# National Forest System Land Management Planning > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3AE8-8085 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** April 21, 2008 - **Citation:** 73 FR 21468 ## Text DEPARTMENT OF AGRICULTURE Forest Service 36 CFR Part 219 RIN 0596-AB86 National Forest System Land Management Planning AGENCY: Forest Service, USDA. ACTION: Final rule and record of decision. SUMMARY: This final rule describes the National Forest System (NFS) land management planning framework; sets up requirements for sustainability of social, economic, and ecological systems; and gives directions for developing, amending, revising, and monitoring land management plans. It also clarifies that, absent rare circumstances, land management plans under this final rule are strategic in nature and are one stage in an adaptive cycle of planning for management of NFS lands. The intended effects of the rule are to strengthen the role of science in planning; to strengthen collaborative relationships with the public and other governmental entities; to reaffirm the principle of sustainable management consistent with the Multiple-Use Sustained-Yield Act of 1960 (MUSYA) and other authorities; and to streamline and improve the planning process by increasing adaptability to changes in social, economic, and environmental conditions. This rulemaking is the result of a United States District Court of Northern California order dated March 30, 2007, which enjoined the United States Department of Agriculture (the Department, the Agency, or the USDA) from putting into effect and using the land management planning rule published on January 5, 2005 (70 FR 1023) until it complies with the court's order regarding the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Administrative Procedure Act (APA) ( Citizens for Better Forestry v. USDA , 481 F. Supp 2d 1059 (N.D. Cal. 2007)). The purpose of this final rule is to respond to the district court's ruling. This final rule replaces the 2005 final rule (2005 rule) (70 FR 1022, Jan. 5, 2005), as amended March 3, 2006 (71 FR 10837) (which was enjoined by the district court's ruling) and the 2000 final rule (2000 rule) adopted on November 9, 2000 (65 FR 67514) as amended on September 29, 2004 (69 FR 58055). DATES: Effective Date: This rule is effective April 21, 2008. ADDRESSES: For more information, including a copy of the final environmental impact statement (EIS), refer to the World Wide Web/Internet at http://www.fs.fed.us/emc/nfma/2008_planning_rule.html . More information may be obtained on written request from the Director, Ecosystem Management Coordination Staff, Forest Service, USDA Mail Stop 1104, 1400 Independence Avenue, SW., Washington, DC 20250-1104 FOR FURTHER INFORMATION CONTACT: Ecosystem Management Coordination staff's Assistant Director for Planning Ric Rine at (202) 205-1022 or Planning Specialist Regis Terney at (202) 205-1552. SUPPLEMENTARY INFORMATION: The following outline shows the contents of the preamble, which is also the record of decision (ROD), for this regulation. Decision Alternative M is selected as the final rule. This decision is based upon the “Environmental Impact Statement—National Forest System Land Management Planning,” USDA Forest Service, 2008, and the supporting record. This decision is not subject to Forest Service appeal regulations. Public comment on the proposed action in the draft environmental impact statement (EIS) (alternative A) supported some modifications of the proposed rule. The Department reviewed and considered these comments, in consultation with agency managers, and concluded the rule could be improved if some suggested changes were incorporated. Many suggested modifications contributed to the development of alternative M in the final EIS. Outline Introduction and Background Purpose and Need for the National Forest System Land Management Planning Rule Public Involvement on the Proposed Rule • How Was Public Involvement Used in the Rulemaking Process? • What General Issues Were Identified Regarding the Proposed Rule and Draft Environmental Impact Statement? Alternatives Considered • What Alternatives Were Considered by the Agency? • What is the Environmentally Preferred Alternative? • Decision and Rationale • What Specific Comments Were Raised on the Proposed Rule and What Changes Were Made in Response to Those Comments? Compliance With the Endangered Species Act of 1973, as Amended Regulatory Certifications Regulatory Impacts Environmental Impact Energy Effects Controlling Paperwork Burdens on the Public Federalism Consultation With Indian Tribal Governments Takings Implications Civil Justice Reform Unfunded Mandates Introduction and Background The Forest and Rangeland Renewable Resources Planning Act of 1974 (88 Stat. 476 et seq. ), as amended by the National Forest Management Act of 1976 (NFMA) (90 Stat. 2949 et seq. ; 16 U.S.C. 1601-1614), requires the Secretary of Agriculture (the Secretary) to promulgate regulations under the principles of the MUSYA that set up the process for the development and revision of land management plans (16 U.S.C. 1604(g)). The first planning rule, adopted in 1979, was substantially amended on September 30, 1982 (47 FR 43026), and was amended, in part, on June 24, 1983 (48 FR 29122) and on September 7, 1983 (48 FR 40383). It is the 1982 planning rule (1982 rule), as amended, which has guided the development, amendment, and revision of the land management plans on all national forests and grasslands. The Forest Service has undertaken several reviews of the planning process carried out under the 1982 rule. The first review took place in 1989 when the Forest Service, with the help of the Conservation Foundation, conducted a comprehensive review of the planning process and published the results in a summary report “Synthesis of the Critique of Land Management Planning” (1990). The critique concluded that the Agency spent too much time on planning, spent too much money on planning, and, therefore, the Forest Service needed a more efficient planning process. The Forest Service published an advance notice of proposed rulemaking on February 15, 1991 (56 FR 6508) for possible revisions to the 1982 rule. A proposed rule was published on April 13, 1995 (60 FR 18886), however, the Secretary chose not to continue with that proposal. In response to comments on the 1995 proposed rule, the Secretary convened a 13-member Committee of Scientists in late 1997 to evaluate the Forest Service's planning process and recommend changes. In 1998, the Committee of Scientists held meetings across the country and invited public participation in the discussions. The Committee's findings were issued in a final report, “Sustaining the People's Lands” (March 1999). In response to many findings in the 1990 “Synthesis of the Critique of Land Management Planning” and the 1999 Committee of Scientists report, the Forest Service tried to prepare a rule that would provide a more efficient planning process. A proposed rule was published on October 5, 1999 (64 FR 54074), and a final rule was adopted on November 9, 2000 (65 FR 67514). After adoption of the 2000 rule, the Secretary received many comments from individuals, groups, and organizations expressing concerns about putting into effect the 2000 rule. In addition, lawsuits challenging promulgation of the rule were brought by a coalition of 12 environmental groups from 7 States and by a coalition of industry groups ( Citizens for Better Forestry v. USDA , No. C-01-0728-BZ-(N.D. Cal., filed February 16, 2001)) and ( American Forest and Paper Ass'n v. Veneman , No. 01-CV-00871 (TPJ) (D.D.C., filed April 23, 2001)). Because of these lawsuits and concerns raised in comments to the Secretary, the Department of Agriculture started a review of the 2000 rule focusing on implementation. “The NFMA Planning Rule Review,” (USDA Forest Service April 2001) concluded many concerns about carrying out the rule were serious and needed immediate attention. Having considered the reports of the review teams, the Acting Deputy Under Secretary for Natural Resources and Environment asked the Chief of the Forest Service to develop a proposed rule to replace the 2000 rule. A new planning rule was proposed on December 6, 2002 (67 FR 72770). In addition, interim final rules extending the transition from the 1982 rule to the 2000 rule were published May 17, 2001 (66 FR 27552) and May 20, 2002 (67 FR 35431). The second rule allowed Forest Service managers to elect to continue preparing plan amendments and revisions under the 1982 rule until a new final rule was adopted. An interim final rule was published September 10, 2003 (68 FR 53294) extending the date project decisions must conform to provisions of the 2000 rule until a new rule is promulgated. Finally, an interpretive rule was published September 29, 2004 (69 FR 58055) to clarify the intent of the transition section of the 2000 rule regarding the consideration of the best available science to inform project decisionmaking. The 2004 interpretive rule also explicitly states that the 1982 rule is not in effect. Accordingly, no 1982 regulations apply to project decisions. The final 2005 rule was published January 5, 2005 (70 FR 1022). Shortly thereafter, Citizens for Better Forestry and others challenged it in Federal district court. In an order dated March 30, 2007, the United States District Court for Northern California enjoined the Department from putting into effect and using the 2005 rule pending additional steps to comply with the court's opinion for APA, ESA, and NEPA ( Citizens for Better Forestry v. USDA, 481 F. Supp. 2d 1059 (N.D. Cal. 2007)). The court concluded, [T]he agency must provide notice and comment on the 2005 Rule as required by the APA since the court concludes the rule was not a ‘logical outgrowth’ of the 2002 proposed rule. Additionally, because the 2005 Rule may significantly affect the quality of the human environment under NEPA, and because it may affect listed species and their habitat under ESA, the agency must conduct further analysis and evaluation of the impact of the 2005 Rule in accordance with those statutes. ( Citizens for Better Forestry v. USDA , 481 F. Supp. 1059, 1100 (N.D. Cal. 2007)) Purpose and Need for the National Forest System Land Management Planning Rule The final rule's purpose is two-fold. The primary purpose is to improve on the 2000 rule by providing a planning process that is readily understood, is within the Agency's capability to carry out, is consistent with the capabilities of NFS lands, recognizes the strategic programmatic nature of planning, and meets the intent of the NFMA, while making cost effective and efficient use of resources allocated to the Agency for land management planning. This rule is needed to address the limitations of the 2000 rule that were identified in the April 2001 “NFMA Planning Rule Review.” This action's second purpose is in response to the court order in Citizens for Better Forestry v. USDA that enjoined the 2005 rule. The EIS supporting this ROD documents the analysis and evaluation of the impact of the rule in accord with the NEPA. Based on the results of the aforementioned reviews, principles, and practical considerations, there is a need for a planning rule that: • Contains clear and readily understood requirements; • Makes efficient use of agency staff and collaborative efforts; • Establishes a planning process that can be conducted within agency planning budgets; • Provides for diversity of plant and animal species, consistent with capabilities of NFS lands; • Requires analyses that are within the Agency's capability to conduct; • Recognizes the strategic nature of land management plans; • Considers best available science; • Requires public involvement in development of a monitoring strategy, taking into account key social, economic and ecological performance measures and provides the responsible official sufficient discretion to decide how much information is needed; • Promotes the use of adaptive management; • Involves the public; • Guides sustainable management; and • Complies with applicable laws, regulations, and policies. Public Involvement on the Proposed Rule • How Was Public Involvement Used in the Rulemaking Process? A notice of intent to prepare an EIS was published in the Federal Register on May 11, 2007 (72 FR 26775) with a public comment period ending June 11, 2007. The notice stated the Agency was considering reinstituting planning direction like that from the 2005 rule and specifically requested public comments on the nature and scope of environmental, social, and economic issues that should be analyzed in the EIS. Because of the extensive public comment already received on the 2005 rule, the planning directives, and the Agency categorical exclusion for land management planning, no public meetings were held for the scoping. The Agency received a little over 800 responses. Responses included advocacy for a particular planning rule, as well as suggestions for analyses to conduct, issues to consider, alternatives to the proposed action, and calls for compliance with laws and regulations. Some responses raised specific issues with the proposed action while others raised broader points of debate with management of the national forest system (NFS). Some respondents suggested alternative processes for promulgating a planning rule or alternative purposes for the NFS. Besides considering comments received during the scoping period, the Forest Service reviewed the court's opinion on the 2005 rule in Citizens for Better Forestry v. USDA and comments previously collected during promulgation of the 2005 rule (70 FR 1022, Jan. 5, 2005), agency planning directives (72 FR 4478, Jan. 31, 2007; 71 FR 5124, Jan. 31, 2006), and the Forest Service's categorical exclusion for land management planning (71 FR 75481, Dec. 15, 2006). • What General Issues Were Identified Regarding the Proposed Rule and Draft Environmental Impact Statement? Based on comments and the aforementioned review, an interdisciplinary team identified a list of issues to address. • Diversity of Plant and Animal Communities. • Timber Management Requirements of 16 U.S.C. 1604(g). • Identification of Lands Not Suited for Timber Production (16 U.S.C. 1604(k)). • Standards and Prohibitions. • Environmental Impact Statement. • Best Available Science and Land Management Plans. • Management Requirements. These issues are described in more detail later in this ROD. The proposed rule was published on August 23, 2007 (72 FR 48514), and the notice of availability for the supporting draft EIS was published in the Federal Register on August 31, 2007 (72 FR 50368). A copy of the proposed rule and the draft EIS have been available on the World Wide Web/Internet at http://www.fs.fed.us/emc/nfma/2007_planning_rule.html since August 16, 2007. The proposed action and preferred alternative identified