E8-2659. Native Plant Material Policy (Forest Service Manual 2070)

AGENCY:

Forest Service, USDA.

ACTION:

Notice of issuance of agency final directive.

SUMMARY:

The Forest Service is issuing a new directive to Forest Service Manual (FSM) 2070 for native plant materials, which provides direction for the use, growth, development, and storage of native plant materials.

DATES:

This directive is effective February 13, 2008.

ADDRESSES:

A copy of the final directive is available at http://www.fs.fed.us/​rangelands/​whoweare/​documents/​FSM2070_​Final_​2_​062905.pdf.

The administrative record for this final directive is available for inspection and copying at the office of the Director, Rangeland Management Staff, USDA Forest Service, 3rd Floor South, Sidney R. Yates Federal Building, 1400 Independence Avenue, SW., Washington, DC, from 8:30 a.m. to 4 p.m., Monday through Friday, except holidays. Those wishing to inspect the administrative record are encouraged to call in advance to Brian Boyd, [phone] to facilitate entrance into the building.

FOR FURTHER INFORMATION CONTACT:

Larry Stritch, Rangeland Management Staff, USDA Forest Service, Mailstop 1103, 1400 Independence Avenue, SW., Washington, DC 20250, [phone].

SUPPLEMENTARY INFORMATION:

Title 36 CFR 219.10(b) states: “The overall goal of the ecological element of sustainability is to provide a framework to contribute to development and maintenance of native ecological systems by providing desired ecological conditions to support diversity of native plant and animal species in the plan area”. Executive Order 13112 (February 3, 1999, sec. 2(a)(2)(IV)) on invasive species states the agencies will “provide for restoration of native species and habitat conditions in ecosystems that have been invaded [by non-native species]”. In accordance with the Executive order and regulation, the Forest Service is issuing a new final directive to Forest Service Manual (FSM) 2070 for native plant materials, which addresses the uses of these materials in the revegetation, restoration, and rehabilitation of National Forest System lands in order to achieve the Agency's goal of providing for the diversity of plant and animal communities. The policy directs collaboration with federal, state, and local government entities and the public to develop and implement actions to increase the availability of native plant materials for use in revegetation, restoration, and rehabilitation.

Toward development of this policy, the goal of the Forest Service is to promote the use of native plant materials in revegetation for restoration and rehabilitation in order to manage and conserve terrestrial and aquatic biological diversity. This policy defines a native plant as: all indigenous terrestrial and aquatic plant species that evolved naturally in an ecosystem.

This policy also requires the use of best available information to choose ecologically adapted plant materials for the site and situation. Moreover, the policy states that native plants are to be used when timely natural regeneration of the native plant community is not likely to occur; native plant materials are the first choice in revegetation for restoration and rehabilitation efforts.

This policy does not discount the management use of non-native plant materials. Non-native, non-invasive plant species may be used when needed: (1) In emergency conditions to protect basic resource values such as soil stability and water quality; (2) As an interim, non-persistent measure designed to aid in new establishment of native plants (unless natural soil, water and biotic conditions have been permanently altered); (3) In conditions and management situations where native plant species are not available; and (4) When working in permanently altered plant communities. Under no circumstances will invasive plant species be used.

Public Comments on Proposed Policy and Forest Service's Responses:

Overview

On May 26, 2006, the Forest Service published the proposed policy in the Federal Register and sought public comment in adopting a new policy on native plant materials into Forest Service Manual 2070 (71 FR 30375).

During the 60-day comment period on the proposed policy which ended on July 26, 2006, the agency received one request for an extension of the comment period.

On July 25, 2006 the Forest Service published the Notice of Extension of Public Comment Period in the Federal Register (71 FR 42079) and extended the comment period 30 days. During the 30-day extended comment period on the proposed policy which ended August 24, 2006, no requests for a further extension of the comment period were received.

