National Forest System Land Management Planning

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.

SUMMARY:

This final rule describes the National Forest System land management planning framework; establishes requirements for sustainability of social, economic, and ecological systems and developing, amending, revising, and monitoring land management plans; and clarifies that land management plans under this final rule, absent extraordinary circumstances, are strategic in nature and are one stage in an adaptive cycle of planning for management of National Forest System lands. The intended effects of the final rule are to streamline and improve the planning process by making plans more adaptable to changes in social, economic, and environmental conditions; to strengthen the role of science in planning; to strengthen collaborative relationships with the public and other governmental entities; and to reaffirm the principle of sustainable management consistent with the Multiple-Use Sustained-Yield Act and other authorities.

Elsewhere in this part of today's

Federal Register

, the Department of Agriculture is simultaneously publishing another final rule to remove the planning regulations adopted on November 9, 2000.

DATES:

Effective Date:

This rule is effective January 5, 2005.

ADDRESSES:

The following information is posted on the World Wide Web/Internet at

http://www.fs.fed.us/emc/nfma/

: (1) This final rule; (2) supplemental responses to substantive public comments and a description of the changes, if any, made in response to those comments and the reasons for those changes to the 2002 proposed rule; (3) the Civil Rights Impact Analysis for this final rule; (4) the cost-benefit analysis for this final rule; (5) the business model cost study done to estimate predicted costs to implement the 2000 planning rule and the 2002 proposed rule, and (6) the notice of proposed National Environmental Policy Act implementing procedures; request for comment. This information may also be obtained upon written request from the Director, Ecosystem Management Coordination Staff, Forest Service, USDA, Mail Stop 1104, 1400 Independence Avenue, SW., Washington, DC 20250-1104.

FOR FURTHER INFORMATION CONTACT:

Dave Barone, Acting Assistant Director for Planning; Ecosystem Management Coordination Staff (202) 205-1019, or Regis Terney, Planning Specialist, Ecosystem Management Coordination Staff (202) 205-1552.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. Forest Service Directives

2. Events Since Publication of the 2002 Proposed Rule

3. Overview of the Final 2004 Rule

• Major themes and areas of public comment in the final rule.

• The strategic nature of land management plans.

• Role of science in planning.

• Public involvement.

• Sustainability.

• Environmental management systems and adaptive management.

• National Environmental Policy Act and National Forest Management Act planning.

• Summary.

4. Department Response to Comments on the 2002 Proposed Rule

• General Issues.

• Issues in Response to a Specific Section.

Section 219.1—Purpose and applicability

Section 219.2—Levels of planning and planning authority

Section 219.3—Nature of land management planning

Section 219.4—National Environmental Policy Act compliance

Section 219.5—Environmental management systems

Section 219.6—Evaluations and monitoring

Section 219.7—Developing, amending, or revising a plan

Section 219.8—Application of a new plan, plan amendment, or plan revision

Section 219.9—Public participation, collaboration, and notification

Section 219.10—Sustainability

Section 219.11—Role of science in planning

Section 219.12—Suitable uses and provisions required by NFMA

Section 219.13—Objections to plans, plan amendments, or plan revisions

Section 219.14—Effective dates and transition

Section 219.15—Severability

Section 219.16—Definitions

5. Regulatory Certifications

• Regulatory Impact.

• Environmental Impacts.

• Energy Effects.

• Controlling Paperwork Burdens on the Public.

• Federalism.

• Civil Rights Impact Analysis.

• Consultation with Indian Tribal Governments.

• No Takings Implications.

• Civil Justice Reform.-1

• Unfunded Mandates.

1. Forest Service Directives

The Forest Service is developing planning directives to set forth the legal authorities, objectives, policy, responsibilities, direction, and overall guidance needed by Forest Service line officers, agency employees, and others to use this planning rule. A request for public comment on the Forest Service directives will be published in the

Federal Register

as soon as possible after adoption of this final rule.

2. Events Since Publication of the 2002 Proposed Rule

The 2002 proposed rule was released for public review and comment in Volume 67 of the

Federal Register

, page 72770, December 6, 2002. Between February 18-20, 2003, during the comment period, scientists, experts in public land management issues, resource professionals, Tribal officials, State officials, local government officials, and the public participated in a diversity options workshop. In addition, the public comment period on the 2002 proposed rule was extended from March 6, 2003 to April 7, 2003 (68 FR 10420, Mar. 5, 2003). The agency received about 195,000 comments, of which approximately 7,000 were original letters. All of the substantive comments on the 2002 proposed rule were carefully considered and led to a number of changes in this final rule.

Also, interim final rules extending the transition from the 1982 planning rule to the 2000 planning rule were published in 2001 (66 FR 27552, May 17, 2001) and 2002 (67 FR 35431, May 20, 2002), the latter rule allowing Forest Service managers to elect to continue preparing plan amendments and revisions under the 1982 planning rule until a new final rule is adopted. Finally, an interim rule was published in 2003 (68 FR 53294, Sept. 10, 2003) extending the date by which site-specific project decisions must conform with provisions of the 2000 planning rule until replaced with a new rule. To date, Forest Service officials have elected to use the 1982 planning rule for all plan development, amendments, and revisions.

3. Overview of the Final 2004 Rule

This final rule embodies a paradigm shift in land management planning based, in part, on the Forest Service's 25 years of experience developing plans under the 1982 planning rule. Having assessed the current system's flaws and benefits during this extended period, the Forest Service believes it is time to think differently about National Forest System (NFS) planning and management. Thus, based on the agency's expertise and experience, the Forest Service created this final rule to enable a better way to protect the environment and to facilitate working with the public. The final rule prioritizes agency resources to monitoring and, when necessary, provides a process to change plans to ensure that clean air, clean water, and abundant wildlife are available for future generations. This final rule allows the Forest Service to rapidly respond to changing conditions like hazardous fuels, new science, and many other dynamics that affect NFS management. Protection and management of the NFS should be based on sound science, which is fundamental to this final rule.

This final rule assures the public an effective voice in the entire planning process from beginning to end. Finally, because this final rule provides for more efficient planning, more resources will be shifted to the public's expressed priorities, that is, improved conservation of the forests and grasslands and better responses to the real threats the forests and grasslands face, such as critical wildfire danger and invasive species which degrade ecological systems.

To achieve these important goals, plans under this final rule will be more strategic and less prescriptive in nature than under the 1982 planning rule. Emphasizing the strategic nature of plans under this rule is the most effective means of guiding NFS management in light of changing conditions, science and technology. Specifically, plans under this final rule will not contain final decisions that approve projects or activities except under extraordinary circumstances. Rather, as described further below, plans under this final rule will contain five components, which set forth broad policies to help guide future decisions on the ground: The plan components are desired conditions, objectives, guidelines, suitability of areas, and special areas.

Major Themes and Areas of Public Comment in the Final Rule

The major themes of the final rule discussed in this preamble reflect the public comments received on the 2002 proposed rule. This final rule sets forth the process for NFS land management planning, including the requirements for complying with the National Forest Management Act (NFMA) of 1976 (16 U.S.C. 1600

et seq.

) during development, amendment, and revision of land management plans (plans) for NFS units, including the national forests, grasslands, prairie, or other comparable administrative units. The Forest Service has prepared and revised plans more than 150 times since enactment of NFMA and expects to complete more than 100 additional plans and revisions during the next decade. The Forest Service has also been amending plans during the last 25 years. Based on the experience gained and public comments on the 2002 proposed rule, the U.S. Department of Agriculture (Department) has concluded that this final rule should be based on the following principles and practical considerations:

•

Plans should be strategic in nature.

The purpose of plans should be to establish goals for forests, grasslands, and prairies and set forth the guidance to follow in pursuit of those goals. Such goals can be expressed by describing: desired conditions, objectives, guidelines, suitability or areas, and

special areas. Typically, a plan does not include final decisions approving projects or activities.

•

Plans must be adaptive and based on current information and science.

During the 15-year life expectancy of a plan, information, science, and unforeseen circumstances evolve. It must be possible to adjust plans and the plan-monitoring program and to react to new information and science swiftly and efficiently. An environmental management system (EMS) approach will enhance adaptive planning and should be part of the land management framework.

•

Land management planning must involve the public.

Plans are prepared for public lands. Public participation and collaboration needs to be welcomed and encouraged as a part of planning. To the extent possible, Responsible Officials need to work collaboratively with the public to help balance conflicting needs, to evaluate management under the plans, and to consider the need to adjust plans.

•

Plans must guide sustainable management of NFS lands.

The Multiple-Use Sustained-Yield Act (MUSYA) of 1960 (16 U.S.C. 528-531) requires that NFS lands be managed to provide a continuous flow of goods and services to the nation. To meet this requirement, plans must focus on providing a sustainable framework—based on social, economic, and ecological systems—that guides on-the-ground management of projects and activities, which provide these goods and services.

•

Planning must comply with all applicable laws, regulations, and policies.

Planning must comply with all applicable laws, regulations, and policies, although all these requirements do not need to be restated in a plan. For example, the Clean Water Act includes requirements for nonpoint source management programs, to be administered by the States. The States or the Forest Service then develops Best Management Practices (BMPs) for use in design of projects or activities on NFS lands. BMPs are designed to meet State water quality standards and are intended to result in prevention of adverse consequences. Specific BMPs do not have to be repeated in the plan to be in effect and applicable to National Forest System projects and activities.

The Strategic Nature of Land Management Plans

Land management plans are strategic in nature. A plan establishes a long-term management framework for NFS units. Within that framework, specific projects and activities will be proposed, approved, and implemented depending on specific conditions and circumstances at the time of implementation. The U.S. Supreme Court described the nature of NFS plans in

Ohio Forestry Ass'n

v.

Sierra Club,

(523 U.S. 726, 737 (1998)) explaining that plans are “tools for agency planning and management.” The Court recognized that the provisions of such plans “do not command anyone to do anything or to refrain from doing anything; they do not grant, withhold, or modify any formal legal license, power, or authority; they do not subject anyone to any civil or criminal liability; they create no legal rights or obligations” (523 U.S. 733 (1998)).

The Supreme Court also recently recognized the similar nature of land management plans for public lands under the jurisdiction of the Bureau of Land Management (BLM) in

Norton

v.

Southern Utah Wilderness Alliance, 124 S.Ct. 2373 (2004).

The Supreme Court again observed that “land use plans are a preliminary step in the overall process of managing public lands—‘designed to guide and control future management actions and the development of subsequent, more detailed and limited scope plans for resources and uses.’ ” In addition, “a land use plan is not ordinarily the medium for affirmative decisions that implement the agency's ‘project[ion]s.’ ” Like a NFS land management plan, a BLM plan typically“ ‘is not a final implementation decision on actions which require further specific plans, process steps, or decisions under specific provisions of law and regulations.’ ” “The BLM's * * * land use plans are normally not used to make site-specific implementation decisions.” The Supreme Court acknowledged that plans are “tools by which ‘present and future use is

projected

’ [and] * * * generally a statement of priorities,”

124 S.Ct. 2373 (2004).

Under the Final Rule, plans will continue to be strategic in nature, as described by the Supreme Court in

Ohio Forestry

and

SUWA.

As described below, the five components of a plan under the Final Rule do not authorize project and activity decisions, but rather characterize general future conditions and guidance for such decisions. Only in extraordinary circumstances will project and activity decisions be implemented at the time of a plan development, revision, or amendment.

•

Planning documentation.

The final rule requires a Plan Document or Set of Documents to contain all information relevant to the planning and EMS processes. A Plan Document or Set of Documents includes: (1) Evaluation reports that, among other things, document the public involvement process in planning; (2) the plan, including applicable maps; (3) the plan approval document; (4) National Environmental Policy Act of 1969 (NEPA) documents; (5) the monitoring program for the plan area; (6) documents relating to the environmental management system (EMS) established for the unit; and (7) documentation of how science was taken into account in the planning process.

•

Plan components.

The 2002 proposed rule used the term “management direction” to describe the parts of a plan. This final rule uses the term “plan components” to describe the elements of the plan pursuant to the final rule. How plans are characterized and plan components operate has evolved over the years. This evolution has occurred through an ongoing evaluation of the role plans play, how plans guide projects, how plans by themselves do or do not have impacts on the ground, how current plans enable or restrict decisions to respond to changing circumstances and science, and how more active and structured monitoring provides better information to amend or revise plans as needed. Proposals for action to accomplish plan goals and desired conditions, with effects that can be meaningfully evaluated and which may be significant, generally are made at the project and activity stage.

Through this evaluation, the agency has concluded that plans are more effective if they include more detailed descriptions of desired conditions, rather than long lists of prohibitive standards or guidelines or absolute suitability determinations developed in an attempt to anticipate and address every possible future project or activity and the potential effects they could cause. Under this final rule, plans have five principal components (§ 219.7(a)(2)): desired conditions, objectives, guidelines, suitability of areas, and special areas.

•

Desired Conditions.

Desired conditions are the social, economic, and ecological attributes toward which management of the land and resources of the plan area is to be directed. Desired conditions are long-term in nature and aspirational, but are neither commitments nor final decisions approving projects and activities. Desired conditions may be achievable only over a period longer than the 15 years covered by the plan.

The increased attention to fire regimes provides an example of the role of

“desired conditions.” The Forest Service is challenged with unnatural fuel levels throughout the NFS. Much of the western United States is currently in a severe drought cycle, and fuel reduction is needed. To facilitate moving toward a healthier and more natural condition on the land, a plan could contain, for example, desired conditions that include a description of desired fuel loading, along with a description of desired tree species, structure, distribution, and density closer to what would have occurred under natural fire regimes.

The agency, working with the public, also may seek to achieve or maintain desired conditions for attributes, such as quietness, or a sense of remoteness, or attributes of our cultural heritage. Desired conditions also have a key role to play for wildlife habitat management. During plan development, it is difficult to envision all the site-specific factors that can influence wildlife. For example, in the past plans might have included standards precluding vegetation treatment during certain months or for a buffer for activities near the nest sites of birds sensitive to disturbance during nesting. However, topography, vegetation density, or other factors may render such prohibitions inadequate or unduly restrictive in specific situations. A thorough desired condition description of what a species needs is often more useful than a long list of prohibitions. Thorough desired condition descriptions are more useful because they provide a better starting point for project or activity design, when the site-specific conditions are better understood and when species conservation measures can be most meaningfully evaluated and effectively applied. Again, a description of what the agency, working with the public, wants to achieve is key.

