2016-24654. National Forest System Land Management Planning

AGENCY:

Forest Service, USDA.

ACTION:

Notice of proposed rulemaking; request for comment.

SUMMARY:

The U.S. Department of Agriculture, Forest Service is proposing to amend regulations pertaining to the National Forest System Land Management Planning. The proposed rule would amend the administrative procedures to amend land management plans developed or revised in conformance with the provisions under a prior planning rule.

DATES:

Comments must be received in writing by November 14, 2016. The Agency will consider and place comments received after this date in the record only if practicable.

ADDRESSES:

Submit comments concerning the proposed rule through one of the following methods:

1. Public participation portal: https://cara.ecosystem-management.org/​Public/​CommentInput?​project=​NP-1403.

2. Facsimile: Fax to: 202-649-1172. Please identify your comments by including “RIN 0596-AD28” or “planning rule amendment” on the cover sheet or the first page.

3. U.S. Postal Service: The mailing address is: USDA Forest Service Planning Rule Comments, 2222 W. 2300 S., Salt Lake City, UT 84119.

FOR FURTHER INFORMATION CONTACT:

Ecosystem Management Coordination staff's Assistant Director for Planning Andrea Bedell Loucks at 202-205-8336 or Planning Specialist Regis Terney at 202-205-1552.

SUPPLEMENTARY INFORMATION:

Background

The mission of the Forest Service is to sustain the health, diversity, and productivity of the Nation's forests and grasslands to meet the needs of present and future generations. In accomplishing this mission, the Agency is required by statute to develop land management plans to guide management of the 154 national forests, 20 grasslands, and 1 prairie that comprise the 193 million acre National Forest System (NFS).

The National Forest Management Act required the Secretary of Agriculture to develop a planning rule “under the principles of the Multiple-Use Sustained-Yield Act of 1960, that set[s] out the process for the development and revision of the land management plans, and the guidelines and standards” (16 U.S.C. 1604(g)). The Secretary fulfilled this requirement by issuing a rule, codified at title 36, Code of Federal Regulations, part 219 (36 CFR part 219), which sets requirements for land management planning and content of plans. In 1979, the U.S. Department of Agriculture (Department) issued the first regulations to comply with this statutory requirement. The 1979 regulations were superseded by the 1982 planning rule.

Numerous efforts were made over the past three decades to improve on the 1982 planning rule. On November 9, 2000, the Department issued a new planning rule that superseded the 1982 rule (65 FR 67514). Shortly after the issuance of the 2000 rule, a review of the rule found that it would be unworkable and recommended that a new rule should be developed. The Department amended the 2000 rule so that responsible officials could continue to use the 1982 planning rule provisions until a new rule was issued (67 FR 35431, May 20, 2002). Attempts to replace the 2000 rule, in 2005 and 2008, were set aside by the courts on procedural grounds, with the result that the 2000 rule remained in effect. In 2009, the Department reinstated the 2000 rule in the Code of Federal Regulations to eliminate any confusion over which rule was in effect (74 FR 67062, December 18, 2009; 36 CFR part 219, published at 36 CFR parts 200 to 299, revised as of July 1, 2010). In reinstating the 2000 rule into the CFR, the Department specifically provided for the continued use of the 1982 rule provisions, which the Agency used for all planning done under the 2000 rule. The 1982 planning rule procedures have therefore formed the basis of all existing Forest Service land management plans.

On April 9, 2012, the Department issued title 36, Code of Federal Regulations, part 219—Planning (the 2012 planning rule), setting forth directions for developing, amending, revising, and monitoring land management plans (77 FR 21161). The 2012 planning rule is available online at https://www.gpo.gov/​fdsys/​pkg/​CFR-2013-title36-vol2/​pdf/​CFR-2013-title36-vol2-part219.pdf.

On February 6, 2015, the Forest Service issued National Forest System, Land Management Planning Directives (planning directives; 80 FR 6683). The planning directives are the Forest Service Handbook (FSH) 1909.12 and Manual (FSM) Chapter 1920 that establish procedures and responsibilities for carrying out the 2012 planning rule. The planning directives are available online at http://www.fs.fed.us/​im/​directives/​.

After the issuance of the 2012 planning rule, the Secretary of Agriculture chartered a Federal Advisory Committee (Committee) to assist the Department and Agency in implementing the new rule. The Committee is made up of 21 diverse members who provide balanced and broad representation on behalf of the public; State, local, and tribal governments; the science community; environmental and conservation groups; dispersed and motorized recreation users; hunters and anglers; private landowners; mining, energy, grazing, timber, and other user groups; and other public interests. The Committee has convened regularly since 2012 to provide the Department and Agency with recommendations on implementation of the 2012 planning rule, including recommendations on the planning directives, assessments, and on lessons learned from the first forests to begin revisions and amendments under the 2012 planning rule. More information about the Committee's membership and work is available online at http://www.fs.usda.gov/​main/​planningrule/​committee.

The 2012 planning rule was the product of the most extensive public engagement process in the long history of the planning rule. It requires the use of best available scientific information to inform planning and plan decisions. It also emphasizes providing meaningful opportunities for public participation early and throughout the planning process, increases the transparency of decision-making, and provides a platform for the Agency to work with the public and across boundaries with other land managers to identify and share information and to inform planning. The final 2012 planning rule reflects key themes expressed by members of the public, as well as experience gained through the Agency's 30-year history with land management planning. It is intended to create a more efficient and effective planning process and provide an adaptive framework for planning.

The planning framework under the 2012 rule includes three phases: Assessment, plan development/amendment/revision, and monitoring. The framework supports an integrated approach to the management of resources and uses, incorporates a landscape-scale context for management, and was intended to help the Agency adapt to changing conditions and improve management based on new information and monitoring. The concept of adaptive management is an integral part of the 2012 rule.

