best fit the local situation. Suitable use
identification has evolved over time. Suitable use identification has
often been characterized in plans prepared under the 1982 planning rule
as permanent restrictions on uses or permanent determinations that
certain uses would be suitable in particular areas of the unit over the
life of the plan. However, even under the 1982 planning rule, these
identifications were never truly permanent, unless they were statutory
designations by Congress. It became apparent early in implementation of
the 1982 planning rule that plan suitability identifications, like
environmental analysis itself, always necessitated site-specific
reviews when projects or activities were proposed. For example, on
lands identified as generally suitable for timber production, site-
specific analysis of a proposal could identify a portion of that area
as having poor soil or unstable slopes. The project design would then
exclude such portions of the project area from timber harvest. Thus,
the final determination of suitability was never made until the project
or activity analysis and decision process was completed. This final rule
better characterizes the nature and purpose of suitability identification.
    The response to comment section on 219.8 has more discussion about
how projects and activities must be consistent with the plan.

[[Page 21490]]

Section 219.7(a)(2)(v)--Plan Components--Special Areas

    Comment: Nature of special designations. A respondent commented
that the proposed rule allow the plans to designate or remove
designation from certain types of special areas. In the past, this type
of action would require environmental review under NEPA, but under the
proposed plan, these changes could be made without environmental
review. Some respondents stated special designations and final
decisions should not be made without some kind of analysis to support
that designation. Others suggested that the Appalachian National Scenic
Trail, as well as other congressionally designated national scenic and
historic trails, be in the list of special designations and that
management direction for special areas be in forest plans.
    Response: Under the final rule, the level of NEPA analysis needed
to support designations would be consistent with agency NEPA
procedures. The responsible official may designate special areas for
unique or special characteristics during plan development, plan
amendment, or plan revision. These areas include national scenic and
historic trails, wilderness, wild and scenic river corridors, and
research natural areas. National scenic and historic trails,
wilderness, and wild and scenic river corridors are statutorily
designated. Other areas (such as national scenic and historic trails)
may be designated through plan development, amendment, revision, or
through a separate administrative process with an appropriate level of
NEPA analysis. The types of special areas that the responsible official
may designate or remove depend on the designation authority in Forest
Service directives, regulation, or statute (FSH 1909.12 section 11.15).
The intent of the new rule is not to expand the use of special areas
into totally new categories, but rather to assure that plans recognize
the categories established by Congress, the Department, or the Agency.
For example, the forest supervisor may recommend research natural areas
(RNAs) but regional foresters may designate RNAs. The forest supervisor
may recommend national scenic and historic trails, wilderness, and wild
and scenic river corridors but only the Congress may designate. Under
this final rule the Department envisions forest supervisors designating
areas with the following characteristics: scenic, geological,
botanical, zoological, paleontological, historical, and recreational as
discussed in FSM Chapter 2372. Designating a special area that simply
identifies one or more of these characteristics, and also includes plan
components developed for that particular area, may occur without
further NEPA analysis and documentation. The responsible official with
designation authority may propose a prohibition on projects or
activities in specific special areas. Furthermore if the prohibition
commands anyone to refrain from undertaking projects and activities in
the areas, or that grants withholds or modifies contracts, permits, or
other formal legal instruments, that proposed designation would be done
in accord with the Forest Service NEPA procedures.

Section 219.7(a)(6)(ii)--Plan Process--Consideration and Recommendation
for Wilderness

    Comment: Roadless inventory procedures and wilderness
recommendations. Some respondents stated the wilderness review required
by the rule should require that the roadless areas inventory include
those areas that do not have maintained roads and that may have been
missed in past reviews.
    Some respondents are concerned that section 219.7(a)(5)(ii) of the
proposed rule required a vast expansion of areas to be considered for
wilderness because the language is overly broad and does not specify
what constitutes wilderness characteristics or to what degree such
characteristics must be present to merit evaluation. These respondents
were concerned this language will lead to expansion of wilderness
without considering other multiple uses. Other respondents believed
this section of the rule is in conflict with the nature of plans as
strategic and not a final agency decision and recommend the removal of
section 219.7 from the final rule. Some respondents suggested this
section of the rule exclude national forests in Alaska from further
wilderness review and recommendation.
    Response: Identification of potential wilderness areas and
wilderness recommendations has always been an integral part of the NFS
planning process. The process for wilderness evaluation has not changed
from the requirements in the 1982 rule. Under the final rule section
219.7(a)(6)(ii), the responsible official will ensure that, unless
otherwise provided by law, all NFS lands possessing wilderness
characteristics be considered for recommendation as potential
wilderness areas during plan development or revision. Identification of
potential wilderness areas and wilderness recommendations has always
been an integral part of the NFS planning process. The final rule
directs responsible officials to ensure that, unless otherwise provided
by law, all NFS lands possessing wilderness characteristics be
considered for recommendation as potential wilderness areas during plan
development or revision. The Forest Service directives (FSH 1909.12,
chapter 70) provide the detailed criteria for the identification of
potential wilderness areas and the wilderness evaluation process to
follow in carrying out the requirements of the rule. The inventory
criteria for potential wilderness areas are not part of the final rule.
About roads, the inventory criteria from FSH 1909.12 section 71.1
states that such areas do not contain forest roads (36 CFR 212.1) or
other permanently authorized roads, except as permitted in areas east
of the 100th meridian. Forest roads have a wide range of maintenance
levels and may be closed and not maintained for passenger vehicles. The
final rule does not predetermine the plan decision a responsible
official may make concerning the future management of areas meeting
potential wilderness criteria. A variety of options may be considered.
Final decisions on designation of wilderness are made only by Congress,
and those designations may or may not follow agency recommendations.

Section 219.7(a)--Developing Options

    Comment: Developing a forest plan requires the consideration of
alternatives. A respondent commented that one of the most valuable
elements of the existing planning process is the consideration of
alternatives. This has yielded new ways of reconciling issues, often
through ideas and alternatives submitted by scientists and other
reviewers. Not having alternatives to consider puts the Forest Service
in the unenviable position of making decisions without having
alternatives and their effects at its disposal.
    Response: Under the final rule, alternatives and their effects
under NEPA are not needed for responsible officials to approve a plan.
Section 219.7(a) of the final rule implements a collaborative and
participatory process for land management planning. 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 together to narrow the options for a proposed plan
based on analysis of the options instead of focusing on distinct
alternatives carried through the entire process. The Forest Service
developed this iterative option approach under the

[[Page 21491]]

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. Alternatives under NEPA may
also be developed if agency NEPA procedures require the preparation of
an EIS or EA for a specific plan development, plan amendment, or plan
revision.

Section 219.8--Application of a New Plan, Plan Amendment, or Plan Revision

    This section of the final rule describes how and when new plans,
plan amendments, or plan revisions are applied to new or ongoing
projects or activities. The Department retains the 2007 proposed rule
wording in the final rule, with a minor change. Although the 2007
proposed rule required project or activity consistency with the
applicable plan, the final rule requires consistency with the
applicable plan components. This change was made to avoid confusion.
The Department wants to make clear that future projects do not have to
be consistent with other information written in plans. Today and in the
future, land management plans have other information in the plan
besides plan components. For example, other information may include
items such as collaboration strategies, program emphasis, management
approaches, priorities, and resource strategies. These items may convey
a sense of priority and focus among objectives so that the public will
know where the responsible official expects to place the greatest
importance. However, these are often quite speculative projections
based on past trends of budget and program accomplishments. This other
information is not the plan.
    Comment: Site specific applicability of the plan. A respondent
commented that the proposed rule removed any applicability of the plan
to site specific projects and violated NFMA by allowing project-
specific amendments rather than requiring that all projects be
consistent with plan direction.
    Response: To respond effectively to new information or changed
circumstances it is essential for the rule to include provisions for
amending the plan when it is needed. The final rule requires that
decisions approving projects and activities be consistent with the
plan. Site-specific plan amendments are a valid method of achieving
final rule plan consistency. Provisions at section 219.8(e)(3) are
consistent with the NFMA provisions for plan amendments found at 16
U.S.C. 1604(f)(4), NEPA regulatory requirements relevant to new
information and changed circumstances at 40 CFR 1502.22, and Forest
Service practice to allow project-specific amendments since the 1982 rule.
    Comment: Consistency of projects and activities with the plan.
Several respondents said the proposed rule at section 219.8 is not
consistent with the rule preamble in describing consistency of projects
and activities with plan guidelines. The preamble indicates that ``a
project or activity design may vary from the guideline only if the
design is an effective means of meeting the purpose of the guideline,
to maintain or contribute to the attainment of relevant desired
conditions and objectives.'' The preamble allows variation from plan
guidelines without a plan amendment, but that option is not reflected
in the proposed rule at section 219.8(e). These respondents were
concerned that retaining this text from the proposed rule would
override the statements in the preamble about plan flexibility and the
nonbinding nature. Another respondent stated that the proposed rule and
preamble do not explain or define what it means to be ``consistent''
with the plan.
    Response: To carry out the NFMA plan consistency mandate in an
effective way, the Agency will amend the normal wording about plan
consistency in the FSH 1909.12, section 11.4. This template wording
should be used in revised plans. By amending the existing procedures in
the Forest Service Directive System, the Agency will clarify how
projects or activities must be consistent with applicable plan
components. The public will have the opportunity to comment on this
amendment to directives about consistency between projects and plans.
    Tentative wording for the proposed amendment may be as follows:
    (a) A project or activity is consistent with the desired condition
component of the plan if it does not foreclose the opportunity for
maintenance or attainment of the applicable desired conditions over the
long term based on the relevant spatial scales described in the plan.
    (b) A project or activity is consistent with the objectives
component of the plan if it contributes to or does not prevent the
attainment of one or more applicable objectives.
    (c) A project or activity may be consistent with a guideline in one
of two ways.
    (1) The project or activity is designed in accord with the
guideline, or
    (2) A project or activity design varies from a guideline if the
design is an effective means of meeting the purpose of the guideline to
maintain or contribute to the attainment of relevant desired conditions
and objectives. If the responsible official decides such a variance
from a guideline is appropriate, the responsible official must document
how the variance is an effective means of maintaining or contributing
to the attainment of relevant desired conditions and objectives. A
variance from a guideline does not require an amendment to the plan.
    (d) A project with the primary purpose of timber production may only
occur in an area identified as suitable for that use (16 U.S.C. 1604(k)).
    (e) For suitability of areas except for timber production, consistency
of a project or activity should be evaluated in one of two ways.
    (1) The project or activity is a use identified in the plan as
generally suitable for the location where the project or activity is to
occur, or
    (2) The project or activity is not a use identified in the plan as
generally suitable for the location, but the responsible official
documents the use to be appropriate for that location.
    (f) Where a plan provides plan components specific to a special
area, a project, or activity must be consistent with those area-
specific components.
    (g) A project or activity is consistent with a standard if the
project or activity is designed in accord with the standard.
    Comment: Protecting valid existing rights. Several respondents
expressed the view that all existing uses authorized by the Forest
Service include valid existing rights and should be allowed to continue
for the term of existing authorizations. Others indicated existing
authorizations should only be modified if they conflict with applicable
laws.
    Response: NFMA at 16 U.S.C. 1604(i) states, ``When land management
plans are revised, resource plans and permits, contracts and other
instruments, when necessary, shall be revised as soon as practicable.
Any revision in present or future permits, contracts, and other
instruments made pursuant to this section shall be subject to valid
existing rights.'' The final rule section 219.8(a) is consistent with
this requirement.

Section 219.9--Public Participation, Collaboration, and Notification

    This section of the final rule describes collaboration; comment
periods; content of public notices, engaging interested individuals,
organizations, and governments; and public notifications. The
Department retains the 2007 proposed rule wording in the final rule,
with minor changes.
    Because of a request by Alaska Native Corporations, the Department
added the

[[Page 21492]]

name Alaska Native Corporation to the list of persons the responsible
official must provide opportunities for collaboration (sec.
219.9(a)(3)). As the responsible official must provide opportunities
for many people to collaborate, this is not a substantive change.
    At paragraph (a)(3) of this section, the Department added a
sentence saying that the responsible official should seek assistance,
where appropriate, from federally recognized Indian Tribes and Alaska
Native Corporations to help address management issues or opportunities.
This change was made to make the requirements for engaging Tribal
governments and Alaska Native Corporations similar to paragraph (a)(2)
for engaging State and local governments and Federal agencies.
    At paragraph (b)(3)(v) of this section, the Department modified the
wording to provide required content for a public notice in cases where
an ongoing planning process under the 2005 rule was halted because of
the district court's order in Citizens for Better Forestry v. USDA. The
responsible official's public notice must state whether a planning
process initiated before the final rule was promulgated will be
adjusted to the final rule requirements. The Department modified the
proposed rule wording because of public comment. Some respondents were
unclear as to how the products created during land management planning
under the 2005 rule, such as those generated with a interest group,
would be used in the final plans. This notice now provides a vehicle
for the public to learn if previously created products will be used. As
the proposed rule, described in the content of the public notice for an
adjustment to an ongoing planning process, this change in the
requirements of the notice is not a substantive change.
    Comment: Public participation in the planning process. Several
respondents commented that the proposed rule unfairly limits public
participation in the planning process.
    Response: The final rule establishes public involvement procedures
and requirements for formal public comment opportunities that go well
beyond the requirements of NEPA. Specifically, the final rule requires
the responsible official to involve the public in developing and
updating a comprehensive evaluation report; in establishing the
components of the plan, including the desired condition of the lands
involved; and in designing the monitoring program to be carried out
during the life of the plan. The requirements for public participation
and collaboration for land management planning in the final rule create
a high standard for agency performance. Considering all the
opportunities to participate under the final rule, people would not
only continue to have access to the land management planning process,
they would have the opportunity to participate more meaningfully in
bringing each plan to life. With the efficiencies under the final rule,
plan revisions would be expected to take 2 to 3 years to complete as
opposed to a 5 to 7 year period that was typical in the past under the
1982 rule. The Agency believes this shorter timeframe would make it
possible for more people to stay involved throughout the planning process.
    Comment: Public involvement if an EIS is not prepared. Many were
concerned that without an EIS (as required under the 1982 rule),
opportunities for public involvement and oversight in the land
management planning process will be reduced or eliminated. They were
concerned because specific public involvement requirements in the CEQ
regulations that apply to EISs do not apply to categorical exclusions.
    Response: Categorical exclusions do not require the same system of
public involvement as EISs. However, if a categorical exclusion is
used, the rule's extensive requirements for public participation and
collaboration apply nonetheless. The final rule provides greater
opportunities for public notification and comment during the land
management planning process than is required for an EIS. In addition,
under the final rule, the responsible official is specifically required
to involve the public in developing and updating the comprehensive
evaluation report, establishing the components of the plan, and
designing the monitoring program.
    Comment: Access to information if an EIS is not prepared. Some
respondents were concerned that people will have less access to timely
information about environmental impacts and the comparative advantages
of various alternatives if an EIS is not prepared for plans. Some were
concerned that there will not be legal recourse for submitting citizen
alternatives. Some were concerned that the rule eliminates a
``scoping'' phase, such as the 30-day period at the beginning of a NEPA
process, and that the rule's 90-day comment period for proposed plans
will be too late to have changes made.
    Response: The final rule section 219.9(a) requires public
involvement at early stages of the planning process when the
comprehensive evaluation report would be developed and updated. The
comprehensive evaluations would provide information about the
effectiveness of current forest management in achieving desired
conditions. This can provide useful information to managers and the
public for collaboratively developing a plan or identifying needed
changes to discuss during plan revision. Formal public notification of
the initiation of development of a plan is similar in timing to scoping
under NEPA. Opportunity for public involvement is also required in the
developing the components of the plan and designing the monitoring
program. A 90-day comment period on a proposed plan is an NFMA
requirement. Under the 1982 rule, it was done at the proposed plan/
draft EIS review stage. However, public involvement in the planning
process is not intended to be limited to discrete 30-day or 90-day
periods, but may occur throughout the process. Options may be
considered as an iterative approach to developing plan components in
collaboration with the public. Additional guidance and procedures for
collaboration are supplied through agency directives located in FSM
1921.6 and FSH 1909.12, chapter 30.
    Comment: Importance of government relationships. Some respondents
reiterated the importance of collaborative relationships with other
government entities that manage surrounding lands. Some respondents
wanted the rule to provide an equivalent to the cooperating agency
provision of NEPA.
    Response: Under the final rule, the responsible official must
coordinate planning efforts with those of other resource management
agencies. The responsible official will provide opportunities for other
government agencies to be involved, collaborate, and participate in
planning for NFS lands.
    Comment: Public notices via e-mail. Some respondents were concerned
that few citizens review legal notices in newspapers or the Federal
Register, and notices should be e-mailed to interested publics.
    Response: Under the final rule, a variety of public notification
techniques may be used, including mail and e-mail. Public notification
will be essential in meeting the public participation requirements of
the rule.
    Comment: Public involvement in plan evaluation and monitoring. Some
respondents commented that an opportunity for public involvement should
be provided to change the monitoring program. One respondent suggested
that some changes could have environmental effects and that these
should only be done through a plan