in both documents was the 2005 rule, as amended. Public comments were requested on both the proposed rule and the draft EIS. The comment period for both documents ended on October 22, 2007. The notice of availability of the final EIS was published in the Federal Register on February 15, 2008 (73 FR 8869). The Forest Service received 79,562 responses. Of these, about 78,500 are form letters. The remaining letters consist of original responses or form letters with added original text. Some respondents focused their remarks on provisions of the proposed rule, others concentrated on the alternatives and analyses in the draft EIS and many comments applied to both documents. Comments received on the proposed rule and draft EIS were consistent with, and often reiterated, the comments received during scoping. These comments played a key role in the decisions made in this ROD. Alternatives Considered The Agency fully developed six alternatives, and considered seven alternatives that were eliminated from detailed study (40 CFR 1502.14(A)). Alternatives considered in detail are summarized below. Seven additional alternatives (F-L) were considered but eliminated from detailed study because they did not meet some aspects of the purpose and need. More discussion about the eliminated alternatives can be found in chapter 2 of the EIS. • What Alternatives Were Considered by the Agency? Alternative A (2005 rule) . This alternative is the proposed action as originally published as a proposed rule on January 5, 2005, and amended on March 3, 2006, with an updated effective date and transition period date set out at section 219.14. Alternative A was the preferred alternative in the draft EIS. This alternative was slightly modified in response to public comments on the draft EIS. Details of this proposed rule are in appendix A of the EIS. The proposed rule describes the NFS land management planning framework; sets up requirements for sustaining social, economic, and ecological systems; and gives directions for developing, amending, revising, and monitoring land management plans. It also clarifies that land management plans under the proposed rule, absent rare circumstances, are strategic, and are one stage in an adaptive management cycle of planning for management of NFS lands. The intended effects of the proposed rule are to strengthen the role of science in planning; to strengthen collaborative relationships with the public and other governmental entities; to reaffirm the principle of sustainable management consistent with the MUSYA and other authorities; to establish an environmental management system (EMS) for each NFS unit; and to streamline and improve the planning process by increasing adaptability to changes in social, economic, and environmental conditions. Under this alternative, approval of a plan, plan amendment, or plan revision would be done in accord with the Forest Service NEPA procedures. It would be possible for one unit to approve a plan, plan amendment, or plan revision with a categorical exclusion (CE), a second unit to use an environmental assessment (EA), and a third unit might use an EIS depending on the nature of the decisions made in each respective plan approval. Alternative B (2000 rule) . The 2000 rule at 36 CFR part 219 as amended is the no action alternative. Although an interim final rule allowed responsible officials to use the 1982 rule procedures for planning until a new final rule is adopted (67 FR 35434), this alternative assumes that responsible officials have been using the 2000 rule procedures. This rule would guide development, revision, and amendment of land management plans for the NFS and to a certain extent, guide decisions for projects and activities as well. It describes the framework for NFS land and natural resource planning; reaffirms sustainability as the goal for NFS planning and management; sets up requirements for the carrying out, monitoring, evaluating, amending, and revising of land management plans. The intended effects of the rule are to strengthen and clarify the role of science in planning; to strengthen collaborative relationships with the public and other government entities, to simplify, clarify, and otherwise improve the planning process; and to reduce burdensome and costly procedural requirements. Plan revisions would require an EIS while plan amendments would follow agency NEPA procedures, which prescribe the appropriate level of NEPA documentation based on the significance of effects. The 2000 rule, as amended, is found in appendix B of the EIS. Alternative C (1982 rule) . Under this alternative, the 1982 rule at 36 CFR part 219, as it existed before promulgation of the 2000 rule, would guide development, revision, and amendment of land management plans for the NFS. This rule requires integration of planning for national forests and grasslands, including the planning for timber, range, fish, wildlife, water, wilderness, and recreation resources. It includes resource protection activities such as fire management and the use of minerals and other resources. This rule also established requirements for plan and animal diversity such as providing habitat to ensure viable populations of native and desired non-native vertebrate species and identifying and monitoring populations of management indicator species. Case law has applied the monitoring of management indicator species population trends to projects and activities. Plan revisions and significant amendments would require an EIS while non-significant plan amendments would follow agency NEPA procedures, which prescribe the appropriate level of NEPA documentation based on the significance of effects. The 1982 rule, as amended, is in appendix C of the EIS. Alternative D . This alternative is the same as the proposed action (alternative A) but without either the environmental management system (EMS) requirements or references to EMS at section 219.5 in the proposed action. The EMS would not be part of the plan set of documents. Setting up an EMS would not be required before plan approval, and an EMS would not mark the end of the transition period. Alternative E . Alternative E is the same as the proposed action (alternative A) but modified by (1) removing EMS requirements and all references to EMS, (2) adding standards as a plan component, (3) adding more direction for identifying lands suitable for timber production and timber harvest, and (4) adding various timber management requirements (16 U.S.C. 1604(g)) and limitations on timber removal (16 U.S.C. 1611) from the NFMA. Alternative M . This alternative is the preferred alternative in the final EIS. Alternative M is the same as alternative E except that it requires an EMS and it places requirements for long-term sustained-yield capacity and culmination of mean annual increment in agency directives. Alternative M directs the Chief to establish direction for EMS in the Forest Service directives. The directives will formally establish national guidance, instructions, objectives, policies, and responsibilities leading to conformance with International Organization for Standardization (ISO) and adopted by the American National Standards Institute (ANSI) as “ISO 14001:2004(E) Environmental Management Systems—Requirements With Guidance for Use.” The ISO 14001 is presently available for a fee from the ANSI Web site at http://webstore.ansi.org/ansidocstore/default.asp. Under Alternative M, the EMS scope is changed so that the responsible official is the person authorized to identify and establish the scope and environmental aspects of the EMS, based on the national EMS and ISO 14001, with consideration of the unit's capability, needs, and suitability. The detailed procedures to establish scope and environmental aspects are being developed in a national technical guide and the Forest Service Directives System. Alternative M allows a responsible official to conform to a multi-unit, regional, or national level EMS as an alternative to establishing an EMS for a specific unit of the NFS. The responsible official will have the responsibility to deal with local concerns in the EMS. The unit EMS will provide the opportunity either to conclude that the higher level EMS adequately considers and addresses locally identified scope and significant environmental aspects, or to address project-specific impacts associated with the significant environmental aspects. The complete details for how the Agency will do this are being developed in a national technical guide and the Forest Service Directives System. This guidance is planned for release during fiscal year 2008. Alternative M does not require an EMS prior to approving a plan, plan revision, or plan amendment. However, it does provide that no project or activity approved under a plan developed, amended, or revised under the requirements of this subpart may be implemented until the responsible official establishes an EMS or the responsible official conforms to a multi-unit, regional, or national level EMS. Furthermore, alternative M has several additional minor changes described in the final EIS. • What Is the Environmentally Preferable Alternative? The Department has identified two environmentally preferable alternatives, alternative B and alternative M. They are identified as environmentally preferred for different reasons. It should be noted that the presence or absence of EMS in the rule wording of these two alternatives is not a factor in their identification as environmentally preferable because the Agency will establish an EMS regardless of the alternative selected. The Agency fully intends to comply with Executive Order 13423—Strengthening Federal Environmental, Energy, and Transportation Management by implementing an EMS. In alternative B, all Agency direction concerning EMS would come from Agency directives. In alternative M, Agency direction concerning EMS would come from the planning rule and from Agency directives. Alternative B: Alternative B is one of two environmentally preferable alternatives. Although neither of the environmentally preferable alternatives has direct environmental effects, the procedural requirements of alternative B provide more surety that explicit environmental protections will be set up during land management planning. For example, alternative B requires the setting up of a national science advisory board and the possible setting up of regional advisory boards. It calls for use of broad-scale analyses to set the context for decisionmaking and specific actions for coordination and interaction with other Federal agencies, State and local governments, American Indian Tribes and Alaska Native Corporations, interested individuals and organizations. Alternative B calls for providing for species viability and requiring that the planning process includes development and analysis of information about a specified list of ecosystem and diversity components. The same factors making alternative B one of the environmentally preferable alternatives makes it unworkable. As previously described, alternative B's requirements are so prescriptive they cannot be done within agency resources. The cost and complexity of carrying out alternative B were major factors in the Department's decision to develop a new planning rule and in the decision not to select alternative B in this ROD. Alternative M: Alternative M is the other environmentally preferable alternative. The rule contains substantive requirements for protecting important resources such as soil, water, wildlife habitat, and aesthetics. It requires NFS lands contribute to the sustainability of ecosystems within the capability of the land, and requires species-specific plan components be developed in situations where broader ecosystem diversity components might not meet the habitat needs of threatened and endangered species, species-of-concern, and species-of-interest. The Forest Service directives provide substantial additional guidance aimed at ensuring resource protection and restoration. Another reason for identifying alternative M as an environmentally preferable alternative is the streamlined planning process it engenders will allow units of the NFS to respond more quickly to new information or changed conditions. The flexibility to respond quickly might, in some situations, allow the Agency to better mitigate or avoid threats to national forest resources by allowing variances or amendments to plans to occur without the delay caused by time-consuming NEPA procedures. This flexibility contributed to the decision to select alternative M. • Decision and Rationale Decision Alternative M is selected as the final rule. This decision is based on the Environmental Impact Statement—National Forest System Land Management Planning, USDA Forest Service, 2008, and its supporting record. This decision is not subject to Forest Service appeal regulations. Public comment on the proposed action in the draft EIS (alternative A) supported some modifications of the proposed rule. The Department reviewed and considered these comments, in consultation with Agency managers, and concluded the rule could be improved if some suggested changes were incorporated. Many suggested modifications contributed to the development of alternative M in the final EIS. Rationale for the Decision The following paragraphs describe a process of elimination for selecting alternative M, by first discussing the alternative's responsiveness to the purpose and need and then each alternative's responsiveness to significant issues identified through public comments. • Response to Purpose and Need Alternatives A, D, and E, and M meet the purpose and need for action previously described in this document. In contrast, alternatives B and C do not meet the purpose and need for action. Alternative B, the 2000 rule, was not selected because it does not meet the purpose and need for action. The 2001 NFMA Planning Rule Review and the subsequent 2002 business model workshop identified a number of shortcomings with the 2000 rule and these shortcomings constitute a large part of the purpose and need for action. This alternative is identified as the no action alternative in the EIS. First, alternative B does not meet the purpose and need for a rule to have clear and readily understood requirements. This rule has both definitions and analytical requirements that are unclear and complex, and, therefore, subject to inconsistent implementation across the Agency. Second, alternative B does not meet the need for a rule that makes efficient use of agency staff and collaborative efforts. This alternative includes unnecessarily detailed procedural requirements for scientific peer reviews, broad-scale assessments, monitoring, and science advisory boards. These detailed analysis requirements would cause land management plan revisions to take an expected 6 years to complete. Although this rule requires public involvement, it