For the administrative units of the NFS there are 127 land management plans, 68 of which are past due for revision. Most plans were developed between 1983 and 1993 and should have been revised between 1998 and 2008, based on the National Forest Management Act (NFMA) direction to revise plans at least once every 15 years (16 U.S.C. 1604(f)(5)). The repeated efforts to produce a new planning rule over the past decades contributed to the delay in plan revisions. An additional challenge was that instead of amending plans as conditions on the ground change, responsible officials often waited to make changes all at once during a plan revision, resulting in a drawn-out, difficult, and costly revision process.

Recognizing that adaptive management requires a more responsive and iterative approach to modifying land management plans to reflect new information, the Department's intent when developing the 2012 planning rule was for the planning process to encourage and support the more regular use of amendments to keep plans current between revisions, and thereby also make the revision process less cumbersome because plans would not become as out-of-date between revisions.

Under the 2012 planning rule, responsible officials may amend plans at any time. The 2012 planning rule provides that a plan amendment is required to add, modify, or remove one or more plan components, or to change how or where one or more plan components apply to all or part of the plan area (including management areas or geographic areas).

The 2012 planning rule included a 3-year transition period during which responsible officials could use either the 2012 planning rule or the 1982 planning rule procedures to amend plans approved or revised under the 1982 planning procedures (36 CFR 219.17(b)(2)). The 3-year transition period expired on May 9, 2015, and all plan amendments now must be approved under the requirements of the 2012 planning rule.

In 2014, the Agency began to use the 2012 planning rule to amend plans developed using the 1982 rule procedures (2012 rule amendments to 1982 rule plans). Currently amendments to 44 Forest Service land management plans are pending. As the Agency gained some experience with the process for making 2012 rule amendments to 1982 rule plans and discussed with the Committee early lessons learned, the Committee provided feedback suggesting the need for additional clarity on how to apply the 2012 rule's substantive requirements when amending 1982 rule plans.

While the 2012 planning rule includes direction specific to amendments, and while there is evidence of the Department and Agency's intent in the rule wording, preamble text, and planning directives, the 2012 planning rule did not explicitly direct how to apply the requirements set forth in the 2012 planning rule when amending 1982 rule plans. Using the 2012 rule to amend 1982 rule plans can be a challenge because there are fundamental structural and content differences between the two rules. Because of the underlying differences, a 1982 rule plan likely will not meet all of the requirements of the 2012 planning rule. The integrated approach to land management planning presented in the 2012 planning rule has led to some confusion about how responsible officials should apply the substantive requirements for sustainability, diversity, multiple use and timber set forth in 36 CFR 219.8 through 219.11 when amending 1982 rule plans.

This proposed amendment to the 2012 planning rule would clarify the Department and Agency's expectations for plan amendments, including expectations for amending 1982 rule plans.

The Department's Position on Applying the 2012 Rule to 1982 Rule Plans

The Department's position is firmly grounded in the National Forest Management Act and the plain wording of the 2012 planning rule, as well as the preambles for the proposed and final rules, the Forest Service land management planning directives, and practical application of Agency planning expertise.

Plans are changed in two distinctly different ways. The National Forest Management Act (NFMA) requires revisions “when conditions in a unit have significantly changed,” and “at least every 15 years” (16 U.S.C. 1604(f)(5)). NFMA also provides that “plans can be amended in any manner whatsoever” (16 U.S.C. 1604(f)(4)). As the 2012 rule states, “[a] plan revision creates a new plan for the entire plan area, whether the plan revision differs from the prior plan to a small or large extent” (36 CFR 219.7(a)). A process for a plan revision requires, among other things, preparation of an environmental impact statement (36 CFR 219.7(c)).

In contrast, and as the Department explained in the preamble to the 2012 planning rule, “[p]lan amendments incrementally change the plan as need arises.” (77 FR 21161, 21237 (April 9, 2012) (emphasis added). Unlike a plan revision, a plan amendment does not create a new plan: It results in an amended plan, with the underlying plan retained except where changed by the amendment. The Department explained its intent that with the 2012 rule, “plans will be kept more current, effective and relevant by the use of more frequent and efficient amendments, and administrative changes over the life of the plan, also reducing the amount of work needed for a full revision” (Id.).

The 2012 rule provides that, “[t]he responsible official has the discretion to determine whether and how to amend the plan.” (36 CFR 219.13(a)). The 2012 rule reinforces this discretion by providing that the rule “does not compel a change to any existing plan, except as required in § 219.12 (c)(1)” (which establishes monitoring requirements). (36 CFR 219.17 (c)).

Under the 2012 rule, “[p]lan amendments may be broad or narrow, depending on the need for change” (36 CFR 219.13(a)); and amendments “could range from project specific amendments or amendments of one plan component, to the amendment of multiple plan components.” (77 FR 21161, 21237 (April 9, 2012)). Unlike for a plan revision, the 2012 rule does not require an environmental impact statement for every amendment; such a requirement would be burdensome and unnecessary for amendments without significant environmental effect, and “would also inhibit the more frequent use of amendments as a tool for adaptive management to keep plans relevant, current and effective between plan revisions.” (Preamble to final rule, 77 FR 21161, 21239 (April 9, 2012)).

The Department's position is that the 2012 planning rule gives responsible officials the discretion, within the framework of the 2012 planning rule's requirements, to tailor the scope and scale of an amendment to a need to change the plan. This position means that, while the 2012 planning rule sets forth a series of substantive requirements for land management plans within §§ 219.8 through 219.11, not every section or requirement within those sections will be directly related to the scope and scale of a given amendment.

However, a plan amendment must be done “under the requirements of” the 2012 rule (36 CFR 219.17(b)(2)). Therefore the responsible official's discretion is not unbounded. An amendment cannot be tailored so that the amendment fails to meet directly related substantive requirements or is contrary to any substantive requirement. Rather, when responsible officials identify a need to change a plan, they must determine which substantive requirements within §§ 219.8 through 219.11 of the 2012 rule are directly related to such a change, and propose an amendment that would meet those requirements and not contradict other requirements.