•

Objectives.

Objectives are concise projections of intended outcomes of projects and activities to contribute to maintenance or achievement of desired conditions. Objectives are measurable and time-specific and, like desired conditions, are aspirational, but are neither commitments nor final decisions approving projects and activities. Application of objectives is the same as applied under the 1982 planning rule.

•

Guidelines.

Guidelines provide information and guidance for the design of projects and activities to help achieve objectives and desired conditions. Guidelines are not commitments or final decisions approving projects and activities. Guidelines should provide the recommended technical and scientific specifications to be used in the design of projects and activities to contribute to the achievement of desired conditions and objectives. They are the guidance that a project or activity would normally apply unless there is a reason for deviation. If deviation from plan guidelines is appropriate in specific circumstances, the rationale for deviation should be based on project or activity analysis and explained fully in the project decision document. However, deviation does not require an amendment to the plan.

In the National Forest Management Act (NFMA) of 1976 (16 U.S.C. 1600

et seq.

), the terms “standards” and “guidelines” are both used, with no apparent distinction between them with respect to their force and effect. In the 1982 planning rule and the first round of plans, the two terms were usually written together as “standards and guidelines.” Some plan revisions have designed mandatory provisions as “standards” and general direction with latitude for implementation as “guidelines.” The 2000 planning rule did not use the term “guidelines.” In the 2000 planning rule, a provision that is labeled as a standard could be either mandatory or discretionary depending upon its wording and the scope of its requirements.

The 2002 proposed rule, consistent with the approach in the 2000 planning rule, continued to use only the term “standards” and did not use the term “guidelines.” However, in line with and to clarify the strategic nature of plans, this final rule instead adopts the term “guidelines” and has removed the term “standards” as a plan component. The Department decided to employ the term “guideline” to reflect a more flexible menu of choices consistent with the nature of plans set forth in this rule.

In this final rule, guidelines are described as “information and guidance for project and activity decisionmaking.” Guidelines will not contain final decisions approving activities and uses. A Responsible Official has the discretion to act within the range of guidelines, as well as the latitude to depart from guidelines when circumstances warrant it. In the latter case, the Responsible Official should document the rationale for taking such exception to guidelines.

•

Suitability of areas.

Suitability of areas is the identification of the general suitability of an area in an NFS unit for a variety of uses. Areas may be identified as generally suitable for uses that are compatible with desired conditions and objectives for that area. The identification of an area as generally suitable for a use or uses is neither a commitment nor a decision approving activities and uses. The suitability of an area for a specific use or activity is authorized through project and activity decisionmaking.

Suitable use identification has evolved over time. Suitable use identification has often been characterized in plans prepared under the 1982 planning rule as permanent restrictions on uses or permanent determinations that certain uses would be suitable in particular areas of the unit over the life of the plan. However, even under the 1982 planning rule, these identifications were never truly permanent, unless they were statutory designations by Congress. It became apparent early in implementation of the 1982 planning rule that plan suitability identifications, like environmental analysis itself, always necessitated site-specific reviews when projects or activities were proposed.

For example, on lands identified as generally suitable for timber production, site-specific analysis of a proposal could identify a portion of that area as having poor soil or unstable slopes. The project design would then exclude such portions of the project area from timber harvest. Thus, the final determination of suitability was never made until the project or activity analysis and decision process was completed. This final rule better characterizes the nature and purpose of suitability identification.

An illustration of the effect of suitability identifications in the final rule may be helpful. Under this final rule, a plan may identify certain portions of an NFS unit as suitable for some uses. For example, some areas of an NFS unit may be suitable for transportation development or motorized use. Identification of an area in a plan as suitable for transportation development or motorized use does not mean that construction of a road is immediately approved or is even inevitable. Rather, the identification merely provides guidance for where road construction may be considered suitable. Proposed projects for construction of a road or roads would be approved after appropriate project-specific National Environmental Policy Act (NEPA) analysis and public involvement.

This final rule, as discussed next in this preamble, also includes specific provisions for identification of lands generally suitable for timber harvest and identification of lands not suitable for timber production as required by NFMA. However, under this final rule, other generally suitable uses may be identified in a variety of ways. A land

management plan may identify all uses that are generally suitable for a particular area, may identify the major or most prominent generally suitable uses, and/or may identify criteria to be used to determine whether a use is compatible with the desired condition of the area.

•

Special areas.

Special areas are areas within the NFS designated for their unique or special characteristics. These areas include wilderness, wild and scenic river corridors, and research natural areas. Some of these areas are statutorily designated. Other areas may be designated through plan development, amendment, revision, or through a separate administrative process with an appropriate NEPA process.

•

Monitoring.

The monitoring program is a central element of adaptive management planning in this final rule because monitoring is the key to discovering how to make project specific decisions consistent with objectives and to discovering what ultimately may need to be changed in a plan. Experience has shown that while some monitoring programs and specific monitoring techniques have been adequate to assess need for changes in plans of national forests, grasslands, prairie, or other comparable administrative units over time, some have not. New uses, such as mountain biking, were not contemplated 25 years ago. Noxious weeds can infest a previously pristine landscape. New methods of measuring water quality or wildlife habitat can be developed. Therefore, a unit's monitoring program must be readily adaptable too. Most plans revised under the 1982 planning rule, in fact, have removed most monitoring operational details from the plans themselves to allow for quicker changes to monitoring when needed.

The final rule allows the plan's monitoring program to be changed with administrative corrections, instead of amendments, to more quickly reflect the best available science and account for unanticipated changes in conditions. Changes in monitoring programs will be reported annually, and the Responsible Official has flexibility to involve the public in a variety of ways to develop program changes.

•

Streamlining the planning rule and use of the Forest Service Directive System.

Part of the strategic and adaptive nature of planning is to make the planning rule itself more strategic and adaptive. Therefore, procedural and technical details are being moved to the Forest Service Directive System (Forest Service directives). Forest Service directives are the primary basis for the Forest Service's internal management of all its programs and the primary source of administrative direction to Forest Service employees. The Forest Service Manual (FSM) contains legal authorities, objectives, policies, responsibilities, instructions, and guidance needed on a continuing basis by Forest Service line officers and primary staff to plan and execute programs and activities. The Forest Service Handbook (FSH) is the principal source of specialized guidance and instruction for carrying out the policies, objectives, and responsibilities contained in the FSM.

The public will have an opportunity to comment on both the FSM and FSH provisions to implement this final rule. The FSH and FSM provisions will be issued as soon as possible after release of this final rule. Thereafter, the agency will provide the public an opportunity to comment on future changes to the adopted provisions where there is substantial public interest or controversy concerning the future changes.

Role of Science in Planning

The 2002 proposed rule would have required that Forest Service decisions be consistent with the best available science. The final rule requires that the Responsible Official take into account the best available science (§ 219.11). The actual process for taking into account science in planning has not changed from the 2002 proposed rule. Under the final rule, science, while only one aspect of decisionmaking, is a significant source of information for the Responsible Official. When making decisions, the Responsible Official also considers public input, competing use demands, budget projections, and many other factors as well as science.

The final rule, like the 2002 proposed rule, states that the Responsible Official may use independent peer reviews, science advisory boards, or other appropriate review methods to evaluate the application of science used in the planning process. Specific procedures for conducting science reviews will be provided in the Forest Service directives.

The Responsible Official must take into account the best available science, and document in the plan that science was considered, correctly interpreted, appropriately applied, and evaluate and disclose incomplete or unavailable information, scientific uncertainty, and risk. This evaluation and disclosure of uncertainty and risk provide a crosscheck for appropriate interpretation of science and helps clarify the limitations of the information base for the plan.

Public Involvement

The final rule is similar to the 2002 proposed rule regarding public involvement requirements, but the final rule more clearly expresses the Department's emphasis on public involvement and collaboration. The final rule clarifies requirements regarding public involvement in the 2002 proposed rule by consolidating these requirements contained in several sections of the 2002 proposed rule into § 219.9, which requires consultation with interested individuals and organizations, State and local governments, Federal agencies, and federally recognized Indian Tribes.

The Department expects that, compared with prior planning rules, this final rule will allow more members of the public to be more effectively engaged because development of a plan, plan amendment, or plan revision will be simpler, more transparent, and faster. The public will have the opportunity to be engaged collaboratively in the development, amendment, or revision of a plan, in monitoring and in the unit's environmental management system (EMS). In addition, the public will have an opportunity to comment on a plan, plan amendment, or plan revision, and to object prior to approval if concerns remain.

The final rule requires opportunities for public involvement in the unit's land management planning process (§ 219.9) and in monitoring (§ 219.6(b)(3)). In response to public comments on the 2002 proposed rule, the final rule eliminates the prohibition on the use of duplicative materials, such as form letters, when filing an objection to a plan, thus removing a perceived barrier to wider public participation (§ 219.13).

One of the more important changes in public involvement is how the Forest Service will work with the public to collaboratively develop, amend, or revise a plan. The Forest Service has found that the traditional way of developing plan alternatives under the 1982 planning rule was not very useful. The traditional approach of developing and choosing among discrete alternatives that were carried throughout the entire planning process often proved divisive, because it often maintained adversarial positions, rather than helping people seek common ground.

To overcome this tendency, the final rule allows an iterative approach to planning. The Department recognizes

that people have many different ideas about how NFS lands should be managed. Furthermore, a plan could potentially include a variety of different desired conditions, objectives, identification of potential suitable uses, guidelines, and special area designations. The Department also recognizes that the public should be involved in determining what plan components should be. Therefore, the final rule provides for participation and collaboration with the public at all stages of plan development, plan amendment, or plan revision.

The Responsible Official and the public will review the various options to respond to the need to change the plan, and together they will successively narrow potential options until a proposed plan is developed. However, the final rule also recognizes that it is not always possible or desirable to present only one proposed plan for public comment and, therefore, options to the proposed plan can be provided for public comment when appropriate.

The process for plan development will be transparent to the public. Key steps in development of the proposed plan will be documented in the Plan Document or Set of Documents, which will be available to the public. While the final rule requires the Responsible Official to collaborate with the public and that a record of that collaboration be kept, it does not require in-depth social, economic, or ecological analysis of every potential option for a plan. In-depth analysis, documented in an evaluation report, is required only for the proposed plan and the options that remain after public collaboration.

The plan approved by the Responsible Official will be a result of public participation and collaboration that will have included consideration of a variety of different ways to manage a national forest, grassland, prairie, or other comparable administrative unit. Although the Responsible Official will continue to have the responsibility and the authority to make the final decision, the proposed plans that the Forest Service will present for public comment will be plans jointly and collaboratively developed with the public. The Department hopes this approach to plan development will serve to encourage people to work together to understand each other and find common solutions to the important and critical planning issues the agency faces. In summary, the final rule emphasizes collaboration and provides for effective public involvement.

Sustainability

This final rule retains the concept of the interdependent social, economic, and ecological elements of sustainability (§ 219.10) in the 2002 proposed rule. However, the final rule does not include many of the specific analytical processes and requirements set out in the 2002 proposed rule. Appropriate processes will be included in the Forest Service directives. The Department believes it is more appropriate to put specific procedural analytical requirements in the Forest Service directives rather than in the rule itself so that the analytical procedures can be changed more rapidly if new and better techniques emerge. As for other portions of the Forest Service directives, public notice and comment is required where there is substantial public interest or controversy.

As did the 2000 planning rule and the 2002 proposed rule, the final rule makes sustainability the overall goal for NFS planning. Managing NFS lands for sustainability of their renewable resources meets the MUSYA mandate that the Secretary develop and administer the renewable surface resources of the National Forests for multiple use and sustained yield (16 U.S.C. 529). Managing for sustainability will provide for management of the various renewable resources without impairment of the productivity of the land, as required by the MUSYA. Sustaining the productivity of the land and its renewable resources means meeting present needs without compromising the ability of those lands and resources to meet the needs of future generations. The final rule is similar to the 2002 proposed rule for social and economic sustainability requirements. However, as stated, there are changes from the 2002 proposed rule for ecological sustainability.

NFMA requires guidelines for land management plans which provide for diversity of plant and animal communities (16 U.S.C. 1604 (g)(3)(B)) based on the suitability and capability of the land area to meet overall multiple-use objectives. Almost 30 years after passage of the NFMA, the concepts of biological diversity at different spatial and temporal scales, including genetic diversity, species diversity, structural diversity, and functional diversity have been substantially refined and developed. Today, the agency has a vast array of methods available to provide for diversity. The complexity of biological diversity often results in a corresponding complicated array of concepts, measures, and values from several scientific disciplines.

The Department developed the final rule based on the following concepts related to diversity. First, maintenance of the diversity of plant and animal communities starts with an ecosystem approach. In an ecosystem approach, the plan will provide a framework for maintaining and restoring ecosystem conditions necessary to conserve most species.

Second, where the Responsible Official determines that the ecosystem approach does not provide an adequate framework for maintaining and restoring conditions to support specific federally listed threatened or endangered species, species-of-concern, and species-of-interest, then the plan must include additional provisions for these species. This final rule defines species-of-concern as those species for which the Responsible Official determine that continued existence is a concern and listing under the Endangered Species Act (ESA) may become necessary. This final rule defines species-of-interest as those species for which the Responsible Official determines that management actions may be necessary or desirable to achieve ecological or other multiple-use objectives. Forest Service directives will identify lists of species developed by an objective and scientifically credible third party, such as the U.S. Fish and Wildlife Service or NatureServe (

http://www.natureserve.org/

).

Third, agency managers should concentrate their efforts on contributing to the persistence of species where Forest Service management activities may affect species rather than on species management where the cause of species decline is outside the limits of agency authority or the capability of the plan area.

Fourth, the presence of all native and desired non-native species in a plan area is important. However, the Responsible Official should have the flexibility to determine the degree of conservation to be provided for the species that are not in danger of ESA listing, to better balance the various multiple uses, including the often-competing needs of different species themselves.

Fifth, the planning framework should provide measures for accounting for progress toward ecosystem and species diversity goals. The final rule and the Forest Service directives provide a framework within which efforts to maintain and restore species will be monitored. Progress toward desired conditions and objectives will be monitored and the results made available to the public. The adaptive monitoring and feedback process will help maintain and improve diversity.

