National Forest System Land and Resource Management Planning
Federal RegisterApr 13, 1995
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SUMMARY: The Forest Service requests comment on a proposed rule to
guide land and resource management planning for the 191-million acre
National Forest System. This proposed rule, which would revise and
streamline the existing planning rule, describes the agency's framework
for National Forest System resource decisionmaking; incorporates
principles of ecosystem management into resource planning; and
establishes requirements for implementation, monitoring, evaluation,
amendment, and revision of forest plans. The intended effect is to
simplify, clarify, and otherwise improve the planning process; reduce
burdensome and costly procedural requirements; and strengthen
relationships with the public and other government entities.
DATES: Comments must be submitted in writing and received by July 12,
1995.
The agency will provide briefings to assist the public in
understanding the proposed rule on April 24 at the locations and times
listed under Supplementary Information.
ADDRESSES: Send written comments to Director, Ecosystem Management
(1920; 3 CEN), Forest Service, USDA, P.O. Box 96090, Washington, DC
20090-6090.
The public may inspect comments received on this proposed rule in
the Office of the Director, Third Floor, Central Wing, Auditor's
Building, 14th and Independence Avenue, SW, Washington, DC, between the
hours of 8:30 a.m. and 4 p.m. Those wishing to inspect comments are
encouraged to call ahead (202-205-1034) to facilitate entry into the
building.
Briefings will be held at the addresses set out under Supplementary
Information of this notice for proposed rulemaking.
FOR FURTHER INFORMATION CONTACT: Ann Christensen, Land Management
Planning Specialist (202-205-1034).
SUPPLEMENTARY INFORMATION:
Public Briefings and Locations
The Forest Service will hold public briefings on April 24 in the
following cities at the addresses and times shown:
1. Washington, DC--April 24, 1995, 9:30 a.m. to 11:30 a.m., Crystal
City Marriott, 1999 Jefferson Davis Highway, Arlington, Virginia,
22202.
2. Missoula, Montana--April 24, 1995, 9 a.m. to 11 a.m., 4B's Inn
and Conference Center, 3803 Brooks Street, Missoula, Montana, 59801.
3. Denver, Colorado--April 24, 1995, 6:30 p.m. to 8:30 p.m., USDA
Forest Service, Rocky Mountain Regional Auditorium, 740 Simms Street,
Golden, Colorado, 80401.
4. Grand Junction, Colorado--April 24, 1995, 6:30 p.m. to 8:30
p.m., Grand Junction Ranger District, 764 Horizon Drive, Grand
Junction, Colorado, 81506.
5. Durango, Colorado--April 24, 1995, 6:30 p.m. to 8:30 p.m., San
Juan Forest Supervisor's Office, 701 Camino del Camino, Durango,
Colorado, 81301.
6. Chadron, Nebraska--April 24, 1995, 6:30 p.m. to 8:30 p.m.,
Nebraska National Forest Supervisor's Office, 125 N. Main Street,
Chadron, Nebraska, 69337.
7. Rapid City, South Dakota--April 24, 1995, 6:30 p.m. to 8:30
p.m., Pactola Ranger District Office, 800 Soo San Drive, Rapid City,
South Dakota, 81506.
8. Casper, Wyoming--April 24, 1995, 6:30 p.m. to 8:30 p.m., Holiday
Inn, 300 ``F'' Street, Casper, Wyoming, 82601.
9. Albuquerque, New Mexico--April 24, 1995, 9 a.m. to 11 a.m.,
Southwestern Regional Office, 517 Gold Avenue, S.W., Albuquerque, New
Mexico, 87102.
10. Phoenix, Arizona--April 24, 1995, 9 a.m. to 11 a.m., Tonto
National Forest Supervisor's Office, 2234 East McDowell Road, Phoenix,
Arizona, 85010.
11. Boise, Idaho--April 24, 1995, 2 p.m. to 4 p.m., National
Interagency Fire Center, Training Building Auditorium, 3833 Development
Avenue, Boise, Idaho, 83705.
12. Salt Lake City, Utah--April 24, 1995, 2 p.m. to 4 p.m., Federal
Building, Room 2404, 125 South State Street, Salt Lake City, Utah,
84138.
13. Sacramento, California--April 24, 1995, 1 p.m. to 3 p.m.,
Radisson Hotel Sacramento, 500 Leisure Lane, Sacramento, California,
95815.
14. Portland, Oregon--April 24, 1995, 9 a.m. to 11 a.m., USDA
Forest Service Pacific Northwest Regional Office, Robert Duncan Plaza,
333 S.W. First Avenue, Portland, Oregon, 97208.
15. Atlanta, Georgia--April 24, 1995, 12:30 p.m. to 2:30 p.m., USDA
Forest Service Southern Region Office, 1720 Peachtree Road, N.W., room
199, Atlanta, Georgia, 30367.
16. Brookfield, Wisconsin--April 24, 1995, 7 p.m. to 9 p.m.,
Brookfield Marriott Hotel, 375 South Moorland Road, Brookfield,
Wisconsin, 53005.
17. Juneau, Alaska--April 24, 1995, 1 p.m. to 3 p.m., Alaska Native
Brotherhood Hall, 320 Willoughby Avenue, Juneau, Alaska, 99801.
Public comments will not be taken at these briefings, which will
consist of video presentations prepared by the Chief's Office. As of
May 1, one copy of this video material will also be available at the
Chief's Office, each Regional Office, each Forest Supervisor's Office,
each Research or Experiment Station, the Forest Products Laboratory,
the Northeastern Area State and Private Forestry Office, and the
International Institute of Tropical Forestry. The video may be borrowed
by interested parties on a reservation basis by contacting their local
Forest Service office or calling the telephone number listed under FOR
FURTHER INFORMATION CONTACT earlier in this notice.
Background
The Forest Service is responsible for managing the land and
resources of the National Forest System. It is headed by the Chief of
the Forest Service and includes 191 million acres of lands in 42
States, the Virgin Islands, and Puerto Rico. The National Forest System
consists of 155 National Forests, 20 National Grasslands, and various
other lands under the jurisdiction of the Secretary of Agriculture.
Under the Multiple-Use, Sustained-Yield Act of 1960 (16 U.S.C. 528) and
the National Forest Management Act of 1976 (16 U.S.C. 1600), these
lands are managed for a variety of uses on a sustained basis to ensure
a continued supply of goods and services to the American people in
perpetuity.
The Forest and Rangeland Renewable Resources Planning Act of 1974
(RPA) (88 Stat. 476 et seq.), as amended by the National Forest
Management Act of 1976 (90 Stat. 2949 et seq.; 16 USC 1601-1614)
(hereafter, NFMA), specifies that land and resource management plans
shall be developed for units of the National Forest System. Regulations
to implement NFMA are set forth at 36 CFR part 219.
A forest plan has been approved for every National Forest except
the Klamath, Shasta-Trinity, Mendocino, and Six Rivers National
Forests, all located in California. It remains the agency's intent that
these National Forests complete their plans under the requirements for
forest plan development described by the existing regulation, adopted
September 30, 1982 (47 FR 43026), as amended June 24, 1983 (48 FR
29122), and September 7, 1983 (48 FR 40383), and as set out in the
[[Page 18887]]
Code of Federal Regulations as of July 1, 1993.
During the 18 years since enactment of NFMA, much has been learned
about planning for management of National Forest System lands. The
original vision of NFMA raised many varied expectations, some of which
remain unfulfilled. Although forest planning efforts to date have
produced notable accomplishments in addressing forest management issues
and fostering public participation in public land management, many
controversies linger. For each National Forest, difficult resource
management choices must be made among competing interests, often where
there are no universally accepted answers. In such a setting, forest
planning cannot be expected to revolve all differences; however,
improvements in forest planning requirements and procedures can help
better focus the issues and choices and lead to better, more informed
decisions.
This proposed rule is the culmination of a systematic and
comprehensive review of forest planning rules and processes. The nature
of this review and its findings were described in detail in the Advance
Notice of Proposed Rulemaking published on February 15, 1991 (56 FR
6508), along with a history of forest planning and an overview of the
existing planning rule.
Critique of Land Management Planning
Of particular note in development of this proposed rule is the
Critique of Land Management Planning. The Forest Service initiated this
comprehensive review of its land management planning process in March
1989. Conducted with the help of The Conservation Foundation, the
Department of Forestry and Natural Resources at Purdue University, and
others, the purpose of the Critique was to document what had been
learned since passage of the National Forest Management Act and to
determine how best to respond to the planning challenges of the future.
The Critique involved over 3,500 people both within and outside the
Forest Service. Workshops and interviews were conducted involving over
2,000 people who had participated in or had responsibilities for forest
planning. These participants represented a broad cross-section of all
those who were involved in planning, including members of the general
public, interest groups, representatives of other agencies, elected
officials, representatives of Indian tribal governments, Forest
Supervisors, Regional Foresters, resource specialists, and members of
interdisciplinary planning teams. Additionally, there were written
comments received from 1,500 interested people. The Critique was
completed in May 1990. The results of the Critique are documented in a
summary report, ``Synthesis of the Critique of Land Management
Planning'' (Vol. 1) and 10 other more detailed reports. In the interest
of economy and brevity, the findings of the Critique and other material
are not repeated here but should be considered as the foundation and
background for this proposed rule.
Advance Notice of Proposed Rulemaking
An Advance Notice of Proposed Rulemaking was published on February
15, 1991 (56 FR 6508). The public comment period closed May 16, 1991.
The Advance Notice of Proposed Rulemaking included preliminary
regulatory text completely revising the existing regulation, based
largely on the findings of the Critique. Four public informational
meetings were held to stimulate public interest in and comment on the
proposal in the Advance Notice and to assist the public in
understanding the ideas presented in the Notice. Meetings were held as
follows: Washington, DC, February 26, 1991; Portland, Oregon, April 8,
1991; Denver, Colorado, April 10, 1991; and Atlanta, Georgia, April 12,
1991. Altogether, approximately 50 people attended these meetings.
In addition to publishing the Advance Notice of Proposed Rulemaking
in the Federal Register, the Forest Service mailed approximately 20,000
copies to known interested parties and invited comment on the rule.
Over 600 groups and individuals provided nearly 4,700 comments.
Approximately 10 percent were from business and industry groups; 11
percent from Federal, State, and local government agencies; 11 percent
from environmental and conservation groups; 2 percent from recreation
and user groups; 1 percent from academia; 1 percent from civic
organizations; 9 percent from agency employees; and the remaining 55
percent from individual citizens.
As stated in the Advance Notice of Proposed Rulemaking, the agency
received a petition on November 1, 1990, from the National Forest
Products Association and 79 other organizations ``to engage in a
rulemaking to amend the regulations set out at 36 CFR Part 219 to
improve the implementation of land and resource management plans
(`forest plants'), provide for prompt amendment, establish specific
environmental documentation requirements, and for related reasons.''
This petition for rulemaking included proposed regulatory text and the
rationale for it. It represented an alternative approach to changing
the NFMA planning regulation at 36 CFR Part 219. The specific
recommendations in the petition, along with supplemental comments
received from the National Forest Products Association during the
public comment period, were considered as part of the public comment
associated with the Advance Notice of Proposed Rulemaking.
Basic Conclusions Underlying This Proposal
The proposed rule now being published rests on many of the same
basic conclusions as the Advance Notice of Proposed Rulemaking, which
are highlighted here.
1. Many Recommendations of the Critique of Land Management Planning can
and Should be Adopted by Revising the Planning Rule
Although a number of specific recommendations have been used in
developing this proposed rule, the following major recommendations
identified by the Critique are particularly important:
(a) Simplify, Clarify, and Shorten the Planning Process
The Critique found that the complexity of the forest planning
process was so overwhelming that few people really fully understood it.
Further, the Critique found that this complexity often inhibited
meaningful communication with the public and other governments, reduced
agency credibility, and increased the time and cost needed to complete
plans.
The Critique also identified the problems associated with trying to
resolve socio-political issues through a highly technical and
systematic set of planning procedures. The importance of balancing
technical information with the values and concerns of the public was
highlighted in the Critique reports.
Finally, the planning process is so lengthy and complex that the
process of completing forest plans is frustrating for the public and
agency employees alike. In addition, the financial expenditure required
for such a lengthy and complex process has had a major impact on the
agency and diverted funds and personnel from project decisionmaking and
other activities.
While endorsing the need to simplify, clarify, and shorten the
planning process, the Forest Service also recognizes that forest
planning is inherently complex due to the multitude of resources and
statutory responsibilities involved. Sound, yet often complex,
technical analyses serve
[[Page 18888]]
a critical role in evaluating resource trade-offs and ensuring that
resource decisions are based on the best possible information. A
balance must be found between the simplicity most people desire and the
complex reality of forest planning.
(b) Clarify the Decision Framework
The existing regulation does not precisely address the nature of
forest plan decisions and the appropriate scope of environmental
analysis. During development of the existing forest plans, many people
believed that forest plans would make irretrievable resource
commitments for all projects necessary to fully implement the goals and
objectives of the plan. Confusion over the nature of forest plan
decisions has been a principal source of controversy for many plans.
Most of the administrative appeals of forest plans challenge whether
forest plans and accompanying environmental impact statements satisfy
particular requirements of NFMA, NEPA, the Endangered Species Act, the
Clean Water Act, and other environmental laws. Forest plan appellants
frequently argue that forest plans irretrievably commit the agency to
individual projects but fail to provide the analysis and documentation
required by these statutes.
In fact, the environmental impact statements accompanying forest
plans do not attempt to identify, evaluate, and decide every individual
project that may be permissible during the normal 10-year period of a
forest plan. It would be practically impossible to satisfy these
obligations in one single set of decisions or in a single environmental
impact statement. Court decisions as well as administrative appeal
decisions by the Chief of the Forest Service and the Assistant
Secretary of Agriculture have explained the content of forest plan
decisions and the scope of environmental analysis. To avoid confusion,
the existing rule should be revised accordingly.
(c) Provide for an Incremental Approach to Revising Forest Plans
The Critique firmly endorsed an incremental approach to forest plan
revision. It was considered a key element to achieving the major
recommendations of the Critique to ``Simplify, clarify, and shorten the
planning process.'' In Volume 2 of the Critique report, the merits of
incremental planning are addressed:
Wiping the slate clean and beginning anew allows the entire
universe to alternatives to be examined, unprejudiced by directions
and choices that have gone before. In fact, however, change is
incremental when the alternatives available are heavily influenced--
and circumscribed--by the choices made in the past. Examining the
entire universe of alternatives in great detail may be both
interesting and informative, but it imposes a tremendous demand for
analysis that may go largely unused in the real decision process * *
*. Federal regulations should be revised to permit an explicitly
incremental approach to the revision of forest plans.'' (p. 61)
2. While NFMA Has Some Limitations, It Remains Basically Sound
Such NFMA principles as integrated resource planning, public
participation, and an interdisciplinary approach to planning continue
to provide a solid foundation for agency planning efforts. The Act also
provides flexibility to make needed improvements through rulemaking or
agency directives.