[[Page 21493]]

amendment rather than simply required notification of change.
    Response: Under the final rule, the responsible official would
notify the public of changes in the monitoring program and can involve
the public in a variety of ways when considering changes in the
program. Section 219.9(a) requires the responsible official to involve
the public in developing and updating the comprehensive evaluation,
establishing the components of the plan, and designing the monitoring
program.
    Comment: Public involvement for administrative corrections. One
respondent said administrative corrections might be significant, and
should require public notice before they are made. The respondent
believes that changes such as to logging projections and monitoring
procedures constitute significant changes with environmental effects.
    Response: Administrative corrections are intended for non-
substantive changes to plan components and for changes in explanatory
material. Long-term sustained-yield capacity (LTSYC) is a statutory
limit on timber sale amount. The timber sale program quantity is an
objective. Administrative corrections would not be appropriate for
LTSYC or for the TSPQ. Administrative correction may be appropriate,
however, for timber harvest projections which are for information
purposes only, and are not binding. Timber harvest projections are not
LTSYC or TSPQ, but, for example, may be estimates of the amount of
harvest by cutting method, management emphasis, or product type. The
directive system will require administrative corrections to be made
available to the public through the unit's Web site or by other means.
    Comment: Extending Tribal consultation to Alaska Native
Corporations. Several Alaska Native Corporations requested inclusion of
language at section 219.9(a)(3) that would ensure consultation with
Alaska Native Corporations as required by the 2004 and 2005
Consolidated Appropriations Acts.
    Response: Alaska Native Corporations has been added to the engaging
Tribal governments provision at section 219.9(a)(3) as well as to
section 219.6(b)(3) on collaborative monitoring. The definition of
``Alaska Native Corporations'' provided is in section 219.16.
    Comment: Consultation requirements when identifying species-of-
interest. Some respondents recommended the final rule specifically
require consultation with the USFWS, state heritage, or natural
resource agencies in the identification of species-of-interest.
    Response: The final rule at sections 219.9(a)(2 and 3) requires the
responsible official to coordinate and engage with Federal agencies,
local governments, and States during the planning process. The
responsible official would provide opportunities for the coordination
of Forest Service planning efforts with those of other resource
management agencies and to seek assistance, where appropriate, from
other State and local governments, Federal agencies, local Tribal
governments, and scientific institutions to help address management
issues or opportunities. Consultation with the USFWS (and NOAA
Fisheries) is a process defined and required by the Endangered Species
Act and which typically includes a requirement to identify listed
species that may be affected.

Section 219.10--Sustainability

    This section of the final rule provides provisions for social,
economic, and ecological sustainability. The Department retains the
2007 proposed rule wording in the final rule.
    Comment: Elements of sustainability. Some respondents commended the
Agency for continuing to define sustainability in terms of social,
economic, and ecological elements; none of which trumps the others. It
was felt this more accurately reflects the tenets of ecosystem
management with its explicit recognition of the human dimension of
natural systems and national forest management, and that the three
types of sustainability are tightly linked. Moreover, respondents
commented that although ecological sustainability is unarguably
important, it needs to be balanced with the Agency's charge to
``provide a continuous flow of goods and services to the nation in
perpetuity'' as well as other obligations, such as with the Mining and
Minerals Policy Act.
    Others believe that ecological sustainability should be the primary
goal because ecological sustainability provides the needed assurance
that social and economic benefits can be produced at sustainable
levels. There was also the comment that the highest priority for forest
management must be the maintenance of as complete a component of its
species and natural processes as possible.
    Another respondent commented that sustaining social and economic
systems may conflict with sustaining ecological systems, and asked what
will be done to ensure that these goals do not conflict. Lastly, a
respondent noted that the ``overview'' to the proposed rule states that
plans ``should'' guide sustainable management, which implies that
sustainable management is optional.
    Response: NFMA requires the use of the MUSYA to provide the
substantive basis for forest planning and the development of one
integrated plan for the unit. Under the final rule, the Agency would
treat economic and social elements as interrelated and interdependent
with ecological elements of sustainability, rather than as secondary
considerations. Sustainability is viewed as a single objective with
interdependent social, economic, and ecological components. This does
not downplay the importance of ecological sustainability, as the MUSYA
provides for multiple-use and sustained use in perpetuity without
impairment to the productivity of the land. The final rule recognizes
the interconnection between the ecological, social, and economic
components of sustainability and requires consideration of each in the
planning process. It establishes 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 rule does not make
choices among the multiple uses; it provides for a process by which
those choices will be made during the development of a plan for each
NFS unit.
    Comment: Time frames for sustainability. Some respondents stated
that ecological sustainability is measured in decades and centuries
while economic sustainability is usually measured in a five-year time
frame. They recommended that sustainability be measured only by
ecological sustainability time frames.
    Response: The Agency recognizes that time frames for ecological
sustainability and economic sustainability will rarely match. The final
rule allows for NFMA's requirement to consider both the economic and
environmental aspects of various systems of renewable resource
management during development of a plan.
    Comment: Approach to maintaining diversity. Some respondents
believe that the proposed rule's reference to an ``overall goal'' of
providing a framework and narrowing the focus to endangered and
threatened species, species-of-concern and species-of-interest is not
sufficient. Other respondents commented that following the coarse
filter/fine filter approach is a major improvement, because scarce
resources can be focused on communities rather than trying to devote
the same attention to a myriad of species that are not in danger of ESA
listing. Other respondents said that the proposed rule does little to
specify how the

[[Page 21494]]

``framework'' will be crafted, how it will ``contribute to'' sustaining
native ecological systems, or how plans will ``provide for'' threatened
and endangered species, species-of-concern or species-of-interest.
    Response: The final rule sets forth the goal for the ecological
element of sustainability to contribute to sustaining native ecological
systems by sustaining healthy, diverse, and productive ecological
systems as well as by providing appropriate ecological conditions to
support diversity of native plant and animal species in the plan area.
To carry out this goal, the final rule adopts a hierarchical and
iterative approach to sustaining ecological systems: Ecosystem
diversity and species diversity. The intent of this hierarchical
approach is to contribute to ecological conditions appropriate for
biological communities and species by developing effective plan
components (desired conditions, objectives) for ecosystem diversity and
supplementing it with species-specific plan components as needed, thus
improving planning efficiency. The final rule leaves the specific
procedures on how the framework will be crafted for the Forest Service
directives. The Department believes it is more appropriate to put
specific procedural analytical requirements in the Forest Service
directives rather than in the rule itself so that the analytical
procedures can be changed more rapidly if new and better techniques
emerge. As discussed in agency directives, the responsible official
will develop plan components for ecosystem diversity establish desired
conditions, objectives, and other plan components, where feasible, for
biological communities, associated physical features, and natural
disturbance processes that are the desired components of native
ecosystems. The directives specify how to deal with local conditions.
Ecosystem characteristics include the structure, composition, and
processes of the biological and physical resources in the plan area.
The primary approach the Agency envisions for evaluation of
characteristics of ecosystem diversity is estimating the range of
variation that existed under historic disturbance regimes and comparing
that range to current and projected future conditions. For specific
detail procedures see FSM 1920 and FSH 1909.12, chapter 40.
    As part of the hierarchical and iterative approach, the plan area
would be assessed for species diversity needs after plan components are
developed for ecosystem diversity. The responsible official would
evaluate whether the framework established by the plan components meets
the needs of specific federally-listed threatened and endangered
species, species-of-concern, and selected species-of-interest. If
needed, the responsible official would develop additional provisions
for these species to maintain a framework for providing appropriate
ecological conditions in the plan area that contribute to the
conservation of these species.
    Under the final rule, the Agency selected federally-listed
threatened and endangered species, species-of-concern, and species-of-
interest for evaluation and conservation because: (1) These species are
not secure within their range (threatened, endangered, or species-of-
concern), or (2) management actions may be necessary or desirable to
achieve ecological or other multiple-use objectives (species-of-
interest). Species-of-interest may have two elements: (1) Species that
may not be secure within the plan area and, therefore, in need of
consideration for additional protection, or (2) additional species of
public interest including hunted, fished, and other species identified
cooperatively with State fish and wildlife agencies.
    Additional guidance is provided in Forest Service Directive System.
For example, at FSM 1971.76c, plan components for federally-listed
species must comply with the requirements and procedures of the ESA and
should, as appropriate, carry out approved recovery plans or deal with
threats identified in listing decisions. Plan components for species-
of-concern should provide the appropriate desired ecological conditions
and objectives to help avoid the need to list the species under the
ESA. Appropriate desired ecological conditions may include habitats of
appropriate quality, distribution, and abundance to allow self-
sustaining populations of the species to be well distributed and
interactive, within the bounds of the life history, distribution, and
natural fluctuations of the species within the capability of the
landscape and consistent with multiple-use objectives. (A self-
sustaining population is one that is sufficiently abundant and has
appropriate population characteristics to provide for its persistence
over many generations.) For species-of-interest, if a plan component
will not contribute appropriate ecological conditions to maintain a
desired or desirable species-of-interest, the responsible official must
document the reasons and multiple-use tradeoffs for this decision.
    Comment: Meeting the NFMA diversity requirements. Some respondents
stated that the proposed rule's sustainability provisions contain no
clear mandates, no concrete obligations, and are unenforceable; so they
do not meet the NFMA's diversity requirement. Others noted the proposed
rule at section 219.10 only mentions the diversity of native plant and
animal communities, but this section does not require plans to provide
for that diversity or ensure that there will be a diversity of plant
and animal communities, as required by NFMA. Another respondent
challenged the wording at section 219.10(b) of the proposed rule that
appears to make providing ecosystem and species diversity subservient
to meeting multiple-use objectives, although the NFMA states that
providing for diversity is a necessary component of meeting multiple-
use objectives.
    Response: The NFMA requires guidelines for land management plans
that ``provide for diversity of plant and animal communities based on
the suitability and capability of the specific land area in order to
meet overall multiple-use objectives.'' (16 U.S.C. 1604(g)(3)(B)). The
NFMA does not mandate a specific degree of diversity nor does it
mandate viability. The NFMA affords the Agency discretion to provide
policy guidance to provide for diversity. The final rule wording at
section 219.10(b) is consistent with NFMA. As discussed the preamble to
the 2005 planning rule (70 FR 1023, 1028, (January 5, 2005)) the Agency
developed five concepts to design the planning rule provisions for
plant and animal diversity: (1) Managing ecosystems; (2) providing for
a diversity of species; (3) concentrating management efforts where the
Agency has authority and capability; (4) determining with flexibility
the degree of conservation needed for species not in danger of being
listed; and (5) tracking progress of ecosystem and species diversity
using a planning framework.
    Comment: Approach to providing ecosystem sustainability. Some
respondents do not believe that the emphasis on ecosystem diversity
will protect rare and declining species. They expressed concern that
there are no clear mandates, concrete obligations, measurable
objectives, or mandatory requirements to provide for diversity and that
simply having a ``framework'' will not provide adequate protection to
the species. The question was raised as to why plans would only
``contribute to'' sustaining ecological systems and said the rule
should require plans to ``sustain ecological systems.'' Some observed
that under the proposed rule at section 219.10(b)(2), forest plans will
no longer have to specifically address

[[Page 21495]]

wildlife needs unless the Forest Service determines that the
``ecosystem diversity'' provisions of the plan need to be supplemented
for a particular species. They also noted that FSH 1909.12, section
43.21, states that a species approach is not required. Some respondents
were concerned that a responsible official could decide that the very
coarse filter of ecosystem diversity is sufficient for protecting all
resident fish, wildlife, and plants, and some respondents said that no
program of protecting species can be complete without a requirement for
ensuring individual species' viability. A respondent noted that the
definition of self-sustaining populations in the FSM is not clear,
because the terms ``sufficiently abundant,'' ``appropriate population
characteristics,'' and ``persistence over many generations'' are not
defined.
    Response: Under the final rule and Agency directives, the
responsible official would identify federally-listed threatened and
endangered species, species-of-concern, and species-of-interest whose
ranges include the plan area. The federally-listed threatened and
endangered species are those species that are listed as threatened or
endangered by the Department of the Interior, USFWS or the Department
of Commerce, NOAA Fisheries. Under the Agency directives, species-of-
concern are those identified as proposed and candidate species pursuant
to the ESA or those species ranked by NatureServe as needing action to
prevent listing under ESA. Under the Agency directives, species-of-
interest are identified by working cooperatively with State fish and
wildlife agencies, the USFWS, NatureServe, and other collaborators.
    The responsible official would then determine if the ecological
conditions to support threatened and endangered species, species-of-
concern, and species-of-interest would be provided by the plan
components for ecosystem diversity. If not, then additional species-
specific plan components would be included. Under the Agency
directives, as part of an iterative process of developing plan
components for ecosystem diversity and species diversity, several
examinations, or analysis steps may be carried out. An initial analysis
based on the current plan and species status may set the stage for the
development of plan components for the revised plan. Such an evaluation
helps identify the key risk factors that should be dealt with in plan
components. Additionally, the evaluation would help determine what
combinations of plan component will best contribute to sustaining
species diversity. This additional evaluation would focus on the (1)
Amount, quality, and distribution of habitat; (2) The dynamics of
habitat over time; (3) Species distribution; (4) Known species
locations; (5) Information on species population trends and dynamics if
available; (6) Key biological interactions; (7) Other threats and
limiting factors, such as wildland fire and other natural disturbances,
roads, trails, off-road use, hunting, poaching, and other human
disturbances. FSM 1920 and FSH 1909.12, chapter 40 contain further
guidance on how to provide for ecological and species diversity and how
to evaluate whether ecological conditions will provide for ``self-
sustaining populations'' of species-of-concern. Standards to maintain
or improve ecological conditions, and to maintain or improve ecological
conditions for specific species may be included in a land management plan.
    Comment: Species-of-Concern and Species-of-Interest. Some
respondents commented that previous Forest Service planning rules had
extended protection to species proposed for listing under the ESA,
``candidate species'' under the ESA, State-listed species, and Forest
Service ``sensitive species.'' Other respondents made the comment they
found the species-of-concern and species-of-interest system to be
confusing and that the criteria for inclusion did not address species
needs adequately. Concerns were expressed about the time needed for
State fish and wildlife agencies to interact with responsible officials
to ensure that all wildlife management concerns and issues are
adequately addressed. It was recommended a return to a modified
management indicator species (MIS) system. Others commented that the
Agency needs to clarify how it will determine the accuracy of species-
of-concern and species-of-interest, use scientifically credible third
parties in these determinations, and address how species-specific
provisions for those species that do not meet the species-of-concern
and species-of-interest criteria will be provided. They stated that the
species-of-concern criteria need to be reconsidered to be more pro-
active in managing wildlife populations to prevent ESA listing.
    Response: The concept of MIS was not included in the final rule
because recent scientific evidence identified flaws in the MIS concept.
The concept of MIS was that population trends for certain species that
were monitored could represent trends for other species. Through time,
this was found not to be the case. The Agency defined species-of-
concern and species-of-interest clearly. As identified in the Agency
directives species-of-concern are those identified as proposed and
candidate species under the ESA or those species ranked by NatureServe
as needing action to prevent listing under the ESA. Under the final
rule, the Forest Service directives identify the criteria for
determining the species-of-concern and species-of-interest lists. The
criteria include working with lists of species developed by objective
and scientifically credible third parties, such as the USFWS, the
National Marine Fisheries Service, and NatureServe. These lists of
species are also to be determined by working collaboratively with the
State fish and wildlife agencies and using some of their sources of
information such as their State Wildlife Conservation Strategies (see
FSH 1909.12, chapter 40). The primary purpose for identifying species-
of-concern is to put in place provisions that will contribute to
keeping those species from being listed as threatened or endangered.
The combined criteria for species-of-concern and species-of-interest
should lead to identification of all species for which there are
legitimate conservation concerns (FSH 1909.12, section 43.22). Species
for which there are no conservation concerns should be adequately
conserved through the ecosystem diversity approach.
    Comment: Retain the 2000 rule provisions for species viability.
Some respondents preferred the explicit, mandatory provisions for
species viability in the 2000 rule at section 219.20, because they
believed it would help the Forest Service keep the wildlife that now
exists, while the proposed language would lead to the disappearance of
more species from the national forests.
    Response: The 2000 rule established a ``high likelihood of
viability'' criterion. Although the 2000 rule provisions at section
219.20 provided for considerations based on the suitability and
capability of the specific land area, the provisions would also have
established the most intensive analysis requirements over either the
1982 rule or the proposed 2007 rule. The 2000 rule analysis requirements
for ecosystem diversity and species diversity were estimated to be very
costly and neither straightforward nor easy to carry out.
    Comment: Retain the 1982 rule provisions for species viability.
Some respondents commented that given the high level of importance of
national forest lands for wildlife, planning regulations should ensure
that plans focus on maintaining the viability of