would be difficult for members of the public to remain engaged in such a protracted process and even agency staff turnover would likely interrupt such a long process. With a 6-year revision process, approximately 48 plans would be in some stage of revision during a 15-year cycle. Funding this many simultaneous revisions would likely exceed the Agency's budget—failing to meet another part of the purpose and need to establish a planning process that can be conducted within agency planning budgets. The monitoring requirements in alternative B are overly prescriptive and do not provide the responsible official sufficient discretion to decide how much information is needed—contrary to the purpose and need to establish monitoring requirements that provide the responsible official sufficient discretion to decide how much information is needed. Alternative C, the 1982 rule, was also not selected because it does not meet the purpose and need for action. It should be noted that normally an action alternative would not be studied in detail if it does not fully meet the purpose and need. However, the Agency is in litigation. The plaintiffs argue that the 1982 rule, not the 2000 rule, is in effect as a result of the court's injunction of the 2005 rule. Because the proposal is to revise an existing rule, taking no action would entail continuing under the existing rule. Whether one believes the 2000 rule or the 1982 rule is the existing rule or “no action alternative,” both have been considered. Furthermore, all but one of the issues concerning the proposed action is based on the public's many years of experience with the 1982 rule. Accordingly, the 1982 rule provides a useful basis for comparison of the alternatives. Alternative C, like alternative B, does not meet the need to make efficient use of agency staff and collaborative efforts because of the detailed analysis requirements, including benchmarks that would cause land management plan revisions to take an average of 5 years to complete. Because of the this long planning period, Alternative C has the same problems with the public remaining involved, agency staff changes, and exceeding the Agency's budget as Alternative B has. Approximately 40 plans would be in some stage of revision during a 15-year cycle. Funding this many simultaneous revisions would likely exceed the Agency's budget—failing to meet another part of the purpose and need to establish a planning process that can be conducted within Agency planning budgets. Alternative C does not meet the purpose and need to provide for diversity of plant and animal species consistent with capabilities of NFS lands. The requirements in alternative C to maintain viable populations of native and desired non-native vertebrate species do not recognize the limitations of suitability and capability of the specific land area and are a technical impossibility given that the cause of the decline of some species is outside the Agency's control. Further, the requirement to monitor management indicator species (MIS) populations at the plan and project level has proved difficult. With alternatives B and C eliminated, the remaining four alternatives, A, D, E, and M, were compared with respect to the issues identified from public comments. • Response to the Issue of Diversity of Plant and Animal Communities Concerns were expressed that the proposed rule procedures for diversity weaken protection for fish and wildlife species because the rule does not include the requirement for managing habitat to maintain viable populations. The NFMA requires the planning rule to specify guidelines that provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet multiple-use objectives and provide, where appropriate, to the degree practicable, for steps to be taken to preserve the diversity of tree species (16 U.S.C. 1604(g)(3)(B)). Although providing a mandate of viability is within this authority, NFMA does not mandate viability of species. Rather, species diversity appropriate to the area covered by a plan is NFMA's goal. Further, viability would place an impractical burden on the Agency. The view held by some, that there must be 100 percent certainty that species viability will be maintained, is a technical impossibility given that the cause of the decline of some species is outside the Agency's control. For example, viability of some species on NFS lands might not be achievable because of species-specific distribution patterns (such as a species on the extreme and fluctuating edge of its natural range), or when the reasons for species decline are due to factors outside the Agency's control (such as habitat alteration in South America causing decline of some neotropical birds), or when the land lacks the capability to support species (such as a drought affecting fish habitat). Moreover, the number of recognized species present on the units of the NFS is very large. It is clearly impractical to analyze all native and desirable non-native vertebrate species, and previous attempts to analyze the full suite of species by groups, surrogates, and representatives has had mixed success in practice. Furthermore, focus on the viability requirement has often diverted attention and resources away from an ecosystem approach to land management that, in the Department's view, is the most efficient and effective way to manage for the broadest range of species with the limited resources available for the task. Alternatives A, D, E, and M meet the NFMA diversity requirements by establishing a goal of providing appropriate ecological conditions for plant and animal communities, requiring a framework for sustaining these conditions in plans, and giving the responsible official discretion to decide what plan components should be included in the plan for species. Alternatives A, D, E, and M require the planning directives for sustaining ecological systems to be consistent with the concepts of ecosystem diversity and species diversity. In addition, guidance is currently included in the Forest Service Directives System for providing self-sustaining populations of species-of-concern. A self-sustaining population is one that is sufficiently abundant and has appropriate population characteristics to provide for its persistence over many generations. Species-of-concern are species for which the responsible official determines that management actions might be needed to prevent listing under the ESA. This issue did not result in the further elimination of the remaining four alternatives, A, D, E, and M. • Response to the Issue of Requiring an Environmental Impact Statement There is concern that by not requiring an EIS for plan development and plan revision, the proposed rule would not require consideration of a full range of planning alternatives, would reduce public involvement in land management planning, and would eliminate consideration of cumulative effects or leave such consideration to project-level analyses. Alternatives A, D, E, and M allow an iterative approach to development of a plan, plan amendment, or plan revision. Under these alternatives, a plan is developed as various options for plan components are merged, narrowed, adjusted, added, and eliminated during successive rounds of the collaborative process. The term “option” is used to differentiate it from “alternative” as used in the NEPA process. The difference between alternatives and options is that options are developed to address specific issues or groups of issues. For example, a collaborative process to develop a proposal for a plan revision or plan amendment might identify differences of opinion concerning desired conditions for an area with respect to mechanized use. Options for mechanized use would then be developed. Where there are points of agreement on other desired conditions, there would be no need to develop options. An option could also be developed as a complete alternative to a proposal. If the responsible official determines the plan revision or amendment can be categorically excluded from documentation in an EA or EIS, no alternatives would be developed. If further NEPA analysis and documentation are required, appropriate alternatives would be developed from the options. The difference in public participation between previous planning rules and alternatives A, D, E, and M is whether public participation occurs inside or outside the NEPA procedures. As discussed in the EIS, public involvement requirements in these alternative rules exceed those required for an EIS under NEPA. Under these alternatives, the responsible official must provide opportunities for the public, Federal, State, and local agencies, and Tribal governments to collaborate and participate openly and meaningfully in the planning process. Specifically, as part of plan development, plan amendment, and plan revision, the responsible official must involve the public in developing and updating a comprehensive evaluation report, establishing the components of a plan, and designing the monitoring program. Public notice must also be provided at initiation of plan development, revision, or amendment. Plan development, plan revision, and plan amendment are subject to a 90-day comment period and a 30-day objection period. Public notice must also be provided at the point of approval. These public involvement requirements would apply even if a land management plan decision is categorically excluded from further analysis and documentation in an EA or EIS. In contrast, plan development and revision under the 1982 rule involving an EIS required public notice at initiation of plan development or revision, a minimum three-month public comment period for draft plans and draft EISs, public notice in a record of decision at the point of approval, and an administrative appeal process. Experience in planning processes under the 2005 rule has shown that the collaborative process is very effective and successful in engaging the public. Alternatives A, D, E, and M all share the same requirements for public involvement as the 2005 rule. Throughout 28 years of land management planning, the Agency has learned that tiering to the cumulative effects analysis in a plan EIS did not provide nearly as much useful information at the project or activity level as the Agency had expected. The effects analyses in plan EISs were often too general to meet analytical needs for projects and activities. Meaningful cumulative effects analyses cannot be conducted until project design and location are known or at least reasonably foreseeable. Plan-level analysis would, however, evaluate existing conditions and broad trends at the geographic scale of the planning area. The Department believes these rules provide for the development and consideration of planning alternatives with much more robust public participation than previously afforded. The Department also believes that analysis of current conditions and trends required by these rules constitutes an appropriate evaluation of broader scale settings and influences that merit recognition in the planning process. Cumulative effects analysis at the project scale will continue when designs and locations are at least reasonably foreseeable. These issues did not result in the further elimination of the remaining four alternatives, A, D, E, and M. • Response to the Issue of Best Available Science There was a concern the proposed rule requiring the responsible official only to take into account the best available science (sec. 219.11) weakens the consideration of science, while the 2000 rule required the responsible official to ensure the plan was consistent with the best available science. Respondents said the planning rule should ensure plans are consistent with best available science. The Department believes it is essential that land management plans be based on current, relevant science. Public comment on the EIS clearly showed strong support for incorporating science into the planning process. The Department believes alternatives A, D, E, and M are equally responsive to the desire to increase effective use of relevant science in the planning process. These alternatives have requirements to document how science was considered and that science was appropriately interpreted and applied. Further, these alternatives allow the responsible official to use independent peer review, science advisory boards, and other review methods. Alternative M differs slightly from alternatives A, D, and E because the detailed procedural requirements to address risks and uncertainties are currently in Agency directives instead of the rule. The words “take into account” were used in the proposed action (alternative A) and alternatives D, E, and M instead of the words of the 2000 rule, which used “consistent with” because “take into account” better expresses that formal science is just one source of information for the responsible official and only one aspect of decisionmaking. When making decisions, the responsible official also considers public input, competing use demands, budget projections, and many other factors as well as science. The Department believes that this wording gives clearer and stronger direction as to what is expected of the responsible official in developing the plan document or set of documents and in considering the best available science. This issue did not result in the further elimination of the remaining four alternatives, A, D, E, and M. • Response to the Issue of Management Requirements There is a concern the proposed planning rule does not include minimum specific management requirements as the 1982 rule did at section 219.27, and that the lack of management requirements in the planning rule would reduce environmental protections resulting in significant environmental impacts including reduced environmental protection in project design and implementation. The Department believes that less specific planning guidance is needed after decades of experience implementing NFMA. The proposed planning rule (alternative A) and alternatives D, E, and M provide a flexible process that can be applied to issues associated with local conditions and experience with implementing individual plans. The minimum specific management requirements in the 1982 rule are not required by NFMA—perhaps with good reason. The Department believes it is important not to include overly prescriptive requirements in a planning rule that unnecessarily limit a responsible official's discretion to develop, revise, or amend a land management plan tailored to local conditions. There has always been a tension between providing needed detailed direction in a planning rule and discretion of the responsible official. Project and activity decisions by a responsible official are not only constrained and guided by a large body of law, regulation, and policy; they are also guided by public participation and administrative oversight. Public participation