Many of the problems with forest planning are not directly
associated with the provisions of NFMA. Public land management is
complicated by a long series of laws and regulations enacted over many
years. This has resulted in a situation once described by Federal
District Court Judge Lawrence K. Karlton as a ``crazy quilt of
apparently mutually incompatible statutory directives.'' (United States
v. Brunskill, Civil S-82-666-LKK (E.D. Cal. Nov. 8, 1984) unpublished
opinion, aff'd, 792 F.2d 9938 (9th Cir. 1986)). Thus, the controversy
which often has surrounded forest planning must be viewed in light of
the many requirements imposed by statutory and regulatory requirements
other than the National Forest Management Act (e.g., the National
Environmental Policy Act, Endangered Species Act, Clean Water Act,
Clean Air Act). It is often the interaction of these other laws and
regulations that has increased the controversy surrounding forest
planning and land use.
Some of the dissatisfaction with NFMA can be traced to unrealistic
expectations. One of the major findings of the Critique of Land
Management Planning was the need for adjustments in the public's
expectations of forest planning. Volume 2 of the report of the Critique
explicitly addressed this as follows:
Expectations for forest planning are high in some cases,
unrealistically so. Some workshop participants expected forest
planning would lead to establishment of ``reasonable and
sustainable'' production goals. Others thought it would free
resource allocation from politics while building a powerful case for
budgets and appropriations sufficient to accomplish plan goals. And
many apparently thought that forest planning would be a way to
influence the political process and sway management to their
purposes. Probing more deeply, we found that it was not so much the
process to which people objected, but the results of that process.
In retrospect, it was inevitable that this would occur. When the law
was enacted, representatives of both the Sierra Club and the
National Forest Products Association returned to their constituents
and proclaimed victory. Obviously, both had different expectations
of outcomes under the law. (p.3)
3. Many Opportunities Exist to Streamline the Existing Regulatory Text
In addition to finding numerous opportunities to streamline the
substantive procedural requirements for forest planning, one of the
findings of the review of the existing regulation was that much could
be done to simplify the regulatory text itself and to enhance its
readability regardless of major substantive changes. For example, there
were numerous opportunities to simplify language, shorten definitions,
eliminate similar or duplicative provisions, improve structural
organization, and reduce overlap with other laws, regulations, or
Executive orders. In addition, language without real substance should
be removed. The composite effect of such changes can be a significant
reduction in the length of the regulation, an enhancement of its
readability, and a positive step forward towards better understanding
and simplification of forest planning.
In reviewing the existing regulation, the agency also has
considered the relative roles of the planning regulation at 36 CFR part
219 and the Forest Service Directive System. The review indicated that
the rule is better suited for defining the purpose and desired results
of planning and the minimum standards for planning than for giving
detailed procedural guidelines. As a result, some streamlining has been
achieved in the proposed rule by shifting detailed procedural direction
to agency directives. To implement the revised regulation, the agency
plans to reorganize and revise its directives related to forest
planning. Subject to procedures in 36 CFR part 216, substantive
revisions to planning direction in Forest Service Manual Chapter 1920
will be made available for public review and comment prior to being
adopted.
4. The Solution to Some Problems With the Planning Process Are Not
Within the Scope of the Planning Regulation
Only about one-third of the 232 Critique recommendations concern
changes that are appropriate to implement through revision of the
planning regulation or issuance of related guidance through the Forest
[[Page 18889]]
Service Directive System. The remaining two-thirds of the
recommendations must be addressed through other actions or channels,
such as increasing accountability for performance or improving
training.
In addition, even though some aspects of planning are within the
scope of the regulation, the real success or failure of some endeavors
will depend on the commitment and understanding of agency personnel and
the public. A good example of this is public involvement. No amount of
regulatory detail can guarantee effective and open communication.
Certain expectations can be defined and minimum procedures established,
but ultimately the success or failure of the communication between the
agency and public depends upon the people involved. As a result, the
agency recognizes that even though modifying the planning regulation is
a major and essential step towards improving the effectiveness of
forest planning, such improvements must occur in concert with other
changes and commitments in order for the full potential of forest
planning to be realized.
In addition to the preceding four conclusions which had been
addressed in the Advance Notice of Proposed Rulemaking, one additional
finding has guided development of this proposed rule which were not
reflected in the Advance Notice.
5. Principles of Ecosystem Management Need to be Reflected in the
Planning Regulation
In the decade following promulgation of the existing planning rule,
the concept of ecosystem management has slowly and steadily evolved,
and the agency has made clear its intention to move toward an ecosystem
management approach to National Forest System management. In recent
years, the agency has actively promoted implementation of ecosystem
management principles within existing legal requirements. Other Federal
agencies are proceeding similarly. Additionally, the spotted owl
controversy in the Pacific Northwest has become a focal point for
exploring ways to implement the principles of ecosystem management. The
validity of an ecosystem approach was recently upheld when the Record
of Decision (ROD) for the Range of the Northern Spotted Owl was
sustained from programmatic challenge (SAS v. Lyons, No. C92-479WD
(W.D. WA, Dec. 21, 1994)). In that decision, Judge Dwyer stated,
``Given the current condition of the forests, there is no way the
agencies could comply with environmental laws without planning on an
ecosystem basis'' (slip. Op. @ 32).
In light of the experience in the Pacific Northwest and elsewhere,
there is much interest in finding ways for Federal land management
agencies to better incorporate the principles of ecosystem management
when conducting resource planning and decisionmaking activities. The
existing NFMA planning regulation was promulgated in 1982, long before
the concept of ecosystem management had begun to be widely recognized.
By contrast, the proposed rule has been promulgated with recognition of
the role of ecosystem management and represents a significant step
toward incorporating ecosystem management into the planning process to
the extent permitted by current law.
While basic principles of NFMA remain sound, there are questions as
to whether statutory changes may be appropriate if ecosystem management
is to become a fully operational concept for the management of National
Forest System lands. A related consideration is the interaction of NFMA
requirements with numerous other relevant statutes, such as the
National Environmental Policy Act (42 U.S.C. 4321), the endangered
Species Act of 1973 (16 U.S.C. 1501 et seq.), or the Federal Advisory
Committee Act (86 Stat. 770). Experience to date has shown that the
existing ``crazy quilt'' framework of statutes creates some limitations
and uncertainties regarding implementation of ecosystem management
concepts. Although progress can be made within the existing legal
framework, the agency believes that a review of NFMA and other relevant
statutes may be appropriate before the concept of ecosystem management
can be transformed from an evolving vision into a fully operational
reality.
Moreover, it must be recognized that ecosystem management is a
continuously evolving concept. There is still much to be learned
regarding how best to implement the principles of ecosystem management
when fulfilling the agency's responsibilities for management of
National Forest System lands. As a result, the proposed rule should not
be viewed as the agency's ultimate vision for implementing ecosystem
management, but rather as a transitional step for beginning to
incorporate the concepts of ecosystem management into land and resource
management planning procedures and to do so in a manner consistent with
the requirements of NFMA.
In summary, as the first generation of forest plans prepared under
NFMA is coming due for revision, the Forest Service proposes a
substantially streamlined planning rule that builds on 15 years of
planning experience and evolving concepts of resource management. The
primary outcomes anticipated from the proposed rule include: forest
plans and forest planning procedures that are simpler, more
understandable, and less costly; stronger relationships with the public
and other government entities; the incorporation of ecosystem
management principles into forest planning; and clarification of the
nature of forest plan decisions and their relationship to other
planning and decisionmaking processes.
Comparison of Outlines of Proposed Rule to Existing Rule
The following table allows comparison of the existing table of
contents for 36 CFR part 219, subpart A to that in the proposed rule:
------------------------------------------------------------------------
Proposed rule Existing rule
------------------------------------------------------------------------
219.1 Purpose and principles................ 219.1 Purpose and
principles.
219.2 Definitions........................... 219.2 Scope and
applicability.
219.3 Relationships with the public and 219.3 Definitions and
government entities. terminology.
219.4 Sustainability of escosystems......... 219.4 Planning levels.
219.5 Framework for resource decisionmaking. 219.5 Interdisciplinary
approach.
219.6 Forest plan direction................. 219.6 Public
participation.
219.7 Ecosystem analysis.................... 219.7 Coordination with
other public planning
efforts.
219.8 Interdisciplinary teams and 219.8 Regional planning--
information needs. general procedure.
219.9 Forest plan amendments................ 219.9 Regional guide
content.
219.10 Forest plan revision................. 219.10 Forest planning--
general procedure.
219.11 Forest plan implementation........... 219.11 Forest plan
content.
219.12 Monitoring and evaluation............ 219.12 Forest plan
process.
[[Page 18890]]
219.13 Statutory timber management 219.13 Forest planning--
requirements. resource integration
requirements.
219.14 Special designations................. 219.14 Timber resource
land suitability.
219.15 Applicability and transition......... 219.15 Vegetative
management practices.
219.16 Timber resource
sale schedule.
219.17 Wilderness
designation.
219.18 Wilderness
management.
219.19 Fish and wildlife
resource.
219.20 Grazing resource.
219.21 Recreation
resource.
219.22 Mineral resource.
219.23 Water and soil
resource.
219.24 Cultural and
historic resource.
219.25 Research natural
areas.
219.26 Diversity.
219.27 Management
requirements.
219.28 Research.
219.29 Transition
period.
------------------------------------------------------------------------
Section-by-Section Description
The principal features of the proposed rule are summarized here,
keyed to the proposed CFR section numbers.
Section 219.1 Purpose and Principles
The proposed rule would: (1) Describe the agency's framework for
National Forest System resource decisionmaking; (2) incorporate
principles of ecosystem management; (3) establish requirements for the
implementation, monitoring, evaluation, amendment, and revision of
forest plans; and (4) articulate the relationship between resource
decisionmaking and compliance with the National Environmental Policy
Act (hereafter, NEPA). Unlike the existing rule, the proposed rule
would not provide direction for development of initial forest plans,
because all but four of those plans are in effect.
Paragraph (b) would identify 10 principles which provide the basis
for National Forest System resource decisionmaking and management. The
existing rule contains 14 principles. Although the 14 original
principles are basically sound in and of themselves, the agency
believes the new set of principles better reflects the concepts of
ecosystem management and the agency's approach to resource
decisionmaking.
The first principle states the agency's commitment to managing for
sustainable ecosystems and the multiple benefits which they can yield.
The second principle articulates a key aspect of the agency's approach
to ecosystem management--that people are part of ecosystems and that
meeting people's needs and desires within the capacities of natural
systems is a primary role of resource decisionmaking.
The third principle reflects the dynamic nature of ecosystems and
that they occur at a variety of spatial scales, with the resulting need
for flexible planning processes that consider ecological changes over
time. The fourth principle recognizes that ecosystems often cross many
ownerships and jurisdictions, making it important to coordinate
planning efforts for National Forest System lands with other
landowners, governments, and agencies. This principle also addresses
the need to respect private property rights and the jurisdictions of
other government entities.
The fifth principle notes the importance of open, ongoing, and
equitable public involvement. This embodies the agency's belief that
such participation by all interested publics is an important and
integral part of National Forest System management.
The sixth principle highlights the vital role of scientists in
gathering and analyzing information for resource decisionmaking.
The seventh principle recognizes that a fundamental goal of
managing National Forest System lands is the optimization of net public
benefits, which includes consideration of both quantitative and
qualitative criteria.
The eighth principle emphasizes the importance of being able to
efficiently adjust forest plans in response to changing conditions and
new information.
The ninth principle makes clear that NEPA procedures define the
scope and level of analysis conducted for resource decisionmaking and
the need for analysis to be commensurate with the scope and nature of
decisions being made.
The last principle acknowledges the uncertainty inherent in
resource decisionmaking, and the need for resource decisionmaking to
proceed using an adaptive approach to resource management.
The 10 principles highlight the underlying concepts and assumptions
upon which the remaining sections of the proposed rule are based and
set out many of the principles of ecosystem management which are
reflected in the proposed rule.
Section 219.2 Definitions
The following words are defined in the existing rule, but would not
be included in the definitions provided in the proposed rule, because
they are not used or do not vary in meaning from common or well-
established use of the term:
Base sale schedule
Biological growth potential
Capability
Corridor
Cost efficiency
Diversity
Even-aged management
Goods and services
Integrated pest management
Management concern
Management direction
Management intensity
Management practice
Planning horizon
Present net value
Public issue
Real dollar value
Receipt shares
Responsible line officer
Sale schedule
Silvicultural system
Suitability
Sustained-yield of products and services
Timber production
Uneven-aged management
The following terms are not defined in the Definitions section of
the existing rule, but would be defined in the proposed rule:
Catastrophic event
Category 1 candidate species
Category 2 candidate species
[[Page 18891]]
Chargeable timber volume
Conservation agreement
Culmination of mean annual increment
Decision document
Directive
Directive System
Ecosystem analysis
Ecosystem management
Environmental assessment
Environmental impact statement
Even-aged stand
Forest Supervisor
Guideline
Infrastructure
NEPA documents
NEPA procedures
Previous planning rule
Project
Proposed action
Regional Forester
RPA Program and Assessment
Resource conditions
Responsible official
Species and natural community rankings
Standard
Station Director
Sustainability of ecosystems
Tribal governments
The following definitions appear in the existing rule and would be
modified or retained unchanged in the proposed rule:
Allowable sale quantity
Forested land (previously listed as ``forest land'')
Goal
Long-term sustained-yield timber capacity
Management prescription
Objective
Multiple-use
Plan area (previously listed as ``planning area'')
Plan period (previously listed as ``planning period'')
Readers of this Supplementary Information should refer to the
definitions section of the proposed rule (Sec. 219.2) for definitions
of terms used in this preamble.
Section 219.3 Relationships With the Public and Government Entities
This section focuses on building and maintaining relationships with
the public and other government entities and, in conjunction with
numerous provisions in other sections of the proposed rule, would
substantially strengthen the role of public participation and
government coordination compared to the existing rule. This emphasis
responds to findings of the Land Management Planning Critique, which
highlighted the critical role of ongoing and meaningful public
involvement and the need to strengthen coordination with other Federal
agencies and State, local and tribal governments. Although the Federal
Advisory Committee Act imposes some limitations on how involvement
activities can be conducted, a cornerstone of ecosystem management and
this proposed rule is the recognition that the public and other
agencies and governments must work closely together if resource
management issues are to be addressed effectively.
Although this section would specifically address public
participation and government coordination, there are numerous other
sections of the proposed rule that reflect the agency's recognition of
the importance of people in resource management and that reflect the
agency's intent to expand opportunities for public involvement in
agency planning and for public comment. For example, six of the
principles in proposed Sec. 219.1 highlight the role of people in
managing the National Forest System (Sec. 219.1(b)(1), (2), (4)-(7)).
There would be two new opportunities for public notice and comment--a
30-day comment period for some minor amendments (Sec. 219.9(c)(2)(i))
and a 30-day comment period prior to updating a monitoring and
evaluation strategy (Sec. 219.12(c)(2)). In addition, three new
provisions designed to provide more information to the public are
proposed: (1) the requirement for an annual monitoring and evaluation
report (Sec. 219.12(e)); (2) the requirement to periodically update
estimated levels of goods and services and management activities
(Sec. 219.11(d)(2)); and (3) the requirement to conduct and make
available the results of a prerevision review when initiating the
revision process (Sec. 219.10(c) and (d)). Involvement in the revision
process would also be strengthened by a requirement to provide
opportunities for participation in the prerevision review
(Sec. 219.10(c)(2)) and in formulation of a communications strategy for
the prerevision review and revision effort (Sec. 219.10(c)(2)(ii)).