The 2002 proposed rule included two different approaches to the NFMA diversity requirement labeled “Option 1” and “Option 2” and asked for comments on both options. The agency also hosted a workshop to provide an opportunity for public discussion of these options and for identification of other ideas on how to best meet the statutory diversity requirement. An extremely wide range of opinions was expressed, both in public comments and during the workshop. The Department found these comments useful in developing a scientifically credible and realistic approach for this final rule and the Forest Service directives to meet legal requirements and the agency's stewardship responsibilities.

The final rule incorporates features of both Options 1 and 2. In common with both options, the final rule approaches diversity at two levels of ecological organization: the ecosystem level and the species level. This concept has considerable support among scientists, has already been tested by a number of NFS administrative units developing or revising plans under the 1982 planning rule, and was included in the planning rule adopted in 2000.

The final rule is less detailed than either Options 1 or 2 with respect to specific ecosystem analysis requirements. After reviewing public comments, and after consideration of the Forest Service's experience with planning over the past 25 years, the Department concluded that such detail regarding analysis is more properly included in the Forest Service directives. These directives can be more extensive and can be more easily changed as the agency learns how to improve its analytic processes and as new scientific concepts and new technological capabilities become available.

In common with Options 1 and 2, the final rule focuses on ecosystem diversity as the primary means of providing for the diversity of plant and animal communities. The final rule differs from Option 2 in not explicitly requiring analysis of ecosystem diversity at multiple temporal and spatial scales, analysis of disturbance regimes, or analysis of the landscape context. Guidance on appropriate analysis will be included in the Forest Service directives. The agency will seek public comment on this guidance.

Another point in common between this final rule and Options 1 and 2 is the concept that the more effective the ecosystem management guidance is in sustaining species habitat, the less need there is for analysis and planning at the species level of ecological organization. Option 1, Option 2, and this final rule all recognize that some additional analysis and additional plan provisions may be needed for some species. However, the final rule differs from Option 1 in that it does not include a requirement to provide for viable populations of plant and animal species. Such a requirement had previously been included in both the 1982 planning rule and the 2000 planning rule.

The species viability requirement was not adopted for several reasons. First, the experience of the Forest Service under the 1982 planning rule has been that ensuring species viability is not always possible. For example, viability of some species on NFS lands may not be achievable because of species-specific distribution patterns (such as a species on the extreme and fluctuating edge of its natural range), or when the reasons for species decline are due to factors outside the control of the agency (such as habitat alteration in South America causing decline of some Neotropical birds), or when the land lacks the capability to support species (such as a drought affecting fish habitat).

Second, the number of recognized species present on the units of the NFS is very large. It is clearly impractical to analyze all species, and previous attempts to analyze the full suite of species via groups, surrogates, and representatives have had mixed success in practice.

Third, focus on the viability requirement has often diverted attention and resources away from an ecosystem approach to land management that, in the Department's view, is the most efficient and effective way to manage for the broadest range of species with the limited resources available for the task.

Requirements for species population monitoring are not included in this final rule. Population data are difficult to obtain and evaluate because there are so many factors outside the control of the Forest Service that affect populations. The Department believes that it is best to focus the agency's monitoring program on habitat on NFS land where the agency can adjust management to meet the needs of certain species. Desired conditions are often a focus of the monitoring program. The agency will identify species-of-concern and species-of-interest (§ 219.16). Where ecological conditions for these species are identified as desired conditions, the habitat could be monitored to assist in avoiding future listing of these species. However, the final rule does not preclude population monitoring. Plans may include population monitoring as appropriate.

In summary, in compliance with NFMA, the ecological sustainability provisions in the final rule provide the foundation for the plan to provide for diversity of plant and animal communities. The final rule provides a complementary ecosystem and species diversity approach for ecological sustainability. The final rule at § 219.7(a)(2) establishes requirements for developing plan components to guide projects and activities. All parts of the land management framework, including plan components, monitoring, and plan adjustment, are designed to work together to contribute to sustainability.

Environmental Management Systems and Adaptive Management

•

Adaptive management and land management planning.

Plans must adapt to ever-changing conditions. Agency policy may change, new laws may be enacted, or court decisions can change interpretation of existing laws. Fires, invasive species, or outbreaks of insects or disease can substantially change environmental conditions. Changes in market conditions or public values may shift the demand for specific goods and services. Scientific findings can change our understanding of the environment and of the effects of specific management activities. Better monitoring techniques or ways to achieve objectives may be found. Land management plans must reflect the fact that change and uncertainty are inevitable. Consequently, plans must allow for quick response to these ever-changing conditions.

The National Association of Professional Forestry Schools and Colleges and others commented on the 2002 proposed rule regarding the importance, from the scientific perspective, of using adaptive management when dealing with complex ecosystems. In 1999, the Committee of Scientists developed recommendations that strongly encouraged the use of adaptive management. The Committee of Scientists recommended setting a high priority on developing ongoing analyses that are based on monitoring to continually adjust or change land management planning decisions. In response to these comments and recommendations for a greater emphasis on and commitment to adaptive management, the Department has chosen to include environmental management systems (EMS) in the land management framework.

The adaptive management approach includes land management plans along

with comprehensive evaluations, an environmental management system, monitoring, evaluation, and research. Adaptive management requires careful coordination of the work performed through these programs. It does not require equal emphases among these various programs, but rather requires organizational learning, an active pursuit of best available scientific information, evaluation and disclosure of uncertainties and risks about scientific information, and a response to change.

A land management plan starts the adaptive management cycle. Managers then pursue ways to achieve desired conditions and objectives described in the plan. The comprehensive evaluation may describe the risks and uncertainties associated with implementing the plan. Managers prioritize risks and develop strategies to control them.

Monitoring and evaluations check for status and change across the administrative unit. Monitoring results may show that the desired conditions are not being achieved through projects. This may trigger future project changes to reach desired conditions. Alternatively, monitoring results may lead to conclusions that the land management plan should be changed through a plan amendment.

Research is an important part of adaptive management. Through experimentation, researchers investigate cause and effect relationships of management practices on the environment. Experiments test hypotheses and researchers develop reliable knowledge about effects of management practices. The new information may be used to amend plans, change project level work, or update an environmental management system.

•

Land management plans, adaptive management, and environmental management systems.

This final rule requires each national forest, grassland, prairie, or other comparable administrative unit to develop and implement an EMS based on the international consensus standard published by the International Organization for Standardization as “ISO 14001: Environmental Management Systems—Specification With Guidance For Use” (ISO 14001). Each unit's EMS should be designed and implemented to more efficiently meet legal obligations, including supporting the creation of effective land management plans, ensuring public participation in the process, and providing a framework for adaptive management.

The administrative units' EMS will be a systematic approach to identify and manage environmental conditions and obligations to achieve improved performance and environmental protection. Each unit's EMS will identify and prioritize environmental conditions; set objectives in light of Congressional, agency, and public goals; document procedures and practices to achieve those objectives; and monitor and measure environmental conditions to track performance and verify that objectives are being met. Agency management personnel will regularly review performance, and information about environmental conditions will be regularly updated to continually improve land management and environmental performance.

By systematically collecting and updating information about environmental conditions and practices (for example, through monitoring, measurement, research, and public input), the units' EMS will provide a foundation for effective adaptive management, plan amendments, or even changing specific project or work practices. The agency expects that, whenever possible, EMS and land management plan documentation will be coordinated and integrated to avoid unnecessary duplication.

The units' EMS will more efficiently meet legal obligations, will improve public participation in the land management planning process, and enhance the agency's ability to identify and respond to public input. Creating a transparent and consistent framework that describes how units are managed will improve the public's ability to effectively participate in land management. The units' EMS will not replace any legal obligations that the agency has under NFMA, MUSYA, NEPA, or any other statute, nor will the EMS diminish the public's ability to participate in the land management process or its rights under any law. To the contrary, EMS will significantly improve the public's ability to effectively participate in the process.

The agency chose ISO 14001 as the EMS model for several reasons. First, it is the most commonly used EMS model in the United States and around the world. This will make it easier to implement and understand (internally and externally) because there is a significant knowledge base about ISO 14001. Second, the National Technology and Advancement Act of 1995 (NTAA) (Pub. L. 104-113) requires that Federal agencies use or adopt applicable national or international consensus standards wherever possible, in lieu of creating proprietary or unique standards. The NTAA's policy of encouraging Federal agencies to adopt tested and well-accepted standards, rather than reinventing-the-wheel, clearly applies to this situation where there is a ready-made international and national EMS consensus standard (through the American National Standards Institute) that has already been successfully implemented in the field for almost a decade. Third, it has been a long-standing policy that Federal agencies implement EMS to improve environmental performance (Executive Order 13148 issued April 21, 2000 (E.O. 13148), titled “Greening the Government Through Leadership in Environmental Management” and an April 1, 2002, Memorandum from the Chair of the Council on Environmental Quality and the Director of the Office of Management and Budget to the heads of all Federal agencies). Federal agencies that have been implementing EMS in response to the E.O. 13148 have typically been using ISO 14001 as their model.

The implementation of ISO 14001 in NFS administrative units will have to reflect the legal and public obligations of the agency, as well as the environmental conditions and issues relevant to land management, such as sustainability and long-term issues, including cumulative effects. For example, while ISO 14001 requires implementing organizations to identify their “environmental aspects,” administrative units implementing their EMS under this rule will include the concept of environmental conditions in land management planning in this step. Another example reflecting the legal and public obligations of the agency is that the units' EMS must include the public participation requirements of this rule, which are much stronger than the public communication provisions of ISO 14001. Therefore, the agency will interpret and implement ISO 14001 in a manner consistent with the agency's legal obligations, its duty to the public, and the unique circumstances of land management.

National Environmental Policy Act and National Forest Management Act Planning

The application of NEPA to the planning process as identified in this final rule is the next iterative step in an evolution that began with the promulgation of the 1979 planning rule, revised in 1982. In developing the NEPA provisions of this final rule, the Department took into account the nature of the five plan components under this final rule, experience the agency has gained over the past 25 years from

developing, amending, and revising land management plans; the requirements of NEPA and NFMA, the Council on Environmental Quality (CEQ) regulations, and the comments by the Supreme Court in

Ohio Forestry Ass'n

v.

Sierra Club

and

Norton

v.

Southern Utah Wilderness Alliance

regarding the nature of plans themselves.

The 1979 planning rule required an environmental impact statement (EIS) for development of plans, significant amendments, and revisions. This requirement continued in the revised rule adopted in 1982. At the time, the Forest Service believed that the NEPA document prepared for a plan would suffice for making most project-level decisions. However, the agency came to understand that this approach to complying with NEPA was impractical, inefficient, and sometimes inaccurate. Over the course of implementing NFMA during the past 25 years, the agency has learned that environmental effects of projects and activities cannot be meaningfully evaluated without knowledge of the specific timing and location of the projects and activities.

At the time of plan approval, the Forest Service does not have detailed information about what projects and activities will be proposed over the 15-year life of a plan, how many projects will be approved, where they will be located, or how they will be designed. At the point of plan approval, the Forest Service can only speculate about the projects that may be proposed and budgeted and the natural events, such as fire, flood, insects, and disease that may occur that will make uncontemplated projects necessary or force changes in the projects and the effects of projects that were contemplated. Indeed, the Forest Service has learned that over the 15-year life of a plan it can only expect the unexpected.

In the course of completing NEPA analysis on the first generation of NFMA plans, the Forest Service also became more aware of the difficulties of scale created by the size of the national forests and grasslands. The National Forest System includes 192 million acres, and individual planning units, such as the Tongass National Forest, may be as large as 17 million acres. These vast landscapes contain an enormous variety of different ecosystems, which will respond differently to the same management practices. As the Committee of Scientists said on page 26 of the Committee of Scientists Report:

Because of the wide variation in site-specific practices and local environmental conditions (

e.g.

, vegetation type, topography, geology, and soils) across a given national forest or rangeland, the direct and indirect effects of management practices may not always be well understood or easily predicted. (Committee of Scientists Report, March 15, 1999, U.S. Department of Agriculture, Washington, DC 193 p.)

The result is that it is usually infeasible to do environmental analysis for a national forest as a whole that is sufficiently site-specific to allow projects to be carried out without further detailed NEPA analysis after the plan has been approved.

The agency has found itself preparing much more extensive NEPA documentation for projects than it had anticipated when it adopted the 1979 and 1982 planning rules. Moreover, the extensive changes to conditions in the plan area that occurred during the 15-year life of each plan made it increasingly impractical to tier project-level NEPA documentation to the plan EIS. The requirements of the 1979 and 1982 planning rules created an inefficient and ineffective system for complying with NEPA.

The 2000 planning rule furthered the existing presumption of requiring an EIS for plan development or revision, notwithstanding concerns raised by the Committee of Scientists. Secretary Glickman named the Committee of Scientists (COS) on December 11, 1997. The charter for the COS stated that the Committee's purpose was to provide scientific and technical advice to the Secretary of Agriculture and the Chief of the Forest Service on improvements that can be made in the National Forest System Land and Resource Management Planning Process.

The Committee of Scientists said, on page 117 of the Committee of Scientists Report:

Perhaps the most difficult problem is that the current EA/EIS process assumes a one-time decision. The very essence of small-landscape planning is an adaptive management approach, based upon monitoring and learning. Although small-landscape planning can more readily do real-time cumulative effects analysis * * *, this kind of analysis is difficult to integrate with a one-time decision approach. Developing a decision disclosure and review process that is ongoing and uses monitoring information to adjust or change treatments and activities will need to be a high priority * * *. (Committee of Scientists Report, March 15, 1999, U.S. Department of Agriculture, Washington, DC 193 p.)

In addition to concern about timely and accurate disclosure of environmental effects, the agency's experience with planning has demonstrated the need to clarify what plans, in fact, actually do. Neither the 1982 nor the 2000 planning rule clearly described or contrasted the differences between the effects of plans and the effects of projects and activities. This has been confusing to the public and agency employees. As discussed previously in the guidelines and the suitability discussions, plan components have not been applied or interpreted consistently throughout the agency and often have been characterized as the functional equivalent of final project-level decisions or actions, rather than guidance for projects and activities over time.

This final rule clarifies that plans will be strategic rather than prescriptive in nature absent extraordinary circumstances. Plans will describe the desired social, economic, and ecological conditions for a national forest, grassland, prairie, or other comparable administrative unit. Plan objectives, guidelines, suitable uses, and special area identifications will be designed to help achieve the desired conditions. While plans will identify the general suitability of lands for various uses, they typically will not approve projects or activities with accompanying environmental effects. Decisions approving projects or activities with environmental effects that can be meaningfully evaluated will typically be made subsequent to the plan. In essence, a plan simply is a description of a vision for the future that coupled, with evaluation, provides a starting point for project and activity NEPA analysis. Therefore, under this rule approval of a plan, plan amendment, or plan revision typically will not have environmental effects.