plays an important role in identifying unintended consequences of a proposed action. Additionally, administrative oversight conducted through management reviews, and the Agency's appeals and objections processes provide an additional check on a responsible official's exercise of discretion. Because every issue cannot be identified and dealt with in advance for every situation, the Department must rely on the judgment of the responsible official to make decisions based on laws, regulation, policy, sound science, public participation, and oversight. This issue did not result in the further elimination of the remaining four alternatives, A, D, E, and M. • Response to the Issue of Timber Management Requirements of 16 U.S.C. 1604(g) Concerns were expressed that the proposed rule guidance for timber resource management (sec. 219.12(b)(2)) was inadequate because it did not include the specificity of the 1982 rule. Further, some respondents believe the timber management requirements from NFMA are legally required to be in the regulations. The Department believes alternatives A, D, E, and M all meet the requirements of NFMA at section 1604(g). The difference among alternatives with respect to this issue is whether the requirements will be in the rule or in the Forest Service directives. The Department believes timber management using good land stewardship practices will occur regardless of which approach is taken. Moreover, the Department believes the wording in the proposed rule (alternative A) meets the NFMA requirement in 16 U.S.C. 1604(g) by directing the Chief of the Forest Service to include the timber management requirements of section 1604(g) in the Forest Service Directives System. However, the Department also understands and respects the view that if the requirements are in the rule, they are afforded greater visibility. Accordingly, to eliminate this potential controversy, alternatives E and M were selected over alternatives A and D, because they include the NFMA timber management requirements (16 U.S.C. 1604(g)) where alternatives A and D do not. • Response to the Issue of Identification of Lands Not Suited for Timber Production (16 U.S.C. 1604(k)) Concerns were expressed that the proposed rule guidance for identifying lands not suited for timber production (sec. 219.12(a)(2)) was insufficient because it did not include the detail that was in earlier rules and that not including this detail represented an elimination of resource protection standards. The Department believes alternatives A, D, E, and M all meet the requirements of NFMA at section 1604(k). The difference among alternatives with respect to this issue is whether the requirements would be in the rule or in the Forest Service directives. The Department believes the identification of lands not suited for timber production will properly occur pursuant to section 1604(k) regardless of which approach is taken. Both the proposed rule (alternative A) and alternative D provide a framework for consideration of lands not suited for timber production, but rely on the Forest Service directives as a means to provide further detail to accomplish this requirement. Alternatives E and M include additional procedural requirements to identify land as not suitable for timber production where technology is not available for conducting timber harvest without causing irreversible damage to soil, slope, or other watershed conditions or substantial and permanent impairment of the productivity of the land, and where there is no reasonable assurance that such lands can be adequately restocked within 5 years after final regeneration harvest. As in the discussion of timber management requirements, the Department understands and respects the view that if detailed guidance for identifying lands not suited for timber production is in the rule, it is afforded greater visibility. Accordingly, to eliminate this potential controversy, alternatives E and M were selected over alternatives A and D, because they include such detailed guidance in the rule. • Response to the Issue of Standards and Prohibitions Concerns were expressed that the proposed rule limited land management plans to strategic plan components and did not specifically allow more conventional components, such as standards, that could regulate or limit uses and activities. The Department believes plans are more effective if they include more detailed descriptions of desired conditions, rather than long lists of prohibitive standards or guidelines developed in an attempt to anticipate and address every possible future project or activity and the potential effects such projects could cause. For example, standards could have been included that precluded vegetation treatment during certain months or for a buffer for activities near the nest sites of birds sensitive to disturbance during nesting. However, topography, vegetation density, or other factors may render such prohibitions inadequate or unduly restrictive in specific situations. A thorough desired condition description of what a species needs is often more useful than a long list of prohibitions. In reviewing public comments, the Department concluded that the argument for excluding standards from a planning rule so as not to limit a responsible official's discretion cuts both ways. Just as standards and prohibitions in a planning rule limit a responsible official's discretion, not allowing them also limits a responsible official's discretion in developing, revising, and amending a land management plan. Recognizing the ecological, economic, and social diversity across the NFS, there might be circumstances where certain standards or prohibitions would be appropriately included in a land management plan. Accordingly, the Department believes it is important to explicitly allow a responsible official the flexibility to include standards and prohibitions in a land management plan. Alternatives E and M were selected over alternatives, A and D, because alternatives E and M explicitly allow standards and prohibitions to be included in land management plans. • Consideration of Environmental Management System (EMS) After considering the preceding issues, alternatives E and M remained for selection. EMS was included in the proposed action because the Department is committed to complying with Executive Order 13423, requiring the head of each Federal agency to put into effect an EMS as the primary management approach for addressing environmental aspects of internal agency operations and activities, and because the Department believes it will enhance adaptive planning and should be part of the land management framework. The Department is committed to conform to ISO 14001. The Department is required by E.O. 13423 and instructions for implementing the E.O. to implement an EMS by December 2008. The Forest Service has a long history of adaptive management and the concepts associated with EMSs. The “Plan-Do-Check-Act” cycle of an EMS can be found in plan implementation strategies designed for forest plans developed under the 1982 rule. The concept of adaptive management has been a component of Forest Service planning rules dating back to 1995 where it was identified as a cornerstone of ecosystem management. Although systems were developed to provide an adaptive approach to management, in the press of business the “Check—Act” portions of the system were only sporadically accomplished. The Department considered relying solely on Agency directives to implement the Executive order for land management planning—as reflected in alternatives B, C, D, and E, but believes incorporating EMS in the planning rule better integrates adaptive management and EMS in Forest Service culture and land management planning practices. The proposed rule (alternative A) requires the responsible official to establish an EMS for each unit of the NFS, the scope of which was to include at least the land management planning process. Each unit revising a plan using the proposed rule procedures would be required to have an EMS in place before approval of the revised plan. Plan amendments could not be made after the end of the 3-year transition period if an EMS was not in place. These requirements generated management concerns during initial efforts to create unit EMSs because: (1) EMS was perceived to be redundant to existing management systems; (2) wording about the scope of the EMS covering the land management planning process was too broad, resulting in inconsistent application; (3) requiring an EMS prior to approving a revision was perceived as an obstacle to completing the planning process, that is, it is more logical to revise plans first, then use an EMS to manage environmental aspects under the new plan rather than to prepare an EMS before or concurrent with planning; (4) the proposed rule requirement at section 219.5 to create an EMS on every administrative unit of the NFS did not permit the Agency to realize efficiencies by establishing a multi-unit, regional, or national level EMS; and (5) independently developing of the ISO 14001 protocol from the start for every administrative unit proved to be too costly and unwieldy. Although the Agency recognizes concerns about potential redundancy in management systems due to EMS requirements, the Agency is committed to integrating EMS with existing management systems or modifying existing systems to be consistent with EMS. Alternative M was crafted to address these remaining management concerns. First, regarding redundancy with existing agency processes, this alternative would allow the Chief of the Forest Service to establish detailed procedures in the directives to create an EMS that reduces or eliminates redundancy. Second, the wording stating that the scope of an EMS will include the entire planning process described in the rule is removed in alternative M and replaced with wording to the effect that the scope will include environmental aspects as determined by the responsible official in a unit EMS or established in a multi-unit, regional, or national level EMS. The EMS scope is changed so that the responsible official is the person authorized to identify and establish the scope and environmental aspects of the EMS, based on the national EMS and ISO 14001, with consideration of the unit's capability, needs, and suitability. The detailed procedures to establish scope and environmental aspects are being developed in a national technical guide and the Forest Service directives. Third, alternative M does not require an EMS to be in place before developing or revising a plan. It does, however, state that no project or activity approved under a plan developed, amended, or revised under the rule may be implemented until the responsible official either establishes a unit EMS or conforms to a multi-unit, regional, or national level EMS. The Department believes this change from the proposed rule will improve integration of EMS into the plan development and revision process by allowing plan components to inform the identification of environmental aspects in an EMS. Fourth, alternative M allows a responsible official to conform to a multi-unit, regional, or national level EMS as an alternative to establishing an EMS for a specific unit of the NFS. The responsible official will have the responsibility to deal with local concerns in the EMS. The unit EMS will provide the opportunity either to conclude that the higher level EMS adequately considers and addresses locally identified scope and significant environmental aspects, or to address project-specific impacts associated with the significant environmental aspects. Administrative units that do not have an EMS will satisfy the requirement in section 219.5 after they develop an EMS that conforms with the national EMS and either adds environmental aspects and components under the local focus area or determines that the national EMS focus areas sufficiently identify and deal with the local unit's environmental aspects and components. The Department believes this modification will provide the Forest Service flexibility to determine the appropriate scope of an EMS. Finally, alternative M directs the Chief to establish direction for EMS in the Forest Service directives. The directives will formally establish national guidance, instructions, objectives, policies, and responsibilities leading to conformance with ISO 14001. By letter of direction from the Chief and through its directives, the Forest Service will implement a national EMS applicable to all administrative units of the Forest Service. Implementation of the EMS will be governed by the Forest Service directives. A technical guide is being prepared for use by EMS managers and an EMS handbook is being developed for use in the field. The scope of the EMS will address the goals of EO 13423, nationally identified land management environment aspects, and as appropriate, local significant environmental aspects. The EMS will be designed to conform to the ISO 14001 standard, as required by section 219.5(c). Audit procedures will be established in the technical guide or directives. Conformance will be determined by the procedures detailed in the directives for the EMS. A “non-conformity” identified by a management review or audit under these EMS procedures is not a failure to conform to the ISO 14001 standard, per section 219.5(c), but part of the Plan-Do-Check-Act (P-D-C-A) cycle of continuous improvement that makes up the ISO conformant EMS. A non-conformity would be followed up with preventive or corrective action which leads to continuous improvement in environmental performance. Such a “non-conformity” is a normal part of the EMS P-D-C-A process and does not constitute a failure to conform to the ISO 14001 standard as required by section 219.5(c). Alternative M resulted as the final land management planning rule not only through a reasoned choice among the alternatives, but also through an iterative approach to alternative development by which the Agency modified the proposed action and alternatives and developed an additional alternative in response to public comments. Details concerning each change between the proposed rule (alternative A) and the final rule (alternative M) are discussed in the section-by-section portion of this preamble. • What Specific Comments Were Raised on the Proposed Rule and What Changes Were Made in Response to Those Comments? Each comment received consideration in the development of the final rule. A response to comments on the draft EIS and the proposed rule may be found in the response to comments appendix of the EIS located on the World Wide Web/Internet (see ADDRESSES ). General Comments The Department received the following comments not specifically tied to a particular section of the 2007 proposed rule. Comment: Guidance for management of individual resources and uses. Some respondents commented on a variety of issues such as