Finally, the proposed rule provides opportunities for involvement and
coordination in monitoring and evaluation efforts
(Sec. 219.12(a)(1)(x)).
Separate sections in the existing rule for Public Participation
(Sec. 219.6) and Coordination With Other Public Planning Efforts
(Sec. 219.7), would be combined into one section in the proposed rule.
Combining the two sections is not intended to diminish the distinctive
roles and importance of the public and cooperating agencies and
governments; rather, combining these sections allows the agency to
avoid repeating the many provisions that are applicable to both the
public and cooperating agencies and governments while still providing
the ability to address their specific and unique needs.
Proposed paragraph (a) asserts that building and maintaining
relationships with the public and other Federal agencies and State,
local, and tribal governments is an essential and ongoing part of
National Forest System planning and management. Paragraphs (a) (1)-(5)
would expand on this statement by further describing five purposes for
establishing and maintaining communication with parties interested in
forest planning.
The first purpose is to develop a shared understanding of the
variety of needs, concerns, and values held by the public. In the past,
public involvement efforts have too often promoted polarization of
parties and interests. The agency believes communication and
understanding of needs, concerns, and values is essential if
polarization is to be replaced with cooperative problem solving and a
genuine desire to move towards consensus.
A second purpose is to coordinate planning efforts with other
Federal agencies and State, local, and tribal governments. This
reflects the agency's desire to strengthen working relationships with
other agencies and governments as well as an awareness of the distinct
roles and jurisdictions that must be recognized during resource
planning efforts. This purpose also is consistent with the emphasis in
ecosystem management that all parties interested in an ecosystem work
together rather than approaching resource planning efforts in
isolation. The provision would encourage coordination of planning
efforts between the Forest Service and other government entities.
However, the Forest Service recognizes that the Federal Advisory
Committee Act is an important consideration that can influence the
extent to which such coordinated efforts can occur.
The third purpose is to improve the information base influencing
decisions and to promote a shared understanding of the validity of this
information. If the public is to have confidence in resource decisions
made by the agency, there must be confidence in the information used in
making those decisions. The public and other agencies and governments
can play an integral part in improving the information base used and in
helping to assess its validity. For example, this could mean working
together with the public, scientific community, and other agencies to
conduct an ecoregion assessment, or development of joint data bases
with
[[Page 18892]]
other agencies. This could also involve providing more opportunities
for the public to review the information being used early in the
decision process so that concerns about its validity can be identified
and resolved in a cooperative and ongoing manner.
The fourth purpose is to strengthen the scientific basis for
resource management decisions through involvement of members of the
scientific community. Although the agency has always considered the
scientific community as part of the public, the proposed rule would
highlight the particular importance of the involvement of scientists in
resource planning. This emphasis is appropriate because the concept of
ecosystem management recognizes and validates the important role of
science and the need to integrate scientific expertise more effectively
into resource planning and management.
The fifth and final purpose is to resolve conflicts associated with
resource decisionmaking. The first four goals, if achieved, lay the
groundwork for conflict resolution. Although the Forest Service
recognizes that resource management issues are often highly
controversial and consensus may not be achievable, agency involvement
and coordination efforts, nevertheless, should strive to promote the
kind of communication and understanding that helps diminish differences
and encourages parties with varying interests to work through issues
together.
Paragraph (b) of proposed Sec. 219.3 would require the Forest
Supervisor to maintain and periodically update a mailing list of
interested individuals, organizations, scientists, and government
agencies and officials. This provision is intended to assure a means by
which anyone who so desires can be informed of planning activities.
Proposed paragraph (c) would require the maintenance of planning
records that document forest plan amendments, revisions, and monitoring
and evaluation and would ensure public access to these records. This is
generally comparable to Sec. 219.10(h) of the existing rule.
Proposed paragraph (d) would require copies of forest plans and
monitoring and evaluation strategies to be accessible to the public at
designated locations and is generally comparable to Sec. 219.6(i)(3) of
the existing rule.
Paragraph (e) of this section would direct Regional Foresters to
seek to establish a memorandum of understanding or other form of
agreement to guide coordination of planning efforts when desired by
State officials or affected tribal governments. Paragraph (1) (i)-(ii)
set forth the content requirements for such agreements, and paragraphs
(1) (iii)-(iv) indicate when Forest Supervisors may execute such
agreements and when a memorandum of understanding can be jointly
executed by two Regional Foresters. This new provision is intended to
help strengthen communication and cooperation between the Forest
Service and State and tribal governments. This provision would
supplement Forest Service authority to enter into such agreements with
other Federal agencies or local governments.
Proposed paragraph (f) highlights the need for public involvement
and government coordination procedures to conform with NEPA
requirements and other applicable laws, Executive orders, or
regulations. This is included as a reminder that there are numerous
requirements already in place with which the agency must comply.
Perhaps the two most notable are public involvement requirements
associated with NEPA procedures and the Federal Advisory Committee Act.
The Federal Advisory Committee Act has been increasingly recognized as
having a substantial impact on how public involvement activities are to
be conducted.
Section 219.4 Sustainability of Ecosystems
This section is the central focus of the agency's shift toward an
ecosystem approach to resource management. The fundamental premise is
that the principal goal of managing the National Forest System is to
maintain or restore the sustainability of ecosystems and that this is
essential because sustained yield of benefits for present and future
generations is more likely to occur when the ecosystems from which
those benefits are produced are in a sustainable condition.
This section is also based on the premise that a diversity of plant
and animal communities is an inherent feature of sustainable
ecosystems. Therefore, this proposed regulation is premised on the
assumption that maintaining or restoring the sustainability of
ecosystems simultaneously meets the NFMA provision to, ``provide for
diversity of plant and animal communities'' (16 U.S.C. 1604(g)(3)(B)).
Seven key themes are woven throughout this section.
1. Adoption of Sustainable Ecosystems As a Goal. This proposed
section explicitly establishes the maintenance or restoration of the
sustainability of ecosystems as a goal and recognizes that the agency
has the discretion to determine what processes and information will be
used to work toward this goal. Under the proposed rule, the agency
would retain the discretion to determine for each plan area which
conditions are indicative of sustainable ecosystems and how the plan
area could be managed to promote achievement of those conditions. There
is nothing in the proposed rule that establishes a concrete standard
regarding ecosystem sustainability or diversity.
This discretionary, goal-oriented approach to diversity and
maintenance of sustainable ecosystems is consistent with the statutory
basis for forest planning and the NFMA diversity provision which has
been interpreted by court rulings to be a goal within the context of
multiple use. ``Diversity is not the controlling principle in forest
planning, although it is an important goal to be pursued in the context
of overall multiple-use objectives.'' Sierra Club v. Robertson, 845 F.
Supp. 485, 502 (S.D. Ohio, 1994). The interpretation of the NFMA
diversity provision as a goal rather than a concrete standard is
supported by the legislative history of the Act and has been upheld to
date in a number of court cases. In Sierra Club v. Espy, No. 93-5050
(5th Cir. Nov. 15, 1994) the court recognized that the Forest Service
has discretion to determine how it provides for diversity. See also,
Sierra Club v. Robertson, 784 F. Supp. 593, 609 (W.D. Ark. 1991); ONRC
v. Lowe, 836 F. Supp. 727 (D. Ore. 1993); Glisson v. USFS (S.D. Ill.
August 26, 1993); Sierra Club v. Marita, 843 F. Supp. 1526 (E.D. Wisc.
1994); Krichbaum v. Kelly, 844 F. Supp. 1107 (W.D. Va. 1994); Sierra
Club v. Marita (Robertson), 845 F. Supp. 1317 (E.D. Wisc 1994); in
which courts have upheld Forest Service decisions based on NFMA
diversity grounds.
In addition, the goal statement in paragraph (a) of proposed
Sec. 219.4 is consistent with Section 4(a) of the Multiple-Use,
Sustained-Yield Act of 1960 (16 U.S.C. 528) which calls for ``* * *
harmonious and coordinated management of the various resources, each
with the other, without impairment of the productivity of the land * *
*.'' Similarly, Section 2(B) of the Endangered Species Act of 1973, as
amended, (16 U.S.C. 1501 et seq., hereafter, ESA), states that one of
the purposes of the Act is to ``provide a means whereby the ecosystems
upon which endangered species and threatened species depend may be
conserved * * *.''
[[Page 18893]]
The premise is that by maintaining or, where needed, restoring the
sustainability of ecosystems, the productivity of the land will not be
impaired and the ecosystems upon which plant and wildlife species
depend will be functioning properly. Thus, the ecological foundation is
in place from which multiple benefits can be derived over time. Without
those natural systems functioning properly, the ability to provide
multiple benefits would be at risk.
The goal in proposed paragraph (a) also is consistent with the
multiple-use mission of the National Forest System as mandated by
Section 2 of the Multiple-Use, Sustained-Yield Act, which directs the
Secretary to ``* * * develop and administer the renewable surface
resources of the national forests for multiple-use and sustained-yield
of the several products and services obtained therefrom.'' The Act
specifically identifies recreation, range, timber, watershed, wildlife,
and fish as values for which national forests are administered. Later,
at Sec. 219.6(a), the proposed rule would make clear that forest plans
address the full range of multiple-uses in an integrated manner and on
a sustained-yield basis.
2. Recognition of the Relationship between Sustainable Ecosystems
and Meeting the Needs of People. The goal statement of Sec. 219.4(a),
which is the foundation for this proposed section, clearly links the
sustainability of ecosystems to the ability to provide multiple
benefits to present and future generations. As stated at
Sec. 219.1(b)(2) of the proposed rule, people are considered part of
ecosystems, and meeting people's needs and desires within the
capacities of natural systems is a primary role of resource
decisionmaking. The proposed rule is based on the premise that National
Forests are managed to provide multiple benefits to people in a manner
that is sustainable over time, and that those benefits which people
need and desire will only be sustained when the ecosystems from which
they are derived are sustained.
Although proposed section Sec. 219.4 is focused on the biological
and physical aspects of sustainable ecosystems, the proposed rule would
make clear that forests plans address the full range of multiple-uses
(Sec. 219.6(a)). In addition, proposed Sec. 219.8(c) would make clear
that the social and economic effects of resource decisions must be
considered when amending or revising the forest plan. Thus, the
proposed rule provides a holistic approach to National Forest
management by assuring that the needs of people and the capacities of
natural systems in both the near and long-term are considered when
making resource decisions.
3. Adoption of ``Coarse Filter/Fine Filter'' Approach. This section
of the proposed rule incorporates the ``coarse filter/fine filter''
concept of conservation biology, which holds that a strategy focused on
maintaining the function, composition, and structure of an ecosystem as
a whole will be adequate to meet the needs of most species. In essence,
most species' needs are ``caught'' by the mesh of the ``coarse
filter.'' In contrast, some species have additional needs or more
narrow habitat requirements that are not adequately met by focusing
solely on the ecosystem as a whole. Under these circumstances,
additional ``fine filter'' measures are needed to ``catch'' and support
the special needs of species whose needs otherwise would have gone
unmet.
The proposed rule provides the ``coarse filter'' by requiring that
forest plan goals and objectives address the desired composition,
function, and structure of ecosystems. These three aspects are
generally considered to be integral to understanding and describing
sustainable natural systems. Ecosystem structure includes the
distribution and pattern of ecosystem elements such as forest openings
and riparian corridors at a landscape scale, and the amount and
arrangement of special habitat features such as seeps, snags and down
woody material at smaller scales. Ecosystem composition includes the
plant and animal species which make up an ecosystem. Ecosystem function
includes processes and the relationships among processes, such as
nutrient cycling in a system. In many cases, these three aspects of
ecosystems will be described in the forest plan for ecosystems at
fairly large scales, such as for ecosystems encompassing sizable
portions of the plan area.
The ``coarse filter'' can be provided at a variety of spatial
scales, however. For example, proposed paragraph (b)(3) would direct
that forest plans are to provide for the protection of rare natural
communities. In many cases, these areas provide the ``coarse filter''
even though they may only be a fraction or an acre in size. By
protecting rare natural communities, many individual species that are
dependent on those habitats and communities are protected, thereby
exemplifying the ``coarse filter/fine filter'' concept.
The ``fine filter'' safeguard is provided in the proposed rule
through the requirements to protect threatened and endangered species.
For example, proposed Sec. 219.4(b)(4) would require that forest plans
provide for the conservation of species listed as threatened and
endangered, or proposed for listing, under the Endangered Species Act
(ESA). It also would make explicit that once a species is listed or
proposed for listing, management activities on National Forest System
lands which affect the habitat of the species must comply with the
requirements of ESA. Additional ``fine filter'' protection is provided
by the requirements of Option I to protect sensitive species, and the
requirements of Option II to address viability of species which are
addressed later in this section.
4. Clear Intent to Seek to Prevent Listing of Species Under the
Endangered Species Act. This proposed rule would send a clear signal
that forest plan direction should seek to prevent the need for a
species being listed under the Endangered Species Act (ESA). The ESA
addresses the conservation of species that have been listed as
threatened or endangered, but does not address protection of those
species for which there is evidence of a trend toward listing but which
are not yet listed. Option I of the proposed rule would target and
treat as sensitive those species for which there is some evidence of
risk but which are not yet imperiled to the point of being listed as
threatened or endangered.
5. Emphasis on Strengthening Cooperation and Sharing of
Professional Expertise. Another theme of the proposed rule is
strengthened cooperation and coordination with other resource
professionals. For example, Option I of the proposed rule utilizes the
expertise of the U.S. Fish and Wildlife Service and the Network of
Natural Heritage Programs and Conservation Data Centers in the
identification of sensitive species and natural communities. In
addition, this section of Option I of the proposed rule parallels both
the spirit and application of a Memorandum of Understanding (MOU)
recently signed by the Forest Service, U.S. Fish and Wildlife Service,
National Marine Fisheries Service, and other government agencies (94-
SMU-058; January 25, 1994) to guide cooperation and participation in
the conservation of species toward listing. Like this Memorandum of
Understanding, the proposed rule (Option I) focuses on those species
tending toward listing in order to preclude their designation as
threatened or endangered, stresses interagency cooperation to address
this goal, and recognizes the value of addressing species conservation
within an ecosystem approach.
[[Page 18894]]
6. Focus on Habitat Rather Than Populations. Option I of the
proposed rule would emphasize the management of habitat for fish and
wildlife species, and not the management of populations as some would
interpret the existing rule. As used in this section, habitat
capability includes the quantity, quality, and distribution of habitats
needed by a species. A focus on habitat capability is more appropriate
than a focus on populations because there are many factors affecting
populations that are not under the agency's direct control. These may
include disease, predation, hunting or fishing pressures, natural
cyclical changes and conditions occurring or actions being taken
outside the plan area.
The proposed rule would not alter the current cooperative
relationship with State fish and wildlife agencies. The Forest Service
role has traditionally been to provide habitat rather than manage
numbers of species. States generally exercise jurisdiction over hunting
and fishing on National Forest System lands.