The Forest Service received 53 letters or electronic messages in response to this proposed policy. Each respondent was placed into one of the following categories:

Business	10
Federal Agencies	2
State Agencies	4
Non-Governmental Organizations	16
Individuals (unaffiliated or unidentifiable)	21

Most respondents (42) offered general comments supporting the proposed FSM 2070 Native Plant Material Policy. Nine respondents offered several comments not supporting the policy and two commenters were neutral. Many respondents offered specific comments about sections of the proposed policy.

General Comments

Many respondents expressed very supportive comments in favor of the use of native plants by the Forest Service in carrying out restoration, revegetation, and rehabilitation projects. The respondents who were not supportive of the proposed policy were concerned with the cost, availability, and equipment to put native plant seed and other native plant materials into the ground. FSM 2070 gives the decisionmaker wide latitude in determining when, where, and which native species to use. FSM 2070.3 allows cost and availability of native species to be a consideration when deciding not to use native plant materials. The feasability of sowing or planting native plant materials would be a consideration as well. Additionally, cost of personnel to manage and oversee this program was a concern as well. The Forest Service will be adding these duties to existing program management responsibilities.

Comment. The preference of certain plant species ought not to be the foremost policy objective of the Forest Service pertaining to resource protection; the primary consideration should be, as it has been, the rapid and effective reestablishment of vegetation, using whatever species are most successful in doing so.

Response. The Forest Service agrees that the timely reestablishment of vegetation to protect soil and water resource values is our part of our mission. It is important that reestablishment of vegetation does not itself cause a new problem, as may be the case with non-native species, and the FSM provides sufficient discretion to allow for non-native planting when natives are not available or appropriate.

Comment. Many native plant species are not conducive to being mechanically spread, due to oddly shaped seeds and other factors. Many species are also characterized by long germination periods, rendering them of little utility for rapid site occupancy.

Response. The final policy takes into account factors such as those identified by the commenter, and native and non-native plant material that cannot meet this direction will not be used. The final policy has not been changed from the proposal in this respect.

Comment. We do not support the use of non-native, non-invasive plant materials regardless of the situation. It is well known that a non-native plant species may be present in an ecosystem for decades before it becomes invasive.

Response. The Forest Service is very aware of the challenging issues surrounding the removal of invasive species and not letting invasive, non-native species become established. There will be instances when native plant materials are not available or their cost is prohibitive. The FSM provides the line officer with “limited” circumstances when non-native plant materials may be used. The final policy has not been changed from the proposal in this respect. The Forest Service, working with our partners, will continue to use the best available information when selecting non-native plant materials for restoration, revegetation and reehabilitation projects.

Comment. Several commenters expressed the need for the Forest Service to work with adjacent landowners and with other governmental agencies to provide for effective invasive species control. It will do the Forest Service no good to restore an area to native plants, only to have it engulfed with invasive vegetation from adjoining land.

Response. We agree that cooperation with adjacent landholders and all our partners and stakeholders will be essential to successful implementation of this policy.

Comment. The proposed directive does not include any language about commercial uses of native plants.

Response. FSM direction for the commercial harvest of special forest products is contained within FSM 2400.

Comment. We would encourage adding a policy to include a segment on native plant materials in Forest Service outreach and education efforts, forest visitor centers and supporting interpretive materials and adding appropriate native plant materials curriculum to existing training courses for managers, planners and field staff.

Response. We agree with the goal of public outreach, education efforts, etc. FSM 2070.2 objectives 1—6 contain specific direction to promote, inform, train, and educate our personel and to work with our partners in doing so. Many of these public outreach objectives are met through our various interpretive materials and programs that are created and delivered on the forest and grassland level, making it more specific to their local publics. A great deal of this type of information has already been placed on the Forest Service's Celebrating Wildflowers Web site (http://www.fs.fed.us/​wildflowers) where a considerable amount of material on native plant materials has been posted. As it pertains to training, the Forest Service will incorporate aspects of this native plant materials policy into various exisiting training courses. FSM 2070.45(3) and FSM 2070.45(6) require Forest and Grassland Supervisors to ensure that this policy is implemented and that all pertinent and required training is carried out so as to implement this new policy on native plant materials.