access, air, conversion of hardwood stands to pine monoculture, soil and water, carbon storage, climate change, developed recreation, dispersed recreation, eco-tourism, ecosystem services, grazing, habitat for threatened and endangered species, habitat for fish and wildlife, heritage resources, historic range of variability, hunting, late successional reserves, mining, non-Federal lands, off-road vehicle use, oil and gas development, old growth forest conservation, parks and preserves, preservation, recreation, resilience to disturbance, restoration, rural communities, soil conservation, timber harvest, water quality, watersheds, weed-free ecosystems, wilderness, and wildlife. The respondents wanted issues about the management of these resources discussed in the final rule or for the rule to require management toward a particular emphasis, such as protection or conservation of biodiversity, ecosystem integrity, ecosystem sustainability, grizzly bears, heritage resources, national forests, old growth, opportunities for education and scientific research, primitive recreational opportunities, roadless area protection, roadless characteristics, scenery, soils, undisturbed forests, viable populations of wildlife, watershed protection, wilderness, wildlife, or the production of timber, minerals, oil and gas, or other commodities. One respondent suggested the final rule should incorporate specific, enforceable timetables for the processing of right-of-way applications for wireless communications infrastructure and encourage the infrastructure on NFS lands. The Virginia Department of Environmental Quality supplied suggestions to protect water quality and other resources for national forests in the State of Virginia. Response: The Agency agrees the issues raised are important. However, the final rule is intended to provide overall direction for how plans are developed, revised, and amended. The final rule does not provide direction for the management of any specific resource. This type of guidance is properly found in the plans themselves or in the subsequent decisions regarding projects and activities on a particular national forest, grassland, prairie, or other comparable administrative unit. Those communities, groups, or persons interested in these important issues can influence plan components and monitoring programs by becoming involved in planning efforts throughout the process, including the development and monitoring of the plan, as well as the development of proposed projects and activities under the plan. The Agency is committed to reducing threats to the Nation's forests and grasslands, as discussed in the USDA Forest Service Strategic Plan: FY 2007-2012. These threats include: (1) The risk of loss from catastrophic wildland fire caused by hazardous fuel buildup; (2) the introduction and spread of invasive species; (3) the loss of open space and resulting fragmentation of forests and grasslands that impair ecosystem function; and (4) unmanaged recreation, particularly the unmanaged use of off-highway vehicles. The Agency forwarded comments from the State of Virginia to the staff of the George Washington and Jefferson National Forests. Comment: Climate change. Some respondents felt it was imperative the rule contain specific direction to address the problem of global warming and climate change. They suggested the rule should set forth a strategy and require plans that anticipate and provide for the likely effects of climate change and result in NFS lands being managed to reduce global warming. Some believe that the proposed rule would lead to an increase in livestock grazing, oil and gas development, and timber harvest, and that these increases would add to problems of global warming. Response: The Agency agrees the problem of climate change is important. The land management planning process is informed by both a comprehensive evaluation and the best available science to evaluate the situation of the individual forest unit with respect to climate change. The final rule is intended to guide how plans are developed, revised, and amended. It does not provide direction that is more appropriately addressed in the plans themselves, or in the subsequent decisions about projects and activities on a particular national forest, grassland, prairie, or other comparable administrative unit. These activities would be guided by land management plans and subsequent and separate decisions made at the project level with appropriate NEPA documents. Because it is not possible to estimate these subsequent and separate decisions, there is no basis to conclude that the rule will lead to increases or decreases in grazing, oil and gas, timber harvest, or global warming. Comment: Timeline for developing the rule. Several respondents said the Agency rushed the rulemaking and EIS process. Others requested a rule be developed for the benefit of all citizens and not be unduly influenced by politics and special interests. Other respondents expressed support for the proposed rule and urged the Forest Service to finalize the rule as soon as possible so ongoing plan revisions can be completed. Response: The process of developing a new planning rule has been ongoing since recommendations for more effective planning were documented in the 1989 “Synthesis of the Critique of Land Management Planning.” The final rule was developed considering recommendations of the 1999 Committee of Scientists and public and internal input on the 2000 and the 2005 rules. Although every effort has been made to promptly complete rulemaking tasks, the Agency believes there has been ample time for public comment, agency analysis of alternatives, and ultimately the selection of this final rule. The final rule was developed to ensure efficient and effective land use planning procedures and was not unduly influenced by political considerations. Comment: Consultation with a committee of scientists. Several respondents were concerned there was no consultation with a committee of scientists in developing the proposed rule. Some said the 1999 Committee of Scientists should be reconvened, others said previous recommendations of the past Committee should be reviewed. Response: The National Forest Management Act (NFMA) does not require a committee of scientists for revision of the planning rule. Nonetheless, the Department based the final rule on the major recommendations from the 1999 Committee of Scientists report. Sustainability, public participation, adaptive management, monitoring and evaluation, the role of science, and the objection process, all concepts in the final rule, were recommendations of that report. The Department realizes that scientific knowledge will continue to expand. Therefore, the responsible official must take into account the best available science when plans are developed, revised, or amended. Comment: Compliance with the court decision enjoining the 2005 rule. Some respondents commented that because the proposed rule is identical to the enjoined 2005 rule, it does not comply with the Administrative Procedure Act (APA), National Environmental Policy Act (NEPA), Endangered Species Act (ESA), and other environmental laws. Some respondents disagreed with the reasoning of the district court in Citizens for Better Forestry v. USDA and were concerned that preparation of an EIS to adopt a planning rule may set precedent that in addition to the environmental analysis underlying the development of a categorical exclusion, a redundant EIS must be prepared to determine the effects of using the categorical exclusion. Response: On March 30, 2007, the United States District Court for the Northern District of California in Citizens for Better Forestry v. USDA, 481 F. Supp 2d 1059 (N.D. Cal. 2007) enjoined the Agency from carrying out and using the 2005 rule until the Agency took certain additional steps concerning the APA, NEPA, and ESA. The Forest Service decided to undertake these processes to expedite much needed plan revisions and plan amendments. The Department is committed to transparent rulemaking and public participation under the APA. In the final 2005 rule, the Department changed the provisions for timber management requirements, changed the provisions for making changes to the monitoring program, and added provisions for environmental management system (EMS). The court found that the Forest Service did not provide sufficient notice to the public of these changes to the 2005 rule such that the 2005 rule was not the logical outgrowth of the 2002 proposed rule. Therefore, the Agency provided notice and comment of the 2007 proposed rule (72 FR 48514, August 23, 2007) which included the final 2005 rule's provisions for timber management, monitoring, and EMS. Regarding NEPA, the court found the 2005 rule did not fit the Agency's categorical exclusion for servicewide administrative procedures. The categorical exclusion for administrative procedures was developed with public participation and the use of categorical exclusions is a recognized method for NEPA compliance. Under the court's order, further environmental analysis under NEPA was required. Accordingly, the Agency prepared a draft EIS on the proposed rule and a final EIS. Finally, the court found the Agency was required to prepare a biological assessment or to consult on the impact of the 2005 rule under ESA. Based upon an analysis for the 2005 rule, the Agency had concluded that adoption of the 2005 rule alone would have no effect on listed species or critical habitat. The court, however, found that conclusion unlawful absent some type of consultation with the United States Fish and Wildlife Service (USFWS) and the National Oceanic and Atmospheric Administration (NOAA) Fisheries or a biological assessment. Accordingly, the Agency has prepared a biological assessment, which concludes that the final rule, in itself, will have no effect on threatened, endangered, or proposed species or to designated or proposed critical habitat. Since initiating the development of the current proposed planning rule, the Forest Service has consulted with NOAA Fisheries and USFWS to discuss the programmatic nature of the planning rule, to explain the Forest Service's tiered decisionmaking framework (regulation, land management plan, and project) and to consider the potential of the 2008 planning rule to affect threatened, endangered and proposed species, and designated and proposed critical habitat. We concluded this consultation by reaching a “no effect” determination. The Forest Service was aware that USFWS and NOAA Fisheries had agreed with the Forest Service's similar “no effect” determination for the 2000 planning rule. However, the Forest Service ultimately concluded that, because our “no effect” determination fulfilled the consultation requirement, it was not necessary to submit this biological assessment to the NOAA Fisheries or USFWS seeking agreement with our finding. The APA notice and comment opportunity, the EIS, and the preparation of the biological assessment fully address the procedural defects identified by the district court. The court did not require any substantive changes in the 2005 rule. Comment: Compliance with the Multiple-Use, Sustained-Yield Act, and other laws governing the Forest Service. Some respondents commented on whether the proposed rule complies with laws affecting the Agency, including the MUSYA, NFMA, NEPA, Federal Land Policy and Management Act (FLPMA), Forest and Rangeland Renewable Resource Planning Act (RPA), ESA, Telecommunication Act of 1996, and applicable State laws, including best management practices, providing environmental safeguards and public involvement. Response: All alternatives are faithful to compliance with all laws governing the Forest Service, including applicable State laws. NFMA requires the use of the MUSYA to provide the substantive basis for forest planning. As used in the rule, sustainability embodies these congressional mandates, including the requirements of FLPMA, RPA, and other laws. The interrelated and interdependent elements of sustainability are social, economic, and ecological as described in section 219.10. The final rule sets the stage for a planning process that can be responsive to the desires and needs of present and future generations of Americans, for the multiple uses of NFS lands. The final rule does not make choices among the multiple uses; it describes the processes by which those choices will be made as a preliminary step during development of plans. The plans developed provide guidance for future projects and activities. Moreover, an EIS has been prepared for the rule under the requirements of NEPA, and the Forest Service has reached a “no effect” determination under the ESA after preparing a biological assessment. Since initiating the development of the current proposed planning rule, the Forest Service has consulted with NOAA Fisheries and USFWS to discuss the programmatic nature of the planning rule, to explain the Forest Service's tiered decisionmaking framework (regulation, land management plan, and project) and to consider the potential of the 2008 planning rule to affect threatened, endangered and proposed species, and designated and proposed critical habitat. We concluded this consultation by reaching a “no effect” determination. The Forest Service was aware that USFWS and NOAA Fisheries had agreed with the Forest Service's similar “no effect” determination for the 2000 planning rule. However, the Forest Service ultimately concluded that, because our “no effect” determination fulfilled the consultation requirement, it was not necessary to submit this biological assessment to NOAA Fisheries or USFWS seeking agreement with our finding. Comment: Placing procedures in directives rather than the rule. Some respondents commented the proposed rule does not meet all requirements of NFMA, such as provisions for determining timber harvest levels, identification of lands not suitable for timber production, use of the clearcutting harvest system, and providing for a diversity of plant and animal communities based on the suitability and capability of the land. They also expressed concerns that carrying out these requirements through the Agency's Directives System, rather than the plan rule itself, would not meet NFMA's mandatory and enforceable requirements, because the requirements would no longer have the force and effect of law. Other respondents said NFMA requirements have the force and effect of law, and if the Agency does not have mandatory requirements in regulations, a responsible official could end up violating NFMA and a lawsuit could shut down the national forest and perhaps the entire NFS. Respondents noted that directives do not require a mandatory public comment and agency response as is required through the regulatory process provided in the APA (5 U.S.C. 551); therefore, changes could be made to the directives without