7. Use of Best Available Information. The agency recognizes that
there are many uncertainties regarding how to maintain or restore
sustainable ecosystems and that scientific knowledge will always be
incomplete and evolving. The terms ``sustainable,'' ``restoration,''
``maintenance,'' or ``deteriorated ecosystem'' are all subject to
varying and evolving interpretations. Furthermore, there is an infinite
number of ecosystems, and realistically, planning efforts must be
allowed to focus on only those ecosystem considerations of most
relevance to decisionmaking. Therefore, in concert with the principle
that the agency must retain discretion in its approach to maintaining
or restoring sustainable ecosystems, the proposed rule (Sec. 219.4(e))
also recognizes the inevitable need to use the best available
information in making the various decisions associated with approval of
a forest plan. The proposed rule makes clear that there is no
expectation that there will ever be a precise and universally accepted
understanding or measure of what sustainable ecosystems are and the
actions appropriate to maintain or restore them; rather, the
expectation established by this proposed rule is that the agency will
use the best information available and an adaptive management approach
in its efforts to maintain or restore sustainable ecosystems and to
manage the National Forest System toward that outcome.
Adaptive management is considered one of the cornerstones of
ecosystem management. This concept acknowledges that our understanding
of ecosystems is always changing, that we learn by observing how
natural systems respond to actual situations, and that we should adapt
our actions accordingly. Adaptive resource management recognizes that
decisions cannot always be halted until research is complete,
especially since, at times, inaction can have far-reaching
consequences.
Proposed paragraph Sec. 219.4(e) not only would establish the use
of an adaptive management approach for dealing with incomplete and
changing information, but also would clearly signal that resource
decisionmaking need not be halted if there is uncertainty or incomplete
knowledge. In accordance with NEPA procedures (40 CFR 1502.22),
decisionmaking is expected to proceed using the best information
available commensurate with the decision being made, and monitoring and
evaluation is to be used to assess the effects of those decisions and
to identify new information which may come available. Since project
decisions for the decade of the forest plan are approved incrementally
during the plan period, the opportunity exits to adapt those decisions
as needed to respond to new information.
Options for Providing Diversity
In addition to the provisions of Sec. 219.4(b)(1)-(4), this
proposed rule sets out two options for providing diversity. Proposed
Option I would provide for diversity by addressing sensitive species.
By contrast, Option II which is basically the requirements of the
current regulation would provide for diversity by addressing viability
of species.
Option I. Proposed Sec. 219.4(b)(5) creates a system for protection
of habitat capability for sensitive species in order to prevent the
need for listing the species as threatened or endangered under ESA and
to preclude extirpation of the sensitive species from the plan area.
Paragraph (b)(5)(i) describes how sensitive species would be
identified. First, sensitive species can encompass species, subspecies,
populations, or stocks of vertebrates, invertebrates, vascular plants,
bryophytes, fungi, and lichens. Second, the species must be known to
occur or to be likely to occur on National Forest System lands. Third,
the species must meet one of the criteria described at (b)(5)(i)(A)-
(C). These criteria utilize a combination of information derived from
the U.S. Fish and Wildlife Service and the Network of Natural Heritage
Programs and Conservation Data Centers.
The U.S. Fish and Wildlife Service is the Federal agency with
primary responsibility for administering ESA. The Network of Natural
Heritage Programs and Conservation Data Centers is generally considered
to have one of the most comprehensive and accurate compilations of
information on species that are imperiled in the United States. The
Network consists of approximately 85 data centers, including at least
one in each State. Each data center is established within a local
institution, most frequently as part of a government agency responsible
for natural resource management and protection, and each center
functions in support of Natural Heritage Programs. The Nature
Conservancy is involved in the establishment and operation of the data
centers by providing technical, scientific, and administrative support
and training. The Conservancy also makes available the computer
technology, data inventory and management methodology, and procedural
manuals used.
Natural Heritage Programs and the Conservation Data Centers provide
continuously updated, computer-assisted inventories of the biological
and ecological features and biodiversity preservation of the region in
which they are located. Most data centers use the Biological and
Conservation Data System as the basis for operation, a system developed
and refined by The Nature Conservancy since 1974.
Proposed paragraphs (b)(5)(ii) (A) and (B) would establish the
process for ensuring that forest plan direction is responsive to the
needs of sensitive species. The first step is to identify the sensitive
species for the plan area using the rankings and listings and to
identify their habitat needs. Second, the habitat needs for the
sensitive species, or assemblages of sensitive species, are compared
against current forest plan direction with consideration of the likely
contribution of lands outside the plan area. When the forest plan is
being revised, habitat needs are compared to the tentatively proposed
revisions to forest plan direction. This provides for consideration of
sensitive species habitat needs throughout the forest plan revision
process and inclusion of this direction in the draft environmental
impact statement and proposed revised forest plan when they are
released for public comment.
In accordance with (b)(5)(ii)(B)(1), forest plan direction must be
modified if a continuing downward trend in habitat capability is
predicted to occur within the plan area and that downward trend is
predicted to result in the need for Federal listing of the species or
if it is predicted that the sensitive species will be extirpated from
the plan area.
[[Page 18895]]
Paragraph (b)(5)(ii)(B)(2) would establish that if a conservation
agreement has been approved by the Forest Service and either the U.S.
Fish and Wildlife Service or the National Marine Fisheries Service, and
if relevant direction from that agreement has been incorporated by
amendment into the forest plan, the requirement to establish direction
to protect the habitat capability of the species is met. The forest
plan amendment requires full NEPA analysis and disclosure.
Paragraph (b)(5)(ii)(B)(3) would affirm that the needs of a
threatened or endangered species take precedence over a sensitive
species should a conflict occur relative to protective measures needed.
Although it is not anticipated such a conflict would happen often, it
is important that the rule provide for such circumstances because the
proposed rule's requirements for protection of both sensitive species
and threatened and endangered species could theoretically be in
conflict. It is reasonable that the rule provide that listed species be
given priority in the event of conflict with the needs of a sensitive
species since listed species are at greater risk than sensitive species
and there is a statutory obligation to provide for the conservation of
listed species.
Paragraph (b)(5)(ii)(B)(4) would require management direction for
sensitive species to be established using the best information
available commensurate with the decision being made. This idea is also
echoed in paragraph (e) of this section. In addition, paragraph
(b)(5)(ii)(B)(4) would make clear that determinations of whether the
habitat needs of sensitive species are adequately met and the degree of
protection needed are inherently dependent on professional judgment.
Paragraph (b)(5)(iii) proposes procedures for handling newly
identified sensitive species. The categories and rankings of sensitive
species would be reviewed annually as part of monitoring and
evaluation, and if additions to the listings have occurred, the
adequacy of existing forest plan management direction to meet the needs
of those species would be assessed. This paragraph also would make
clear that even though the rankings and categories are required to be
reviewed on an annual basis, this does not relieve the agency of its
obligation to consider new information at any time a project is under
consideration that affects the habitat capability of a sensitive
species.
Option II. As an alternative to the regulatory text proposed in
Option I of Sec. 219.4(b)(5), the agency has set forth alternative
regulatory text, which is almost identical to the existing rule at
Sec. 219.19; however, a few nonsubstantive edits have been made to
assure consistency of terminology and coding with the remainder of the
proposed rule.
There are five key differences between the Option I approach to
sensitive species and the alternative text of Option II which is based
on Sec. 219.19 of the existing rule. These are (1) use of the term
``viability''; (2) establishment of clear analytical expectations that
are reasonable to implement; (3) scope of species protected; (4) goal
of protective measures; and (5) role of management indicator species.
First, in Option I the proposed rule does not use the term
``viability''. NFMA does not use the term ``viability,'' nor is there
anything in the statute or legislative history that indicates the
agency was expected to insure viable species or pursue the type of
viability analyses described in current scientific literature (for
example, M.E. Soule, Viable Populations for Conservation (Cambridge,
1989), 189pp.) Rather, the statute requires that the Secretary of
Agriculture promulgate regulations to guide the Forest Service
development and revision of Forest Plans. One of the statutory
requirements is ``specifying guidelines for land management plans
developed to achieve the goals of the Program which * * * (B) provide
for diversity of plant and animal communities based on the suitability
and capability of the specific land area in order to meet overall
multiple use objectives * * *.'' 16 USC 1604(g)(3)(B).
Translating the statutory language to provide for diversity of
plant and animal communities through regulations, plans and actions has
been and continues to be a formidable challenge, as the Committee of
Scientists who provided scientific advice to the Forest Service on the
crafting of the current regulation accurately predicted at the time of
their promulgation. The Committee stated that, ``it is impossible to
write specific regulations to `provide for' diversity: and that ``there
remains a great deal of room for honest debate on the translation of
policy into management planning requirements and into management
programs'' (44 FR 26,6000-01 & 26,608).
The Forest Service has found that the term ``viability'' has been
subject to continuously evolving scientific interpretation and no
longer meets the agency's expectations at the time the rule was
written. When the existing rule was finalized, ``viability'' was a
general concept not associated with specific scientific
interpretations. Since 1982, however, the concept of viability has
become the object of intense discussion and varying interpretation
within the scientific community. The extensive and expensive amount of
scientific expertise, data, and technology needed for conducting
species viability assessments as currently described in the scientific
literature is far beyond what was originally envisioned by the
Committee of Scientists when developing the planning rule.
Even when addressing the overall topic of diversity, the Committee
of Scientists clearly had not envisioned the type of highly
quantitative analysis which has come to be associated with viability
assessments. The Committee stated, ``We analyzed the issue in our
report and stressed that, in our opinion, Congress used the term
diversity to refer to biological variety rather than any of the
quantitative expressions now found in the biological literature.''
(Rules and Regulations, Final Environmental Impact Statement, Appendix
E--Supplementary Final Report of the Committee of Scientists (August
17, 1979), 44 FR 53967 (September 17, 1979)).
Furthermore, the current regulatory requirement is ``to insure
viable populations will be maintained.'' As a practical matter, there
is a growing recognition that a requirement to ``insure'' viable
populations, if interpreted literally, envisions an outcome impossible
to be guaranteed by any agency, regardless of the analytical resources
marshalled.
Rather than continuing use of a regulatory term which is subject to
such varying interpretations and expectations, Option I would define
more precisely what is required for species protection. This approach
in Option I is consistent not only with the original intent of the
regulation, but also with the underlying statute.
Second, the analysis needed to meet the requirements of Option I is
better defined, more meaningful, and more capable of accomplishment
than the analysis some associate with the existing rule. Species
viability analysis has evolved to where it currently involves such
information as species habitat needs, trends in habitat capability,
trends in other factors affecting population (e.g.--disease, predation,
overutilization), relationship of habitat capability to population
numbers, population demographics (e.g.--reproductive success, sex
ratios, mortality rates), effective population size, genetic
measurements, and development of risk assessments. The
[[Page 18896]]
technology, data, and scientific expertise to conduct and maintain
numerous scientifically sound viability analyses given current
scientific interpretations is far beyond what is available to any
agency or scientific institution. Although the agency's position has
been upheld in court that the requirements of Sec. 219.19 of the
existing rule can be met without such complex analyses, the proposed
rule offers a timely opportunity to clarify analytical expectations.
In addition, it is expected that for most sensitive species, the
requirements of (b)(5)(ii)(B) of Option I of the proposed rule can be
met using habitat capability information. Analyses involving population
demographics and prediction of population trends, which requires far
more extensive and costly data, would likely only be needed when a
continuing downward trend in habitat capability is predicted to be
leading toward the listing or extirpation of the species. In addition,
it is intended that there be no circumstances where Option I of the
proposed rule would trigger the need for studies of long-term genetic
diversity, in contrast to the case if thorough viability assessments
were to be required.
Furthermore, Option I of the proposed rule recognizes that
individual sensitive species may often be able to be grouped into
assemblages of sensitive species with similar habitat needs. By
focusing on assemblages of sensitive species rather than individual
species whenever possible, analytical burden and costs are reduced
without impairment to species protection.
The third key difference between the proposed approach to sensitive
species in Option I and that in Option II is the scope of the species
addressed. In contrast to Sec. 219.19 of the existing rule which
addresses only native and desired non-native vertebrate species, Option
I the proposed rule would include vertebrates, invertebrates, vascular
plants, bryophytes, fungi, and lichens. This is appropriate since
species other than vertebrates play an important role in ecosystems and
merit protection when at risk.
The scope of proposed Option I also varies from the existing rule
in that it would include as sensitive species only those species at
risk range-wide; that is, those species imperiled throughout their
range. For example, a plant species abundant in several States, but
very limited in a particular plan area, would not be of range-wide
concern and thus would not be identified as a sensitive species under
Option I of the proposed rule.
The agency believes the focus on species on range-wide concern is
appropriate in order to address the two underlying reasons for
protecting sensitive species: (1) To address how the agency will meet
the NFMA goal of providing a diversity of plant and animal communities,
and (2) to attempt to preclude the listing of species under ESA. Both
are achieved by proposed Option I without expanding the scope of
sensitive species to include those of only local concern.
Option I of the proposed rule puts considerable emphasis on
providing a diversity of plant and animal communities. For example, the
provisions of proposed Sec. 219.4 address establishing forest plan
direction for sustainable ecosystem conditions, soil and water
protection, protection of rare natural communities, protection of
threatened and endangered species, and protection of sensitive species
in order to attempt to prevent extirpation from the plan area or
listing under ESA. These all work together to provide a diversity of
plant and animal communities within the plan area.
Under the ``coarse filter/fine filter'' concept, the ecological
conditions which will occur as a result of these various provisions for
providing diversity should meet the needs of many species of local, but
not range-wide, concern. For example, many species of local concern,
but not at risk range-wide, are associated with rare natural
communities addressed in the proposed rule at Sec. 219.4(b)(3). The
agency believes that adding yet another ``fine flter'' layer of
protection, by including as sensitive species those not at risk range-
wide, and the extensive additional analysis this would require, goes
beyond what is necessary to meet the two underlying reasons for
protecting sensitive species. It should be noted, however, that nothing
in the proposed rule precludes the Forest Service from working with
State agencies and organizations to determine whether to protect
species of local concern even though such protection would be beyond
the requirements of Option I of the proposed rule.
The fourth key difference between the approach to sensitive species
in Option I and the alternative text in Option II is the goal of
protective measures. Under the existing rule, the goal is to ensure
that viable populations are maintained. But, as explained previously,
the concept of a ``viable population'' has been subject to evolving
interpretations. Option I of the proposed rule would make the goal much
more explicit; that is, for sensitive species, to prevent their listing
under the ESA and to prevent their extirpation from the plan area. This
second goal is deemed appropriate because, for species of range-wide
concern, the agency feels it is undesirable to lose their
representation from the plan area due to their contribution to
providing a diversity of plant and animal communities. Under some
circumstances the first goal, to prevent listing of a sensitive
species, may not be adequate to prevent extirpation of a sensitive
species from the plan area because a species extirpated from one plan
area may not necessarily be more prone to listing as threatened or
endangered.
The final key difference is the Option I of the proposed rule would
not require the identification of management indicator species. As
noted in the 1991 Advance Notice of Proposed Rulemaking, there is
diminishing scientific support for focusing solely on individual
species as indicators of the welfare of a group of associated species.
Instead of requiring management indicator species, the monitoring and
evaluation provisions of the proposed rule would allow for establishing
whatever measurable indicators are appropriate in order to determine
progress towards achieving goals. In some cases, individual species may
be an appropriate measure of whether ecosystem goals are being achieved
and can be used as indicators.
Dynamic Nature of Ecosystems. Paragraph (c) of proposed Sec. 219.4
recognizes the dynamic nature of ecosystems and the importance of
evaluating ecosystem disturbances in the context of ecological
processes and resilience. Ecosystem disturbances are those events that
significantly change the existing pattern of an ecological system.