[[Page 21496]]

native fish, wildlife, and plants; and that the section 219.19
provisions from the 1982 planning regulations should be retained.
Conversely, other respondents agreed with the move away from the
viability language in the 1982 rule stating that it was never realistic
to provide for viability for all species on all lands given the many
factors that influence viability, and that the focus should be on
managing habitat as defined by desired conditions rather than on
counting populations of each species. Some respondents commented that
the viability requirement is a pillar of wildlife conservation in the
United States. They provided many examples of the importance of
wildlife habitat and the many local and international threats to wildlife.
    Some respondents noted that one of the reasons stated by the Forest
Service for not including the species viability requirement in the
proposed rule is that it is not always possible to maintain viability
due to factors outside the Agency's control. However, some have
responded that the Agency should still do everything it can to maintain
viability for species on NFS lands. It was suggested that although the
Forest Service should give a considerable amount of attention to those
species that spend most of their time on NFS lands; perhaps the Agency
could give those species relatively little attention to those species
that spend a small amount of time on NFS lands.
    Response: As noted earlier, the NFMA requires guidelines that
provide for diversity. It does not mandate viability. The Agency has
learned that the requirement to maintain viable native fish and
wildlife species populations without recognizing the capability of the
land is not practicable due to influences on many populations that are
beyond agency control. The Forest Service is dedicated to the principle
that biological diversity is an essential and critical facet of our
multiple use land management mandate. Therefore, the final rule
requires a framework using the concepts of ecosystem diversity and
species diversity. The issue of self-sustaining populations is dealt
with in the current Forest Service Directive System (FSM 1921.76(c)).
The directives are not as prescriptive as the viability requirement
under the 1982 planning rule; however, the enhancement of conditions
for fish and wildlife populations is the expected outcome of carrying
out management consistent with plans developed under the final rule.
The suggestion to give a considerable attention to those species that
spend most of their time on NFS lands and to give less attention to
those species that spend most of their time elsewhere is similar to the
direction in the Forest Service directives developed to carry out the 2005
planning rule. About self-sustaining populations FSM 1921.76c says that:

    Plan components for species-of-concern should provide
appropriate ecological conditions to help avoid the need to list the
species under the Endangered Species Act. Appropriate ecological
conditions may include habitats that are an appropriate quality,
distribution, and abundance to allow self-sustaining populations of
the species to be well distributed and interactive, within the
bounds of the life history, distribution, and natural population
fluctuations of the species within the capability of the landscape
and consistent with multiple-use objectives. A self-sustaining
population is one that is sufficiently abundant and has appropriate
population characteristics to provide for its persistence over many
generations. The following points describe appropriate considerations for
plan components based on the portion of the range of a species-of-concern
that overlaps a plan area. When a plan area encompasses:
    1. The entire range of a species, the plan components should
contribute appropriate ecological conditions for the species
throughout that range.
    2. One or more naturally disjunct populations of a species, the
plan should contribute appropriate ecological conditions that
contribute to supporting each population over time.
    3. Only a part of a population, the plan should contribute
appropriate ecological conditions to support that population.

Where environmental conditions needed to support a species-of-
concern have been significantly altered on NFS lands so that it is
technically infeasible to provide appropriate ecological conditions
that would contribute to supporting self-sustaining populations, the
plan should contribute to the ecological conditions needed for self-
sustaining populations to the degree practicable.

    In addition, the 1982 planning rule at section 219.19 says:

    Fish and wildlife habitat shall be managed to maintain viable
populations of existing native and desired non-native vertebrate
species in the planning area. For planning purposes, a viable
population shall be regarded as one which has the estimated numbers
and distribution of reproductive individuals to insure its continued
existence is well distributed in the planning area. In order to
insure that viable populations will be maintained, habitat must be
provided to support, at least, a minimum number of reproductive
individuals and that habitat must be well distributed so that those
individuals can interact with others in the planning area.

    Furthermore, the 1982 planning rule at section 219.19 contains the
words ``shall be managed to maintain'' and the stringent ``ensure.''
These words have been interpreted by some people to be a 100 percent
certainty that all species must remain viable at all times. The 100
percent certainty interpretation is a technical impossibility given
that the cause of some species decline is beyond the Forest Service's
authority. 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), because the reasons for species decline are due to factors
outside the control of the Agency (such as habitat alteration in South
America causing decline of some neotropical migrant birds), or because
the land lacks the capacity to support species (such as drought
affecting fish habitat).
    The Agency developed these directives to carry out the 2005 rule.
The final rule provisions for ecosystem diversity and species diversity
are identical to the 2005 rule. Therefore, there is not an urgent
obligation to update the directives for ecosystem diversity and species
diversity; however, because of public comment the Agency will take a
comprehensive look a these directives and may update them to be more
effective and efficient.
    Comment: Reasons for not retaining a viability requirement. Several
respondents disagreed with the reasons for not establishing a viability
requirement cited in the preamble for the proposed rule. While they
recognized that the number of species having habitat or potential
habitat is very large, they disagreed with this being justification to
not include a viability requirement. It was suggested that the Agency
could focus on species whose overall viability might be questionable
and refine the list of species to those whose populations and habitat
are most affected by changes occurring on NFS lands. Another respondent
stated that as a minimum, the viable populations of proposed,
endangered, threatened, and sensitive species (PETS) and management
indicator species (MIS) should be managed for viability. Still another
respondent suggested that instead of abandoning the viability
requirement because it does not make sense to apply it to small
national forests such as the Finger Lakes National Forest, those
national forests should just be exempt from the requirement.
Respondents also disagreed with the statement in the preamble to the
proposed rule that focusing on viability would divert attention from an
ecosystem approach. They responded that an understanding of both
ecosystems and species is needed to understand the functioning of
ecosystems. A focus on viability could

[[Page 21497]]

help maintain the existence of certain species that, if under an
ecosystem approach, could be missed and might disappear from the area
or not receive the attention needed to arrest population decline in
that area. Further, some contended that providing for species viability
maintains ecosystems by maintaining its parts.
    Response: The Agency is committed to the hierarchical and iterative
approach to sustaining ecosystem diversity and species diversity. To do
that, the Agency developed directives that focuses on those species
where changes in plan components may be necessary to prevent listing
under ESA and refines the list of species to focus on the species whose
populations are most affected by changes in habitat on NFS lands. This
focus is essentially in the criteria for selecting the federally listed
threatened and endangered species, the species-of-concern, and the
species-of-interest supplied by the existing Forest Service Directive
System (FSM 1921.7 and FSH 1909.12, chapter 40). Similarly, the Agency
directives deal with the concern expressed that some species ``might
disappear from the area or not receive the attention needed to arrest
population decline in that area.'' The term ``self-sustaining
populations'' is used instead of the term viability in the current
Forest Service Directive System (FSM 1921.76(c)). The Agency directive
deals with the suggestion to just ``exempt'' certain national forests
from a viability requirement by including direction in Agency
directives to take into account capability of NFS lands (FSM 1921.76c).
Lastly, the Department believes that providing appropriate ecological
conditions for specific threatened and endangered species, species-of-
concern, and species-of-interest is superior to managing for PETS and
MIS. Under the final rule, threatened and endangered species, species-
of-concern, and species-of-interest replace PETS and MIS. MIS concept
from the 1982 rule has not been useful to the Agency as a framework for
understanding the relationship of changes in wildlife habitat and
population trends, because of the lack of ability to predict future
trends. Once a plan has been revised under the final rule, sensitive
species are no longer needed because species-of-concern and species-of-
interest replace them.
    Comment: Committee of Scientists recommendations. The comment was
made that the proposed rule's sustainability provision represents a
departure from the 1999 Committee of Scientists (COS) recommendations
on how to implement the NFMA's diversity mandate. The COS recommended a
three-tier approach, with the first prong involving an assessment of
the composition, structure, and processes of the ecosystems; the second
prong involving focusing on the viability of native species through the
use of ``focal species,'' and the third prong involving species-level
monitoring.
    Response: The report and recommendations from the 1999 Committee of
Scientists were considered in the development of the proposed and final
rule. The basic concepts developed by the COS on ecological
sustainability have been carried forward. The procedures in the final
rule and Forest Service directives still include looking at the
composition, structure, and processes of the ecosystems; considering
and evaluating the composition, structure, processes needed by a subset
of the plant and animal kingdom (threatened and endangered species,
species-of-concern, and species-of-interest), and the development of a
monitoring program.
    Comment: Proposed rule ignores scientific data concerning
sustainability. One respondent stated the proposed rule ignores
scientific data concerning what uses are sustainable, thereby setting
the stage for long-term destabilization of ecosystems.
    Response: The final rule at section 219.7(a)(2)(iv) does not
determine what uses are suitable for any specific area of land. The
responsible official will identify in the plan areas of land as
generally suitable for a variety of uses. Moreover, the final decisions
on actual uses of specific areas would not be made until project and
activity decisions (sec. 219.7(a)(2)(iv). The responsible official will
take into account the best available science and document that science
was appropriately interpreted and applied in making plan decisions
(sec. 219.11). Various means such as independent peer review, science
advisory boards, or other review methods may be used to evaluate the
consideration of science under any alternative. The Department believes
that these requirements of the final rule, along with the collaborative
process, would assure that scientific knowledge is appropriately
considered throughout the planning process.

Section 219.11--Role of Science in Planning

    This section of the final rule requires the responsible official to
take into account the best available science. The words ``take into
account'' express that formal science is just one source of information
for the responsible official and only one aspect of decisionmaking. The
Department retains the 2007 proposed rule wording in the final rule,
except the Department removed two requirements from the final rule. The
Department removed the requirements that the responsible official must
(1) evaluate and disclose substantial uncertainties in that science;
and (2) evaluate and disclose substantial risks associated with plan
components based on that science. The Department removed these two
requirements from the rule because detailed instructions for dealing
with uncertainties associated with science information and risks in
plan components are currently in the Forest Service directives (FSM
1921.8, FSH 1909.12, chapter 40).
    The responsible official may use independent peer reviews, science
advisory boards, or other review methods to evaluate science used in
the planning process. Forest Service directives provide specific
procedures for conducting science reviews (FSH 1909.12, chapter 40).
    Comment: Consistency with best available science. Some respondents
wanted the rule to retain 2000 rule language requiring responsible
officials to make decisions that are consistent with the best available
science. They felt that the proposed rule would allow scientific
knowledge or recommendations to be overridden. Other respondents agreed
with language requiring that the responsible official take into account
the best available science, as science itself is constantly changing
and subject to controversy. They stated that a requirement for
consistency would be unwieldy, ambiguous, and lead to increased litigation.
    Several respondents were concerned about a reduced emphasis on
science, citing the absence of a requirement to use peer reviewed
science or science advisory boards.
    Response: The Department is not reducing the emphasis on science.
The Department is committed to taking into account the best available
science in developing plans, plan amendments, and plan revisions as
well as documenting the consideration of science information. However,
the Department removed these two requirements from the rule because
detailed instructions for dealing with uncertainties associated with
science information and risks in plan components are currently in the
Forest Service directives (FSM 1921.8, FSH 1909.12, chapter 40).
    Although a significant source of information for the responsible
official, science would be only one aspect of decisionmaking. When
making decisions, the responsible official must

[[Page 21498]]

also consider public input, competing use demands, budget projections
and many other factors. Under the final rule, the responsible official
may use independent peer reviews, science advisory boards, or other
review methods to evaluate science used in the planning process. Forest
Service directives specify specific procedures for conducting science
reviews at FSM 1921.8 and FSH 1909.12, chapter 40. The Agency believes
these requirements of the rule, along with the collaborative process,
will assure that the best available scientific knowledge is
appropriately considered throughout the planning process.
    Comment: Consideration of traditional knowledge. One respondent was
concerned about the strong focus on science. While acknowledging that
science is essential for Forest Service planning, traditional ecological
knowledge also has much to offer and is not included in the rule.
    Response: Although a significant source of information for the
responsible official, science is only one aspect of decisionmaking.
Other factors including traditional ecological knowledge need to be
considered in the comprehensive evaluations and the formulation of plan
components.
    Comment: Term ``best available science.'' A respondent was concerned
about the term ``best available science'' and urged adoption of another
term or defining this term in the definitions section of the rule.
    Response: Under the final planning rule there is no firm,
established definition on what is best available science. The current
Forest Service directives at FSM 1921.8 and FSH 1909.12 chapter 40 use
this term. It is also important to realize there can be more than one
source for science or more than one interpretation of the science. What
constitutes the best available science might vary over time and across
scientific disciplines. The best available science is a suite of
information and the suite of information does not dictate that
something can only be done one way. Furthermore, under the final rule
the responsible official must take this suite of information into
account in a way that appropriately interprets and applies the
information applicable to the specific situation. A four step process
is described in the existing directives FSM 1921.81. This process
includes gathering quality science information, assessing the
information for pertinence, synthesizing the information for
application to planning, and applying the synthesis in developing the
plan components. When the four step process is followed and an
appropriate review is conducted, the best available science should be
taken into account and properly influence the plan components.
    Comment: Public input into the use of scientific information. One
respondent was concerned that scientists consider input from the public
and the Agency provides scientific information to the public so that
all the facts and information are available during decisionmaking.
Another respondent was concerned the rule needed to provide mechanisms
for the consideration and incorporation of sound science at all levels
and stages of the planning process. Another stated the rule leaves out
the voice of scientists in making plan decisions.
    Response: Under the final rule, the Department expects the
responsible official to share scientific information with the public
throughout the process. Under section 219.9(a), the responsible
official would involve the public in developing and updating the
comprehensive evaluation report, establishing the components of the
plan, and designing the monitoring program. Any interested scientists
can be involved at any phase of public involvement. It is also expected
that responsible officials would seek out quality science information
applicable to the issues being analyzed. Under section 219.11, the
responsible official would document how best available science was
taken into account and that science was appropriately interpreted and
applied. This could be done with the use of independent peer review, a
science advisory board, or other methods.

