E8-18283. Sensitive Species and Endangered Species Act Section 7 Consultation Policy for National Forest System Land Management Planning Under the 2008 Planning Rule

AGENCY:

Forest Service, USDA.

ACTION:

Notice of issuance of interim directive; request for comment.

SUMMARY:

The Forest Service has issued an interim directive (ID) 2670-2008-1 to the Forest Service Manual 2670, sections 45 and 46, to clarify sensitive species and Endangered Species Act policy responsibilities of Forest Supervisors and District Rangers when developing, amending, or revising Land Management Plans (LMPs) under the 2008 Planning Rule, or carrying out projects and activities consistent with those LMPs (36 CFR part 219).

DATES:

This Interim Directive is effective August 8, 2008. Comments must be received in writing by September 8, 2008.

ADDRESSES:

Send written comments to: Forest Service, USDA, Attn: Director Wildlife, Fish, Watershed, Air and Rare Plants, Mail Stop 1121, Washington, DC 20250-1125. Comments may also be e-mailed to: [e-mail].

All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. Persons wishing to inspect the comments are encouraged to call ahead, contacting Wayne Owen, 202-205-1262.

FOR FURTHER INFORMATION CONTACT:

Marc Bosch, Wildlife, Fish, Watershed, Air and Rare Plants Staff, [phone]. The ID 2670-2008-01 is available electronically from the Forest Service via the World Wide Web/Internet at http://www.fs.fed.us/​im/​directives and in this notice. Single paper copies of the amendment are also available by contacting Marc Bosch, Threatened, Endangered, and Sensitive Species National Program Leader, Wildlife, Fish, Watershed, Air and Rare Plants Staff, (Mail Stop 1121), Forest Service, 1400 Independence Avenue, SW., Washington, DC 20250-1121.

Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.

SUPPLEMENTARY INFORMATION:

This interim directive (ID) clarifies the responsibilities of Forest Supervisors when developing, amending, or revising Land Management Plans (LMPs) under the 2008 Planning Rule. This ID also clarifies responsibilities of Forest Supervisors and District Rangers when approving projects and activities consistent with those (36 CFR part 219).

The intended effect of issuing this interim directive is to provide guidance to those Forest Service line officers and other agency employees who are developing and revising LMP's under the 2008 Planning Rule regarding sensitive species and Endangered Species Act policy responsibilities. Because of pending LMP revisions, and to align agency policy with statutory and regulatory responsibilities, there is an immediate need to supersede the existing Forest Service Manual regarding policies that apply to such revisions. Public comments on this interim direction will be considered in the development of final direction. A comprehensive review of the entire FMS 2670 chapter is being done, and further changes may result from that separate effort.

The ID clarifies proper consideration of Forest Service manual direction for sensitive species to reflect and align with the direction for forest plans to be completed under the 2008 Planning Rule. The species diversity component of the framework for ecological sustainability under the 2008 Planning Rule uses species of concern (SOC) and species of interest (SOI) to address the diversity requirements in the National Forest Management Act. Species conservation using SOC and SOI is an integral part of the forest planning process for Ecosystem Diversity and Species Diversity and replaces the need for sensitive species.

FSM 2670 chapter concerning sensitive species remains unchanged for LMPs not developed, amended, or revised under the 2008 Planning Rule and for approving projects and activities consistent with those LMPs.

The ID also describes changes needed because the framework for ecological sustainability established under the 2008 Planning Rule makes a biological evaluation for an LMP developed, amended or revised under the 2008 Planning Rule contingent on whether the LMP will have effects on listed species or designated critical habitat under the Endangered Species Act (ESA).

Responsibilities remain unchanged for conducting ESA section 7(a)(2) consultation for projects and activities that are consistent with the relevant LMP.

Regulatory Certifications

Environmental Impact

This proposed interim directive to Forest Service Manual 2670 clarifies sensitive species and Endangered Species Act policy responsibilities of Forest Supervisors and District Rangers when developing, amending or revising Land Management Plans under the 2008 Planning Rule, or for carrying out projects and activities consistent with those LMPs (36 CFR part 219). Section 31.1b of FSH 1909.15 (57 FR 43180, September 18, 1992) excludes from documentation in an environmental assessment or impact statement “rules, regulations, or policies to establish servicewide administrative procedures, program processes, or instructions.” The agency's preliminary assessment is that this interim 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.

Regulatory Planning and Review

This proposed interim directive has been reviewed under USDA procedures and Executive Order 12866, amended by Executive Order 13422, Regulatory Planning and Review. It has been determined that this is not a significant policy. This policy to clarify agency direction will 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 policy would not interfere with an action taken or planned by another agency nor raise new legal or policy issues. Finally, this action would not alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients of such programs. Accordingly, this policy is not subject to Office of Management and Budget review under Executive Order 12866.

Moreover, this proposed policy has been considered in light of Executive Order 13272 regarding proper consideration of small entities and the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), which amended the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An initial small entities flexibility assessment has been made and it has been determined that this action will not have a significant economic impact on a substantial number of small entities as defined by SBREFA.

Unfunded Mandates

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), which the President signed into law on March 22, 1995, the agency has assessed the effects of this action on State, local, and tribal governments and the private sector. This action 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 interim directive does not contain any additional record-keeping or reporting requirements associated with the special uses program or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use. 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: July 3, 2008.

Gloria Manning,

Associate Deputy Chief for National Forest Systems.

Specific changes to the manual text include adding new paragraphs 7 and 8 to section 2670.45 and adding new paragraph 6 to section 2670.46.

2670.45—Forest Supervisors

7. When developing, amending or revising Land Management Plans (LMP) under the 2008 Planning Rule (36 CFR part 219; see also FSM 1921.73, and FSH 1909.12) and approving a project of activity consistent with those LMPs, do not apply guidance contained in this chapter (FSM 2670) that pertains to sensitive species.

8. Approval of an LMP, amendment, or revision developed under the 2008 Planning Rule is an action that typically will have no effect on listed species or designated critical habitat under the Endangered Species Act (ESA). However, an LMP, amendment or revision is itself not an action within the meaning of the ESA. Do not apply guidance contained in this chapter (FSM 2670) that pertains to conducting a biological assessment unless the LMP, amendment, or revision may have an effect on threatened or endangered species or is likely to jeopardize the continued existence of a proposed species, or will result in the destruction or adverse modification of designated or proposed critical habitat (FSM 2670.31). Collaboration with the Fish and Wildlife Service and NOAA Fisheries under section 7(a)(1) on the LMP for the conservation of endangered and threatened species is appropriate. Continue coordination of projects and activities with state and federal agencies, groups, and individuals interested in species diversity. When developing and approving projects or activities, ensure they are consistent with LMP components for ecosystem and species diversity, species-of-concern and/or species-of-interest.

2670.46—District Rangers

6. When developing and approving projects or activities consistent with an LMP developed, amended or revised under the 2008 Planning Rule (36 CFR part 219; see also FSM 1921.73 and FSH 1909.12), do not apply guidance contained in this chapter (FSM 2670) that pertains to sensitive species. Continue coordination of projects and activities with state and federal agencies, groups, and individuals interested in species diversity. When developing and approving projects or activities, ensure they are consistent with LMP components for ecosystem and species diversity, species-of-concern and/or species-of-interest.