Examples of such disturbances include both natural or human-induced
phenomena such as wildfires, floods, or oil spills. Resilience is a
term used to describe the ability of an ecological system to maintain
its functions despite disturbance.
Paragraph (c) recognizes that disturbances are a natural and
sometimes even essential part of many ecosystems. Similarly, other
changes may be naturally occurring within an ecosystem, such as the
progression of vegetation from one seral stage to another over time.
Therefore, sustaining an ecosystem does not imply reaching or
maintaining a static condition, but rather managing in such a way that
naturally occurring disturbances and changes allow the ecosystem to
retain the characteristics which provide resiliency.
Some examples of ecosystems in which disturbance is required for
[[Page 18897]]
sustainability are the fire-adapted pine forests. Lodgepole pine and
sand pine communities require stand replacement fire (or some
surrogate) to sustain those communities through time. Ponderosa pine
and longleaf pine communities require recurring, low intensity fires to
sustain the structure and functioning of the ecosystem.
Paragraph (c) would assure that forest plan direction intended to
maintain or restore sustainable ecosystems was developed with
recognition of the dynamic nature of ecosystems and natural role of
disturbances. It should be noted that this provision does not
specifically require analysis of the ``range of natural variability''
or require that future conditions stay within historic ranges of
variability. The value of the ``range of natural variability'' in
gaining a better understanding of sustainable ecosystem conditions is
recognized, but the agency does not intend to mandate that all forest
plans must provide for conditions within such a range.
Multiple Spatial Scales. Paragraph (d) recognizes that ecosystems
exist at multiple scales and are infinite in number. For example, the
span of ecosystems can range from the microscopic world of life
occurring on the trunk of a fallen tree to the range of a migratory
bird that travels annually from the tropics to the arctic. It is
impossible and unnecessary to expect a forest plan to address all of
the ecosystems which occur within a plan area. Therefore, paragraph (d)
would establish that the forest plan should address those ecosystems of
most relevance to forest plan decisionmaking, with the intent being to
limit efforts to a practical number and scope.
Role of Lands Outside the Plan Area. Consideration of conditions
outside the plan area is an integral part of the concept that Federal
lands should be managed from an ecological perspective rather than one
limited by jurisdictional boundaries. This consideration must occur,
however, without detriment to the rights of private landowners or the
authorities of other government jurisdictions. Paragraph (a) of this
section of the proposed rule would, in part, direct consideration of
the contribution of lands outside the plan area when establishing
forest plan direction. For example, when evaluating the habitat
capability of a sensitive species, the quality, quantity, and
distribution of habitat within the species' range would be considered
in the context of the plan area. However, this consideration does not
mean that the forest plan would in any way address how to manage these
other lands. Instead, the responsible official might choose to alter
decisions in the forest plan regarding management of National Forest
System lands due to conditions on these other lands, if that should be
determined to be desirable to help maintain or restore sustainable
ecosystems.
Protection of soil and water resources. Paragraph (b)(2) would
address soil and water resources. This paragraph of the proposed rule
would not only provide for forest plans to address the protection of
soil and water resources, but also the restoration of existing
conditions harmful to soil and water quality.
Section 219.5 Framework for Resource Decisionmaking
Paragraph (a) explains that the agency uses a staged decisionmaking
process, with forest plans being used to allocate the lands and
resources of the plan area through management prescriptions, and
project decisionmaking being the point at which site-specific
activities are authorized. Paragraph (a) also explains that forest plan
and project decisions must adhere to legal requirements and that an
additional source of direction guiding management of the National
Forest System is direction issued through the agency's Directive
System.
The staged decisionmaking process described in the proposed rule is
consistent with a series of administrative appeal decisions. These
include the Chief's appeal decision on the Idaho Panhandle Land and
Resource Management Plan (Appeal No. 2130, August 15, 1988); the
Chief's appeal decisions on the Flathead National Forest Land and
Resource Management Plan (Appeals No. 1467 and No. 1513, August 31,
1988). For court decisions upholding the staged decisionmaking approach
of forest plan and project levels, see Cronin v. USDA, 919 F.2d 439,
447-49 (7th Cir. 1990); Idaho Conservation League v. Mumma, 956 F.2d
1508, 15511-12 (9th Cir. 1992); Resources Ltd Inc. v. Robertson, 789 F.
Supp. 1529 (D.Mt. 1991) aff'd in part (NEPA, NFMA) and reversed in part
(ESA), 8 F.3d 713 (9th Cir. 1993) (amended July 5, 1994); Swan View
Coalition v. Turner, 824 F.Supp. 923 (D. Mt. 1992); Sierra Club v.
Robertson, 810 F.Supp. 1021 (W.D. Ark 1992); Eighth Circuit found no
standing and alternatively affirmed lower court on the merits, 23 F.3d.
753 (8th Cir. 1994).
There is currently a conflict between the Eighth and Ninth Circuits
as whether the forest plans without a project decision present a
justiciable controversy. ``We are aware that on several occasions the
Ninth Circuit has entertained challenges to forest plans similar to the
Plan here in issue. [citations deleted] * * * we decline to apply them
[Ninth Circuit decisions] as a basis for finding that the appellants
have standing to attack the Plan outside the context of a proposed
site-specific action that causes or threatens to cause injury in
fact.'' Sierra Club v. Robertson, 28 F.3d 753, 759-60 (8th Cir. 1994).
See also, Wilderness Society v. Alcock, F. Supp. (N.D. Ga. September
30, 1994) finding the Eighth Circuit reasoning more persuasive and
holding that plaintiffs' claims against approval of the Cherokee forest
plan did not present a justiciable controversy.
Even the Ninth Circuit recognizes that forest plan EIS's are ``an
early stage, where the EIS is `merely' programmatic.'' Idaho
Conservation League v. Mumma, 956 F.2d at 1523. The Ninth Circuit has
also held that when a programmatic EIS ``is prepared, site-specific
impacts need not be fully evaluated until a `critical decision' has
been made to act on site development.'' Salmon River Concerned Citizens
v. Robertson, 32 F.3d 1346, 1357 (9th Cir. 1994).
Paragraph (a)(1) describes the first stage of the agency's staged
decisionmaking process--forest plans. Forest plans allocate the land
and resources of the plan area through management prescriptions which
consist of goals, objectives, standards, and guidelines.
Paragraph (a)(1) would also establish a key point essential to
understanding the nature of a forest plan; i.e., that forest plans do
not compel the agency to plan for or undertake any specific projects,
but do establish limitations on actions that may be authorized later
during project decisionmaking. This concept is central to understanding
the role of a forest plan and is addressed in more detail under the
preamble discussion of Sec. 219.6.
Paragraph (a)(1) also would clarify that forest plans must not
conflict with laws or regulations and should not conflict with policy
and procedure issued through the Forest Service Directive System.
Although it has generally been understood that forest plans must not
conflict with laws or regulations, there is not such common
understanding of the relationship of directives issued through the
Directive System to forest plan direction. The proposed rule seeks to
end this misunderstanding. As noted in paragraph (b)(1), any conflict
with an agency directive should be identified and the rationale for not
complying with such a directive provided at the time of forest plan
amendment or revision. The relationship between forest plans and
[[Page 18898]]
directives is addressed in further detail under the preamble discussion
of Sec. 219.5(b)(2).
Proposed paragraph (a)(1)(i) would limit the area covered by a
forest plan to one or more National Forests and/or other units of the
National Forest System within the jurisdiction of a single Forest
Supervisor. One forest plan can be developed, however, when a single
National Forest is administered by several Forest Supervisors.
Currently, the Tongass National Forest in Alaska is the only National
Forest administered by more than one Forest Supervisor. These
provisions are not substantively different from the requirements of the
existing rule at Sec. 219.4(b)(3).
Establishing a plan area based on administrative boundaries may
appear to conflict with the principles of ecosystem management. Some
may argue that resource planning should occur based on areas with
shared ecological conditions rather than on boundaries established for
administrative purposes. The agency recognizes the benefits that can be
gained from taking a more ecological approach to establishing the area
to be encompassed by a forest plan. In the long run, a realignment of
plan boundaries should be considered. In the short-run, however, there
are practical considerations for continuing the current approach.
First, NFMA does not clearly articulate the area to be covered by a
forest plan. Although Section 6(f)(1) of NFMA directs ``one integrated
plan for each unit of the National Forest System,'' a unit is not
specifically defined. The determination of the unit for planning is
complicated by provisions of Section 13 of NFMA, which require certain
limitations on timber removal to be determined on a National Forest
basis. Provided such timber-related requirements could be met, the
agency believes it does have discretion under the statute to redefine,
through a new rule, the geographic area to be covered by a forest plan.
However, realigning the entire National Forest System into a new
set of plan areas for forest planning introduces significant new and
immediate challenges. For example, where should new boundaries be
drawn? Ecosystems exist at a variety of scales, and ecological units
can be defined variously. Determining the best boundaries for planning
purposes is not a simple process. How can the public be involved in
delineating the new plan area? How might a change in boundaries of the
plan area affect the public's interest and ability to participate in
the planning process? Might the change be perceived to be more
advantageous to some segments of the public than others? How would such
a change effect National Forests where revision efforts are already
underway or scheduled to begin in the near future? How should such a
realignment be coordinated with the planning efforts of other agencies
and governments? These are questions which the agency is currently not
prepared to answer, but which merits careful examination before changes
in plan area boundaries should occur.
This agency also recognizes that roughly two-thirds of all forest
plans are or will be undergoing either significant amendment or
revision in the next 1-2 years. Redefining plan areas would delay
revision, which would be detrimental to the public interest and to
resource management, as well as increase the risk of exceeding the 15-
year period between revisions. Rather than introducing a complex and
time-consuming new decision to be made before initiating the planning
process, the agency expects to take various administrative actions to
mitigate the disadvantages of planning based on administrative
boundaries.
For example, planning efforts can be synchronized among those
National Forests that share ecological characteristics through the use
of joint planning teams and development of parallel schedules.
Similarly, the mechanism for simultaneous plan amendment or revision,
as addressed at proposed Sec. 219.5(a)(1)(ii), is intended to
facilitate achieving such coordination across plan area boundaries.
Proposed paragraph (a)(1)(ii) would permit forest plan direction to
be established for more than one plan area by simultaneously amending
or revising the appropriate forest plans. Since this occurs through the
amendment or revision of forest plans, NEPA procedures would still
apply. For example, if the Regional Forester wanted to establish a
forest plan standard for all lands within the range of a particular
wildlife species, and the range encompassed three plan areas, the
Regional Forester could establish a new standard by simultaneously
amending those three forest plans, with associated NEPA disclosure of
effects.
The concept of simultaneous amendment or revision is an essential
part of integrating ecosystem management into the agency's resource
decisionmaking framework. Ecosystem management necessitates a flexible
approach to the spatial scale for planning and decisionmaking; the
proposed approach allows resource decisions to be made at whatever
scale is appropriate. Even though a forest plan document itself is
limited to administrative boundaries, the forest plan direction it
contains can be derived from analysis and decisions at any appropriate
scale or land area regardless of administrative boundaries.
The proposed rule would discontinue regional guides as required by
the existing rule. As noted in the Advance Notice of Proposed
Rulemaking, agency experience has shown that regional guides may no
longer be the most effective and efficient means for providing regional
direction. In reality, most regional guides did not fully achieve the
role of being the meaningful or effective documents originally
envisioned. Moreover, the rigorous requirements of Secs. 219.8 and
219.9 in the existing rule siphoned a significant investment of
staffing and funds from forest or project planning efforts. The
provision for simultaneous amendment or revision would provide a means
to establish resource direction at a regional scale, or any other
appropriate scale, and, therefore, is believed to be a more effective
approach to providing multi-forest direction than a regional guide.
Proposed paragraph (a)(2) would identify project decisions as the
second stage of the agency's decisionmaking process. The proposed rule
would make clear that it is at the project level that the authorization
is made to conduct resource activities, not at the forest plan level.
Paragraph (a)(2) would also make clear that NEPA procedures must be
followed when approving a project, and projects must be consistent with
the forest plan.
As discussed previously, various court decisions have upheld the
staged decision approach of forest plans and project decisionmaking.
One important basis for this staged approach and the relationship
between forest plans and projects rests largely upon the requirements
for compliance with NEPA. In a landmark court case (State of California
v. Block, 690 F.2d 753 (9th Cir. 1982)), the Ninth Circuit stated that
``the critical inquiry in considering the adequacy of an EIS prepared
for a large scale, multi-step project is not whether the project's
site-specific impact should be evaluated in detail, but when such
detailed evaluation should occur.'' The court determined that ``[t]his
threshold is reached when, as a practical matter, the agency proposes
to make an irreversible and irretrievable commitment of the
availability of resources to a project at a particular site.''
As a practical matter, it is impossible for a forest plan to
identify all of the projects to be implemented for a 10-year period,
adequately disclose their site-
[[Page 18899]]
specific environmental effects in an accompanying environmental impact
statement, and comply with the multitude of statutes and regulations
applicable to project activities. Furthermore, new information
regarding the relationship among proposed projects and effects of
proposed actions within a forest is constantly being developed. No
matter how sophisticated forest models become, it is doubtful that the
order and relationship of possible activities can ever be forecast with
enough precision at the forest plan approval stage to meet the
requirements of environmental laws or correspond to the realities of a
changing world. In addition, many activities occurring on a forest are
initiated by forest users and not the Forest Service. The relationship
of projects initiated by others and projects planned by the Forest
Service is continuously changing. Thus, the forest plan is best viewed
as a dynamic management system that provides the framework for further
decisionmaking at the project level.
Under the existing rule, project decisions can be made in a forest
plan provided they are identified in the Record of Decision and
adequately disclosed in associated NEPA documents. The proposed rule
would eliminate this Option in order to clarify the distinction between
the two stages of decisionmaking and because this option has not been
commonly used in the past.
The two-stage decisionmaking process described in the proposed rule
does not preclude multiple steps at the project level. Examples include
some multi-stage recreational development decisions such as for ski
areas (Robertson v. Methow Valley Citizens Council, 490 U.S. 322, 336-
37 (1989)), or the multiple decision points in oil and gas leasing,
exploration, and development where a series of decisions is made over
time (see 36 CFR 228, 228.102 (55 FR 10423, March 21, 1990)). In most
cases, however, project decisions are not of this complexity, and the
project decision occurs in a single step.
Paragraph (b) of proposed Sec. 219.5 would explain how forest plans
are to be reconciled with changing legal requirements, new agency
directives, or new information from other planning efforts. In
accordance with proposed paragraph (b)(1), if a change in law or
regulation conflicts with forest plan direction, the Regional Forester
must direct that the plan be brought into compliance following the
procedures of Sec. 219.9 or Sec. 219.10 and specify the timing for
doing so. The proposed provision to permit nondiscretionary changes at
Sec. 219.9(e) provides a mechanism for quickly changing forest plan
direction to respond to changes in legal requirements for which there
is no discretion in the manner of compliance.