The Department's position reflects the principle that no individual amendment is required to do the work of a revision. A 2012 amendment to a 1982 rule plan does not have to bring the entire plan into compliance with the 2012 rule. The key distinction is between an amendment and an amended plan. The amendment—the changed plan components—must meet the directly related substantive requirements of the 2012 rule and not be contrary to any substantive requirements. However, the responsible official need not propose to change portions of a plan even if those portions are inconsistent with or even contradictory to the 2012 planning rule; therefore, the amended plan will have plan components changed by the amendment and plan direction that has not been changed. An amended plan is not held to the same standard as a revised plan, which must meet all of the 2012 planning rule requirements.

For example, the 2012 planning rule requires that the plan must include plan components to provide for scenic character, which is a term of art associated with the scenic management system that was developed in the mid-1990s. If the scope of the amendment to a 1982 plan includes changes to plan direction related to scenery management, then the 2012 rule requirement about scenic character would apply to the affected area. However, a responsible official is not otherwise required to review and modify a 1982 rule plan to meet the 2012 rule's requirement to provide for scenic character, outside the scope and scale of the amendment being proposed. This is true even if there is also a separate need to change the plan to protect scenery in a way that is consistent with the 2012 rule. A plan revision would be required to address the scenic character requirement throughout the plan area, but the responsible official has the discretion to narrowly or broadly target plan amendments.

The Department's recognition that not every requirement within §§ 219.8 through 219.11 will apply to every amendment of 1982 rule plans is reflected in the following planning directives quote at FSH 1909.12, ch. 20, sec. 21.3 (emphasis added):

Amendment of a plan developed and approved using the 1982 Rule process requires application of the 2012 Planning Rule requirements only to those changes to the plan made by the amendment. For example, the 2012 Rule's requirements to establish a riparian management zone (36 CFR 219.8(a)(3)) would apply only if the plan amendment focuses on riparian area guidance.

See also the Handbook's direction regarding documentation of a decision to approve an amendment of a 1982 rule plan: “[f]or plan amendments, the decision document must discuss only those requirements of 36 CFR 219.8 through 219.11 that are applicable to the plan components that are being modified or added.” (FSH 1909.12 ch. 20, sec. 21.3 (emphasis added)).

Further support for the Department's position is in the rule's requirements for project consistency for 1982 rule plans, at 36 CFR 219.17(c):

None of the requirements of this part apply to projects or activities on units with plans developed or revised under a prior planning rule until the plan is revised under this part, except that projects or activities on such units must comply with the consistency requirement of § 219.15 with respect to any amendments that are developed and approved pursuant to this part.

The distinction made in this provision between amendments made pursuant to the 2012 rule and the underlying plan is an acknowledgement that portions of a 1982 rule plan will remain unchanged until revision. The 2012 rule therefore exempts universal application of the consistency requirements until the plan is revised, while also requiring application of the consistency requirements to those changes that are made by a 2012 rule amendment. The distinction between an amendment and the amended plan is thus reflected in the text of the 2012 rule.

As a general matter, most 1982 rule plans will not be consistent with all of the requirements of the 2012 planning rule. The Department's position is that an individual plan amendment cannot be expected to do the work of a plan revision. This positon not only reflects the intent of the rule wording, preamble text, and planning directives, but is also a practical approach to amending 1982 rule plans under the 2012 rule. This approach comes with the full realization that a unit may have important needs for change beyond those that form the basis of any individual amendment.

During the Department and Agency's conversations with the Committee about the Agency's early efforts to use the 2012 rule to amend 1982 rule plans, the Committee advised that some members of the public have suggested interpretations of the 2012 rule that conflict with the Department's position. For example, some members of the public suggested that because the 2012 rule recognizes that resources and uses are connected, changes to any one resource or use will impact other resources and uses, and therefore all of the substantive provisions in §§ 219.8 through 218.11 must be applied to every amendment.

Other members of the public suggested an opposite view. They believe that the 2012 rule gives the responsible official discretion to selectively pick and choose which, if any, provisions of the rule to apply, allowing the responsible official to avoid 2012 rule requirements or even propose amendments that would contradict the 2012 rule. Under this second interpretation, members of the public hypothesized that a responsible official could amend a 1982 plan to remove plan direction that was required by the 1982 rule without applying relevant requirements in the 2012 rule.

The Department intends in this preamble and proposed amendment to the rule to clarify that neither of these interpretations is correct.

The Agency recognizes that resources and uses are connected and interrelated. However, an interpretation that the rule prevents the responsible official from distinguishing among connected resources such that the Agency must comply with all of the 2012 rule's requirements in §§ 219.8 through 219.11 for each amendment would essentially turn every amendment into a revision, directly contradicting the Department's position as described earlier in this discussion that revisions and amendments serve different functions. Such an interpretation would freeze the Agency's ability to use amendments adaptively to respond to new information and changed conditions on units with 1982 rule plans.

At the same time, the 2012 rule does not give a responsible official the discretion to amend a plan in a manner contrary to the 2012 rule by selectively applying, or avoiding altogether, substantive requirements within §§ 219.8 through 219.11 that are directly related to the changes being proposed. Similarly, an interpretation that the 2012 rule gives responsible officials discretion to propose amendments “under the requirements” of the 2012 rule that actually are contrary to those requirements, or to use the amendment process to avoid both 1982 and 2012 rule requirements, is in opposition with the Department's position described earlier in this discussion that the responsible official's discretion to tailor the scope and scale of an amendment is not unbounded.

The Department's position is that a responsible official may use the best available scientific information, scoping, effects analysis, monitoring data, and other rationale to distinguish among connected resources to determine which substantive requirements are directly related to a change being proposed. A responsible official is not required to apply every requirement of every substantive section (§§ 219.8 through 219.11) to every amendment. However, the responsible official is required to apply those substantive requirements that are directly related to the changes being proposed, and cannot propose changes that would undermine or be contrary to other substantive requirements.