The formulation of plans under the final rule as being merely strategic rather than prescriptive is further evident in the five components of plans under the final rule. As described above, none of the five components is intended to directly dictate on the ground decisions which have impacts on the environment. Rather, they state general guidance and goals to be considered in project and activity decisions. These five components thus do not have any significant effect on the environment.

Notwithstanding their strategic nature, approval of a plan, plan amendment, or plan revision is a final action under the CEQ regulations. Further, such actions may have environmental effects in some extraordinary circumstances, such as when a plan amendment or revision includes final decisions approving projects or activities. For example, an amendment or revision including a decision approving a project to thin

certain trees to reduce fire hazards may have environmental affects that could be significant.

NFMA requires the Secretary of Agriculture to determine how to comply with NEPA during the course of NFMA planning. Section 106(g)(1) of NFMA directs the Secretary to specify in land management regulations procedures to insure that plans are prepared in accordance with NEPA, including direction on when and for what plans an EIS is required (16 U.S.C. 1604(g)(1)). The CEQ regulations direct Federal agencies to adopt procedures that designate major decision points for the agency's principal programs likely to have a significant effect on the human environment and ensuring that the NEPA process corresponds with them (40 CFR 1505.1(b)).

Under NEPA and the CEQ regulations, an EIS is required for every report or recommendation on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment (16 U.S.C. 4321

et seq.

, 40 CFR 1502.3). CEQ regulations define “major Federal action” as including “actions with effects that may be major.” The regulations explain that “Federal actions” generally tend to fall within several categories. Although these categories include adoption of formal agency plans within the definition of “federal action,” not all federal actions are major federal actions. As applied to the final rule, land management plans under this final rule, as evidenced by their five components, are strategic and aspirational in nature and generally will not include decisions with on-the-ground effects that can be meaningfully evaluated and that may be major. During plan development, amendment, or revision, the agency generally is not at the stage in National Forest planning of proposing actions to accomplish the goals in land management plans. CEQ regulations define “proposals” that can trigger the requirement for an EIS as “that stage in development of an action when an agency subject to the Act has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goal and the effects can be meaningfully evaluated (40 CFR 1508.23). Proposals for action to accomplish plan goals and desired conditions, with effects that can be meaningfully evaluated and which may be significant, generally are made at the project and activity stage. While a plan includes desired conditions, goals, and objectives, the Forest Service does not actively prepare to make a decision on an action aimed at achieving desired conditions, goals, or objectives until the agency proposes projects and activities. Thus, the decision to adopt, amend, or revise a plan, therefore, is typically not the point in the decisionmaking process at which the agency is proposing an action likely to have a significant effect on the human environment.

The approach in this final rule is consistent with the nature of Forest Service land management plans acknowledged in

Ohio Forestry Ass'n

v.

Sierra Club,

523 U.S. 726 (1998). As described above, in

Ohio Forestry,

the Supreme Court held that the timber management provisions of land management plans are tools for further agency planning and guide, but do not direct future management. When considering the role of land management plans with respect to timber harvesting, the Supreme Court explained that:

Although the Plan sets logging goals, selects the areas of the forest that are suited to timber production, and determines which “probable methods of timber harvest” are appropriate, it does not itself authorize the cutting of any trees. Before the Forest Service can permit the logging, it must: (a) Propose a specific area in which logging will take place and the harvesting methods to be used; (b) ensure that the project is consistent with the Plan; (c) provide those affected by proposed logging notice and an opportunity to be heard; (d) conduct an environmental analysis pursuant to the National Environmental Policy Act of 1969, to evaluate the effects of the specific project and to contemplate alternatives; and (e) subsequently make a final decision to permit logging, which affected persons may challenge in an administrative appeals process and in court.

The Supreme Court repeated its description of plans as merely strategic without any immediate on the ground impact in the recent SUWA decision described above. Both cases reinforce the observations of the FS in reflecting on 25 years of completing EISs for plans, and buttress the approach to planning and NEPA compliance described in the final rule.

In accordance with NFMA, NEPA, and the CEQ regulations, this final rule will ensure that Forest Service NEPA analysis will be timed to coincide with those stages in agency planning and decisionmaking likely to have a significant effect on the human environment. The final rule emphasizes the clear distinction between the mere adoption, revision or amendment of a plan and projects and activities having on-the-ground environmental effects. In this final rule, the Department is clarifying the nature of National Forest land management plans, and based on the nature of plans, specifying that plans, plan amendments, and plan revisions may be categorically excluded from NEPA documentation as provided in agency NEPA procedures.

The CEQ regulations (40 CFR 1500) require that each agency establish specific criteria for and identification of three types of actions: (1) Those that normally require preparation of an environmental impact statement (EIS); (2) those that normally require the preparation of an environmental assessment (EA); and (3) those that normally do not require either an EA or EIS. Actions qualifying for this third type of action are defined as categorical exclusions because they do not individually or cumulatively have a significant impact on the human environment; therefore, neither an environmental assessment nor an environmental impact statement is required (40 CFR 1508.4).

A categorical exclusion is not an exemption from the requirements of NEPA. Categorical exclusions are an essential part of NEPA that provide a categorical determination that certain actions do not result in significant impacts, eliminating the need for individual analyses and lengthier documentation for those actions. CEQ regulations at 40 CFR 1500.4(p), 1507.3 and 1508.4 direct agencies to use categorical exclusions to define categories of actions which do not individually or cumulatively have a significant effect on the human environment and do not require the preparation of an environmental assessment or an environmental impact statement, thereby reducing excessive paperwork. Current Forest Service procedures for complying with and implementing NEPA are set out in Forest Service Handbook (FSH) 1909.15.

Simultaneously with this rulemaking, the Forest Service is proposing to revise its NEPA procedures to provide a new categorical exclusion for plan development, amendment, and revision. The proposed categorical exclusion describes the extraordinary circumstances that may require preparation of an EIS or an EA. The Forest Service is seeking comment on the proposed categorical exclusion.

The Forest Service presented and sought public comment on this approach to NEPA and NFMA planning in the 2002 proposed rule. The 2002 proposed rule at § 219.6(b) provided that if the Responsible Official determines that a new plan, plan amendment, or plan revision, or a component thereof, would be an action significantly affecting the quality of the human environment, or authorizes an action that commits funding or

resources that could have a significant effect on the quality of the human environment, then an EIS would be required. Otherwise, a new plan, plan amendment, or plan revision may be categorically excluded from documentation in an EA or EIS as provided in agency NEPA procedures. The categorical exclusion proposed in connection with this final rule clarifies that plan development, plan amendment or plan revisions in accordance with this final rule do not significantly affect the environment, and thus are categorically excluded from further NEPA analysis, unless extraordinary circumstances are present. Of course, the FS will comply with all applicable NEPA requirements, including preparation of an EA or an EIS where appropriate, when considering specific projects or making other project-specific decisions affecting the environment.

The public identified three key concerns related to the proposal to categorically exclude plans from documentation. First, many people commented that they were unsure about how they would be involved in planning if an EIS process were not used. Second, they questioned how planning analysis would be documented in the absence of an EIS. Third, some asked how cumulative effects would be accounted for if a Categorical Exclusion (CE) were relied upon. The Department has fully considered the concerns raised by the public and believes the final rule addresses the concerns as follows:

• Public participation.

This final rule provides extensive opportunity for public participation that exceeds requirements for public participation under NEPA and improves the clarity of the process for public notification (§ 219.9).

• Evaluations and documentation.

This final rule requires comprehensive and other evaluations in § 219.6. Evaluation reports will document existing social, economic, and ecological conditions and trends; and will be available to the public and included in the Plan Document or Set of Documents. Evaluations are prepared for plan development, plan amendment, and plan revision (§ 219.6); use a systematic and interdisciplinary approach (§ 219.7(a)); and consider environmental amenities and values along with economic and technical considerations (§ 219.10).

The Plan Document or Set of Documents will be supplemented with annual evaluation reports and with other information as appropriate to form a continually refreshed and current analytical base of information. Because of this more current information base, evaluations will provide a much stronger and more robust source of information for projects and activities than an EIS prepared under the 1982 planning rule.

• Cumulative effects.

To account for cumulative effects of management and natural events, this final rule requires (§ 219.6(a)): (1) A comprehensive evaluation for the development of a new plan or plan revision; (2) annual plan monitoring and evaluation; and (3) review of the comprehensive evaluations at least every 5 years. These evaluations, as opposed to predictive EIS's that grow increasingly stale over time, will provide more timely and informed consideration of cumulative effects. The Plan Document or Set of Documents provides for a robust information base for the consideration of cumulative effects of management in NEPA documents prepared for projects or activities.

• The relationship between EMS and NEPA.

Implementing EMS will improve the quality of agency NEPA analysis for projects and activities. In a September 2003 report, titled “Modernizing NEPA Implementation,” the CEQ NEPA Task Force stated at page 54, “Federal agencies, having made the connection between EMS and adaptive management, would be integrating NEPA-related adaptive management actions into their developing EMSs.” The task force also said that NEPA and EMS provide “a synergy that can encourage a robust analysis when the EMS information is extensive, current, and available for use in the NEPA analy[sis].” The Department agrees with the task force's conclusions and believes that requiring each unit to implement an EMS will improve environmental performance and effective land management in addition to enhancing NEPA analysis and documentation.

Under the existing process, information about environmental conditions is collected for the purposes of preparing detailed NEPA analysis and documentation for plan development, plan amendment, or plan revision. There is no effective system for keeping this information current, because the collection and analysis of information often typically ceases when the NEPA analysis and documentation is completed. Therefore, the information collected for the environmental documents for 126 NFS units can grow stale as environmental, social, and economic conditions change. Further, the focus of the information collection and analysis process is on NEPA analysis and documentation, rather than for use in the ongoing management of the administrative unit. Therefore, the large volume of information and analysis that is so expensively created over a long period is often used as a snapshot for purposes of making a single decision, instead of being integrated into a dynamic, ongoing system to effectively manage units.

This rule will improve this situation by requiring each administrative unit to implement an EMS that includes defined procedures for identifying environmental conditions, keeps that information current, and includes monitoring and measurement procedures for continually evaluating conditions in the unit. The EMS requirement is separate from any obligations to develop EISs, EAs, or CEs. Therefore, the obligation to keep this information current and make it available for public review is separate from the obligation to create any particular NEPA document. This information will be used in formulating the land management plans that are subject of this rule, managing administrative units on an ongoing basis, as well as for specific project and activity proposals that trigger the need for EISs, EAs, or CEs. Therefore, through the implementation of EMS, administrative units will be continually collecting and evaluating the data necessary to create any documents that may be required by NEPA. This will make the creation of accurate and relevant NEPA documents more efficient. More importantly, it will make available to administrative unit managers and the public a “library” of current information, analyses, and research that, through EMS, will be used to manage the administrative unit on an ongoing basis, and better adapt management practices to avoid unwanted environmental effects.

Summary

This final rule represents a paradigm shift in planning. It emphasizes the strategic nature of NFMA land management plans and will permit more flexibility in implementing projects in response to evolving scientific doctrines and changing conditions on the ground, such as unforeseen natural disasters. It requires that each NFS unit develop an EMS that will be used to continually improve environmental performance and conditions. It requires that Responsible Officials take into account the best available scientific information. It requires public involvement and collaboration throughout the entire cycle of planning, plan development, plan amendment, plan revision, project

and activity decisionmaking, and monitoring of environmental performance. The final rule requires plans to focus on the social, economic, and ecological sustainability of the management of the NFS, and it has specific provisions for biological diversity at both the ecosystem and species level. It clarifies the nature of plans and explains how the planning process complies fully with the requirements of NEPA. Plans developed and maintained using the EMS and other processes required by this final rule will improve the performance, accountability, and transparency of NFS land management planning.

4. Department Response to Comments on the 2002 Proposed Rule

The Forest Service received approximately 7,000 original letters and 195,000 total comments from a wide variety of respondents on the 2002 proposed rule. Each comment received consideration in the development of the final rule. The following is a summary of comments and response to issues raised by these comments. A response to less substantive issues may be found in the supplemental response to comments located on the World Wide Web/internet (

see

ADDRESSES

).

General Issues

The Department received the following comments not specifically tied to a particular section of the 2002 proposed rule.

Comment:

Compliance with NFMA. Some respondents thought the 2002 proposed rule would allow more timber harvest and road construction than currently exists and therefore would violate the National Forest Management Act (NFMA) of 1976 (16 U.S.C. 1600

et seq.

). Other respondents believed the timber industry, other commercial interests, or Forest Service employees unduly influenced the 2002 proposed rule; moreover, they perceived that the 2002 proposed rule would degrade the environment. Some contended the 2002 proposed rule was influenced by campaign contributions.

Response:

The final rule is not intended to, and will not, determine the choices among the multiple uses. The NFMA requires the Secretary of Agriculture to develop regulations under the principles of the Multiple-Use Sustained-Yield Act (MUSYA) of 1960 (16 U.S.C. 528-531). Congress gave the Secretary broad discretion in interpreting how these principles are applied. This final rule affirms the overall goal of MUSYA and provides a framework for plans to reflect contemporary priorities and values. Pursuant to MUSYA, this final rule adopts social, economic, and ecological sustainability as the goal of National Forest System (NFS) management. Furthermore, timber production from NFS lands has been reduced dramatically since NFMA was written. The sale of timber has fallen from an annual level of 10 to 12 billion board feet in the 1970s and 1980s to three billion board feet in the early 1990s and below three billion board feet since then. Finally, the final rule does not promote or discourage other uses of NFS lands, such as outdoor recreation, range, wildlife and fisheries, and so forth. The planning process itself will determine the desired conditions and objectives for each NFS unit.

Comment:

Plan oversight and resource conservation. Some respondents commented that the 2002 proposed rule would prevent court oversight of plans, eliminate restrictive plan requirements, inappropriately increase Forest Service discretion, and result in decreased conservation of resources such as wildlife. Several respondents wanted the 2002 planning rule to be stricter, attributing the collapse of Enron to inadequate regulatory oversight. Other respondents were concerned about the possibility of increased litigation and thought streamlined planning would shift more of the analysis burden to projects, thus slowing project completion.