Proposed Sec. 219.5(b)(2) (i) and (ii) address responsibilities
regarding reconciliation of forest plans with changes in agency
direction issued through the Directive System. As described at
paragraph (b)(2)(i), an official issuing a directive must determine if
forest plans are to be made consistent with a newly issued directive
when it appears that the directive would conflict with forest plan
direction. If so, the official must specify that plans be changed
following the procedures of Sec. 219.9 or Sec. 219.10 and the timing
for doing so. In the event of conflict between an agency resource
directive and direction in a forest plan, the forest plan takes
precedence. Accordingly, the agency maintains discretion to determine
when a forest plan should be amended to be consistent with agency
directives. As stated at Sec. 219.5(a) of the proposed rule, agency
directives are subject to NEPA procedures, as is the process for forest
plan amendment.
Reconciliation of forest plans and agency directives as described
at paragraph (b)(2)(ii) addresses those situations where a directive
has been issued, but it was not readily apparent at the time that it
might conflict with forest plans. To address such situations, the
Forest Supervisor is responsible for periodically reviewing resource
management amendments or supplements to the Directive System as part of
the monitoring and evaluation process. If a conflict occurs between
forest plan direction and a newly issued directive, the Forest
Supervisor must either amend the forest plan so that it no longer
conflicts with the directive, or notify the Regional Forester why such
an amendment is not deemed appropriate. Consistent with agency policy
at FSM 1103, if the directive had been issued at the National level,
the Regional Forester would be expected to notify the Chief of the
concerns with the newly issued directive.
The provisions of (b)(2)(i)-(ii) are closely related to the
provision of paragraph (a)(1) of this section which directs that where
there is substantial conflict between a resource management directive
and a forest plan amendment or revision, the responsible official is
expected to identify the conflict and include the rationale for the
departure in the decision document. In order to enhance understanding
of these provisions, a brief explanation of the Directive System is
provided as follows.
The Forest Service Directive System consists of the Forest Service
Manual and Handbooks in which the agency's policy, practice, and
procedure are codified. The system serves as the primary basis for the
internal management and control of all programs and as the primary
source of administrative direction to Forest Service employees. The
Forest Service Manual contains legal authorities, management
objectives, policies, responsibilities, delegations, general
instructions, and guidance needed on a continuous basis by Forest
Service line officers and staff at more than one unit to plan and
execute programs. New or revised direction is issued by amendment or
interim directive, whereas direction which expands on directives issued
by a higher level is issued by supplement. For example, a Regional
Forester may issue a regional supplement in order to expand on the
national direction issued by the Chief.
Directives issued through the Directive System are subject to NEPA
procedures. In addition, issuance of some Manual direction may be
subject to public notice and comment procedures in accordance with 16
USC 1612 and 36 CFR 216.6(a), which requires public notice and comment
for standards, criteria, and guidelines, when substantial public
interest in or controversy over a proposed Manual directive can be
expected. Reviewers are encouraged to study 16 USC 1612 and 36 CFR part
216 if further information is desired on public review and comment
related to changes in Manual direction.
As previously noted, there are two main reasons why it is important
to consider agency directives when amending or revising forest plans.
First, it would be unreasonable and illogical for forest plans to
substantially conflict with officially established agency objectives,
policy, and procedure. Although direction in an approved forest plan
would take precedence in case of a conflict, such conflicts should be
avoided when establishing forest plan direction to prevent conflicts in
performance expectations and potential loss of national or regional
consistency.
A second reason for identifying any substantial conflicts between
forest plans and agency directives at the time of amendment or revision
relates to the nature of agency directives. Some directives have been
established through extensive agency effort and adopted following
public review and comment procedures under 36 CFR part 216; for
example, the agency's policy and procedures for reauthorizing
recreation residences (FSM 2300 and
[[Page 18900]]
2700). Other policies are required to be published for comment under
other statutes; for example, the regulations implementing NEPA at 40
CFR parts 1500-1508 require the agency's NEPA policy and procedures, as
issued in FSM Chapter 1950 and FSH 1909.15, to be published. On the
other hand, not all agency directives are fully up-to-date, and some
inconsistencies may and often do exist within the Directive System.
Allowing the responsible official the flexibility to depart from agency
directives, provided a rationale is given, will prevent forest plans
from having to adhere to inappropriate or outdated agency directives
and also will help the agency identify where directive changes are
needed. The flexibility to be provided in the planning rule is
consistent with current policy in FSM 1103 which requires employees to
notify higher authorities when departure from direction is deemed
necessary or when directives need to be revised.
It is not anticipated, however, that there will often be
substantial conflict between forest plans and agency directives. First,
the proposed rule provides for greatly reducing the amount of
repetition between forest plans and directives (Sec. 219.6(b)(2)).
Second, the provision for simultaneous plan amendment or revision, as
addressed at Sec. 219.5(a)(1)(ii), provides a mechanism for
establishing direction known to affect more than one plan, thus
eliminating the need to establish such direction through the Directive
System. Third, directives are generally very broad and programmatic in
nature, thus leaving considerable discretion for forest plans and
project decisionmaking to establish more precise and site-specific
direction. As a result, there are generally ample opportunity to
establish more detailed direction at the forest plan or project stage
without substantially conflicting with directives. Fourth, paragraph
(a)(1) applies to resource management directives that would conflict
with forest plan direction. Directives which provide procedural
guidance on the process for amending or revising forest plans is not
encompassed by the requirement.
Paragraph (b)(3) would address the link between the RPA Program and
forest plans. Following adoption of a new RPA Program, the Chief would
determine those elements of the RPA Program that should be considered
in forest plan implementation, monitoring, and evaluation as well as
establish any necessary agency-wide procedures to achieve this. In
addition, Sec. 219.12(a)(1)(vii)(A) of the proposed rule would require
the monitoring and evaluation process to consider a newly issued RPA
Program. As a result, there would be a link established whereby each
new RPA Program would be reviewed to determine whether there is new
information which makes it appropriate to initiate forest plan
amendment procedures.
Paragraph (b)(4) would direct Forest Supervisors, as part of
monitoring and evaluation, to periodically review results of any
applicable ecosystem analyses that have been completed subsequent to
plan approval to determine if there is new information which would
indicate the need to consider changing the forest plan. Although
ecosystem analysis is not a decision process, it may generate
information that indicates a need to consider changing a resource
decision.
Section 219.6 Forest Plan Direction
Paragraph (a) of this section of the proposed rule would direct
that forest plans provide for integration and coordination of all
resources on a multiple-use and sustained-yield basis. This paragraph
lists the numerous resources to be addressed in a forest plan when such
resources occur within the plan area. It also would assure that forest
plans address infrastructure needs and land ownership and access
patterns to the extent appropriate. None of this would represent a
change from the scope of most current forest plans.
Although forest plans address the full range of resources found
within the plan area, this regulation does not attempt to provide
direction for management of individual resources except where necessary
to respond to specific requirements of NFMA. In contrast to the
existing rule which contained 13 sections on individual resources, the
proposed rule does not include such detailed direction. For example,
the proposed rule does not define goals and objectives for specific
resources nor prescribe requirements for how each resource will be
evaluated during amendment or revision of forest plans. It is the
agency's intent to provide through directive issuances any additional
direction necessary to specify how individual resources are addressed
in forest plans.
The agency believes this planning regulation should stay focused on
the specific requirements of NFMA, the authorizing statute. It would be
beyond the reasonable scope of any one regulation to address all of the
laws, regulations, and Executive orders under which National Forest
System resources are managed. In addition, the shift to an ecosystem
management orientation diminishes the relevance of focusing on
individual resources, and supports the need for the more holistic
approach taken in the proposed rule.
Proposed paragraph (b) provides that a forest plan allocates the
land and resources of the plan area through management prescriptions
which consist of goals, objectives, standards, and guidelines. These
four types of direction, and the maps or similar information
delineating where they are applicable, constitute forest plan
direction. It is important that the proposed rule clearly define what
constitutes forest plan direction, since plan direction can only be
changed by amendment. Other information within the forest plan document
is not forest plan direction and can be updated without going through
amendment procedures.
The existing rule is not explicit regarding the nature of forest
plan decisions, resulting in some confusion by both the public and
employees over the years. As noted in the preceding discussion of
proposed Sec. 219.5, the nature of a forest plan under the existing
rule has been articulated through a series of administrative appeal
decisions and court decisions. The proposed rule reflects many of these
decisions and explicitly defines forest plan direction and the contents
of the forest plan document.
In Citizens for Environmental Quality v. Lyng, 731 F. Supp. 970,
977-78 (D. Colo. 1989), the court upheld the agency's position under
the existing rule regarding the decisions made in forest plans. That
court decision confirmed that approval of a forest plan results in: (1)
Establishment of forest multiple-use goals and objectives; (2)
Establishment of forest-wide management requirements (standards and
guidelines) applying to future activities; (3) Establishment of
management areas and management area direction (management area
prescriptions) applying to future activities in that management area;
(4) Designation of suitable timber land and establishment of allowable
timber sale quantity; (5) Nonwilderness allocations or wilderness
recommendations; and (6) Establishment of monitoring and evaluation
requirements.
Forest plan direction, as defined at proposed paragraph (b), in
concert with other provisions of the proposed rule, overlap most, but
not all, of the six items identified as forest plan decisions in
Citizens for Environmental Quality v. Lyng. For example, goals,
objectives, standards, and guidelines--both on a forest-wide basis and
for specific portions of the plan area--are terms common to both the
existing rule and
[[Page 18901]]
the proposed rule. The definition of ``objectives'' has been modified
in the proposed rule, however, as explained at the preamble discussion
of Sec. 219.6(b)(1) and (d). Also, under both the existing and proposed
rule, management prescriptions are the means by which direction is
allocated to specific portions of the plan area. Similarly, although
designation of suitable timber land, nonwilderness allocations, and
wilderness recommendations are not individually identified in proposed
Sec. 219.6, they are encompassed by the management prescriptions
described at Sec. 219.6(b) and are addressed specifically at
Sec. 219.13(b)(2) and Sec. 219.14.
Although the term ``management area'' has not been used in the
proposed rule, nothing in the rule prohibits continuation of the
traditional use of the term, and some mechanism for delineating where
direction applies is required regardless of the terminology used. It is
anticipated that the term ``management area'' will continue to be used
in many forest plans. The proposed rule has not required the use of
this term in order to allow the flexibility to develop other terms, if
beneficial, to describe the areas to which specific management
prescriptions apply. This flexibility is desirable since ecosystem
management has heightened the likelihood of direction being established
at a variety of scales, and more effective ways may be possible to
delineate where a management prescription applies than the traditional
management area concept.
Although there is considerable overlap between the six decisions
resulting from forest plan approval under the existing rule and forest
plan decisions under the proposed rule, two points of notable
difference relate to forest plan objectives and monitoring and
evaluation requirements. These differences are addressed in this
preamble discussion of Secs. 219.6(b)(1), 219.6(d), and 219.12.
Under paragraph (b)(1) of proposed Sec. 219.6, projected levels of
goods and services or projected levels of management activities would
not constitute forest plan direction. In addition, the proposed rule
makes explicit that any projections of the rate of achieving desired
resource conditions would not be forest plan direction.
Based on the definition of ``objectives'' provided in the existing
rule, ``objectives'' as used in the existing rule would encompass the
types of projections addressed in proposed paragraph (b)(1). The
proposed rule would make clear that such predictions addressing the
rate of implementation are not forest plan direction. For example,
under the proposed rule the forest plan would define resource
conditions desirable to achieve, but would not address the rate at
which achievement should occur. Instead, any such projections of the
rate of achievement would be provided in an appendix in accordance with
Sec. 219.11(d).
These changes are proposed for two reasons. First, experience has
shown that the rate at which forest plans will be implemented cannot be
established for a 10-year period. As explained earlier, the agency's
decision framework provides for staged decisionmaking, with project
decisions, rather than the forest plan, being the point at which site-
specific activities are authorized. Decisions to approve and implement
individual projects are subject to many variables, such as the results
of project-level NEPA analysis, availability of funding, agency
priorities, administrative appeals, and litigation. Since the rate at
which forest plans can be implemented is based on decisions which occur
during the plan period rather than decisions that can be made at the
time of approving or revising a forest plan, it is important to make
clear that the rate of implementation is not a decision that can be
made in the forest plan.
Second, if rate-specific direction were to be included in a forest
plan, it increases the likelihood of creating a false expectation that
specific implementation rates, particularly levels of goods and
services, can be assured during the 10-year plan period. As already
noted, the agency cannot provide such guarantees. Elimination of rate-
specific projections from forest plan direction, in concert with the
provisions of Sec. 219.11(d), should enhance understanding of the
agency's staged decisionmaking process and produce more realistic
expectations of what may occur during the plan period.
While excluding any rate-specific objectives from forest plan
direction may appear to some to be a major change from the existing
rule, this approach is consistent with a variety of court decisions
which have affirmed the agency's staged decisionmaking process and
verified that the agency has no obligation to produce the goods and
services or to undertake the management activities identified in forest
plans. The most notable actual difference resulting from the proposed
rule would be that projections of implementation rates can be updated
during the plan period without amendment procedures.
The approach that would be taken under proposed paragraph (b)(1)
also represents an evolution in understanding of the relationship
between forest plans and the agency's process for formulating budgets.
In the past, there have been expectations that the objectives in forest
plans would drive the budget process; that is, that funds would be
requested at whatever level was necessary to achieve the objectives of
the forest plan over the course of a decade, and any lower funding
level was interpreted as less than full implementation of the forest
plan by many people. In addition, most forest plans were developed
without imposing budget constraints, so there was no attempt to
establish objectives at levels that reflected probable budget levels.
Over time, the agency has recognized the shortcomings of these earlier
expectations and approaches, and has been re-evaluating and clarifying
the link between forest plans and the budget process.
The proposed rule is consistent with the recommendations of a
national team of Forest Service personnel chartered to study the
linkage between budgets and forest plans. Rather than expecting the
forest plan to define a desired rate of implementation to guide the
budget process, the proposed rule would result in a process where
budgets are formulated by considering forest plan direction, the
results of monitoring and evaluation, and continuously updated
information regarding national and agency priorities. This approach
recognizes that annual program development and budgeting, rather than
the forest plan, is the most timely and effective mechanism for
responding to the continuously changing information which influences
the rate at which plan goals can be achieved.
Proposed Sec. 219.6(b)(2) would direct that forest plans focus on
management of the resources specific to the plan area. It would further
explain that forest plans should generally not provide direction on
procedural aspects of how future project decisions will be made nor
repeat other direction established through the Directive System,
regulation, Executive order, or law. The existing rule does not have a
comparable requirement, and this does represent a change from the way
most current forest plans have been developed.
A sample of forest plans has been reviewed to determine the amount
of overlap between direction in forest plans and direction already
established through the Directive System, regulation, Executive order,
or law. In one case, almost all of the forest-wide
[[Page 18902]]
goals and about half of the standards and guidelines overlapped
direction that was already established and applicable to almost any
National Forest in the country. Although the percentage of overlap
varies with each plan, this sample does not appear to be exceptional.
It seems there is a high degree of repetition in forest plans of
direction that has already been established and applicable to most plan
areas.
This repetition results, in part, from the desire to provide in one
document all the direction applicable to the plan area. The reality,
however, is that given the volume and breadth of laws, Executive
orders, regulations, and agency directives that apply to National
Forest lands, it is infeasible to consolidate all of that direction
into one document. While some forest plans may currently appear to
encompass all relevant direction, it is inevitable that one must still
refer to other sources to fully grasp all of the direction applicable
to the plan area.