Further, the Department's position is that 2012 rule requirements apply to the amendment (the plan direction being added, modified, or removed), not to the amended plan. The 2012 rule therefore can be used to amend 1982 rule plans without any individual amendment bearing the burden of bringing the underlying plan into compliance with all of the 2012 rule requirements, even if unchanged direction in the 1982 rule plan fails to address, meet or is contrary to 2012 rule requirements.

Twenty-two forests are currently using the 2012 planning rule to revise their 1982 rule plans, but given Agency budget constraints and staff capacity, revision of all 127 of the Agency's 1982 rule plans will likely take more than 15 years. The clarifications in this proposed rule amendment would help ensure that the Agency can effectively use the 2012 rule to amend 1982 rule plans until they are revised.

When revised plans under the 2012 rule are amended, the process will be much less complicated than the present circumstance of amendments to 1982 rule plans. That is because plans revised under the 2012 rule are expected to meet all of the 2012 rule's substantive requirements. However, this proposed rule amendment clarifies that responsible officials have the discretion to tailor the scope and scale of amendments to adaptively change plans whether an amendment is to a 1982 rule plan or, in the future, to a 2012 rule plan.

Proposed Clarifications

To ensure that the Department's position regarding amendments of 1982 rule plans is clear, the proposed amendment to the 2012 planning rule would clarify that:

• The responsible official determines the scope and scale of a plan amendment based on a need to change the plan.
• The responsible official must use the best available scientific information to inform the amendment process.
• The responsible official must apply the requirements within §§ 219.8 through 219.11 that are directly related to the amendment, unlike a new plan or plan revision when they must bring the plan into compliance with every requirement within §§ 219.8 through 219.11.
• A plan amendment cannot make changes that are contrary to requirements of the 2012 planning rule.
• The decision document must include a rationale for the responsible official's determination of the scope and scale of the amendment, which requirements within §§ 219.8 through 219.11 are directly related, and how they were applied.

Specific Changes

Revise § 219.3

The Agency proposes to add the words “for assessment; developing, amending, or revising a plan; and monitoring,” to the first sentence of § 219.3, so it is clear that the best available scientific information applies to the plan amendment process as well as the other parts of the planning framework (36 CFR 219.5). Section 219.3 currently states “the responsible official shall use the best available scientific information to inform the planning process required by this subpart.” That process includes assessments, plan development, revision and amendment, and monitoring. Expanding the current wording to specifically mention each part of the process, including amendments, would make this section more consistent with other sections of the rule, including: Providing opportunities for public participation (§ 219.4), the plan amendment process (§ 219.13), including specific information in a decision document (§ 219.14), stating whether or not projects authorized at the time of amendment may continue without change (§ 219.15(a)), giving public notice (§ 219.16), setting the effective date for amendments (§ 219.17), and providing an objection opportunity (subpart B).

Amend §§ 219.8 Through 219.11 To Revise the Introductory Text

The Agency proposes to add the words “a plan developed or revised under this rule” to the introductory text of §§ 219.8 through 219.11 to clarify that the combined set of requirements in each section apply only to plan development or plan revision. Subpart A of the 2012 planning rule (§§ 219.1 through 219.19) recognizes the interrelationship among resources and among the sections, but it was not the intent of the Agency to imply that an individual plan amendment would need to meet all of the requirements of §§ 219.8 through 219.11. This proposed clarification would distinguish between new plans and plan revisions, which must comply with all the requirements in §§ 219.8 through 219.11, and amendments, which do not.

Amend § 219.13 To Revise Paragraph (a)

The Agency proposes to add the words “and to determine the scope and scale of any amendment” to the end of the third sentence of paragraph (a) that currently states: “The responsible official has the discretion to determine whether and how to amend the plan.” This change will clarify that responsible official's discretion to determine whether and how to amend any plan includes the discretion to determine the scope and scale of any amendment except as provided in paragraphs (b) and (c) of this section.

Amend § 219.13 Revise the Introductory Text of Paragraph (b)

The Agency proposes to add the words “For all plan amendments,” to the introductory text of paragraph b, so it is clear that the procedural and other requirements outlined in § 219.13(b) apply to all amendments.

Amend § 219.13 To Add Paragraph (b)(4)

The Agency proposes adding paragraph (b)(4) as a clarification that each plan component added or changed by a plan amendment must conform to the applicable definition for desired conditions, objectives, standards, guidelines, and suitability of lands set forth in § 219.7(e). The planning directives in the Handbook (1909.12, ch. 20, sec. 21.3) already state this requirement: “All additions or modifications to the text of plan direction that are made by plan amendments using the 2012 rule must be written in the form of plan components as defined at 36 CFR 219.7(e).”

Section 219.7 of the 2012 rule includes definitions for plan components to bring greater clarity to the Agency's plans, because 1982 rule plans often had an inconsistent approach to plan components—for example, mislabeling desired conditions as standards, or including objectives that did not have a measurable rate of progress.

Bringing the Handbook direction into paragraph (b)(4) of this section would help clarify that the 2012 requirements for formatting plan components, apply to plan amendments, but not to the part of the plan that is not amended. This clarification is important for amendments to 1982 rule plans, where unchanged plan direction will likely not meet the definitions in § 219.7(e), but reformatting that direction would be complicated and could have unintended consequences beyond the scope and scale of the amendment.

The Agency proposes to include a narrow exception to the plan component formatting requirements of paragraph (b)(4) for amendments to 1982 rule plans. This exception would apply to an amendment or part thereof that would change (add to or reduce) a management or geographic area or other areas to which existing direction applies, but would not change the text of that plan direction. This exception would allow the responsible official to avoid rewriting the plan direction within that management area to conform to § 219.7(e), because reformatting plan direction might accidentally broaden the scope of the amendment.