Comment. Several Comment ers want certain parts of the policy to list important partners such as state native plant societies, local universities, invasive/exotic plant pest species councils and others.

Response. The Forest Service has a proud history of working with our partners, concerned citizens and other stakeholders. The Forest Service believes there is no need to list specific partners in order to carry out the policy to cooperate with partners. Moreover, it would be a long list, and even so would inevitably be incomplete. The agency will work closely with all interested parties in the implementation of this new policy.

Comment. One Comment er stated, “if invasive plants are removed and the area replanted with native plants, the native plants do not survive. They are browsed by deer. Revegetation and rehabilitation cannot take place until the size of the deer herd is controlled. Deer herd management is the first priority.”

Response. We agree in many of our national forests very large numbers of deer are having adverse effects on our native plants and native plant communities. The Forest Service has close working relationships with the state wildlife agencies. We are working with them to find long-term solutions to overly large deer populations. The Forest Service has undertaken short-term measures to protect native plants from deer such as fencing exclosures and use of protective netting over native plants.

Comment. All the attention appears to focus on the ‘large flora’ species, and ignores the rhizosphere species of mycorrhiza, rhizobium and other soil beneficial bacteria and fungi.

Response. We agree that micro flora and fauna contained in the soil are very important considerations in the choice and use of native plant materials. This policy addresses species classified as belonging to the Kingdom Plantae. Bacteria are classified as belonging to Kingdom Monera. Fungi are classified as belonging to the Kingdom Fungi. Therefore they are not addressed in this policy.

Comment. The assumption seems to be that “plant species” or “vegetative material” pertains to vascular plants.

Response. This policy addresses the use of native plant materials. The definition of native plant species does not exclude non-vascular plants. The policy addresses any species belonging to the Kingdom Plantae and as such includes both vascular and non-vascular plant species.

Comment. There absolutely must be some standard reference list as to what is native and what is not.

Response. The policy does not provide a standard list or reference because the determination of whether a plant species is native must be made on a local basis; a species may be native in one area of a state and not in another.

The Forest Service did not receive any Comment s on sections 2070.11 Laws; section 2070.12 Regulations; and section 2070.13 Executive Orders.

Sections 2070.2 Objectives and 2070.3 Policy received many Comment s that cut across both sections. Therefore, comments on those sections and the agency's responses are consolidated.

Comment. One commenter was concerned with non-native plants that may be “exempted” due to the need to maintain historical integrity. What would happen if an invasive species like purple loosestrife had been planted there by a CCC crew.

Response. This policy does not address the removal of noxious weeds or invasive species. Direction for noxious weeds is addressed in FSM 2080. The Forest Service is currently developing policy to address invasive species.

Comment. One organization commented “that Policy points 2070.3(2) and 2070.3(3) appear to contradict each other. * * * believes differentiating between the intention of using persistent plant materials in Policy point 2070.3(2) and non-persistent plant materials in Policy point 2070.3(3) can eliminate this contradiction.”

Response. In this final directive 2070.3(2), we have inserted the word “persistent” to make the meaning of the directive clearer. FSM2070.3(2) now reads:

Restrict the use of persistent, (added emphasis) non-native, non-invasive plant materials to only those situations when timely reestablishment of a native plant community either through natural regeneration or with the use of native plant materials is not likely to occur.

Comment. One organization stated “We feel it should be clearly stated in the policy that it is acceptable to utilize non-invasive, non-native plants for wildlife habitat improvement. Non-native non-invasive plants should be considered for use in a variety of situations including areas that have not been permanently or tempoarily altered. Some examples would be permanent and temporary wildlife openings, log landings, skid trails, temporary roads that have been closed and are used for linear wildlife openings.” A number of commenters took a similar position with respect to planting for wildlife habitat.