There are four main sources of overlap which would be eliminated
under the proposed rule. First, forest plans would not restate goals or
policies that are already established by law, regulation, Executive
order, or agency directive. Secondly, forest plans would not repeat
procedural direction on how to conduct project analysis and
decisionmaking. This type of administrative procedure is appropriate to
issuance in the Directive System and not in forest plans. Under the
proposed rule, forest plans will be clearly focused on desired resource
conditions for the plan area, focusing on management of resources
rather than on management of the administrative processes used to make
decisions. For example, the Directive System is the definitive source
of agency guidance and information on how to conduct NEPA analysis and
should be the source of any guidance for conducting specific
evaluations or analyses required to make a resource decision.
Third, forest plans would not repeat instructions related to public
involvement and coordination with other government entities.
Considerable direction on these topics is already established by law,
regulation, Executive order, agency directive, and any additional
direction needed is appropriately issued through the Directive System.
Finally, procedural guidance on how to conduct routine professional
tasks would not be repeated in forest plans. For example, agency
directives describe how to locate hiking trails and factors to consider
when designing recreation sites. Such direction is applicable anywhere
in the country and, as a result, should not be repeated in a forest
plan. In contrast, if there are special circumstances in the plan area
that require establishment of specific standards or guidelines to
address local resource conditions, then such local direction would be
appropriate for the forest plan.
The agency anticipates several benefits from reducing the overlap
between forest plans and direction already established by law,
regulation, Executive order, or agency directives. First, forest plan
direction should be substantially shorter, making forest plans more
readable and easier to understand. Second, forest plans should be much
more focused on local conditions and management needs. Third, the
public should have a clearer understanding of the decisions that are
actually being made in the forest plan.
Paragraph (b)(3) of this proposed section would limit the main body
of the forest plan document to forest plan directionk. Other
information would appear in a brief preface or appendices. One benefit
is to make it easier for the reader to distinguish between forest plan
decisions and other information that may be found within the document.
Currently, it is often difficult for readers to quickly locate the
decisions made in the forest plan, and sometimes direction appears to
be repeated or intermingled in multiple locations. Another benefit of
this approach is that forest plans should be substantially shorter and
easier to understand.
Proposed paragraph (c) would describe the role and function of
forest plan goals. Goals would be concise statements that describe a
desired end result; they would normally be expressed in broad general
terms rather than quantitatively; and there would be no time period
specified for achievement. Forest plan goals would serve as the link
between broad agency goals already established through legal
requirements, agency directives, or the RPA Program and specific,
measurable desired resource conditions as defined by objectives in the
forest plan. As a result, they will help to translate national goals
into end results of more local relevance to the plan area. Pursuant to
paragraph (b)(2) of this proposed section, forest plan goals would not
repeat national goals, but would rather translate them into end results
more specific to the local conditions of the plan area.
Because forest plan goals are not quantitative in nature, progress
towards achieving goals is determined by monitoring achievement of the
measurable desired conditions established by forest plan objectives
and, if necessary, additional measurable indicators can be established
through the monitoring and evaluation process (Sec. 219.12(a)(1)(ii)).
Paragraph (d) describes the role of forest plan objectives.
Objectives would describe measurable desired resource conditions, or
ranges of conditions, intended to achieve forest plan goals. In many
cases, a range of conditions is likely to be a more desirable target
than a specific condition, because natural systems usually have ranges
within which some variation is typical and acceptable. In addition,
defining a desired range of conditions is appropriate when there is not
enough information to make a more precise statement, or when such
precision is not necessary, given the decision being made.
Paragraph (d) would make clear that objectives must be defined in a
manner that permits measurement of whether the objective is being
achieved. The ability to directly measure the achievement of an
objective, its greater degree of specificity, and its scope being
limited to resource conditions are the three features which help to
distinguish an objective from a goal. The proposed rule would explain
that objectives can be defined to encompass natural resource
conditions, conditions resulting from human influences, or the manner
in which resources are perceived. As further explained at the preamble
discussion of Sec. 219.6(b)(1), this use of the term ``objectives'' in
the proposed rule is not the same as use of the term in the existing
rule.
Paragraphs (e)(1)-(2) describe the role of forest plan standards.
These paragraphs would make explicit that standards are limitations on
management activities and that adherence to standards is mandatory.
They are the basis for determining if a project is consistent with the
forest plan (Sec. 219.11(a)).
One particularly important feature of standards is that they must
be defined in such a manner that they are clearly within the authority
or ability of the agency to enforce; that is, compliance must be within
the agency's control. This characteristic is essential, because under
the proposed rule standards it would be used for assessing project
consistency with the forest plan (Sec. 219.11). When undertaking a
project, the two things that the agency has the authority to control
are the specific activities authorized and how they are conducted. The
agency cannot control the actual results, however, since there are
usually various factors beyond the
[[Page 18903]]
agency's influence that can affect results. For example, usual weather
events or wildfires can affect actual on-the-ground results in
unpredictable and uncontrollable ways.
Proposed paragraph (f) describes the role forest plan guidelines
would play under the proposed rule. Guidelines would be used to
describe a preferred or advisable course of action. Unlike standards,
variation from a guideline does not trigger a forest plan amendment.
Guidelines would play two key roles.
First, guidelines would be used to describe a preferred or
advisable method of conducting resource activities. For example, a
guideline might recommend that shelters on hiking trails be located at
least one mile from trailheads. If terrain or other circumstances
related to a specific project made compliance infeasible, the
flexibility would exist to locate the shelter closer to a trailhead.
However, the guideline would have served to advise the responsible
official that construction of a shelter less than one mile to the
trailhead should not occur unless special circumstances exist.
Second, guidelines would be used to describe a preferred or
advisable sequence or priority for implementing various types of
projects when such guidance is useful in facilitating achievement of a
forest plan goal. For example, the forest plan might have a goal which
addresses the restoration of hydrologic processes in a particular
watershed. Various objectives could be defined describing resource
conditions associated with restoration of the hydrologic processes,
such as desired vegetative conditions within the watershed, the
presence of down woody material in the stream channel, stream
temperatures, or turbidity levels. Guidelines could be used if there is
a preferred sequence for implementing the types of projects that would
achieve these objectives and the ultimate goal. For example, if
revegetating exposed soils within the riparian area are needed more
urgently than soil restoration projects elsewhere in the watershed, a
guideline can indicate that priority. Such guidelines would not be used
to identify specific projects, but rather to specify if certain types
of projects should be implemented before others in order to achieve a
goal in the most timely manner.
Paragraph (g) would establish requirements for coordinating forest
plan direction across plan areas. The intent is to improve consistency
between forest plans. In many cases currently, it is difficult to
compare forest plan decisions for adjacent forests covered by different
forest plans, and direction often changes at an administrative boundary
even though the management situation appears to be identical. Paragraph
(g) recognizes that there may often be legitimate reason for
differences, but that, unless such reasons exist, forest plan decisions
within a Forest Service administrative Region and for plan areas
adjacent to the Region should be consistent in at least four ways.
First, management prescriptions for adjacent lands should be the
same. The direction for managing a specific area of land should not
change at the boundary between forest plan plan areas unless a good
reason exists for such change. In addiiton, maps used in the forest
plans should be consistent to facilitate review and comparison. For
example, this would mean using maps of the same scale and with the same
legends and formats.
Second, management prescriptions for specially designated areas
should be the same when they cross plan area boundaries, unless good
reason exists for change. For example, direction for managing a
wilderness area, scenic trail, or similar specially designated area
(Sec. 219.14) should not change simply because of a change in
administrative boundary.
Third, forest plan direction should be the same for adjacent areas
when findings of an ecosystem analysis or research used as a basis for
the direction are applicable to more than one plan area, unless local
circumstances justify variation. For example, if the research used as a
basis for establishing a habitat protection standard for a threatened
or endangered species applies to a broad area covered by several forest
plans, that standard should be the same in each of those plans, unless
valid reason existed to alter it.
Finally, consistency would be required in the use of terminology
and classification systems. The intent is to have the same terms and
classification systems used wherever feasible.
In summary, the provisions proposed in Sec. 219.6 would incorporate
the results of landmark administrative appeal decisions and court cases
which have clarified the nature and scope of decisions made in forest
plans. In addition, this section would establish a uniform approach to
what appears in the main body of the forest plan and what can be
presented in the preface and appendices. These changes to the contents
of a forest plan will result in shorter, simpler forest plans that are
easier to use and understand, as well as forest plans that are more
highly focused on direction specifically tailored for management of the
resources of the plan area.
Section 219.7 Ecosystem Analysis
This section would introduce the concept of ecosystem analysis to
the planning process, a topic not addressed in the existing rule.
Paragraph (a) would define ecosystem analysis as a broad term used to
denote various interdisciplinary studies conducted to provide
information on and enhance understanding of the physical, biological,
social, or economic aspects and interactions of an ecosystem. Because
the agency considers humans to be an integral part of ecosystems,
studies of social and economic aspects of ecosystems are within the
scope of these analyses. Ecoregion assessments and landscape-level
analyses are only two examples of the different types of studies that
are conducted at various scales which fall under the general umbrella
of ecosystem analysis.
Paragraph (a) would also address the geographic scope of ecosystem
analysis. It acknowledges that such analyses can be conducted at any
scale deemed appropriate, and emphasizes that areas subject to
ecosystem analyses should generally be delineated based on ecological
considerations rather than administrative or jurisdictional boundaries.
Reviewers are cautioned not to confuse the concept of ecosystem
analysis with the analysis and evaluation of environmental effects
which occurs as part of the NEPA process. The requirements associated
with NEPA procedures would be unchanged by the provisions of this
proposed section. The two documents used to disclose environmental
assessment, are distinct in nature and purpose from an ecosystem
analysis.
Proposed Sec. 219.7 would not require an ecosystem analysis to be
conducted as a precursor to resource decisionmaking. In fact, ecosystem
analyses are not mandatory, and it is left to agency discretion to
conduct them as appropriate. While the area covered by an ecosystem
analyses is defined by the ecosystem and not by jurisdictional or
administrative boundaries, the proposed rule would in no way impose
resource decisions of the Forest Service on private lands. However, in
order to make decisions for National Forest System lands, the agency
believes it is important to be knowledgeable of the conditions on non-
Forest Service lands within an ecosystem being studied. This is
considered an essential part of taking an ecological approach to
management of National Forest System lands.
[[Page 18904]]
Proposed paragraph (b) would make an important distinction between
an ecosystem analysis and resource decisionmaking. As noted earlier,
ecosystem analysis is not a decisionmaking effort and does not result
in a resource decision. Therefore, it does not trigger NEPA analysis
nor does the result of ecosystem analysis substitute for a NEPA
disclosure document. Rather, an ecosystem analysis is a process by
which information is gathered and synthesized in order to enhance and
understanding of ecosystems. This information is usually intended as
one--but not the only--source of information to be used later when
making resource decisions.
One key provision of paragraph (b) intended to help draw the
distinction between ecosystem analysis and resource decisionmaking is
the requirement that the findings of ecosystem analysis not be used as
a substitute for forest plan goals, objectives, standards, or
guidelines. The proposed rule would make clear that the findings of an
ecosystem analysis may indicate the need to change forest plan
direction, but that such changes must occur through amendment or
revision procedures. The agency does not intend ecosystem analysis to
be used to identify any preferred or desired alternatives or outcomes.
Identification of such preferences would reflect value judgments on the
part of those conducting the ecosystem analysis without the benefit of
utilizing NEPA procedures. The agency also hopes such a requirement
will reduce any confusion regarding the expected results of ecosystem
analysis and diminish the risk that such analyses might be mistaken for
decisionmaking processes.
The proposed rule would make clear that ecosystem analysis may be
used to identify opportunities for achieving goals and objectives that
have already been established by law, Executive order, regulation,
agency directive, or the forest plan. For example, this could include
identifying various management options or scenarios that might meet
established goals and assessing the results if such options were chosen
or scenarios were to occur. This kind of assessment can be helpful in
determining the potential to resolve issues given existing forest plan
direction, or in evaluating the probable effects if current direction
were to remain unchanged. In addition, paragraph (b) would make clear
that an ecosystem analysis may be used to provide information that
indicates a need to initiate forest plan amendment procedures. It will
be incumbent upon the agency official responsible for the ecosystem
analysis to ensure that such findings are properly utilized and that
any consideration of options or strategies is conducted in a manner
complementary to using the information for subsequent compliance with
NEPA procedures associated with resource decisionmaking.
Paragraph (c) would list various possible results of ecosystem
analysis, depending upon the scope and specific purpose of each
analysis. Eleven examples are provided of the type of information which
might result from an ecosystem analysis. This is not intended to be an
all-inclusive list, but rather to represent the type of results that
might be expected. All eleven items are informational in nature and do
not represent resource decisions or a narrowing of options to be
considered in future decisionmaking efforts.
Section 219.8 Interdisciplinary Teams and Information Needs
Paragraph (a) would require the use of an interdisciplinary team
when preparing amendments, revisions, and monitoring and evaluation
strategies and reports and when conducting ecosystem analysis. Although
the proposed rule would clearly identify when interdisciplinary teams
must be used, it would be less specific than Sec. 219.5 of the existing
rule, which addresses in more detail the functioning and selection of
interdisciplinary teams. Such detail is in excess of what is
appropriate to this regulation, especially since NEPA procedures
already provide guidance on the use of interdisciplinary teams. The
proposed rule would limit interdisciplinary team membership to Forest
Service and other Federal personnel. This limitation is primarily due
to the Federal Advisory Committee Act, which imposes extensive
requirements on the creation and use of committees that include non-
Federal personnel for the purpose of advising Federal agencies.
Paragraph (b) would direct that the responsible official must
strive to obtain and keep updated inventory data needed for
decisionmaking. This is intended to emphasize the importance of
maintaining data on a continuous basis rather than allowing inventories
to become outdated. This is of particular importance in implementing an
adaptive approach to resource management. The ability to know if and
how management should be adjusted depends on ongoing analysis of
information throughout the plan period.
Maintaining inventory data is also critical to avoiding delays in
the revision process. Some forests took as much as two years or more to
gather the inventory data needed to develop their initial forest plans.
As envisioned under the proposed rule, such information would be
maintained throughout the plan period, with little delay needed at the
time of revision to obtain new data. Realistically, many forests do not
have fully updated inventories at this time, so, regrettably, such
delays must still be expected in some cases when forest plans are
revised. The updating process would occur prior to or during the
prerevision review, however.
In addition, paragraph (b) would clarify that the information
compiled should be commensurate with the decisions being made. It is
wasteful to try to obtain highly precise estimates if the decision
being made does not require such precision. The proposed rule would
make clear that the precision of the data should be commensurate with
the precision needed to make the decision (see also Sec. 219.4(e)).
Paragraph (b) also emphasizes the need for carefully focused analysis
efforts, a noteworthy change from the existing rule. The proposed rule
intends that analytical efforts will be focused on the critical
questions relevant to specific decisionmaking needs rather than
dispersed across a wide range of standardized analytical requirements
that may not be relevant to local conditions, issues, and concerns.