Section 219.12--Suitable Uses and Provisions Required by NFMA

    This section of the final rule includes provisions for identifying
suitable land uses, lands not suitable for timber production, lands
suited for timber production, plan provisions for resource management,
and requirements for the Forest Service Directive System to include
more NFMA requirements. The Department modified the 2007 proposed rule
wording in the final rule.
    In paragraph (a)(1) of this section, in the discussion of
identifying suitable uses, the Department added wording to acknowledge
that the responsible official may identify an area as generally
unsuitable for various uses. The Department added these words to avoid
confusion. Some public comments indicated that identification of an
area as generally not suitable for uses would be perceived as a final
decision. Therefore, the Department clarified its intent. The
Department views this as outgrowth of the proposed rule's suitability
provisions and not a substantive change.
    Furthermore, in paragraph (a)(1) of this section the Department
modified wording about project and decisionmaking to say that the plan
approval document may include project and activity decisions when the
analysis and plan approval documents are prepared in accord with Forest
Service NEPA procedures. The Department made this change because some
Agency managers were confused by the previous wording that if
authorization of a specific use is needed, responsible officials may
approve a specific use through project and activity decisionmaking. As
this change clarifies the Department's intent, this is not a
substantive change.
    In paragraph (a)(2) of this section, in the discussion of
identifying lands not suitable for timber production, the Department
added wording to explicitly require the responsible official to
identify lands as not suitable for timber production if (1) the
technology is not available for conducting timber harvest without
causing irreversible damage to soil, slope, or watershed conditions or
substantial and permanent impairment of the productivity of the land;
(2) there is no reasonable assurance that such lands can be adequately
restocked within 5 years after final regeneration harvest. The
Department added these requirements to the final rule to be responsive
to public concerns expressed on this issue. This is not a substantive
change because the proposed rule relied on the Forest Service Directive
System as a means to accomplish this requirement and because this was
considered in the range of alternatives in the EIS.
    In response to public comment, the Department added new paragraphs
at (a)(3), (a)(4), (b)(2), (b)(3), (b)(4), (b)(5), (b)(6), and (b)(7)
of this section to further discuss lands suitable for timber
production, other lands where trees may be harvested, and plan
provisions for resource management. The Department received several
comments arguing that this content is required by NFMA to be in the
text of the planning rule. Although the Department does not agree with
this legal interpretation of NFMA, the Department has elected to move
content into the rule from the Forest Service Directives System and
alternative E of the EIS to eliminate this potential controversy.
Furthermore, these added paragraphs are not a substantive change
because the proposed rule relied on the Forest Service Directive System
as a means to accomplish these NFMA requirements

[[Page 21499]]

and because this was considered in the range of alternatives in the EIS.
    In response to public comment, the Department added a new paragraph
(a)(3) in this section to direct the responsible official to consider
physical, ecological, social, economic, and other factors when
identifying lands suitable for timber production. In addition, the
Department added wording to discuss the requirement of NFMA to review
lands not suited for timber production every 10 years (16 U.S.C. 1604(k)).
    In response to public comment, the Department added a new paragraph
(a)(4) in this section to clarify and provide more direction about
salvage sales or other harvest needed for multiple-use objectives other
than timber production that may take place on areas that are not
suitable for timber production as previously discussed at paragraph
(a)(2)(ii) of this section.
    In response to public comment, the Department added a new paragraph
(b) in this section that says the plan should include provisions for
resource management. The verb should is used to recognize that
extenuating circumstances are likely to occur at times for these
provisions, for example, national forests or grasslands without timber
programs would not need to deal with the timber management provisions.
In paragraph (b) of this section, the Department added wording to deal
with the four conditions related to timber harvest at 16 U.S.C.
1604(g)(3)(E) and the five conditions related to even-aged harvest at
16 U.S.C. 1604(g)(3)(F) in response to comments. The wording requires
that these plan provisions deal with protection of bodies of water,
esthetics, fish, recreation, soil, watershed, wildlife,
interdisciplinary review, size limits for cutting of areas in one
harvest operation, and the regeneration of the timber resource.
Furthermore, paragraph (b)(5) in this section requires that the
harvesting system used is not selected primarily because it will give
the greatest dollar return or the greatest unit output of timber.
    The provision requiring Forest Service directives deal with
additional NFMA requirements of the 2007 proposed rule has been
redesignated at paragraph (c) of this section. This section requires
the directives discuss limitations on timber removal (16 U.S.C. 1611)
and culmination of mean annual increment (CMAI) of growth. The
Department added the provisions about culmination of mean annual
increment of growth to respond to public comment. Based on the use of
sound silvicultural practices, the Department specifies in the final
rule that this requirement applies to regeneration harvest of even-aged
stands on lands identified as suitable for timber production and where
timber production is a management purpose for the harvest. The
Department added this sentence about CMAI to clarify that based on the
use of sound silvicultural practices, MAI and CMAI are not applicable
to intermediate harvests (such as thinning or stand improvement
measures) and uneven-aged management. In addition, they are not
applicable to salvage or sanitation harvesting of timber stands that
are substantially damaged by fire, windthrow, or other catastrophe, or
which are in imminent danger from insect or disease attack. Further
discussion of CMAI is supplied in the Forest Service directives because
NFMA does not require this guidance to be in the rule itself.
    Comment: General suitability of NFS land for multiple uses. A
respondent noted the proposed rule at section 219.12(a)(1) that
national forests are generally suitable for a variety of multiple uses
appeared to represent a substantial change in forest policy that would
open all lands to all uses unless a forest manager specifically limits
uses in certain areas. The respondent was concerned that this policy
would jeopardize existing closures where certain uses are prohibited
unless designated open.
    Response: The final rule allows a responsible official to identify
lands that are generally suitable for various uses and lands that are
generally unsuited for various uses. National Forest System lands are
generally open to uses if consistent with the land management plan,
subject to consideration under appropriate NEPA procedures and other
applicable laws, regulations, and policies. This approach is not a
change in agency policy and would not affect existing closures that
prohibit a use for specific areas.
    Comment: Protection of soil and water resources during timber
harvest should be addressed. A number of respondents suggested that
more guidance limiting harvest activities should be in the rule,
specifically that lands should be identified as unsuited for timber
harvest where soil and watershed conditions would be irreversibly
damaged. It was also suggested that specific soil and water protection
requirements from the 1982 rule or the 2000 rule should be in the 2007 rule.
    Response: The final rule and supporting directives meet the
requirements of NFMA timber management requirements of 16 U.S.C.
1604(g) including provisions for protection of soil, watershed, and
other resources during timber harvest (sec. 219.12(b)). NFMA
requirements concerning guidelines for timber harvest are in section
219.12(b), including provisions for protection of soil, watershed, and
other resources during timber harvest. The responsible official is
required to identify as not suitable for timber production lands where
the technology is not available for conducting timber harvest without
causing irreversible damage to soil, slope, or watershed conditions or
substantial and permanent impairment of the productivity of the land.
It also requires that lands be identified as not suitable for timber
production if there is no reasonable assurance that such lands can be
adequately restocked within 5 years after final regeneration harvest.
    Comment: Limitation on timber harvest. Several respondents
suggested that the rule include limitations on timber harvest like
those prior rules. One suggestion was to limit harvest to the estimated
amount of timber that can be sold annually in perpetuity on a
sustained-yield basis, with exceptions for situations where areas have
been substantially affected by fire, wind, or other events or there is
imminent threat from insect or disease. Additional suggestions were
made that this section should reflect harvest limitations based on
ecological, social, and economic sustainability requirements from the
2000 rule. It was also suggested that the timber resource land
suitability requirements include the considerations from section 219.14
of the 1982 rule. These would address such things as economic costs and
benefits and other multiple-use objectives.
    Response: Under the final rule, responsible officials must limit
the sale of timber from each national forest to a quantity equal to or
less than a quantity that can be removed for such forest annually in
perpetuity on a sustained-yield basis (16 U.S.C. 1611). The rule relies
on the Forest Service Directive System for provisions on this issue.
The responsible official would take into account all elements of
sustainability (social, economic, and ecological) and involve the
public in analysis regarding timber suitability and timber harvest
limitations during the planning process. The responsible official would
evaluate relevant economic and social conditions and trends as
appropriate during the planning process. More detail for social and
economic analysis is provided in Forest Service Directives System.
    Comment: Force and effect of determinations that lands are unsuitable
for uses. A determination of lands unsuitable for logging or other

[[Page 21500]]

development should have the force of a standard, not a guideline.
    Response: Under the final rule, a project with the primary purpose
of timber production may only occur in an area identified as suitable
for that use (16 U.S.C. 1604(k)). However, timber harvest may be used
on such lands as a tool to achieve other multiple-use purposes.
Examples of the reasons may include, but are not limited to (1)
maintaining or recruiting mature forest characteristics in areas where
final regeneration of a stand is not planned, (2) experimental forests,
(3) restoring meadow or rangeland ecosystems being replaced by forest
succession, (4) cutting trees to promote the safety of forest users,
and (5) removal of understory trees to reduce hazardous ladder fuels in
frequent fire return interval forests. For suitability of areas except
for timber production, consistency of a project or activity should be
evaluated in one of two ways: (1) The project or activity is a use
identified in the plan as suitable for the location where the project
or activity is to occur. (2) The project or activity is not a use
identified in the plan as suitable for the location, but the responsible
official documents the reasons the use is appropriate for that location.
    Comment: Provisions for timber harvest on land classified as
unsuitable for timber production. Some respondents stated that salvage
sales or other harvest needed for multiple-use objectives other than
timber production should not be allowed on lands unsuitable for timber
production, because no sideboards have been set in regulation that
constrain how this would be done or what trade-offs would or would not
be acceptable.
    Response: Timber harvest for salvage sales or sales necessitated to
protect other multiple-uses is authorized by the NFMA at 16 U.S.C.
1604(k). The NFMA sets forth sideboards that apply to timber harvest
whatever its purpose (16 U.S.C. 1604(g)(3)). Under the final rule, the
responsible official may only authorize timber harvest to achieve other
multiple-use purposes if such a project is consistent with the
protection of soil, watershed, fish, wildlife, recreation, and
aesthetic resources.

Section 219.13--Objections to Plans, Plan Amendments, or Plan Revisions

    This section establishes the objection process by which the public
can challenge plans, plan revisions, or plan amendments. The Department
retains the 2007 proposed rule wording in the final rule.
    The Committee of Scientists, in its 1999 report, recommended that
the Forest Service seek to harmonize its administrative appeal process
with those of other Federal agencies. The Committee of Scientists said
a pre-decisional process would encourage internal Forest Service
discussion, encourage multi-agency collaboration, and encourage public
interest groups to collaborate and work out differences. Therefore, to
be more consistent with the Bureau of Land Management (BLM) and to
improve public participation efforts, the Department is adopting the
pre-decisional objection process (sec. 219.13) to replace the appeals
process. The objection process complements the public participation
process because the objectors and the reviewing officer can collaboratively
work through concerns before a responsible official approves a plan.
    The 30-day objection period specified in this final rule is the
same amount of time provided in the BLM protest process. The final rule
does not specify a time limit for agency responses; the final rule has
adopted the BLM requirement that the reviewing officer promptly render
a decision on the objection. It is in the interest of the Agency to
render a decision promptly to move forward.
    Because Federal agencies have other avenues for working together to
resolve concerns, under the final rule Federal entities are not able to
file objections. This exclusion of Federal agencies is a long-standing
procedure of Forest Service administrative appeal provisions at 36 CFR
parts 215, 217, and 251, subpart C. The Forest Service is required to
involve other Federal agencies, at section 219.9(a)(2) of the final
rule. The objection process is intended primarily for state and local
governments, tribes, and members of the public. The objection process
is not suitable to resolve concerns between sister agencies in the
executive branch. The Forest Service anticipates that other agencies
will be able to resolve most planning concerns informally. Where it is
anticipated that there may be concerns that are not easily resolved by
planners and other agency personnel, various techniques such as
establishments of memorandums of understanding or local working
agreements may be used. Some agencies also have regulatory authority;
for example, EPA has review authority pursuant to section 309 of the
Clean Air Act. These techniques and authorities are successfully being
used now and will continue to be used in the future.
    Comment: Inherent benefits of a post-decisional appeal process. A
respondent said the Forest Service failed to consider the inherent
value of a post decisional appeal process. One value is that it
addresses a need for citizens to air legitimate objections to final
decisions in forest plans so that litigation remains a last option. The
respondent cited studies of the Agency's appeal process for projects
that concluded ``most appeals appear to be justified,'' and that the
program has been ``an internal mechanism for clarifying the legal
requirements and for testing the soundness of decisions and the
appropriateness of current policies and procedures.'' Another
respondent noted that only a post-decisional appeal process provides
the public a way of objecting based on a review of the actual decision
that has been made. A respondent said the current appeals process has a
proven track record of resolving conflicts, encouraging collaboration,
and preventing unnecessary litigation. One respondent noted there is
nothing that prevents a deciding officer from seeking objections before
issuing a decision, then also receiving post-decisional appeals. The
appeal and objection processes are compatible, and it is essential and
efficient to keep the appeal process, because the review of contentious
decisions by higher level officials before contention leads to litigation.
    Response: The Agency believes a predecisional objections process in
the final rule will be a natural continuation of the collaborative
planning process in a way that participants have opportunities to
discuss the proposed decision, consider options, and air concerns and
opinions throughout the process. The Agency believes objections are a
more effective mechanism for testing soundness of decisions.
Consistency with law and policy can still be tested, contentious issues
discussed, and litigation avoided. The Agency believes that having both
a predecisional objection process and a post decisional appeals process
would be redundant. The objection process is expected to resolve many
potential conflicts by encouraging resolution before a plan, plan
amendment, or plan revision is approved.
    Under the 36 CFR part 217 appeal process, the Agency and the public
expend significant human and financial resources in fulfillment of
procedural requirements. Often an appeal leads to a polarized
relationship because there is no real incentive to address natural
resource issues and there is a squandering of human and financial
capital, often without long-lasting solutions to problems. With a
predecisional objection process, the responsible official, the
reviewing officer, and the objector have the