public input. Response: The Agency is committed to meeting all the requirements of NFMA for all projects. Individual projects must meet NFMA's requirements for soil and water protection, restocking, restrictions on the use of clearcutting, esthetic quality, and so forth, regardless of whether those requirements are set out in regulation or agency directives. The Agency believes the NFMA requirement that the planning regulation “shall include, but not be limited to * * * specifying guidelines for land management plans developed to achieve the goals of the Program which” [provide for diversity, ensure timber harvest will only occur if certain conditions are met, etc.] affords the Agency discretion to provide policy guidance either through regulations or directives (16 U.S.C. 1604(g)). Directives are available at http://www.fs.fed.us/im/directives . In keeping with the strategic and adaptive nature of planning, the Agency is striving to make rulemaking more strategic and adaptive. Therefore, many procedural and technical details have been moved to the Forest Service Directive System (Forest Service directives). Forest Service directives are the primary basis for the Forest Service's internal management of all its programs and the primary source of administrative direction to Forest Service employees. The FSM contains legal authorities, objectives, policies, responsibilities, instructions, and guidance needed, on a continuing basis, by Forest Service line officers and primary staff to plan and execute programs and activities. The FSH is the principal source of specialized guidance and instruction for carrying out the policies, objectives, and responsibilities in the FSM. Furthermore, the Agency requires that Federal, State, and local governments and the public have adequate notice and opportunity to comment on the formulation of standards, criteria, and guidelines applicable to land management planning when substantial public interest or controversy concerning a directive can be expected. For example, in the March 23, 2005, Federal Register (70 FR 14637), the Agency gave notice and requested public comment concerning issuance of interim directives related to carrying out the 2005 rule. The issuance of the final directives and response to comments received was published on January 31, 2006 (71 FR 5124). A similar process will be done for directives carrying out the final planning rule. The directives for land management planning are composed of two manual chapters and nine handbook chapters. Manual chapters FSM 1900—Planning—Chapter Zero Code, and FSM Chapter 1920—Land Management Planning. FSM 1900 will need to be amended to update a few definitions. FSM 1920 will need updating to reflect the final rule for timber management requirements. FSH 1909.12 is composed of ten chapters as follows: Chapter—Zero Code, Chapter 10—Land Management Plan, Chapter 20—The Adaptive Planning Process, Chapter 30—Public Participation and Collaboration, Chapter 40—Science and Sustainability, Chapter 50—Objection Process, Chapter 60—Forest Vegetation Resource Planning, Chapter 70—Wilderness Evaluation, Chapter 80—Wild and Scenic River Evaluation, and Chapter 90—References. Chapters 10, 20, 60, and 90 will need updating to reflect the final rule. The changes to the final rule do not directly affect chapters Zero Code, 30, 40, 50, 70, and 80 of the handbook. However, the Agency has received comments on the existing directives and will take a comprehensive look at these directives to see if improvements can be made. Although directives have been held not subject to judicial enforcement, ( Western Radio Services Co., inc. v. Espy, 79 F 3d 896 (9th Cir. 1996)), they are enforced in the Forest Service. The Agency has a variety of methods for determining whether policy is being put into practice. First, the public involvement process allows for direct input into the planning process and management decisions on-the-ground. This local collaboration serves as an important check on agency practices. Second, the Agency has administrative appeals and objections processes through which the public can raise concerns about projects and land management plans. Third, the Forest Service conducts regular management reviews designed to assess to what degree the Agency is complying with rules and policies. The Department also understands and respects the view expressed in a number of public comments that if certain requirements are in the rule, they are afforded greater visibility. In response to these comments, the Department has included the NFMA timber management requirements (16 U.S.C. 1604(g)) and detailed requirements for identifying lands not suited for timber production (16 U.S.C. 1604(k)) in the final rule. Comment: Compliance with the ESA. Some respondents raised concerns the proposed rule, without a strong viability or ecological sustainability requirement, does not ensure protection of federally-listed threatened or endangered species (such as the Canada lynx), will not help with their recovery, and will not forestall the listing of other species. Some stated that if the needs of these species are not met through a meaningful NFMA process, they will have to be met through an ESA process, thereby requiring greater application of the ESA to future project operations. Response: The final rule is intended to provide a framework to contribute to sustaining native ecological systems by providing appropriate ecological conditions to support diversity of native plant and animal species in the plan area. Plan components establish a framework to provide the characteristics of ecosystem diversity in the plan area. Plans are to include provisions in plan components that the responsible official determines are needed to provide appropriate ecological conditions or protective measures for specified threatened and endangered species, consistent with limits of agency authorities, the capability of the plan area, and multiple-use objectives (219.10(b)(2)). Under the ESA, the Agency has responsibilities to insure its actions do not jeopardize the continued existence of threatened and endangered species, or destroy or adversely modify habitat designated as critical habitat for such species. This is done where applicable when the Forest Service is proposing to take a particular action, through the use of ESA section 7(a)(2) consultation with the USFWS and NOAA Fisheries on potential effects of agency proposals to such species and to designated critical habitat. The Agency also coordinates with the USFWS and NOAA Fisheries under ESA section 7(a)(1) to carry out programs and activities for the conservation of endangered and threatened species and the ecosystems on which they depend. Comment: Consistency with the intent of Congress as expressed in the Appeals Reform Act (ARA). One respondent asserted that the use of a predecisional objection process for plans rather than a post-decisional appeal process runs counter to the intent of Congress when they passed the Appeals Reform Act (ARA). This respondent believes that, although the ARA addresses only project-level appeals, Congress intended to leave unaffected the forest plan appeal process that was then in place. Response: There is nothing in the Appeals Reform Act or its legislative history that would indicate Congress had any intent of addressing appeals processes other than those for “proposed actions of the Forest Service concerning projects and activities implementing land and resource management plans.” On the other hand, NFMA only requires “public participation in the development, review, and revision of land management plans” without specifying any post-decision review (16 U.S.C. 1604(d)). The Department believes the proposed predecisional objection process provides an opportunity for public concerns to be reviewed at a higher administrative level using a process that is more collaborative and less confrontational. The predecisional objection process provides an opportunity to make needed or appropriate adjustments to a plan before it is approved. The Agency's experience with post-plan decision appeals is that it is difficult to make needed changes. Often a separate amendment process must be carried out to respond to an appeal. Comment: Integration of Minerals Management. Some respondents raised concerns the proposed rule does not ensure integration of mineral and energy resource development with the management of renewable resources. They believe without specific procedures for integration, the Agency will not meet its obligations under the Mining and Minerals Policy Act, Forest Service Minerals Program Policy, and the Forest Service Energy Implementation Plan. Response: Increased production and transmission of energy and mineral resources in a safe and environmentally sound way is essential to the well-being of the American people. Like other agencies, the Forest Service is charged to take appropriate actions, to the extent consistent with applicable law, to expedite projects that will increase the production, transmission, or conservation of energy and mineral resources. In most instances, the Agency meets this responsibility by assuring that mineral activities on NFS lands are conducted in a way that minimizes environmental impacts on the renewable surface resources as directed by the MUSYA, NFMA, and various other statutes. Management responsibility for non-renewable, subsurface mineral resources primarily rests with the Secretary of the Interior. Where applicable, plan components will be developed considering the various conditions and uses of each individual unit, including the mineral and energy resource and opportunities for development of that resource. Forest planning is one, but certainly not the only, means to integrate the exploration and development of mineral and energy resources with the use and protection of the various goods and services provided from the NFS. Comment: Legal requirements. Several respondents commented that various laws have made changes to some legal requirements, which must be addressed in the rule. For example, the Alaska Native Interest Lands Conservation Act requirement under section 1326(b) that “no further studies of Federal lands in the State of Alaska for the single purpose of considering the establishment of a conservation system unit, national recreation area, or for related or similar purposes shall be conducted unless authorized by this Act or by further Act of Congress.” Response: Wording at section 219.7(a)(6)(ii) in the final rule accounts for such situations by stating that wilderness recommendations must be considered “unless otherwise prohibited by law.” Although this provision of the final rule discusses only wilderness recommendations, no planning actions will be taken if in conflict with Federal law. Comment: Court oversight. Some respondents commented the proposed rule makes it more difficult to challenge agency decisions in court. Response: With respect to concerns that Forest Service discretion may be unchecked, there has always been a tension between providing needed detailed direction in the planning rule and providing discretion for the responsible official. However, the decisions of the responsible official are constrained and guided by a large body of law, regulation, and policy, as well as public participation and oversight. Because every issue cannot be identified and dealt with in advance for every situation, the Forest Service must rely on the judgment of the responsible official to make decisions based on laws, regulation, policy, sound science, public participation, and oversight. The Agency believes the final rule is fully compatible with the nature of forest planning as described by the U.S. Supreme Court in Ohio Forestry v. Sierra Club 523 U.S. 726 (1998) (Ohio Forestry). The Agency expects public oversight and legal review of planning, as well as an assessment of the environmental impacts of specific projects under NEPA, to occur under the final rule in accord with Ohio Forestry. As a general matter, and consistent with the Ohio Forestry decision, a plan by itself is not expected to be reviewable by the courts at the time the plan is developed, revised, or amended. The Department does not believe this rule makes judicial review any harder to obtain than was the case in Ohio Forestry. When the Agency decides on a specific action, an aggrieved party will be able to challenge that action and, if appropriate, seek review of that part of the plan relevant to that action. Comments in Response to Specific Sections The following is a section-by-section discussion of comments received on specific sections of the proposed rule, the Agency's response, and a discussion on the differences between the 2007 proposed rule and the final rule and why the Department made the changes. The Agency ordered the rule sections from general to specific. The first section introduces the reader to what is covered in the final rule and acknowledges the Forest Service's multiple-use and sustained-yield mandate (remainder of sec. 219.1). Section 219.2 describes planning in general and the levels of planning in the Agency. Then, the final rule contains a general description of plans (sec. 219.3 and 219.4), a discussion of environmental management systems (sec. 219.5), followed by the specific plan requirements (sec. 219.6-219.16). Throughout the final rule minor edits have been made for clarity. Section 219.1—Purpose and Applicability This section introduces the reader to what is covered in the final rule, acknowledges the Forest Service's multiple-use and sustained-yield mandate, and directs the Chief of the Forest Service to establish planning procedures in the Forest Service directives. The Department retains the 2007 proposed rule wording in the final rule, with the minor change of replacing “required components” with “plan components” to be consistent with section 219.7. Comment: Meaningful, definitive plans. Several respondents urged that regulations provide for meaningful plans that give the American people a good idea of how lands will be managed. These respondents stated plans should not be vague, but rather be a contract with the public about how lands and resources will be managed. To be definitive in this regard, the plans must have standards that require or prohibit certain activities, standards and guidelines for management areas, other items required by NFMA, and supported by an EIS. One respondent commended the intent of defining measurable objectives toward desired conditions along with a structure for monitoring and evaluation. Response: The Department believes plans are more effective if they include more detailed descriptions of desired conditions, rather than long lists of prohibitive standards or guidelines developed in an attempt to anticipate and address every possible future project or activity and the potential effects such projects