For example, an existing standard or guideline may not meet the definition in § 219.7(e) for those plan components but a formatting change could change the meaning of that plan direction. This formatting exemption is not an exemption from proposed paragraphs (b)(5) and (6) of this section. The expansion or reduction of an area to which existing direction applies would still have to meet directly related substantive requirements of the rule and not be contrary to any substantive requirement. This paragraph simply permits the responsible official to avoid rewriting existing direction in a 1982 rule plan to conform to the drafting direction for plan components set forth in § 219.7(e).

Amend § 219.13 To Add Paragraph (b)(5)

The Agency proposes new paragraph (b)(5) to clarify that, when amending a plan using the 2012 planning rule, the responsible official must meet the specific substantive requirement(s) within §§ 219.8 through 219.11 that are directly related to the plan direction added, modified, or removed by the amendment. The requirements of paragraphs (b)(5) apply only to those plan components being amended, not to the amended plan. This clarification will help the Agency and public understand how to apply the substantive requirements within §§ 219.8 through 219.11.

The Department's intent is that a responsible official use best available scientific information, scoping, effects analyses, monitoring data, and other rationale to inform a determination of which substantive requirements are directly related to the proposed plan amendment, and ensure that the amendment meets those requirements. The responsible official must be able to clearly explain the determination in the decision document for the amendment (see § 219.14).

Interrelationships between resources do not necessarily result in a substantive requirement being directly related to the proposed change. The Department recognize that resources and uses within the plan area are often related to one another—nonetheless, the responsible official can distinguish between rule requirements directly related to the amendment and those that may be unrelated or for which the relationship is indirect.

For example:

• Soil and water resources are interrelated, but the responsible official can determine that for a plan amendment to change standards and guidelines to protect a water body, the water requirements of § 219.8 would apply, while that section's requirements for soil would not.
• A change in plan components for timber harvest to support restoration may be related to the overall ecological integrity of the plan area, but a responsible official can determine that a change to a plan component for timber harvest for restoration purposes under § 219.11 would not require the application across the plan area of all of the requirements in § 219.8 related to ecological integrity.
• A plan amendment to modify recreation access under § 219.10 could be either directly related or unrelated to that section's requirement for the protection of cultural and historic resources, depending upon the nearness and potential effects of the proposed access to the cultural and historic resources.

A determination that a substantive requirement is directly related to a proposed amendment does not mean that the amendment must be expanded so that the requirement is applied to the entire plan area. For example, an amendment to plan direction for a specific riparian area would require the application of § 219.8 riparian management requirements to the changed direction for that area, but would not require that application of those requirements to other riparian areas in the plan area.

Likewise, an amendment that changes plan components to support habitat for an at-risk species would require application of § 219.9 to those proposed changes, but would not require application of § 219.9 to the entire underlying plan. For example, if the need to change the plan is to identify lands as suitable for an energy corridor, and the proposed corridor would go directly through critical habitat for a threatened species, then the requirements of § 219.9 would be directly related to the amendment as applied to that particular species. The responsible official may be required, for example, to add standards or guidelines to protect the critical habitat. However, the determination that § 219.9 is directly related to the amendment because of the potential impacts to one species would not trigger the application of § 219.9 to evaluate ecological conditions for all other species on the unit.

Amend § 219.13 To Add Paragraph (b)(6)

The Agency proposes adding paragraph (b)(6) to clarify that an amendment must avoid effects that would be directly contrary to any specific substantive requirement of §§ 219.8 through 219.11. The Department intended this result in the guidance in § 219.1(a) that Subpart A sets out the requirements for plan components and other content in land management plans for developing, amending, and revising plans, and is applicable to all units of the National Forest System. The 2012 rule further states in § 219.17(b)(2) that “[a]fter the 3-year transition period, all plan amendments must be initiated, completed, and approved under the requirements of this part.”

An outcome in which an amendment, using the 2012 rule, could introduce plan components, or change the underlying plan by removing direction in a way that contradicts or undermines the 2012 rule would be a contrary outcome: Paragraph (b)(6) clarifies that expectation.

Proposed paragraph (b)(6) would clarify that the responsible official does not have the discretion to approve an amendment to any plan, whether a 1982 rule plan or a 2012 rule plan, that has effects contrary to a requirement in the 2012 planning rule. The Department's intent is that when a question about effects arises, the responsible official would use best available scientific information (BASI), effects analyses, and other rationale to evaluate whether effects are contrary to a requirement, and to adjust the proposed amendment to avoid such effects. However, the Department's position is that the proposed paragraph (b)(6) does not prevent an amendment from having negative effects on a resource—the 2012 planning rule does not require the absence of negative effects. If effects analyses show negative effects that would be permissible under the 2012 rule, the responsible official would not need to change the proposal as a result of paragraph (b)(6).

There is an important burden-of-proof expectation in proposed paragraph (b)(6). The Department's intent is that paragraph (b)(6) does not require responsible officials to prove that an amendment is not contrary to the requirements in §§ 219.8 through 219.11. Rather, when analyses of a proposed amendment reveal that its effects would be contrary to a requirement, the proposed amendment must be adjusted to eliminate such effects. This burden-of-proof is similar to how the 2012 planning rule provides for the identification of species of conservation concern. A species must be identified as a species of conservation concern when it is known to occur in the plan area and BASI indicates there is substantial concern about the species' capability to persist over the long-term in the plan area. But, the Agency is not required to prove that there isn't substantial concern for other species. The same burden-of-proof is intended here.

The analysis already required by the Forest Service NEPA procedures for proposals are expected to provide the information necessary to satisfy proposed paragraph (b)(6). This paragraph does not require additional analyses. (See 36 CFR part 220, FSM 1950, FSH 1909.15). Proposed paragraph (b)(6) anticipates the potential scenario in which a responsible official does not realize that a specific requirement is directly related to the proposed plan amendment, but discovers through NEPA effects analysis that the proposed change would have a negative effect that is contrary to that requirement.