[[Page 21501]]

opportunity to seek reasonable solutions to conflicting views of plan
components before a responsible official approves a plan, plan
amendment, or plan revision. The objection process allows discretion
for joint problem solving to resolve issues. This approach fits well
with a collaborative approach to planning.
    In its 1999 report, the COS identified potential problems
associated with the post-decisional appeals process. These problems
included isolating agency decisionmakers from one another just at the
time when internal discussion about the upcoming plan decision might be
useful, inhibiting multi-agency collaboration, and giving mixed and
inconsistent incentives for involvement of interest groups. The COS
recommended that in line with a collaborative planning process, the
Agency should consider an approach that minimizes incentives to appeal
plan decisions. The committee recommended that if the appeals process
proves problematic, influencing parties to disregard their agreements
or to leave the table before agreements are reached, and then the
Agency might consider shifting to a predecisional process similar to
that used by the U.S. Department of the Interior, Bureau of Land
Management (BLM). Having considered these recommendations, and the
experience of the Agency with the post decisional appeals process, the
Agency believes the objection process will provide a more consistent
process among agencies and further a collaborative approach to planning.
    Comment: Time allowed for filing objections and responding to
objections. Several respondents commented that the 30-day period for
filing objections is not adequate to review the plan and supporting
documentation and prepare an objection. Some respondents recommended
that the rule allow at least 60 days for filing objections. Some also
recommended that the rule include a specific time frame for making
decisions on objections. One respondent noted that it is a double
standard for having a time limit for filing objections, but none for
responding to them. Another respondent had the impression that the 30-
day objection period replaced the 3-month public review and comment
period required by the NFMA.
    Response: Under the final rule, the Agency would use the objection
process to resolve many potential conflicts by encouraging resolution
before a plan, plan amendment, or plan revision is approved. The 30-day
objection period specified in these alternatives is the same amount of
time provided in the BLM protest process. The Agency does not specify a
time limit for agency responses. It is in the interest of all parties
for the reviewing officer to promptly render a decision on the
objection, but a specific time limit could potentially shortcut joint
discussions among the parties aimed at resolving issues raised in the
objections. The Agency believes that 30 days is adequate for developing
and filing an objection, considering that objections would follow a
collaborative public participation process including a 90-day comment
period on the proposed plan, plan amendment, or plan revision found at
section 219.9(b)(1)(ii).
    Comment: Designating a lead objector and content of objections. A
respondent said the objection process is too burdensome, because it
requires someone be designated the lead objector, who is the only
person the Forest Service will contact or talk with. The process limits
opportunities for resolution because it does not require a notice of
all objections received and limits who can request meetings. The
process places too stringent requirements on the content of objections,
mere disagreement with the decisions should be adequate basis for an
objection.
    Response: Section 219.13(b)(1) of the final rule calls for a
designated lead objector when an objection is filed by more than one
person. Under the final rule, a person may object if they believe a
policy has been violated, but a person is free to object simply because
they disagree with the decision. The requirements of section 219.13(b)
allow the reviewing officer to know why an objector objects as well as
what the objector recommends for change. About the lead objector, the
final rule says ``The reviewing officer may communicate directly with
the lead objector and is not required to notify the other listed
objectors of the objection response or any other written correspondence
related to the single objection.'' The procedures for communication
through the designated lead objector are a reasonable accommodation to
effectively work with a multi-party objection and quickly resolve
issues. However, the reviewing officer may meet with all objectors if
the reviewing officer desires. The reviewing officer has the discretion
to manage the process.
    Comment: Participation in objections by interested parties. Some
respondents recommended that the rule include provisions for
participation in the objections process by parties who did not file an
objection, but who participated in the planning process and may be
affected by the response to objections filed by others.
    Response: Under the final rule, the reviewing officer is not
precluded from involving parties in addition to the objector(s) when
making a response to the objection. Interested individuals and
organizations could also object to plans, plan amendments, or plan
revisions.
    Comment: Decisions by responsible officials at a higher level than
the Chief. Per section 219.13(a)(2) of the proposed rule, there is no
opportunity for administrative review (objections) if the plan decision
is made by a Department official at a level higher than the Chief of
the Forest Service. One respondent recommended that officials higher
than the Chief should not be allowed to make plan decisions, because
the objection process should be available to allow for resolution of
disagreements at the local level rather than through the courts.
    Response: The final rule retains this exception at section
219.13(a)(2) to opportunities for objecting to a plan. There is no
higher level to object to when the decision is made at a level higher
than the Forest Service Chief. It is anticipated that plan decisions
will rarely be made at a level above the regional forester.

Section 219.14--Effective Dates and Transition

    This section specifies when a plan, plan amendment, or plan
revision will take effect as well as how responsible officials may
modify ongoing planning efforts to conform to the requirements of the
final rule. For clarity, the Department modified this section from the
transition wording in the 2007 proposed rule. The final rule sets up
the time requirement for EMS establishment in section 219.5; therefore,
the discussion of EMS establishment has been removed from this section.
    In paragraph (a) of this section, the Department retains wording
about effective dates from the 2007 proposed rule. In paragraph (b) of
this section, the Department retains the definition of initiation from
the 2007 proposed rule. In paragraph (b)(1) of this section, the
Department retains the requirement of the proposed rule that plan
development and plan revisions initiated after the effective date of
the final rule must conform to the requirements of this subpart.
    In paragraph (b)(2) of this section, the Department discusses the
requirements of plan amendments during transition under the final rule.
This section combined discussions from the proposed rule in paragraph
(d)(2), paragraph (d)(3), and (e)(2) of this section in the proposed
rule. As in the proposed rule, for 3 years the responsible official may
amend plans

[[Page 21502]]

under the 1982 rule procedures or under the final rule procedures. As
in the proposed rule, all plan amendments initiated after 3 years must
conform to the final rule. Plan amendments initiated prior to that 3
year deadline may use the 1982 procedures.
    The Department added a new provision in paragraph (b)(2) in this
section that allows responsible officials to use the objections process
of the final rule or the appeal procedures if they amend under the 1982
procedures. In the proposed rule, plan amendments previously initiated
were permitted to use either administrative review process. This
addition permits plan amendments using the 1982 rule procedures a
choice. Furthermore, this is not a substantive change.
    In paragraph (b)(3) of this section, the Department discusses plan
development, plan amendments, or plan revisions initiated before this
rule. This is a modification of paragraph (e) of this section in the
proposed rule. To deal with plan revisions efforts that relied on the
2005 rule, the Department added a provision at paragraph (b)(3)(ii) in
this section that the responsible official is not required to start
over on a finding that process conforms to the final rule.
    The Department removed paragraph (f) from this section about
management indicator species (MIS) from the final rule, because the
revised paragraph (b)(4) of this section eliminates the need to discuss
MIS as a separate topic. In paragraph (b)(4) of this section, the
Department discusses plans developed, amended, or revised using the
1982 rule. For those national forests and grasslands, the 1982 rule is
without effect. Therefore, no obligations remain from the 1982 rule
including MIS, except those that are specifically in the plan. There
has been uncertainty about the application of provisions of the 1982
rule, particularly with respect to obligations about MIS (69 FR 58055,
Sept. 29, 2004). For such plans, species obligations may be met by
considering data and analysis relating to habitat unless the plan
specifically requires population monitoring or population surveys. The
appropriate scale for species monitoring is the plan area, however,
plan provisions define species obligations. There has been some
confusion about the intent of paragraph (f) in this section of the
proposed rule. The Department believes this change in wording at
revised paragraph (b)(4) is not a substantive change but clarifies the
Department's intent.
    Comment: Management indicator species (MIS) population monitoring.
Some respondents expressed concern that monitoring of habitat
conditions may not reflect population trends in a timely enough manner
and stated that baseline data is needed if sampling programs are to be
used for trend analysis. Other respondents stated that provisions of
the proposed rule allowing monitoring of habitat rather than
populations, using a range of methods, and specifying that MIS
monitoring is not required for individual projects conflicts with the
MIS case law developed under the 1982 rule and may not survive legal
challenge. Other respondents urged that wildlife monitoring
requirements not be optional (as was proposed in sec. 219.14(f)),
otherwise the forest managers and public would have no way of knowing
whether wildlife goals have been met.
    Response: Management indicator species monitoring is not discussed
in the final rule. The 1982 rule is not in effect (sec. 219.14(b)(4)).
No obligations remain from that regulation (including MIS), except
those that are specifically in a plan. Considerable uncertainty has
arisen in the past, specifically due to conflicting court decisions
related to MIS monitoring. The responsible official may use information
on habitat unless the plan specifically requires population monitoring
or population surveys in meeting any species monitoring obligations of
the plan. Site-specific monitoring or surveying of a proposed project
or activity area is not required, unless required by the plan. Any
monitoring would likely be carried out at the scale most appropriate to
the species within the national forest, grassland, prairie, or other
administratively comparable unit. The Agency does not dictate a
specific required approach to species monitoring under plans. Rather,
the responsible official is allowed flexibility to carry out monitoring
approaches that may include either habitat or population monitoring and
a variety of sampling programs to estimate or approximate population
trends for species. The need for timely feedback on trends and the
existence of baseline data may be a consideration as the responsible
official adopts a specific monitoring protocol.
    Comment: Transition--when existing plans come under the new rule. A
respondent did not support allowing forests to come under the new rule
as soon as they established an EMS. This respondent said that a plan
should conform to the rule it was developed under until a new plan had
been prepared and approved.
    Response: The final rule provides a process for developing,
revising, or amending plans only. Except as specifically provided, none
of the requirements of this final rule, apply to projects or
activities. Since all current plans were developed under the 1982 rule,
the respondent is actually recommending that the 1982 rule remain in
effect until a plan is revised under the final rule. However, there is
nothing to ``conform to'' unless one of these planning actions is
initiated, and the Department sees no advantage to delaying use of the
new rule. The 1982 rule is not in effect. It is the Agency position
that requirements for project and activity planning should be set in
the Agency directives, not in a rule. The requirement for establishing
an EMS as a precondition to approving plan development, plan
amendments, or plan revisions has been removed from the final rule.
    Comment: Continuing plan revisions initiated under the 2005 rule.
One respondent urged that the rule include a specific provision
allowing units that had begun revision under the 2005 rule to use the
work and material prepared to date, because forcing these units to
start the process over again would be a significant waste of agency
resources and would frustrate the local community because their past
efforts would be ignored.
    Response: The final rule requires the responsible official to make
a finding that the plan, plan amendment, or plan revision process
conforms to the requirements of the planning rule (sec. 219.14(b)(3)).
The final rule discusses the transition for plan development,
amendments, or revisions previously initiated, and allows for these
planning processes to build on the work done to date rather than
requiring that the responsible official to start over. The Agency
believes that, although some adjustments may be needed, the public
involvement, analysis, and documentation developed thus far through
planning efforts conducted under the 2005 rule can and should be used
as these plans are completed under the final rule.

Section 219.15--Severability

    This section explains that it is the Department's intent that the
individual provisions of this rule be severable from each other. The
Department retains the 2007 proposed rule wording in the final rule.

Section 219.16--Definitions

    This section sets out and defines the special terms used in the
final rule. Additional discussion in response to comments about
definitions is found in Appendix G of the EIS. The Department added two
terms to the definitions section of the final rule. These additional
terms are ``Alaska Native

[[Page 21503]]

Corporations,'' and ``timber harvest.'' The Alaska Native Corporation
addition is based on public comment from those entities pointing out
that the proposed rule did not include them. The addition of the timber
harvest definition is needed to deal with the additional timber
provisions added at section 219.12 in response to comments on that
section. Based on public comment, the definition of the term ``adaptive
management'' has been modified to agree with the definition used in the
ongoing NEPA rule-making. The Department changed the definition of
environmental management systems (EMS) to let EMS be multi-unit,
regional, or national in scope.
    The Department removed the definition of species from section
219.16 for two reasons: (1) During review of the proposed rule other
agencies pointed out that there may be confusion between statutes and
our proposed definition for species; (2) the definition of species-of-
concern in the final rule demonstrates the Department's intent to deal
with the species for which management actions may be necessary to
prevent listing under the Endangered Species Act.

Compliance With the Endangered Species Act of 1973, as Amended

    As part of the environmental analysis, a biological assessment was
prepared for threatened, endangered, and proposed species and
designated and proposed critical habitat for the 2008 final land
management planning rule. The assessment concluded that the planning
rule will have no effect to these species as it establishes the
procedures for land management planning and does not authorize, fund,
permit, or carry out any habitat or resource disturbing activities. The
rule does not affect, modify, mitigate, or reduce the requirement for
the Forest Service to conference or consult on projects or activities
that it funds, permits, or carries out that may affect threatened,
endangered, or proposed species or their designated or proposed
critical habitat. Section seven consultation will be conducted for
actions authorized, funded, or carried out by the Forest Service as
required by regulation or policy (50 CFR 402.01, FSM 2671.45). Based on
this assessment it was determined 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
decision making 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. Copies of the biological
assessment and appendices are in the analysis record for this rule and
are available on request.

Regulatory Certifications

Regulatory Impact

    The Agency reviewed this rule under U.S. Department of Agriculture
(Department) procedures and Executive Order 12866 issued September 30,
1993, as amended by Executive Order 13422 on regulatory planning and
review and the major rule provisions of the Small Business Regulatory
Enforcement and Fairness Act (5 U.S.C. 800). The Agency has determined
this rule is not an economically significant rule. This rule will not
have an annual effect of $100 million or more on the economy nor
adversely affect productivity, competition, jobs, the environment,
public health or safety, nor State or local governments. This rule will
neither interfere with an action taken or planned by another agency nor
raise new legal or policy issues. Finally, this rule will not alter the
budgetary impact of entitlements, grants, user fees, or loan programs
or the rights and obligations of recipients of such programs. However,
because of the extensive interest in NFS planning and decisionmaking,
this rule has been designated as significant and, therefore, is subject
to Office of Management and Budget review under Executive Order 13422.
    An analysis was conducted to compare the costs and benefits of
carrying out the rule to the baseline--the 2000 rule. This analysis is
posted on the World Wide Web/Internet at http://www.fs.fed.us/emc/nfma/
2008_planning_rule.html,  along with other documents associated
with this rule. The 2000 rule was used as the baseline because it is the
no action alternative (alternative B).
    Quantitative differences between this rule, and the other
alternatives were also estimated. Alternatives included alternative A
(the 2005 rule), alternative C (the 1982 rule), alternative D (2005
rule modified to not include the EMS requirement), alternative E (2005
rule modified to not include EMS and explicitly to include timber
requirements in the rule and standards as plan components). Primary
sources of data used to estimate the costs and benefits of the 2000
rule are from the results of a 2002 report entitled ``A Business
Evaluation of the 2000 and Proposed NFMA Rules'' produced by the
Inventory and Monitoring Institute of the Forest Service. The report is
also identified as the ``2002 NFMA Costing Study,'' or simply as the
``costing study.'' The costing study used a business modeling process
to identify and compare major costs for the 2000 rule. The main source
of data used to approximate costs under the 1982 rule is from a 2002
report to Congress on planning costs, along with empirical data and
inferences from the costing study.
    The cost-benefit analysis focuses on key activities in land
management planning for which costs can be estimated under the 1982
rule, the 2000 rule, the rule selected in this ROD, and the other
alternative rules. The key activities for which costs were analyzed
include regional guides, collaboration, consideration of science,
evaluation of the sustainability of decisions, and diversity
requirements under the National Forest Management Act of 1976 (16
U.S.C. 1600 et seq.), monitoring, evaluation, and the resolution of
disputes about the proposed plan decisions through the administrative
processes of appeals and objections. The rule would reduce the cost of
producing a plan or revision by shortening the length of the planning
process and by providing the responsible official with more flexibility
to decide the scope and scale of the planning process.
    The rule would require a comprehensive evaluation during plan
development and plan revision that would be updated at least every 5
years. Some upfront planning costs, such as analyzing and developing
plan components, and documenting the land management planning process,
are anticipated to shift to monitoring and evaluation to better
document existing conditions and trends of past management activities
and natural events when preparing a comprehensive evaluation of the
plan under the rule.
    Based on costs that can be quantified, carrying out this final rule
is expected to have an estimated annual average cost savings of $25.6
million when

[[Page 21504]]

compared to the 2000 rule, and an estimated annual average savings of
$0.2 million when compared to estimates of the 1982 rule. From this
cost-benefit analysis, the estimated costs for carrying out the rule
are expected to be lower than the 2000 rule.
    Agency costs for carrying out the rule, the 2000 rule, 1982 rule,
and other alternative rules were discounted at 3 percent and 7 percent
discount rates for the 15-year period from 2008 to 2022; then
annualized costs were calculated for these alternatives. By using 3
percent discount rate, the annualized cost for the rule was estimated
at $104.6 million, while the annualized cost for the 2000 rule was $129
million and for the 1982 rule was $104 million. The Agency expects the
rule to have an annualized cost savings of about $24.6 million when
compared with the 2000 rule, and an estimated annualized cost of $0.3
million when compared with estimates of the 1982 rule.
    When using a 7 percent discount rate for the same timeframe, the
results show the annualized cost estimate for the rule is $104.5
million and the estimated annualized cost for the 2000 rule and the
1982 rule are $127.2 million and $103.2 million respectively. Based on
these annualized cost estimates at 7 percent discount rate, use of this
rule is expected to have an annualized cost savings of $22.7 million
when compared with the 2000 rule, and an estimated annualized cost of
$1.3 million when compared with estimates of the 1982 rule. This
quantitative assessment indicates a cost savings for the Agency using
the rule.
    Although the annual average costs of the rule and the 1982 rule are
relatively similar, there are substantive and significant differences
in how planning dollars are invested annually. Under the 1982 rule, 68
percent of all estimated annual planning expenditures are committed to
plan revision processes, rather than monitoring and evaluation. An
estimated 75 percent of annual planning expenditures would fund plan
revisions under the 2000 rule. Under this rule, an estimated 51 percent
of annual planning dollars would be expended for plan revisions,
leaving nearly half of annual expenses for monitoring and evaluation
that would keep plans more current and adaptive to new information and
changing conditions.
    One of the criticisms of planning under the 1982 rule is that these
plans were very unresponsive to new information and changing
conditions. Once a revised plan is approved, the useful life of a plan
EIS is very short when compared to the 15-year useful life of the
revised plan. Spending a significant higher amount of available
planning dollars on monitoring and evaluation over the life of the
plan, instead of a large up front cost on plan revision and an EIS,
will create more dynamic and adaptive plans. This will fulfill the
purpose and need much more than the 1982 or 2000 rule.
    This rule has also been considered in light of the Regulatory
Flexibility Act, as amended (5 U.S.C. 601 et seq.), and it has been
determined this action will not have a significant economic impact on a
substantial number of small business entities as defined by the
Regulatory Flexibility Act. Therefore, a regulatory flexibility
analysis is not required for this rule. The rule imposes no
requirements on either small or large entities. Rather, the rule sets
out the process the Forest Service will follow in land management
planning for the NFS. The rule should provide opportunities for small
businesses to become involved in the national forest, grassland,
prairie, or other comparable administrative unit plan approval.
Moreover, by streamlining the land management planning process, the
rule should benefit small businesses through more timely decisions that
affect outputs of products and services.