Response:

The final rule establishes a planning process that complies with NFMA and provides a broad planning framework within which issues specific to a plan area can be resolved in an efficient and reasonable manner informed by the latest data and scientific assessments and public participation and collaboration.

With respect to concerns that Forest Service discretion may be unchecked, there has always been a tension between providing needed detailed direction in the planning rule and discretion of the Responsible Official. However, the decisions of the Responsible Official are constrained and guided by a large body of law, regulation, and policy, as well as public participation and oversight. Because every issue cannot be identified and dealt with in advance for every situation, the Forest Service must rely on the judgment of the Responsible Official to make decisions based on laws, regulation, policy, sound science, public participation, and oversight.

The Department of Agriculture (Department) believes that the final rule is fully compatible with the nature of forest planning as described by the U.S. Supreme Court in

Ohio Forestry Ass'n

v.

Sierra Club

523 U.S. 726 (1998) (A discussion of this case is found in the “Overview of the Final 2004 Rule” section of the preamble.) The Department expects public oversight and legal review of planning, as well as an assessment of the environmental impacts of specific projects under NEPA, to occur under the final rule in accordance with

Ohio Forestry.

As a general matter, and consistent with the Ohio Forestry Ass'n decision, a plan by itself is not expected to be reviewable by the courts at the time the plan is developed, revised or amended; but when the agency decides on a specific action, an aggrieved party will be able to challenge that action and, if appropriate, seek review of that part of the plan that is relevant to that action.

After years of experience with previous planning rules, the Department is ready to embrace the latest thinking in management techniques and believes this final rule provides the proper balance of regulatory requirements and flexibility needed to resolve issues on the ground. By streamlining the planning process, requiring environmental management systems (EMS), and emphasizing collaboration and public involvement, the final rule will result in plans that are more up to date, and should have broader public support. Similarly, the continual updating of the evaluations and analyses associated with plans is expected to reduce the amount of analysis needed at the project level. These concepts of collaboration, EMS, evaluations, and public involvement are described in detail in the “Overview of the Final 2004 Final Rule” section of the preamble.

Comment:

Consultation with a committee of scientists. Several respondents were concerned that there was no consultation with a committee of scientists in developing the 2002 proposed rule. Several felt that an independent review was necessary. Some respondents also felt that the 2002 proposed rule should reflect current scientific knowledge.

Response:

The NFMA does not require a committee of scientists for revision of the planning rule. Nonetheless, the Department based the 2002 proposed rule on the major recommendations from the 1999 Committee of Scientists report. Sustainability, public participation, adaptive management, monitoring and evaluation, the role of science, and the objection process, all concepts in the proposed and final rule, were recommendations of that report. The Department realizes that scientific knowledge will continue to expand. Therefore, the Responsible Official must

take into account the best available science when plans are developed, revised, or amended (§ 219.11).

Comment:

Environmental conservation. Several respondents commented that the 2002 planning rule should conserve wildlife, wilderness, historic and cultural sites, special habitat, watersheds, genetic material, and reduce fragmentation. One person commented that planning should be done on whole ecosystems.

Response:

The final rule provides the processes through which Responsible Officials conserve and manage resources with regard to the issues relevant in the plan area. Those communities, groups, or persons interested in these important resource issues can influence plan components and monitoring programs by becoming involved in planning efforts throughout the process, including the development and monitoring of the plan, as well as the development and implementation of proposed projects and activities.

The Department agrees that better quality planning is often accomplished when the appropriate scale is used. For species or watersheds, evaluation often needs to be completed at a broader scale than for an individual unit. The Department anticipates that the Forest Service, in its plan evaluations, will continue to look at issues at the appropriate scale.

Comment:

The 2000 planning rule was never adequately tested. Some respondents disagreed with the 2002 proposed rule discussion of the difficulty of implementing the 2000 planning rule, since the 2000 planning rule was never used.

Response:

The costing study, “A Business Evaluation of the 2000 planning rule and the Proposed NFMA Planning Rules,” analyzed each of the work activities of the 2000 planning rule and used experienced planners and resource professionals to estimate how those work activities would be carried out. The Department believes that this analysis on the 2000 planning rule was adequate to determine how well that rule could be implemented.

Comment:

Costing study of the 2000 Planning Rule. Several respondents said the report on cost and ability to implement the 2000 planning rule was not available.

Response:

The

Federal Register

notice for the 2002 proposed rule explained how all associated studies were available for review. These studies have been, and still are, available on the Forest Service's World Wide Web/Internet site (

see

ADDRESSES

) and available from the Director, Ecosystem Management Coordination Staff, Forest Service, USDA, Mail Stop 1104, 1400 Independence Avenue, SW., Washington, DC 20250-1104, as described in the

ADDRESSES

section.

Comment:

Inability to complete revisions. Several respondents said that the inability of the Forest Service to comply with a statutorily mandated revision timeline was due to reasons other than the requirements of the 1982 or 2000 planning rules.

Response:

The Forest Service experience showed that the cost and unnecessary complexity of the planning process for the 1982 planning rule were the major causes of plan delays; this experience and the costing study indicated that the 2000 planning rule would exacerbate these concerns.

Comment:

Cost study and the cost-benefit analysis for 1982 planning rule. Some respondents said the cost study of the 2000 planning rule and the 2002 proposed rule should also have considered the 1982 planning rule and that the cost-benefit analysis should have considered the costs of the 1982 planning rule, which is the rule that was actually being implemented at the time of the study.

Response:

When the 2000 planning rule was developed, the costs to the Forest Service to implement it were unknown, while the costs associated with the 1982 planning rule were known. The cost-benefit analysis considered the costs of implementing the 1982 planning rule, the anticipated cost of implementing the 2000 planning rule, and the anticipated cost of implementing the 2002 proposed rule. The cost-benefit analysis used information from a business evaluation and costing study for the 2000 planning rule and the 2002 proposed rule. Although the 1982 planning rule was not included in the business evaluation, 1982 planning rule costs were included in the cost-benefit analysis using applicable costs from the business evaluation and historical cost information.

Comment:

Biological assessment. Some respondents commented that the rule should consider the “degree to which the action [the rule] may adversely affect an endangered or threatened species or their habitat that has been determined to be critical under the Endangered Species Act (ESA) of 1973.” They assert that a biological assessment of the 2002 proposed rule is needed to analyze its impacts on threatened and endangered species and that the agency must also consult on the 2002 proposed rule with the agencies responsible for implementing the ESA.

Response:

The ESA, as amended (16 U.S.C. 1531

et seq.

), requires consultation for actions authorized, funded, or carried out by a Federal agency. This final rule simply establishes a process for planning. The final rule is not an action having a direct effect on threatened or endangered species. The agency's obligations for conservation of threatened, endangered, and proposed species remains unchanged by this final rule; no consultation is required as part of the final rule's development.

Comment:

Planning certification. One organization commented that a nationally recognized third party should certify sustainability of National Forests.

Response:

The Department believes that the body of laws that govern management of NFS lands, the Forest Service Strategic Plan (Strategic Plan) required under the Government Performance and Results Act, the planning process itself, the expertise of career professionals, and the opportunity for public participation are adequate to ensure sustainability. Recognizing the point made by the respondent of the value of using recognized standards for forest management, this final rule requires units to develop and implement an EMS that conforms to ISO 14001 to manage natural resources and further the adaptive management approach advocated by other respondents. ISO 14001 is the internationally and nationally recognized standard for EMSs. The Forest Service understands that ISO 14001 is not itself a program for forest sustainability certification and does not contain specific natural resource provisions or requirements. Natural resource management requirements and priorities are properly set by Congress and open public participation, rather than by non-governmental standards setting bodies that are not directly answerable to the citizens of the United States.

ISO 14001 provides a well-accepted management process that will improve the Forest Service's ability to identify and meet the natural resource goals that are set by Congress in the NFMA and MUSYA and the Forest Service's commitments to sustainability, good science, and public involvement in a disciplined, systematic, and transparent manner.

Comment:

Benchmarks in the 1982 planning rule were useful. Several respondents said that benchmarks, such as those required in the 1982 planning rule, are useful and should still be required.

Response:

The agency's experience with the 1982 planning rule is that benchmarks have not been useful. In theory, benchmarks define the range of

production possibilities and ecosystem limits. In practice, however, they are difficult to develop due to limited data and uncertainty at the time plans are developed. However, the final rule does not prohibit benchmark analysis when it would provide meaningful information.

Comment:

Fix the 1982 planning rule. Several respondents thought the agency should consider analyzing and correcting the 1982 planning rule instead of developing an entirely new rule.

Response:

In many ways, the final rule reflects the 1982 planning rule. However, it makes improvements based on over 25 years of experience. The final rule includes the basic plan components set out in the 1982 planning rule, includes the provisions required by NFMA, and expands the public involvement requirements in the 1982 planning rule by requiring additional public involvement opportunities and emphasizing collaboration.

Comment:

The final rule should be subject to NEPA. Some respondents commented that adoption of the final rule is itself subject to the National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321-4346), and this rulemaking is a major Federal action having a significant effect on the human environment. Others questioned why previous rulemaking efforts were accompanied by environmental assessments and why this rulemaking was not.

Response:

The Department disagrees that this rulemaking is a major Federal action that has significant effects on the environment because the final rule, which sets out a process for developing plans, plan amendments, and plan revisions, does not have environmental effects. The Forest Service Handbook (FSH) 1909.15, section 31.12, paragraph 2, specifically provides that procedures for amending or revising land management plans may be categorically excluded from NEPA documentation.

The Forest Service produced an environmental assessment for the 2000 planning rulemaking efforts, but asserted at the time that it was going beyond the requirements of the law or policy. In the spirit of efficiency and streamlining inherent in this rulemaking effort, it seemed inconsistent to produce a NEPA document that was not required or useful. In summary, this final rule does not significantly affect the quality of the human environment and does not trigger NEPA obligations.

Comment:

Integration of planning process requirements. One respondent commented that the 2002 proposed rule listed many requirements and was unclear how these requirements were to be integrated into a plan.

Response:

The Department agrees that it was difficult to track the planning process steps in the 2002 proposed rule. This difficulty is one of the primary reasons the Department substantially reorganized the final rule.

Comment:

Research. One professional organization felt that the final rule should support “bold and imaginative” research on NFS lands.

Response:

The Department believes that the final rule does support research. The strong emphasis on monitoring, evaluation, and the Department's recognition of the value of environmental management systems produce an adaptable process where scientific experimentation is encouraged. Topics to be researched, however, are properly not set out in the final rule.

Comment:

Forest Service directives. Several respondents expressed concern about placing management direction in the Forest Service Directive System (Forest Service directives) and said that the Forest Service directives have not been subject to rulemaking procedures and do not have the full force and effect of law. They said that NFMA requires direction to be in the planning rule and they are concerned that use of directives will foster distrust and a confusing system of malleable and unenforceable guidelines.

Some respondents were concerned that placing direction in the Forest Service directives instead of in the final rule would reduce meaningful public participation. Others endorsed the idea of using the Forest Service directives for technical details rather than burden the final rule with these “how to” requirements. Some said that the Forest Service should retain greater flexibility and should be able to make decisions more cost effectively. Finally, some respondents said that they would like the Forest Service directives to be updated and published for public review concurrent with the planning rule development.

Response:

The Forest Service directives are the primary basis for the internal management and control of all programs and the primary source of administrative direction to Forest Service employees. The Forest Service Manual (FSM) contains legal authorities, objectives, policies, responsibilities, instructions, and guidance needed on a continuing basis by Forest Service line officers and primary staff to plan and execute assigned programs and activities. The Forest Service Handbook (FSH) is the principal source of specialized guidance and instruction for carrying out the direction issued in the FSM. Because the Forest Service directives are easier to change and more easily adopt the latest technology and science, they are the appropriate place for specific technical guidance.

As stated in the “Forest Service Directives” section in the preamble, the Forest Service is developing planning directives to provide overall guidance needed to use this final rule for Forest Service line officers, agency employees, and others. The Forest Service will provide the public with the opportunity to comment on planning directives as soon as they are prepared through notice in the

Federal Register

.

Comment:

Other issues. Some respondents commented on a variety of important issues such as roads, recreation, timber harvest, taxes, recycling, access, travel management, public safety, effects on spiritual values, land exchanges and purchases, fire protection, paying for restoration, job creation, certain kinds of motorized use, and roadless areas and they wanted those issues addressed in the final rule.

Response:

The Department agrees that the issues raised are important. However, the final rule is intended to guide how plans are developed, revised, and amended. The final rule provides the overall direction for planning. The final rule does not provide direction that is properly found in the plans themselves, or in the subsequent decisions regarding projects and activities on a particular national forest, grassland, prairie, or other comparable administrative unit.

Issues in Response to Specific Sections

Following are discussions and responses to public comments received on specific sections in 36 CFR part 219 during the Department's comment period on the 2002 proposed rule, including discussion on the differences between the 2002 proposed rule and the final rule and why these changes were made. The Department reorganized the final rule. As a result, some sections have new titles and/or a new designation as shown in the following table 1. In addition, the heading for subpart A in the 2002 proposed rule, “National Forest System Planning for Land and Resource Management Plans,” has been shortened and simplified in the final rule to “National Forest System Land Management Planning,” which is a term also used in the National Forest Management Act of 1976.

Table 1.—Section-by-Section Comparison of the 2002 Proposed Rule With the Final Rule

[2002 Proposed Rule]

Proposed section number and title

[Final Rule]

Final section number and title

§ 219.1 Purpose and applicability

§ 219.1 Purpose and Applicability.

[some direction moved to §§ 219.2 and 219.3]

§ 219.2 Nature and scope of a land and resource management plan

[redesignated at § 219.3; planning process requirements incorporated in § 219.7]

§ 219.2 Levels of planning and planning authority.

§ 219.3 Levels of planning and planning authority

[redesignated at § 219.2]

§ 219.3 Nature of land management planning.

§ 219.4 Decisions embodied in plans

[incorporated in §§ 219.7 and 219.12]

§ 219.4 National Environmental Policy Act compliance.

§ 219.5 Indicators of need to amend or revise a plan

[incorporated in § 219.6 or the Directive Systems.]

§ 219.5 Environmental management systems.

§ 219.6 Compliance with National Environmental Policy Act

[redesignated at § 219.4]

§ 219.6 Evaluations and monitoring.