If the customary analysis of effects of a proposed plan amendment reveals effects that would be contrary to a specific substantive requirement within §§ 219.8 through 219.11, the responsible official must change the proposal so that it avoids those contrary effects.

For example: A proposed amendment would identify lands as suitable for an energy corridor. At the time the amendment is proposed, the responsible official does not have information indicating that the proposed corridor includes habitat necessary for an at-risk species and therefore determines that § 219.9 is not directly related to the amendment. However, effects analysis reveals habitat impacts that undermine the persistence of the at-risk species, contrary to § 219.9. At that point, the responsible official could avoid the contrary effects by changing the location of the proposed corridor to avoid that habitat, or could apply § 219.9 to add coarse or fine filter plan components for ecological conditions that would result in avoiding the contrary effects. The responsible official would not have the discretion to approve the amendment without avoiding the contrary effects.

As discussed in the “Amend § 219.13 to add paragraph (b)(5)” section of this document, the Department's intent is to distinguish between an amendment and an amended plan. Proposed paragraph (b)(6) applies to the amendment—plan components being added, modified or removed—not to the plan as amended. The Department recognizes that a 1982 rule plan may contain direction contrary to the 2012 rule that is outside of the scope of the amendment being proposed. Paragraph (b)(6) would require that an amendment—the changes—to such a plan not be contrary to 2012 rule requirements, but it does not require that the underlying plan be modified to remove existing contrary direction outside the scope of the amendment.

Amend § 219.13 To Add New Paragraph (c)

The Agency is proposing to add a new paragraph (c), to include additional clarifications on how to apply the 2012 rule to amend 1982 rule plans. Existing direction on administrative changes currently at paragraph (c) would be moved to a new paragraph (d).

Proposed paragraph (c)(1) would clarify that although the existing requirements of §§ 219.8 through 219.11 take into account the interrelationship among resources, an individual plan amendment is not expected to bring an entire 1982 rule plan into compliance with all of the 2012 rule's substantive requirements identified in §§ 219.8 through 219.11. This paragraph reflects the Department's intent to distinguish between the substantive requirements for the amendment (clarified in paragraphs (b)(5) and (b)(6) of this section), and the Department's expectations with regard to the amended plan (which will include both changed and unchanged portions of the underlying plan).

Proposed paragraph (c)(2) would clarify that an amendment cannot remove any existing plan direction that was required by the 1982 rule without including plan components that meet related requirements in §§ 219.8 through 219.11. The Agency believes that this scenario is covered by the proposed clarifications in paragraphs (b)(5) and (b)(6) of this section. These two paragraphs clarify that the responsible official cannot remove direction from a plan without applying the directly related requirements within §§ 219.8 through 219.11. However, we are including proposed paragraph (c)(2) in the proposed amendment based on feedback from the Committee, to get public input during the comment period.

Paragraph (c)(2) is not intended to add to the process burden for amendments. Rather, this paragraph is intended to make clear that removing plan direction required by the 1982 rule without appropriately applying the 2012 rule is not permitted. For example, if an amendment removes a standard that BASI has shown to be material to the viability of an at-risk vertebrate species in the plan area as required by the 1982 rule, the responsible official would have to ensure that the plan provides the ecological conditions for that species as required by § 219.9 of the 2012 rule.

We discussed with the Committee an earlier draft of paragraph (c)(2) that allowed the responsible official to remove direction required by the 1982 rule without applying directly related 2012 rule substantive requirements, if the responsible official could demonstrate that the amended plan still was consistent with the 1982 rule. For example, the earlier draft would have allowed the removal of a standard for an at-risk vertebrate species without requiring the application of § 219.9, so long as the amended plan still met the viability requirements for that species under the 1982 rule procedures. The Agency decided not to include that option for several reasons. The reasons were: Concerns about the process burden that option could create by necessitating the evaluation of amended plans, the desire to clarify that the 2012 rule's requirements apply to amendments and not amended plans, and because the intent of the 2012 rule was to move away from the 1982 requirements after the 3-year transition period. However, we are describing that option here based on Committee feedback, so that the public can comment.

The Agency proposes to add paragraph (c)(3) to address the scenario in which the species-specific requirements of § 219.9(b) are directly related to the amendment of a 1982 rule plan, but because the plan has not yet been revised, the regional forester has not yet identified the species of conservation concern (SCC) for the plan area. Requiring the responsible official to identify potential SCC before amending 1982 rule plans would freeze the Agency's ability to amend 1982 rule plans. Even where the diversity requirements in § 219.9(b) are directly related to a proposed amendment, requiring the development of the list of SCC to provide species-specific plan components for one or more species would be a disproportionate expansion of the scope and scale of an amendment. Further difficulties would likely arise because the 1982 rule did not include the 2012 rule's complementary ecosystem and species-specific approach to maintaining the diversity of plant and animal communities and the persistence of native species in the plan area.

However, while SCCs are a new element of the 2012 rule, regional foresters have already identified species for which population viability is a concern pursuant to FSM Chapter 2670—Threatened, Endangered and Sensitive Plants and Animals (see 36 CFR 219.9(c); FSM 2670.5). These species are called regional forester sensitive species (RFSS). RFSS are not the same as SCC, but combined with the NEPA effects analysis that is already required for an amendment, the Agency expects that they would be a reasonable proxy to facilitate amendments of 1982 plans before plan revision.

Therefore, the Agency is proposing that responsible officials substitute the RFSS list for SCC when using the 2012 rule to amend 1982 rule plans. This proposal would allow responsible officials to use RFSS in lieu of SCC, and in addition to listed species, to determine whether § 219.9(b) is directly related to the changes being proposed by an amendment as required by proposed paragraph (b)(5) or proposed paragraph (c)(2) of this section, or applies to avoid contrary effects as required by paragraph (b)(6) of this section. In applying § 219.9(b), the responsible official would use RFSS in lieu of SCC to apply the requirements of § 219.9(b) to develop species-specific plan components.