Environmental Impacts

    This rule sets up the administrative procedures to guide
development, amendment, and revision of NFS land management plans. This
rule, like earlier planning rules, does not dictate how administrative
units of the NFS are to be managed. The Agency does not expect this
rule will directly affect the mix of uses on any or all units of the
NFS. Section 31.12 of FSH 1909.15 excludes from documentation in an EA
or EIS ``rules, regulations, or policies to establish Servicewide
administrative procedures, program processes, or instruction.'' The
Agency believes this rule falls squarely within this category of
actions and that no extraordinary circumstances exist that would
require preparation of an EA or an EIS. However, because of the
district court's March 30, 2007 decision in Citizens for Better
Forestry v. USDA and the Agency's desire to reform the planning
process, the Agency has prepared an EIS considering several
alternatives to the rule and potential environmental impacts of those
alternatives. The EIS is available on the Internet at 
http://www.fs.fed.us/emc/nfma/2008_planning_rule.html.  
The EIS explains there are no environmental impacts resulting from
promulgating this rule.

Energy Effects

    This rule has been reviewed under Executive Order 13211, issued May
18, 2001, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.'' It has been determined this rule
does not constitute a significant energy action as defined in Executive
Order 13211. This rule would guide the development, amendment, and
revision of NFS land management plans. These plans are strategic
documents that provide the guidance for making future project or
activity-level resource management decisions. As such, these plans will
address access requirements associated with energy exploration and
development within the framework of multiple-use, sustained-yield
management of the surface resources of the NFS lands. These land
management plans might identify major rights-of-way corridors for
utility transmission lines, pipelines, and water canals. Although these
plans might consider the need for such facilities, they do not
authorize constructing them; therefore, the rule and the plans
developed under it do not have energy effects within the meaning of
Executive Order 13211. The effects of constructing such lines,
pipelines, and canals are, of requirement, considered on a case-by-case
basis as specific construction proposals. Consistent with Executive
Order 13211, direction to incorporate consideration of energy supply,
distribution, and use in the planning process will be in the Agency's
administrative directives for carrying out the rule.

Controlling Paperwork Burdens on the Public

    In accord with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.), the information collection or reporting requirements for the
objection process were previously approved by the Office of Management
and Budget (OMB) and assigned control number 0596-0158, expiring on
December 31, 2006, for the 2005 rule. The OMB has extended this
approval, effective January 31, 2007, using the same control number.
This extension was made after the Forest Service provided the public an
opportunity to comment on the extension as required by the Paperwork
Reduction Act (71 FR 40687, July 18, 2006). The Forest Service received
one comment about the extension. The information required by section
219.13 is needed for an objector to explain the objection being made to
a proposed land management plan, plan amendment, or plan revision. This
rule retains but simplifies the objection process set up

[[Page 21505]]

in the 2000 rule. The rule removes the requirements previously provided
in the 2000 rule for interested parties, publication of objections, and
formal requests for meetings (36 CFR 219.32 of 2000 rule). These
changes have resulted in a small reduction in burden hours approved by
OMB for the 2000 rule.

Federalism

    The Agency has considered this rule under the requirements of
Executive Order 13132 issued August 4, 1999, ``Federalism.'' The Agency
has made an assessment the rule conforms to the Federalism principles
set out in this Executive Order; would not impose any compliance costs
on the states; and would not have substantial direct effects on the
states, on the relation between the national government and the states,
nor on distributing power and responsibilities among the various levels
of government. Therefore, the Agency concludes this rule does not have
Federalism implications. Moreover, section 219.9 of this rule shows
sensitivity to Federalism concerns by requiring the responsible
official to meet with, and provide opportunities for involvement of,
State and local governments in the planning process.
    In the spirit of Executive Order 13132, the Agency consulted with
State and local officials, including their national representatives,
early in the process of developing the regulation. The Agency has
consulted with the Western Governors' Association and the National
Association of Counties to get their views on a preliminary draft of
the 2002 proposed rule. The Western Governors' Association supported
the general intent to create a regulation that works and placed
importance on the quality of collaboration to be provided when the
Agency puts into effect the regulation. Agency representatives also
contacted the International City and County Managers Association,
National Conference of State Legislators, The Council of State
Governments, Natural Resources Committee of the National Governors
Association, U.S. Conference of Mayors, and the National League of
Cities to share information about the 2002 proposed rule before its
publication. Based on comments received on the 2002 proposed rule, the
Agency has determined more consultation was not needed with State and
local governments for promulgating the 2005 rule, and thus this rule.
State and local governments were encouraged to comment on the proposed
rule during this rulemaking process.

Consultation With Indian Tribal Governments

    Pursuant to Executive Order 13175 of November 6, 2000,
``Consultation and Coordination With Indian Tribal Governments,'' the
Agency has assessed the impact of this rule on Indian Tribal
governments and has determined the rule does not significantly or
uniquely affect communities of Indian Tribal governments. The rule
deals with the administrative procedures to guide the development,
amendment, and revision of NFS land management plans and, as such, has
no direct effect about the occupancy and use of NFS land. At section
219.9(a)(3), the rule requires consultation with federally recognized
Tribes when conducting land management planning. The Agency has also
determined this rule does not impose substantial direct compliance
costs on Indian Tribal governments. This rule does not mandate Tribal
participation in NFS planning. Rather, the rule imposes an obligation
on Forest Service officials to consult early with Tribal governments
and to work cooperatively with them where planning issues affect Tribal
interests.

No Takings Implications

    This rule has been analyzed in accord with the principles and
criteria in Executive Order 12630 issued March 15, 1988, and it has
been determined the rule does not pose the risk of a taking of private
property.

Civil Justice Reform

    This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule (1) preempts all State and local laws and
regulations that conflict with this rule or would impede the carrying
out of this rule; (2) does not retroactively affect existing permits,
contracts, or other instruments authorizing the occupancy and use of
NFS lands; and (3) does not require administrative proceedings before
parties could file suit in court challenging its provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the Agency has assessed the effects of this rule on
State, local, and Tribal governments and the private sector. This rule
does not compel the spending of $100 million or more by any State,
local, or Tribal governments or anyone in the private sector.
Therefore, a statement under section 202 of the Act is not required.

List of Subjects in 36 CFR Part 219

    Administrative practice and procedure, Environmental impact
statements, Indians, Intergovernmental relations, National forests,
Reporting and recordkeeping requirements, Science and technology.

Therefore, for the reasons set forth in the preamble, part 219 of title
36 of the Code of Federal Regulations is revised to read as follows:

PART 219--PLANNING

Subpart A--National Forest System Land Management Planning
Sec.
219.1 Purpose and applicability.
219.2 Levels of planning and planning authority.
219.3 Nature of land management planning.
219.4 National Environmental Policy Act compliance.
219.5 Environmental management systems.
219.6 Evaluations and monitoring.
219.7 Developing, amending, or revising a plan.
219.8 Application of a new plan, plan amendment, or plan revision.
219.9 Public participation, collaboration, and notification.
219.10 Sustainability.
219.11 Role of science in planning.
219.12 Suitable uses and provisions required by NFMA.
219.13 Objections to plans, plan amendments, or plan revisions.
219.14 Effective dates and transition.
219.15 Severability.
219.16 Definitions.
Subpart B--[Reserved]

    Authority: 5 U.S.C. 301; 16 U.S.C. 1604, 1613.

Subpart A--National Forest System Land Management Planning

Sec.  219.1  Purpose and applicability.

    (a) The rules of this subpart set forth a process for land
management planning, including the process for developing, amending,
and revising land management plans (also referred to as plans) for the
National Forest System (NFS), as required by the Forest and Rangeland
Renewable Resources Planning Act of 1974, as amended by the National
Forest Management Act of 1976 (16 U.S.C. 1600 et seq.), hereinafter
referred to as NFMA. This subpart also describes the nature and scope
of plans and plan components. This subpart is applicable to all units
of the NFS as defined by 16 U.S.C. 1609 or subsequent statute.
    (b) Consistent with the Multiple-Use Sustained-Yield Act of 1960
(16 U.S.C. 528-531) (MUSYA), the overall goal of managing the NFS is to
sustain the multiple uses of its renewable resources

[[Page 21506]]

in perpetuity while maintaining the long-term productivity of the land.
Resources are to be managed so they are utilized in the combination
that will best meet the needs of the American people. Maintaining or
restoring the health of the land enables the NFS to provide a sustainable
flow of uses, benefits, products, services, and visitor opportunities.
    (c) The Chief of the Forest Service shall establish planning
procedures for this subpart for plan development, plan amendment, or
plan revision in the Forest Service Directive System.

Sec.  219.2  Levels of planning and planning authority.

    Planning occurs at multiple organizational levels and geographic areas.
    (a) National. The Chief of the Forest Service is responsible for
national planning, such as preparation of the Forest Service Strategic
Plan required under the Government Performance and Results Act of 1993
(5 U.S.C. 306; 31 U.S.C. 1115-1119; 31 U.S.C. 9703-9704), which is
integrated with the requirements of the Forest and Rangeland Renewable
Resources Planning Act of 1974, as amended by the National Forest
Management Act (NFMA). The Strategic Plan establishes goals,
objectives, performance measures, and strategies for management of the
NFS, as well as the other Forest Service mission areas.
    (b) Forest, grassland, prairie, or other comparable administrative unit.
    (1) Land management plans provide broad guidance and information
for project and activity decisionmaking in a national forest,
grassland, prairie, or other comparable administrative unit. The
supervisor of the national forest, grassland, prairie, or other
comparable administrative unit is the responsible official for
development and approval of a plan, plan amendment, or plan revision
for lands under the responsibility of the supervisor, unless a regional
forester, the Chief, or the Secretary chooses to act as the responsible
official.
    (2) When plans, plan amendments, or plan revisions are prepared for
more than one administrative unit, a unit supervisor identified by the
regional forester, or the regional forester, the Chief, or the
Secretary may be the responsible official. Two or more responsible
officials may undertake joint planning over lands under their
respective jurisdictions.
    (3) The appropriate station director must concur with that part of
a plan applicable to any experimental forest within the plan area.
    (c) Projects and activities. The supervisor or district ranger is
the responsible official for project and activity decisions, unless a
higher-level official chooses to act as the responsible official.
Requirements for project or activity planning are established in the
Forest Service Directive System. Except as specifically provided, none
of the requirements of this subpart apply to projects or activities.
    (d) Developing, amending, and revising plans--(1) Plan development.
If a new national forest, grassland, prairie, or other administrative
unit of the NFS is established, the regional forester, or a forest,
grassland, prairie, or other comparable unit supervisor identified by
the regional forester must either develop a plan for the unit or amend
or revise an existing plan to apply to the lands within the new unit.
    (2) Plan amendment. The responsible official may amend a plan at
any time.
    (3) Plan revision. The responsible official must revise the plan if
the responsible official concludes that conditions within the plan area
have significantly changed. Unless otherwise provided by law, a plan
must be revised at least every 15 years.

Sec.  219.3  Nature of land management planning.

    (a) Principles of land management planning. Land management
planning is an adaptive management process that includes social,
economic, and ecological evaluation; plan development, plan amendment,
and plan revision; and monitoring. The aim of planning is to produce
responsible land management for the NFS based on useful and current
information and guidance. Land management planning guides the Forest
Service in fulfilling its responsibilities for stewardship of the NFS
to best meet the needs of the American people.
    (b) Force and effect of plans. Plans developed in accord with this
subpart generally contain desired conditions, objectives, and guidance
for project and activity decisionmaking in the plan area. Plans do not
grant, withhold, or modify any contract, permit, or other legal
instrument; subject anyone to civil or criminal liability; or create
any legal rights. Plans typically do not approve or execute projects
and activities. Decisions with effects that can be meaningfully
evaluated (40 CFR 1508.23) typically are made when projects and
activities are approved.

Sec.  219.4  National Environmental Policy Act compliance.

    (a) In accord with 16 U.S.C. 1604(g)(1) this subpart clarifies how
the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4346)
(hereinafter referred to as NEPA) applies to NFS land management planning.
    (b) 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.
    (c) Nothing in this subpart alters the application of NEPA to
proposed projects and activities.
    (d) Monitoring and evaluations, including those required by Sec. 
219.6, may be used or incorporated by reference, as appropriate, in
applicable NEPA documents.

Sec.  219.5  Environmental management systems.

    The responsible official will establish an environmental management
system (EMS) or conform to a multi-unit, regional, or national level
EMS. The scope of an EMS will include, at the minimum, land management
environmental aspects as determined by the responsible official or
established in a multi-unit, regional, or national level EMS. An EMS
may also include environmental aspects unrelated to land management if
deemed appropriate.
    (a) An EMS may be established independently of the planning process.
    (b) The Chief of the Forest Service shall establish procedures in
the Forest Service Directive System to ensure that an appropriate
EMS(s) is in place. The responsible official may determine whether and
how to change and improve an EMS, consistent with those procedures.
    (c) The EMS must conform to the consensus standard developed by the
International Organization for Standardization (ISO) and adopted by the
American National Standards Institute (ANSI) as ``ISO 14001:
Environmental Management Systems--Specification With Guidance For Use''
(ISO 14001). The ISO 14001 describes EMSs and outlines the elements of
an EMS.
    (d) 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 as required by this section.

Sec.  219.6  Evaluations and monitoring.