could cause. For example, standards could have been included that precluded vegetation treatment during certain months or for a buffer for activities near the nest sites of birds sensitive to disturbance during nesting. However, topography, vegetation density, or other factors may render such prohibitions inadequate or unduly restrictive in specific situations. A thorough desired condition description of what a species needs is often more useful than a long list of prohibitions. In reviewing public comments, the Department concluded that the argument for excluding standards from a planning rule so as not to limit a responsible official's discretion cuts both ways. Just as standards and prohibitions in a planning rule limit a responsible official's discretion, not allowing them also limits a responsible official's discretion in developing, revising, and amending a land management plan. Recognizing the ecological, economic, and social diversity across the NFS, there might be circumstances where certain standards or prohibitions would be appropriately included in a land management plan. Accordingly, the final rule explicitly allows a responsible official the flexibility to include standards and prohibitions in a land management plan. Comment: Desired conditions, modeling parameters, information gaps. Some respondents asked that the final rule identify parameters that would guide the development of vegetation simulation models; clarify how desired conditions guide a project level EIS or EA, and how information gaps would be rectified when existing science is lacking. Response: As with many other procedures, those that would guide the development of vegetation simulation models are properly discussed in technical guides rather than the planning rule. This allows selected models to change as technology evolves. The final rule defines a consistent approach to analysis and evaluation at broad scales and the local level. The final rule at section 219.6(a) would require the responsible official to keep the plan set of documents up to date with evaluation reports to show changing conditions, science, and other relevant information. Desired conditions under the final rule are the social, economic, and ecological attributes toward which land management under the plan will aspire. A plan's desired conditions will contribute to the purpose and need for action articulated in a project EA or EIS. Responsible officials propose to carry out various projects and activities designed to meet a particular purpose and need for action, which should move toward or maintain desired conditions and achieve objectives described in the plan. The comprehensive evaluation report under the final rule may describe the risks and uncertainties associated with carrying out management consistent with the plan. At the project stage, where gaps in information are apparent, the Council on Environmental Quality Regulations for Implementing the Procedural Provisions of the NEPA at 40 CFR 1502.22 (incomplete or unavailable information) would be followed, and the Agency would acknowledge when information is lacking or either obtain it or the agency shall include within the environmental impact statement: (1) A statement that such information is incomplete or unavailable; (2) a statement of the relevance of the incomplete or unavailable information to evaluating reasonably foreseeable significant adverse impacts on the human environment; (3) a summary of existing credible scientific evidence which is relevant to evaluating the reasonably foreseeable significant adverse impacts on the human environment, and (4) the agency's evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community. For the purposes of this section, “reasonably foreseeable” includes impacts which have catastrophic consequences, even if their probability of occurrence is low, provided that the analysis of the impacts is supported by credible scientific evidence, is not based on pure conjecture, and is within the rule of reason (40 CFR 1502.22). Managers prioritize risks and develop strategies to control them. These strategies may include specific monitoring and evaluation to gather additional information. Section 219.2—Levels of Planning and Planning Authority This section describes planning in general, how planning occurs at many organizational levels and geographic areas in the Agency, and provides the basic authorities and direction for developing, amending, or revising a plan. The Department retains the 2007 proposed rule wording in the final rule. Comment: Addressing statewide issues. One respondent discussed past difficulty resolving statewide issues under the 2005 rule, and expressed concern the proposed rule will have the same problems. Another respondent commented that some planning issues are best answered at the regional level. Response: The final rule has provisions for plan development and or revision to occur at a multiple forest level (sec. 219.2(b)(2)). Under the 1982 rule, responsible officials have routinely coordinated planning across unit and regional boundaries and will continue to do so as plans are developed under the final rule. In addition, the final rule provides the option for higher-level officials to act as the responsible official for a plan, plan amendment, or plan revision across a number of plan areas when needed. Comment: Levels of authority. Some respondents were concerned the further up the authority ladder a decision is made, the further it is removed from the local level, and there is excessive discretion and lack of accountability in the rule, including unrestricted license to amend plans through project decision-making in violation of the NFMA. Response: In compliance with NFMA, the final rule establishes a planning rule as a broad framework where issues specific to a plan area can be identified and resolved in an efficient and reasonable way, where responsible officials and the public can be informed by the latest data and scientific assessments, and where the public participates collaboratively. Like the 2000 rule, the responsible official will typically be the forest supervisor under the final rule; not the regional forester as under the 1982 rule. Regardless of the administrative level, the responsible official must develop, amend, or revise plans within the framework set out by the planning rule and is accountable for compliance with the planning rule and the multitude of relevant laws and policies. About project decisionmaking, the NFMA allows plans to “be amended in any manner whatsoever after final adoption after public notice” (16 U.S.C. 1604(f)(4)). Furthermore, the Agency has been doing project amendments under the 1982 rule since the 1980s. Comment: Inconsistency between responsible officials. Several respondents said the proposed rule would guarantee inconsistent application across the Agency because it leaves virtually all definitional and methodological decisions to the responsible official. Moreover, several respondents said that the Agency needs to put an end to inconsistency that occurs between responsible officials. Response: Responsible officials currently coordinate across unit boundaries and would continue to do so because the areas of analysis for evaluations described in sections 219.6, 219.7, and 219.10 would often extend beyond the unit's boundaries to adjacent or nearby NFS units. In addition, the final rule provides the option for higher-level officials to act as the responsible official for a plan, plan amendment, or plan revision across a number of plan areas when consistency is needed. The Forest Service already has directives which ensure consistency as needed for Tribal or public consultation or for social, economic, or ecological resource related issues. The final rule supplies discretion for the responsible official because the Agency believes that the responsible official is the person most familiar with the resources and the people on the unit and is usually the most appropriate person to make decisions affecting those lands. Section 219.3—Nature of Planning and Land Management Plans This section describes the nature of planning, and the force and effect of plans. The Department retains the 2007 proposed rule wording in the final rule. Comment: Strategic nature of planning. Many respondents were concerned about the strategic nature of plans. Some respondents were concerned that if strategic plans do not create legal rights, then there is no need for projects to be consistent with the plan; a circumstance that would violate NFMA. Other respondents said that if plans do not control on-the-ground activities and are only “aspirational,” the plans become meaningless paper exercises. On the other hand, some respondents were concerned that plans were too restrictive because forest staff would refuse to consider activities not consistent with management zones designated in the plan. Some respondents disagreed that plans do not usually include final decisions approving projects. They cited decisions made in the recently issued plan revisions in the Forest Service's Southern region. Other respondents agree plans are strategic and are not actions that significantly impact the human environment and, therefore, that the preparation of an EIS is not required. Others stated that plans should focus on goals rather that specific prescriptions or prohibitions. Response: The NFMA (16 U.S.C. 1604(i)) requires that resource plans, permits, contracts, and other instruments for the use and occupancy of NFS lands be consistent with land management plans. The final rule's approach to the project consistency requirement is consistent with the Supreme Court's observation of the characterization of plans in Norton v. Southern Utah Wilderness Alliance, 124 S. Ct. 2373 (2004), that “land use plans are a preliminary step in the overall process of managing public lands —‘designed to guide and control future management actions and the development of subsequent, more detailed and limited scope plans for resources and uses.’ ” An “aspirational” plan establishes a long-term management framework for NFS units. A framework is not a meaningless paper exercise. Within the framework, specific projects and activities are proposed, approved, and carried out depending on specific conditions and circumstances at the time of accomplishment. The final rule is consistent with the Supreme Court's description of plan decisions and the nature of plans in Ohio Forestry v. Sierra Club (523 U.S. 726, 737 (1998)). This ruling explains that plans are “tools for agency planning and management.” The court recognized that the provisions of such plans “do not command anyone to do anything or to refrain from doing anything; they do not grant, withhold, or modify any formal legal license, power, or authority; they do not subject anyone to any civil or criminal liability: they create no legal rights or obligations.” The use of a framework for identifying suitable uses has evolved. Determining suitable uses was often characterized in plans prepared under the 1982 rule as permanent restrictions on uses or permanent determinations as to which uses would be suitable in particular areas of the unit over the life of the plan. However, even under the 1982 rule, Forest Service staff realized these identifications were never permanent, unless they were a statutory designation by Congress. Section 219.8 of the final rule lists actions that must be taken if an existing or proposed project or activity is found to be inconsistent with the applicable plan. Recent plan revisions for NFS's Southern region did include project and activity decisions, but those revisions were done under the 1982 rule. Project and activity decisions can be in a plan but would likely be rare exceptions under the strategic approach used for the final rule. Section 219.4—National Environmental Policy Act Compliance This section of the final rule describes how planning will comply with NEPA. The Department retains the 2007 proposed rule wording in the final rule except for a change to paragraph (b). Within paragraph (b), the Department removed the wording about categorical exclusion so that it now says approval of a plan, plan amendment, or plan revision, under the authority of this subpart, will be done in accord with the Forest Service NEPA procedures. As categorical exclusions are part of those procedures, this is not a substantive change. Comment: Plans as major Federal actions. Although some respondents supported categorically excluding land management plans from documentation in an EIS or EA, other respondents believed land management plans significantly affect the environment and are therefore, major Federal actions triggering the NEPA requirements for an EIS (40 CFR 1508.18). Some stated NEPA requirements for an EIS are triggered because land management plans are in the category of Federal actions that are described as “formal plans” in the Council on Environmental Quality (CEQ) regulations at 40 CFR 1508.18 (b)(2). Some respondents expressed the view that by determining the types of land uses that will occur in areas of a national forest, the Forest Service makes decisions in its land management plans that ultimately can result in significant effects even though the plans themselves may not approve specific projects or activities. Other respondents believed extraordinary circumstances in the plan area would always preclude the use of a categorical exclusion. Response: CEQ regulations define “major Federal action” as including “actions with effects that may be major” and state, “major reinforces but does not have a meaning independent of significantly” (40 CFR 1508.18). The CEQ regulations state that Federal actions fall within several categories, one of which is the “[a]doption of formal plans, such as official documents prepared or approved by Federal agencies which guide or prescribe alternative uses of Federal resources” (40 CFR 1508.18). However, not all Federal actions are major Federal actions significantly affecting the quality of the human environment. Plans developed under the final rule would typically not approve projects and activities, or command anyone to refrain from undertaking projects and activities, or grant, withhold, or modify contracts, permits, or other formal legal instruments. Such plans have no independent environmental effects. Plan components would guide the design of projects and activities in the plan area. The environmental effects of proposed projects and activities will be analyzed under NEPA once they are proposed. Furthermore, the final rule does not preclude preparation of an EA or EIS for a land management plan where appropriate to the decisions being made in a plan approval. The Forest Service conducted an analysis for categorically excluding land management plan decisions and published a proposed category for public comment in 2005 (70 FR 1062). The