§ 219.7 Amending a plan

[incorporated in §§ 219.2, 219.7 and 219.9]

§ 219.7 Developing, amending, or revising a plan.

§ 219.8 Revising a plan

[incorporated in §§ 219.2, 219.7, 219.8 and 219.9]

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

§ 219.9 Developing a new plan

[incorporated in §§ 219.2 and 219.7]

§ 219.9 Public participation, collaboration, and notification.

§ 219.10 Application of plan direction

[incorporated in § 219.8]

§ 219.10 Sustainability.

§ 219.11 Monitoring and evaluation.

[incorporated in § 219.6]

§ 219.11 Role of science in planning.

[2002 Proposed Rule]

Proposed section number and title

[Final Rule]

Final section number and title

§ 219.12 Collaboration, cooperation, and consultation

[incorporated in § 219.9]

§ 219.12 Suitable uses and provisions required by NFMA.

§ 219.13 Sustainability

[redesignated at § 219.10]

§ 219.14 The consideration of science in planning

[redesignated at § 219.11]

§ 219.15 Special designations

[incorporated in §§ 219.7]

§ 219.16 Determination of lands available for timber harvest and suitable for timber production

[redesignated at § 219.12]

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

§ 219.17 Limitation on timber harvest

[redesignated at § 219.12]

§ 219.14 Effective dates and transition.

§ 219.18 Plan documentation, maintenance, and availability

[incorporated in §§ 219.6, 219.7, and 219.9]

§ 219.15 Severability.

§ 219.16 Definitions.

§ 219.19 Objections to amendments or revisions of plans

[redesignated at § 219.13]

§ 219.20 Appeals of plan amendments in site-specific project decisions

[incorporated in § 219.13]

§ 219.21 Notice of plan decisions and effective dates

[incorporated in §§ 219.9 and 219.14]

§ 219.22 Transition

[incorporated in § 219.14]

§ 219.23 Definitions

[redesignated at § 219.16]

In this final rule, the Department reorganized sections of the 2002 proposed rule to improve clarity and reduce redundant material. The discussion of each section follows the numbering and titles adopted in the final rule, with references to where the text was located in the 2002 proposed rule. These new sections are ordered from general to specific. The first section introduces the reader to what is covered in the final rule and acknowledges the multiple-use and sustained yield productivity mandate of the Forest Service (remainder of § 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 (§§ 219.3 and 219.4), followed by the specific plan requirements (§§ 219.5-219.16).

Section 219.1—Purpose and Applicability

This section is coded the same in the final rule as it was in the 2002 proposed rule and introduces the reader to what is covered in the final rule, acknowledges the multiple-use and sustained-yield productivity mandate of the Forest Service, and directs the Chief of the Forest Service to establish planning procedures in the Forest Service directives. The 2002 proposed rule language is retained in the final rule, with some clarification regarding the overall goal to sustain the multiple uses of its renewable resources in perpetuity while maintaining the long-term productivity of the land.

Comment:

Overall goals of planning. There were varied comments on the overall goal of National Forest System (NFS) planning. Some said that the purpose of planning should reflect sustainability priorities and values. Some respondents stated that the best approach to the purpose and applicability section is to state that ecological sustainability is the desired condition to be achieved through land management. Some requested that the Forest Service's vision statement be changed to reflect a philosophy of preservation and sustainability and that the Forest Service not make management decisions based on a productivity paradigm. They stated that good decisions that restore the forest will be approved quickly without controversy and lawsuits, while bad decisions should be stopped and the decisionmaker held accountable. Others requested that the Forest Service give attention to how plans affect tourism and recreation.

Response:

The Department agrees that the mandate under the National Forest Management Act (NFMA) of 1976 and Multiple-Use Sustained Yield Act (MUSYA) of 1960 is not exclusively for production or for preservation because “multiple use and sustained yield” applies to all renewable resources, including outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness. These laws direct the management of all the various renewable resources of the lands so that they are used in the combination that will best meet the needs of present and future generations of Americans. Planning for NFS lands is not simple, and often there is little agreement on how these lands should be managed. While relying on the expertise of the Forest Service and taking into account the best available science, this final rule also provides an open process for public collaboration and participation.

Finally, other overarching planning guidance, such as the intent of planning to produce responsible land management and how a plan aids the agency to fulfill its stewardship responsibilities, is discussed in § 219.3.

Comment:

Multiple-Use Sustained-Yield Act (MUSYA). Some respondents pointed out that “multiple use” is part of the law and “ecosystem management” is not. Active forest management, they asserted, is necessary for forest health, maintaining biological diversity, and sustaining wildlife populations. These respondents requested that the final rule uphold what they believe are the active forest management principles mandated by the MUSYA. Further, they stated that timber harvesting is a goal of the MUSYA. They asked that the Forest Service provide a high-level sustained yield of renewable timber resources.

Some respondents requested that the Forest Service comply with MUSYA by managing lands according to what they call its “wood, water, wildlife, range, and recreation” formula. Others stated that the 2002 proposed rule violates the MUSYA requirement that NFS lands be used to best meet the needs of the American people. These respondents requested that emphasis be placed on recreation, aesthetics, air and water quality, species habitat, and ecosystem integrity, rather than natural resource development.

Response:

The final rule is faithful to NFMA, which requires the use of the MUSYA to provide the substantive basis for forest planning. As used in the final rule, sustainability embodies these Congressional mandates. The interrelated and interdependent elements of sustainability are social, economic, and ecological as described in § 219.10. The final rule sets the stage for a planning process that can be responsive to the desires and needs of both present and future generations of the Americans for the multiple uses of NFS lands. The final rule does not make choices among the multiple uses; it describes the processes by which those choices will be made as a preliminary step during development of plans. Later, the plan provides guidance for projects and activities.

Comment:

Forest planning versus project planning. Some respondents said that, unlike the 2000 planning rule, the 2002 proposed rule correctly focused only on the forest planning level and not on project planning.

Response:

The final rule retains the focus of the 2002 proposed rule on land management plans, while at the same time explaining on how plans and projects or activities are linked. Inclusion of an EMS in the land management framework provides a current scientific and informational foundation for the effective development and implementation of projects and activities. This framework ensures the continued relevance of the entire cycle of planning while maintaining the distinction between strategic planning and projects and activities. As previously noted, there will be a comprehensive table in the Forest Service directives that includes guidance on what direction is appropriate for the plan level, what decisions are properly made at the project or activity level, and what scheduling, prioritization, or analysis may take place in between.

Section 219.2—Levels of Planning and Planning Authority

This section was located in the proposed rule at § 219.3, but has been re-designated at § 219.2 as part of the overall reorganization of the final rule. This section describes planning in general, the levels of planning in the agency, and provides the basic authorities and direction for developing, amending, or revising a plan.

Comment:

Consistency of decisions across units and the Responsible Official. Some respondents were concerned that plans developed for individual units, each with a different Responsible Official, would not be consistent within larger areas. They said that the planning framework should be similar within each State or ecological region. Some said that without a regional context, the planning efforts of each forest or grassland would seem to take place in a vacuum. Some commented that plans needed to address species management plans and conservation agreements for wide ranging species in a consistent manner. Some commented that planning needed to use consistent consultation procedures with Tribes.

Several respondents commented on the provision that the Supervisor is usually the Responsible Official. Those in favor of this provision said that local Supervisors and staff are involved with actual hands-on project implementation and can better gauge success or failure of the planning process. Some said that Supervisors are close to the problem areas and are better able than Regional Foresters to seek solutions proactively and act upon them more quickly. These respondents felt that Supervisors are in a better position to facilitate citizen participation and negotiation between competing groups and to coordinate with local or State plans.

Those opposed to this provision were concerned that the local pressure for employment in forest products industry may outweigh the preservation of our national heritage if decisionmaking was left in local hands. They said that Supervisors are susceptible to political pressure or abuse of their authority. Still others said Supervisors sometimes do not have sufficient experience or expertise to make adequate plan decisions. Some said that local staff may not understand how to use inventory data, monitoring, or ecosystem or species evaluations and will simply copy what was done in other locations, causing endless escalation of planning efforts. Several respondents said that the current system has worked well with the Regional Forester as the Responsible Official.

Still others said that both national and local level staffs are necessary, because local staff cannot reasonably understand complex and overlapping policies, regulations, and laws, and national staff cannot efficiently study local conditions or gain local consensus. Finally, one respondent observed that if the planning process becomes so burdensome that local officials do nothing but plan, the system would once again break down. Some respondents wanted the final rule to clarify the conditions under which officials ranking higher than the Supervisor can act as the Responsible Official and to explain the types of decisions that these officials can make.

Response:

Supervisors currently coordinate across unit and Regional boundaries and will continue to do so because the evaluations described in §§ 219.6, 219.7, and 219.10 will often cross boundaries of adjacent NFS units. In addition, the final rule provides the option for higher-level officials to act as

the Responsible Official for a plan, plan amendment, or plan revision across a number of plan areas when consistency is needed. Additional procedural guidance will be placed in the Forest Service directives to ensure consistency as needed for Tribal or public consultation or for social, economic, or ecological resource related issues.

The Department intends the final rule be flexible in addressing different issues that may arise at different levels. Therefore, the Department does not believe that the final rule should provide the specific criteria for when a higher-ranking official becomes the Responsible Official.

The final rule retains the provision in the 2002 proposed rule for the Supervisor to be the Responsible Official because the Department believes that the Supervisor is the person most familiar with the resources and the people on their unit and is usually the most appropriate person to make decisions affecting those lands. This provision has not changed from the 2000 planning rule. Together, environmental management systems, science, monitoring, evaluation, interdisciplinary teams, public participation, objection process, and other laws and direction all aid in providing relevant information for the decisionmaker.

However, the final rule retains the provision in the 2002 proposed rule to allow higher-level officials to serve as Responsible Officials. Also, the final rule retains the provision of the 2002 proposed rule for an objection process in which the Reviewing Officer, who is the supervisor of the Responsible Official, must respond to objections before approval of a plan, plan amendment, or plan revision (§§ 219.13 and 219.16).

Comment:

Forest Service Strategic Plan. Some respondents observed that the 2002 proposed rule only acknowledges the existence of the Strategic Plan and does not provide guidance about using the Strategic Plan in new plans, plan amendments, or plan revisions.

Response:

The Strategic Plan provides an overall vision for management of the NFS. Land management plans, projects, and activities contribute to the vision and Responsible Officials approve them within the context of the Strategic Plan. The Department believes that decisions regarding how plans should use the Strategic Plan are best made at the national forest, grassland, prairie, or other comparable administrative unit level.

Section 219.3—Nature of Planning and Land Management Plans

The direction found in § 219.2 of the 2002 proposed rule has been redesignated at § 219.3 as part of the reorganization of the final rule. The direction found in § 219.3 of the 2002 proposed rule has been moved to § 219.2 of the final rule. Section 219.3 describes the nature of planning, and the force and effect of plans.

Comment:

Desired conditions as the purpose of planning. Some respondents believed that the final rule should establish desired conditions as the fundamental purpose of a plan and that this section of the final rule provides a clear statement of what a plan will do. Others said that the focus on desired conditions may be too narrow in light of the overall goals of multiple use and sustained yield. Others commented that the primary purpose should be to integrate human activities and ecological processes. Still others said that the term “desired conditions” was too susceptible to multiple interpretations and the purpose of a plan should be changed to “fulfill multiple-use objectives to ensure ecological sustainability.”

Response:

The Department concluded that, while “desired conditions” may drive how the other plan components are developed, “desired conditions” are not the “primary purpose” of a plan. The final rule has been changed at § 219.7(a) to clarify that plans also provide objectives, guidelines, suitability of areas, and special areas. There is further discussion of desired conditions in the preamble to the final rule in the section entitled “The strategic and adaptive nature of land management plans.” Plans are developed in light of the overall goal of managing the NFS lands as described in § 219.1, which is to sustain the multiple uses of its renewable resources in perpetuity while maintaining the long-term productivity of the land.

Comment:

Oil and gas leasing decisions. Some respondents felt that the 2002 proposed rule's emphasis on the programmatic nature of plans is contrary to the Federal Onshore Oil and Gas Leasing Reform Act (Oil and Gas Leasing Reform Act) of 1987 (Pub. L. 100-203, 101 Stat. 1330-256, 30 U.S.C. 181, 226, 226-3), Forest Service regulations, and the Mining and Minerals Policy Act of 1970 (30 U.S.C. 21a), which these respondents say, require project or activity decisions to be made in a plan.

Response:

The Forest Service directives will include guidance on making an initial availability decision for oil and gas leasing where there is the geologic potential for the occurrence of such resources or where there has been an expression of interest in leasing. There is no irretrievable or irreversible commitment of resources unless and until the Department of the Interior decides to issue a lease, giving certain exclusive rights to the lessee. Ground-disturbing activity and the final irreversible and irretrievable commitment of resources occur only when a decision approves a surface use plan of operations. Exploration or development of a lease requires additional environmental analysis, public disclosure, and specific project decisions by the appropriate regulatory agencies.

Because plans include plan components that describe which lands are generally suitable for consideration for energy and mineral leasing, they meet the intent of the Oil and Gas Leasing Reform Act, the Forest Service regulations for oil and gas resources, and the Mining and Minerals Policy Act. Specific project decisions to explore or develop a lease or mining claim are properly deferred to the project or activity level.

Comment:

Management zone authorities. Some respondents said that only counties have authority to create zoning ordinances. Others said that the zoning system creates a dominant or single use that is contrary to multiple-use.

Response:

The Forest Service is responsible for managing the lands of the NFS under NFMA and other laws. The terms “zoning” or “zone” were not in the text of the 2002 proposed rule, nor are they in the text of the final rule. The Forest Service is not issuing zoning ordinances. The preamble to the 2002 proposed rule described plans as creating “zones” in the forest. The Department used the term as a metaphor to help describe how plans may identify suitability of areas.

Section 219.4—National Environmental Policy Act Compliance

Compliance with NEPA was addressed in § 219.6 in the 2002 proposed rule. This section has been redesignated at § 219.4 as part of the overall reorganization of the final rule. This section of the final rule describes how planning will comply with NEPA.