    (a) Evaluations. The responsible official shall keep the plan set
of documents up to date with evaluation reports, which will reflect
changing conditions, science, and other relevant information. The
following three types

[[Page 21507]]

of evaluations are required for land management planning: Comprehensive
evaluations for plan development and revision, evaluations for plan
amendment, and annual evaluations of monitoring information. The
responsible official shall document evaluations in evaluation reports,
make these reports available to the public as required in Sec.  219.9,
and include these reports in the plan set of documents (Sec. 
219.7(a)(1)). Evaluations under this section should be commensurate to
the level of risk or benefit associated with the nature and level of
expected management activities in the plan area.
    (1) Comprehensive evaluations. These evaluate current social,
economic, and ecological conditions and trends that contribute to
sustainability, as described in Sec.  219.10. Comprehensive evaluations
and comprehensive evaluation reports must be updated at least every 5
years to reflect any substantial changes in conditions and trends since
the last comprehensive evaluation. A comprehensive evaluation report
may be combined with other documents, including NEPA documents. The
responsible official must ensure that comprehensive evaluations,
including any updates necessary, include the following elements:
    (i) Area of analysis. The area(s) of analysis must be clearly
identified.
    (ii) Conditions and trends. The current social, economic, and
ecological conditions and trends and substantial changes from
previously identified conditions and trends must be described based on
available information, including monitoring information, surveys,
assessments, analyses, and other studies as appropriate. Evaluations
may build upon existing studies and evaluations.
    (2) Evaluation for a plan amendment. An evaluation for a plan
amendment must analyze the issues relevant to the purposes of the
amendment and may use the information in comprehensive evaluations
relevant to the plan amendment. When a plan amendment is made
contemporaneously with, and only applies to, a project or activity
decision, the analysis prepared for the project or activity may be used
to satisfy the requirements for an evaluation for an amendment.
    (3) Annual evaluation of the monitoring information. Monitoring
results must be evaluated annually and in accord with paragraph (b)(2)
of this section.
    (b) Monitoring. The plan must describe the monitoring program for
the plan area. Monitoring information in the plan document or set of
documents may be changed and updated as appropriate, at any time. Such
changes and updates are administrative corrections (Sec.  219.7(b)) and
do not require a plan amendment or revision.
    (1) The plan-monitoring program shall be developed with public
participation and take into account:
    (i) Financial and technical capabilities;
    (ii) Key social, economic, and ecological performance measures
relevant to the plan area; and
    (iii) The best available science.
    (2) The plan-monitoring program shall provide for:
    (i) Monitoring to assist in evaluating the effects of each
management system to the end that it will not produce substantial and
permanent impairment of the productivity of the land;
    (ii) Monitoring of the degree to which on-the-ground management is
maintaining or making progress toward the desired conditions and
objectives for the plan; and
    (iii) Adjustment of the monitoring program as appropriate to
account for unanticipated changes in conditions.
    (3) The responsible official may conduct monitoring jointly with
others, including but not limited to, Forest Service units, Federal,
State or local government agencies, federally recognized Indian Tribes,
Alaska Native Corporations, and members of the public.

Sec.  219.7  Developing, amending, or revising a plan.

    (a) General planning requirements--(1) Plan documents or set of
documents. The responsible official must maintain a plan document or
set of documents for the plan. A plan document or set of documents
includes, but is not limited to evaluation reports; documentation of
public involvement; the plan, including applicable maps; applicable
plan approval documents; applicable NEPA documents, if any; applicable
EMS documents, if any; and the monitoring program for the plan area.
    (2) Plan components. Plan components may apply to all or part of
the plan area. A plan should include the following components:
    (i) Desired conditions. Desired conditions are the social,
economic, and ecological attributes toward which management of the land
and resources is to be directed. Desired conditions are aspirations and
are not commitments or final decisions approving projects and
activities, and may be achievable only over a long time period.
    (ii) Objectives. Objectives are concise projections of measurable,
time-specific intended outcomes. The objectives for a plan are the
means of measuring progress toward achieving or maintaining desired
conditions. Like desired conditions, objectives are aspirations and are
not commitments or final decisions approving projects and activities.
    (iii) Guidelines. Guidelines provide information and guidance for
project and activity decisionmaking to help achieve desired conditions
and objectives. Guidelines are not commitments or final decisions
approving projects and activities.
    (iv) Suitability of areas. Areas of each NFS unit are identified as
generally suitable for various uses (Sec.  219.12). An area may be
identified as generally suitable for uses that are compatible with
desired conditions and objectives for that area. An area may be
identified as generally not suitable for uses that are not compatible
with desired conditions and objectives for that area. Identification of
an area as generally suitable or not suitable for a use is guidance for
project and activity decisionmaking and not a commitment nor a final
decision approving projects and activities. Uses of specific areas are
approved through project and activity decisionmaking.
    (v) Special areas. Special areas are areas in the NFS designated
because of their unique or special characteristics. Special areas such
as botanical areas or significant caves may be designated, by the
responsible official in approving a plan, plan amendment, or plan
revision. Such designations are not final decisions approving projects
and activities. The plan may also recognize special areas designated by
statute or through a separate administrative process in accord with
NEPA requirements (Sec.  219.4) and other applicable laws.
    (3) Standards. A plan may include standards as a plan component.
Standards are constraints upon project and activity decisionmaking and
are explicitly identified in a plan as ``standards.'' Standards are
established to help achieve the desired conditions and objectives of a
plan and to comply with applicable laws, regulations, Executive orders,
and agency directives.
    (4) Changing plan components. Plan components may be changed
through plan amendment or revision or through an administrative
correction in accord with Sec.  219.7(b).
    (5) Planning authorities. The responsible official has the
discretion to determine whether and how to change the plan, subject to
the requirement that the plan be revised at least every 15 years. A
decision by a responsible official about whether or not to initiate the
plan amendment or plan revision

[[Page 21508]]

process and what issues to consider for plan development, plan
amendment, or plan revision is not subject to objection under this
subpart (Sec.  219.13).
    (6) Plan process. (i) Required evaluation reports, plans, plan
amendments, and plan revisions must be prepared by an interdisciplinary
team; and
    (ii) Unless otherwise provided by law, all NFS lands possessing
wilderness characteristics must be considered for recommendation as
potential wilderness areas during plan development or revision.
    (7) Developing plan options. In the collaborative and participatory
process of land management planning, the responsible official may use
an iterative approach in development of a plan, plan amendment, and
plan revision in a way that plan options are developed and narrowed
successively. The key steps in this process shall be documented in the
plan set of documents.
    (b) Administrative corrections. Administrative corrections may be
made at any time, and are not plan amendments or revisions.
Administrative corrections include the following:
    (1) Corrections and updates of data and maps;
    (2) Corrections of typographical errors or other non-substantive
changes;
    (3) Changes in the monitoring program and monitoring information
(Sec.  219.6(b));
    (4) Changes in timber management projections or other projections
of uses or activities; and
    (5) Other changes in the plan document or set of documents that are
not substantive changes in the plan components.
    (c) Approval document. The responsible official must record
approval of a new plan, plan amendment, or plan revision in a plan
approval document, which must include:
    (1) The reasons for the approval of the plan, plan amendment, or
plan revision;
    (2) Concurrence by the appropriate station director with any part
of the plan applicable to any experimental forest in the plan area, in
accord with Sec.  219.2(b)(3);
    (3) A statement of how the plan, plan amendment, or plan revision
applies to approved projects and activities, in accord with Sec.  219.8;
    (4) Science documentation, in accord with Sec.  219.11; and
    (5) The effective date of the approval (Sec.  219.14(a)).
    If a plan approval document is, in whole or part, the culmination
of an EA or EIS process, the plan approval document or pertinent part
thereof, must be prepared in accord with Forest Service NEPA procedures.

Sec.  219.8  Application of a new plan, plan amendment, or plan revision.

    (a) Application of a new plan, plan amendment, or plan revision to
existing authorizations and approved projects or activities. (1) The
responsible official must include in any document approving a plan
amendment or revision a description of the effects of the plan, plan
amendments, or plan revision on existing occupancy and use authorized
by permits, contracts, or other instruments carrying out approved
projects and activities. If not expressly excepted, approved projects
and activities must be consistent with applicable plan components, as
provided in paragraph (e) of this section. Approved projects and
activities are those for which a responsible official has signed a
decision document.
    (2) Any modifications of such permits, contracts, or other
instruments needed to make them consistent with applicable plan
components as developed, amended, or revised are subject to valid
existing rights. Such modifications should be made as soon as practicable
following approval of a new plan, plan amendment, or plan revision.
    (b) Application of a new plan, plan amendment, or plan revision to
authorizations and projects or activities subsequent to plan approval.
Decisions approving projects and activities subsequent to approval of a
plan, plan amendment, or plan revision must be consistent with the plan
as provided in paragraph (e) of this section.
    (c) Application of a plan. Plan provisions remain in effect until
the effective date of a new plan, plan amendment, or plan revision.
    (d) Effect of new information on projects or activities. Although
new information will be considered in accord with agency NEPA
procedures, nothing in this subpart requires automatic deferral,
suspension, or modification of approved decisions in light of new
information.
    (e) Ensuring project or activity consistency with plans. Projects
and activities must be consistent with the applicable plan components.
If an existing (paragraph (a) of this section) or proposed (paragraph
(b) of this section) use, project, or activity is not consistent with
the applicable plan components, the responsible official may take one
of the following steps, subject to valid existing rights:
    (1) Modify the project or activity to make it consistent with the
applicable plan components;
    (2) Reject the proposal or terminate the project or activity,
subject to valid existing rights; or
    (3) Amend the plan contemporaneously with the approval of the
project or activity so that it will be consistent with the plan as amended.
The amendment may be limited to apply only to the project or activity.

Sec.  219.9  Public participation, collaboration, and notification.

    The responsible official must use a collaborative and participatory
approach to land management planning, in accord with this subpart and
consistent with applicable laws, regulations, and policies, by engaging
the skills and interests of appropriate combinations of Forest Service
staff, consultants, contractors, other Federal agencies, federally
recognized Indian Tribes, Alaska Native Corporations, State or local
governments, or other interested or affected communities, groups, or
persons.
    (a) Providing opportunities for participation. The responsible
official must provide opportunities for the public to collaborate and
participate openly and meaningfully in the planning process, taking
into account the discrete and diverse roles, jurisdictions, and
responsibilities of interested and affected parties. Specifically, as
part of plan development, plan amendment, and plan revision, the
responsible official shall involve the public in developing and
updating the comprehensive evaluation report, establishing the
components of the plan, and designing the monitoring program. The
responsible official has the discretion to determine the methods and
timing of public involvement opportunities.
    (1) Engaging interested individuals and organizations. The
responsible official must provide for and encourage collaboration and
participation by interested individuals and organizations, including
private landowners whose lands are in, adjacent to, or otherwise
affected by future management actions in the plan area.
    (2) Engaging State and local governments and Federal agencies. The
responsible official must provide opportunities for the coordination of
Forest Service planning efforts undertaken in accord with this subpart
with those of other resource management agencies. The responsible
official also must meet with and provide early opportunities for other
government agencies to be involved, to

[[Page 21509]]

collaborate, and to participate in planning for NFS lands. The
responsible official should seek assistance, where appropriate, from
other State and local governments, Federal agencies, and scientific and
academic institutions to help address management issues or opportunities.
    (3) Engaging Tribal governments and Alaska Native Corporations. The
Forest Service recognizes the Federal Government's trust responsibility
for federally recognized Indian Tribes. The responsible official must
consult with, invite, and provide opportunities for any federally
recognized Indian Tribes and Alaska Native Corporations that may be
affected by the planning process to collaborate and participate. In
working with federally recognized Indian Tribes, the responsible
official must honor the government-to-government relationship between
Tribes and the Federal Government. The responsible official should seek
assistance, where appropriate, from federally recognized Indian Tribes
and Alaska Native Corporations to help address management issues or
opportunities.
    (b) Public notification. The following public notification
requirements apply to plan development, amendment, or revision, except
when a plan amendment is approved contemporaneously with approval of a
project or activity and the amendment applies only to the project or
activity, in a way that 36 CFR part 215 or part 218, subpart A, applies:
    (1) When formal public notification is provided. Public
notification must be provided at the following times:
    (i) Initiation of development of a plan, plan amendment, or plan
revision
    (ii) Commencement of the 90-day comment period on a proposed plan,
plan amendment, or plan revision
    (iii) Commencement of the 30-day objection period prior to approval
of a plan, plan amendment, or plan revision
    (iv) Approval of a plan, plan amendment, or plan revision
    (v) Adjustment to conform to this subpart of a planning process for
a plan, plan amendment, or plan revision initiated under the provisions
of a previous planning regulation
    (2) How public notice is provided. Public notice must be provided
in the following ways:
    (i) All required public notices applicable to a new plan, plan
revision, or any ongoing plan revision as provided in Sec.  219.14(b)
must be published in the Federal Register and newspaper(s) of record.
    (ii) Required notifications that are associated with a plan
amendment or any ongoing plan amendment as provided in Sec.  219.14(b)
and that apply to one plan must be published in the newspaper(s) of
record. Required notifications that are associated with plan amendments
and any ongoing plan amendments (as provided at Sec.  219.14(b)) and
that apply to more than one plan must be published in the Federal Register.
    (iii) Public notification of evaluation reports and monitoring
program changes may be made in a way deemed appropriate by the
responsible official.
    (3) Content of the public notice. Public notices must contain the
following information:
    (i) Content of the public notice for initiating a plan development,
plan amendment, or plan revision. The notice must inform the public of
the documents available for review and how to obtain them; provide a
summary of the need to develop a plan or change a plan; invite the
public to comment on the need for change in a plan; identify any other
need for change in a plan that they feel should be addressed during the
planning process; provide an estimated schedule for the planning
process, including the time available for comments; and inform the
public how to submit comments.
    (ii) Content of the public notice for a proposed plan, plan
amendment, or plan revision. The notice must inform the public of the
availability of the proposed plan, plan amendment, or plan revision,
including any relevant evaluation report; the commencement of the 90-
day comment period; and the process for submitting comments.
    (iii) Content of the public notice for a plan, plan amendment, or
plan revision before approval. The notice must inform the public of the
availability of the plan, plan amendment, or plan revision; any
relevant evaluation report; and the commencement of the 30-day
objection period; and the process for objecting.
    (iv) Content of the public notice for approval of a plan, plan
amendment, or plan revision. The notice must inform the public of the
availability of the approved plan, plan amendment, or plan revision,
the approval document, and the effective date of the approval (Sec. 
219.14(a)).
    (v) Content of the public notice for an ongoing planning process.
The notice must state whether or not a planning process initiated
before April 21, 2008 (Sec.  219.14(b)) will be adjusted to conform to
this subpart.

Sec.  219.10  Sustainability.

    Sustainability, for any unit of the NFS, has three interrelated and
interdependent elements: Social, economic, and ecological. A plan can
contribute to sustainability by creating a framework to guide on-the-
ground management of projects and activities; however, a plan by itself
cannot ensure sustainability. Agency authorities, the nature of a plan,
and the capabilities of the plan area are some of the factors that limit
the extent to which a plan can contribute to achieving sustainability.
    (a) Sustaining social and economic systems. The overall goal of the
social and economic elements of sustainability is to contribute to
sustaining social and economic systems within the plan area. To
understand the social and economic contributions that National Forest
System lands presently make, and may make in the future, the
responsible official, in accordance with Sec.  219.6, must evaluate
relevant economic and social conditions and trends as appropriate
during plan development, plan amendment, or plan revision.
    (b) Sustaining ecological systems. The overall goal of the
ecological element of sustainability is to provide a framework to
contribute to sustaining native ecological systems by providing
appropriate ecological conditions to support diversity of native plant
and animal species in the plan area. This will satisfy the statutory
requirement to provide for diversity of plant and animal communities
based on the suitability and capability of the specific land area in
order to meet overall multiple-use objectives (16 U.S.C.
1604(g)(3)(B)). Procedures developed pursuant to Sec.  219.1(c) for
sustaining ecological systems must be consistent with the following:
    (1) Ecosystem diversity. Ecosystem diversity is the primary means
by which a plan contributes to sustaining ecological systems. Plan
components must establish a framework to provide the characteristics of
ecosystem diversity in the plan area.
    (2) Species diversity. If the responsible official determines that
provisions in plan components, in addition to those required by
paragraph (b)(1) of this section, are needed to provide appropriate
ecological conditions for specific threatened and endangered species,
species-of-concern, and species-of-interest, then the plan must include
additional provisions for these species, consistent with the limits of
Agency authorities, the capability of the plan area, and overall
multiple use objectives.

Sec.  219.11  Role of science in planning.

    (a) The responsible official must take into account the best
available science. For purposes of this subpart, taking into

[[Page 21510]]

account the best available science means the responsible official must:
    (1) Document how the best available science was taken into account
in the planning process within the context of the issues being considered;
    (2) Document that the science was appropriately interpreted and applied.
    (b) To meet the requirements of paragraph (a) of this section, the
responsible official may use independent peer review, a science
advisory board, or other review methods to evaluate the consideration
of science in the planning process.

Sec.  219.12  Suitable uses and provisions required by NFMA.