Amend § 219.14

The Agency proposes to change the caption of paragraph (a) from “Decision document” to “Decision document approving a new plan, plan amendment, or revision.” The Agency proposes to redesignate paragraph § 219.14(b) as § 219.14(d).

In addition, the Agency proposes to remove paragraph (a)(2) which requires responsible officials to explain how plan direction meets the provisions of §§ 219.8 through 219.11. The Agency would replace paragraph (a)(2) with two new paragraphs (b) and (c).

The new paragraph (b) would require responsible officials to explain in a decision document for a new plan or plan revision how the plan direction meets the provisions of §§ 219.8 through 219.11. This wording would be identical to the existing paragraph (a)(2), except would clarify that this requirement applies to new plans or plan revisions only.

The new paragraph (c) focuses on documentation for a plan amendment. The decision document must include a rationale for the responsible official's determination of the scope and scale of the amendment, which requirements within §§ 219.8 through 219.11 are directly related, and how they were applied.

Technical Correction to Section 219.11

The Department proposes to include one change unrelated to the clarifications for amending 1982 rule plans. This change is a technical correction to fix a mistake made on July 27, 2012, (77 FR 44144, July 27, 2012). In that correcting amendment, the Agency removed a sentence by mistake about the maximum size limits for areas to be cut in one harvest operation in § 219.11(d)(4). This change would simply return to § 219.11 the original sentence as published in the 2012 planning rule on April 9, 2012 (77 FR 21161).

Regulatory Certifications

Energy Effects

This proposed rule has been analyzed under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. It has been determined that it does not constitute a significant energy action as defined in the Executive Order.

Environmental Impacts

In issuing the 2012 planning rule, the Department prepared both an Environmental Impact Statement (EIS) and a biological assessment to support its final decision. The EIS is available online at http://www.fs.usda.gov/​planningrule.

The Department has concluded that this rule amendment does not require additional documentation under the National Environmental Policy Act. Because this amendment is to clarify the Department's original intent for plan amendment processes and requirements, the range of effects included in the Department's prior NEPA analysis covers this proposed rule amendment. Therefore, there is no need to supplement the National Forest System Land Management Planning Rule Final Programmatic Environmental Impact Statement of January 2012.

In addition, Forest Service regulations at 36 CFR 220.6(d)(2) exclude from documentation in an environmental assessment or environmental impact statement “rules, regulations, or policies to establish servicewide administrative procedures, program processes, or instruction.” The Agency has determined that this proposed rule amendment falls within this category of actions and that no extraordinary circumstances exist which require preparation of an environmental assessment or environmental impact statement.

Consultation and Coordination With Indian Tribal Governments

This proposed rule has been reviewed under Executive Order 13175 of November 6, 2000, Consultation and Coordination with Indian Tribal Governments. It has been determined that this proposed rule would not have Tribal implications as defined by Executive Order 13175, and therefore, advance consultation with Tribes is not required.

Regulatory Impact

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovated, and least burdensome tools for achieving regulatory ends. The Executive Order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

Regulatory Flexibility

This proposed rule has also been considered in light of the Regulatory Flexibility Act, as amended (5 U.S.C. 601 et seq.), and it has been determined that this action will not have a significant economic impact on a substantial number of small business entities as defined by the Regulatory Flexibility Act. Therefore, a regulatory flexibility analysis is not required for this proposed rule.

Federalism

The Forest Service has considered this proposed rule under the requirements of Executive Order 13132 on federalism. The Agency has determined that the proposed rule conforms with the federalism principles set out in this Executive Order; would not impose any compliance costs on the States; and would not have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the Agency has determined that no further determination of federalism implications is necessary at this time.

No Takings Implications

This proposed rule has been analyzed in accordance with the principles and criteria in Executive Order 12630. It has been determined that this proposed directive does not pose the risk of a taking of private property.

Civil Justice Reform

This proposed rule has been reviewed under Executive Order 12988 on civil justice reform. If the proposed rule were to be adopted, (1) all State and local laws and regulations that conflict with the proposed rule or that would impede its full implementation would be preempted; (2) no retroactive effect would be given to the proposed rule; and (3) it would not require administrative proceedings before parties may file suit in court challenging its provisions.

Unfunded Mandates

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

Controlling Paperwork Burdens on the Public

This proposed rule does not contain recordkeeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the Forest Service requested and received approval of a new information collection requirement for subpart B as stated in 36 CFR 219.61 and assigned control number 0596-0158 as stated in the final rule approval (77 FR 21161, April 9, 2012). Subpart B specifies the information that objectors must give in an objection to a plan, plan amendment, or plan revision (36 CFR 219.54(c)).

However, recently the Agency learned that subpart B is not considered an information collection under the Paperwork Reduction Act of 1995. Subpart B is not an information collection because the notice indicating the availability of the plan, plan amendment, or plan revision, the appropriate final environmental documents, the draft plan decision document, and the beginning of the objection period is a general solicitation. No person is required to supply specific information pertaining to the respondent, other than that necessary for self-identification.

List of Subjects in 36 CFR Part 219

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

Therefore, for the reasons set forth in the preamble, the Forest Service proposes to amend 36 CFR part 219 by making the following amendments:

PART 219—PLANNING

1. The authority citation for part 219 continues to read as follows:

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

2. Revise § 219.3 to read as follows:

§ 219.3

Role of science in planning.

The responsible official shall use the best available scientific information to inform the planning process required by this subpart for assessment; developing, amending, or revising a plan; and monitoring. In doing so, the responsible official shall determine what information is the most accurate, reliable, and relevant to the issues being considered. The responsible official shall document how the best available scientific information was used to inform the assessment, the plan or amendment decision, and the monitoring program as required in §§ 219.6(a)(3) and 219.14(a)(3). Such documentation must: Identify what information was determined to be the best available scientific information, explain the basis for that determination, and explain how the information was applied to the issues considered.