Comment:

Applicability of NEPA, NEPA documentation, NEPA “significance,” and the nature of forest plans. Some respondents said that NEPA is not applicable to planning, noting that a plan should provide a framework for future project and activity decisionmaking and that the

disclosure of effects in plan-level NEPA documents is necessarily speculative; some said that plans do not significantly affect the environment. Others said that it might be more advantageous to make as many project-level decisions during the forest planning process as possible, because one NEPA analysis document could be used to make numerous decisions. Another said that failure to make decisions at the plan level would delay implementation of projects.

Some respondents supported categorically excluding plans from NEPA documentation, while others suggested that the criteria for categorically excluding plans were unclear, or that extraordinary circumstances in the plan area would always preclude the use of a categorical exclusion (CE). Some respondents thought the criteria for determining whether a CE is appropriate gives the Responsible Official too much discretion; others thought the degree of discretion appropriate. Some respondents indicated that they did not see the relationship between categorically excluding plans from NEPA documentation and achieving a more streamlined, adaptive planning system and holding the Forest Service accountable for its plans. Some interpreted categorically excluding plans from NEPA documentation as not complying with NEPA, rather than application of a provision of the NEPA regulations.

Many questioned how certain procedures, such as plan analysis and public involvement, would occur if a CE is used. Many people questioned how cumulative effects would be considered if a CE was used, and how monitoring would occur. Some wanted clearer and stronger direction for when a plan might be categorically excluded and when an environmental impact statement (EIS) would be required. Some respondents asked the Forest Service to distinguish between effects to the environment and effects to the human environment.

Respondents stated a number of reasons in support of an EIS for plans. Some respondents commented that plans, by their very nature, are controversial and therefore should require an EIS. Some commented that the requirement of the 1982 and 2000 planning rules to prepare an EIS for plans and revisions was an acknowledgment that plans are major Federal actions having significant effects on the environment. Others suggested that a substantial change in the existing situation on the ground or a substantial change to an existing plan would trigger an EIS. Some respondents said that the 2002 proposed rule misconstrued the role of a plan and thus the applicability of NEPA, saying that a plan is not just a simple framework, but rather creates changes on-the-ground that have environmental consequences. Some said that if a plan acts as a zoning document and authorizes increased motorized recreational uses, detailed analysis would have to occur in the plan analysis for all affected sites. Some respondents thought that the 2002 proposed rule differentiated between whether an EIS would be required for plan revisions, as opposed to new plan development, arguing that existing plans must need “significant” changes because conditions had changed since the plans were originally adopted.

However, some said that a better approach, instead of focusing on “zones,” would be to describe where in the plan area certain uses would have dominance over other uses. Others said that plans should set timber sale schedules; indicate what areas are available for logging, grazing, off-road vehicles use, and mineral extraction; and establish unique areas for protection, and that NEPA documentation would be necessary to make such decisions. They said that plans should establish measurable and enforceable standards and objectives. Others said that management activities must be analyzed on a site-by-site basis in a NEPA document for the plan.

Some respondents thought that in the absence of an EIS, the Forest Service would ignore information that would curb timber harvesting. Some thought that an EIS was needed to ensure ecological sustainability because adequate analysis needs a long-term view that considers science.

Some respondents commented that there is a history of case law that requires the Forest Service to follow not only NEPA, but also the Council on Environmental Quality (CEQ) regulations at 40 CFR parts 1500-1508. Some respondents raised a number of NEPA regulation requirements for “significance,” including the uncertainty of effects; the potential for establishing a precedent for future actions with significant effects; connectivity of actions; potential violations of Federal, State, or local environmental laws; consideration of the 10 “significance” factors in the CEQ regulations; and various other factors.

Response:

As described in the “Overview of the Final 2004 Rule,” land management plans under this final rule will be strategic and aspirational in nature. They will include decisions with on-the-ground effects only in extraordinary circumstances. If a plan includes on-the-ground decisions, it will not fall within the categorical exclusion being proposed in connection with this final rule. Otherwise, it will be categorically excluded from NEPA documentation due to the fact that the adoption or amendment of plans containing the five plan components described above is not a major federal action significantly affecting the environment. Simultaneously with this rulemaking, the Forest Service is proposing to revise its NEPA procedures to provide a new categorical exclusion for plan development, amendment, and revision. The Forest Service is seeking comment on the proposed categorical exclusion. Information developed in plan monitoring and evaluation, including those required by § 219.6, may be incorporated by reference in applicable NEPA documents and used as basis for the analysis needed for specific project and activity decisions. The final rule establishes a planning process that complies with NEPA in a manner appropriate for NFMA planning. The final rule does not preclude Forest Service participation in development of an EA or EIS in a joint planning effort with another Federal agency.

The Department emphasizes that project or activity decisions are generally not appropriate for inclusion in a plan level document; experience has shown that including project and activity decisionmaking in planning has actually delayed the planning and project and activity processes without improving natural resource management or public participation. Thus, by sharpening the distinction between planning and project and activity decisions, the Department expects both better planning decisions and more useful and timely environmental analysis for project and activity decisionmaking. Experience has shown the futility of attempting detailed project and activity proposals at the time of plan approval: the NEPA documentation for the proposed projects and activities would be largely speculative and unwieldy and would not account for unforeseen circumstances. Most of the document would be out of date by the time most of the projects or activities would be ready for decisionmaking.

Paragraph (d) of § 219.4 specifies that nothing in this rule alters the application of NEPA to proposed projects and activities. For example, a decision to allow motorized recreational use within the plan area may be made contemporaneously with, but not as a part of, a plan, but such decision can only be made upon the completion of the appropriate level of NEPA analysis.

The Department believes that, in general, an EIS does not need to accompany planning decisions made pursuant to NFMA, particularly given that plans under the final rule will contain five components merely setting forth desired conditions, objectives, guidelines, suitability of areas, and special areas. Until now, the agency's practice under NEPA has been to require programmatic EISs for plan development and revision, and EISs or EAs for proposed plan amendments. Because a plan, in most cases, is a framework for future action, EISs prepared at the plan level had no proposed “action” on which to focus. Similarly, disclosure of effects of a plan included discussions of possible environmental impacts from an array of potential projects and activities whose dimensions and details were far from certain and ranged over a 15-year period for implementation without an ability to predict unforeseen natural events. To conduct a meaningful evaluation of environmental impacts, and to provide helpful information to decisionmakers, the agency must examine the details of proposed activities, the extent of those activities, the specific location of those activities, the environmental conditions at the site when the activities are proposed, past and reasonably foreseeable future actions that might relate to the cumulative impacts of the proposed activities, and reasonable mitigation measures, if appropriate. After 25 years of experience, the Department now knows this information is not generally available at the time of plan approval, and that to provide such specific information at the time of adopting or amending a plan is an inefficient use of resources.

Furthermore, between the time of plan evaluation and the design of projects, the possibilities change. A plan EIS disclosure of potential cumulative impacts and other unit-wide information are speculative to begin with, and therefore, quickly become outdated. The agency has found that a plan EIS typically does not provide useful, current information about potential cumulative impacts at the time of project or activity proposals; therefore, relying upon, or “tiering” to, a plan EIS has not proved to be effective over the long term.

Under the final rule, approval of a plan, plan amendment, or plan revision creates the framework that will lead to projects and activities for which EISs, EAs, or reliance on CEs will be necessary. Accordingly, the Department believes it is appropriate at the time of plan development, plan amendment, or plan revision to begin assembling appropriate data and other information to be used in those EISs, EAs, and CEs. Much of this information should come from the environmental management system processes described in the other parts of this rule. However, the assembling of data and other information that will be useful in making future project or activity decisions does not itself constitute a proposal for major Federal action. Thus, the process of implementing NEPA is a continuum that begins when the planning framework is established, and moves through scoping for specific project and activity decisions, culminating in a NEPA document for the project and activity proposals.

Moreover, the final rule does provide for extensive analysis, as set out in §§ 219.6 and 219.7. A comprehensive evaluation must be done for plan development and revisions and updated at least every five years (§ 219.6(a)). This evaluation will provide a broad overview of current conditions and trends relevant to the plan area. This overview, along with information from annual evaluations and other sources, will be part of the continually updated Plan Documents or Set of Documents that must be considered in project analysis. These Plan Documents or Set of Documents will provide a better context than had been provided in plan EISs for project cumulative effects disclosures; therefore, the Forest Service will make better informed management decisions at the time it decides to act. The Plan Documents or Set of Documents required by the final rule will make it easier to propose, approve, and carry out projects.

Conditions can and do change between the broad “cumulative effects” analysis the agency has done for plan EIS's and a later, actual project or activity decision. Fires can occur, adjacent landowners can do something that was not predicted, and the agency can be doing actions it had not anticipated at the time it developed the plan and not undertake projects or activities it thought it would. Under this final rule, the Forest Service uses monitoring and the results of the comprehensive evaluation with the most up-to-date site-specific information to provide a basis for the consideration of cumulative effects for projects and activities. Again, cumulative effects like project or activity specific impacts are best studied in the context of a concrete proposal.

The process outlined in the final rule retains and improves upon the important planning elements the public has come to expect, such as public involvement; taking into account the best available science; integrated analysis of social, economic, and ecological systems; monitoring and evaluation. An EIS is not necessary to ensure that the public is given an opportunity to participate in the planning process, or that the agency obtains high quality information, considers the best available science, and considers the long-term view. Under the final rule, the opportunities for the public will be greater than those opportunities required by regulation for an EIS, because the final rule mandates public involvement opportunities in developing and updating the comprehensive evaluation report, establishing the components of the plan, and designing the monitoring program. Additionally, by requiring an EMS, combined with the procedures in the Forest Service directives, the final rule provides for agency accountability through impartial and objective audits, management reviews, and public disclosure of the results of those reviews.

Plans under this final rule will not contain final decisions that approve projects and activities except under extraordinary circumstances. Guidelines, which are intended to provide some direction in how to implement decisions, have no influence until they are applied in a project or activity. The identification of an area as generally suitable for a use is not a commitment or decision approving projects and activities. Any proposed use in an area identified as suitable for that use must be separately considered under agency NEPA procedures at the time of a project decision. Desired conditions and objectives are not commitments or final decisions approving projects and activities in the plan area. Special areas may be designated by statute or through plan development, plan amendment, or plan revision or a separate administrative process under NEPA and other applicable laws. In summary, none of these component parts of a plan is permanent, or final, in that all are subject to reconsideration and change through plan amendment or plan revision at any time. Should a Responsible Official nevertheless choose to include projects or activities within the context of a plan, plan revision, or plan amendment, extraordinary circumstances may be present such that an EIS or an EA may be required.

From more than 25 years of NFMA planning experience, the Department concluded that it can most efficiently and appropriately evaluate and analyze the environmental consequences of an

array of potential projects and activities when those matters reach the status of a proposal. Making planning a more continuous process, not dependent on environmental impact statements that only give a prediction at one point in time, will actually make plans more relevant to projects by collecting, evaluating, and monitoring data on an ongoing basis, thereby maintaining a current base of information that Forest Service can use at the project or activity level.

Comment:

Alternative or option development. Some respondents questioned how alternatives—when developing plans, amendments, or revisions—would be considered if plans were categorically excluded from NEPA documentation. Others emphasized the importance of forming effective partnerships with government, private landowners, industries, and others to promote consensus and reduce the need for numerous alternatives. Some expressed concern that the agency would consider only its proposed plan and not the comments on, or alternatives to, the plan. Others asserted that NEPA requires a full range of alternatives, while others said only two alternatives are needed.

Response:

Requirements for how options may be considered while developing plans, amendments, or revisions are found in § 219.7(a)(6) of this final rule. The Department recognizes that people have many different ideas about how NFS lands should be managed and that the public should be involved in determining what the plan components should provide. Therefore, the final rule provides for participation and collaboration with the public at all stages of plan development, plan amendment, or plan revision. The Responsible Official shall work closely with the public to develop the proposed plan, plan amendment, or plan revision. Key steps in development of the proposed plan shall be documented in the plan set of documents, which will be available to the public. The proposed plans that the Forest Service presents for public comment shall be jointly and collaboratively developed with the public.

Section 219.5—Environmental Management Systems

This section has been added to the final rule to address public comments regarding how planning relates to adaptive management. Adaptive management was addressed in § 219.11, Monitoring and Evaluation, in the 2002 proposed rule. Both the proposed and final rule define adaptive management as an approach to natural resource management where actions are designed and executed, and effects are monitored for the purpose of learning and adjusting future management actions, which improves the efficiency and responsiveness of management. The “Overview of the Final 2004 Rule” section of the preamble provides a detailed description of the provisions of this section as developed through the response to public comments.

The Department has chosen to require each administrative unit to carry out an EMS based on standards developed by the International Organization for Standards (ISO). Each administrative unit's EMS will serve as a framework for land management planning, adaptive management and, at the project level, provide information for EISs, EAs, or CEs where required by NEPA. The EMS will provide a structured and documented process for evaluating each unit's environmental conditions, setting objectives to meet the unit's legal and public obligations, developing programs and procedures for managing the unit under the land management plan, monitoring and measurement procedures to collect and track information about environmental conditions, and corrective action and review processes to provide a “feedback loop” to push for continual improvement.

Section 219.6—Evaluations and Monitoring

This section has been organized to specify requirements for plan evaluation and plan monitoring. Monitoring and evaluation requirements were found in §§ 219.4(a)(6) and 219.11 of the 2002 proposed rule. The final rule allows the monitoring program to be changed with administrative corrections and public notification, instead of amendments, to more quickly reflect the best available science and account for unanticipated changes in conditions. Changes in a monitoring program will be reported annually, and the Responsible Official has flexibility to involve the public in a variety of ways in developing any changes to the program. Discussions of both evaluation and monitoring are found in the “Overview of the Final 2004 Rule” section of the preamble.

One clarification regarding the requirement at § 219.6(b)(2)(i) may be helpful. This paragraph requires that the plan monitoring program shall monitor to determine the effects of management on the productivity of the land. The term “productivity” refers to all of the multiple uses, such as outdoor recreation, range, timber, watershed, and wildlife and fish. Use of this term is broader than just commercial uses.

Comment:

General. Several respondents supported the monitoring and evaluation provisions of the 2002 proposed rule, because they observed that the 2002 proposed rule provided the appropriate level of monitoring and evaluation. Others thought the 2002 proposed rule gave too much flexibility to the Responsible Official, weakening monitoring and evaluation requirements. Some respondents wanted the requirements from the 2000 planning rule retained because they felt the 2002 proposed rule did not have sufficient requirements to mandate adequate monitoring and evaluation.