Response. FSM 2070.2(4) states: “Promote the appropriate use and availability of native and appropriate non-native plant materials.” While the general policy is to give primary consideration to the use of native plant species, the policy is flexible and allows for the use of non-native, non-invasive plant species in certain types of situations. FSM 2070 gives the decision maker broad discretion in the use of both native and non-native non-invasive plant species. The Forest Service has a proud history of working with other state and federal agencies, Tribes, and other interested organizations including organizations with wildlife habitat improvement as one of their primary mission areas. Working with our partners we will look for opportunities to develop a readily available supply of native plant materials that may be used in place of non-native, non-invasive plant species and still meet habitat management goals. FSM 2070.3(2)(c) now reads: “In permanently highly altered plant communities, such as road cuts, permanent and temporary wildlife openings, log landings, skid trails, temporary roads that have been closed and are used for linear wildlife openings and sites dominated by non-native non-invasive species.”

Comment. This direction fails to designate criteria or qualifications for staff delegated to decide what plants are suitable for use.

Response. The agency believes that the direction does in fact establish qualifications for staff who will select plants to be used in revegetation, rehabilitation or restoration. The FSM provides for direction and statement of policy. FSM 2070.45 delegates to the Forest and Grassland Supervisors the responsibility for training personnel to become trained or certified. Local conditions will require specific training that addresses local needs. For example, each state will have different laws and regulations concerning the labeling of seed.

Comment. One commenter believes that the addition of several words to the introductory sentence of section 2070.3 of FSM 2070 will lend greater clarity to the specific purpose of this document. Specifically he suggests that the bold, underlined words in the phrase below be added to the text: “Policies for the selection, use and storage of native and non-native plant materials that are used in the revegetation, restoration and rehabilitation of National Forest system lands are as follows.

Response. The Forest Service agrees. FSM 2070.3 has been changed to read:

Policies for selection, use and storage of native and non-native plant materials that are used in the revegetation, restoration and rehabilitation of National Forest System lands are as follows: (emphasis added)

Comment. In FSM 2070.3(2)(c), we are not comfortable with the example where reestablishment of a native plant community is not likely to occur. It is true some roadsides and roadcuts have fill or exposure of soils or other features that make establishment of the surrounding native community unlikely, and sites that are predominately exotic weeds may make establishment of a diverse native community difficult. However, use of even limited native species in these areas would provide a buffer to the surrounding areas and reduce the threat of the spread of weedy species following natural disturbances. In this instance we would prefer to include a clarifying phrase, such as “where no suitable native species can be established.”

Response. Nothing in FSM 2070 precludes the use of native species in any revegetation, restoration or rehabilitation project including roadcuts. There are many projects where the Forest Service has used native species in roadside projects. FSM 2070.3(1) states:

Ensure native plant materials are given primary consideration.

The purpose of giving examples of where non-native non-invasive species may be used was to provide the public and Forest Service personel with additional information. Other examples could include reclaimed mine spoils. However, the overarching consideration, especially for these type of projects, is contained in FSM 2070.2(2) which states:

Maintain adequate protection for soil and water resources, through timely and effective revegetation of disturbed sites that could not be restored naturally.

Comment. Several commenters wanted further restrictions on the use of native plant materials that are not representative of the local ecotypes as outlined in FSM 2070.3.

Response. We have changed FSM 2070.3(1) to now read

Ensure genetically appropriate (emphasis added) native plant materials are given primary consideration.

Comment. One commenter wanted “emergency conditions” from FSM 2070.3(2)(a) defined.

Response. The determinination of emergency conditions is best determined at the local level by the appropriate line officer, i.e. district ranger and forest or grassland supervisor. Further FSM 2070.3(3) directs that:

Select non-native plants as interim, non-persistent plant materials provided they will not hybridize with local species, will not permanently displace native species or offer serious long-term competition to the recovery of endemic plants and are designed to aid in the re-establishment of native plant communities.

Comment. FSM 2070.3(8) should address special forest products as well as timber.