    (a) Suitable uses--(1) Identification of suitable land uses.
National Forest System lands are generally suitable for a variety of
multiple uses, such as outdoor recreation, range, timber, watershed,
and wildlife and fish purposes. The responsible official, as
appropriate, shall identify areas within a National Forest System unit
as generally suitable for uses that are compatible with desired
conditions and objectives for that area. The responsible official may
identify lands within the plan area as generally not suitable for uses
that are not compatible with desired conditions and objectives for that
area. Identification of an area as generally suitable or not suitable
for a use is guidance for project and activity decisionmaking and not a
permanent land designation, and is subject to change through plan
amendment or plan revision.
    A plan approval document may include project and activity decisions
including prohibitions of a specific use (or uses) under 36 CFR part
261 or authorization of a specific use (or uses) when the supporting
analysis and plan approval document for the prohibition or use is in
accordance with the Forest Service NEPA procedures.
    (2) Identification of lands not suitable for timber production. (i)
The responsible official must identify lands within the plan area as
not suitable for timber production (Sec.  219.16) if:
    (A) Statute, Executive Order, or regulation prohibits timber
production on the land; or
    (B) The Secretary of Agriculture or the Chief of the Forest Service
has withdrawn the land from timber production; or
    (C) The land is not forest land (as defined at Sec.  219.16); or
    (D) Timber production would not be compatible with the achievement
of desired conditions and objectives established by the plan for those
lands; or
    (E) The 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; or
    (F) There is no reasonable assurance that such lands can be
adequately restocked within 5 years after final regeneration harvest.
    (ii) This identification in a plan is not a final decision
compelling, approving, or prohibiting projects and activities. A final
determination of suitability for timber production is made through
project and activity decisionmaking.
    (3) Lands suitable for timber production. After considering
physical, ecological, social, economic, and other pertinent factors to
the extent feasible, a Responsible Official may establish timber
production as an objective in a plan for any lands not identified in
paragraph (a)(2)(i) of this section. The responsible official must
review lands not suited for timber production at least once every 10
years, or as otherwise prescribed by law, to determine their
suitability for timber production. As a result of this 10-year review,
timber production may be established as a plan objective for any lands
found to be suitable for such purpose through amendment or revision of
the plan.
    (4) Other lands where trees may be harvested for multiple use
values other than timber production. Designation of lands as not
suitable for timber production does not preclude the harvest of trees
on those lands for salvage, sanitation, or other multiple use purposes.
Except for lands described at paragraph (a)(2)(i)(E) of this section,
timber harvest may be used as a tool to assist in achieving or
maintaining applicable desired conditions or objectives.
    (b) Plan provisions for resource management. A plan should include
provisions for the following:
    (1) Limitations on even-aged timber harvest methods, including
provisions to require harvest in a manner consistent with the
protection of soil, watershed, fish, wildlife, recreation, and
aesthetic resources and the regeneration of the timber resource,
including requirements that even-aged harvest may occur only upon a
finding that it is appropriate and that clearcutting may occur only
upon a finding that it is the optimum method to meet the objectives and
requirements of the plan;
    (2) Maximum size openings created by timber harvest according to
geographic areas, forest types, or other suitable classifications for
areas to be cut in one regeneration harvest operation. This limit may
be less than, but will not exceed, 60 acres for the Douglas-fir forest
type of California, Oregon, and Washington; 80 acres for the southern
yellow pine types of Alabama, Arkansas, Georgia, Florida, Louisiana,
Mississippi, North Carolina, South Carolina, Oklahoma, and Texas; 100
acres for the hemlock-Sitka spruce forest type of coastal Alaska; and
40 acres for all other forest types. The plan must allow for exceeding
its limitations on maximum size openings after appropriate public
notice and review by the supervisor of the responsible official who
normally would approve the harvest proposal. The plan maximum size
openings must not apply to the size of areas harvested as a result of
natural catastrophic conditions such as fire, insect and disease
attack, or windstorm;
    (3) Provisions that cut blocks, patches, or strips that are shaped
and blended to the extent practicable with the natural terrain;
    (4) Provisions for maintaining or restoring soil and water
resources, including protection for streams, streambanks, shorelines,
lakes, wetlands, and other bodies of water from detrimental changes in
water temperatures, blockages of water courses, and deposits of
sediment, when management activities are likely to seriously and
adversely affect water conditions or fish habitat;
    (5) Provisions that timber harvest projects be considered through
interdisciplinary review, assessing the potential environmental,
biological, aesthetic, engineering, and economic impacts on the sale
area, as well as the consistency of the sale with the multiple use of
the general area, and that the harvesting system used is not selected
primarily because it will give the greatest dollar return or the
greatest unit output of timber;
    (6) Provisions that there is reasonable assurance that lands can be
adequately restocked within 5 years after final regeneration harvest;
and
    (7) Provisions that soil, slope, or other watershed conditions will
not be irreversibly damaged by timber harvest.
    (c) Forest Service Directive System procedures. (1) The Chief of
the Forest Service must include in the Forest Service Directive System
procedures for estimating the quantity of timber that can be removed
annually in perpetuity on a sustained-yield basis in accordance with 16
U.S.C. 1611.
    (2) The Chief of the Forest Service must include in the Forest
Service Directive System requirements assuring that even-aged stands of
trees scheduled for harvest during the planning period have generally
reached culmination of mean annual increment of growth. This

[[Page 21511]]

requirement applies only to regeneration harvest of even-aged stands on
lands identified as suitable for timber production and where timber
production is a management purpose for the harvest.
    (3) Forest Service Directive System procedures to fulfill the
requirements of this paragraph shall be adopted following public
involvement as described in 36 CFR part 216.

Sec.  219.13  Objections to plans, plan amendments, or plan revisions.

    (a) Opportunities to object. Before approving a plan, plan
amendment, or plan revision, the responsible official must provide the
public 30 calendar days for pre-decisional review and the opportunity
to object. Federal agencies may not object under this subpart. During
the 30-day review period, any person or organization, other than a
Federal agency, who participated in the planning process through the
submission of written comments, may object to a plan, plan amendment,
or plan revision according to the procedures in this section, except in
the following circumstances:
    (1) When a plan amendment is approved contemporaneously with a
project or activity decision and the plan amendment applies only to the
project or activity, in a way that the administrative review process of
36 CFR part 215 or part 218, subpart A, applies instead of the
objection process established in this section; or
    (2) When the responsible official is an official in the Department
of Agriculture at a level higher than the Chief of the Forest Service,
in a way that there is no opportunity for administrative review.
    (b) Submitting objections. The objection must be in writing and
must be filed with the reviewing officer within 30 days following the
publication date of the legal notice in the newspaper of record of the
availability of the plan, plan amendment, or plan revision. Specific
details will be in the Forest Service Directive System. An objection
must contain:
    (1) The name, mailing address, and telephone number of the person
or entity filing the objection. Where a single objection is filed by
more than one person, the objection must indicate the lead objector to
contact. The reviewing officer may appoint the first name listed as the
lead objector to act on behalf of all parties to the single objection
when the single objection does not specify a lead objector. The
reviewing officer may communicate directly with the lead objector and
is not required to notify the other listed objectors of the objection
response or any other written correspondence related to the single
objection;
    (2) A statement of the issues, the parts of the plan, plan
amendment, or plan revision to which the objection applies, and how the
objecting party would be adversely affected; and
    (3) A concise statement explaining how the objector believes that
the plan, plan amendment, or plan revision is inconsistent with law,
regulation, or policy or how the objector disagrees with the decision
and providing any recommendations for change.
    (c) Responding to objections. (1) The reviewing officer (Sec. 
219.16) has the authority to make all procedural determinations related
to the objection not specifically explained in this subpart, including
those procedures necessary to ensure compatibility, to the extent
practicable, with the administrative review processes of other Federal
agencies. The reviewing officer must promptly render a written response
to the objection. The response must be sent to the objecting party by
certified mail, return receipt requested.
    (2) The response of the reviewing officer shall be the final
decision of the Department of Agriculture on the objection.
    (d) Use of other administrative review processes. Where the Forest
Service is a participant in a multi-Federal agency effort that would
otherwise be subject to objection under this subpart, the reviewing
officer may waive the objection procedures of this subpart and instead
adopt the administrative review procedure of another participating
Federal agency. As a condition of such a waiver, the responsible
official for the Forest Service must have agreement with the
responsible official of the other agency or agencies that a joint
agency response will be provided to those who file for administrative
review of the multi-agency effort.
    (e) Compliance with the Paperwork Reduction Act. The information
collection requirements associated with submitting an objection have
been approved by the Office of Management and Budget and assigned
control number 0596-0158.

Sec.  219.14  Effective dates and transition.

    (a) Effective dates. A plan, plan amendment, or plan revision is
effective 30 days after publication of notice of its approval (Sec. 
219.9(b)), except when a plan amendment is approved contemporaneously
with a project or activity and applies only to the project or activity,
in a way that 36 CFR part 215 or part 218, subpart A, apply.
    (b) Transition. For the purposes of this section, initiation means
that the Agency has provided notice under Sec.  219.9(b) or issued a
notice of intent or other public notice announcing the commencement of
the process to develop a plan, plan amendment, or plan revision.
    (1) Plan development and plan revisions. Plan development and plan
revisions initiated after April 21, 2008 must conform to the
requirements of this subpart, except that the plan for the Tongass
National Forest may be revised once under this subpart or the planning
regulations in effect before November 9, 2000.
    (2) Plan Amendments. With respect to plans approved or revised
pursuant to the planning regulation in effect before November 9, 2000
(see 36 CFR parts 200 to 299, Revised as of July 1, 2000), a 3-year
transition period for plan amendments begins on April 21, 2008. During
the transition period, plan amendments may continue using the
provisions of the planning regulation in effect before November 9,
2000, or may conform to the requirements of this subpart. If the
responsible official uses the provisions of the prior planning
regulations, the responsible official may elect to use either the
administrative appeal and review procedures at 36 CFR part 217 in
effect prior to November 9, 2000 (See 36 CFR parts 200 to 299, Revised
as of July 1, 2000), or the objection procedures of this subpart. Plan
amendments initiated after the transition period must conform to the
requirements of this subpart.
    (3) Plan development, plan amendments, or plan revisions underway
before this rule. (i) For plan development, plan amendments, or plan
revisions that had been underway before April 21, 2008, using the
provisions of the planning regulations in effect before November 9,
2000 (See 36 CFR parts 200 to 299, Revised as of July 1, 2000) the
responsible official is not required to halt the process and start over
but may complete those processes in conformance of the provisions of
those regulations or in conformance to the requirements of this subpart.
    (ii) For plan development plan amendment, or plan revisions that
had been underway before April 21, 2008 using the provisions of the
planning regulations in effect January 5, 2005 (See 36 CFR parts 200 to
299, Revised as of July 1, 2005) the responsible official is not
required to start over under this subpart upon a finding that the plan,
plan amendment, or plan revision process undertaken before April 21,
2008 conforms to the requirements of this subpart.

[[Page 21512]]

    (iii) The responsible official may elect to use either the
administrative appeal and review procedures at 36 CFR part 217 in
effect prior to November 9, 2000 (See 36 CFR parts 200 to 299, Revised
as of July 1, 2000), or the objection procedures of this subpart,
except when a plan amendment is approved contemporaneously with a
project or activity and applies only to the project or activity, in a
way that 36 CFR part 215 or part 218, subpart A, apply.
    (4) Plans developed, amended, or revised using the provisions of
the planning rule in effect prior to November 9, 2000. For units with
plans developed, amended, or revised using the provisions of the
planning rule in effect prior to November 9, 2000 (See 36 CFR parts 200
to 299, Revised as of July 1, 2000), that rule is without effect. No
obligations remain from that regulation, except those that are those
specifically in the plan.

Sec.  219.15  Severability.

    In the event that any specific provision of this rule is deemed by
a court to be invalid, the remaining provisions shall remain in effect.

Sec.  219.16  Definitions.

    Definitions of the special terms used in this subpart are set out
in alphabetical order.
    Adaptive management: A system of management practices based on
clearly identified outcomes and monitoring to determine if management
actions are meeting desired outcomes, and if not, to facilitate
management changes that will best ensure that outcomes are met or re-
evaluated. Adaptive management stems from the recognition that
knowledge about natural resource systems is sometimes uncertain.
    Alaska Native Corporations: The regional, urban, and village native
corporations formed under the Alaska Native Claims Settlement Act of 1971.
    Area of analysis: The geographic area within which ecosystems,
their components, or their processes are evaluated during analysis and
development of one or more plans, plan revisions, or plan amendments.
This area may vary in size depending on the relevant planning issue.
For a plan, an area of analysis may be larger than a plan area. For
development of a plan amendment, an area of analysis may be smaller
than the plan area. An area of analysis may include multiple ownerships.
    Diversity of plant and animal communities: The distribution and
relative abundance or extent of plant and animal communities and their
component species, including tree species, occurring within an area.
    Ecological conditions: Components of the biological and physical
environment that can affect diversity of plant and animal communities
and the productive capacity of ecological systems. These components
could include the abundance and distribution of aquatic and terrestrial
habitats, roads and other structural developments, human uses, and
invasive, exotic species.
    Ecosystem diversity: The variety and relative extent of ecosystem
types, including their composition, structure, and processes within all
or a part of an area of analysis.
    Environmental management system: The part of the overall management
system that includes organizational structure, planning activities,
responsibilities, practices, procedures, processes, and resources for
developing, implementing, achieving, reviewing, and maintaining
environmental policy.
    Federally recognized Indian Tribe: An Indian or Alaska Native
Tribe, band, nation, pueblo, village, or community that the Secretary
of the Interior acknowledges to exist as an Indian Tribe pursuant to
the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
    Forest land: Land at least 10 percent occupied by forest trees of
any size or formerly having had such tree cover and not currently
developed for non-forest uses. Lands developed for non-forest use
include areas for crops; improved pasture; residential or
administrative areas; improved roads of any width and adjoining road
clearing; and power line clearings of any width.
    ISO 14001: A consensus standard developed by the International
Organization for Standardization and adopted by the American National
Standards Institute that describes environmental management systems and
outlines the elements of an environmental management system.
    Newspaper(s) of record: The principal newspapers of general
circulation annually identified and published in the Federal Register
by each regional forester to be used for publishing notices as required
by 36 CFR 215.5. The newspaper(s) of record for projects in a plan area
is (are) the newspaper(s) of record for notices related to planning.
    Plan: A document or set of documents that integrates and displays
information relevant to management of a unit of the National Forest System.
    Plan area: The National Forest System lands covered by a plan.
    Productivity: The capacity of National Forest System lands and
their ecological systems to provide the various renewable resources in
certain amounts in perpetuity. For the purposes of this subpart it is
an ecological, not an economic, term.
    Public participation: Activities that include a wide range of
public involvement tools and processes, such as collaboration, public
meetings, open houses, workshops, and comment periods.
    Responsible official: The official with the authority and
responsibility to oversee the planning process and to approve plans,
plan amendments, and plan revisions.
    Reviewing officer: The supervisor of the responsible official. The
reviewing officer responds to objections made to a plan, plan
amendment, or plan revision prior to approval.
    Species-of-concern: Species for which the responsible official
determines that management actions may be necessary to prevent listing
under the Endangered Species Act.
    Species-of-interest: Species for which the responsible official
determines that management actions may be necessary or desirable to
achieve ecological or other multiple use objectives.
    Timber harvest: The removal of trees for wood fiber use and other
multiple-use purposes.
    Timber production: The purposeful growing, tending, harvesting, and
regeneration of regulated crops of trees to be cut into logs, bolts, or
other round sections for industrial or consumer use.
    Visitor opportunities: The spectrum of settings, landscapes,
scenery, facilities, services, access points, information, learning-
based recreation, wildlife, natural features, cultural and heritage
sites, and so forth available for National Forest System visitors to
use and enjoy.
    Wilderness: Any area of land designated by Congress as part of the
National Wilderness Preservation System that was established in the
Wilderness Act of 1964 (16 U.S.C. 1131-1136).

Subpart B--[Reserved]

    Dated: April 9, 2008.
Mark Rey,
Under Secretary, NRE.
[FR Doc. E8-8085 Filed 4-18-08; 8:45 am]
BILLING CODE 3410-11-P
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