3. Revise the introductory text to § 219.8 to read as follows:

§ 219.8

Sustainability.

A plan developed or revised under this rule must provide for social, economic, and ecological sustainability within Forest Service authority and consistent with the inherent capability of the plan area, as follows:

* * * * *

4. Revise the introductory text to § 219.9 to read as follows:

§ 219.9

Diversity of plant and animal communities.

This section adopts a complementary ecosystem and species-specific approach to maintaining the diversity of plant and animal communities and the persistence of native species in the plan area. Compliance with the ecosystem requirements of paragraph (a) of this section is intended to provide the ecological conditions to both maintain the diversity of plant and animal communities and support the persistence of most native species in the plan area. Compliance with the requirements of paragraph (b) of this section is intended to provide for additional ecological conditions not otherwise provided by compliance with paragraph (a) of this section for individual species as set forth in paragraph (b) of this section. A plan developed or revised under this rule must provide for the diversity of plant and animal communities, within Forest Service authority and consistent with the inherent capability of the plan area, as follows:

* * * * *

5. Revise the introductory text to § 219.10 to read as follows:

§ 219.10

Multiple use.

While meeting the requirements of §§ 219.8 and 219. 9, a plan developed or revised under this part must provide for ecosystem services and multiple uses, including outdoor recreation, range, timber, watershed, wildlife, and fish, within Forest Service authority and the inherent capability of the plan area as follows:

* * * * *

6. Revise the introductory text to § 219.11 and paragraph (d)(4) to read as follows:

§ 219.11

Timber requirements based on the NFMA.

While meeting the requirements of §§ 219.8 through 219.10, a plan developed or revised under this part must include plan components, including standards or guidelines, and other plan content regarding timber management within Forest Service authority and the inherent capability of the plan area, as follows:

* * * * *

(d) * * *

(4) Where plan components will allow clearcutting, seed tree cutting, shelterwood cutting, or other cuts designed to regenerate an even-aged stand of timber, the plan must include standards limiting the maximum size for openings that may be cut in one harvest operation, according to geographic areas, forest types, or other suitable classifications. Except as provided in paragraphs (d)(4)(i) through (iii) of this section, this limit may not exceed 60 acres for the Douglas-fir forest type of California, Oregon, and Washington; 80 acres for the southern yellow pine types of Alabama, Arkansas, Georgia, Florida, Louisiana, Mississippi, North Carolina, South Carolina, Oklahoma, and Texas; 100 acres for the hemlock-Sitka spruce forest type of coastal Alaska; and 40 acres for all other forest types.

* * * * *

7. Amend § 219.13 as follows:

a. Revise paragraph (a);

b. Revise the introductory text of paragraph (b) and add paragraphs (b)(4) through (6);

c. Redesignate paragraph (c) as paragraph (d) and add new paragraph (c).

The revisions and additions read as follows:

§ 219.13

Plan amendment and administrative changes.

(a) Plan amendment. A plan may be amended at any time. Plan amendments may be broad or narrow, depending on the need for change, and should be used to keep plans current and help units adapt to new information or changing conditions. The responsible official has the discretion to determine whether and how to amend the plan and to determine the scope and scale of any amendment. Except as provided by paragraph (d) of this section, a plan amendment is required to add, modify, or remove one or more plan components, or to change how or where one or more plan components apply to all or part of the plan area (including management areas or geographic areas).

(b) Amendment requirements. For all plan amendments, the responsible official shall:

* * * * *

(4) Follow the applicable format for plan components, set out at § 219.7(e), for the plan direction added or modified by the amendment, except that where an amendment to a plan developed or revised under a prior planning regulation would modify the area to which existing direction applies, without altering the existing direction, the responsible official may retain the existing formatting for that direction.

(5) Ensure that the amendment meets the specific substantive requirement(s) within §§ 219.8 through 219.11 that are directly related to the plan direction added, modified, or removed by the amendment.

(6) Ensure that the amendment avoids effects that would be contrary to a specific substantive requirement of this part identified within §§ 219.8 through 219.11.

(c) Amendment of a plan developed or revised under a prior planning rule. (1) An amendment of a plan developed or revised under a prior planning rule is not required to bring the amended plan into compliance with all of the requirements of §§ 219.8 through 219.11.

(2) If the proposed amendment would remove direction required by the prior planning regulation, the responsible official must apply the directly related requirements within §§ 219.8 through 219.11.

(3) If species of conservation concern (SCC) have not been identified for the plan area, the responsible official must use the regional forester sensitive species list in lieu of SCC when applying the requirements of § 219.9(b) to a plan amendment for a plan developed or revised under a prior planning regulation.

8. Amend § 219.14 as follows:

a. Revise the introductory text to paragraph (a);

b. Remove paragraph (a)(2);

c. Redesignate paragraphs (a)(3) through (6) as paragraphs (a)(2) through (5), respectively;

d. Redesignate paragraph (b) as paragraph (d) and add new paragraph (b);

e. Add paragraph (c).

The revisions and additions read as follows:

§ 219.14

Decision document and planning records.

(a) Decision document approving a new plan, plan amendment, or revision. The responsible official shall record approval of a new plan, plan amendment, or revision in a decision document prepared according to Forest Service NEPA procedures (36 CFR part 220). The decision document must include:

* * * * *

(b) Decision document for a new plan or plan revision. In addition to meeting the requirements of paragraph (a) of this section, the decision document must include an explanation of how the plan components meet the sustainability requirements of § 219.8, the diversity requirements of § 219.9, the multiple use requirements of § 219.10, and the timber requirements of § 219.11;

(c) Decision document for a plan amendment. In addition to meeting the requirements of paragraph (a) of this section, the decision document must explain how the responsible official determined:

(1) The scope and scale of the plan amendment; and

(2) Which specific requirements within §§ 219.8 through 219.11 apply to the amendment and how they were applied.

* * * * *

Dated: October 6, 2016.

Thomas L. Tidwell,

Chief, Forest Service.