Others thought the Responsible Official was given the appropriate level of flexibility to allow for alteration of monitoring and evaluation strategies and methods. Still others thought the 2002 proposed rule had burdensome requirements that needed to be relaxed. One person suggested the Forest Service establish an independent division to ensure monitoring compliance. Some suggested specific monitoring they believed was needed.

Several respondents submitted suggestions about how the Forest Service evaluates the information obtained from monitoring. One respondent stated that the use of evaluation is fuzzy and needs clarification. Others suggested that evaluation could be used to indicate the need for a new use of the NFS. Another cautioned that any evaluation of the information obtained from monitoring should include an estimate of error reliability of any apparent trend to preclude premature or ill-advised corrections.

Response:

The Department believes that monitoring and evaluation are a critical and necessary part of the planning process. As the 2002 proposed rule provided, the final rule requires the Responsible Official to provide for monitoring of degree to which on-the-ground management is maintaining or making progress toward the desired conditions and objectives for the plan (§ 219.6(b)(2)). The Department has strengthened this section in the final rule by adding a requirement for comprehensive evaluation of the area of analysis (§ 219.6(a)(1)) at no longer than 5-year intervals and conducting an evaluation when amending a plan (§ 219.6(a)(2)). In addition, the use of an EMS with impartial and objective audits will address both the concerns expressed in the comments for local flexibility and those for agency accountability and compliance. The Department has also added a provision that the monitoring program take into account the best available science to

improve the evaluation process. These evaluations are an integral part of answering key planning questions such as the state of social, economic, and ecological conditions and trends, and the need for an amendment or revision.

Comment:

Involvement of science. Several respondents wanted assurance that science would be involved in monitoring.

Response:

The Department believes that the taking into account the best available science is important in monitoring and in evaluating results. The Department added the provision that the monitoring program shall take into account the best available science at § 219.6(b). In addition, the final rule at § 219.11 retains the intent of the 2002 proposed rule (§ 219.14) that requires the consideration of best available science during planning, including the development and implementation of monitoring program.

Section 219.7—Developing, Amending, or Revising a Plan

The provisions in §§ 219.4, 219.7, 219.8, 219.9, 219.15, and 219.18 of the 2002 proposed rule have been combined at § 219.7 of the final rule so that procedural requirements are located in one section. This section includes requirements for plan components; planning authorities; plan process, including review of areas with potential for wilderness recommendation; administrative corrections; Plan Document or Set of Documents; and the plan approval document. The detailed public participation, collaboration, and notification requirements found in §§ 219.7, 219.8, and 219.12 of the 2002 proposed rule have been moved, with additional detail, and consolidated at § 219.9 in the final rule to improve clarity and readability.

Section 219.7(b) provides for administrative corrections. The final rule, at § 219.7(b)(5), adds a new category for administrative corrections to include changes in the Plan Document or Set of Documents, except for changes in the plan components. The Department made this addition because, although an emphasis of the final rule is to allow for continual inclusion of new science and other information into the Plan Document or Set of Documents, the 2002 proposed rule included no specific vehicle for allowing this supplementation and change to occur. Changes to the Plan Document or Set of Documents may also occur when outdated documents are removed, for example, when a new inventory replaces an older one. The addition of this new administrative correction category fills this procedural gap.

Comment:

Desired conditions. Some respondents said that it is unclear what the desired conditions for the plan area will be and who makes the decision on which desired conditions will be included in the plan. Some said specific substantive requirements should be established, such as requiring desired conditions to mimic natural conditions, or employment of a policy such as “limits of acceptable change.”

Response:

Desired conditions are one of the plan components (§ 219.7(a)) developed through public collaboration and participation. The Responsible Official is the decisionmaker for the plan. The Responsible Official will consider public participation, the comprehensive evaluation, monitoring information, legal requirements, and assessments in deciding on desired conditions for the plan area. The final rule at § 219.7(a) clarifies that desired conditions are the “social, economic, and ecological attributes” toward which the plan is to be directed.

Because desired conditions are a component of a plan, but not necessarily the primary focus of a plan, the final rule removes the words “primary focus of a plan.” As it will for all plan components, the public will have an opportunity to comment on all aspects of the proposed plan, including desired conditions (§ 219.9), and may object to the plan in whole or in part (§ 219.13) if they have concerns. A discussion of plan components is found in the “Overview of the Final 2004 Rule” section of the preamble.

Comment:

Objectives. Some respondents said that plan objectives must be clear and measurable. They said that plans should provide for a good faith commitment to accomplish a plan's multiple-use and sustained-yield objectives. Others said that it may be counterproductive to write simple objectives when many factors lead to complexity in their implementation. Some said that the 2002 proposed rule lacks policy direction concerning the extent to which investment in resource management activities may support different outputs. Others said the push for clear objectives, where there is no clear science, will lead to direction that is meaningless and simply become a tool of a political agenda. Others said the final rule should explicitly provide for forest plan objectives to be established in accordance with guidelines in the Forest Service directives.

Response:

The final rule retains the provision of the 2002 proposed rule stating that objectives are measurable outcomes intended to guide management toward reaching desired conditions. Objectives can be thought of as a prospectus of outcomes, based on past performance and estimates of future trends. Objectives should be measurable so progress toward attainment of desired conditions can be determined. Variation should be expected due to changes in environmental conditions, available budgets, and other factors. In addition, the Department added the concept of maintenance of desired conditions to the description of objectives, because the desired conditions may already have been met and only need to be maintained.

Comment:

Standards. One respondent commented that clear, measurable standards are important. One respondent identified the intent of the proposed regulations to simplify, clarify, and minimize the standards. Some said that only measurable standards allow the public to know what the Forest Service is doing. Some said that NFMA requires enforceable standards and that judicial review would be more difficult without measurable standards. Some said that standards should be defined as “requirements” instead of “limitations.” Others wanted to make clear that standards can be forest-wide or area-specific.

Response:

As explained in the “Overview of the Final 2004 Rule” section of the preamble, the Department has replaced the component of “standards” with “guidelines.” The Department believes requiring mandatory standards are too restrictive; however, guidelines will be used and, in many cases, will be measurable. Policy contained in the Forest Service directives will provide the detailed direction for writing plan guidelines. The Forest Service directives will provide criteria for guidelines, requiring they be written clearly, so decision makers and the public know when a project is consistent with the guidelines.

While the final rule will not require standards, the public shall be kept informed about what the Forest Service is doing by procedures such as: (1) Providing opportunities for the public to collaborate and participate (§ 219.9(a)); (2) opportunities to object before approving plans, plan amendments, or plan revisions (§ 219.13(a)); and (3) public notice requirements for land management planning (§ 219.9(b)), NEPA procedures for projects and activities, and annual evaluation of monitoring results. The final rule also allows for forest-wide and area-specific guidelines.

Comment:

Special designations. Some respondents suggested that the final rule should contain language that addresses presidential and congressionally designated areas. Respondents stated that the 2000 planning rule gives the Responsible Official too much discretion when evaluating roadless areas for special designation. Some said the final rule should provide standards for the Responsible Official to follow when evaluating and considering special designations of the roadless areas. Some said these standards should ensure that evaluations of roadless areas are completed, taking into account the best available science, and focus on ecological sustainability. One group wanted to ensure that special designations are not determined in a vacuum favoring only ecological values, and the group said that social and economic values must also be addressed. Others felt the effects of special designations should be considered for recreational access and mirror the increasing demand for recreation. Some said the final rule should require that plans set specific goals, such as an amount or a percentage of the forest for special area recommendations.

Response:

Special area identification is an integral part of the planning process. The proposed and final rules provide for the identification of special areas in the plan. After reviewing comments, and consideration of the Forest Service's experience with planning over the past 25 years, the Department concluded that guidance about special area concerns, such as roadless area evaluations or social and economic values, are more properly included in the Forest Service directives. Provisions in directives can be more extensive and can be more easily changed as the agency learns how to improve its processes and as new scientific concepts become available.

Comment:

Specific uses. Many respondents suggested that the final rule identify specific uses that should be included in plans. One person suggested that the final rule provide for large recreational gatherings. Another said that livestock grazing should be specifically discussed.

Response:

Plans establish desired conditions, which include recognition of the type of societal benefits that the NFS provides. The final rule begins with a presumption that lands are available for multiple uses and that plans will identify suitable uses that best fit the local situation.

Comment:

Need for amendment or revision. Several respondents were concerned about the discretion the 2002 proposed rule gives the Responsible Official in determining when a plan amendment or plan revision is needed. Some felt the final rule needs clear direction on when to propose a plan amendment or plan revision. Of equal concern was the discretion given to the Responsible Official to decide which issues would be considered in an amendment or revision. They felt that without specific requirements resources, such as flora and fauna, would not be analyzed for every plan amendment or plan revision. One respondent did not want plans to be revised or amended after disturbance events, such as wildfire, insect epidemics, and windstorms. Others supported limiting the analysis required in amending or revising a plan.

Response:

The final rule provides the Responsible Official discretion about whether or not to initiate a plan amendment or plan revision (subject to the NFMA requirement that the plan be revised at least every 15 years) and what issues to consider (§ 219.7(a)(4)). The evaluations required by the final rule will document current conditions and trends for social, economic, and ecological systems within the area of analysis (§ 219.6(a)) and aid the Responsible Official in determining if a plan amendment or plan revision is needed and which issues need to be considered. The Responsible Official may amend or revise the plan based on monitoring and evaluation, as well as other factors. The Department believes that the efficiencies of the final rule would be reduced if the final rule identified specific issues that must be considered for every plan revision or plan amendment.

Comment:

Interim amendments. Many respondents did not support interim amendments and suggested this provision be removed or at least have additional parameters added. Others supported this concept.

Response:

The final rule allows for an efficient plan amendment process. Therefore, there is no need for interim amendments. Accordingly, the interim amendment provision has been removed from the final rule.

Comment:

Significant plan amendments. Many respondents were concerned with how “significance” is determined for an amendment. Some wanted significance described, while others suggested certain factors to determine significance. Others wanted to understand the connection between an EIS and NFMA significance with respect to the 2002 proposed rule's provision that every amendment prepared with an EIS would be deemed a significant amendment.

Response:

The Department decided not to distinguish between “significant” and “non-significant” amendments. The Department is not requiring an EIS with any plan amendment. The final rule treats all amendments as “significant,” except when an amendment would relate only to a proposed project or activity. Plan amendments prepared under the procedures described in this final rule must have a 90-day comment period (required for significant amendments by NFMA) and must have an objection opportunity. Plan amendments associated with a proposed project or activity will follow the NEPA documentation required for the project or activity, as well as notice and comment requirements for the project or activity.

Comment:

Roadless area evaluation. Some respondents felt that under the 2002 proposed rule, the requirements for evaluation and protection of the roadless areas' ecological values had been eliminated, allowing the Responsible Official to redefine roadless area boundaries upon a determination of circumstances deemed necessary and appropriate. Some felt this language was too broad, deferred too much authority to the Responsible Official, and would eliminate many lands from consideration for new wilderness, though they still met the physical requirements of a roadless area. Others supported the requirement that the Responsible Official review and validate the maps of inventoried roadless areas and then adjust them as necessary and appropriate.

Response:

The Department has moved this provision from § 219.15(b)(3) in the 2002 proposed rule to § 219.7(a)(5)(ii) in the final rule. Because the 2002 proposed rule caused confusion concerning roadless area evaluation, the Department has changed the wording to describe these areas from “inventoried roadless areas” to “lands possessing wilderness characteristics.” The final rule at 219.7(a)(5)(ii) directs Responsible Officials to ensure that, unless otherwise provided by law, all NFS lands possessing wilderness characteristics be considered for recommendation as potential wilderness areas during plan development or revision. Policy and guidance contained in the Forest Service directives will provide the detailed direction for the identification of these areas and the evaluation process to follow in carrying out this requirement.

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

This provision, found in § 219.10 in the 2002 proposed rule, has been redesignated at § 219.8 as part of the overall reorganization of the final rule. This section of the final rule describes how and when new plans, plan amendments, or plan revisions are applied to new or ongoing projects or activities. The general outline and intent of this section in the final rule is similar to the corresponding section of the 2002 proposed rule. However, § 219.10(e) of the proposed rule addressing testing and research projects was removed from the final rule because the acknowledgement that these projects are subject to all applicable laws is not necessary. While the 2002 proposed rule required project or activity consistency with standards, the final rule requires consistency with the applicable plan.

Comment:

Valid existing rights. Respondents were both for and against the 2002 proposed rule provision that new plan direction is subject to valid existing rights. Those in favor supported respecting these rights. Those against said that protection of ecological conditions should take precedence.

Response:

The final rule at § 219.8(a)(2) is consistent with NFMA (16 U.S.C. 1604(i)) which specifies that any revision in present or future permits, contracts, and other instruments made pursuant to the act shall be subject to valid existing rights.

Comment:

Consistency with the desired conditions. Several respondents commented that under the 2002 proposed rule, projects do not need to be consistent with standards; they only have to disclose the project's relationship with desired conditions. Some said that NFMA requires all projects to be consistent with the plan and said that if desired conditions are in the plan, projects need to be consistent with them. They also said the public will be disappointed to find out that plans have no “teeth.” Others were concerned that the 2002 proposed rule emphasizes desired conditions and objectives, which by definition may never be attained.

Response:

NFMA (16 U.S.C. 1604(i)) requires that resource plans, permits, contracts, and other instruments for the use and occupancy of NFS lands be consistent with land management plans. In response to public comment, § 219.8(b) was added to the final rule to describe how projects or activities developed after approval of the plan must be consistent with applicable plan components. The Department removed two provisions: (1) the provision limiting consistency to standards and (2) the provision requiring disclosure of the project's relationship to desired conditions.

In the final rule, if an existing or proposed project or activity is not consistent with the applicable plan, the Responsible Official must take one of the following actions: (1) Modify the existing or proposed project; (2) reject the proposal or terminate the existing project; or (3) amend the plan. The Department changed the final rule so the wording conforms to 16 U.S.C. 1604(i).

Comment:

Consistency with standards. Several respondents commented on the requirements that projects or activities not consistent with standards be either modified or rejected, or the plan be amended. Some said projects should not be exempted from standards, while others said that the final rule should specify that changes must be considered within the context of NEPA.

Response:

The Department changed the final rule so that projects or activities must be consistent with the applicable plan. A project or ac

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