Agency's final category was published in the Federal Register on December 15, 2006 (71 FR 75481). The land management planning categorical exclusion states that a decision approving projects and activities, or that would command anyone to refrain from undertaking projects and activities, or that would grant, withhold, or modify contracts, permits, or other formal legal instruments are outside the scope of this category. Proposals outside the scope of the categorical exclusion must be documented in an EA or EIS. Accordingly, land management plans, depending on their content, can be subject to various levels of NEPA documentation. The Department acknowledges that extraordinary circumstances can preclude the use of a categorical exclusion, but believes that, absent plan decisions with on-the-ground effects, extraordinary circumstances are not likely. Forest Service NEPA procedures provide that a responsible official, when considering whether to rely upon a categorical exclusion must determine whether there are extraordinary circumstances, which would preclude the use of a categorical exclusion. The procedures describe resource conditions to be considered when determining whether there are extraordinary circumstances. The procedures make clear that “The mere presence of one or more of these resource conditions does not preclude use of a categorical exclusion. It is (1) the existence of a cause-effect relationship between a proposed action and the potential effect on these resource conditions and (2) if such a relationship exists, the degree of the potential effect of a proposed action on these resource conditions that determines whether extraordinary circumstances exist.” Although the responsible official must consider whether there are extraordinary circumstances precluding use of a categorical exclusion for a plan, the Department expects that typically the nature of the plan will be such that its potential effects on the resource conditions will not involve extraordinary circumstances. Comment: Desired conditions as a final agency decision. Some respondents believe that the establishment in plans of desired conditions and general suitability determinations (sec. 219.7(a)(2)(iv)) for management areas are final agency actions that will preclude certain uses from occurring. They also note the preamble for the 2005 rule (70 FR 1031) admits the approval of a forest plan is a final agency decision. Response: The Department agrees that the approval of a plan, plan amendment, or plan revision is a final agency action under CEQ regulations, and that such actions may have environmental effects in some extraordinary circumstances, such as when a plan amendment or revision includes final decision approving projects or activities. As discussed at section 219.12 of the final rule, NFS lands are generally suitable for a variety of multiple uses, such as outdoor recreation, range, timber, watershed, and wildlife and fish purposes, and a plan could designate the same area as suitable for multiple uses which when any one is authorized, precludes other uses. Such identification is guidance for project and activity decisionmaking, is not a permanent land designation, and is subject to change through plan amendment or plan revision. Specific uses of specific areas are approved through project and activity decisionmaking. At the time of plan approval, the Forest Service does not typically have detailed information about what projects and activities will be proposed and approved over the life of the a plan, where they will be located, or how they will be designed. Under the final rule, plans will be strategic rather than prescriptive in nature, absent rare circumstances. Plans would describe the desired social, economic, and ecological conditions for a national forest, grassland, prairie, or other comparable administrative unit. Plan objectives, guidelines, suitable uses, and special area identifications would be designed to help achieve the desired conditions. None of the plan components are intended to directly dictate an on-the-ground decision that has impacts on the environment. Rather, they state guidance and goals to be considered in project and activity decisions. Comment: Desired condition and suitability determinations as irretrievable and irreversible decisions: A respondent commented that plans make irretrievable and irreversible decisions because desired future conditions require certain management and identifying a timber base assures that certain actions will occur and impacts will result. Another respondent commented that the zoning of certain forest lands in the plan has a direct impact on how national forests will be managed and what impacts will be acceptable. Response: The identification of desired conditions in a plan will not require any activities to actually occur or describe the precise activities to be undertaken to bring a forest or grassland to those conditions. Although a statement of desired conditions will typically influence the choice and design of future proposed projects and activities in the plan area it does not by itself have any effects on the environment. Likewise identifying a particular area as suitable for timber production does not require or approve any projects or activities, command anyone to refrain from undertaking projects and activities, or grant, withhold, or modify contracts, permits, or other formal legal instruments. Nor does it mean that a particular set of management prescriptions will be the only set considered when future projects are proposed in that area. Comment: Standards and guidelines as final agency decisions: A respondent stated that standards and guidelines ensure that protective or impacting activities will occur. Response: Standards and guidelines provide constraints, information, and guidance that will be applied to future proposed projects or activities to contribute to achieving or maintaining desired conditions. Standards and guidelines may even determine whether a potential project is feasible. Furthermore, standards and guidelines will typically influence the design of proposals for future projects and activities in the plan area. The influence standards and guidelines have on the direct, indirect, and cumulative effects of future projects or activities are not known and cannot be meaningfully analyzed until such projects or activities are proposed by the Agency. If a plan standard or guideline were to approve projects and activities, or command anyone to refrain from undertaking projects and activities, or grant, withhold, or modify contracts, permits, or other formal legal instruments, such a plan component would be subject to appropriate NEPA analysis and documentation. Comment: Roadless inventory, wilderness or wild and scenic rivers recommendations, and oil and gas leasing as final agency decisions. Some respondents did not agree that plans do not typically make final decisions subject to NEPA, citing the determination of roadless areas, recommendations for wilderness or wild and scenic rivers, and the decisions to open areas to oil and gas leasing. Other respondents agree with the Forest Service that plans do not approve or execute any particular action; that management is more dynamic when it is closest to the ground. Response: The planning process includes inventories and analysis that provide information but this information is not a decision. Inventories identifying areas meeting certain criteria for potential wilderness areas are an example. Only the Congress can make the decision to designate wilderness or wild and scenic rivers. Unless otherwise provided by law, based on inventories and analysis, the responsible official will consider all NFS lands possessing wilderness characteristics for recommendation as potential wilderness areas during plan development or revision. Congress may consider recommendations in the plan, but has no obligation to designate wilderness consistent with the plan's recommendations. The final rule ensures that NEPA analysis would coincide with those stages in agency planning and decisionmaking likely to have a measurable effect on the human environment. If the Chief decides to forward preliminary recommendations of the forest supervisor to the Secretary, an applicable NEPA document shall accompany these recommendations. If the responsible official proposes to determine what oil and gas lands are administratively available for oil and gas under 36 CFR 228.102(d), this would be a separate decision, which the plan may cross-reference. However, this is an activity decision under 36 CFR 228.102(d), this is not a plan decision or plan component. Comment: Disclosure of the environmental effects of a plan. Many respondents were concerned that using a categorical exclusion instead of an EIS for land management planning eliminates disclosure of environmental effects of a land management plan. Some were concerned that without disclosure of environmental effects, scientists and the public would not have a basis for providing meaningful comments. Some respondents believed the proposed categorical exclusion would eliminate cumulative effects analysis of management activities across the NFS in violation of NEPA. Response: A categorical exclusion is one method of complying with NEPA. A categorical exclusion represents a Forest Service determination that the actions encompassed by the category “do not individually or cumulatively have a significant effect on the human environment” (40 CFR 1508.4). Plans developed under the final rule would typically not include a decision approving projects and activities, nor that command anyone to refrain from undertaking projects and activities, nor that grant, withhold or modify contracts, permits, or other formal legal instruments. Plan components would provide guidance and a strategic framework-they would not compel changes to the existing environment. Achieving desired conditions depends on future management decisions. Thus, without a decision approving projects and activities, or that commands anyone to refrain from undertaking projects and activities, or that grants, withholds or modifies contracts, permits, or other formal legal instruments, the plan components would not be linked in a cause-effect relationship over time and within the geographic area to any resource. Therefore, such a plan would not have a significant effect on the quality of the human environment. The final rule would provide for extensive analysis, as set out in section 219.6 and section 219.7. A comprehensive evaluation of current conditions and trends would be done for plan development and revision and updated at least every 5 years (sec. 219.6(a)(1)). This evaluation, along with information from annual evaluations and other sources, would be part of the continually updated plan documents or set of documents that would be considered in project analysis. These up-to-date plan documents or set of documents would provide a better context for project cumulative effects disclosures than previously provided by programmatic plan EISs under the 1982 rule; therefore, the Forest Service would make better informed management decisions at the time it decides to propose projects under the plan. However, the comprehensive evaluation report will not have a cumulative effects disclosure like the EISs under the 1982 rule had. The Forest Service is required to address the cumulative effects of projects and activities. Those cumulative effects will be analyzed and disclosed at the time the projects and activities are proposed, which is the time when the Forest Service has a goal, is actively preparing to make a decision about one or more alternatives to achieve that goal, and the effects can be meaningfully evaluated (40 CFR 1508.23). Comment: Plan alternatives. Several respondents commented that by not using an EIS for land management planning, no alternatives will be considered other than the one proposed by the Forest Service. They were concerned this would preclude the consideration of alternatives proposed by the public. Some suggested that alternatives play an important role in educating the public about the possible outcomes for national forests and grasslands. Others believed evaluating alternatives allows Forest Service managers to make decisions that are more informed. Response: With the 1982 rule, the Forest Service believed the most efficient planning approach was to integrate the rule's regulatory requirement to formulate alternatives to maximize net public benefit with the NEPA alternative requirement (i.e., 40 CFR 1502.14). However, the final rule would not require alternatives because it envisions an iterative approach to plan development, in a way that plan options are developed and narrowed successively (sec. 219.7(a)(7)). The Department recognizes that people have many different ideas about how NFS lands should be managed and agrees that the public should be involved in determining what the plan components should provide. Therefore, the final rule provides for participation and collaboration with the public at all stages of plan development, plan amendment, or plan revision. Under the final rule, the responsible official and the public may iteratively develop and review various options for plan components, including options offered by the public. Responsible officials and the public would work collaboratively to narrow the options for a proposed plan instead of focusing on distinct alternatives that would be carried through the entire process. The Forest Service developed this iterative option approach under the final rule to encourage people to work together, to understand each other's values and interests, and to find common solutions to the important and critical planning issues. Comment: Efficiency of future project and activity decisionmaking. Some respondents believed categorically excluding land management plans will increase the analysis needed for project or activity decisions and therefore, reduce efficiency gained during the planning process. Some stated that without a plan EIS, cumulative effects and impacts to forest-wide resources would now have to be evaluated in each project decision. Response: Inherent in these comments is the assumption that programmatic land management plan EISs consistently provided useful and up-to-date information for project or activity analysis including sufficient cumulative effects analysis for reasonably foreseeable projects and activities. After 28 years of NFMA planning experience, the Forest Service has determined that plan EIS cumulative and landscape-level effects analyses are mostly speculative and quickly out of date. Landscape conditions, social values, and budgets change between when a plan's effects analysis occurs and when most project and activity decisions are [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE8-8085. Public record. Not legal advice.