Response. FSM 2070.3(8) now reads in part, Specific direction for commercial timber species and special forest products is in FSM 2470.

Comment. The directive does not include any mention of the cultural aspects of native plants or require the involvement of experts who would be able to inform sociocultural considerations. Under FSM 2070.4—Responsibilities: Language needs to be added to include social scientists in assessment and planning regarding the type of native plant species selected.

Response. The direction does not provide for the resource skills necessary to carry out a project analysis. It is the responsibility of the Forest, Grassland Supervisor, or District Ranger to determine which personnel will be assigned to the inter-disciplinary team that conducts the project analysis. The only requirement this direction provides for a revegetation, restoration or rehabilitation project is found at FSM 2070.3(5) which states:

Ensure that development, review and/or approval of revegetation, rehabilitation and restoration plans, including species selection, genetic heritage, growth stage and any needed site preparation, is done by a plant materials specialist who is knowledgeable and trained or certified in the plant community type where the revegetation will occur.

Other resource specialists are assigned to an interdisciplinary team based upon scoping comments from the public and the various resources that need to be analyzed as part of the project analysis. If socio-cultural aspects of potential plant species chosen is an issue that needs to be addressed the appropriate line officer will ensure that the necessary expertise is available to analyze the issue.

The Forest Service received a comment concerning section 2070.41 Chief.

Comment. One commenter suggested that the Forest Service include the seed industry when promoting cooperation and coordination for the development and supply of native and non-native plant materials (FSM 2070.41.3 Responsibilities of the Chief).

Response. The Forest Service agrees. FSM 2070.41.3 has been changed to incorporate the seed industry. FSM 2070.41.3 now reads:

Promotes cooperation and coordination between federal agencies, state, tribal and local governments, the seed industry (emphasis added), the nursery industry, partners and the public for the development and supply of native and non-native plant materials.

The Forest Service received no comments for section 2070.42 Deputy Chief for National Forest Systems.

The Forest Service received no comments for section 2070.43 Regional Forester.

The Forest Service received several comments concerning section 2070.45 Forest and Grassland Supervisors.

Comment. Proposed FSM 2070.45 states that Forest and Grassland Supervisors may “delegate the authority, if necessary, to use genetically appropriate native and non-native plant materials in revegetation projects.” This direction fails to designate criteria or qualifications for staff delegated to decide what plants are suitable for use.

Response. FSM 2070.4 lays out the delegation of authorities from the Chief down to the District Ranger. Only a line officer can make an agency decision and only a line officer may be delegated authority to make a decision. FSM 2070.45 is stating that a Forest or Grassland Supervisor may delegate the authority; in this case the delegation is to the District Ranger. Staff do not make decisions.

Comment. One commenter stated that the Forest Service must provide sufficient training based on the best available science for plant material specialists.

Response. The Forest Service agrees. The Forest Service will provide appropriate and necessary training to enable the agency to implement this new direction.

The Forest Service received no comments for section 2070.46 District Ranger.

The Forest Service received many comments concerning section 2070.5 Definitions.

Comment. Many commenters believe the Forest Service definition of “native plant” is too restrictive. One commenter believes the selection of this material by the project manager can be better implemented by separating the definition of plants into three categories; local native plant material, non-local native plant material and introduced plant material. Many other comments were submitted concerning the definition of “native plant.”

Response. The definition of native plant has been changed to the definition used by the federal interagency Plant Conservation Alliance. The definition now reads:

A plant species which occurs naturally in a particular region, state, ecosystem and habitat without direct or indirect human actions.

Comment. Several commenters wanted the definition of noxious weed changed.

Response. The definition of noxious weed has been amended to provide further clarification. The definition now reads,

A plant species designated as a noxious weed by the Secretary of Agriculture pursuant to the Plant Protection Act of 2000 or by the responsible State official. Noxious weeds generally possess one or more of the following characteristics: aggressive and difficult to manage, poisonous, toxic, parasitic, a carrier or host of serious insects or disease, and being non-native or new to or not common to the United States or parts thereof.