Although paragraph (b) would provide enhanced flexibility to tailor
analysis to meet local needs, this should not be interpreted as
deemphasizing the importance of sound analyses. While the proposed rule
is certainly intended to better focus the analysis, there may or may
not be a reduction in the overall quantity of analysis conducted on any
given forest. For example, the extensive benchmark analyses required by
the existing rule at Sec. 219.12(e) would no longer be required in the
proposed rule. In many cases, the effort invested in these benchmark
analyses has often diverted too much time and energy from more critical
analyses needed for decisionmaking. However, in other cases, the data
derived from some of the benchmark analyses proved very helpful. The
proposed rule would not require that standardized benchmark analyses be
conducted for all resources on all forests, but it would also signal
the expectation that such analyses should occur if and when needed for
informed decisionmaking.
This focused approach to analysis is also intended to enhance
understanding of and confidence in the agency's analytical procedures.
Findings of the Critique of Land Management Planning clearly indicated
that many people distrust analytical procedures and view
[[Page 18905]]
computer models as mysterious ``black boxes'' that produce
incomprehensible and unverifiable answers. The approach in paragraph
(b) would keep analytical procedures highly focused and relevant to
local decisionmaking needs and thus should help increase public and
employee confidence in methodologies and results. Although computer
models will still be used, analytical efforts should be better tailored
to local needs. Under this provision, forest analysts could devote more
time and effort to understanding the data relevant to the specific
decisions to be made and to improving ways of communicating that
information to the public and decisionmakers.
Paragraph (c) would assure that social and economic effects are
considered when amending or revising the forest plan. As stated at
Sec. 219.1(b)(2), meeting people's needs and desires within the
capacities of natural systems is a primary role of resource
decisionmaking. The forest plan addresses management of land and
resources, but decisions as to how those lands and resources should be
managed is inherently dependent on considering the effects on people as
well as on the resources themselves. Paragraph (c) would assure that
commensurate with the decision being made, appropriate indicators of
social and economic change, such as changes in community stability or
employment, are evaluated during amendment and revision.
Paragraph (d) would require Forest Supervisors to identify the
research needed for decisionmaking, including, but not limited to, the
research needed to help resource managers ensure that management
practices do not produce substantial impairment of the productivity of
the land. This latter requirement responds to Section 6(g)(3)(C) of
NFMA. Comparable provisions of Sec. 219.28 of the existing rule are
more detailed. By contrast, the proposed rule focuses more directly on
making sure that research needs are identified, but would leave to
normal agency administrative processes the task of directing
formulation of budgets and reporting procedures.
Section 219.9 Forest Plan Amendment
Paragraph (a) would provide for three types of amendments to forest
plans--major, minor, and interim. It also would make explicit that: (1)
only those elements defined as forest plan direction are subject to
amendment, and (2) that amendment is the only method by which forest
plan direction can be changed between revisions, unless the changes are
nondiscretionary as described at Sec. 219.9(e).
The term ``major amendment'' in the proposed rule would replace the
term ``significant amendment'' as used in the existing rule. This
change in terminology should help avoid confusion with the term
``significance'' as it is used in the context of NEPA compliance.
Criteria for determining significance for NEPA compliance differ from
the criteria for distinguishing the significance of amendments under
NFMA. These differences have caused considerable confusion both within
and outside the agency with regard to ``significant'' plan amendments.
Under the proposed rule, the term ``minor amendment'' would be used to
refer to amendments which do not meet the criteria for a ``major'' or
``interim'' amendment.
Proposed paragraph (b) addresses major amendments. Paragraph (b)(1)
would define the only three circumstances which trigger a major
amendment. The existing rule does not define specific criteria for
triggering a significant amendment, stating simply that ``if the change
resulting from the proposed amendment is determined to be significant,
the Forest Supervisor shall follow the same procedure as that required
for development and approval of a forest plan'' (Sec. 219.10(f)).
In the absence of criteria in the existing rule, the agency has
issued, at FSM 1922.52, two examples indicative of circumstances that
may cause a significant change to the forest plan. In addition, FSH
1909.12 describes four factors to be used in helping to determine
significance. The two circumstances described at FSM 1922.52 are: (1)
Changes that would significantly alter the long-term relationship
between levels of multiple-use goods and services originally projected,
and (2) changes that may have an important effect on the entire forest
plan or affect land and resources throughout a large portion of the
planning area during the plan period. Both of these examples are
subject to varying interpretation.
In reassessing the circumstances that should trigger a major
amendment, the agency has focused on two key provisions of Section
6(f)(4) of NFMA. First, this section recognizes that some amendments
may result in a significant change in the plan. Second, it establishes
special requirements for those amendments that would result in a
significant change to the forest plan--a three-month comment period and
associated requirements for public involvement.
With these provisions of NFMA in mind, the agency proposes
establishing in the proposed rule at Sec. 219.9(b)(1), rather than in
the Forest Service Manual, three criteria for triggering a major
amendment. The first trigger would be a change to a forest plan
standard. The second would be when the chargeable timber volume that
can be sold for a decade is amended in such a manner that it exceeds
the long-term sustained-yield timber capacity of a proclaimed National
Forest within the plan area. The third circumstance would be if the
forest plan is changed to permit harvest of even-aged stands that have
not reached culmination of mean annual increment of growth.
The first criterion, changing a forest plan standard, reflects the
heightened importance of forest plan standards under the proposed rule.
As explained earlier in this preamble, adherence to forest plan
standards would be mandatory, and standards would be used to assure
compliance with legal requirements and to provide environmental
safeguards. As a result, standards would have a distinctly stronger
role in the forest plan than goals, objectives, or guidelines.
Subsequently, the proposed rule would consider a change to a standard
or where a standard is applied as a significant change to the forest
plan, which thus would trigger a major amendment unless the exceptions
identified at Sec. 219.9(c) (4) and (5) apply. The exceptions are when
a standard is changed to accommodate a particular site-specific
project, or the allocation of a management prescription, which
typically includes some standards, to newly acquired lands and the
prescription is consistent with the purposes for which the land was
acquired.
The other two circumstances that would trigger a major amendment
derive directly from NFMA. In the case of the decadal chargeable volume
that can be sold from a proclaimed National Forest exceeding the long-
term sustained yield timber capacity of that Forest, Section 13 of NFMA
requires that such a variation be made following the same public
involvement requirements as those for a major amendment or revision;
i.e., a 90-day comment period. Similarly, Section 6(m)(2) of NFMA
requires a 90-day comment period if stands are to be harvested before
reaching culmination of mean annual increment of growth. As a result,
the proposed rule would require that such changes be considered major
amendments.
Proposed paragraph (b)(2) would provide that the Regional Forester
is the responsible official for major amendments. This delegation of
[[Page 18906]]
authority is the same as that under the existing rule.
Proposed paragraph (b)(3) would describe the procedural
requirements associated with major amendment. These differ from those
of the existing rule in two main ways. First, there is no automatic
requirement to develop an EIS for a major amendment. The intent is to
allow NEPA procedures to guide the determination of whether an EIS or
an environmental assessment is appropriate for the decision being made.
Second, the proposed rule would drop the requirement to use the same
process for a major amendment as for development of initial forest
plans and revisions (Sec. 219.12(a) of the existing regulation).
Instead, the proposed rule would rely on established NEPA procedures to
guide the process for major amendment.
Both changes are expected to help focus and streamline analyses. As
described at proposed Sec. 219.8(b), one intent of the proposed rule is
to focus analyses on the information needed for decisionmaking and thus
to ensure that the nature, scope; and complexity of analyses are
commensurate with the nature, scope and impact of the decisions to be
made. Relying on NEPA procedures to determine the type of disclosure
that is appropriate is a sound means of assuring that analysis and
documentation match the nature of the decision.
Similarly, the requirement in the existing rule to repeat the same
steps for a significant amendment as for a revision has proven
excessively burdensome. This existing requirement has often resulted in
a variety of analysis efforts, such as developing benchmarks or
reevaluating the suitability of lands for timber production, which
proved to be of little benefit or utility and which diverted energy and
focus from more critical factors related to the decision.
Paragraph (b)(3) of the proposed rule also would state the
requirement to provide a 90-day period for public review and comment on
a major amendment. This paragraph also specifies the minimum actions
the Regional Forester would be required to take to provide for public
participation in the major amendment process.
Paragraph (b)(4) would require publication of legal notice of
adoption of a major amendment. Paragraph (b)(5) provides that the
effective date of an approved major amendment is the eighth calendar
day following publication of legal notice of the decision in accordance
with administrative appeal rules at 36 CFR 217.10.
Proposed paragraph (c) would establish requirements for a minor
amendment, which is triggered whenever a change is being made to the
forest plan which does not meet the circumstances for triggering a
revision, major amendment, or interim amendment.
Paragraph (c)(1) would designate the Forest Supervisor as the
responsible official for minor amendments, unless that authority is
retained by the Regional Forester.
Paragraph (c)(2) addresses public comment periods for minor
amendments. As is the case with major amendments, the proposed rule
does not specify what type of NEPA documentation must accompany a minor
amendment. Instead, NEPA procedures would provide this guidance.
Although NEPA procedures require a 45-day comment period for review of
a draft EIS, there is no requirement under NEPA procedures for public
comment on a draft environmental assessment. Nevertheless, the agency
believes that the public should have an opportunity to comment on a
minor amendment to a forest plan when an environmental assessment is
prepared. Therefore, the proposed rule requires at least a 30-day
comment period when an environmental assessment is prepared and at
least a 45-day comment period when an EIS is prepared.
Paragraph (c)(3) indicates that 36 CFR part 217 provides for
administrative appeal of forest plan amendments and revisions and
guides public notice of decisions to adopt a minor amendment, as well
as their effective date. This is further clarified in a conforming
amendment to 36 CFR 217.3(a).
Proposed paragraphs (c)(4) and (c)(5) describe two circumstances
where a minor amendment, not a major amendment, is the appropriate
mechanism for changing a forest plan even though such an amendment
involves changing a standard or changing where a standard applies.
Under paragraph (c)(4), a minor amendment would be appropriate when a
management prescription is extended to apply to newly acquired land and
the prescription is compatible with the purposes for which it was
acquired. Without this provision, such a change would trigger a major
amendment since management prescriptions include standards, and
allocating lands to a management prescription changes where those
standards are applied.
Paragraph (c)(5) provides instructions for handling a proposed
site-specific project that would conflict with a forest plan standard.
As required at Sec. 219.11(a) of the proposed rule, a project cannot be
approved if it conflicts with a forest plan standard. If the
responsible official has determined that the project merits an
exception to a forest plan standard, but wishes the exception to apply
only to the site-specific project rather than changing the standard for
all future projects, the proposed rule would specify that the change be
made by minor amendment. This is appropriate because of the limited,
site-specific scope of the change in the standard(s). However, a minor
amendment cannot be used when the circumstances described at
(b)(1)(ii)-(iii) apply, since NFMA requires a 90-day comment period on
changes of that nature.
Under the proposed rule, the public could review and comment on a
proposed site-specific amendment as part of the project decisionmaking
process rather than as disjointed decisions. The disclosure of effects
associated with changing the standard would be addressed as part of the
NEPA documentation associated with the site-specific project decision.
One intent of this integrated approach is to avoid duplicating analysis
and documentation. It would be burdensome and confusing for both the
public and the agency if a project decision had to be made separately
from the forest plan amendment needed to authorize the site-specific
exception from the standard.
The length of the comment period under these circumstances would
vary, depending on the nature of the decision being made. If the
project decision or amendment required an EIS, then at least a 45-day
comment period would be provided in accordance with NEPA procedures. If
an environmental assessment would be adequate, then at least a 30-day
comment period would be provided in accordance with 36 CFR 215.5.
A minor amendment associated with a site-specific project would not
be subject to administrative appeal under the provisions of 36 CFR part
217, but instead would be appealable under 36 CFR part 215 which
already governs appeal procedures when a project decision includes a
plan amendment. Similarly, the time period between the decision and
project implementation is also governed by 36 CFR part 215.
Paragraph (d)(1) of this proposed section introduces the concept of
``interim amendment.'' The agency believes there is a clear need to
provide streamlined procedures for updating forest plan direction when
there is new information that indicates a compelling need to promptly
change the forest plan in order to provide resource protection,
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or when a catastrophic even has occurred, and the process for major
amendment, minor amendment, or revision would result in an unacceptable
delay.
Due to the length of time it often takes to fully analyze new
information and to complete appropriate amendment procedures, there can
be quite a gap between the time the agency is aware that it needs to
address a problem and the time normal procedures can be completed. In
the meantime, environmental damage may be occurring as a result of
these procedural delays. The interim amendment would be a means of
addressing those situations where such delay is unacceptable, but would
still assure that a thorough analysis of the new information is
conducted and possible alternative responses are considered while such
interim measures are in place.
Proposed paragraph (d)(2) would designate the Regional Forester as
the responsible official for interim amendments, unless such authority
is reserved by the Chief. Placing approval authority at the Regional
Forester level should help to ensure that interim amendments are used
and developed in a consistent manner and that they are not used when
the needed changes can be made within the normal amendment process.
Paragraph (d)(3) describes the requirements for public notice of an
interim amendment and the information that must be disclosed at the
time an interim amendment is issued.
Paragraph (d)(4) establishes an explicit finding that an
environmental impact statement is not required for interim amendment.
Any change to a forest plan made by interim amendment will be limited
in scope and duration and made only to respond to catastrophic events
or to ensure resource protection. Given the limited circumstances where
it could be used, an interim amendment would never meet the criteria
for preparing an EIS as required by NEPA procedures. Nothing in
paragraph (d)(4) would limit the preparation of an environmental
assessment for an interim amendment.
As specified in paragraph (d)(5), the effective date for interim
amendments is the eighth calendar day after legal notice of the
decision is published in a newspaper of general circulation or, if the
Chief is the responsible official, in the Federal Register.
Paragraph (d)(6) provides for a 45-day comment period starting upon
issuance of legal notice of the interim amendment. Unlike most comment
periods which occur prior to making a decision, this 45-day comment
period would occur after the interim amendment is in effect. Based on
the comments received, the responsible official may decide to modify
the interim amendment or have it remain in effect unchanged. Under
either circumstance, the public must be notified and rationale
provided. Since an interim amendment is designed to respond to those
circumstances where a quick change is necessary, it is not reasonable
to delay issuance of the interim amendment until a comment period can
occur. However, the provision of paragraph (d)(6) assures the
opportunity to public review and comment as soon as possible, provides
the responsible official an opportunity to change the interim amendment
in a timely manner based on those comments, and ensures that the public
is notified of whether the interim amendment is retained without change
or is modified and why.
The duration of an interim amendment would be limited by paragraph
(d)(7) to two years. If an interim amendment has not been superseded by
an approved amendment or revision within two years, the responsible
official would have the option of reissuing the interim amendment or
issuing a modified interim amendment. Under such circumstances, all of
the limitations and notice and comment requirements for use of interim
amendments would still apply. This limit on the duration of an interim
amendment is intended to assure that direction established using these
procedures is indeed interim in nature.
Paragraph (d)(8) would expressly prohibit including an interim
amendment in a decision document for a specific project. As discussed,
the provisions of Sec. 219.9(c)(5) address those circumstances where a
forest plan needs to be amended to permit one specific project.
Paragraph (d)(9) would make clear that under 36 CFR part 217 an
interim amendment is not subject to administrative appeal. Since
neither the existing planning rule nor the appeals rule address interim
amendments, a conforming amendment to 36 CFR part 217 is proposed to
exclude interim amendments from the administrative appeals process.
Such an exclusion is appropriate due to the short durat
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