Comment. A number of respondents offered comments asking for rewording of the definitions of several terms contained in FSM 2070.5.

Response. The Forest Service disagrees in changing the definitions of terms except for the change of definition for “native plant” and “noxious weed” as noted above. The remaining definitions were examined, and based upon the use of these terms by the scientific community, the definitions remain unchanged.

Section 2070.6 References received one comment.

Comment. More references should be cited, but I have none to offer.

Response. Realizing that providing a list of references invariably will result in omissions, the Agency has removed section 2070.6—References from the final policy.

Therefore, for the reasons set out in this notice, the Forest Service is adopting as final an amendment to FSM 2070 to establish native plant material policy. The final directive is available at the addresses listed in the ADDRESSES section of this notice.

Regulatory Certifications

Regulatory Impact

This final directive has been reviewed under USDA procedures and Executive Order 12866 (September 30, 1993) on regulatory planning and review. It has been determined that this is not a significant action. This final action to provide agency direction would not have an annual effect of $100 million or more on the economy nor adversely affect productivity, competition, jobs, the environment, public health or safety, nor State or local governments. This final action would not interfere with an action taken or planned by another agency nor raise new legal or policy issues. Finally, this final action would not alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipient's program. Accordingly, this final action is not subject to Office of Management and Budget review under Executive Order 12866.

Environmental Impact

These final additions to Forest Service Manual (FSM) 2070 would address the use of native plant materials in revegetation, rehabilitation, and restoration projects; and when nonnative, noninvasive species may be used. Section 31.1b of Forest Service Handbook (FSH) 1909.15 (57 FR 43168; September 18, 1992) excludes from documentation in an environmental assessment or impact statement “rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instruction.” The Agency's preliminary assessment is that this final action falls within this category of actions, and that no extraordinary circumstances exist as currently defined which would require preparation of an environmental impact statement or environmental assessment. A final determination will be made upon adoption of the final directive.

Federalism

The agency has considered this final directive under the requirements of Executive Order 13132 (August 4, 1999) on federalism. The agency has made an assessment that the final directive 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 national government and the States, nor on the distribution of power and responsibilities among the various levels of government. Therefore, the Agency concludes that the final directive does not have federalism implications.

Consultation and Coordination With Indian Tribal Governments

This final directive has been reviewed under Executive Order 13175 (November 6, 2000) on consultation and coordination with Indian tribal governments. This final directive does not have substantial direct effects on one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes. Nor does this final directive impose substantial direct compliance costs on Indian tribal governments or preempt tribal law. Therefore, it has been determined that this final directive does not have tribal implications requiring advance consultation with Indian tribes.

No Takings Implications

This final directive has been analyzed in accordance with the principles and criteria contained in Executive Order 12630 (March 15, 1998) on governmental actions and interference with constitutionally protected property rights. It has been determined that the final directive does not pose the risk of a taking of constitutionally protected private property.

Civil Justice Reform Act

This final action has been reviewed under Executive Order 12988 (February 7, 1996) on civil justice reform. If this final directive were adopted: (1) All State and local laws and regulations that are in conflict with this final directive or which would impede its full implementation would be preempted; (2) no retroactive effect would be given to this final directive; and (3) it would not require administrative proceedings before parties may file suit in court challenging its provisions.

Energy Effects

This final directive has been reviewed under Executive Order 13211 (May 18, 2001) on actions concerning regulations that significantly affect energy supply, distribution, or use. It has been determined that this final directive does not constitute a significant energy action as defined in the Executive Order.

Controlling Paperwork Burdens on the Public

This final directive does not contain any additional recordkeeping or reporting requirements associated with onshore oil and gas exploration and development or other information collection requirements as defined in Title 5 Code of Federal Regulations (CFR), part 1320. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing regulations at 5 CFR part 1320 do not apply.

Dated: February 7, 2008.

Abigail R. Kimbell,

Chief.